D E C I S I O N

CORNELL, J.: (Orally)

The accused, R.B., is charged with one count of sexual assault and one count of touching a person under the age of 14 years for a sexual purpose. In accordance with the reasons that follow, I find the accused guilty on both counts.

Background

The counts in the indictment allege that the accused committed a sexual assault upon A.D. and that he touched her for a sexual purpose. The offences are alleged to have occurred between November of 2009 and May of 2010.

A.D. was three years of age at the time of the incidents having been born on […], 2006.

The accused was approximately 35 years of age when the offences occurred.

J.B. is A.D.’s mother. P.F. is A.D.’s stepfather. J.D. is A.D.’s biological father. When A.D. was approximately one year of age, J.B. and J.D. separated.

J.B. and P.F. have been in a common law relationship for approximately five years. Two children have been born of this union. At the time of the offences, J.B. and P.F. were living in Sudbury.

J.B. and K.K. have been best friends since grade 10.

At the time of the offences, K.K. and the accused were involved in a domestic relationship. A child by the name of M. was born of this union. M. and A.D. were approximately the same age.

Despite the common law relationship, K.K. and the accused occupied separate premises for the most part. The main floor of the accused’s duplex was occupied by the accused, his two sons from a previous relationship and his mother. The basement unit was occupied by K.K., J., a 12 year old son of the accused, as well as M.. Access between the two units was gained by way of an interior staircase that contained two doors that were capable of being locked.

J.B. and K.K. spent a great deal of time together. Much of this time was spent at K.K.’s residence. A.D. and M. were best friends. J.B. indicated that she and A.D. had slept over in K.K.’s unit on some 15 to 20 occasions. When they slept over, they occupied the couches located in the living room. On some occasions, A.D. would sleep with J.B. On other occasions A.D. would sleep on a couch by herself.

The Assaults

In May of 2010, A.D. made the spontaneous disclosure to her mother that “Uncle R.B. peed in my mouth.” She went on to say that Uncle R.B. told her to open her mouth wide. J.B. recounted A.D.’s statement by opening her mouth as wide as possible. When asked where this happened, A.D. replied “at Auntie K.K.’s.” When asked by J.B. “where was mommy?” A.D. replied “You were sleeping.” When asked about this further, A.D. said that Uncle R.B. took her to the bathroom and peed in her mouth. A.D. said “He was angry.”

After hearing these allegations, J.B. went to K.K.’s residence and shared this information with her. K.K. proceeded to get the accused on speakerphone at which time he was confronted with these allegations. During the course of his testimony, the accused indicated that he found these allegations “very disturbing.” K.K. managed to convince J.B. that the allegations were false. J.B. testified that she knew the accused was involved with a CAS investigation at that time and that she was concerned about the potential problems for the accused if, in fact, the allegations were not true. J.B. testified that at that time, “It was easier to believe it was not true.”

About one week later, A.D. told her mother that she was just joking. J.B. indicated that at the time A.D. made the statement, she really did not understand the concept of a joke.

On or about August 12, 2010, J.B. picked up P.F. from work. A.D. was in the back seat of the vehicle. P.F. was driving on Notre Dame Avenue on his way to the bank. While on route, A.D. handed a drawing up to her mother and said “Here mommy, here is a drawing of a penis.” P.F. was so shocked by this that he drove through a red light.

The drawing depicts two circles separated by an oblong object. There is a line which extends from the oblong object. When asked about the drawing during the course of her testimony, A.D. said that it was a drawing of Uncle R.B.’s penis. When asked what the line was extending from the oblong object, she said that it was Uncle R.B.’s pee. When asked about the drawing during her video statement, A.D. said that it was a picture of Uncle R.B.’s “privates.”

There was no suggestion in the evidence that A.D. was prompted in any manner to make this drawing. To the contrary, the evidence indicates that the drawing was prepared by A.D. spontaneously.

This was the first time that A.D. had used the word penis. There was no indication in the evidence as to how she became familiar with this word.

On August 14, 2012, a few days after the drawing was prepared, K.K. gave a wall unit and television to J.B. When the accused entered J.B.’s apartment to deliver these items, A.D. upon seeing the accused immediately became frightened, ran across the room and hid behind her mother. She appeared to be scared. When asked why, she replied “Uncle R.B. is here.” This was the first time that A.D. had any contact with the accused since the initial disclosure had been made in May of 2010.

When everyone had left, J.B. questioned A.D. about this further. A.D. responded by saying that “Mommy, I need to tell you something bad.” Upon hearing, this J.B. summoned her common law husband, P.F. Upon his arrival, A.D. told him “it is not a joke, Uncle R.B. did pee in my mouth.”

After the second disclosure, J.B., P.F. and A.D. went to the residence of M.B., the brother of the accused. M.B.’s partner, Melissa, was also present, as was J.D., A.D.’s biological father.

According to J.D. he and M.B. left in order to remove A.D. and the others from M.B.’s intimidation. J.D. indicated that he felt A.D. might be more forthcoming if she was only in the presence of females A.D. repeated that “Uncle R.B. peed in my mouth.” When asked what she did with it, she replied that she drank it. When asked why she drank it, she indicated that R.B. was angry and she wanted to make him happy. She also indicated that she cried out for her mother but her mother did not come.

Further questions were asked in the presence of P.F. When asked where his hands were, A.D. responded with a gesture involving her placing both hands in front of her pubic area as if she were gripping something oblong to imitate what Uncle R.B. had done.

In order to test A.D.’s story, J.B. said to A.D. that “I think it was J. who did it.” A.D. immediately responded without any confusion and said “no, mommy, it was Uncle R.B..”

J.D. was shocked and angered by these revelations and was about to take matters into his own hands. Instead, reason prevailed and he called Jackie McGaughey-Ward, a lawyer who had been a personal friend for many years. Ms. McGaughey-Ward immediately came over at which time A.D. told her what had happened. Ms. McGaughey-Ward advised the parents that it was necessary to inform the police immediately. This was done on August 14, 2010. A.D.’s video statement was taken the next day.

Analysis

The central issue in this case is whether or not these incidents occurred. If so, were they committed by the accused?

A.D.’s Evidence

Shortly after the matter was reported to the police, a video statement given by A.D. was taken. A.D. viewed the video during the course of her evidence. She was then asked by the Crown about these incidents. She indicated that they happened while she and her mother were sleeping over at Auntie K.K.’s house. They always happened at night after everyone was sleeping. They always took place in the bathroom. She would be sleeping on a couch in the living room. Auntie K.K. and M. were also sleeping. When asked how she got to the bathroom, she indicated that Uncle R.B. would make an angry face and in an angry tone say, “Come here now.” While offering this evidence A.D. did so in an angry tone and mimicked an angry face. When they were in the bathroom, Uncle R.B. would pull down his pants and then put his privates in her mouth and pee. She indicated that it felt wet and did not feel good. She said to him “please stop it.”

She indicated that sometimes she “had to swallow the pee, sometimes I didn’t, I spit it out.” Later, during the course of her evidence when she was addressing this topic, she again mimicked an angry face, adopted an angry tone and said that Uncle R.B. told me to “swallow it, swallow it, swallow it.”

During the course of cross-examination it was suggested that she may have been confused by what she was drinking and that perhaps it was apple juice or something. She responded immediately by saying “He would not pee in a cup, just in my mouth.”

During the initial part of her testimony, A.D. indicated that Uncle R.B. was wearing pants that he would pull down. During cross-examination, she repeated that he was wearing pants, then stopped and said “no, not pants, he was wearing underwear or shorts.” When pressed about this she said that she got mixed up and that he was wearing shorts or underwear. She later said that sometimes he wore pants and sometimes he wore shorts. This is consistent with the accused’s evidence that he only wore jeans or shorts when at home.

When she was asked if she had told her mother about these events, she indicated that she did, but that her mother did not believe her.

When she was asked what her mother was doing when Uncle R.B. approached her, she said that her mother was sleeping and that her mother was “a hard sleeper.”

Video Recorded Evidence

The day after the matter was reported to the police, arrangements were made to obtain a video statement from A.D. A voir dire was conducted. It was determined that the video recording described the acts complained of and was taped within a reasonable time after the alleged offence. It was established that A.D. adopted the statement. As the requisite conditions had been met, the video recording was admitted pursuant to the provisions of section 715.1(1) of the Criminal Code.

Accused’s Evidence

The accused testified. He indicated that he was now 39 years of age. He confirmed that J.B. and K.K. were best friends and spent a great deal of time together. He acknowledged that A.D. and J.B. had slept over in K.K.’s basement apartment on a number of occasions. When this happened, he indicated that he would hang out with them for a few hours and then go to bed upstairs by 10:00 p.m. He indicated that he would never go back down to K.K.’s unit once he had gone upstairs.

There are two doors which separate the two units, both of which have dead-bolt locks. He was able to unlock the upper door from the upper unit. On occasion, the accused indicated that the lower door would be locked, in which case it was necessary for him to knock on the door in order to gain entry. In her evidence, J.B. never mentioned and was not questioned about the lower door being locked. J.B. indicated that the accused “would just come in” to K.K.’s unit.

He testified that since about 2003, he has worn a pair of purple swim shorts with white flowers while relaxing at home and when going to bed.

He acknowledged that he was known to A.D. as “Uncle R.B..”

When cross-examined by the Crown, he acknowledged that he had the opportunity to go downstairs when J.B. and A.D. were there.

Assessment of Credibility

There’s no forensic evidence in this case nor are there any independent witnesses to the incidents. This is a classic “she said he said” case. Although A.D. and the accused agree on almost all of the peripheral facts, they tell a very different story when it comes to the offences that are before the court. In assessing the totality of the evidence that was presented, I am mindful of certain general principles. In R. v. Williams 2010 ONSC 184 at paras. 56‑58, Hill, J. had this to say:

[56] A determination of innocence or guilt in a criminal trial does not devolve into a credibility contest between witnesses. Such an approach would erode the presumption of innocence and assign burden of persuasion of proof beyond a reasonable doubt.

[57] Where credibility is a central issue in a trial, the Court must be alert to the relationship between the assessment of credibility and the prosecution’s ultimate burden to prove guilt beyond a reasonable doubt. Mere disbelief of an accused’s evidence does not satisfy the burden of persuasion upon the Crown. The trier of fact must be satisfied on the whole of the evidence that there exists no reasonable doubt as to the guilt of the accused.

[58] A trier of fact, in assessing credibility, considers a variety of factors including the plausibility of evidence having regard to experience and common sense and inherent probabilities/improbabilities, inconsistencies within a witness’ evidence, how a witness’ version of events fits with other evidence in the case, the weight of testimony pointing in a particular direction, motive to fabricate, witness demeanour, etc.

This is also a case that requires the application of the principles enunciated in R. v. W.(D.) 1991 93 (SCC), [1991] S.C.J. No. 26, 63 C.C.C. (3) 397. I have also reviewed and considered R. v. B.D., 2011 ONCA 51, a decision of the Ontario Court of Appeal but it is helpful in understanding how W.(D.) is to be applied.

I begin this stage of the analysis by giving consideration to the evidence that was offered by A.D. Despite her young age, A.D. had a remarkable ability to remember specific details about these incidents. She knew that they occurred at night in the bathroom in Auntie K.K.’s apartment. She knew that when they occurred, it was early morning and that Auntie K.K., M. and mommy were asleep. She knew that it was Uncle R.B. who instructed her to “come here now” or “let’s go now.” Once they were in the bathroom, she testified that Uncle R.B. pulled down his pants or shorts or underwear so she could see his privates. After that “Uncle R.B. peed in my mouth.” In her video statement, she indicated that it tasted “yucky.” She indicated that sometimes she was able to spit it out. On other occasions, she was instructed by Uncle R.B. to “swallow it, swallow it, swallow it.”

After the initial disclosure in May of 2010 when she was not believed by her mother, A.D. did not see the accused until August of 2010 when he delivered the wall unit and television. Immediately upon seeing him she ran across the room to stand behind her mother who described her as being scared. After the accused had left J.B.’s apartment, A.D. once again provided details of the sexual assaults.

At a time there was no police report and no ongoing investigation, A.D. spontaneously prepared a drawing that, it can be said is an anatomically correct depiction of a penis and testicles with something coming out of the penis. During her video statement, A.D. indicated that the drawing was of “Uncle R.B.’s privates”.

When asked where Uncle R.B.’s hands were when A.D. was recounting the assaults, she responded by placing her hands, one in front of the other, in front of her pubic area as if she were gripping an erect penis.

A.D.’s version of the incidents themselves never wavered at any point in time. The details and statements uttered by Uncle R.B. were the same at the time of the initial disclosure, the second disclosure, the further disclosure at M.B.’s residence, at the time of the video statement taken by the police, at the preliminary inquiry and at the trial itself.

The evidence offered by A.D. on collateral matters was entirely consi