WARNING

The court hearing this matter directs that the following notice be attached to the file:

This is a case under the Youth Criminal Justice Act and is subject to subsections 110(1) and 111(1) and section 129 of the Act. These provisions read as follows:

110. IDENTITY OF OFFENDER NOT TO BE PUBLISHED — (1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act.

111. IDENTITY OF VICTIM OR WITNESS NOT TO BE PUBLISHED — (1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person.

112. NO SUBSEQUENT DISCLOSURE — No person who is given access to a record or to whom information is disclosed under this Act shall disclose that information to any person unless the disclosure is authorized under this Act.

Subsection 138(1) of the Youth Criminal Justice Act, which deals with the consequences of failure to comply with these provisions, states as follows:

138. OFFENCES — Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) . . . or section 129 (no subsequent disclosure) . . .

( a ) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or

( b ) is guilty of an offence punishable on summary conviction.

ONTARIO COURT OF JUSTICE

DATE: 2024 09 26 COURT FILE No.: Central West Region - Brampton – 21-Y221

BETWEEN:

HIS MAJESTY THE KING

— AND —

PP, a young person

Before Justice Andrew F. Falls

Heard on October 3, 4, 5, 2023 and August 20-21, 2024 Reasons for Judgment released on September 26, 2024

Counsel: I. Mahoney & R. Keenan................................................................... counsel for the Crown R. Siddiqui........................................................................... counsel for the defendant, P.P.

Falls, J.:

Introduction

[1] PP, a young person, is charged with sexual assault and sexual interference in relation to AP, and two counts of sexual assault in relation to NJ.

[2] The allegations are historical and broadly span a time frame from December 1, 2017 to December 31, 2019. AP, NJ and PP are cousins. PP is the eldest. Generally, PP is alleged to have committed these offences when AP and NJ were each between the ages of eight and ten.

[3] The allegations involve specific instances of sexual touching on each AP and NJ. The incidents are alleged to have taken place when PP was a youth at various family residences and public locations. Often with other family members in the immediate vicinity.

[4] PP pleaded not guilty. A five-day trial proceeded before me, commencing on October 3rd, 2023 and completed on August 21st, 2024.

[5] The Crown called NJ, NJ’s mother SJ, and AP as witnesses. NJ and AP’s videotaped statements to the police were introduced into evidence pursuant to section 715.1 of the Criminal Code.

[6] Eight exhibits were tendered in this trial.

[7] In addition to the allegations summarized above, the Crown successfully brought a discreditable conduct application. The intention of the application was to provide a narrative of the relationship between the parties, provide evidence of animus and an explanation for delayed reporting. Considerable evidence was led by the Crown that significantly prolonged the length of this trial. Though the Crown led this evidence to assist their case, it ultimately proved to be a fertile ground for a number of inconsistencies.

[8] PP testified in his own defence. PP, additionally, called his sister HP as a witness for the Defence.

[9] PP denied both the allegations covered by the Information and the other discreditable conduct.

Reasonable Doubt, Credibility, Reliability, and the Burden of Proof

[10] Accordingly, the principles in R. v. W.(D.) are applicable.

[11] If I believe PP’s evidence, I must find him not guilty.

[12] Even if his evidence leaves me with a reasonable doubt regarding any essential element of the alleged offence, I must find him not guilty.

[13] Finally, even if his evidence does not leave me with a reasonable doubt about his guilt, if after considering all the evidence that I do accept, I am not satisfied beyond a reasonable doubt of his guilt, I must acquit.

[14] I must keep in mind that PP, like every other person charged with a crime, is presumed to be innocent, unless and until the Crown has proven his guilt beyond a reasonable doubt. He does not have to present evidence or prove anything. It is not enough for me to believe that he is probably or likely guilty. Proof of probable or likely guilt is not proof of guilt beyond a reasonable doubt. Conversely it is nearly impossible to prove anything with absolute certainty and the Crown is not required to do so. Absolute certainty is a standard of proof that does not exist in law. However, I must remember that "the reasonable doubt standard ... falls much closer to absolute certainty than to proof on a balance of probabilities". R. v. Starr at para. 242.

[15] This is a tough standard, and it is so tough for very good reason. As the Supreme Court said in R. v. Lifchus at para. 13:

The onus resting upon the Crown to prove the guilt of the accused beyond a reasonable doubt ... is one of the principal safeguards which seeks to ensure that no innocent person is convicted.

[16] In this regard I note the differences between credibility and reliability. Credibility relates to a witness's sincerity, whether they are speaking the truth as they believe it to be. Reliability relates to the accuracy of their testimony. In determining this, I must consider their ability to accurately observe, recall and recount the events in issue. A credible witness may give unreliable evidence (R. v. Morrissey per Doherty J.A. at para 33; R. v. H.C. per Watt J.A. at para. 41; R. v. Slatter per Trotter J.A. at para. 60; Paciocco and Stuesser, The Law of Evidence, 6th ed. (Toronto: Irwin Law, 2011), pp. 32 to 33). Accordingly, there is a distinction between a finding of credibility and proof beyond a reasonable doubt. (R. v. J.J.R.D. per Doherty J.A. at para 47; R. v. J.W. per Benotto J.A. at para. 26).

[17] I am mindful of the comments of Justice Finlayson in R. v. Stewart:

I am not satisfied, however, that a positive finding of credibility on the part of the complainant is sufficient to support a conviction in a case of this nature where there is significant evidence which contradicts the complainant's allegations. We all know from our personal experiences as trial lawyers and judges that honest witnesses, whether they are adults or children, may convince themselves that inaccurate versions of a given event are correct and they can be very persuasive. The issue, however, is not the sincerity of the witness but the reliability of the witness's testimony. Demeanour alone should not suffice to found a conviction where there are significant inconsistencies and conflicting evidence on the record.

[18] Because AP was a young person when she testified, I pause to note that as child witnesses, I am entitled to consider her age when considering the significance of any inconsistencies or gaps in her evidence. (R. v. W.(R.) at para. 23-26). Because children may experience the world differently than adults, they may not remember details like dates, times and locations that might be more important to adults. (R. v. Mootoo at para.117. See also R. v. B.(G.)). As a result, inconsistencies relating to peripheral issues might impact the credibility and reliability of a child witness less than it would an adult. (Mootoo ibid, at para. 117).

[19] I note, however, that the evidence of every witness, whether a child or an adult, must be assessed with the same level of scrutiny. (R. v. B.(G.) at pp. 54-55).

[20] Finally, in assessing a witness’s evidence, I am entitled to believe all, none, or some of their testimony. (R. v. C.P., at para. 35; R. v. Le, at para. 266; R. v. W.H., at para. 32; R. v. Francois, at para. 14).

PP’s Evidence, and the Evidence of HP

[21] Following the W.D. framework, I will begin my analysis with the evidence of PP. Approaching the evidence from this perspective effectively ends my analysis in favour of a not guilty verdict.

[22] Though his evidence did not start on solid ground, I ultimately believe the PP’s evidence. His evidence, combined with all of the other evidence leaves me with a reasonable doubt as to what happened.

[23] Overall, I accept PP’s evidence. I found him to be a convincing witness that appeared to be telling the truth. He was a forthright witness that gave his evidence in a way that demonstrated to me he was recalling lived events. Viewed collectively, PP’s evidence amounts to a denial of the allegations.

[24] As I noted, PP commenced his evidence in a manner that gave me pause for concern. On number of occasions, PP tended to point to seemingly objective reasons why he could not have committed the offence. I note objective reasons that only he could verify as being accurate. For example, when referring to the alleged touching of AP in the McDonald’s play area, I noted that PP testified that he could not have committed the offence because his body could not fit within certain areas of the play structure. Additionally, when responding to the allegations in the basement of his residence, PP highlighted that the events could not have occurred because the children were not permitted in the basement for various reasons. I initially found this evidence to be self-serving.

[25] I also considered the evidence of SJ. Her evidence provided a direct contradiction to PP’s evidence that the children would go into the basement to play.

[26] I considered what, if any, impact PP’s self-serving evidence has on my assessment of his evidence. Ultimately, I do not find that this evidence affects the overall truthfulness of PP’s evidence.

[27] I accept PP’s evidence that he did not touch NJ or AP in the manner they alleged. He candidly admitted opportunity for solitary interaction with both girls but denied any inappropriate touching. He was forthright in accepting that accidental touching was possible but denied any intention to touch either girl inappropriately.

[28] Considering PP’s evidence in light of the other evidence in this trial, I find that he was a credible witness who provided reliable evidence.

[29] HP, PP’s sister, testified for the Defence. HP was an excellent witness. I found her to be candid and fair. She was deliberate in the presentation of her evidence, being careful to only tell the truth. She noted frailties in her memory and took care to highlight when she was not able to remember an event or had two memories of a similar event.

[30] HP’s evidence effectively undermined AP’s evidence of the McDonald’s play area incident. I find that I accept HP’s evidence that she had a continuous view of AP in the play area. The only time HP lost sight of AP was when she took a picture of her brother by himself. Accepting HP’s evidence in this regard significantly undermines AP’s recollection of the incident.

[31] I have considered all of PP’s evidence. I have considered it in light of the remaining evidence in this trial.

[32] Applying W.D., and having believed PP’s evidence, I must find him not guilty of all charges.

The Reliability of NJ and AP’s Evidence

[33] Because I mentioned the other evidence in this trial, it is important for me to take a few moments to include my assessment of NJ and AP’s evidence.

[34] In assessing the credibility of a witness, it is appropriate to examine any inconsistencies in what a witness said at different times. Inconsistencies on minor matters or matters of detail are normal and do not generally affect the credibility of a witness. But one or more inconsistencies involving material matters can justify concluding that the witness is neither credible nor reliable. In determining this, it is necessary to look to the totality of the inconsistencies. (R. v. R.W.B. per Rowles J.A. at para 29; R. v. M.G., supra at para. 24; R. v. Stewart, supra at para. 27; R. v. A.M. at paras. 12 to 13).

[35] I generally found both NJ and AP to be credible witnesses. I believe they were trying their best to tell the truth as they remembered it. However, after hearing their evidence I have concerns about the reliability of their evidence. I will address the problems I see with respect to the reliability of their evidence below. When I consider these problems collectively, I find my doubt about what happened between PP and NJ and AP is enhanced.

[36] The following are examples of inconsistencies in the evidence of NJ and AP. This is not an exhaustive list. Some of these are the incidents as alleged in the Information. Others are other discreditable conduct. These are presented in no particular order of importance. I have considered them collectively. I also point out that I am relying on these in determining both the credibility and the reliability of their evidence.

NJ

[37] Turning first to the allegations covered by the Information, NJ testified about two incidents of sexual contact with PP. One allegedly occurring at Christmas time in her sister’s bedroom. The other at a Boston Pizza. Other family members were present at both allegations.

[38] NJ additionally testified about historical sexual touching commencing when she was eight or nine years old. PP would have been nine or ten. This evidence was admitted pursuant an other discreditable conduct application. It was alleged that on many occasions, during hide and seek games, PP touched HJ’s breasts and vagina. At times over the clothing. At other times under the clothing.

[39] NJ testified that a number of the incidents took place in the basement of PP’s residence. She testified that some of the kids would use the basement as part of their hide and seek game. At times, she was forced to kiss PP. She alleged that PP grabbed at her body. I heard contradictory evidence from PP and his sister, HP. Each provided evidence that the children were not permitted in the basement. This was because the basement had been in a state of renovation for many years. HP anchored her memory of this rule to an incident when her grandmother fell on the stairs descending into the basement.

[40] On one historical incident, NJ recalled a red and blue tent with a train on it in the basement of PP’s family residence. In her statement to the police HJ noted she had a specific recollection of the tent. It was within that tent that she alleged PP kissed and touched her. This evidence was contradicted by the evidence of PP’s sister, HP. HP recalled a tent of sorts in the basement of her family residence. This was something that she had when she was a young girl, perhaps five or six years old. PP was a baby. It was white with an outline of flowers and windows on it. The tent came with markers and HP used to colour it. Both PP and HP testified that there had never been a red and blue tent with a train on it within the basement.

[41] NJ recalled a foosball table within the basement of PP’s residence. The table was present at the time of the tent incident. It was by the furnace, in close proximity to the red and blue tent. In her 715.1 statement, NJ recalled the table being “one of those hockey tables” with a baseball option and little people. HJ’s recollection of the foosball table was contradicted by the evidence of PP and HP. Both testified that the family never had a foosball table in the basement.

[42] To a lesser extent, though still a factor in my overall assessment, I have considered NJ’s evidence that the children would play hide and seek, hiding both upstairs and downstairs. This evidence was also contradicted by credible evidence from PP and HP. Both recalled that their parents would not permit anyone to go into the upstairs or downstairs of the residence.

[43] This contradiction became more important when considering NJ’s evidence of sexual touching in a closet. NJ recalled this was a bedroom closet upstairs. She recalls PP’s mother’s shoes being present. NJ had a specific recollection of the shoes lined up. She sat on the shoes. This evidence was contradicted by HP’s evidence that the family do not store shoes in their bedroom closets. It has always been the family practice that shoes are stored on a mat by the front door or in the coat closet.

[44] NJ testified that she was touched by the Defendant in her sister’s bedroom. This was at Christmas time. She was in the room with a number of cousins. All were seated on the bed. She was seated beside PP. The circumstances of the touching as described by NJ was to an extent contradicted by HP. HP candidly advised that she recalled two events that match this description. In both events, HP did not see the circumstances as described by NJ. In particular, NJ described PP placing his hands on her chest for 10-15 seconds shortly before the kids were called down to join the family. Both parties were standing up a few feet from the bed. The remainder of the cousins were still in the room, on the bed. HP was present in the room and able to view the kids. HP did not see her brother touch NJ.

[45] The most concerning aspect of NJ’s testimony related to an incident that she testified took place in a basement apartment where she lived with her mother and sister. NJ initially alleged that PP came into her bedroom, snuck up behind her and touched her chest area. NJ recalled making her bed and tidying her room at the time. In cross examination, the following exchange took place with Defence Counsel:

Q. But Natalia, PP never even visited that basement, isn’t that right? A. I don’t know. I may have mixed him up with another cousin, because I – after I gave my statement to police when I said that, I recall that Stephen did come to our house, and it was not PP’s family. Q. Okay, so was Stephen also touching you inappropriately? A. No. Q. No, he was not? A. No, he was not. Q. So, what you told the police was wrong, you agree that PP never touched you in that basement that you lived in, right? A. Yes, because he never visited us at that house. Q. So, Natalia, were you making things up when you were talking to the police? A. No. Q. Why did you tell them that this incident happened? A. I got confused, I had mixed up PP with their other cousin.

[46] NJ’s misidentification of the Defendant and her nonsensical identification of another cousin that has never touched her raises significant reliability concerns.

[47] In closing submissions, the Crown fairly conceded that there are reliability issues with HJ’s evidence about this incident. I agree. It is significant that HJ misidentified or misremembered this event. It is troubling that HJ misremembered a different cousin as the person who committed the touching.

[48] In my view, this casts a shadow of doubt on the reliability of all her evidence. I appreciate that HJ was young when this incident occurred and recollection about details could be challenging. The identity of the person who committed these acts, however, is not an insignificant detail that can be overlooked or explained by age.

AP

[49] AP was a younger witness for the Crown. She was 12 years old when she testified. Considering her evidence alone, I found AP to be a credible witness. She did not embellish her evidence. She readily admitted if she did not know something or did not remember an event.

[50] As I noted, I have concerns about the reliability of AP’s evidence. I have come to this conclusion based on the evidence of PP and, in particular his sister, HP.

[51] AP testified about three incidents of sexual touching.

[52] AP testified that she was touched inappropriately by the Defendant in the basement of his residence. As I noted above, any attendance in the basement of this resident was prohibited to anyone other than immediate family members. PP and HP both testified this and the reasons for this prohibition.

[53] More particularly, in relation to AP, is her recollection of the reason why she and PP attended the basement. An anchoring feature of this memory for AP was the presence of nerf guns. Toys that AP stated PP wanted to show her. This evidence was contradicted by both PP and HP. Both testified that PP had never own any nerf guns.

[54] AP testified about some touching that occurred while seated on a couch in the Defendant’s living or family room. In closing submissions, the Crown conceded that any touching was not of a sexual nature. I was invited not to include this evidence in any assessment of guilt, nor as part of the similar fact application.

[55] The most problematic evidence from AP was her evidence about some sexual touching in a McDonald’s play area. AP testified that the Defendant placed his hand under her buttocks before she went down a slide in the play area. AP did not have a particularly complete memory of this incident. PP testified that he was in the play area, however, he did not go near AP. I heard further evidence from the Defendant’s sister about this incident. HP testified that she was present in the play area with AP and PP. She was there to watch over AP. HP testified that she kept a constant eye on AP, save and except one time when she took a picture of her brother. A picture that did not include AP.

[56] The Crown fairly conceded that there are significant credibility and reliability issues with AP’s evidence about the McDonald’s incident. As aptly put by the Crown, HP’s evidence “shuts the door” for the prosecution in relation to this incident. HP’s recollection was more accurate.

[57] As I noted, HP’s evidence effectively undermined AP’s evidence of the McDonald’s play area incident. I find that I accept HP’s evidence that she had a continuous view of AP in the play area. The only time HP lost sight of AP was when she took a picture of her brother by himself. Accepting HP’s evidence in this regard significantly undermines AP’s recollection of the incident.

[58] The Defence, additionally, argued that PP was bullied by his female cousins. This was a fact that was accepted by all witnesses. Counsel argued that this was a relevant factor in assessing any animus or motive to fabricate these allegations. While I acknowledge the presence of this fact and the potential for a motive, I am not convinced on the evidence that I heard that bullying motivated NJ or AP to fabricate their evidence. I note, in particular, AP did not appear to have any animus towards PP. Nor was it put to her whether she shared the same feelings towards the Defendant as did her sister and cousin. It is unfortunate and sad that PP was not liked by some of his cousins. However, in my view, it would be too great a leap to conclude that any animus of this kind gave rise to fabrication of the allegations testified to in this trial.

Similar Fact Application

[59] Given my concerns about the reliability of NJ and AP’s evidence, it is not necessary for me to engage in a lengthy consideration of the Crown’s similar fact evidence.

[60] I will note the following. As outlined by the Supreme Court of Canada in R. v. Handy, to successfully advance a similar fact application the Crown must disprove the existence of collusion (Ibid, at para. 12 & 113). Where the Crown is unable to rebut the assertion of collusion on a balance of probabilities, the similar fact application should be dismissed (R. v. J.T., at para. 10; Wilkinson, at paras. 36-39).

[61] In my view, given the evidence I heard there is an air of reality to an assertion of collusion which calls upon the crown to rebut its existence. The Crown conceded that they cannot rebut collusion with respect to NJ. This is a fair concession considering NJ’s evidence about speaking with her cousin about some of the incidents before providing her police statement firmly raises the issue of collusion. The Crown is correct in submitting that the mere opportunity to collude is insufficient (R. v. Sheering). Nor does collusion have to be intentional. I note that it was an admitted fact that AP’s disclosure of the incidents to her stepmother was on the day after overhearing a conversation involving NJ about the incidents. AP’s disclosure to her French teacher occurred in the days following. In these circumstances, especially considering the similarity in alleged touching, it was necessary for the Crown to rebut collusion. The Crown has not done so for AP.

[62] Considering this, the Crown’s similar fact application must fail.

Conclusion

[63] Having considered the totality of the evidence, I am not satisfied beyond a reasonable doubt as to what happened in this case.

[64] PP is entitled to the benefit of my doubt. Accordingly, I find him not guilty of all four offences.

Released: September 26, 2024 Signed: Justice Andrew F. Falls