COURT FILE NO.: 50000273-11

DATE: 20120501

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

Z. M. W.

Defendant

M. Townsend, for the Crown

S. Kovacs, for Defendant

HEARD: April 16-20, 2012

Subject to any further Order by a court of competent jurisdiction, an Order has been made in this proceeding directing that the identity of the complainant and any information that could disclose such identity shall not be published in any document or broadcast in any way.

SPIES J.

Introduction

[1] The defendant, Z.W., is charged with five counts of sexual assault and various related charges as well as threatening bodily harm and death in connection with allegations that he sexually assaulted the complainant, F.K., on five occasions between August 2009 and December 2009. He re-elected trial by judge alone and pleaded not guilty to all of the charges. Mr. W. denies improperly touching F.K. or inviting her to touch him for a sexual purpose and he denies ever threatening her.

[2] I will refer to the complainant by her first name, F., to avoid confusion with her mother and sister. F. was twelve years old at the time of these allegations and Mr. W. was her 27 year old brother-in-law. She was living with her parents, her older sister, Z., and her older brother, A., who lived in the basement of the family home with his wife and child until November 2009. Z. had married Mr. W. in January 2008 in a civil ceremony but they were not allowed to live together until the religious ceremony was held, which was scheduled for April 2010. I understand that Mr. W. and the K. family are all Guyanese.

[3] After the civil union Mr. W. would go over to the K. residence after work and on weekends. By the time of these allegations, he had a day job and was going over almost every day after work. He started to go more frequently because Z. asked him to keep her mother company as she was sickly. Sometimes when he was at the K. residence his wife would be home and other times he would have to wait for her to get home from work.

[4] At the time, the K. family lived in a three bedroom semi-detached bungalow in Etobicoke. F. had her own room at the back of the house, but even though it had a bed she did not sleep there. She slept in one bed with her sister and mother, in the bedroom closest to the kitchen. Her father used the third bedroom next to F.’s room at the back of the house.

The Evidence

[5] F. is now 15. She gave a videotaped statement to Detective Hedgeman on December 14, 2009, which she adopted as true and so it formed the basis of her evidence in chief at trial. Although some leading questions were asked of her, for the most past the interview was conducted in a non-leading way and F. was responsive to the questions. At trial she gave evidence from another room via CCTV. She answered a few more questions in chief at the trial and was then subject to cross-examination. In addition I heard from her mother, Mrs. K. and Mr. W. testified in his own defence.

[6] Much of the evidence surrounding the nature of the relationship between F. and Mr. W. and the circumstances surrounding these allegations is not in dispute but the allegations themselves are denied by Mr. W.

[7] There is no doubt that F. and Mr. W. had a good relationship. Before and during the time of these allegations, she was calling him “buddy” which is a term that one uses in the Guyanese culture for someone who you feel close to like a brother. F. described Mr. W. as someone who was nice and funny and agreed with the suggestion from Detective Hedgeman that he would pay attention to her. He would talk to her a lot and she would see him looking at her. She would laugh at things that he said. Mr. W. described his relationship with F. as her being somewhat distant at the beginning but then she started talking to him more and he would tell her jokes. He spent time with her and the other members of the family watching TV and having meals together. Although F. denied this, Mr. W. recalled at one point F. was taking taekwondo and that they sparred together on a couple of occasions. Mr. W. believed F. enjoyed being around him. Every time he went over she would come around him and they would talk. If he was doing some repairs around the house, she would come and look at what he was doing. He admitted being pretty close to her but denied being closer to her than a sister-in-law.

[8] At some point Mr. W. started to help F. with her homework. He couldn’t recall when this started but once it did he helped her almost every day particularly with math and sometimes science. They would do this on the couch or the table in the living room.

[9] Mr. W. also had a good relationship with Mrs. K. She was home a lot as she did not work outside the house. Mrs. K. said that her relationship with Mr. W. was like having a son in her house; he called her “mom” and was nice to everyone in the house.

[10] Mrs. K. was clearly a protective mother as were F.’s father and brother. Mrs. K. never left F. home alone with Mr. W. Although when these incidents are alleged to have occurred, F. and Mr. W. were alone in the kitchen or a bedroom of the house, there was always at least one other member of the family somewhere else in the house.

[11] F. was very close to Z. and still is. She would mention problems to her. She also testified that she had a very good relationship with her mother and would usually disclose issues to her. These allegations were the only thing that she didn’t disclose to her mother.

[12] These allegations came to light as a result of the observations made by F.’s mother on December 9, 2009 at approximately 7 p.m. when she claims that she observed F. and Mr. W. standing in the kitchen, face to face and close together; about one foot apart. She testified that when they saw her they stepped back. She did not see anything else but she felt something was wrong and afterwards repeatedly confronted F. asking her what was going on between her and Mr. W. F. insisted that nothing had happened but she ultimately made some disclosure to her mother about a kiss which set off a process leading to these charges.

[13] Before I turn to the specific allegations, speaking generally there is no dispute that F. never shouted out for help at any time during these alleged assaults even though a family member was elsewhere in the house. After each incident, she resumed whatever she was doing and did not let on that she was upset in any way. No one ever asked her if anything was wrong even though F. testified that she was upset. She did not tell any family member what she alleges Mr. W. had done to her or even complain about him in general terms to anyone. When asked why she didn’t tell anyone she said that she was scared. When asked in her evidence in chief why she didn’t change her behaviour around Mr. W. she said she didn’t know why and that she was “happy around him”. She then said that she was sometimes scared and claimed that the threats really scared her as she believed him, but that he was funny and she’d laugh.

[14] Mrs. K. admitted that she did not observe any suspicious behaviour between F. and Mr. W. in the August to December 2009 timeframe. There was no indication that F. had any problems with Mr. W. December 9, 2009 was the first time Mrs. K. had any concerns about the relationship between F. and Mr. W.

The Allegations

[15] A summary of F.’s allegations is as follows:

The First Incident – August 2009 – Counts 1-3

[16] On a weekend in August 2009, F. had been left in the care of her brother and sister-in-law as her parents and Z. had gone to a wedding reception. They were having a barbeque outside the family home and Mr. W. was present. She recalled it being in the afternoon, but based on the evidence of her mother, it must have been in the evening.

[17] F. testified that she went inside and into the kitchen because her brother wanted something warmed up in the microwave. According to F., Mr. W. came up to the kitchen to get something for the barbecue. While they were together in the kitchen, F. alleges that Mr. W. pushed her into the fridge and tried to kiss her and get his tongue in her mouth. She kept her lips closed and used both of her hands on his shoulder to push him away. This lasted a couple of seconds and after she pushed him away he didn’t come back to her.

[18] F. told Detective Hedgeman twice, in response to questions, that Mr. W. told her not to tell anyone. At that point her brother came upstairs. She said she was upset but that after this she acted like nothing happened and did not tell anyone because she was scared and didn’t know what to do. A little later in the interview F. confirmed that Mr. W. had told her not to tell anybody and then when Detective Hedgeman asked her if he said anything else on that occasion she said that he told her “Don’t tell anyone else or else I’ll hurt you”. When the two different versions of her evidence as to the alleged statement by Mr. W. were put to her in cross-examination, F. explained the discrepancy by saying she was not sure at the time of the interview if she had to say everything that Mr. W. had said to her and that she didn’t know if she had to mention some things or not.

[19] Mr. W. recalled the day of the wedding when he attended the K. residence for a barbecue. He testified that he was preparing plantain to make chips in the kitchen when F. came upstairs to get food to microwave for her brother. Although Mr. W. admits being alone in the kitchen with F., he denies touching her inappropriately or threatening her as alleged.

[20] The day after the wedding Mrs. K. testified that she didn’t notice any odd behaviour on the part of F.

Second Incident – September 2009 (not the basis of any charges)

[21] The second incident, which is not the basis of any charges, is alleged to have occurred on a weekend two to three weeks after the first. F. was in the kitchen. Her mother and sister were home although she could not recall where but she admitted that they were a voice call away. F. alleges that Mr. W. came into the kitchen and without saying anything gave her an open mouth kiss. He then rubbed her left breast over her clothing and he threatened her by saying that she should not tell anyone or “we’re both dead.” She did not say anything to Mr. W. although she did mouth the word “stop”. She explained to Detective Hedgeman that she doesn’t know why, just that she would get scared and that for some reason when she’s scared she doesn’t say anything. She pushed him away and he tried to come back twice and then just forgot about it. She did not tell anyone about this.

[22] Mr. W. testified that after the barbecue he continued to go to the K. residence every day as usual. He would go into the kitchen from time to time and he would see F. there. He denied having any improper contact with F. in the kitchen in September 2009 and denied threatening her.

[23] In cross-examination F. agreed that after this incident she knew it was not safe to be alone with Mr. W. Nevertheless she didn’t do anything to distance herself from him.

Third Incident – October 2009 - Counts 4-6

[24] As F. was finishing telling Detective Hedgeman about what was described as the third incident that occurred in late November 2009, that I will come to, she told him that: “I just remembered one incident before that” that was “the biggest and the worst out of all of them”. She alleged that in October 2009, Mr. W. was fixing a blind in her father’s room. The door was likely open. Her mother and her sister were home. When F. came back into the room to give him a screwdriver or a drill, she alleges that Mr. W. was sitting on the bed and he pulled out his “private” and he pulled her head down to suck it. She didn’t want to and tried pulling away but he wouldn’t allow her to. She ended up having his penis in her mouth for a couple of seconds and nothing came out. She did not go to the washroom to rinse her mouth. She did not remember if Mr. W. threatened her or not this time. She left the room and joined her mother and sister in the living room.

[25] In cross-examination F. testified that no alarm bells went off when she was asked to help Mr. W. even though she’d be alone in the room with him. She said she was still enjoying his company and being around him and that she was afraid of him but not at that time and that “it didn’t really bother me as much”.

[26] F. was not able to add any details as to whether or not Mr. W. unzipped his pants or pulled them down or what he was wearing in terms of underwear. She couldn’t recall the colour of his penis, whether it was erect and she didn’t know what it meant to be circumcised and was “guessing it was a brown colour”. She did not remember how he got her head down. On the two occasions when Mr. W. is alleged to have put his penis in F.’s mouth he was not wearing a condom.

[27] Mr. W. did recall being in Mr. K.’s room putting up decorative blinds at the request of Mrs. K.. He needed some extra tools and testified that he called for help to his wife but it was F. who showed up with the screwdriver. He was moving the brackets for the blind. Mr. W. said he was standing on the bed the whole time. F. passed the screwdriver to him and he couldn’t remember if F. stayed. This process took 15-20 minutes. After he completed the installation he left the room and went to the living room and joined everyone else. He recalled that Mrs. K. was there along with his wife and F. Mr. W. denied the allegations made by F.

Fourth Incident – Second October 2009 Incident - Counts 7-10

[28] In the days after this incident, F. admitted that she did not do anything to take herself out of Mr. W.’s company. About a week later, F. testified that Mr. W. did the same thing but this time he was in her room because he was fixing a cable to the computer. Again her mother and sister were home. F. testified that she went to her room when Mr. W. called her to give him a tool, although in cross-examination she said that she went to her room as she was curious to see how the project was going. When asked why she would go to a room where Mr. W. was by himself, only a week after the serious incident that she alleges, she said that she didn’t know.

[29] In any event, F. alleges that when she gave the tool to Mr. W., he was sitting on the bed and he took his penis out again. She did not know if his pants were down or unzipped. This time his penis was “standing.” F. testified that she was standing and tried to back away because she remembered what Mr. W. did before but he grabbed her hand and pulled on her hair, which was hanging over her shoulder, so hard that she couldn’t even raise her head. She had his penis in her mouth so far down that it choked her and there was “come” meaning he ejaculated. Some went down her throat and the rest she spit out in the bathroom and washed her mouth out. His penis was in her mouth a few minutes and during this time Mr. W. was not saying anything but was making sounds like pleasure noises. He told her not to tell anyone or else “we’re both dead”. She didn’t know what he meant but was guessing that he would kill her and kill himself because he had a serious face when he said it. That’s what she believed at the time. At this point in the interview she told Detective Hedgeman that the threat was always the same wording, although her evidence was not consistent on this point.

[30] F. did not mention going to the bathroom in her statement and in cross-examination testified that she just had not remembered it then but that she remembers it now. In any event, after this incident she went to help her mother prepare dinner.

[31] Mr. W. admitted to installing a cable from F.’s room to the living room at the request of his wife as they wanted to move the computer to the living room. Mr. W. denied asking F. to help him but testified that she did come to the room to see what he was doing and stood looking in from the doorway. He was inside the bedroom approximately ten feet away from her but he was moving around running a cable and so at times was either closer or farther away. He denied F.’s allegations.

Fifth Incident – Late November 2009

[32] F. described an occasion in late November 2009, when Mr. W. was over and was meant to finish off painting downstairs but instead offered to help her with her homework. She accepted because she needed help with math. Her mother went to lie down as she was not feeling well and would have been in the first bedroom nearest the living room. After about half an hour had passed and while Mr. W. was still helping F. with her homework, at the table in the living room, she alleges that he started rubbing both of her breasts and then touched her “other private”; a reference to her vagina. He was threatening her by telling her not to tell anyone or else “we’re both dead”. He took her hand and pulled it to “his private” over his clothing and she told him to stop. She tried to pull his hand away and didn’t say anything. F. alleges that Mr. W. rubbed her breasts for a couple of minutes and that he rubbed her vagina over her clothing for a few seconds and she pulled his hand away. He then opened her buttons and zipped down her zipper and went into her underwear trying to “finger” her; trying to go into her vagina, but she didn’t allow him to. The only way she got him to stop was to tell him “not tonight”. While this was happening he was still explaining her math homework to her.

[33] F. did not call out to her mother because she was scared that maybe her mother would get upset with her and because of the way Mr. W. was threatening her. F. said she told him “not tonight” because if she told him to stop he wouldn’t and he would have wanted to do more. When she told him “not tonight” she knew he wouldn’t do it anymore. She told Detective Hedgeman that then he was “like OK I won’t hurt you”.

[34] When F. was cross-examined as to why she didn’t just walk away from the table, she said that Mr. W. was right in front of her and then added that Mr. W. was pushing her back into the chair. She admitted that she had never said this before either in her police statement or at the preliminary hearing and testified that she had just remembered this now. After the incident, they continued doing her homework together; the total time spent on homework was about 2 hours so this means they continued working for almost 1 ½ hours. F. said that she felt upset but it was important to get her homework done.

Last Incident - December 9, 2009

[35] On the evening of December 9, 2009, everyone agrees that Mr. W. was downstairs with A., ripping up the carpet and subfloor in the basement. Mrs. K. was also downstairs checking on what they were doing. F. alleges that when she was standing in the kitchen getting something, Mr. W. came up from the basement and grabbed his boots and then without saying anything to her, kissed her on the lips and his tongue went in her mouth. She did not remember if she pushed him away but admitted that would have been her normal reaction. Her mother came back upstairs and into the kitchen and F. told Detective Hedgeman that “she caught us kissing”. Detective Hedgeman then said “so he kissed you” and she said yes.

[36] F. also alleged that at this time Mr. W. threatened her by telling her that if she told anyone she would get hurt. This is the first time she had alleged that Mr. W. had expressly threatened to hurt her. She confirmed to Detective Hedgeman that this was his exact wording. It is not clear how this threat could have been made however, given her evidence as to when her mother arrived.

[37] Mrs. K. testified that all she saw was F. and Mr. W. standing face to face about a foot apart. In her evidence in chief she said that F.’s face looked like something was wrong but in cross-examination she said she did not see the expression on F.’s face and that she did not look at them too much. She then agreed with Mr. Kovacs that she had a fearful look but admitted that she never said this in her statement. I did not find this part of her evidence believable as it kept changing.

[38] F. testified that her mother didn’t say anything at the time but afterwards pulled her into one of the rooms and asked her what she and Mr. W. were doing. She told her mother “nothing” because at that point she was scared and did not know what to do. F. told Detective Hedgeman that after Mr. W. went back downstairs she told her mother that “I kissed him”.

[39] According to F., after Mr. W. went back to the basement he called her for a tissue, claiming he had something in his eye and that when she went downstairs to give it to him he kept mouthing the words “Are you in trouble?”, “If mom says anything say no”. Although not specifically asked about this, this evidence is at odds with Mrs. K.’s evidence as she claimed to have told F. to do her homework and then go to bed. It also seems unlikely that Mrs. K. would have permitted F. to go downstairs and see Mr. W. given that she was concerned something had happened between them.

[40] Mr. W. testified that after work he went to his home and then went to the K. residence. He spoke to his wife who was at work and told her that he was tired and didn’t feel like helping with the renovations that day. She told him that the work had to get done and that he was dragging his feet and so he did go down to the basement to help his brother-in-law. They needed to rip out the carpet and subfloor and some beams underneath. Seeing as he was only wearing his slippers, he needed to go upstairs to get his boots as they were using a chainsaw and he wanted extra protection. He grabbed his boots and saw F. in the kitchen. At this point Mr. W. testified that he was mumbling and arguing with himself, as he was angry with his wife. F. asked him what happened. He admits that he was standing in the kitchen talking to her and that they were alone together. In his evidence in chief he said they were probably six feet apart but in cross-examination when it was put to him that they were about one foot apart he said he did not know. He turned to leave and saw Mrs. K. standing there and he went downstairs to finish the work. They worked until late and he then went home. According to Mr. W., he saw his wife before he left the home and nothing was said about these allegations.

[41] Mrs. K. testified that when she came to the kitchen and made the observations that I have already set out, she first asked F. about a telephone call she had missed and that F. told her who had called and then she called that person. She started to do the dishes but got nervous about what had happened and so she called to F. and asked her why they were standing so close. F. said nothing happened. Mrs. K. then took F. to the bedroom and asked her again two times. She told her that she needed the truth and nothing but the truth and asked why they were standing so close. Very calmly F. said “mother nothing” both times. Mrs. K. finally asked F. if she wanted to see her have a heart attack and she needed to tell her the truth and that she was feeling something was not right. F. asked if she told her something whether or not she would get upset with her and she said she would not.

[42] Initially Mrs. K. testified that F. then told her that Mr. W. kissed her. She told her to do her homework and then go to bed. In cross-examination she admitted that she thought that’s what F. said but she couldn’t remember if she said that she kissed Mr. W. or he kissed her. According to Mrs. K., when F. told her this her eyes were watery like she wanted to cry and she felt that she was nervous. F. never told her anything else happened other than this kiss.

[43] F. told Detective Hedgeman that she told her mother that “I kissed him”. Her explanation in her evidence in chief for why she said she kissed Mr. W. was that she was confused at the time. In cross-examination, when asked if it was possible that she kissed Mr. W., and not the other way around, she answered “I don’t know what happened”. Later she denied being the one who initiated the kiss. F. testified that she was scared after she told her mother about the kiss and that she was afraid she’d get into big trouble.

[44] Mrs. K. testified that when Z. got home she told her that F. had said that Mr. W. had kissed her. Mr. W. testified that after he was home and in bed he got a phone call from his wife asking him what was going on with F. He said “where are you coming from?” He got a second call from Z. who told him she had woken F. up and had been told by F. that he had kissed her. Mr. W. told her that he would come over after work the next day to straighten things out.

[45] F. confirmed that after she was in bed, Z. woke her up and asked her what was going on between her and Mr. W. According to F., she told Z. that it was Mr. W. who kissed her. She agreed this was a different version from what she told her mother and that this was because she did not want her sister to become more upset.

[46] Mrs. K. spoke to F. about this again on the Thursday evening and they were alone. She asked her how come she made Mr. W. kiss her and F. said she did not know.

[47] Mr. W. went to the K. residence after work on Thursday and testified that everything seemed like normal and he went to do more work in the basement. In cross-examination Mr. W. was asked why he didn’t immediately speak to his wife “kicking and screaming” to deal with the allegation that he had kissed F. It was suggested to him that he avoided it in the hopes that it would simply be forgotten. Mr. W. responded that they all acted like everything was OK and his wife even made a cup of tea for him before he went downstairs. He was waiting for her to tell him when she was ready what she was concerned about. He said it was his idea that they have this meeting on Thursday night and that this is what he told his wife when she called him the second time on Wednesday night. Mrs. K. did not describe what happened before the meeting but did confirm that Mr. W. was in the basement and that Z. called him upstairs.

[48] There is no dispute that a family meeting involving F., Mr. W., Mrs. K. and Z. was held later on, on Thursday night. Mr. W. admitted that he knew the allegation was that he had kissed F. in the kitchen. According to Mrs. K., Z. asked him what he had done to F. and he said nothing. Z. said that F. said you did something to her. Mrs. K. testified that after repeated denials Mr. W. finally admitted to Z. that: “yes, I kissed your sister”.

[49] According to F., when Mr. W. arrived Thursday evening, he did not say anything to her, not even “Hi”. She then described the family meeting. She testified that when Z. asked her in front of Mr. W. and her mother whether or not he had kissed her she told her that he did so more than five times. Mr. W. then asked how she could say that and denied it. Neither Mrs. K. nor Mr. W. were asked about this statement about Mr. W. kissing F. more than five times. F. told Detective Hedgeman that when Mr. W. was confronted by Z. about the alleged kiss, that he denied it.

[50] According to Mr. W., during this meeting he asked F. three times whether or not he kissed her and she didn’t answer. She finally said softly “yes” and when he tried to question her further his wife said that if F. said it, it happened. Mr. W. denied admitting kissing F. at this meeting. He went home after this and never went back to the K. residence.

[51] Up to the Wednesday night, F. had only told her mother and sister about the kiss, nothing else. She admitted that the next day; the Thursday, Z. was asking quite a few questions wanting to know what happened between the two of them and that she maintained that it was Mr. W. who had kissed her. However, she agreed that Z. was angry with her as well which does not make sense if that is what she told Z.

[52] F. denied in cross-examination that she was afraid of the reaction of her family to her saying that she kissed Mr. W. and that she had to come up with some other story. She denied trying to shift blame to Mr. W. for things that she couldn’t be blamed for by coming up with other allegations.

Other Incidents

[53] When Detective Hedgeman pointed out to F. that she had not told him about more than five times that Mr. W. had kissed her, she told him that there were times when he would just give her a kiss and that would be the end of it. When asked how many times this happened she said it was about seven. In her evidence in chief, F. testified that it was Mr. W. who initiated the kisses and that she was not sure if he kissed her more than 10 times.

[54] F. told Detective Hedgeman about one other specific occasion sometime in the fall after school started in September 2009, when Mr. W. was painting in the bathroom and she was watching him paint and talking to him normally, making jokes. This incident is not part of the charges and involves a kiss and no touching.

[55] Initially F. very clearly told Detective Hedgeman that this incident was after the incidents with the penis. She was then asked if she still felt comfortable enough to be around Mr. W. even though all of this had happened and she responded “no, not really”. Detective Hedgeman then told her that someone down the road would question her if it was really bad why she didn’t tell someone and he asked her a leading question as to whether it was because she was scared and she said yes. He then asked what made her comfortable enough to be around Mr. W. still and she said “…he’s a nice guy and he’s funny, at those points like I don’t really feel that scared around him, until he really does something to me”. At this point, when Detective Hedgeman was trying to narrow down when this bathroom incident occurred, he pointed out that she had said it was after the incident with the penis and at this point she said no that it was before. She then settled on it happening the beginning of September.

[56] During this part of the interview F. said that the threats were always the same, but this time she said that sometimes Mr. W. would tell her not to tell anyone “or else I’ll hurt you” and that sometimes he’d say don’t tell or else “we’re both dead”. She told Detective Hedgeman, that when she was threatened she would stay quiet and move away from Mr. W. but that “sometimes I feel like, since he’s funny and all, sometimes I wanna be around him and like get along with him, …but I don’t want … those things to happen”. In her evidence in chief she stated that she believed Mr. W. would hurt her and she would get into trouble with her parents, her family and Mr. W.

Evidence of possible corroboration

[57] F. did give some evidence about how these alleged incidents impacted her. She claimed that she had problems going to sleep as a result of these allegations. She did not mention any problem sleeping in her statement or at the preliminary hearing although I note she was not asked any questions about this by Detective Hedgeman and she had no recollection of being asked about this at the preliminary hearing. F. admitted that there was no significant change in her behaviour in this timeframe and that everything at home was normal. No one suggested to her that she was more quiet or acting out. She started Grade 7 in September 2009 and she testified that her grades remained the same.

[58] According to Mrs. K., in the September/October 2009 timeframe, she started to notice, that F. wasn’t finishing her homework even though she would sit with her books open. When she asked F. what the problem was F. told her that she couldn’t understand the work and that it was too much. This evidence was not put to F. Mrs. K. testified that in a couple of her subjects, F.’s marks fell to below 50% whereas before she had had over 70%. Mrs. K. admitted she didn’t mention F.’s grades falling in her statement to police. This was not put to F. No report cards were filed and so I have contradictory evidence from F. and Mrs. K. on this point.

[59] Mrs. K. testified that later, in November/December 2009, she also noticed that F. wasn’t listening to her as well and she would have to ask her more than once to do things like the dishes. She asked F. what was happening and she never answered her. F. was not asked about this.

[60] Mrs. K. also testified that initially, when Mr. W. was doing repairs around the house he would get anything he needed on his own but that he started to call F. to bring him things and F. would comply. However, she denied that Mr. W. was spending a lot of time with F. unless he was helping her do her homework. She also admitted in cross-examination that she told F. not to hang around Mr. W. or stay too close to him. When Mr. W. joined the family Mrs. K. told F. that he was a brother-in-law and that she should try not to be too close to him and should treat him like a brother-in-law not a brother. There is no evidence of Mrs. K. repeating this. She admitted that at no time did she see any undue or inappropriate affection by Mr. W. towards F.

Analysis

[61] I now turn to my analysis. Since Mr. W. testified, the principles set out in the decision of the Supreme Court of Canada in R. v. W.(D.)[^1] apply. I must acquit Mr. W. if I believe his evidence or, even if I do not believe his evidence, I am left in a reasonable doubt by it. If I am not left in doubt by his evidence, then I must ask myself whether, on the basis of the evidence which I do accept, I am convinced beyond a reasonable doubt by that evidence, of his guilt. In my analysis, I am not bound by the strict formulaic structure set out in W.(D.), but rather must adhere to the basic principle underlying the W.(D.) instruction that the burden never shifts from the Crown to prove its case beyond a reasonable doubt.[^2]

[62] In considering the evidence, I am entitled to believe all, some, or none of each witness’s evidence. Further, in assessing the evidence of Mr. W., I am entitled to consider it in the context of all of the other evidence, including the evidence of F. and in so doing, compare the evidence of each of them.[^3] However, I must remind myself that this is not a credibility contest.[^4] W.(D.) prohibits me from concluding that the Crown has met it burden simply because I might decide to prefer the evidence of F. to that of Mr. W.[^5] As I am faced with contradictory versions of what happened in this case, I would add that if, after considering all of the evidence, I am unable to decide whom to believe, I must acquit.[^6]

[63] I remind myself that each allegation is a separate charge and that Mr. W. is presumed innocent of each charge. It was not argued that I could rely on the evidence in support of one charge as similar fact evidence to assist in proving another. Accordingly I must consider each charge separately and make my decision on each charge only on the basis of the evidence that relates to that charge. I must be satisfied beyond a reasonable doubt on all of the evidence that Mr. W. committed one or more of these offences before I find him guilty.

[64] Considering only the credibility of Mr. W. and the reliability of his evidence, there is no reason on its face to find that it is false. He candidly admitted having the opportunity to commit these offences, in that he admitted to being alone with F. in the house, as she alleged, but he denied that he ever sexually assaulted or threatened her. There were no inconsistencies in his evidence and his demeanour did not change in any way during cross-examination, even after he was repeatedly challenged that various events did occur. He very calmly denied each suggestion put to him. On a couple of occasions he asked for a question to be repeated but I did not find that to be in any way evasive. Some of the questions, particularly the repeated questioning breaking down the specific allegations, became somewhat convoluted since Mr. W. had denied the allegation.

[65] Mr. Townsend submitted that Mr. W. was somewhat evasive in responding to questions about the appropriateness of talking to F. about problems he was having with Z., but that in my view is a very minor point. There was nothing from his demeanour or the evidence he gave that would suggest what he testified to was not true or could not reasonably be true.

[66] I considered Mr. Townsend’s submission that the fact Mr. W. did not arrive on Thursday evening “kicking and screaming” is inconsistent with his evidence that he intended to straighten things out that night. Mrs. K. was not asked much about this but her evidence is consistent with Mr. W.’s that he was downstairs before the meeting. F. only said that Mr. W. did not talk to her or even say “Hi” when he arrived that night. Apart from that Mr. W.’s evidence is not contradicted and it seems clear that the meeting did not take place right away. I do not know what to make of this but it cuts both ways. It is just as odd that Mr. W. was not confronted by his wife and Mrs. K. as soon as he arrived.

[67] I turn then to the credibility of F. and the reliability of her evidence. Her complaint was close in time to the alleged assaults and she was not a child of tender years and so there are no real concerns about the reliability of her evidence. The issue is her credibility. At the outset, of her videotaped statement, F. was not sworn, but she was told of the importance to tell the truth and confirmed that she understood that. During her videotaped statement, it was difficult to see F.’s face as the video was taken from over her head. She was much more demonstrative than during the trial, often using hand gestures when answering questions. She appeared calm and relaxed, was never emotional and very forthcoming to all of Detective Hedgeman’s questions. During the trial, F. sat perfectly still as she watched the DVD without any expression on her face. She remained that way during the brief evidence in chief and in cross-examination, her demeanour remained the same. Throughout she was very calm and showed absolutely no emotion of any kind.

[68] The courts have recognized that demeanour is not as helpful as once thought in determining the credibility of a witness. In this case, I found it of little assistance in assessing either the credibility of Mr. W. or F.

[69] I have considered the comments of the Supreme Court of Canada as to the special considerations that should apply when considering the credibility of a child witness, given that the events F. described are alleged to have taken place when she was 12 years old. Children are vulnerable witnesses. Although the credibility of every witness that testifies must be carefully assessed, the standard of the “reasonable adult” is not necessarily appropriate in assessing the credibility of young children. As McLachlin J. (as she then was) stated in R. v. W.(R.)[^7]:

Since children may experience the world differently from adults, it is hardly surprising that details important to adults, like time and place, may be missing from their recollection.…

[70] As Wilson J. stated in R. v. B. (G.)[^8]:

…a flaw, such as a contradiction, in a child’s testimony should not be given the same effect as a similar flaw in the testimony of an adult…

[71] The court’s common sense approach to the evidence of children does not mean, however, that the evidence of children should not be subject to the same standard of proof as the evidence of adult witnesses in criminal cases.[^9] Although the Crown’s case depends almost entirely on the evidence of a child, it remains the obligation of the Crown to prove the offences alleged against Mr. W. beyond a reasonable doubt.

[72] In considering these principles, I conclude that the fact that F. was not able to recount precise details and communicate the when and where of each incident with exactitude, does not mean that she has misconceived what happened to her. I do not accept for example, that I should discount her evidence because she was not able to give all of the detail one might expect with respect to the allegations of forced fellatio. She was also not able to provide dates for alleged assaults, but as she kept no record, that is not surprising. She did her best to relate them to another event, such as the wedding or what Mr. W. was doing in the home, which is how one would expect her to remember timing.

[73] In fact, given her age, I found that F. was quite responsive to questions, both during the interview by Detective Hedgeman and when giving evidence at trial. She spoke up when she did not understand a question and I did not observe her to be shy and timid as submitted by Mr. Townsend.

[74] I have F.’s evidence as to why she did not tell her mother or anyone else in her family about what she alleges Mr. W. was doing to her, which I will consider. The delay in disclosure, standing alone, does not give rise to an adverse inference against her credibility. It is, however, a factor that I must consider in assessing her evidence, in all of the circumstances of this case. There is no inviolable rule on how people, who are the victims of trauma like a sexual assault, will behave. As McLachlin J. stated in R. v. W.(R.)[^10] “victims of abuse often in fact do not disclose it, and if they do, it may not be until a substantial length of time has passed.”

[75] Reasons for delay are many and can include fear as expressed by F. in this case. I accept her evidence that if these allegations occurred that she might be afraid of telling her parents as she might think that she would get in trouble even though, on her account, she did nothing wrong.

[76] On this issue there are also the alleged threats. F. was not consistent about exactly what she alleges Mr. W. said on those occasions when she alleges he made a threat. Although she did suggest that on a couple of occasions he expressly threatened to hurt her, I am not satisfied that that sort of threat was ever made. For the most part her evidence was that Mr. W. told her not to tell anyone or they would both be “dead” and she testified that he always made the same threat. I am also not satisfied that if this threat was made that F. believed by Mr. W. saying this that he intended to kill her and kill himself. That seems seriously at odds with all of her admitted evidence about her behaviour around Mr. W. I find it more likely, that if these threats were made, that F. would have understood them to mean that they would both be in trouble if she told anyone. That however, could have been enough to prevent her from disclosing any assaults by Mr. W. as she did express concern in her evidence on a number of occasions that she would be in trouble with her family if she told them what was going on. This could be an explanation for why she did not report the alleged abuse to at least her mother.

[77] There is no evidence of any reason why F. might have made up these allegations, particularly given Mr. W.’s evidence that there was no kiss at all on December 9th. It is true that her mother kept pressing her for an explanation for what she saw and that she was not satisfied with F.’s answer that nothing happened, but that does not explain why F. would tell her mother there was a kiss and then go on to make such serious allegations against Mr. W. when she spoke to Detective Hedgeman. On all accounts, her relationship with Mr. W. was a very good one. Although when she gave her statement she very clearly said she wanted Mr. W. charged and out of the country, there is no evidence of any issue with him before December 9th. However, there is no obligation on Mr. W. to explain why F. might be lying or provide a motive for her to fabricate her evidence. Although the absence of a motive to lie does not mean that F.’s evidence is true, it is a factor that I may consider.[^11]

[78] I have considered the probability of these assaults occurring as alleged by F. As Mr. Townsend submitted, some of her evidence, and in particular her evidence about the alleged fellatio makes some sense and it seems less likely that it could be made up. Her evidence that on the second occasion Mr. W.’s penis was “standing” is language that I would expect of someone her age, to describe what she alleges that she saw and her evidence that Mr. W. ejaculated is consistent with what she alleges occurred. However, it is of concern that it seems that she did not remember these allegations until she was giving her statement to Detective Hedgeman even though as she said they were clearly by far the worst of what she alleges. There appeared to be no reason why she would suddenly remember these incidents as they were alleged to have occurred only a couple of months before her statement. Furthermore, as I will come to, of all the allegations, these seem the least likely to have occurred in that they would have involved incredible risk on the part of Mr. W. given that he is alleged to have committed these offences in the family home, with other family members nearby.

[79] As for the other alleged assaults involving only kissing and touching over clothing, F.’s allegations of unwanted kissing and touching over clothing could reasonably be true. That said, I have no reason to disbelieve Mr. W.’s denial that they occurred.

[80] As for the credibility of Mrs. K. and the reliability of her evidence, I found her to be a credible witness in terms of what she alleges she saw on December 9th. However, she was clearly and understandably intent on assisting F. in support of these allegations and I must take this into account. For example, it is likely that this has influenced what she now believes were changes in the behaviour of Mr. W. and F.

[81] Turning to the charges, Mr. W. is charged with five counts of sexual assault and related offences including charges that he threatened F. Dealing first of all with the alleged admission by Mr. W. that he kissed F. at the meeting on Thursday evening, in light of his clear denial, which is corroborated by F., I am not satisfied that he made the admission that Mrs. K. testified to. I certainly have a reasonable doubt as to whether or not there was such an admission at this meeting.

[82] I have considered whether or not what Mrs. K. observed affords some corroboration of the alleged assault on December 9th. I have concluded that it does not. Although I accept Mrs. K.’s evidence as to what she saw, the fact that F. and Mr. W. were standing facing each other and were close to each other does not prove anything. Clearly it raised suspicions in Mrs. K.’s mind, but she did not see anything that was inappropriate in and of itself. Certainly, what she observed does not mean that what Mr. W. testified to is not true, although he did say they were not as close as Mrs. K. alleged. However, he agreed in cross-examination that it was not a very big kitchen and even on Mrs. K.’s evidence F. was far enough away from the counter to be able to step back.

[83] As for the other evidence of Mrs. K. as to changes in behaviour of Mr. W. and F. and her dropping grades, there is some concern about the reliability of that evidence. I did not find her evidence in that regard of much assistance as it was either not put to F. or inconsistent with F.’s evidence. In any event, other things could have accounted for this including the start of a new school year.

[84] As a result, the Crown’s case really depends on the evidence of F. Mrs. K. saw nothing improper, even if F. and Mr. W. were standing face to face, a foot apart.

[85] Usually, prior reporting of the alleged assaults by a complainant would not be admissible in a trial unless used to elicit evidence of prior inconsistent statements or to rebut a defence of recent fabrication. In this case, there is a serious inconsistency in what F. reported happened on December 9th which must be considered. Her position is that Mr. W. kissed her but she very clearly told Detective Hedgeman that she told her mother that she is the one who kissed Mr. W. Mrs. K. testified that F. told her Mr. W. kissed her but in cross-examination she vacillated on this. Given F.’s evidence, it seems more likely that she told her mother at least initially, that she kissed Mr. W. This is consistent with her admission that she told Z. that it was Mr. W. who kissed her so that Z. would not be as upset. Furthermore, her evidence that Z. was angry with her would also be consistent with F. initially telling her mother that it was Mr. W. who kissed her. This is a serious inconsistency in F.’s evidence that cannot be attributed to her age. F. had no explanation for this inconsistency, save to say she was confused. That however, is at odds with her entire interview which shows no sign of confusion or uncertainty on her part in answering Detective Hedgeman’s questions.

[86] I am also troubled by the fact that I did not hear from Z. and that I do not have a clear understanding of the circumstances of what F. said to her and what she said in response. Given my conclusion that F. at least initially told her mother that she kissed Mr. W., it is likely that Z. was told this and this would explain why she was angry with F. When Z. woke F. up however, it appears that F. told her that it was Mr. W. who had kissed her and this is what Z. told Mr. W. when she called him the second time. That may have been when F. changed her account of what happened and given F.’s admission that she told Z. that it was Mr. W. who kissed her so that Z. would not be as upset, it seems likely that what happened between F. and Z. is responsible for her changing her position as to who initiated the kiss.

[87] By the time of the Thursday night meeting it seems that the position of F., her mother and Z. was that Mr. W. had kissed F. It is clear that at the meeting on Thursday night Mr. W. was only confronted with the allegation that he kissed F. the previous day. However, I have no evidence as to what happened after the Thursday night meeting. Given these allegations occurred in a family context, given that it appears that F. changed her story as to who kissed who, and given that sometime after the Thursday evening she made further allegations against Mr. W., and given that it appears that the most serious ones, concerning fellatio, were not reported until five days later when giving her statement to Detective Hedgeman, the dynamic of what was happening in this closely knit family is a significant gap in the evidence. Simply put, I am concerned that any discussions F. had with Z. and possibly other family members may have impacted on what she has alleged occurred or somehow tainted her evidence.

[88] The absence of a motive to lie is perhaps the most compelling reason to believe F. Regardless of the issue of who initiated it, clearly F. told her mother and Z. that there was a kiss. Mr. W. has denied this. I have no idea why F. would tell her mother that there was a kiss, if in fact there was no kiss. Furthermore, there seems to be no explanation for why or how such an allegation could have mushroomed into the allegations F. testified to in this trial. There is however, the possible contamination by other family members that I have already referred to. Furthermore, if there was a kiss, and if F. initiated it, it is not inconceivable that F. could have felt some pressure to amplify the allegations to shift the blame away from her. It is hard to judge how a 12 year old might react in these circumstances. That still would not explain why she said there was a kiss in the first place but without knowing how the disclosure developed, it is hard to say. In any event, the absence of a motive to lie does not mean that the Crown has met its onus.

[89] With these general observations in mind, I have the following additional concerns:

a) The K. family is a very closely knit family and if these allegations are true, I find it difficult to believe that something more would not have been observed in terms of a change in behaviour by F., particularly by Mrs. K. who clearly was very alert to anything suspicious. Even accepting F.’s explanation that she acted normally because she was scared as a result of the alleged threats, it is difficult to believe that if these events occurred, that she would be capable of simply rejoining the family each time and continue on as normal without someone noticing something and making a comment about it.

b) F.’s evidence that she was scared of Mr. W. and upset about what it is she alleged he was doing to her is at odds with the fact she made no effort to stay away from him and in fact, as she admitted, she continued to willingly be alone with him somewhere in the home and even seek out his company. Although this behaviour could be consistent with a young girl infatuated with a funny and attentive brother-in-law, this is much harder to explain after the alleged events in October of forced fellatio. The starkest example of this is the second alleged incident of fellatio which is alleged to have occurred only a week or so after the first. F. testified that she went to her room to see what Mr. W. was doing because she was curious, even though she knew this would mean she would be alone with him. These actions are completely at odds with the allegations and her expressed fear of Mr. W.

c) Given the size of the K. residence and the layout of the rooms, I find it difficult to believe that some of these allegations would have occurred with other family members at home. First of all, Mr. W. would have had no way of knowing whether or not F. would cry out for help from her mother; apart from the first incident, her mother was always within earshot. This is particularly so for the more serious allegations of forced fellatio. Furthermore, it seems unlikely that Mr. W. would take his penis out of his pants or on the one occasion unzip F.’s pants and do what is alleged when Mrs. K. or his wife could have come into the room unannounced at any time. In fact, even on F.’s evidence, on both the first and last occasion, the alleged assault ended just as her brother or mother came into the room.

d) I also have some doubt because Mr. W. is not a big man and on F.’s evidence she was able to push him away when he tried to kiss her. Although her explanation of how she was not able to get away at the time of the second forced fellatio incident makes sense, her explanation for not leaving the table during the homework incident in late November 2009 did not. Furthermore, this is an occasion where one wonders how she could continue to do homework for another hour and a half or so, given what she alleges occurred.

e) I also found F.’s evidence that she told Mr. W. “not tonight” as a way to get him to stop to be incredible. Her evidence suggested that she knew in advance that by telling him this he would stop and that if she simply told him to stop he would not. She also told Detective Hedgeman that when she told Mr. W. this he stopped and said something about not hurting her. This evidence simply did not seem credible. Not only is what F. reported saying strange, if Mr. W. in fact did the acts alleged, it seems likely that he would not stop for these reasons.

f) I have some doubt about what occurred on December 9th before Mrs. K. arrived upstairs. Given the evidence of F., if Mr. W. had kissed her then it would be likely that her hands would be out of her pockets as her reaction would be to push him away. Given the uncontested evidence that her hands were in her pocket and he was holding his boots in one hand and his other hand was by his side, it seems unlikely that Mr. W. did what is alleged on that occasion. It also seems unlikely that there would have been any opportunity for Mr. W. to make the threat alleged or that he would have mouthed words to F. downstairs in the presence of her brother.

[90] I wish to stress that in making these observations, that I did not consider F.’s evidence inherently unreliable because she is a child, nor did I treat it with special caution. I took into account the observations of the Supreme Court of Canada that I have set out, which recognize that some flexibility is required in assessing the evidence of a child in order to recognize the differences in the way a child recalls and recounts an event from that of an adult.

[91] Notwithstanding the concerns I have set out, I am still of the view that at least F.’s allegations of unwanted kissing and touching over clothing could reasonably be true. However, the evidence of Mr. W. denying these allegations could also be true. I find that it is not possible to determine what in fact happened. The evidence as a whole raises a reasonable doubt as to the guilt of Mr. W. of the alleged offences.

[92] For the reasons I have given, in light of Mr. W.’s evidence denying these allegations, F.’s evidence does not meet the very high onus on the Crown to prove these alleged offences beyond a reasonable doubt. As McLachlin J. emphasized in W.(R.), protecting the liberty of the accused and guarding against the injustice of the conviction of an innocent person requires a solid foundation for a verdict of guilt, whether the complainant is an adult or a child.[^12]

Disposition

[93] Mr. W. would you please stand.

[94] For the reasons that I have given, I find you not guilty of all of the charges.

SPIES J.

Released: May 1, 2012

COURT FILE NO.: 50000273-11

DATE: 20120501

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

Z. M. W.

Defendant

REASONS FOR JUDGMENT

SPIES J.

Released: May 1, 2012

[^1]: 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742. [^2]: See R. v. C.L.Y., 2008 SCC 2 at paras. 7, 9; R. v. J.H.S., 2008 SCC 30 at para. 13. [^3]: See R. v. C.L.Y., ibid. at para. 6; R. v. Mends, 2007 ONCA 669 at para. 18. R. v. Carriere (2001), 2001 CanLII 8609 (ON CA), 159 C.C.C. (3d) 51 at para. 48 (Ont. C.A.). [^4]: R. v. J.H.S., supra at para. 9 [^5]: R. v. Hull, 2006 CanLII 26572 (ON CA), [2006] O.J. No. 3177 at para. 5. See also R. v. Van, 2009 SCC 22 at para. 23. [^6]: R. v. H.(C.W.) (1991), 1991 CanLII 3956 (BC CA), 68 C.C.C. (3d) 146 at p. 155 (BCCA) [^7]: (1992), 1992 CanLII 56 (SCC), 74 C.C.C. (3d) 134 at pp. 143-144 [^8]: At pp. 54-55 [^9]: R. v. B.G., supra, at p. 219, R. v. W.(R.), supra, at p. 143 [^10]: Supra at p. 145 [^11]: The Queen v. K.G.B. (1993), 1993 CanLII 116 (SCC), 79 C.C.C. (3d) 257 (S.C.C.) at p. 300 [^12]: W.(R.), supra, at para. 25