CITATION: R. v. W.R., 2016 ONSC 1243
COURT FILE NO.: CR-15-258-0000
DATE: 20160219
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Her Majesty the Queen
Michael Martin, for the Crown
- and -
W.R.
Stephen Arnold, for the Accused
Accused
HEARD: February 16 & 17, 2016
REASONS FOR JUDGMENT
Conlan J.
I. Introduction
[1] This is yet another sad case where an adult in a position of trust and authority is charged with serious sexual misconduct allegedly committed against a child.
[2] The only issue is whether the accused did what the child alleges he did.
[3] W.R. was tried before me, without a jury, in Owen Sound on February 16 and 17, 2016. The Crown called one witness – the alleged victim. The Defence did not present any evidence at trial. The entire trial, but for closing arguments by counsel, was completed in one full day.
The Charges
[4] On February 17, 2016, on application by the Crown and unopposed by the Defence, amendments were granted to counts 1 through 3 on the Indictment to extend the alleged offence period from between August 1, 2013 and August 31, 2013 to between August 1, 2013 and September 14, 2013. Those amendments were made to reflect the evidence at trial of S.S., who testified that those three offences occurred during the latter part of the summer of 2013, before she returned to school sometime in September.
[5] The accused was in no way prejudiced by the said amendments. The Defence did not object in any way to the amendments being granted.
[6] W.R. is charged with two counts of sexual assault. The formal charges, as amended, read:
Count 1: Her Majesty the Queen presents that W.R., between the 1st day of August, 2013 and the 14th day of September, 2013, at the City of Owen Sound, Central West Region, did commit sexual assault on S.S., contrary to section 271 of the Criminal Code of Canada.
Count 4: And Further, that W.R., on or about the 1st day of January, 2014, at the City of Owen Sound, Central West Region, did commit a sexual assault on S.S., contrary to section 271 of the Criminal Code of Canada.
[7] It is for Crown counsel to prove beyond a reasonable doubt that the events alleged in fact occurred and that W.R. was the person involved in them. It is not for the accused to prove that these events never happened. If I have a reasonable doubt whether the events alleged ever took place, I must find W.R. not guilty.
[8] For me to find W.R. guilty of sexual assault, the prosecution must prove eachof these essential elements beyond a reasonable doubt:
i. that he intentionally applied force to S.S.; and
ii. that the force that he intentionally applied took place in circumstances of a
sexual nature.
[9] Consent and honest but mistaken belief in consent are not issues in this case, given the age of S.S.
[10] If the Crown has not satisfied me beyond a reasonable doubt of each of these essential elements, I must find W.R. not guilty of sexual assault.
[11] If the Crown has satisfied me beyond a reasonable doubt of each of these essential elements, I must find the accused guilty of sexual assault.
[12] W.R. is also charged with two counts of sexual interference. The formal charges, as amended, read:
Count 2: And Further, that W.R., between the 1st day of August, 2013 and the 14th day of September, 2013, at the City of Owen Sound, Central West Region, did for a sexual purpose, touch S.S., a person under the age of sixteen years, directly with a part of his body, to wit: his hands and penis, contrary to section 151 of the Criminal Code of Canada.
Count 5: And Further, that W.R., on or about the 1st day of January, 2014, at the City of Owen Sound, Central West Region, did for a sexual purpose, touch S.S., a person under the age of sixteen years, directly with a part of his body, to wit: his mouth, contrary to section 151 of the Criminal Code of Canada.
[13] The same instruction outlined above about whether the events alleged actually occurred applies equally to the sexual interference charges.
[14] For me to find W.R. guilty of sexual interference, Crown counsel must prove each of these essential elements beyond a reasonable doubt:
i. that S.S. was under sixteen years old at the time (that is not contested);
ii. that W.R. touched S.S.; and
iii. that the touching was for a sexual purpose.
[15] If I am notsatisfied beyond a reasonable doubt of allthese essential elements, I must find W.R. notguilty of sexual interference.
[16] If I am satisfied beyond a reasonable doubt of allthese essential elements, I must find the accused guiltyof sexual interference.
[17] W.R. is also charged with one count of invitation to sexual touching. The formal charge, as amended, reads:
COUNT 3 – And Further, that W.R., between the 1st day of August, 2013 and the 14th day of September, 2013, at the City of Owen Sound, Central West Region, did for a sexual purpose, incite S.S., a person under the age of sixteen years, to touch directly with a part of her body, to wit, her mouth, the body of W.R., contrary to section 152 of the Criminal Code of Canada.
[18] The same instruction outlined above regarding whether the events alleged actually occurred applies equally to the invitation to sexual touching charge.
[19] For me to find W.R. guilty of invitation to sexual touching, Crown counsel must prove each of these essential elements beyond a reasonable doubt:
i. that S.S. was under sixteen years old at the time (that is not contested);
ii. that the accused incited or invited S.S. to touch W.R.’s body; and
iii. that the touching that he incited or invited was for a sexual purpose.
[20] If I am not satisfied beyond a reasonable doubt of all these essential elements, I must find W.R. not guilty of invitation to sexual touching.
[21] If I am satisfied beyond a reasonable doubt of all these essential elements, I must find the accused guilty of invitation to sexual touching.
[22] Finally, W.R. is charged with one count of exposing his genitals. The formal charge reads:
COUNT 6 – And Further, that W.R., on or about the 1st day of January, 2014, at the City of Owen Sound, Central West Region, did for a sexual purpose, expose his genital organs to S.S., a person under the age of sixteen years, contrary to section 173(2) of the Criminal Code of Canada.
[23] The same instruction outlined above regarding whether the events alleged actually occurred applies equally to count 6.
[24] For me to find W.R. guilty of exposing his genitals, Crown counsel must prove each of these essential elements beyond a reasonable doubt:
i. that S.S. was under sixteen years old at the time (that is not contested);
ii. that W.R. exposed his genitals to S.S.; and
iii. that the said exposure was for a sexual purpose.
[25] If I am not satisfied beyond a reasonable doubt of all these essential elements, I must find W.R. not guilty of exposing his genitals.
[26] If I am satisfied beyond a reasonable doubt of all these essential elements, I must find the accused guilty of exposing his genitals.
The Presumption of Innocence
[27] There is no burden of proof on W.R. He is presumed to be innocent of every charge that he is facing. The burden of proof rests entirely with the prosecution. The Crown must prove, beyond a reasonable doubt, every essential element of each charge.
[28] Proof beyond a reasonable doubt is more than proof of probable or likely guilt but less than proof to an absolute certainty. In the end, I must be sure that W.R. committed the offence in question before finding him guilty of it.
Evidence of the Accused
[29] The accused did not testify at trial, nor did the Defence call any evidence. Of course, there is no obligation or even an expectation that the Defence do so. The result is simply that the allegations of the complainant stand on their own, and the verdicts will depend on my assessment of the credibility and reliability of her evidence.
II. The Issue and the Positions of the Prosecution and the Defence
[30] There is only one issue in this case: whether the alleged incidents of sexual misconduct complained about by S.S. ever occurred.
[31] The position of the Crown is that S.S. is a credible and reliable witness whose evidence, notwithstanding the Defence submissions about an alleged motive to fabricate and delayed reporting, ought to be accepted as proof of the charges facing W.R., beyond a reasonable doubt.
[32] The Defence makes three main submissions. First, the inconsistencies in the evidence of the complainant make her an incredible witness. Second, the implausibility of her allegations and her vague and generic evidence in support thereof make her an unreliable witness. Third and finally, her delayed reporting and her motive to fabricate make the evidence of S.S. too dangerous to support findings of guilt against the accused.
III. Analysis
The Background
[33] The complainant, S.S., is now 15 years old. The alleged offences occurred in the summer of 2013, when she was 12 years old, and on or about January 1, 2014, when she was 13 years of age.
[34] S.S.’s parents separated when she was very young. S.S. has always lived with her father in the Wallaceburg area. Her mother was, for many years, in a relationship with the accused. W.R. was, at all material times, in the position of step-father vis a vis the complainant.
[35] When S.S. first met and got to know W.R., the accused and S.S.’s mother were living in the Wallaceburg area.
[36] In or about 2012, the accused and S.S.’s mother moved to Owen Sound. The alleged offences occurred while S.S. was visiting her mother and the accused in Owen Sound for an extended period of time over the summer of 2013 and then again, more briefly, for New Year’s 2013/2014.
The Criminal Allegations
[37] According to the complainant, there were several incidents of sexual abuse committed against her by the accused at the home of W.R. and S.S.’s mother in Owen Sound.
[38] During the summer of 2013, S.S.’s mother was working at her own cleaning business. W.R. was unemployed.
[39] First, while visiting that home in the latter part of the summer of 2013, S.S. and her mother were lying on a mattress on the floor in the living room. They were watching television, the mother on her stomach and the complainant on her back. The accused was sitting on the nearby love seat. With his arm draped over the arm rest, his fingers lightly brushed S.S.’s breast for five or ten minutes. The complainant did not say anything at the time. She thought that it may have been accidental.
[40] Second, during the same extended summer visit, about a week or so after the first incident described above, S.S. was lying on her side on the couch in the living room. The accused was lying on his back on the nearby mattress on the floor. W.R. reached above and behind himself and, with the palm of his hand, rubbed the inner thigh of the complainant, from the area of her kneecap to just above her vagina, for five or ten minutes. Nothing was said by anyone during the incident. S.S.’s mother was not home at the time. In fact, nobody was except S.S., W.R. and perhaps the toddler boy, S.S.’s much younger half-brother (the son of the complainant’s mother and the accused).
[41] Third, during the same extended summer visit, S.S. was lying on her back on the mattress on the floor in the living room. The accused was sitting on the nearby love seat but moved on to the mattress. He pulled her shorts down and, for five or ten minutes, penetrated her vagina with his fingers. Nothing was said by anyone during the incident. S.S.’s mother was not home at the time. In fact, nobody was except S.S., W.R. and perhaps the toddler boy.
[42] Fourth, during the same extended summer visit, S.S. was sitting on the love seat in the living room. The accused was on the nearby mattress on the floor. W.R. pulled out his erect, circumcised penis and told the complainant to suck it. She did. He ejaculated inside her mouth. S.S.’s mother was not home at the time. In fact, nobody was except S.S., W.R. and perhaps the toddler boy.
[43] Fifth, during the same extended summer visit, while nobody else was home, W.R. started kissing S.S. on the mouth in the upstairs hallway. She was pressed against the wall. He then brought her in to S.S.’s mother’s bedroom and undressed her completely. He pulled out his erect penis. As she was standing up and facing the accused, he put his penis in between her thighs and started “humping” her. His penis never entered her vagina. He did not ejaculate.
[44] Sixth and finally, while visiting the Owen Sound home for New Year’s 2013/2014, after midnight on December 31, S.S. fell asleep in the bedroom that she was occupying during that visit. She awoke in bed from the accused rubbing her stomach. He slid down her shorts and gave her oral sex (his mouth on her vagina). After an interruption while she went to the bathroom, he exposed his erect penis to her. There were other persons inside the house at the time, however, this allegedly occurred in the middle of the night, sometime between 1:00 and 3:00 a.m.
[45] According to the complainant, there were other incidents of sexual touching as well, such as the accused putting his mouth on her breasts.
[46] On occasion, W.R. would say to S.S. that he loved her and “don’t tell anyone”.
[47] S.S. first disclosed the alleged sexual abuse to a friend, then to her father, and then ultimately (in May 2015) to the police.
An Assessment of the Credibility and Reliability of the Complainant
The Law
[48] An assessment of the credibility of any witness cannot be based on demeanour alone. Too often, demeanour is used as a crutch to overlook inconsistencies in a witness’ evidence. R. v. Sandhu, [2012] B.C.J. No. 2575 (B.C.C.A.), at paragraphs 28 and 31.
[49] After all, material inconsistencies or exaggerations in any witness’ evidence, rather than being seen as badges of credibility, may demonstrate a carelessness with the truth that ought to give the trier of fact some concern about that witness’ credibility. R. v. A.M., 2014 ONCA 769, Court of Appeal for Ontario, at paragraphs 12, 13 and 26.
[50] The evidence of children ought to be subjected to the same standard of proof as the evidence of adults in criminal cases. At the same time, however, we must take a common sense approach to the evidence of child witnesses. The presence of inconsistencies, especially on peripheral matters, must be considered in the context of the age of the witness at the time of the alleged events and the age of the witness at the time of testifying. R. v. W.(R.), 1992 CanLII 56 (SCC), [1992] S.C.J. No. 56 (S.C.C.), at paragraphs 25 and 26.
[51] Inconsistencies on minor matters or matters of detail are normal. They do not generally affect the credibility of the witness, particularly a child witness. R. v. M.G., 1994 CanLII 8733 (ON CA), [1994] O.J. No. 2086 (C.A.), at paragraph 23.
[52] Put another way, the standard of the “reasonable adult” is not necessarily the appropriate measure of assessing the credibility of a child. R. v. H.C., 2009 ONCA 56, [2009] O.J. No. 214 (C.A.), at paragraph 42.
Inconsistencies in the Evidence of the Complainant
[53] There were some inconsistencies in the evidence of S.S. that came to light during her cross-examination at trial.
[54] First, in her police statement given in May 2015, she described the first incident as the one where the accused rubbed her thigh. At trial, she testified that the said incident took place after the incident where W.R. brushed her breast while they and S.S.’s mother were watching television in the living room.
[55] S.S. readily acknowledged that inconsistency when confronted with it in cross-examination at trial, and she confirmed that the first incident was the one where the accused brushed her breast.
[56] In my view, the said inconsistency does not adversely affect the credibility of S.S. It is explained by the fact that the complainant did not perceive the brushing of the breast incident as intentional on the part of the accused, thus, there is less reason to think that she would clearly remember where that incident fell in to the sequence of events in the summer of 2013. Further, the matter is immaterial. I see this issue of timing as the precise type of relatively minor, peripheral or inconsequential matter spoken about by the Courts in the W.(R.), M.G. and H.C., supra, decisions referred to above. Finally, I was impressed with how S.S. handled the inconsistency when confronted with it at trial. She did not try to square the circle. She admitted her mistake and clarified what her evidence is.
[57] Second, in her police statement, S.S. stated that, during the brushing of her breast incident, the accused said something to the effect that touching her boobs was the same thing as seeing them. In direct examination at trial, the complainant had testified that nothing was said by anyone during that incident.
[58] S.S. readily acknowledged that inconsistency when confronted with it in cross-examination at trial, and she adopted as being true what she had told the police in terms of what was said by W.R.
[59] My opinion is that the said inconsistency does not adversely affect the credibility of the complainant. It is immaterial. It is a relatively minor detail that accompanied an otherwise accidental occurrence, in the eyes of S.S. at the time. And, again, the complainant dealt with the inconsistency when confronted with it at trial in the manner that we would expect of a straight-forward witness.
[60] Third, in her police statement, S.S. gave the impression that, during the brushing of her breast incident, the accused had actually pulled down the straps of her top. In direct examination at trial, she did not mention that detail.
[61] S.S. readily acknowledged that apparent inconsistency when confronted with it in cross-examination at trial, and she adopted as being true what she had told the police in terms of the accused having pulled down the straps of her top.
[62] I say “apparent inconsistency”, however, because it is not clear to me that S.S. necessarily admitted at trial that the pulling down of the straps of her top occurred during the same incident as the brushing of her breast. In fact, in re-examination at trial, she testified that the two things were not part of the same incident.
[63] Given the wording in the passage of the police statement, and given the evidence of the complainant in re-examination at trial, which evidence I accept, and notwithstanding the fact that S.S. did not disagree with Defence counsel’s suggestion that she had said two different things to the police and at trial, I am not satisfied that S.S. was actually inconsistent on whether the accused pulled down the straps of her top during the same incident that he brushed her breast.
[64] Fourth, at the preliminary inquiry, S.S. testified that the brushing of her breast incident occurred “a little while after lunch”. In cross-examination at trial, she testified that it occurred around lunch time.
[65] When confronted with that in cross-examination at trial, S.S. explained that the two expressions are, for her, basically the same.
[66] This is clearly a minor, immaterial matter that would not generally be relevant to an assessment of the credibility of an adult witness, never mind a child. If there is an inconsistency, I place no weight on it.
[67] Fifth, at the preliminary inquiry, S.S. testified that her toddler half-brother usually went to bed in the afternoon. At trial, she testified that the young boy generally went to bed at about 7:00 p.m.
[68] When confronted with that in cross-examination at trial, S.S. explained that the two expressions are, for her, not materially different. At the time of the preliminary inquiry, she thought that the “afternoon” could extend to 8:00 p.m. or so. Besides, she clarified at trial that the young boy would sometimes nap during the day.
[69] Like the lunch time issue, this is clearly a minor, immaterial matter that would not generally be relevant to an assessment of the credibility of an adult witness, never mind a child. If there is an inconsistency that is not explained by the fact that the young boy would sometimes go to bed both in the afternoon (for a nap) and in the evening, I place no weight on it.
[70] Sixth, at the preliminary inquiry, S.S. testified that she was not wearing any underwear during the incident where the accused put his fingers inside her vagina. In cross-examination at trial, she testified that she was wearing underwear.
[71] S.S. readily acknowledged that inconsistency when confronted with it at trial, and she adopted as being true what she had stated at the preliminary inquiry (she was not wearing underwear). She explained that it was hard for her to remember that detail because she sometimes wore underwear and sometimes did not.
[72] In my view, this contradiction does not adversely affect the credibility of S.S. It is not something that one would expect an honest witness to likely not be mistaken about. The mistake is understandable given that the complainant did not always wear underwear, which evidence I accept. Again, it is important to note the reaction of the witness when confronted with the inconsistency. She admitted her mistake without hesitation and clarified her evidence for the Court.
[73] Seventh, S.S. admitted in cross-examination at trial that she did not tell the police in May 2015 about the “humping” incident. She explained at trial that her mind was somewhat unclear then, however, she now remembers the said incident clearly.
[74] More so than any other inconsistency discussed thus far in these Reasons, this omission is material. I will return to this issue below.
[75] Finally, S.S. testified at trial that she gave the accused oral sex on one occasion, while she told the police in her statement that there were other times as well.
[76] S.S. readily acknowledged that inconsistency when confronted with it at trial, and she confirmed that there was just one occasion where she performed fellatio on W.R.
[77] This inconsistency is the most material of those discussed herein.
[78] I have considered carefully all of the alleged inconsistencies that, according to the Defence, plague the evidence of S.S., but particularly I have thought long and hard about the two material items regarding the “humping” incident and the frequency of the oral sex. Neither one, nor both of them combined, nor both of them along with the other immaterial matters discussed above, cause me to have any concerns about the credibility of the complainant.
[79] The “humping” incident, though serious, was neither the first nor the last incident of sexual abuse perpetrated against S.S. Nor was it the most serious of all of the incidents, given the lack of any ejaculation on the part of W.R. and the lack of any penetration of the complainant’s vagina. In addition, the incident was one among numerous others that occurred over a relatively short period of time – a few weeks in the summer of 2013. Finally, the police interview in May 2015 was not that lengthy, as evidenced from the transcript that was put to the complainant during her cross-examination at trial. Given all of those facts, it is not surprising to me that the young girl innocently forgot about and, thus, omitted the “humping” incident during her interview with the police.
[80] I am prepared to accept the Defence argument that the frequency of oral sex issue cannot be readily explained. But I am not prepared to go so far as to accept the argument by the Defence that S.S. deliberately exaggerated when she told the police officer in May 2015 that there were other times that she performed fellatio on the accused.
[81] Exaggerations will generally go against the credibility of a witness, even a child witness, especially on something material. Here, however, I find it more likely that S.S. made a mistake, albeit an unequivocal and material one. That mistake does not displace my fervent view that the complainant is telling the truth about what happened to her at the hands of W.R.
Conclusions Regarding the Credibility and Reliability of the Complainant
[82] Generally speaking, I found S.S. to be a credible witness. Although still a child, her evidence suffers from just two material inconsistencies, dealt with above. She was responsive to the questions asked of her at trial by both lawyers. She was polite and respectful with the lawyers and with the Court. She was quick, even eager, to admit her mistakes. She did not embellish her evidence, although it would have been easy to do so. For example, she was candid in saying that there was no vaginal penetration or ejaculation during the “humping” incident. She readily admitted her shortcomings, such as difficulties with dates and times.
[83] She admitted her past transgressions, even if very dated and only marginally relevant, such as having set some fires and watched some pornography years prior to the summer of 2013. These are just some of the hallmarks of a straight-forward and honest witness.
[84] In terms of reliability, I disagree with the Defence that S.S. was vague and/or generic in her evidence. Her descriptions of the various incidents were particularized including, for example, where they occurred, what exactly the accused did and with what part or parts of his body, whether he ejaculated, and the fact that his penis was circumcised, among other details.
[85] I also disagree with the Defence that some of the evidence of S.S. is implausible. For example, looking at her diagram of the living room (Exhibit 1), I see nothing strange or unrealistic about her evidence that the accused leaned forward a little to reach over the arm rest of the love seat when he brushed the breast of the complainant. Nor do I see anything implausible about her account that W.R., while lying on his back on the mattress, reached behind and over his head to rub her thigh. In fact, I see that kind of playful maneuver as the ideal modus operandi of someone who wants to cultivate a sexual relationship with a child.
[86] In addition, I disagree with the Defence that S.S.’s evidence has been influenced by her mother. There is nil evidence before me to support that purely speculative assertion.
[87] The same goes for the Defence argument that the complainant was somehow “sexualized” through her watching of pornography. I am not even sure what that submission is designed to achieve. If the purpose of it is to suggest that perhaps the child is mistaken and confused and making up allegations against W.R. which are actually events that she watched on some video, then I reject that outright. That suggestion was never put to the complainant in cross-examination at trial. And I know nothing about the pornography that the girl watched years before the summer of 2013 in order to gauge whether it is in any way connected to the incidents described by S.S. involving the accused.
[88] Further, I disagree with the Defence that S.S. admitted in cross-examination at trial that her headache and sickness while testifying made her evidence questionable (my word). I have reviewed my notes and the DRD recording. There was no such admission made by the complainant. She acknowledged only that her headache and sickness may have contributed to her mistakes about the incident where W.R. brushed her breast, which incident was not viewed as intentional by S.S. in any event.
[89] I also reject the Defence submission that nobody would do these things to a young girl with her little half-brother and/or her mother inside the house. The young boy was no worry. He was a toddler, at most three or four years old. The mother was rarely around. When she was, she was watching television during the fairly innocuous brushing of the breast incident or asleep during the New Year’s incident.
[90] In addition, I think little of the Defence submission that S.S. ought to be disbelieved because she re-attended in Owen Sound in December 2013, after the summer events had already occurred. I accept the evidence of the complainant that she had at least two good reasons for doing so. First, she wanted to see her mother. They had a close relationship. Second, she wanted to appease the accused or, at a minimum, not cause him to think that she might tell someone what was going on, contrary to his explicit direction to her.
[91] Finally, whether the Defence submits that it is relevant to credibility or reliability or both, this business about alleged prior discreditable conduct on the part of S.S. is, with respect, unmeritorious. She has lied to her mother in the past to get out of trouble. If she had denied that at trial, I would have had some cause for concern. She has tried cigarettes and has been around marihuana. She was involved in something to do with a mischief by fire. She watched some pornography. All of these things were admitted by the complainant, notwithstanding that her denials of them very likely could not have been discredited by the Defence. These things are dated. Although they may prove that S.S. is not quite Laura on Little House on the Prairie, they hardly rise anywhere close to making her unworthy of belief or an unsavoury witness.
Motive to Fabricate
[92] I now turn to deal with the Defence argument about the complainant’s alleged motive to fabricate.
[93] I find that the argument is weak. I accept the evidence of S.S. in re-examination at trial that the thoughts that she had about her younger half-brother and wanting him to stay with her mother and not with W.R., and her related admissions, all of which form the building blocks of the Defence argument about motive to fabricate, came to S.S. only after she disclosed the sexual abuse to the police. On that basis alone, the Defence argument holds no water.
[94] In addition, however, the argument is just not realistic. There is no reason to conclude that the complainant concocted these allegations to keep her younger half-brother away from the accused because I accept S.S.’s evidence at trial that she had absolutely no reason to believe that W.R. had done anything or planned to do anything, post-separation from S.S.’s mother, to try to see the young boy. Given that evidence, the motive to fabricate argument just does not make common sense.
Delayed Reporting
[95] Let me now comment on the Defence argument about the complainant’s delayed reporting of the alleged sexual abuse.
[96] It is important to remember the following passage from the decision of the Supreme Court of Canada, per the majority opinion authored by Justice Major, at paragraph 65 of its decision in R. v. D.D., 2000 SCC 43, [2000] S.C.J. No. 44.
65 A trial judge should recognize and so instruct a jury that there is no inviolable rule on 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. 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 delay in disclosure, standing alone, will never give rise to an adverse inference against the credibility of the complainant.
[97] I am not concerned about the complainant’s delayed reporting. She was fearful of the accused. She knew about his anger problems, his criminal record and his past experience in jail. She might not have acted like we would expect a young sexual assault victim to behave, however, that would assume that there is an expected way to behave. There is not.
[98] This is not a case where the intervening period between the offences and the reporting included something that might give the Court concern about the veracity of the allegations, such as undue pressure or influence on the complainant by a third party, or memory enhancement therapy, as examples.
[99] I am convinced of the truth of S.S.’s allegations. The delayed reporting does not shake my confidence in her evidence.
IV. Conclusion
[100] There is no argument by the Defence that, if the evidence of S.S. is accepted by the Court, one or more of the charges is not proven beyond a reasonable doubt. In other words, this is not a case where there is any argument that the incidents as described by S.S. do not, even if believed by the Court, prove one or more essential element of one or more charge on the Indictment, as amended.
[101] I accept the evidence of the complainant. That evidence is credible and reliable. I find as facts that the accused brushed her breast, rubbed her inner thigh, digitally penetrated her vagina, invited her to suck his penis and then ejaculated in her mouth, humped her between the thighs with his bare penis, gave her oral sex (his mouth on her vagina), exposed his bare, erect penis to her and put his mouth on her breasts.
[102] In doing so, the accused sexually assaulted S.S. in the summer of 2013 and on January 1, 2014 (counts 1 and 4, as amended). Further, in the summer of 2013 and on January 1, 2014, he sexually touched and interfered with her with his hands, penis and mouth (counts 2 and 5, as amended). In addition, in the summer of 2013, he invited her to touch his penis with her mouth (count 3, as amended). Finally, he exposed his genitals to her on January 1, 2014 (count 6).
[103] The Crown has proven, beyond a reasonable doubt, every essential element of every offence facing W.R.
[104] I find the accused guilty of counts 1, 2, 3, 4, 5 and 6, as amended.
[105] This was a difficult case for the Defence. Mr. Arnold did a commendable job. I thank both counsel for their assistance.
Conlan J.
Released: February 19, 2016
CITATION: R. v. W.R., 2016 ONSC 1243
COURT FILE NO.: CR-15-258-0000
DATE: 20160219
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Her Majesty the Queen
- and -
W.R.
Accused
REASONS FOR JUDGMENT
Conlan J.
Released: February 19, 2016