Her Majesty the Queen v. Paul Gibson, 2012 ONSC 900

COURT FILE NO.: 10-10000700-0000

DATE: 20120213

*AN ORDER WAS MADE PURSUANT TO S. 486.4 BANNING PUBLICATION OF THE NAMES OF THE TWO COMPLAINANTS

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

PAUL GIBSON

Karen Simone, for the Crown

Linda Choi, for the Accused

HEARD: December 12-16 and 19-20 and 23, 2011

M.A. CODE, j.

REASONS FOR JUDGMENT

A. OVERVIEW

[1] The accused Paul Gibson (hereinafter, “Gibson”) is charged in a six count Indictment with various sexual offences against two young boys, R. K. and A. C. The two boys are cousins as their mothers are sisters. The boys were age seven and four at the relevant time during the summer and fall of 2009. It is alleged that the accused sexually assaulted both boys during this period. The assaults included acts of anal intercourse.

[2] This course of alleged conduct is charged as both sexual interference and sexual assault causing bodily harm. There is no real dispute that the course of conduct, if it occurred, would constitute the offences charged. The real issues in the case are whether the offences occurred and, if so, the identity of the perpetrator.

[3] The trial took place without a jury. It began with a voir dire concerning the admissibility of the accused’s video-taped statement to the police, taken after his arrest on November 28, 2009. Four separate issues were raised on the voir dire, namely, voluntariness, s. 7 of the Charter, s. 10(b) of the Charter, and editing out irrelevant and prejudicial parts of the statement. I ruled that the statement was admissible, subject to editing out the last seventeen pages of the transcript. Reasons were delivered orally, during the trial, in relation to these four issues raised on the voir dire.

[4] There was a second voir dire as the Crown applied, pursuant to s. 486.2 of the Criminal Code, to allow the two boys to testify from outside the court room by way of closed circuit television. I ruled orally, during the trial, that the boys could testify in this manner.

[5] The accused Gibson testified and denied the offences. However, he acknowledged fairly extensive association with the two boys during the relevant time period.

B. FACTS

(i) Introduction

[6] The evidence called by the Crown can be divided into four different areas. First, the mothers of the two boys and their grandmother testified and gave evidence as to how Gibson came to meet the two boys and how he spent time with them during the summer and fall of 2009. Much of this evidence of association and opportunity was not disputed. The mothers also gave evidence of initial complaints made by the two boys. Second, the two boys testified and gave direct evidence of the alleged offences. Third, medical evidence was provided as to observations of the two boys’ anuses, made at Sick Kids Hospital after the initial complaints in November 2009. Finally, the accused’s edited statement to the police was tendered at the trial.

(ii) Evidence of association and opportunity during the summer of 2009

[7] J. C. is the grandmother of the two boys. She lived alone in a small bachelor apartment in Parkdale, in the west end of Toronto. Her daughter S. C. lived in a rented three bedroom house on B1[…] Avenue, near R[…] Road and D […] Street, also in the west end of Toronto. J. C.’s other daughter, N. C., lived outside Toronto in the town of Cobourg.

[8] The two C. sisters are both thirty-four years old and they are both single. S. C.’s son R. K. was born, […] 2001 and N. C.’s son A. C. was born, […] 2005. In the summer of 2009, R. K. was seven years old and A. C. was four years old. At the time of trial, R. K. was ten years old and in grade five while A. C. was six years old and in grade one.

[9] It was J. C., the grandmother, who first met the accused Gibson. He would have been thirty-three years old at the time. He worked as a volunteer at a Food Bank in Parkdale that J. C. frequented. She first met Gibson at Christmas in 2008, when she went to the Food Bank with R. K. to get Christmas presents.

[10] In the summer of 2009, after R. K. completed grade two, his mother S. C. was working during the day as a roofer. Accordingly, J. C. would look after R. K. every day. In addition, N. C. spent much of the summer in Toronto. She would bring her son A. C. with her and would stay at her sister’s house. As a result, J. C. would often babysit both boys during the day. She would take them on outings to parks, to the Science Centre, to Ontario Place, to the Toronto Islands, to museums, to swimming pools and to Canada’s Wonderland. Sometimes they would stay over at her apartment and sometimes they would stay at R. K.’s home. J. C. loved having her two grandchildren for the summer.

[11] The first time that Gibson came along on one of J. C.’s outings with the children was after she had been talking to him at the Food Bank. She was planning to take R. K. to Centre Island in a few days time and she mentioned this to Gibson. He said that he would come along and that he would bring his six year old niece. J. C. met Gibson at 10:00 clock on the morning of the outing and they went to Centre Island with R. K. Gibson did not bring his niece. He said that his sister had made other plans. They spent the whole day on Centre Island, until it closed at 8:00 p.m. R. K. and Gibson went on all the rides at the amusement park. J. C. thought this outing was in August.

[12] Thereafter, J. C. would often see Gibson as much as two or three times a week. For example, he would come to the park near her apartment where she took R. K. to play with friends. He also came with J. C. on a number of other outings to places like the CNE and Ontario Place. Gibson told her that he lived and worked in Scarborough.

[13] There was a second outing to Centre Island with R. K. where Gibson came along. They got an all day pass for the rides and Gibson and R. K. went on the rides together. Sometimes J. C. would go on a ride with R. K. There was one ride that R. K. particularly liked, called “The Haunted House”, where it was dark inside. J. C. did not like it. Gibson went on it many times with R. K.

[14] J. C. liked the yoghurt ice cream at Centre Island. While she was waiting in line at the store to buy ice cream, R. K. ran up to her and asked to go to the bathroom. He had been waiting outside the store with Gibson while J. C. got in the line to buy ice cream. She would always take R. K. to the bathroom when he needed to go. She told him to wait, so he went back outside and waited with Gibson. By the time J. C. reached the cashier, bought the ice cream and came out of the store, R. K. and Gibson had disappeared. She waited outside the store for about ten minutes. She remembered the ice cream melting on the two ice cream cones, while she waited, as she had to lick both of them. The wait was not unpleasant for her as she liked the ice cream. Eventually, Gibson and R. K. returned. She saw them coming from the area near a public washroom. She asked R. K. where he had gone and he replied, “I couldn’t wait” and explained that he had gone to the bathroom with Gibson.

[15] There was a third trip to Centre Island during the summer when Gibson came along. J. C. recalled that she took both R. K. and A. C. on this occasion. There were also occasions when she took the boys swimming and Gibson would come along. J. C. liked swimming and so she would always be present on these occasions.

[16] Gibson came over to J. C.’s bachelor apartment in Parkdale on a number of occasions. Sometimes J. C. would leave Gibson alone with R. K. at her apartment. For example, if she had to leave her apartment to do the laundry or to buy milk she would leave R. K. alone with Gibson for ten or fifteen minutes. She would also go downtown to Chinatown on occasion, where the fruit and vegetables were less expensive, and she would leave R. K. with Gibson for these longer periods. She once left him alone with both R. K. and A. C. while she went shopping in Chinatown. Gibson would play with the boys and talk to them. For example, he played video games with them.

[17] There were some outings where Gibson took R. K., or took both R. K. and A. C., and J. C. would not come along. For example, Gibson took R. K. to movies once or twice and he took the boys bowling. He also took R. K. to the park on occasion. J. C. would tell S. C. so she would know that R. K. was out with Gibson. He would always bring small gifts like toys, candies or chocolates, when visiting the boys.

[18] On one occasion, Gibson slept over at J. C.’s apartment. It was late and they were going on an outing to Ontario Place early the next day. Gibson said that it was too late for him to go home to Scarborough so he slept on J. C.’s couch. R. K. was with them and slept with J. C. in her bed.

[19] Gibson also visited and slept over at S. C.’s house on B1[...] Avenue during the summer. He would generally sleep downstairs on the living room couch. The three bedrooms were upstairs on the second floor. S. C.’s bedroom was at the front of the house and R. K.’s bedroom was at the back of the house. The bathroom and a spare bedroom were in the middle, between S. C.’s and R. K.’s bedroom. S. C. had a boarder for a few months, named J. D., and he slept in the spare bedroom when he was at the house. When A. C. visited, he would usually sleep with R. K. in R. K.’s bedroom, although the two boys sometimes fell asleep on the living room couch, while watching movies. Sometimes A. C. slept with his mother N. C. in the spare bedroom.

[20] On one occasion, when J. C. came over to the house to pick up R. K. in the morning, she went upstairs to wake them and found Gibson asleep on the floor in R. K.’s bedroom. R. K. was already up and was in the bathroom. N. C. also recalled one occasion when she found Gibson lying on the floor in R. K.’s bedroom in the evening, with his head on a pillow, after the two boys had gone to bed. She asked him what he was doing in the boys’ bedroom and told him to leave.

[21] J. C. never met any members of Gibson’s family. S. C. and N. C. also never met Gibson’s family. Gibson told N. C. the same thing that he told J. C., namely, that he lived and worked in Scarborough, in the east end of Toronto. Both S. C. and N. C. met Gibson through their mother J. C. He would come over to S. C.’s house with J. C. Gibson volunteered to babysit the boys and to take them on outings, if their mothers were busy. S. C. and N. C. confirmed that Gibson always brought the boys small inexpensive gifts, either toys or candies, when he visited.

[22] S. C. and N. C. both confirmed that there were occasions when Gibson was alone with one or both of the boys. For example, they both let Gibson take the boys bowling on a number of occasions. In addition, they were both aware that J. C. sometimes left the boys with Gibson at her apartment, if she had to go out on an errand. N. C. would drop by J. C.’s apartment, or would phone in the evenings to check on the boys, and would find that Gibson was there. Sometimes when she dropped by the apartment she would be told that J. C. had gone out to the store or to do the laundry. Once when S. C. dropped by she was told that J. C. had gone downtown to shop in Chinatown. N. C. went to the CNE with the boys and Gibson. At one point, she left the boys alone with Gibson for an hour or two, in an amusement arcade, while she went shopping.

[23] S. C. described an occasion when Gibson took R. K. to the dentist, as R. K. had an abscessed tooth and Gibson said that his sister worked in a dentist’s office. Gibson set up the appointment and picked R. K. up in the morning, around 9:00 o’clock, as S. C. was leaving for work. When S. C. returned home after work, R. K. and Gibson were not yet home. S. C. was worried that they had been away for so long. They finally returned home at about 9:00 o’clock in the evening. R. K. looked upset about something. He ran upstairs and slammed his bedroom door.

[24] On the long weekend at the end of the summer, the family rented a cabin at a campground on a lake. Gibson came along. He went swimming with the two boys and played mini-golf with them. There were two bedrooms at the back of the cabin. S. C. slept in one with her boyfriend while J. C., N. C. and the two boys slept in the other. Gibson slept on a pull-out couch in the living room. One morning, N. C. got up and walked into the living room and found A. C. snuggling with Gibson on the pull-out couch. She told A. C. that he was not to be in bed with Gibson and to stop it.

[25] S. C.’s boyfriend at the relevant time was also named Paul. He is not R. K.’s father. He is small and dark, about 5’6” tall and shorter than the two sisters. He is also bald on the top of his head. He is Portuguese and his hair on the sides is brown. Paul Gibson, the accused, is tall and has pale skin and red hair. He is taller than the two sisters. He is also somewhat cross-eyed. The two boys would call Paul the boyfriend “Paul Number One” and would call Paul Gibson “Paul Number Two”.

[26] N. C. was living with a man in Cobourg named Stephen at the relevant time. They lived together for four years. He is not A. C.’s father. He is a little taller than N. C., heavy-set, with shoulder length light brown hair and a full moustache and beard.

(iii) Events during the fall of 2009 and the initial complaints

[27] R. K. went back to school in September of 2009 and started grade three. J. C. would pick him up after school, take him home to S. C.’s and babysit him. A. C. was in junior kindergarten in Cobourg for two or three days of the week. His mother N. C. would still bring him in to S. C.’s on the weekends and on non-school days during the week, if N. C. had an appointment of some kind in Toronto.

[28] Gibson continued to visit the C. family during this period in the fall. For example, he went “trick or treating” with them on Halloween, he came for Thanksgiving dinner, and he came to R. K.’s birthday party in early November. Gibson did not visit regularly during this period but he would drop by for a few days one week and then they would not see him for another week or two.

[29] S. C. noticed a rash around R. K.’s anus, beginning in the summer in August and continuing in the fall from September until November. R. K. complained several times that his “bum” was hurting and that it hurt when he tried to go to the bathroom. He would hold it in, because it hurt, and then he would end up defecating in his pants. S. C. sometimes wiped R. K.’s bottom, after he went to the bathroom, and she saw the rash. It was a red ring, circling immediately around the anus. It was not on his buttocks. She put polysporin on the rash, and it would go away, but then it came back several times. She never took R. K. to the doctor to examine the rash, although she did mention it to her doctor. It never came back after November 2009.

[30] J. C. also noticed the rash. R. K. once said to her, “my bum’s sore”. She looked at it and noticed a very red rash that was in a circle around his anus. R. K. said “it’s itching, it’s burning”. She gently put cream on it as it was hurting him. It was not the ordinary “diaper rash” or “baby rash” that children often get. This was different. J. C. always wiped R. K.’s bottom, after he went to the bathroom, and she had not noticed the rash during the summer. J. C.’s evidence was unclear as to exactly when she saw the red rash around R. K.’s anus. It was definitely after R. K. went back to school in September and it was not in the summer. She thought that it was in November, after she was interviewed by the police. However, she also believed that she told the police about the rash in her November 27, 2009 video-taped statement. P.C. Vieira confirmed that J. C. told him about seeing the red rash and applying cream to it. J. C. agreed that R. K. was sometimes constipated. This was normal and she would give him prune juice.

[31] J. C. recalled another incident that happened after R. K. returned to school in September. She was over at S. C.’s house, in the kitchen, and she heard R. K. and Gibson playing in the living room. They were boxing and wrestling and it became noisy. She went into the living room and told them to settle down. She saw R. K. run at Gibson and kick him very hard between the legs. R. K. was angry and was swearing at Gibson, saying “you stupid asshole” and “you ugly asshole”. J. C. had never seen R. K. like this before and had never heard him use this kind of language. Gibson said, “don’t kick me in this spot, I keep this for my girlfriend”. R. K. called him “stupid” and ran to J. C. She was shocked as she had taught R. K. not to swear. She grabbed him and sat him down on the couch and asked “why did you kick him?” He replied, “I’m mad”. She pressed him for an explanation and he simply repeated that he was “mad” and said nothing further. This incident was in October or November.

[32] S. C. also noticed a change in R. K.’s behaviour, prior to his birthday in early November. She thought that he became distant and withdrawn. He would also become angry and was fighting and talking back. His grades dropped at school and he would wake up in the night, wetting his bed and screaming from some nightmare. He was normally a good, happy, outgoing boy.

[33] R. K.’s eighth birthday was on […], 2009. This was a Tuesday and so the family decided to hold his birthday party on Sunday, November 8. It was at the B[...] Avenue home and lots of friends and family attended. N. C. and A. C. came in from Cobourg and J. C. and Gibson came. R. K.’s biological father also attended. Gibson brought R. K. a gift that was some kind of text messaging device. He also brought a banner saying “Happy 8th Birthday R. K.”. Gibson had made the banner at the print shop where he worked. At the birthday party, Gibson gave R. K. a hug. It was the first time S. C. had seen Gibson hug R. K. She thought that it was too close and she did not like it. She told Gibson that she did not want to see him do it again.

[34] N. C.’s partner Stephen could not come to the birthday party but he called that evening and wanted to pick up N. C. and take her home to Cobourg for the night. N. C. had a medical appointment in Toronto the next day and so she left A. C. to sleep over at S. C.’s house. This was the last time that N. C. saw Gibson. She went home to Cobourg for the night and left both A. C. and Gibson at S. C.’s house. N. C. had no suspicions about Gibson, at this time, or she would not have left A. C. with him. She believed that Gibson stayed over at S. C.’s house the night of the birthday party because she took the train from Cobourg to Toronto the next morning, for her medical appointment, and she called the house. Gibson answered the phone and said that he was looking after A. C. and that everything was fine.

[35] After her medical appointment, N. C. went back to S. C.’s house to pick up A. C. It was around 11:00 o’clock in the morning. She was not sure if Gibson was still there when she arrived back at the house. She was packing up A. C.’s belongings and A. C. said that he had to go to the bathroom. N. C. would help A. C. in the bathroom and she noticed that there was blood in his stool. She did not think much of it, at the time, thinking that he was probably just pushing too hard. Her partner Stephen had business meetings in Toronto that day and he came to S. C.’s house, picked up N. C. and A. C., and they all drove back to Cobourg.

[36] A. C. was quiet on the drive to Cobourg but once they arrived at home N. C. put him in the bath and A. C. began crying. He yelled that the water was hurting him. He was screaming hysterically, “my bum hurts, it’s itch

[37]

[38] y mummy, it’s scratchy mummy”. It was obvious to N. C. that something was wrong as A. C. did not normally behave like this, especially in the bath. She asked him what happened and he replied, “Mummy, Paul Number Two put his pee pee in my bum”. He repeated this and N. C. left the bathroom and broke down. She recalled that A. C. definitely said “Paul Number Two” as she had no doubt as to whom he was referring. Gibson was always known in the family as “Paul Number Two”.

[39] A. C. said nothing more about what happened other than “he put his pee pee in my bum”. N. C. did not press him for more details. “Pee pee” is the word A. C. used for his penis. N. C. went downstairs and told Stephen what A. C. had said. Stephen was working downstairs in his home office. N. C. composed herself and went back into the bathroom. She reassured A. C. and then examined his bottom. She saw rips and tears and redness around his anus. Stephen went and got some polysporin and N. C. applied it. N. C. had never seen this condition before when helping A. C. to wipe his bottom.

[40] N. C. was initially in a state of shock and denial, after A. C.’s disclosure, but she called S. C. that same evening. She told S. C. what A. C. had said and suggested that S. C. speak to R. K. S. C. hung up the phone, spoke to R. K., and then called N. C. back. Both sisters were crying hysterically.

[41] S. C. confirmed that she received the phone call from N. C., concerning A. C’s disclosure, and she proceeded to speak to R. K. She asked him if “Paul Number Two” had touched him in any way. R. K. denied it. S. C. told R. K. that A. C. had said that “Paul Number Two put his pee pee in A. C.’s bum”. R. K. then said, “Mum he did it to me too”. R. K. put his head down and looked away from S. C. He was embarrassed and did not want to look at her. S. C. may have asked a few more questions but she was in shock and did not want to discuss it further with R. K. S. C. ran out of the room crying.

[42] The exact date of these initial complaints is not clear. N. C. was sure that it was the evening of the day that she picked up A. C. at S. C.’s house, after her medical appointment in Toronto and while Gibson was looking after A. C., because she noticed blood in his stool when she picked him up and she gave him the bath that same evening. She believed that this was the day after the birthday party, that is, November 9, but she was not sure on this point. J. C. thought she recalled seeing Gibson at S. C.’s house a couple of days after the birthday party. S. C. testified that she never saw Gibson again after the birthday party.

[43] What is clear from the evidence is that the mothers did not take the two boys to see their family doctor, Dr. Moran, until November 25, 2009. N. C. agreed that they could have delayed as much as sixteen days, after the initial complaint, before going to see Dr. Moran (that is, from November 9 until November 25, 2009). N. C. testified that the two mothers were in shock and denial and they discussed whether to report the matter for some period of time. She agreed that it could have been as long as two weeks that they discussed what to do. N. C. recalled that A. C. continued to cry and scream and wet his bed during this period and she continued to put polysporin on his anus.

[44] They eventually decided to report the matter. N. C. and A. C. came to Toronto and on November 25 the two boys and the two mothers went to see Dr. Moran. All four of them were in the doctor’s office at the same time. S. C.’s recollection was that both boys told Dr. Moran that “a man named Paul put his pee pee in their bums”. N. C.’s recollection was that A. C. definitely said words to this effect to Dr. Moran and that it was A. C. who spoke first. She recalled that R. K.’s behavior was different. He was anxious, nervous and hesitant and may have said nothing. R. K. was acting strangely and it appeared to N. C. that he was scared. Dr. Moran did not do a physical examination of the boys. He immediately called the SCAN unit at Sick Kids Hospital.

[45] Dr. Moran was called as a witness by the defence. He confirmed that he saw both boys and their mothers together in his office. His recollection was that the parents made the complaints and that the two boys simply nodded, without saying anything. He put the same note on both boys’ charts namely, “possible sex abuse by a friend of his grandmother, discussed with mother, contacted CAS and SCAN”. However, Dr. Moran conceded that it may only have been A. C. who nodded his head, based on the SCAN unit records of what Dr Moran reported at the time. These reports will be set out below.

[46] Two days later, on November 27, 2009, the two mothers and the two boys attended at the SCAN unit at Sick Kids Hospital and full medical examinations were completed. In addition, the police attended and took video-taped statements from the two boys and from their mothers.

[47] In cross-examination, N. C. agreed that A. C. had a persistent fever at some point in the fall. She took him to the Emergency at a hospital and he was examined by a doctor. This was after school started but before R. K.’s birthday party. There were no suspicions of sexual abuse of A. C. at the time of this earlier medical examination.

[48] J. C. testified that S. C. told her at some point that Gibson had hurt the boys. She did not know how to ask R. K. about it because she does not talk about these kinds of things. Instead, she asked him to draw what he dislikes or what makes him uncomfortable. He drew two circles. She asked him what this meant and he said, “this is bum” or “this is ass”. Then he threw the drawing in the garbage. J. C. gave a confusing account of when this incident occurred. On the one hand, she testified that it was after she spoke to the police officer. She insisted that it was the officer who asked her to see if she could get R. K. to talk. On the other hand, when she first spoke to P.C. Vieira in her video-taped statement on November 27, 2009, she clearly told him about this drawing that R. K. had made. P.C. Vieira testified and denied ever asking J. C. to try to get R. K. to talk. It seems clear that the incident involving R. K.’s drawing took place prior to November 27, 2009. It must have occurred as a result of S. C. telling J. C, about the initial complaint or complaints, that is, sometime after the November 8, 2009 birthday party but before November 27, 2009. It was likely S. C. who asked J. C. to see if she could get R. K. to talk.

[49] In the two year period between the two boys’ video-taped statements to the police, on November 27, 2009, and their trial testimony on December 16, 2011, they testified at the preliminary inquiry. Both mothers had some discussions with the boys about their evidence, as they did not want to testify. For example, S. C. asked R. K. recently why he had not told her about the sexual abuse. S. C. had told R. K. about improper touching, since the time when he was very small, and she wanted to know why R. K. would not speak to her if Gibson was touching him inappropriately. Shortly before his trial testimony, R. K. explained for the first time that he had not told his mother because Gibson had said that he would kill both S. C. and N. C. if R. K. told. N. C. did not ask A. C. for details as to where or when the sexual abuse happened but A. C. did tell her it happened “many times”.

(iv) The medical evidence from Sick Kids Hospital

[50] The two medical reports from the SCAN unit at Sick Kids Hospital were filed, on consent, without the necessity of calling the nursing staff who examined the two boys on November 27, 2009.

[51] The reports confirmed that Dr. Moran had contacted the SCAN unit on November 25, 2009. They recorded his report in relation to A. C. as follows: “Dr. Moran reported that A. C. reported to his mother that his grandmother’s friend put his pee pee in A. C.’s bum”. They recorded his report in relation to R. K. as follows: “Dr. Moran reported that the history was provided that R. K.’s cousin described sexual contact by a male friend of his grandmother. There was no specific allegation made with respect to R. K.”

[52] The physical examination of A.C. at the SCAN unit included the following observations and conclusions:

There were three anal fissures present at the 3 o’clock, 9 o’clock and 12 o’clock positions. There was redness surrounding the anal area. A. reported itchiness during the examination. A white cream was noted around the anal opening which mother indicated she had applied … The genital examination findings of anal fissures and redness around the anal area are findings that are commonly found in children and neither confirm nor refute the possibility of sexual abuse … Redness of the anal area and superficial anal fissures are non-specific findings which are commonly seen in non-abused children. For example, a 1989 study showed a high incidence of anal soft tissue findings in both abused and non-abused children. … Anal fissures typically result from excessive dilation of the anus. Anal fissures may result from penetrating trauma such as penile-anal or digital-anal penetration. Alternatively, anal fissures may result from the passage of large and/or hard stools and are frequently seen in children. Constipation is a very common problem in young children and may not be obvious to a caregiver and yet may contribute to anal fissures.

[53] The physical examination of R. K. at the SCAN unit included the following observations and conclusions:

R. K. had complained [to his mother] of … anal itching … The anus was normal apart from slight redness in the 6 o’clock position … The finding of redness in the anal area is a finding commonly seen in children due to non-specific irritation. The genital examination is normal and neither confirms nor refutes the possibility of sexual abuse. Recent literature indicates that the majority of male and female children and adolescents who give a history of sexual abuse have no evidence of anal or genital injury on physical examination … There are several factors which explain these findings: There are several forms of sexual abuse which would not be expected to result in injury to genital or anal tissues, including digital genital contact … [or] genital-anal contact without penetration … Studies have shown that genital and anal tissues frequently heal completely with little or no sign of previous trauma … delay in reporting provides time for healing of genital or anal injuries that may have been sustained at the time of abuse. The anus is an external sphincter that has the ability to dilate to pass large stools without significant injury to the sphincter or anal canal. Therefore there may not be any residual findings from either a single or repeated introduction of an object, including a finger and/or penis into the anus … Redness of the anal area … [is a] non-specific finding … commonly seen in non-abused children … Anal trauma, similar to genital trauma, heals quickly and frequently without residual scarring …

[54] As noted above, the defence called the two boys’ family doctor, Dr. Moran, who provided some additional evidence as to their medical history. The last time that he saw R. K., prior to the November 25, 2009 visit, was on June 26, 2009. The last time that he saw A. C. before the November 25, 2009 visit was on September 16, 2009. No relevant allegations or complaints were made during these earlier visits. A. C.’s September 16 visit related to a cough, cold and mouth sore. He did not have a fever.

[55] According to Dr. Moran, neither boy had a history of anal rashes except for R. K., some five years earlier, in December 2004. Dr. Moran had never seen an anal fissure on either boy. He rarely encountered anal fissures and could not say how long they would take to heal. However, if a child was constipated it could re-open an anal fissure each time the child went to the bathroom.

(v) The direct evidence of R. K. and A. C.

[56] R. K. testified outside the court room, by closed circuit television, upon giving a promise to tell the truth. He was ten years old and in grade five at the time of trial.

[57] Three summers ago, his grandmother was looking after him and she would take him to parks and to swimming and on outings to places like Centre Island and Ontario Place. R. K. liked going with her. He also went with “Paul Number Two” to Centre Island. He described “Paul Number Two” as having orange hair, freckles on his face, and “crooked eyes” that made it seem like he was not looking at you. At Centre Island they went on the rides and they played mini-golf.

[58] R. K. described one ride in particular that he called “The Haunted House” ride. Two riders sit in a barrel beside each other, and there are scary pictures of monsters, and it is dark. Lights on the monsters go on. He testified that while they were on this ride “Paul Number Two put his hands in my pants” and put his hands “around my pee pee”. R. K. thought that “Paul Number Two” did this twice but he did not remember the other time. “Paul Number Two” also “took my hand and put it in his pants, beside his pee pee and on it too”. When the ride was over, R. K. took his hand out of “Paul Number Two’s” pants and just sat there.

[59] After the rides, R. K. went with “Paul Number Two” to the washroom. They went into the “wheelchair washroom” beside the public washroom. He remembered that you could lock the door to this washroom. There was no one else inside. It was a square-shaped room with a door, a lock, a sink and a toilet. “Paul Number Two” took R. K. to the sink, stood behind him, pulled R. K.’s pants down, and “put his pee pee in my bum”. R. K. thought that “Paul Number Two” was on his knees. “Paul Number Two” did not say anything while doing this. R. K. could feel it “when he put his pee pee in my bum”.

[60] R. K. testified that “Paul Number Two” said that “he would kill my Mom if I tell”. R. K. was not sure whether “Paul Number Two” said this in the washroom or in “The Haunted House” ride.

[61] There was a second occasion that R. K. remembered when “Paul Number Two put his pee pee in my bum”. It was at his grandmother’s apartment, at a time when she was not at home. R. K. and “Paul Number Two” were sitting or lying on the bed, watching the television at the end of the bed. “Paul Number Two put his hands in my pants” and he “put his hand around my pee pee”. R. K. demonstrated this action with his own hand, encircling an object and moving his hand up and down. Then “Paul Number Two” put R. K. on his front and pulled down his pants or long johns to his knees. “Paul Number Two” got “on top of me” and “he put his pee pee in my bum”. R. K. could feel “Paul Number Two’s pee pee”, although he could not remember how it felt.

[62] R. K. recalled a third occasion when this happened. It was at his home on B1[...] Avenue, at a time when his mother was not there. R. K. was in his own room, lying on his front on the floor playing video games. “Paul Number Two” pulled R. K.’s pants down and got “on top of me” and “put his pee pee in my bum”.

[63] After describing the above three incidents, R. K. volunteered without any prompting that “Paul Number Two” also pulled down R. K.’s pants and “put his tongue on my pee pee”. R. K. was not sure where he was at the time but he thought he was at his grandmother’s apartment and he thought he was watching television. “Paul Number Two” did this a second time at R. K.’s own home. He was in his room playing with a remote control game or toy called “DS”. He did not remember how it happened but “Paul Number Two” put his tongue on my pee pee” and then went on to “put his whole mouth on my pee pee”. Again, R. K. volunteered his description of this latter act without any prompting.

[64] “Paul Number Two” would do these acts two or three times each day, whenever he came over to R. K.’s B1[...] Avenue home or to his grandmother’s Parkdale apartment, if no one else was home.

[65] “Paul Number Two” would bring gifts for R. K., including on R. K.’s eighth birthday. He would sleep over on the couch at R. K.’s home. R. K. identified a photograph of the accused Gibson as the man with “orange hair” who he referred to as “Paul Number Two”. His mother’s boyfriend was also named Paul and they called him “Paul Number One”. He had brown hair on the sides and no hair on the top.

[66] R. K. never saw “Paul Number Two” again, after his eighth birthday party. He never told anyone about what “Paul Number Two” had done to him. Even when his mother asked him directly, R. K. did not tell her. He was “scared” because “Paul Number Two” had said that “he would kill my Mom”.

[67] R. K. remembered the video-taped interview with the police. He did not want to say anything to the police as he was “scared and shy”. It was his “first time answering questions”. R. K. did not remember what he said to Dr. Moran or what he said to the judge at the preliminary inquiry but he agreed that he was now saying new things in his trial testimony that he had never said before. He explained that when he was preparing to testify at trial he watched his video-taped police interview, and the transcript of his preliminary inquiry testimony was read to him, and then “I did not feel so shy any more”.

[68] R. K. agreed that he told his mother some time ago that “Paul Number Two” said that he would kill her. He also agreed that he never told “Paul Number Two” that he did not want to be with him. He did not remember his grandmother asking him to draw something bad that he dislikes.

[69] R. K. had no memory of a trip to the dentist with “Paul Number Two”. But when he was asked in cross-examination about going to the movies with “Paul Number Two”, he remembered going once to an “old fashioned theater” and that “Paul Number Two put his hands in my pants”. When asked about going bowling, R. K. remembered that “Paul Number Two” also “did it” in the washroom at the bowling alley.

[70] A. C. testified outside the court room, by closed circuit television, upon giving a promise to tell the truth. He was six years old and in grade one at the time of trial. Most of his evidence took the form of playing his November 27, 2009 police interview to him. There was no issue concerning the admissibility of this video-taped statement pursuant to s. 715.1 of the Criminal Code.

[71] After playing the tape recording to him, A. C. testified that he remembered being questioned by the police officer “Larry” (P.C. Vieira). He was telling the truth. He remembered spending time in the summer with his grandmother. She would take A. C. and R. K. to the playground and the swimming pool. “Paul Number Two” would come along. “Paul Number Two” had hair like Larry’s in the video. His hair colour was “kind of blonde like mine”. A. C. described him as looking “like an elephant”. There was something about “his eyes and his nose” but A. C. could not remember what it was. He identified a photograph of the accused Gibson as the person he calls “Paul Number Two”.

[72] On the video-taped statement, after a fairly lengthy conversation between A. C. and the two officers about irrelevant matters, P.C. Vieira asked why A. C. had come to Toronto that day. A. C. answered “because I had to go to the doctor”. P.C. Vieira then asked why he had to go to the doctor. A. C. answered, “because someone hurt me”. P.C. Vieira asked “what was that” and A. C. answered, “someone hurted me cause put his pee pee in my bum”. P.C. Vieira asked “who hurted you” and A. C. replied “Paul Number Two”. P.C. Vieira asked “who is Paul Number Two” and A. C. replied, “he lives where Pocho lives … and then every time he pulls down my pants and then he puts his pee pee in my bum”. When asked where this happens, A. C. replied “at Chotka’s house … at R. K.’s house”. A. C. went on to state that it happened “more than one time … like one hundred … He puts his pee pee in my bum and then every time I move he – when he is doing it he has to start all over … He says let me put my pee pee in your bum”. P.C. Vieira asked “in which room” this happened and A. C. replied, “R. K.’s room”. A. C. explained that he would say, “Paul Number Two, I want to go”, and “Paul Number Two” would say “no, no, no”. A. C. also explained that he told his mother and she cried. He also told the doctor.

[73] In terms of identifying “Paul Number Two”, A. C. explained in the video interview that “there is two Pauls, Paul Number One is good, Paul Number Two is bad”. He described “Paul Number Two” as follows: “he looks like a big elephant … and he has a small mouth like this … really tall like you”. When asked by one of the officers, “does he have my hair colour [blonde] or Larry’s hair colour [dark] or your hair colour [light brown]”, A. C. replied that it was like Larry’s and he agreed it was “really dark like Larry’s”. He also described “Paul Number Two” as having a “very smiley face” and that “he looks like a good guy”.

[74] P.C. Vieira drew a stick man and asked A. C. to point out where “his pee pee would be”. A. C. pointed to the groin area.

[75] S. C. had testified that “Chotka” was the name that A. C. used for her.

(vi) The accused Gibson’s statement to the police

[76] As set out in greater detail in my oral ruling on the admissibility of Gibson’s statement to the police, he was arrested on November 28, 2009 at 9:18 p.m. at his brother’s house in Uxbridge. The police transported him to 14 Division in Toronto and facilitated a telephone consultation with duty counsel at some point after 11:45 p.m. The video-taped interview began at 2:37 a.m. on November 29, 2009 and lasted for over an hour, concluding at 3:51 a.m.

[77] The transcript of the interview is 110 pages long. I edited out the last seventeen pages of the interview, on the basis that it was entirely irrelevant and prejudicial. The ninety-four page transcript that was admitted in evidence also contains some irrelevant parts, interspersed with the relevant parts, and I have simply ignored them. The interview begins with a clear caution concerning the right to remain silent and with confirmation that Gibson has spoken to duty counsel. Gibson then made the following relevant statements:

• he had been living in Parkdale for about a year in an apartment on B2[…] Avenue;

• after he moved to Parkdale, he volunteered at the Food Bank;

• he is a talkative person and he met J. C. at the Food Bank, where she was a customer, and they became friends;

• they would go to stores, parks, swimming pools, and to the CNE;

• J. C.’s grandson R. K. sometimes accompanied them;

• he met R. K.’s mother S. C. and would visit at their house on B1[...] Avenue, including visits when he would sleep over on the living room couch or on the floor;

• he also met N. C. and A. C.;

• on the outings with J. C., both R. K. and A. C. would accompany them on some occasions and sometimes it was just R. K.;

• on some occasions when he slept over at B1[...] Avenue, both R. K. and A. C. would be there and would sleep in R. K.’s bedroom and on other occasions it was just R. K;

• he had also been bowling and to the movies with R. K. but not with J. C.;

• he had been bowling with A. C.;

• the reasons why he slept over at B[...] Avenue were, on occasion, when they came back late in the evening from an outing like bowling or, on other occasions, when S. C. would want to go out and would ask him to stay;

• he first met J. C.’s grandsons around Christmas at the Food Bank, when giving out toys. He did not see them again until around the end of June when the two boys were on their summer break;

• aside from volunteering at the Food Bank, he would get “the odd, you know, work here and there”;

• when he stayed at B1[...] Avenue, “it was like one big family”, with S. C. and J. C. and him and the boys and a boarder named Jim who stayed in the spare bedroom;

• there were also nights when he was alone at the house with R. K.;

• he was lonely and never had kids in his life and came to care about the boys, especially R. K. An attachment developed between them;

• he recounted a conversation with R. K. where he told R. K. that they were “good friends”. In another conversation, after people at a church picnic thought that R. K. was his son, he asked R. K. what he should say and R. K. replied “you’re my daddy”. R. K. looked up to him like a father figure. For both of them, “it was like filling a void”;

• he spoke to S. C. about this and she thought that it was fine;

• S. C.’s boyfriend was also named Paul. At one point, J. C. would call them “Paul Number One” and “Paul Number Two”, as a joke, but it did not last;

• around the time that the allegations came out, he “was a royal screw up” because he did not have a lot of money for R. K.’s birthday present. Instead of getting the flat screen television that they wanted, he got R. K. a “little iPod walkie talkie”;

• he attended R. K.’s birthday party on Sunday, November 8. He had stayed over at the house on Saturday night, just before the party, but not on Sunday night after the party.

(vii) The accused Gibson’s evidence

[78] Paul Gibson was thirty-five years old at the time of trial. He testified that he was born and raised in Toronto. He has a younger sister and an older brother. His sister has a daughter, Gibson’s niece. His mother separated from his father and moved to Nova Scotia when Gibson was in his twenties.

[79] About twenty years ago, when he was fifteen or sixteen years old, Gibson acquired a Youth Court record for multiple counts of sexual assault. He has no adult criminal record. He worked at numerous jobs. His most significant employment was at Westwood Advertising, a printing company in Scarborough where he worked full time for a number of years. He left the job for awhile and in 2009 he was not working there full time. His father had died without warning, in January 2009, and this had a significant impact on Gibson. In 2009, he was volunteering at the Parkdale Food Bank, working part time at Westwood Advertising a few days a week, and receiving social assistance.

[80] Gibson lived alone in a small bachelor apartment at B2[…] Avenue in Parkdale during the relevant time period. He met J. C. at the Parkdale Food Bank, where she was a customer. Her apartment was about ten minutes away from Gibson’s apartment. Gibson had lived in Scarborough a year earlier.

[81] Gibson agreed that he first met J. C. and R. K. when they were picking up gifts from the Food Bank during Christmas time in 2008. He had ongoing conversations with her, from time to time, and learned that she had a second grandson and that she was getting the two boys for the summer. He suggested that she take the boys to Centre Island or to Canada’s Wonderland as he loved the rides at amusement parks. As he put it, “I am a ride fanatic”. They agreed to meet one morning and take the two boys to Centre Island.

[82] It was late June or early July 2009 when he went to Centre Island with J. C. and the two boys as they had just got out of school. This was the only time he went to Centre Island with them. They spent the whole day together and he paid for everything. He went on the rides with both boys. Gibson agreed that he went on “The Haunted House” ride many times with R. K., as R. K. liked it and A. C. did not. They sat together during the ride. He denied putting his hands down R. K.’s pants, denied taking R. K. to the washroom on Centre Island, and denied threatening R. K. These were all lies. He never was at Centre Island with only J. C. and R. K. and there never was a yoghurt ice cream shop where J. C. waited in line and then waited for them outside the shop after she had bought the ice cream. The family’s policy was always that J. C. or S. C. would take R. K. to the women’s washroom.

[83] The friendship grew over the summer and Gibson would go to the park and go swimming with J. C. and her grandsons. He also went to the CNE and to community events like the Polish festival and a fundraiser for R. K.’s school. He met the two boys’ mothers and thought they were gorgeous. As he put it, they were “out of my league”.

[84] Gibson became “part of the family”. They trusted him with the children and he would babysit for them. There were many times when he babysat R. K. There were often occasions when he was alone with the boys. For example, when J. C. did the laundry or went for groceries, Gibson would watch the boys at her apartment. He also took R. K. to the dentist, after arranging the appointment through his cousin who worked in a dental office. They were away for five or six hours, going to and from the dentist, but he denied bringing R. K. home late. He also took R. K. bowling at night on three or four occasions. He took R. K. to the movies on two occasions in the evening. Once they went to an old theatre and once they went to the Woodbine Mall near the airport. They were shopping at the mall for a Halloween costume and then they went on to a movie. They were gone all day, for about six or seven hours. On these occasions, at the bowling alley and at the movie theatre, Gibson would escort R. K. to the washroom. He would go in the washroom with R. K. but not into the stall. R. K. was old enough to look after himself in the washroom. At home, he went to the bathroom on his own.

[85] Although he agreed that he was often alone with R. K., Gibson denied doing anything improper such as touching R. K.’s penis. He agreed that he would bring treats for the boys when he visited. He agreed that he once slept over at J. C.’s apartment, even though he lived nearby. He denied telling J. C. that he lived in Scarborough. They had spent the day together, it was late, and he was simply tired so he slept on J. C.’s couch on this one occasion. J. C. and R. K. slept in the bed.

[86] Around the mid-summer of 2009, Gibson started sleeping over at S. C.’s house on B1[...] Avenue. He would sometimes come over on a Friday after work and stay all weekend. He agreed that he spent time alone in the bedroom with R. K. and with both boys, playing video games. It took about a half hour on public transit to get from his own apartment on B2[…] Avenue to the B1[...] Avenue house. Gibson always slept in the living room, on the floor or on the couch. He denied ever sleeping in the boys’ upstairs bedroom.

[87] Gibson recalled the occasion when J. C. left him alone with R. K. for two or three hours, at the B1[...] Avenue house, while she went downtown to shop for groceries in Chinatown. He also recalled the occasion when R. K. gave him a good strong kick in the groin when they were horsing around in the living room at R. K.’s home. Gibson agreed that J. C. came out and told R. K. not to kick anyone there. Gibson felt that the kick was not deliberate. They were just having fun and he denied J. C.’s evidence that he said something to R. K. about not kicking him in that area.

[88] On the camping trip at the end of summer, Gibson spent a lot of time with the two boys. He was there to keep an eye on them. They went swimming, played mini-golf and went out in the paddle boats and canoes. Gibson agreed that he slept on the pull-out couch and that one morning A. C. was cold and got into bed with Gibson. He wrapped A. C. up in a blanket of his own. Gibson had been in bed with A. C. for only about ten minutes when N. C. came out.

[89] People at the park would refer to R. K. as Gibson’s “son” and R. K. insisted on referring to Gibson as his “Dad”. Gibson tried to downplay it but a very strong bond developed between them. Gibson had never had a child of his own and he came to regard R. K. as his son. R. K. would run to him and hug him and would cry if he thought Gibson was leaving. R. K. loved spending time with Gibson. Throughout his testimony, Gibson referred to R. K. as “my son”. He asked repeatedly “why would I do these things to my son” and “why would I hurt him?” He asserted that it was natural for him to be alone with R. K. on frequent occasions because “he was my son”.

[90] Gibson testified that he cared for A. C. and treated A. C. the same as R. K. but that the feeling between them was not the same as it was with R. K. A. C. was “hyper” and would not always listen to what the adults told him. R. K. would listen to Gibson. There was “nowhere near” the same bond between Gibson and A. C. as there was between Gibson and R. K.

[91] Gibson agreed that he looks very different from S. C.’s boyfriend Paul. He denied that the terms “Paul Number One” and “Paul Number Two” were used to differentiate between the two of them. J. C. tried to use these terms at one point but it never caught on. Gibson was surprised to see the boys calling him “Paul Number Two” in their testimony.

[92] Gibson agreed that he last saw R. K. and A. C. at the time of R. K.’s eighth birthday party. He was expected to get R. K. a flat screen television as a gift but he got a smaller gift. Gibson denied S. C.’s evidence to the effect that she told him not to hug R. K. at the birthday party. The party was on Sunday, November 8, and the two boys’ biological fathers were both present. The party was finishing late at night and N. C’s boyfriend (Stephen) arrived and wanted to take her home to Cobourg. She had a doctor’s appointment in Toronto the next morning. It was agreed that A. C. would stay overnight at the B1[...] Avenue house, that Gibson would babysit him, and in the morning Gibson would take him to meet N. C. at her doctor’s office. J. C. also stayed overnight after the party and slept in R. K.’s room while R. K. slept with his mother S. C. in her room. The boarder Jimmy slept in the spare bedroom. N. C. put A. C. to sleep on the couch in the living room and left with her boyfriend Stephen. Gibson slept on the floor in the living room. Gibson agreed that he was alone with A. C. in the living room on this last night. It was the only time he was ever alone with A. C. He denied doing anything improper such as putting his penis in A. C.’s anus and injuring him.

[93] In the morning, A. C.’s biological father came and picked up his son, so the previous night’s plan changed. R. K. went to school and S. C. went to work. J. C. and Gibson stayed and cleaned up the house. Late in the morning, N. C., A. C. and A. C.’s father returned to the house. Gibson said good-bye and left for work.

[94] Although Gibson never saw the two boys again, he testified that he did have subsequent contact with two of the family members. S. C. called him on the weekend following the birthday party and said that she had tickets to a concert. She asked Gibson to babysit and he agreed. Gibson thought that it was around November 21 when he went over to the B1[...] Avenue house, thinking that he was going to babysit. When he arrived, A. C.’s biological father and S. C were inside the house. The boarder Jimmy was in the kitchen but he left when Gibson arrived. A. C.’s father punched Gibson in the face and said, “we’re going to talk”. They struggled and S. C. began stabbing Gibson in the shoulder with a knife. A. C.’s father said, “you want to fuck A. C.” and S. C. said, “you want to fuck the children”. In the struggle, Gibson lost his jacket, sweater and tee shirt but he managed to escape from the house. His lip was split and bleeding and he was naked from above the waist. He took a taxi to the subway. The taxi driver gave him a shirt.

[95] In cross-examination, S. C. denied calling Gibson after the birthday party and asking him to come over to the B1[...] Avenue house to babysit. She insisted that she never saw Gibson again after the birthday party.

[96] After escaping from S.C.’s house, Gibson went to Scarborough to the home of Robert Westwood, his employer at the printing company. Gibson described Westwood as being “like a father to me”. Gibson told Westwood what had happened and cleaned up. Westwood gave him a jacket and some money and drove him back to the subway where Gibson called his family. Gibson understood generally what was being alleged against him, in light of the statements “you want to fuck the children”. Gibson spoke on the telephone to his brother, his mother, and his aunt. He went to stay with his aunt for one night and then he went to Uxbridge to stay with his brother.

[97] Gibson told his mother and his brother what had happened but he did not call the police to report the stabbing and he did not seek any medical treatment. He believed that if he went to the police, or if he went to the hospital and they called the police, he would be charged due to his prior Youth Court record for sexual assault. When P.C. Vieira arrived in Uxbridge to arrest him, and when he was booked at 14 Division, he did mention the stabbing and showed the officer the injury to his shoulder.

(viii) The evidence of Gibson’s mother and his employer

[98] The defence called the accused Gibson’s mother, Patricia Lahey, and his employer, Robert Westwood. The main relevance of the mother’s evidence was to help explain Gibson’s closeness to the C. family and to explain his post-offence conduct. The main relevance of the employer’s evidence was to explain the post-offence conduct and to cast light on the conduct of the C. family members, after the November birthday party and before they went to the police on November 27, 2009. During the mother’s testimony, as during Gibson’s own testimony, certain details came out relating to Gibson’s Youth Court record and relating to his difficulties with gambling. This evidence was perhaps unnecessary and, in any event, I have ignored it.

[99] Gibson’s mother Patricia Lahey is fifty-nine years old. She raised her three children in Toronto until 1998 when she moved to Nova Scotia. She now lives there with a common law partner and works as a waitress. She is very close to her son Paul, the accused. Her older son lives in Uxbridge and her daughter lives in Etobicoke.

[100] After Gibson’s conviction in Youth Court for sexual assault, at age thirteen or fourteen, he lived with his mother until she moved to Nova Scotia in 1998. After she moved, they would stay in touch through regular telephone calls and she would return to Toronto every summer to visit with her children. The three children all had difficulties with their father and none of them saw him at Christmas time in 2008. When he died suddenly, the day after New Years in 2009, Paul was devastated by the death. However, when his mother saw him in late June 2009, on her regular summer trip back to Toronto, he seemed much better. He was working a lot, volunteering at the Food Bank, and seemed to be getting his life back on track after the death of his father.

[101] Gibson told his mother, during their contacts in 2009, about meeting the C. family and about visiting with them. He told her about the outings he had been on with the grandmother and with the two boys. He told her that he liked to buy gifts for the boys and to take them places. He referred to one of the boys as his “son”.

[102] Gibson’s mother initially thought that his relationship with the C. family was good but she later felt that he was getting too close to them. Especially when he referred to one of the boys as his “son”, she thought that he was trying to fill a void left by the death of his father and that he was substituting the C. family for his own family. She told him this, and suggested that he “back off”, but he did not agree. In particular, she told him not to be alone with the two boys. Her concern was with perceptions. She thought that entirely innocent association with the boys would be misconstrued if he was alone with them, in light of Gibson’s past Youth Court record. Gibson assured her that he was never alone with the boys. He told her that he slept over at the family home, on the couch or on the floor, but that other adults were present. He did not tell her that he went bowling and to movies with the boys and that they were alone with him on these occasions. She would have been concerned that this kind of outing would be misconstrued.

[103] Robert Westwood is sixty years old and is married. He owns a small screen printing company in Scarborough. He knew the accused Gibson for the fifteen year period prior to 2009. Gibson worked for Westwood, off and on, throughout this period. Initially, Gibson was not serious about his work but he eventually became responsible. At one point, around 2004, Gibson was effectively running the business for Westwood. Gibson was also kind to Westwood and they developed a good relationship. Gibson left the job for a period of time but he resumed working for Westwood in 2009. Westwood had known Gibson’s father and knew that Gibson took it badly when his father died in early 2009. Westwood would call Gibson when there was a printing job and he was needed. On average, Gibson would work every other day during the summer and fall of 2009. Some days he would work as long as twelve to fifteen hours.

[104] Gibson told Westwood about his friendship with the C. family. He would talk with Westwood about his outings with the family, while the two of them were working side by side on a job. Westwood knew there were two boys in the family and knew their names. Westwood had the impression that they went on family outings. Gibson did not tell Westwood that he went bowling and to the movies alone with the boys.

[105] In mid-November 2009, Gibson was working on a job for Westwood. He finished the job on Friday, November 20. The next day, on Saturday, November 21, Gibson arrived at Westwood’s home with a cut lip and no jacket. He was distraught and said that he had been attacked by two or three people, including one with a knife. Westwood gave Gibson money that he was owed from work.

[106] Gibson’s mother confirmed that she received a telephone call from Gibson at this point and that he was distraught. He told her that he had been called over to the C. home to babysit, that he was attacked by the mother and boyfriend, and that one of them had stabbed him. Gibson’s mother got him to calm down and persuaded him to go to his aunt’s house. Gibson’s brother became involved and the four family members had a collective discussion about what to do. They advised Gibson to go to the police. He insisted he was innocent of the allegations but he felt that the police would not believe him because of his prior Youth Court record.

[107] Gibson went to Uxbridge and stayed with his brother for a few days. The telephone discussions with his mother in Nova Scotia continued during this period. She felt that she had succeeded in persuading him to go to the police but, at this point, the police arrived themselves and arrested Gibson.

[108] Westwood described certain events that occurred, after Gibson left his home on November 21 and before the police arrested Gibson on November 28, 2009. On the night that Gibson left Westwood and went to his aunt’s house, that is, on Saturday, November 21, Westwood received a telephone call from J. C. She was asking how to find Gibson and asking where he lived. Westwood was surprised that J. C. did not seem to know where Gibson lived. Westwood told her that Gibson lived a block and a half from the Food Bank in Parkdale and suggested that J. C. must know this. J. C. replied something to the effect “oh yeah” and appeared to acknowledge that she knew about Gibson’s B2[…] Avenue apartment. Gibson had, on occasion, stayed over in the basement of Westwood’s home in Scarborough in early 2009, if he had been working late on a job, but his own residence was in Parkdale.

[109] In addition to asking how to find Gibson, J. C. began making allegations of assaults on her grandchildren during this telephone call. She asked Westwood not to tell Gibson about her call. Westwood’s cell phone died during the conversation so he phoned her back the next day, that is, on Sunday, November 22. He asked J. C. why she had not called the police. She said that she needed more information about Gibson’s whereabouts before she called the police.

[110] Westwood called Gibson’s brother and advised him of these two telephone conversations with J. C. The next occasion when Westwood heard from the C. family was on the night of Wednesday, November 25, 2009. J. C. called twice and left voice messages at work asking Westwood to call back. Early on the morning of Thursday, November 26, there was another call to Westwood at work. This time it was not J. C. Westwood believed that it was S. C. who called. She left a message stating, “the boys are waking up, their bums are sore, we are taking them to St. Joseph’s and the police will be called”.

[111] In cross-examination, S. C. agreed that J. C. probably had Gibson’s phone number at work, as they were friends and they called each other. S. C. may also have written down Gibson’s phone number at work as he would call her from work. However, S. C. denied calling Gibson’s work number in November 2009, after R. K.’s birthday party. They were not trying to reach Gibson. Rather, it was Gibson’s employer who called her. She agreed that she probably told Westwood in this call that Gibson had touched R. K.

[112] The defence also called P.C. Vieira and he testified. He confirmed that the police were not called about the case until November 27, 2009. They attended at the SCAN unit at Sick Kids Hospital and took video-taped statements from the two boys and the two mothers. P.C. Vieira then called J C. and asked her to attend at the station. He first reached J. C. at her home at 8:30 p.m. on November 27 and at 8:57 p.m. he took a video-taped statement from her.

[113] The next day, November 28, 2009, P.C. Vieira attended at Gibson’s brother’s residence in Uxbridge and arrested Gibson. He initially had some difficulty in locating Gibson but he did become aware of Gibson’s apartment on B2.[…] Avenue in Parkdale and he checked it. S. C. had found a piece of paper at the birthday party, with Gibson’s name and his Parkdale address on it, and she gave it to the police.

[114] P.C. Vieira confirmed that the two boys and their mothers were reluctant to come to the preliminary inquiry. The mothers did not want the boys to have to testify.

(ix) Proof of the witnesses’ prior tape-recorded statements

[115] As noted above, A. C.’s video-taped statement to the police was admitted for its truth, pursuant to s. 715.1 of the Criminal Code. It was made an exhibit. The video-taped statements of R. K., S. C., N. C. and J. C. were also admitted, and marked as exhibits, but only to prove the non-hearsay fact of what was said or not said in the prior statements, to the extent that the witnesses were cross-examined on these statements.

C. LAW

(i) Introduction

[116] As noted at the beginning of these reasons, there is no issue that the acts alleged against the accused constitute the offences of sexual assault and sexual interference. There is also no issue that the injuries to A. C.’s anus constitute bodily harm. The real issue in the case is whether the acts alleged happened and, if so, the identity of the perpetrator.

[117] Resolution of this issue turns largely on assessments of credibility and reliability. The accused Gibson has testified and denied committing the acts in question. Accordingly, there is a conflict in the evidence in relation to the two central issues. That conflict, and the questions concerning credibility and reliability that it raises, must be addressed bearing in mind that the burden of proof is on the Crown.

[118] In this regard, I am guided by the well known principles set out in R. v. W.(D.) (1991), 1991 CanLII 93 (SCC), 63 C.C.C. (3d) 397 (S.C.C.) and, more recently, in R. v. B.D., 2011 ONCA 51, as well as the long line of earlier authorities on which those cases rest. See: R. v. Challice (1979), 1979 CanLII 2969 (ON CA), 45 C.C.C. (2d) 546 at 556-7 (Ont. C.A.); R. v. Morin (1988), 1988 CanLII 8 (SCC), 44 C.C.C. (3d) 193 at 207-8 and 211 (S.C.C.); R. v. Nimchuk (1977), 1977 CanLII 1930 (ON CA), 33 C.C.C. (2d) 209 (Ont. C.A.).

(ii) The credibility of the accused Gibson’s denial

[119] I should state at the outset that there are certain aspects of the evidence that do not assist me when assessing Gibson’s credibility. First, his Youth Court record is of no assistance. It is about twenty years old and it does not involve any crimes of dishonesty. There have been no subsequent convictions. See: R. v. P. (G.F.) (1994), 1994 CanLII 8721 (ON CA), 89 C.C.C. (3d) 176 (Ont. C.A.); R. v. Batte (2000), 2000 CanLII 5750 (ON CA), 145 C.C.C. (3d) 498 at 516-517 (Ont. C.A.).

[120] Second, Gibson’s post-offence conduct is of no assistance. As I understand it, this was the main reason for eliciting evidence of Gibson’s Youth Court record as part of the defence case. It helps to explain why he did not go to the police or to the hospital, after he had some kind of confrontation with two members of the C. family. It also explains why he did not go home to his Parkdale apartment and, instead, went to his brother’s home in Uxbridge and stayed there until the police arrived to arrest him. It is not necessary to make definitive findings as to who was involved in the confrontation and exactly what happened. I am satisfied that a confrontation of some kind happened. The defence witnesses have reliably testified that Gibson had a bloodied lip, he had lost his jacket, he was distraught, and he immediately told his mother and his employer about a confrontation with C. family members. This all occurred on November 21, 2009. In the circumstances, it was understandable that Gibson would feel trapped and would turn to his employer and to his family, and not to the police. Indeed, P.C. Vieira’s forceful reliance on Gibson’s prior Youth Court record during the police interview on November 29, 2009, tends to confirm Gibson’s view that the police would use his prior convictions against him. I edited out this part of the interview, with the Crown’s consent, on the basis that it was irrelevant and prejudicial.

[121] Third, Gibson’s exercise of his right to remain silent, when P.C. Vieira confronted him with the boys’ allegations during the interview, is of no assistance. As I stated in my ruling concerning the admissibility of Gibson’s statement to the police, Gibson’s exercise of his constitutional rights cannot affect his credibility nor can it advance the Crown’s case. See: R. v. Noble (1997), 1997 CanLII 388 (SCC), 114 C.C.C. (3d) 385 (S.C.C.); R. v. Cones (2000), 2000 CanLII 5677 (ON CA), 143 C.C.C. (3d) 355 (Ont. C.A.).

[122] Turning to those considerations that are relevant to Gibson’s credibility, I note the following:

• First, his demeanour as a witness was often argumentative and defensive, especially in cross-examination. Rather than answering questions, Gibson would argue with the Crown and pose questions of his own. This one factor, concerning a witness’ demeanor, should not be given undue weight;

• Second, he misled his mother and his employer concerning whether he was ever alone with R. K. and A. C. His mother and his employer were the people who Gibson trusted most and his lack of candour with them, on an important issue, reflects poorly on his credibility;

• Third, the central theme of Gibson’s account is that he became exceptionally close to R. K. and they developed a father and son relationship. R. K. would call him “Dad”, people in the park or at a church picnic would refer to R. K. as his “son”, R. K. would always run up and hug him, R. K. would cry if he thought Gibson was leaving, and a real bond developed between them. It was this evidence that provided an innocent explanation for the unusual degree of association between a thirty-three year old man and a seven year old boy, who were virtual strangers to each other prior to the summer of 2009. If these outward signs of affection and of a paternal/filial bond were true, they should have found some support in the evidence. Not only is there no support for Gibson’s evidence on these points but it is contradicted. S. C. testified that the only time she ever saw a hug was at the birthday party and the hug came from Gibson. She told him not to repeat it. She also testified that R. K. was upset after the lengthy trip to the dentist with Gibson. Finally, J. C. testified that R. K. kicked Gibson hard in the groin, cursed him and then silently refused to tell J. C. why he was so angry with Gibson. This was unusual behaviour for R. K. The mother’s and grandmother’s accounts of the above incidents were detailed, coherent and credible. Indeed, Gibson did not dispute the incident where R. K. kicked him hard in the groin. Gibson’s credibility is undermined by the lack of support and by the outright contradiction of his account on this central issue;

• Fourth, Gibson’s explanations for choosing to stay overnight at S. C.’s house and at J. C.’s apartment, sleeping either on the floor or on a couch when his own apartment was nearby, seem improbable;

• Fifth, Gibson testified that R. K.’s and J. C.’s accounts about the trip to the washroom on Centre Island, while J. C. bought yoghurt ice cream from the store, were outright lies. He testified that there is no store that sells yoghurt ice cream on Centre Island and that he never took R. K. to the washroom on Centre Island. Once again, R. K.’s and J. C.’s accounts on these points were detailed, coherent and credible. Indeed, J. C.’s account of the ice cream store incident was vivid. I am satisfied they are not lying on these points. Gibson conceded that he was often alone with R. K. and that he would take R. K. to the washroom when they went bowling and to the movies and yet, on the Centre Island trip, his evidence was that there was a rigid policy to the effect that only J. C. or S. C. would take R. K. and they would take him to the women’s washroom. This evidence of rigid and divergent practises and policies is improbable. Gibson’s credibility is undermined by his insistence that R. K. and J. C. were lying about the ice cream store and about the trip to the washroom on Centre Island;

• Sixth, acceptance of a strong and persuasive Crown case, to the standard of proof beyond reasonable doubt, is a good reason for rejecting the accused’s contrary account. This point will be developed below in greater detail. See: R. v. D. (J.J.R) (2006), 2006 CanLII 40088 (ON CA), 215 C.C.C. (3d) 252 at para. 53 (Ont. C.A.); R. v. M. (R.E.) (2008), 2008 SCC 51, 235 C.C.C. (3d) 290 at para. 66 (S.C.C.); R. v. Beteta-Amaya, 2011 ONSC 6633 at paras. 50-54.

[123] In light of all of the above considerations, I cannot accept Gibson’s account nor does it leave me in a state of uncertainty, either standing alone or in combination with the other evidence, such that it could give rise to a reasonable doubt. His evidence on the central issues in the case is simply not credible and I completely reject it.

(iii) The credibility and reliability of R. K.’s account

[124] I appreciate that there is no longer a statutory or common law corroboration requirement in relation to the unsworn testimony of child witnesses. See: R. v. Bickford (1989), 1989 CanLII 7238 (ON CA), 51 C.C.C. (3d) 181 (Ont. C.A.); R. v. B. (G.) (1990), 1990 CanLII 7308 (SCC), 56 C.C.C. (3d) 200 at 219-220 (S.C.C.). Nevertheless, this is a case where the evidence of A. C. and R. K. should be approached with caution. I also intend to analyze their evidence separately, before deciding whether to adopt the Crown’s submission that their separate accounts can be considered together, pursuant to the “similar fact” rule of evidence.

[125] R. K.’s account suffers from the obvious frailty that he never disclosed the alleged abuse to his mother, even when she asked him directly in November 2009 whether Gibson had touched him in any way. Indeed, R. K. denied any touching by Gibson in response to his mother’s inquiry. According to S. C., she then told R. K. about A. C.’s disclosure to N. C. At this point R. K. said, “he did it to me too”. I am not satisfied that R. K. disclosed anything to Dr. Moran on November 25, 2009 and S. C.’s evidence on this point is contradicted by N. C.. Dr. Moran’s report to the SCAN unit was to the effect that, “There was no specific allegation made with respect to R. K.”. Finally, R. K.’s interview with the police on November 27, 2009 was made an exhibit and it is clear that R. K. refused to say anything of substance to the police, although he shook his head and indicated that “Paul Number Two is not a nice guy” and he agreed that “Paul Number Two” had “done bad things” to him. It was only much later, at the preliminary inquiry, that R. K. began to disclose incidents of sexual abuse by Gibson. He then disclosed further details at trial.

[126] The defence submits that R. K. has simply succumbed to family pressure and is now fabricating his evidence in order to lend support to A. C.’s allegations. The Crown responds that the family was actually reluctant to have R. K. testify and that it is simply a case of incremental disclosure. There is no question that the way in which R. K.’s allegations have emerged raises the danger that he was influenced by A. C.’s disclosure. This provides good reason to assess his credibility with real care and to look for supporting evidence.

[127] In analyzing R. K.’s credibility and reliability, I begin by noting a number of features, internal to R. K.’s testimony at trial, that were persuasive. First, important parts of his account contained telling details that gave it the ring of truth. For example, he described the public washroom at Centre Island where Gibson took him as “the wheelchair washroom” and noted that you could lock the door with no one else inside. He also demonstrated the motion that Gibson used with his hand when “he put his hand around my pee pee.” He distinguished between Gibson initially just putting “his tongue on my pee pee” but then going on to put “his whole mouth on my pee pee”. What was also compelling about these details was that R. K. generally volunteered them, without any need to prompt him or press him.

[128] Second, his manner of testifying was confident and forceful, especially considering that he was only ten years old and in grade five at the time of trial. It was directly put to him, on two occasions in cross-examination, that his account was a fabrication and that he was only saying these things to support the rest of his family. He responded persuasively, on both occasions, to the effect that “I wouldn’t be here in court if this never happened”.

[129] Third, he honestly admitted the history of non-disclosure to his mother and to the police. He then went on to explain that he was “scared and shy”, that it was “my first time answering questions”, and that after being prepared for testifying by the Crown, “I did not feel so shy anymore”. He also explained that Gibson said he “would kill my Mom”. These explanations were convincing and credible. They are also consistent with J. C.’s evidence that R. K. would not tell her why he was so angry with Gibson, when he kicked Gibson hard in the groin and cursed him. In addition, they are consistent with J. C.’s attempts to get him to talk during which he disclosed no more to her than his dislike of the “ass” or “bum” that he drew on a piece of paper and then threw away. Finally, the video-taped interview of R. K. by the police on November 27 does not indicate that nothing happened. Rather, it indicates that something “bad” happened to him and that he simply refused to tell the police about it at this very early stage of the case.

[130] I am satisfied, based on the above circumstances, that this is a classic case of incremental disclosure. R. K. was young, frightened and ashamed and it is not surprising that he initially refused to disclose. As Major J. put it, speaking for the majority of the Court in R. v. D. (D.) (2000), 2000 SCC 43, 148 C.C.C. (3d) 41 at 66-7 (S.C.C.):

… there is no inviolable rule how people who are the victims of trauma like a sexual assault will behave. Some will make an immediate complaint, some will delay in disclosing the abuse, while some will never disclose the abuse. Reasons for delay are many and at least include embarrassment, fear, guilt, or a lack of understanding and knowledge.

[131] Turning to considerations external to R. K.’s testimony, there is a considerable body of circumstantial evidence supporting his account. First, Gibson acknowledged much of the substantial evidence of association and opportunity called by the Crown. I have rejected Gibson’s innocent explanation for this association, namely, that a very close father and son relationship had developed between him and R. K. What is left is the suspicious fact that a thirty-three year old man was spending an inordinate amount of time with a seven year old boy who had been a complete stranger to him prior to the summer of 2009. This unusual degree of association included lavishing small gifts on the boy, whenever they met, and sleeping over at the boy’s home when the man’s own residence was nearby. Second, both J. C. and S. C. observed an unusual red rash that circled around R. K.’s anus. They applied polysporin to it. There was still some “slight redness” around the anus, at the “6 o’clock position”, when the SCAN unit staff examined R. K. on November 27, 2009. The rash never returned after November 2009. Third, J. C.’s evidence about R. K.’s hard kick to Gibson’s groin, and R. K.’s cursing and silent anger towards Gibson, has already been referred to above. Fourth, and last, S. C. testified that there was a change in R. K.’s behavior in the fall as he became withdrawn and angry, his grades dropped in school and he would wake up at night, wetting his bed and screaming from some nightmare.

[132] I appreciate that all of the above items of circumstantial evidence, if analyzed separately, are open to some innocent explanation. The unusual evidence of association and opportunity, for example, is said to be explained by the fact that Gibson was very lonely after the death of his father, according to the defence evidence. The anal rash may have been due to constipation or some other innocent source of irritation, as the SCAN unit report warns. The evidence of R. K.’s anger towards Gibson, and his change of behavior in the fall, may have been caused by Gibson’s failure to get R. K. a flat screen television, or some unknown but innocent cause, according to the defence evidence.

[133] The proper way to analyze these potential explanations for each piece of circumstantial evidence is not piecemeal, in isolation from the other evidence. Rather, they are to be assessed together and in the context of all the evidence. Furthermore, the individual items of evidence are not to be subjected to the standard of proof beyond reasonable doubt, which applies to the essential elements of the offences and to the verdicts. As Taschereau J. put it, speaking for six members of the Court in R. v. Coté (1941), 1938 CanLII 44 (SCC), 71 C.C.C. 75 at 76 (S.C.C.):

It may be, and such is very often the case, that the facts proven by the Crown, examined separately have not a very strong probative value; but all the facts put in evidence have to be considered each one in relation to the whole, and it is all of them taken together, that may constitute a proper basis for a conviction.

When the entire body of circumstantial evidence is considered together, and is considered together with R. K.’s own internally compelling testimony, I am satisfied that the innocent explanations for individual items of evidence should be rejected. See: R. v. Morin, supra at 205-211; R. v. Bouvier (1984), 1984 CanLII 3453 (ON CA), 11 C.C.C. (3d) 257 at 264-6 (Ont. C.A.), aff’d. 1985 CanLII 17 (SCC), 22 C.C.C. (3d) 576 n (S.C.C.); R. v. J.M.H., 2011 SCC 45, 2011 S.C.C. 45; R. v. Morin (1992), 1992 CanLII 40 (SCC), 76 C.C.C. (3d) 193 at 200 (S.C.C.); R. v. Lynch, Malone and King (1978), 1978 CanLII 2347 (ON CA), 40 C.C.C. (2d) 7 at 19 (Ont. C.A.).

[134] In conclusion concerning R. K.’s account, I found his testimony internally credible and reliable. In addition, there is a substantial amount of external circumstantial support for his account. In short, I believed his testimony, even after approaching it with caution and after looking for support from other credible and reliable evidence.

(iv) The credibility and reliability of A. C.’s account

[135] Turning to A. C.’s account, it is subject to quite different strengths and frailties, as compared to R. K.’s account. A. C. made a timely complaint to his mother when she put him in the bath, unlike R. K. However, A. C. was only four years old at the time of the police interview on November 27, 2009. That interview constitutes the bulk of A. C.’s testimony, as he adopted it pursuant to s. 715.1 and added little more when testifying at trial. The video-taped interview contains many of the difficulties one would expect when trying to get a coherent account from a four year old, especially one who was as active and easily distracted as A. C.

[136] In these circumstances, A. C.’s evidence must be approached with real caution. In the absence of some supporting evidence, it would not be safe to convict on A. C.’s evidence standing alone.

[137] I have already set out the essential contents of A. C.’s s. 715.1 statement to the police, at para. 70 above. It includes a number of compelling features. First, P.C. Vieira skillfully managed to get A. C. to speak about his allegations without leading him. Second, A. C.’s key assertion, that “someone hurted me cause put his pee pee in my bum”, is not something that a four year old would likely imagine or make up. Third, A. C.’s allegation is not the least bit ambiguous. He repeats it, he relates it to being “hurt” and having “to go to the doctor”, and he describes some of the surrounding acts, for example, “every time he pulls down my pants and then he puts his pee pee in my bum”. There can be no mistaking what A. C. is talking about. Fourth, and last, A. C.’s account is brief but it does contain some telling detail, in particular, the assertion that “he puts his pee pee in my bum and then every time I move he – when he is doing it he has to start all over.” This particular detail gives real verisimilitude to the story.

[138] In addition to the above internal indicators of credibility and reliability, there is some extrinsic evidence that tends to support A. C.’s credibility. First, A. C.’s unprompted utterance to N. C. while he was in the bathtub has not been tendered for its truth. It does, however, support his credibility as a reasonably timely complaint made without any suggestive leading by his mother. The common law used to presume that failure to make a timely and spontaneous complaint meant that a sexual assault complainant was untruthful. See: R. v. Timm (1981), 1981 CanLII 207 (SCC), 59 C.C.C. (2d) 396 (S.C.C.). This presumption was statutorily reversed in s. 275 of the Criminal Code. The modern law, as stated by Major J. on behalf of the majority of the Court in R. v. D. (D.), supra at p. 66, is as follows:

In assessing the credibility of a complainant, the timing of the complaint is simply one circumstance to consider in the factual mosaic of a particular case.

A. C.’s prior complaint to his mother in the bathtub was admitted only for the non-hearsay purpose of explaining the narrative or the chronology of events in this case. The consistent content of the statement cannot be used to bolster A. C.’s credibility. It is the fact that he made the utterance, at a time when he was injured and a complaint could reasonably and logically be expected and the fact that he made it without prompting, that supports his credibility: See: R. v. F. (J.E.) (1993), 1993 CanLII 3384 (ON CA), 85 C.C.C. (3d) 457 (Ont. C.A.); R. v. Henrich (1996), 1996 CanLII 2057 (ON CA), 108 C.C.C. (3d) 97 (Ont. C.A.).

[139] Second, the injuries to A. C.’s anus that were observed by N. C. at the time of the bathtub complaint, are another piece of relevant circumstantial evidence. The injuries are corroborated by the SCAN unit medical examination, some two weeks later. The significance of these injuries, as with all circumstantial evidence, depends on assessing them together with all the other evidence. Viewed alone, there are obviously innocent explanations for the injuries, as set out in the excerpt from the SCAN report quoted above.

[140] Third, and last, is the evidence of association and opportunity. I have already reviewed this evidence above. It is far more extensive in relation to R. K. than to A. C. Nevertheless, Gibson conceded that he was alone with A. C. on the night after the birthday party, that is, on the night of November 8/9, 2009. This time when they were alone was immediately before the bathtub complaint and the discovery of A. C.’s anal injuries.

[141] The defence focused on two aspects of A. C.’s account which were said to make it unreliable. First, A. C.’s statement that it happened “more than one time … like one hundred”, was emphasized by the defence. It was submitted that numerous repetitions of this act, committed by an adult on a four year old, would have caused severe injuries and these injuries would have been noticed prior to the bathtub complaint. I am not satisfied that A. C. was saying that there were numerous separate occasions when he was anally assaulted. Shortly after saying it happened “more than one time … like one hundred”, A. C. went on to explain that “he puts his pee pee in my bum and then every time I move he – when he is doing it he has to start over”. Furthermore, a four year old’s estimate of “like one hundred” repetitions should not be interpreted in the same way as an adult’s use of this same language. This strikes me as a good illustration of what Wilson J. meant, giving the judgment of the Court in R. v. B.(G.), supra at p. 219, when she stated:

… the judiciary should take a common sense approach when dealing with the testimony of young children and not impose the same exacting standard on them as it does on adults. … While children may not be able to recount precise details and communicate the when and where of an event with exactitude, this does not mean that they have misconceived what happened to them and who did it.

[142] I am satisfied that A. C. is likely saying that there was more than one occasion when he was anally assaulted, but he is also saying that each occasion involved repetitions when the perpetrator would have to “start all over”. Furthermore, his estimate of “one hundred” repetitions should not be taken literally. In these circumstances, the defence submission concerning the likely extent and timing of A. C.’s injuries, is simply speculation. I am satisfied that this aspect of A. C.’s evidence does not undermine his reliability.

[143] The second aspect of A. C.’s account, relied on by the defence, was A. C.’s identification of “Paul Number Two”. It was submitted that the identification was ambiguous, at best, and that it was too unreliable to convict. Even if A. C. was reliably recounting an incident of anal assault by an adult male, it was submitted that there were a number of other male suspects who he could be identifying.

[144] I have already set out A. C.’s evidence relating to identification, at paras. 69 to 71 above. A. repeatedly referred to the man who assaulted him as “Paul Number Two”. He also referred to “Paul Number Two” as the man who came on outings with his grandmother and who he would see at S. C.’s house. There is no serious question on the evidence heard at trial that “Paul Number Two” is the accused Gibson and that he went on outings with J. C. and the two boys and that he would see A. C. at S. C.’s house. There can be no realistic suggestion that any of the other males were known as “Paul Number Two” or that they went on these outings with J. C. and the two boys. The only thing that undermines this apparently straightforward identification of the accused Gibson is that A. C. cannot provide a reliable description of him. A. C. referred to “Paul Number Two” as looking “like an elephant” and stated that he has a “very smiley face” and that there is something about “his eyes and his nose”. He also described “Paul Number Two’s” hair as being “dark”, like P.C. Vieira’s, but also as “kind of blonde like mine”. The accused Gibson has distinctive red hair and he is somewhat cross-eyed. Neither of these features were mentioned by A. C.

[145] Once again, this strikes me as a good illustration of what Wilson J. was referring to in the passage from G.B. already quoted above. It is not realistic to expect a four year old to recount the “precise details” of a description “with exactitude”. A. C. reliably and repeatedly described the man who assaulted him as “Paul Number Two” and reliably described him as the man who went on outings in the summer with his grandmother, to the swimming pool and the playground, and who he would see at S. C.’s house. He knew there was something about “his eyes and his nose” but he could not verbalize it. I am satisfied that the only person who A. C. could be referring to is the accused Gibson, even though A. C. could not accurately describe Gibson’s hair colour.

[146] In conclusion concerning A. C.’s account, I found it completely reliable and credible, to the effect that he was anally assaulted by a man who he knew as “Paul Number Two”. His own video-taped statement and testimony was internally compelling and persuasive on these central issues and it was supported by extrinsic circumstantial evidence. I have already set out the correct approach in law to circumstantial evidence at para. 131 above. Taking all the evidence together, I accept A. C.’s account and I reject the potentially innocent explanations for his injuries and for Gibson’s association with him. None of the evidence gives rise to a reasonable doubt. In short, I believed A. C.’s evidence, even after approaching it with caution and after looking for support from other credible and reliable evidence.

(v) Similar fact evidence

[147] Given the above conclusions, it is not strictly necessary to address the issue of “similar fact” evidence. I have kept the evidence of the two complainants separate in the above analysis, without resorting to “similar fact” evidence. Nevertheless, I will briefly address this issue as it reinforces my conclusions.

[148] In my opinion, there is no question that the separate accounts of R. K. and A. C. meet the test for the admissibility of “similar fact” evidence. The two boys were of roughly similar ages, they were cousins who spent the summer together with the same grandmother, they often went on the same outings, they both received gifts and treats from Gibson, the alleged assaults were generally similar, most of the assaults are alleged to have taken place in the same house and finally, the assaults are alleged to have arisen in the same context of a friendship that developed between Gibson and the C. family over a short period of time in the summer and fall of 2009. The high degree of similarity between the two sets of allegations gives them considerable probative value in relation to the central issues, namely, whether the assaults occurred and the identity of the perpetrator. As against this probative value, there is little prejudicial effect because the allegations made by one are no more serious than the other, there was no severance application and so the evidence had to be heard in any event, and there is no potential for distraction of the trier. In these circumstances, the evidence on each count would normally be admissible in relation to the other counts. See: R. v. Handy (2002), 2002 SCC 56, 164 C.C.C. (3d) 481 (S.C.C.); R. v. Simpson (1977), 1977 CanLII 1142 (ON CA), 35 C.C.C. (2d) 337 at 344-7 (Ont. C.A.); R. v. Arp (1998), 1998 CanLII 769 (SCC), 129 C.C.C. (3d) 321 at 348-354 (S.C.C.).

[149] The only argument that could be and that was advanced, to challenge the admissibility or weight of “similar fact” evidence in this case, is that R. K. was pressured by his family to support A. C.’s allegations. It was submitted that R. K.’s late disclosure was the product of family solidarity which is effectively a form of collusion. It is well established that collusion or collaboration destroys the legitimate force of “similar fact” reasoning which depends upon the improbability of coincidence. If R. K. had simply succumbed to family pressure, in order to join in and support A. C.’s allegations, there would be an alternative explanation for why there are two sets of allegations. See: R. v. Handy, supra at paras. 104-113; R. v. Burke (1996), 1996 CanLII 229 (SCC), 105 C.C.C. (3d) 205 at paras. 38-45 (S.C.C.); R. v. McDonald (2000), 2000 CanLII 16871 (ON CA), 148 C.C.C. (3d) 273 at para. 27 (Ont. C.A.).

[150] As already set out above, I am satisfied that R. K.’s late disclosure was not due to family pressure but was due to him being genuinely “scared and shy”, as he explained. The Crown submitted, correctly, that the evidence was to the effect that the family was reluctant to have either boy testify. Furthermore, R. K. was not influenced by A. C.’s disclosure and resisted various attempts by his mother, his grandmother and the police to get him to talk. I am satisfied that R. K.’s account was independent of A. C.’s account.

[151] The existence of two separate and independent allegations of sexual assault against Gibson, arising in very similar circumstances, is unlikely to be a coincidence. Therefore, the evidence implicating him in one set of allegations logically infers that he is also implicated in the other set of similar allegations, and vice versa. In other words, the two sets of allegations mutually corroborate each other.

[152] I am satisfied that “similar fact” evidence is admissible in this case and that all the evidence across all the counts should be considered together. In terms of its weight, I am satisfied that it infers that both boys were sexually assaulted and that they were assaulted by the same man. This simply reinforces my conclusions, already set out above, that the two boys are both credible and reliable, that they were both the victims of sexual assaults, and that Gibson is the perpetrator.

D. CONCLUSION

[153] In conclusion, I am satisfied beyond reasonable doubt that Gibson is guilty of sexual assault in relation to both R. K. and A. C. I am also satisfied that he caused “bodily harm” to A. C. In relation to R. K., “bodily harm” has not been proved as the evidence is insufficient to conclude that the anal rash was more than “transient or trifling”, as required by the s. 2 definition of this statutory term.

[154] The accused Gibson is therefore guilty as charged on Count Six of sexual assault causing bodily harm to A. C. He is also guilty of the lesser included offence of sexual assault simpliciter on Count Four in relation to R. K. Convictions should be entered for these two offences. The other four counts allege sexual interference during the same time period (Counts Three and Five) and allege sexual assault and sexual interference during a narrower time period (Counts One and Two). Gibson is also guilty of these four counts but they are either duplicative (Counts One and Two) or they offend the rule against multiple convictions (Counts Three and Five). These four counts should all be stayed.

M.A. Code J.

Released: February 13, 2012

COURT FILE NO.: 10-10000700-0000

DATE: 20120213

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

PAUL GIBSON

REASONS FOR JUDGMENT

M.A. Code J.

Released: February 13, 2012