R. v. W.T., 2016 ONSC 3943

COURT FILE NO.: CRIMNJ(P) 522/13

DATE: 20160620

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

C. Vanden Broek, for the Crown

• and -

W.T.

M. Mattis, for the Defence

HEARD: March 29-31 and May 11-12, 2016 at Brampton

REASONS FOR JUDGMENT

RESTRICTION ON PUBLICATION

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complainant and any information that could disclose such identity, including the names of other Crown witnesses, shall not be published in any document or broadcast or transmitted in any way.

Hill J.

INTRODUCTION

[1] The accused pled not guilty to unlawfully touching, for a sexual purpose, a person under the age of sixteen years, directly with a part of his body contrary to s. 151 of the Criminal Code. The substance of the allegation is that the accused sexually assaulted his 13-year-old niece in June 2012.

[2] The prosecution called five witnesses – the complainant (M.P.), E.J., J.J., J.M. and D.A.. The accused and his wife testified on behalf of the defence.

[3] At trial, four years later, the 17-year-old complainant (D.O.B.: […], 1998) confirmed the truth of her June 14, 2012 videotaped statement to the police admitted in evidence pursuant to s. 715.1 of the Code. M.P. informed the court that her memory of events was better when she spoke to the police in 2012 compared to the time of giving testimony in 2016.

FACTUAL BACKGROUND

The Residential Setting

[4] In June of 2012, M.P. was living in her grandparents’ 2-floor apartment home (J.J. (also known as M.P.) and F.J.). As well, her Aunt L. (L.) resided there as did a cousin, N.. L.’s fiancé resided in Scarborough. M.P.’s mother, A., resided in separate accommodation in the same housing complex.

[5] There were three bedrooms on the second floor – M.P.’s grandparents’ room at the end of the hall, Aunt L.’s room and the bedroom shared by the complainant with N.. N. was away most weekends.

[6] When M.P.’s Aunt A.T., the accused’s wife, was pregnant she came to stay taking over the bedroom occupied by M.P. and N. while they moved to share J.J. and F.J.’ bedroom to sleep on a couch/bed.

[7] The accused testified that in late January 2012 he spoke to J.J. about A.T. coming to say with her. As a truck driver, he was away at times and this would ensure A.T. was not alone when she went into labour. J.J. agreed although, in his view, he had never been accepted by her from the time he began to date A.T..

[8] A.T. testified that she was upset that the accused made this arrangement without discussing it with her because she had not been getting along with her mother. The witness informed the court that she moved in with her mother and step-father about two weeks before T’s […] birth.

[9] The accused testified that after T.’s birth, he continued to reside at his and A.T.’s apartment coming to stay at J.J.s once or twice a week which was permitted by his mother-in-law despite the fact that the birth did not eliminate her animosity toward him.

[10] Asked to describe his relationship with M.P., the accused testified that he had known her since she was born. He and A.T. were providers for the complainant. He spent time with M.P. They did “all” for her. Their relationship was “fine” and “very good”, and there was never a problem. The accused considered M.P. to be good and truthful.

[11] A.T. testified that she had known M.P. since she was born and would, through the years, see her on visits. They had a good relationship. After T’s birth, when L. was at her part-time job or at her fiancé’s home, and A.T.’s parents were away at work, she was the supervising adult in the residence.

[12] M.P. testified that there was not a lot of room to manoeuvre in the “quite small” bedroom she and N. gave up to A.T. and T. with “barely space” to move around “because everything was so tight”. The witness described the contents of the room as a bed, dresser, a TV, a chair, bags on the floor and a large, oval bassinet for T.. M.P. estimated that her grandmother’s room was five to six seconds’ walk down the hall.

[13] In cross-examination, it was suggested to M.P. that she was “somewhat disappointed” when she had to give up her bedroom to A.T. and the accused:

Q. And now when you – when you are told by your grandmother that A.T. was going to take your room, you were somewhat disappointed, right?

A. Not really because I – I understood why she was going to take our room.

Q. And when you – when you stay in your – your room with N.…

A. Yeah.

Q. …then at that time you could choose to go to bed later if you want to once you close your door, right?

A. We could but we didn’t really do that. We just went to bed at – at, like, 9:30.

Q. All right. So when A.T. came your understanding [was] that A.T. was going to be there for a short while, have the baby and then leave, right?

A. Yeah, that was my understanding, but I do remember that she – she had said she might – she might stay, like, a full week or two when the baby was born.

Q. All right. So the baby was born on the […], 2012, right?

A. I – I don’t remember. I guess so.

Q. Yeah. And then – and then yourself and – so after about a month when – at the ending of March when you realized that A.T. is still there and you are still in grandma room, I take it that you were not pleased with that?

A. I was fine with it because she’s my aunt and we would go for walks when we came back from school, N. and I. So it didn’t really bother me.

Q. All right. And now you also understand later that at the end of April now, we’re – I asked you about March just now, at the end of the April A.T. was still there, right, and how did that make you feel?

A. It didn’t really feel any way.

Q. And didn’t you want to go back into – into your room?

A. No, I didn’t really care because I had a new cousin and I was with my grandma and I had a bed to sleep on in my grandma’s room, so I wasn’t really bothered by it.

[14] M.P. testified that the move to her grandparents’ room did not affect when she went to bed which was around 9:00-9:30 p.m. on weekdays. In cross-examination, M.P. was asked whether sleeping in her grandparents’ room curtailed her freedom:

Q. And now when you’re in your grandma room, you – you – you can’t talk on your – on your phone during the week at night as you would like, right?

A. Not really.

Q. And when you are in your grandma room you – yourself and N. don’t have the freedom that you would have had if you were in your room, right?

A. No.

Q. And I’m going to suggest to you also that D.A. and – and yourself – no, sorry, I’m going to suggest to you that you were getting somewhat uncomfortable because W.T. and your aunt had taken over your room for too long?

A. No, I didn’t really care about that.

[15] D.A., M.P.’s cousin, testified that while M.P. never expressed to him that she was less comfortable sleeping in her grandparents’ bedroom, she did say, perhaps in May, that she was looking forward to getting her room back when A.T. moved out. She was anxious for A.T. and T. to go as she was excited about the new bed which had been installed in that bedroom.

Events of June 9, 2012

[16] As a 13-year-old, in her videotaped statement, M.P. provided this account of the circumstances of the sexual assault:

(1) on June 9, 2012, M.P. returned to the house with members of her family after shopping

(2) between 7:00 and 8:00 p.m., M.P. had a shower before going downstairs to get something to eat

(3) after dinner, M.P. went to J.J.’s bedroom to watch TV – she was on her period

(4) the accused came to that room to ask if she wanted to watch the basketball game with him

(5) M.P. liked her uncle – it was normal to hang out with him in that bedroom

(6) she went with the accused to her former bedroom where T. was asleep on the bed – it was “probably like 8:40” and the lights were off – everyone else was downstairs

(7) at a point, about 20 minutes after being in the bedroom, when they were laughing and joking, the accused touched her belly and they joked about each other’s body fat

(8) M.P. believed that before this date the accused “kept looking at her butt”

(9) she was sitting on the bed when the accused then slid his hand lower into her pants and began “playing” in her vagina, putting a finger in and moving it in and out for 40 seconds at most as she tried to pull away – each time he would push or pull her back down

(10) the accused slid her to a corner of the bed before stepping to the door to see if someone was there

(11) when the accused came back, he asked if she had ever tried sex before to which she said “no”

(12) the accused then pulled her feet into the corner, did something with his shorts (“there’s like a hole somewhere in his pants” ), pulled her shorts aside, and penetrated her vagina with his penis “pushing it in and out” – M.P. heard a “popping sound” from her vagina within the first few seconds

(13) the intercourse “was hurting” – it lasted less than a minute – she had a sore throat and “so it was kind of hard for me to scream”

(14) M.P. did not believe that the accused ejaculated (“’cause I didn’t feel anything, like liquidy go anywhere”)

(15) after the accused pulled his penis out, he ran to the bathroom – she thought it was because he was about “to sperm out”

(16) as M.P. walked towards downstairs, she saw, through the open bathroom door, the accused with a tissue in his hand – she didn’t really look but thought he was putting it on his penis

(17) the accused kept saying “don’t tell anyone”

(18) subsequently, M.P. changed her pad – she wrapped her used pad and put it in the washroom garbage – that garbage subsequently went down the apartment garbage chute

(19) M.P. washed her clothes – describing her shorts: “it was like kind of wet where the crotch area is and there was like this odour on it”.

[17] At trial, in recalling the evening of the day of the alleged sexual assault, M.P. testified that during the evening of June 9, her grandparents were home, her Aunt A.T., T., E.J. (her grandfather’s sister) and perhaps her mother as well Aunt L..

[18] At trial, the complainant recalled that on Saturday, June 9, 2012, she was wearing black shorts to her knees and loose on her legs, and underwear described as “big underwear because I was on my period”.

[19] The accused testified that on June 9 he was at J.J.’s home by 6:00 p.m. After changing and washing, he took T. from A.T. and went upstairs for one to two hours to hang out. T. fell asleep on the bed. While to his recall no one came to the room, A.T. testified that she went upstairs more than once and observed only her husband and T. in the bedroom. To her recall, M.P. was hanging around downstairs.

[20] The accused testified that when he went downstairs to eat he left T. in the bedroom sleeping. During dinner, A.T. went to check on the baby from time to time.

[21] A.T. testified that she was up and down the stairs in the course of the evening. At no point during the evening did she meet M.P. on the stairs and ask her to take T. upstairs. On the witness’ testimony, the house was full and chaotic.

[22] After the family ate dinner, according to M.P.’s police statement, the accused went upstairs to watch a basketball game. When M.P. refreshed her memory from this statement at trial, and adopted its accuracy, she changed her trial testimony in which she had said she did not see her uncle go upstairs.

[23] J.J. informed the court that on Saturday June 9, 2012, she was busy in the kitchen cooking and watching basketball in the livingroom with her husband when M.P. was upstairs. The witness loved the accused and trusted him and had no concerns that anything would go wrong that evening.

[24] J.J. testified that the accused ate the food she put out. When T. fell asleep, the accused took him upstairs.

[25] In her videotaped statement, M.P. stated that when she was at some point part way down the stairs, she met her Aunt A.T. coming up with T.. Her aunt instructed her to give T. to the accused. She took T. from her aunt and went to the bedroom where the accused was sleeping. She gave the baby to him and returned downstairs to get some water.

[26] At trial, M.P. was unable to fully recall whether she went straight to her grandmother’s room when she came back upstairs. The door of her former bedroom was open where the accused was with T..

[27] The parties agreed that at 7:42 p.m. on June 9, 2012 M.P. had a phonecall with her cousin, D.A., lasting about 33 minutes. The witness agreed that she may not have included this fact in her videotaped statement to the police – it was “really stressful beginning to talk about what had happened” – she was being asked “so many questions” by the police – so it likely slipped her mind. At trial, M.P. was unable to recollect the call or its contents. The complainant agreed that the length of any such call was unusual compared to her normal communications with D.A.. The witness rejected the suggestion in cross-examination that the call was about executing a plan to falsely accuse her uncle of sexual assault.

[28] D.A. testified that he is M.P.’s cousin – “an older cousin that she looks up to” – they were “very close”. He considered himself someone she could talk to. D.A. recalled buying M.P. birthday and graduation gifts. This did not include a necklace. He presented the gifts to M.P.’s mother for her to give to his cousin. D.A. testified that he was also close to L. in whom he confided things he did not discuss with others.

[29] From time to time, he would spend overnight at J.J.’s home on a weekday staying in the main floor guest room. He would come on a day off from work arriving in the afternoon. If J.J. and/or F.J. were not there, L. or A.T. would be home. In the witness’ words, “I was raised that if the parents aren’t home, you shouldn’t be at someone’s house”. At the house, he would watch movies with N. and M.P.

[30] According to D.A.’s evidence, prior to June 9, 2012, he and M.P. spoke on the phone “once in a while”, perhaps once a week. M.P. or N. might call to see if he was coming over on a day off.

[31] D.A., with the assistance of screen shots of the call log for his cellphone, identified a 7:42 p.m. call with M.P. on June 9. At the time of the call, he was on a break at work. In this call, M.P. explained that her father had failed to show up to pick her up for the weekend. He cancelled at the last minute. She was disappointed and venting that it seemed every time he made plans with her, he did not come through. D.A. testified that this was an unusually long call and later in the day than when he usually spoke with M.P. – their calls were generally no longer than five minutes.

[32] M.P. testified that the accused came and knocked on the open door of her grandmother’s room asking if she wanted to come and watch the game with him. She replied, “sure”. She then went with her uncle to the bedroom where T. was on the bed.

[33] The bedroom door, according to M.P., could fully close “’cause everything is usually behind the door”.

[34] The accused testified that when he went upstairs after dinner, T. was tossing and turning on the bed. He began to watch basketball on the bedroom TV. He was wearing black soccer shorts and a white short-sleeved T-shirt. The accused described the bedroom as crowded with lots of things everywhere including shopping bags on the floor. He testified that the door is always open – it could not be closed because of the location of the bassinet.

[35] A.T. testified that she had to enter the congested bedroom sideways as the bassinet was at the bottom of the bed. The room’s door could not be shut – with a hook on the door for hanging clothes, there was a two-to-three inch gap.

[36] The accused testified that as he was watching TV he became aware of M.P. in the hallway. She inquired as to what he was watching. When he replied “basketball”, she asked who was playing. He said Cleveland and Lebron James and asked if she wanted to watch. She came in and sat on the edge of the bed as he lay on the bed with T. on the upper part of the bed. It was not unusual for them to watch sports together.

[37] According to the accused, from having turned or moved, his shirt had moved upwards exposing his stomach. At a point, M.P. poked his bare stomach saying, “Uncle you’re getting fat”. He then poked her over her clothes and she laughed. They were joking with one another.

[38] As M.P. and the accused were on the bed, with the bedroom door “slightly open”, each on one side of T., to M.P.’s recall, they touched one another in a joking manner. In her trial evidence, M.P. recalled her uncle jokingly saying that her belly fat was more than his because he was fit. She found it kind of funny and was alright with this as she had known the accused “all [her] life”.

[39] According to M.P., at a point the accused pulled her to a corner of the bed as the witness depicted on Exhibit #2. This was at the opposite end of the bed from where the baby was situated.

[40] The complainant testified that things changed when the accused “started going lower and lower”. She wondered what was happening – why was he going lower? M.P. testified that the accused went lower until he slid his hand into her pants and then a finger into her vagina. She did not think to say that she was on her period. As this was happening, she was scared and shocked and “pulling back and back” sliding back on the bed toward the wall. It would be very hard to manoeuvre out of the bedroom. The accused said something like, “it’s fine”. M.P. testified that her uncle then got off the bed, manoeuvring down. He held her in place with a hand on her stomach as he undid a button on his sweatpants. To the witness’ recall, at some point, the accused stepped to the door appearing “to go check to see” if anyone was in the hallway.

[41] M.P. testified that the accused, whom she described as “a very muscular guy”, began pulling her down and sliding or pushing her pants up and to the side. The waistband of her shorts came down a little as well. The accused’s hand went up the right-leg side of her clothing.

[42] M.P. testified that she cannot fully remember why she did not scream – she wanted to yell or scream but had a sore throat “and it was painful”. The complainant added that she also did not fully know what was happening. Her uncle also applied pressure on her stomach impeding her ability to scream.

[43] M.P. testified that while she did not clearly see the accused’s penis, and despite attempting to shift her legs from being opened, he put it in her vagina without saying anything and began to move back and forth. Intercourse lasted for about 40 seconds before the accused pulled out and went to the bathroom across the hall. She then “fix[ed]” her clothes.

[44] On the accused’s evidence, he watched basketball with M.P. for 15 to 20 minutes before she left the room. He did not see where she went. He stayed with T. who fell asleep. According to the accused, the complainant then returned to ask what the score was. She came back in the room for only five or six minutes and sat on the bed. The bedroom door was open. While the lights were off in the bedroom, the hallway lights were on.

[45] A.T. testified that at a point she went upstairs to make up some formula in order for the accused to give T. his bottle so he could go to sleep. She gave her husband the bottle. She had no recall whether M.P. was then in the bedroom. About 20 minutes later, when she returned to the bedroom, the accused and T. were there. M.P. was not. To the witness’ recall, after a further 20 minutes, the accused came downstairs to say he was leaving.

[46] At trial, the accused denied that he ever sat close to M.P. on the bed. He denied pulling M.P. to a corner of the bed, checking the hallway, pushing her shorts up, digitally penetrating her vagina or forcing sexual intercourse upon his niece.

[47] E.J., F.J.’ sister and a resident of New York, visited her brother’s home in June 2012 arriving on Thursday, June 7. She stayed with L. in her bedroom until the following Wednesday. She had not previously met M.P.

[48] On Saturday, June 9, those present ate dinner. L. wanted to watch a movie. The witness testified that because she and M.P. agreed to watch a basketball game, she ended up dividing her time between watching both.

[49] The accused recalled E.J. poking her head into the bedroom, and asking, “Everything okay”. He has no recall of responding although M.P. may have. When this occurred, he was standing at the foot of the bed close to the dresser and bassinet. He was getting ready to leave and go out with friends. On the accused’s evidence, E.J. walked away, M.P. left the bedroom, and he went to the washroom to urinate before grabbing his wallet and stuff, kissing T. and going downstairs to tell A.T. he was leaving.

[50] At trial, M.P. testified that while she was on the bed watching the basketball game with the accused, and only moments before she was assaulted, E.J. opened the partially-open door further and said, “[M.P.], you okay?” to which she replied, “I’m fine, I’m just watching the game with W.T.”. E.J. then left to go downstairs.

[51] According to E.J., when she went upstairs to locate M.P. to watch the game with her in J.J.’s bedroom, she found her in a bedroom with the accused. In her in-chief evidence, the witness stated that she peeked into the bedroom with its door “ajar” calling M.P.’s name. She saw T. on the bed under a blanket and the accused and M.P. seated beside one another on the bed with M.P. to the left of the accused. The room was not well lit. She went into the room. The accused was “shirtless, bare back” and wearing shorts. According to the witness, they were sitting “very close” – “he was sitting really, really close” with his arm over the complainant’s shoulder “almost overshadowing” M.P. to the point that the witness could only see the top of M.P.’s head.

[52] E.J. testified that when she asked if the baby was asleep, he replied, “Yes”. It was an “awkward moment” as the accused moved – a “little shift” away from M.P.

[53] E.J., a trained teacher, who has worked with at-risk youths, testified that she immediately went downstairs to speak to J.J. because she was uncomfortable with “[t]he closeness, the proximity” of the two – “it was just too close”. She reported to her sister-in-law that it was not proper for a shirtless male to be “so close to the child”. The witness recalled speaking with J.J. for about 15 minutes during which she was told that the accused was M.P.’s godfather and knew the child so not too much should be read into her observations.

[54] E.J. testified that, with her mind not totally satisfied, she went back upstairs to look again into the bedroom. When she did so, she found the bedroom door closed. She returned to speak to J.J. to again report that she was not comfortable and to suggest she call M.P. out. After speaking to J.J., she “let it go” not wanting to judge the accused as a person she did not know.

[55] In cross-examination, E.J. testified that when she provided her statement to the police in 2012, while her memory was then better, she was very upset and frightened and somewhat mad at J.J.. She cried when first spoken to by the police. The witness felt that she should have forcefully removed M.P. from the bedroom. She made an effort to tell the truth to the police. The witness acknowledged that in her statement, unlike her trial testimony, she did not consistently report certain events.

[56] In her statement, the witness described the accused as “sleeveless”. In cross-examination, the witness, whose first language is Creole, referred counsel to her description to the police saying that the accused didn’t have “anything on him” and she saw his whole torso. In speaking to the police, she was unable to find the correct English descriptor for shirtless. In explaining the language she used in her videotaped statement, the witness testified that:

A. Let me try to explain myself. As I said, on the day in question I was very uptight and nervous. What I was trying to explain to him was like he did not have nothing on. That’s why I say like sleeveless, like nothing. Maybe I was using the wrong word. Instead of saying shirtless I was saying sleeveless. But you’d see there I say, like nothing, and then I said I saw his whole – and then I eventually said torso. What I was trying to say was like he was – I’m saying sleeveless again. He was shirtless, I think that’s what you all say. We say bareback. I was trying to explain to him that he did not have – I did not – when I say I didn’t – I didn’t see anything on me – on him, meaning like he did not have anything on him. That’s what I was trying to say.

Q. But – but – let me just put the question. But you’d agree with me that it’s really you were not sure if he was sleeveless or he was – he – he was bareback?

A. I’m trying to explain to you the officer was asking me a question about him being sleeveless. And I might have repeated sleeveless because I was telling – remember I told you I saw him like this, right, when I saw. So automatically that would be the side of him that I would see first, right, this part of his body. So when he – when – what I was trying to explain to the officer is that he did not having anything on him. Now, instead of saying shirtless I think is the correct term, I said sleeveless, but you would see there that I am saying he don’t have, like, nothing, like sleeveless, like nothing. That’s what I was trying to explain. Maybe it’s my Creole mixing up…

[57] E.J. agreed in cross-examination that she did not tell the police that she returned to the bedroom a second time finding the door shut. The witness testified that this was not an intentional omission – “it did happen”. She was nervous, anxious and crying “quite a bit” in speaking to the police – she did report going up and down the stairs and returning to speak to J.J. The witness also testified that in speaking to the police she feared that she herself might be subject to arrest in Canada for endangering a child.

[58] When cross-examined upon her statement to the police, “it wasn’t anything that I saw. It was just what I felt. I didn’t see anything to be honest”, the witness acknowledged this to be true. The witness’ testimony continued:

A. Yes, because the closeness was too close. He was just …

Q. All right.

A. … too close. So what I see, what – what – the way – the whole thing it’s like you see something and you – it gives you a – a feeling that this is not correct. Something is wrong there. Some – something is wrong with the picture and that’s what I’m saying. The feeling that I got when I – when I went into – when I peeped into the room the feeling that I got from what I saw …

Q. Mm-hmm.

A. …I did not – it’s – it’s not to say that I noticed there was anything – there was no touching happening to say, well, okay, he was groping her or anything like that, or he was in her face or – apart from the hand and thing, I did – apart from his hand and the really, really sitting close to her, right?

Q. Yeah.

A. But it’s just the way the – the whole thing, the shift, the movement. You – you – if you’re sitting – okay. Let me take it from a …

Q. Well, let me…

A. The feeling that I got was a very uncomfortable one with what I saw. But I cannot say that I see anything that was, how do you – how would you put it, to say, well, okay, it was totally wrong. There’s nothing wrong with having your hand over somebody, but it’s how you do it because you could have somebody hand over in a friendly way, could have your hand over in a possessive way, you could have your hand over. But it’s just that the way his hand was and – and he move. Why you move – why you, you know, that just – that’s like shift.

… and I said I’m a teacher – well, I taught kids, and I’ve had to deal with different situations and I just didn’t like – I just didn’t like it, right? And then I go on to say it wasn’t anything that I saw, it was just what I felt. Now, when I said it was not anything that I saw, I did not see anything that could be deemed inappropriate. But it was the mother in – what I saw, the feeling that it give to me – not so much what I saw concerned me, but the feeling that what I saw gave to me. The feeling of uneasiness that something was wrong in that little gesture that I saw.

[59] The witness agreed that she did not tell the police about the accused’s arm and hand across M.P. or anything about the accused shifting away from her.

[60] In her evidence, J.J.confirmed that E.J. came from upstairs to speak to her asking whether she allowed M.P. in a room with the accused. The witness testified that “the first time” E.J. came down, she reported that she did not like the way the accused and M.P “was inside the room”. She replied that her granddaughter and the accused often watched basketball together. When E.J. then stated, “Are you sure?”, she said that she trusted the accused because he had seen her granddaughter born and the witness had known him for years.

[61] In cross-examination, J.J. stated that, after this conversation, E.J. “never tell me anything about W.T. and [M.P.] again”.

[62] In her in-chief testimony, the complainant stated that when she “walked past the bathroom a bit”, a room “kind of like across” from the bedroom and “to the left”, also described as “kind of right in front of the bedroom”, she observed, through the bathroom door variously described as “slightly open” or open “quite wide”, the accused in the area of the garbage can near the sink with quite a bit of tissue in his hand “wiping something”, perhaps his penis.

[63] In cross-examination, M.P. stated that she guessed the accused was “wiping somewhere on his body”. The witness could not recall whether her uncle had his back turned to her. M.P. testified that from her location at the bedroom door she saw the accused near the sink and a garbage can.

[64] According to M.P., on seeing her, the accused, “more outside of the bathroom”, but “still partially in the bathroom”, said “Don’t tell my grandma or my aunt anything”. In cross-examination, M.P. stated that her uncle said that she was not to tell her grandmother “or she will disown him or something like that” – “not tell my grandma or anyone or they will, like, not like him or something along the lines”. M.P. was unable to recall the precise words used by the accused.

[65] On M.P.’s evidence, she just stood there, scared and in shock, and then went down the stairs.

[66] In her videotaped statement, M.P. stated that it was after being assaulted, when downstairs with the accused, that he said not to tell anyone “or I am going to dishonour him”.

[67] The complainant testified that she got some water when she went downstairs. She then sat at the diningroom table for a little bit. She did not think of telling her mother, with whom she had a good relationship. While it crossed her mind to report to her grandmother, she did not because she was scared, the accused told her not to and, in M.P.’s words, “we respect our elders”.

[68] M.P. testified that about 20 minutes after being sexually assaulted, when she had returned to her grandparents’ upstairs bedroom, she began to cry. The complainant recalled that she changed her pad in the upstairs bathroom after being assaulted:

Q. … you were naturally changing your pad, it’s not just as a result of the incident, right?

A. It was kind of both in a way.

[69] According to E.J., later in the evening, she saw M.P. downstairs “really, really huddled” with her chest on her knees and her arms crossed across her body. When she asked M.P. if she was alright, the child did not at first respond. To this point, M.P. had been “happy and nice”, laughing and talking. She spoke to M.P. again before going to find J.J. to report that there might be something wrong with M.P. J.J. dismissed there being a problem saying that M.P. probably “had her period or something”.

[70] E.J. testified that when she again tried to make conversation with M.P. about who had won the basketball game, M.P. did not respond. The witness gave this additional evidence:

A. Before Saturday she was happy to know me. We were laughing, we were talking. She told me that she plays basketball. She was all enthusiastic about the game and who she was betting on and all of that. We were really jelling.

Q. After Saturday, and you’ve noticed the change, does she ever come back and is nice to you again and happy and laughing?

A. No. I told her, if something was bothering her and she is sad and she does not want to stay in the house anymore, she can come to St. Lucia with me. I will ask her mother for her and I will take her. And that’s the only time she answered me, and she said, okay, you can take me. That’s the only time she – she answered me.

[71] E.J. testified that when she subsequently went upstairs to take a shower, she found M.P. in the bathroom having showered. Accordingly to the witness, after M.P. left the room, she found the trash bin, empty earlier in the evening, in a different condition than she had previously seen it: “I saw, like, she had wiped herself, she had used a lot of toilet paper”. There was paper on top of paper as though covering something. Some of the toilet paper was pinkish.

[72] N. was away for the weekend. While the complainant was unable, at trial, to recall when she went to bed, she stated that her grandmother came to the bedroom before she went to sleep.

[73] In his evidence, the accused described the bathroom as sized about 5’8” by 8’. If the bathroom door was open, and one were standing at the door of the bedroom where A.T. and T. were staying, you could not see the toilet, face basin or the waste bin. The accused’s diagram of the bathroom (Exhibit #16) depicts these three items all grouped in one corner of the bathroom.

The Disclosure Process

[74] In her in-chief testimony, M.P. was asked why she did not report what had happened right away to someone in the house:

I was just in shock and I didn’t really know who to tell at the time … And I felt, like, really scared at the time … [t]hat he would have – I don’t – like – like, that he would have done something again or something if I had told.

[75] On M.P.’s evidence, the first person to whom she disclosed the assault was D.A., an individual described as a cousin. She confided in him because she understood he had “been through it … [a]bout four times,” also described as “he had been through the same incident twice”. According to M.P., D.A. reported this sexual abuse to herself, N. and her Aunt L.. She called D.A. through an app on her Ipod.

[76] At trial, D.A. testified that he had never been the victim of sexual abuse and had never told anyone that he had been sexually molested.

[77] The complainant recalled that when she spoke to D.A. and told him what had happened, he told her that she should tell someone.

[78] In cross-examination, M.P. stated that she could not recall how many times she spoke to D.A. on June 9, 2012. She did recall that she did not speak with D.A. after her grandmother came to the bedroom to sleep. M.P. could not recall when she fell asleep. J.J. could not recall precisely when she went to bed on June 9, 2012 but was able to say she was still up after midnight.

[79] The accused testified that he thought that M.P. and D.A. were “very close”. He had seen them on the livingroom couch watching TV. He acknowledged that he did not see D.A. all that often, perhaps only five or six times in the time period of January to June 2012 – he at no time saw D.A. do anything to the complainant.

[80] A.T. informed the court that she first met D.A. when she moved back to her mother’s home. Her recall was that he was over one to three times a week depending on his work schedule. The witness claimed that D.A. would “hold the fort” until L. came home. With N. on her laptop, and A.T. going up and down the stairs looking after T., D.A. and M.P. would watch TV. When he stayed over, he slept in a main floor bedroom. In A.T.’s view, D.A. and M.P. were “close” – he gave her things including a gold bracelet. To the witness’ recall, M.P.’s mother had a rule that D.A. could not take M.P. to the pool unless N. went along.

[81] When the complainant and N. came home from school, with M.P.’s grandparents away at work until about midnight, according to M.P. her Aunt L. was always home to look after them as they did homework and chores, and ate dinner. To M.P.’s recall, D.A. would come “once and a while” in 2012 to the residence to see her Aunt L. and sleep overnight in the guest bedroom on the main floor before going to work the next morning. The witness was unable to recall the frequency of his attendance.

[82] At times, M.P. observed D.A. downstairs watching TV with her aunt. She did not go to his room. At times, she and N. would watch TV with them. She at no time watched a movie alone with D.A.. He was her cousin, not a “friend” – they did not have “a very close relationship”.

[83] In her evidence, M.P. agreed that D.A. had given her a necklace for a birthday present. She could not recall what year she received the present.

[84] Asked in-chief whether she often spoke to D.A. on the telephone prior to the alleged sexual assault, M.P. answered, “[n]ot really”. Asked about texting with D.A., she replied, “Not that much”, sometimes just to say things like: “hey, what’s up? How are you?”

[85] In her evidence, M.P. agreed that D.A. took her and N. to the indoor swimming pool in the basement of her grandparents’ building. The complainant was unable to recall how many times this occurred. J.J. testified that a “grownup” was always present in the home when D.A. was over or at the pool with the girls.

[86] At trial, the complainant had no recall of members of her family telling her that she should not be alone with D.A.. M.P. recalled only being out alone with D.A. on one occasion when they went to pick up pizzas.

[87] J.J. testified that she never had any concerns about D.A. and the children. To her knowledge, A.T. never expressed to her concerns about D.A.. The witness recalled D.A. coming by the house. To her recall, D.A. did not sleep over at any point. J.J. understood that M.P. and D.A. talked closely because they were friends and cousins – “we are family from back home”.

[88] There were a series of missed calls to D.A. from M.P. between 10:23 p.m. and 10:52 p.m. on June 9, 2012. D.A. was at work. When he answered M.P.’s 10:52 p.m. call, they spoke for nearly an hour. D.A. testified that at first, M.P. was really nervous to disclose something that had happened. Her voice sounded scared. After he convinced her, she reported being sexually assaulted by the accused. On D.A.’s evidence, when he immediately asked if she had told anyone in the house, M.P. said she had not, not wanting to hurt her aunt or to have her little cousin, T., grow up without a father. He spent most of the call trying to comfort M.P. He told her that she could not keep this to herself.

[89] D.A. identified a 6:50 a.m. call from M.P. on Sunday, June 10. He had not before received such an early call from her. There was again discussion of what had happened to her.

[90] The accused testified that he returned to J.J.’s house at about 8:00 a.m. on Sunday June 10. He, A.T. and T. went out for the day. Later, in the evening, he saw M.P. and had a normal conversation with her.

[91] According to D.A.’s testimony, he spoke to M.P. on the phone on Monday, June 11. When he questioned his cousin as to why she had not reported the matter, M.P. stated that the counsellor was not at school that day. D.A. testified that he asked M.P. whether she wanted him to speak to her grandmother or aunt for her. M.P. declined saying she would be more comfortable speaking to the counsellor. According to D.A.’s evidence, on this date, M.P. told him that the accused had attempted to bribe her after the assault – he thought it was either an offer of money or to buy her something.

[92] M.P. was home on Monday, June 11, 2012 as it was a school PA day. She told no one in her family what she alleges happened to her on this date or prior to speaking to her school counsellor.

[93] Asked in cross-examination whether D.A. came on Wednesday to take her and N. swimming, M.P. replied that she was unable to recall this occurring.

[94] D.A. testified that he saw M.P. on Wednesday, June 13 at J.J.’s house. M.P.’s mood “was really different” than what he was used to. M.P. related to him that she had had a bad dream about what was going to happen when she reported the incident to her counsellor. He took M.P. and N. to the indoor pool. At the pool, to his recall, he told M.P. that she had to work up the courage to let someone know or it could happen again to her or to someone else.

[95] D.A. informed the court that, in his view, M.P. and N. were like sisters. On this date, he told M.P. that she should tell N. what had happened. M.P. did so in his presence, telling N. that the accused had done something to her. According to D.A., he felt like telling J.J. on the Wednesday but he wasn’t really sure how to say what happened to his cousin.

[96] Under cross-examination, D.A. rejected the suggestion that he had been involved in an intimate relationship with M.P. He further rejected the suggestion that he was uncomfortable with A.T.’s presence in the house because it reduced his time alone with M.P. D.A. also rejected the suggestion that the 7:42 p.m. phonecall on June 9, 2012 was for him to coach her as to the “details as to what she’s going to do later on”.

[97] In her testimony, M.P. agreed that it appears on June 14, at school, she first spoke to one of her teachers, M.B. – she only told this teacher “partially what happened” (her uncle pulled her shorts and touched her, she tried to pull away and he pulled her back) because she wanted to speak more fully to the counsellor she understood had been away from the school until Thursday. When the counsellor came free, she spoke to Ms. J.M..

[98] J.M., a child and youth counsellor working part of the week at H[…]E.S. in Malton, counselled M.P. during the 2011/2012 school year.

[99] According to Ms. J.M., at about 1:15 p.m. on June 14, 2012, M.P. came to her office “very upset”. There were tears in the pupil’s eyes. The student then revealed that on Saturday afternoon she was sitting on the bed with her auntie’s boyfriend and a four-month-old baby watching a basketball game. After the baby fell asleep, the male party moved closer to her and went on to sexually assault her digitally followed by intercourse.

[100] As a result of M.P.’s disclosure to her school counsellor, the police and the complainant’s grandmother were contacted. The same day, M.P. gave a videotaped statement to the police. Also on June 14, M.P. was examined with a Sexual Assault Evidence Kit. Swabs of her vagina were taken by a qualified nurse at 5:30 p.m. The only DNA found in the samples was her own. The police received [M.P.’s] shorts, underwear, and shirt that were reportedly worn June 9, 2012, but since washed. Her underwear was tested by the Centre of Forensic Sciences for semen and amylase. Neither semen nor amylase were detected.

[101] At trial, the accused testified that, when arrested for sexual assault, he did not know of the general nature of the allegation and that A.T., who had called him to say the police were waiting at the house to speak to him, had not passed along any information in this regard. Confronted in cross-examination with his statement to the police in which he said that A.T. had told him the police concern was “about [M.P.] and the house”, the accused agreed that he did have this information.

[102] After his June 14, 2012 arrest, the accused provided a videotaped statement to the police. Asked about the prior Saturday night, the accused told Constable Murphy the following:

MURPHY: Well I’m talking about Saturday.

W.T.: They had a basketball last night.

MURPHY: Yeah, no I’m talking about Saturday though.

W.T.: Saturday I was watching soccer on TV ‘cause they replay the soccer, the Euro, the Euro, the Euro soccer.

MURPHY: Oh yeah okay.

W.T.: ‘Cause they played over at night time so I was watching the soccer game before I left.

MURPHY: Okay, and so are you, when you were watching these sports you were watching in, in your room the, in Darcel there?

W.T.: Yeah, me and T..

MURPHY: Yeah, okay. Um, anyone else in the room?

W.T.: No, everybody comes in and out of the room.

MURPHY: Yeah.

W.T.: A.T. comes in and out of the room, ‘cause sometimes she come up and check on T. [to] see if he’s sleeping.

MURPHY: Mm-hmm.

W.T.: [M.P.] comes and say hi, N. comes in and says hi, grandma comes in and say hi Ti-ti.

[103] The accused agreed in cross-examination that the officer was questioning him about the Saturday evening of June 9. Asked if his earlier trial testimony about watching a basketball game on the evening of June 9 differed from his police statement, the accused replied: “No … there was both basketball and soccer on the TV because I was channel-flipping. There was both games on.”

[104] In further cross-examination, the accused was questioned as to why he told the officer that persons, apart from A.T., came by the bedroom just to say “hi” when, in his trial evidence, the accused acknowledged that M.P. was in the bedroom for some time:

A. When I answered the question, I was speaking about all the time. I wasn’t speaking about that night.

Q. I’m going to suggest you avoided talking about [M.P.] because you didn’t want the officer to know she was in the room?

A. No…

POSITIONS OF THE PARTIES

The Prosecution

[105] On behalf of the prosecution, Ms. Vanden Broek submitted that in this case, very much about credibility, the court ought to accept M.P.’s evidence, reject the accused’s testimony, and conclude on the whole of the record that guilt was established beyond a reasonable doubt.

[106] Crown counsel submitted that while peripheral aspects of M.P.’s testimony may be less reliable, largely because of her age and the years between the alleged assault and testifying, the detailed description of the assault, the core allegation, has not wavered and was not shaken on cross-examination.

[107] While the residence may have been crowded, the opportunity existed even on the accused’s version of events, for the very brief sexual assault described by M.P. to have occurred in the upper floor bedroom. There was no overreach in the complainant’s account, for example, she did not say that she saw her uncle in the bathroom wiping his penis – she assumed from what she saw that this was the case.

[108] Ms. Vanden Broek relied upon the evidence of E.J. as truthful respecting her observations of the accused and M.P. – their proximity, the accused touching M.P., his shift away on discovery, and the witness’ evidence contradicting that of the accused as to where he was situated when she came to the bedroom door.

[109] The prosecution also points to the evidence of M.P.’s demeanour during the late evening of June 9 as described by E.J., D.A.’s account of M.P.’s condition during the June 9 10:52 p.m. phonecall and when he saw her on June 13, and Ms. J.M.’s observations of the complainant during the June 14 disclosure at school, as rendering some confirmation that M.P. was sexually abused.

[110] Ms. Vanden Broek asked the court to reject any motive on M.P.’s part to fabricate a false allegation of sexual assault against her uncle. There was no animus on her part toward the accused. The evidence of M.P.’s displacement from the bedroom originally shared with N., and turned over to A.T. and T. for a stay of indeterminate duration, did not rise to the level of a real complaint, grievance or grudge liable to attract the response of a false allegation. In any event, there could be no assurance that such an allegation would lead to A.T. and T. leaving as opposed to the accused not being permitted to return to the home.

[111] As to the suggestion that D.A. and M.P. were romantically involved and together agreed to promote a false allegation of sexual assault to, among other things, oust A.T. and the accused from the residence to allow them more unrestricted time with one another in their intimate relationship, there was no evidence to substantiate such a theory. M.P. and D.A. denied these suggestions. As well, Crown counsel described it as an “illogical plot” with the theory only coming from the T.s. It could hardly be described as a well-scripted venture given certain differences in the evidence of M.P. and D.A..

[112] It was submitted that the disclosure process was sufficiently timely and progressive (D.A., teacher, school counsellor, police) between June 9 and 14 such that no question reasonably arises as to the credibility of M.P.’s evidence considering her age and the alleged abuse by a family member.

[113] The prosecution submitted that the accused and his wife were not credible witnesses. Crown counsel argued that the accused unconvincingly attempted to distance himself from contact with M.P., first by suggesting to the police that the complainant was not watching TV with him in the bedroom on June 9, and subsequently in his trial testimony stating that he was standing at the foot of the bed when E.J. came by.

The Defence

[114] On the accused’s behalf, Mr. Mattis submitted that the charge had not been proven beyond a reasonable doubt.

[115] Counsel relied upon the accused’s denial of the sexual allegation. That evidence alone should be accepted or be considered to have raised a reasonable doubt. It was said that, as a witness, Mr. W.T.’s evidence was not impeached. He had a good relationship with M.P.

[116] It was submitted that the accused’s evidence was supported by A.T.’s chronology of events. On June 9, 2012, the home had a number of persons present. The bedroom door, as described by the accused and A.T., could not fully close. There was no predictable schedule as to when someone would come to the top of the stairs across from the bedroom. The risk of detection of child abuse was high rendering M.P.’s account improbable.

[117] Mr. Mattis submitted that M.P.’s credibility is suspect for a number of reasons quite apart from the reality of the crowded house. M.P. made no effort to leave the bedroom. She did not call out or scream despite her purported sore throat. She did not tell the accused she was menstruating. She did not instantly tell someone downstairs what happened.

[118] Counsel noted the absence of confirmatory forensic evidence. There was no evidence of a stain on the bed or of testing of bedding. The rape kit examination and forensic testing of M.P.’s clothing did not connect the accused to a sexual assault upon the complainant.

[119] Mr. Mattis, emphasizing the lack of any obligation on the defence to establish a complainant’s motive to lie, submitted that the trial record here permitted such an inference relating to M.P. reclaiming her bedroom, and, furthering her intimate relationship with D.A..

[120] It was submitted that M.P. herself admitted that she had less freedom sleeping in her grandparents’ bedroom than the room she once shared with N.. As well, D.A. testified that M.P. was anxious for A.T. and T. to leave so that she could move back to her own room.

[121] It was further argued (“our theory”) that with A.T. at the house supervising, while M.P.’s grandparents were at work, this made it difficult for M.P. and D.A. “to have an exclusive relationship”. A.T. was “an inconvenience” for the complainant and D.A.. Although M.P. downplayed their relationship, testifying that they were simply cousins and friends, D.A. acknowledged under cross-examination that they were “very close”, a state of affairs confirmed by the accused and A.T.. D.A. bought gifts for M.P. D.A. “had a significant role to play” and the 7:42 p.m. phonecall on June 9 was significant in setting up the false allegation. It is implausible that M.P. would not recall a phonecall of this unusual length and be able to describe it to the court.

[122] With respect to M.P.’s credibility, Mr. Mattis noted differences between M.P.’s videotaped statement to the police and her trial testimony, for example, the omission to tell the police about the 7:42 p.m. call with D.A., her handling of T., whether she ran out of the bedroom or paused at the doorway after the alleged assault, where she and the accused were located when he allegedly told her not to tell anyone, etc. There were also differences between M.P.’s evidence and the testimony of other witnesses. For example, D.A. denied having been sexually abused as maintained by M.P. The accused and A.T., contrary to the complainant’s evidence, testified that the bedroom door could not be closed. A.T. was clear that she would not allow a 13-year-old to carry her newborn child which was inconsistent with M.P.’s evidence. The accused’s description of the placement of items and fixtures in the upstairs bathroom made it impossible for M.P. to have made her claimed observations from the location of the bedroom doorway.

[123] As to E.J.’s testimony, it was submitted that the court should take close note of the differences between the witness’ trial testimony and her videotaped statement to the police. E.J. said nothing to the police about two visits to the bedroom, about observing a “shift” by the accused, or about the accused being shirtless. J.J. testified that her sister-in-law came to her only once, not twice, about W.T. and M.P. being alone together in the bedroom. At best, E.J. made assumptions, not relevant observations.

[124] Describing at one point the evidence as “all over the place”, Mr. Mattis submitted that on the whole of the trial record a reasonable doubt existed as to the guilt of the accused.

ANALYSIS

General Principles

[125] "Credibility is a central issue in many criminal cases": R. v. Osolin, 1993 54 (SCC), [1993] 4 S.C.R. 595, at para. 55. The court may believe all, none or some of a witness' evidence: R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at para. 65; R. v. Francois, 1994 52 (SCC), [1994] 2 S.C.R. 827, at para. 14; D.R. et al. v. The Queen (1996), 1996 207 (SCC), 107 C.C.C. (3d) 289 (S.C.C.) per L'Heureux-Dubé J. (in dissent in the result), at p. 318; R. v. Doell, 2016 ONCA 350, at para. 7; R. v. M.R., 2010 ONCA 285, at para. 6. Accordingly, a trier of fact is entitled to accept parts of a witness' evidence and reject other parts, and similarly, the trier can accord different weight to different parts of the evidence that the trier of fact has accepted: R. v. Howe, 2005 253 (ON CA), [2005] O.J. No. 39 (C.A.)(QL), at para. 44.

[126] The vast majority of sexual assault prosecutions turn on the evidence of the two principals – the complainant and the accused: R. v. M.(S.C.), [2007] O.J. No. 1624 (C.A.), at para. 3. However, a verdict of guilty may, in appropriate cases, be safely founded on the evidence of a single witness, regardless of the offence or offences charged: The Queen v. G.(A.), [2001] 1 S.C.R. 439, at pp. 453-4; Vetrovec v. The Queen (1982), 1982 20 (SCC), 67 C.C.C. (2d) 1 (S.C.C.), at p. 8.

[127] A determination of guilt or innocence must not, however, devolve into a mere credibility contest between two witnesses or a bipolar choice between competing prosecution and defence evidence. Such an approach erodes the operation of the presumption of innocence and the assigned standard of persuasion of proof beyond a reasonable doubt: W.(D.) v. The Queen (1991), 1991 93 (SCC), 63 C.C.C. (3d) 397 (S.C.C.), at p. 409; Avetsyan v. The Queen (2000), 2000 SCC 56, 149 C.C.C. (3d) 77 (S.C.C.), at pp. 85-87. However, as recognized in R. v. Chittick, 2004 NSCA 135, [2004] N.S.J. No. 432 (C.A.)(QL), at paras. 23-25:

It is not an error for a judge to make a finding of credibility as between the complainant and the accused, particularly where they provide the bulk of the evidence as to what happened. This is a necessary part of the judge's duty. While it is not the end of the journey of decision-making, it is a necessary intermediate step along the way. Indeed, the first two elements in a proper jury instruction on this issue as set out in W.(D.) assume that the jury should decide whether or not they believe the exculpatory evidence of the accused. Those first two steps are:

First, if you believe the evidence of the accused, obviously you must acquit.

Secondly, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.

Accordingly, it was not an error for the trial judge here to assess the credibility of the accused in relation to that of the complainant.

An error under the W.(D.) principle is committed where the judge treats the matter as concluded once this assessment of credibility has been completed. To do so misses the third and critical step in the application of the burden of proof. As described in W.(D.), that last crucial step is as follows:

Thirdly, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

See also R. v. J.J.R.D. (2006), 2006 40088 (ON CA), 215 C.C.C. (3d) 252 (Ont. C.A.), at para. 47 (leave to appeal refused [2007] S.C.C.A. No. 69).

[128] It must be emphasized that mere disbelief of the accused's evidence does not satisfy the burden of persuasion upon the Crown: see W.(D.), at p. 409. In other words, to use disbelief of the accused's evidence as positive proof of guilt by moving directly from disbelief to a finding of guilt constitutes error: R. v. Dore (2004), 2004 32078 (ON CA), 189 C.C.C. (3d) 526 (Ont. C.A.), at p. 527 (leave to appeal refused, [2004] S.C.C.A. No. 517); R. v. H.(S.), [2001] O.J. No. 118 (C.A.), at paras. 4-6. The court must be satisfied on the totality of the evidence that there is no reasonable doubt as to the accused's guilt. The obligation of W.(D.) analysis was summarized in R. v. Minuskin (2004), 2003 11604 (ON CA), 181 C.C.C. (3d) 542 (Ont. C.A.), at p. 550:

It is important to stress that trial judges in a judge alone trial do not need to slavishly adhere to this formula. This suggested instruction was intended as assistance to a jury and a trial judge does not commit an error because he or she fails to use this precise form of words. Nor is the trial judge expected to approach the evidence in any particular chronology, for example, looking first at the accused's evidence and then at the rest of the evidence. It should, however, be clear from an examination of the reasons that at the end of the day the trial judge has had regard for the basic principles underlying the W. (D.) instruction. One of those principles is that it is not necessary for the trier of fact to believe or accept the defence evidence for there to be a reasonable doubt. Even if the trier of fact believes the prosecution witnesses, the evidence as a whole may leave the trier of fact with a reasonable doubt. As it was put by Cory J. in W. (D.) at p. 757, the trier of fact must acquit even if he or she does not believe the accused's evidence because they have a reasonable doubt as to the accused's guilt "after considering the accused's evidence in the context of the evidence as a whole".

See also R. v. Turmel, [2004] B.C.J. No. 2265 (C.A.), at paras. 9-17. However, “[a]n outright rejection of an accused’s evidence based on a considered and reasoned acceptance beyond a reasonable doubt of the truth of conflicting credible evidence is as much an explanation for the rejection of an accused’s evidence as is a rejection based on a problem identified with the way the accused testified or the substance of the accused’s evidence”: J.J.R.D., at para. 53; R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at para. 66; R. v. T.M., 2014 ONCA 854, at para. 68 (leave to appeal refused [2015] S.C.C.A. No. 110).

[129] The court must be satisfied beyond a reasonable doubt on the issue of credibility where the case turns on the evidence of two conflicting witnesses: R. v. Selles (1997), 1997 1150 (ON CA), 101 O.A.C. 193 (C.A.), at pp. 207-8; M.(N.) v. The Queen, [1994] O.J. No. 1715 (C.A.), at para. 1 (affirmed 1995 95 (SCC), [1995] 2 S.C.R. 415). Where there are significant inconsistencies or contradictions within a principal Crown witness' testimony, or when considered against conflicting evidence in the case, the trier-of-fact must carefully assess the evidence before concluding that guilt has been established: R. v. S.W. (1994), 1994 7208 (ON CA), 18 O.R. (3d) 509 (C.A.), at p. 517 (leave to appeal to S.C.C. refused, [1994] 2 S.C.R. x); R. v. Oziel, [1997] O.J. No. 1185 (C.A.), at paras. 8, 9; R. v. Norman (1993), 1993 3387 (ON CA), 87 C.C.C. (3d) 153 (Ont. C.A.), at pp. 172-4.

[130] Assessment of a witness' credibility includes evaluation of his or her demeanour as testimony is provided to the trier(s) of fact in the courtroom - this includes "non-verbal cues" as well as "body language, eyes, tone of voice, and the manner" of speaking: R. v. N.S. (2010), 2010 ONCA 670, 102 O.R. (3d) 161 (C.A.), at paras. 55, 57, affd 2012 SCC 72, [2012] 3 S.C.R. 726. However, a trier's subjective perception of demeanour can be a notoriously unreliable predictor of the accuracy of the evidence given by a witness: Law Society of Upper Canada v. Neinstein (2010), 2010 ONCA 193, 99 O.R. (3d) 1 (C.A.), at para. 66; R. v. Smith, 2010 ONCA 229, at para. 11; R. v. G.G. (1997), 1997 1976 (ON CA), 115 C.C.C. (3d) 1 (Ont. C.A.), at pp. 6-8; R. v. P.-P.(S.H.) (2003), 2003 NSCA 53, 176 C.C.C. (3d) 281 (N.S.C.A.), at paras. 28-30; R. v. Levert (2001), 2001 8606 (ON CA), 159 C.C.C. (3d) 71 (Ont. C.A.), at pp. 80-2. Demeanour evidence alone cannot sustain a finding of guilt: R. v. K.(A.) (1999), 1999 3756 (ON CA), 123 O.A.C. 161 (C.A.), at p. 172.

[131] The fact that a complainant pursues a complaint cannot of course be a piece of evidence bolstering his or her credibility -- otherwise it could have the effect of reversing the onus of proof: R. v. A.(G.R.) (1994), 1994 8756 (ON CA), 35 C.R. (4th) 340 (Ont. C.A.), at para. 3; R. v. Islam, [1999] 1 Cr. App. R. 22 (C.A.), at p. 27.

[132] To the extent that credibility assessment demands a search for confirmatory evidence for the testimony of a principal Crown witness, such evidence need not directly implicate the accused or confirm the complainant's evidence in every respect - the evidence should, however, be capable of restoring the trier's faith in the complainant's account: Kehler v. The Queen (2004), 2004 SCC 11, 181 C.C.C. (3d) 1 (S.C.C.), at pp. 5-6; R. v. Betker (1997), 1997 1902 (ON CA), 115 C.C.C. (3d) 421 (Ont. C.A.), at p. 429 (leave to appeal refused, [1998] 1 S.C.R. vi); R. v. Michaud, 1996 211 (SCC), [1996] 2 S.C.R. 458, at p. 459; R. v. K.M., 2012 ONCA 319, at para. 38.

[133] It may be that in the circumstances of a particular case, the defence wishes to raise the issue of delayed complaint as counting against the veracity of the complainant's account of assault. The significance or evidentiary relevance, if any, of the complainant's failure to make such a complaint is contextual and will vary from case to case depending upon the trier of fact's assessment of the evidence relevant to the failure to make a contemporaneous complaint: The Queen v. D.(D.) (2000), 2000 SCC 43, 148 C.C.C. (3d) 41 (S.C.C.), at pp. 64-7; R. v. M.(P.S.) (1993), 1992 2785 (ON CA), 77 C.C.C. (3d) 402 (Ont. C.A.), at pp. 408-409; see also, R. v. H., [2011] EWCA Crim 2753, at para. 6.

[134] The existence or absence of a motive by the complainant to fabricate is a relevant factor to be considered: The Queen v. K.G.B. (1993), 1993 116 (SCC), 79 C.C.C. (3d) 257 (S.C.C.), at p. 300; R. v. Greer, 2009 ONCA 505, at para. 5; R. v. Prasad, [2007] A.J. No. 139 (C.A.), at paras. 2-8; K.(A.), at p. 173; R. v. Jackson, [1995] O.J. No. 2471 (C.A.), at paras. 4, 5. I make this observation, sensitive to the fact that the burden of production and persuasion is upon the prosecution and that an accused need not prove a motive to fabricate on the part of a principal Crown witness. Evidence of a witness' motive to lie may be relevant as well to the accused qua witness: R. v. Laboucan, 2010 SCC 12, at paras. 12, 15, 22; R. v. Murray (1997), 1997 1090 (ON CA), 99 O.A.C. 103 (C.A.), at paras. 11-14.

[135] The testimony of a youthful witness cannot be said to be inherently unreliable. Otherwise, a negative stereotype improperly supplants abolition of the corroboration rule in the testimonial competence regime. The testimony of a young witness is to be understood with an eye to common sense as exactitude and detail may be missing from a child's recall as the world is experienced differently from an adult: B.(G.) v. The Queen (1990), 1990 7308 (SCC), 56 C.C.C. (3d) 200 (S.C.C.), at pp. 219-220 per Wilson J.; Marquard v. The Queen (1993), 1993 37 (SCC), 85 C.C.C. (3d) 193 (S.C.C.), at p. 201 per McLachlin J. (as she then was); R. v. C.K., 2016 ONCA 66, at paras. 16-25; appeal as of right filed [2016] S.C.C.A. No. 62; R. v. A.M., 2014 ONCA 769, at paras. 11, 25; R. v. H.C. (2009), 2009 ONCA 56, 241 C.C.C. (3d) 45 (Ont. C.A.), at para. 42.

[136] In order to find guilt in a circumstantial evidence case, the trier of fact must be satisfied beyond a reasonable doubt that the only rational inference that can be drawn from the circumstantial evidence is that the accused is guilty: R. v. Griffin and Harris (2009), 2009 SCC 28, 244 C.C.C. (3d) 289 (S.C.C.), at paras. 33-4. Inference must be carefully distinguished from conjecture or speculation. At all times, in assessing circumstantial evidence, for example demeanour or opportunity, a trier must be alert to explanation or contradiction or inference pointing toward innocence. The trier of fact must assess the reliability and credibility of any underlying direct evidence as well as whether that evidence reasonably supports the circumstantial inference to be drawn while always having regard to the scope of inferential bridges or gaps the trier is invited to make.

[137] Circumstantial evidence is not to be evaluated piece by piece but rather cumulatively. With circumstantial evidence based on reasoning or inference-drawing through probability (R. v. Arp (1998), 1998 769 (SCC), 129 C.C.C. (3d) 321 (S.C.C.), at para. 64), a trier-of-fact’s application of logic, common sense and experience to the evidence engages consideration of both inherent probabilities and inherent improbabilities and, not infrequently, eliminating the unlikelihood of coincidence: C.(R.) v. McDougall, 2008 SCC 53, [2008] 3 S.C.R. 41, at paras. 33-40, 47-8; R. v. Yousif, 2011 ABCA 12, at para. 5; In re B (Children), [2009] 1 A.C. 11 (H.L.), at paras. 5, 15, 70.

[138] In considering the whole of the evidence in a circumstantial case, and in particular the search for alternative “innocent” explanations other than the prosecution’s theory of guilt, the court is not limited to inferential explanations based on “proven facts” but rather may take into account, as to whether reasonable doubt exists, alternate rational possibilities grounded in the evidence: R. v. Khela, 2009 SCC 4, [2009] 1 S.C.R. 104, at paras. 57-8; Fontaine v. Loewen Estate, 1998 814 (SCC), [1998] 1 S.C.R. 424, at para. 33; R. v. Bui, 2014 ONCA 614, at paras 22-9; R. v. Campbell, 2015 ABCA 70, at paras. 51-3; R. v. Dipnarine, 2014 ABCA 328, at paras. 22-28; R. v . Pryce, 2014 BCCA 370, at paras. 6-12; R. v. Maxie, 2014, SKCA 103, at para. 35; R. v. Robert (2000), 2000 5129 (ON CA), 143 C.C.C. (3d) 330 (Ont.C.A.), at paras. 14-25.

[139] Further, while there is no obligation upon an accused to demonstrate the existence of an exculpatory hypothesis or other rational explanation other than guilt, it does not reverse the burden of proof upon the Crown to ask whether such explanations, as may be pointed to, amount to nothing more than speculation, conjecture or irrational inferences: R. v. Fraser, 2016 BCCA 89, at para. 73; R. v. Mufuta, 2015 ONCA 50, at paras. 22, 26, 47-9; Griffin, at para 35; R. v. C.(D.) (2012), 2012 SCC 48, 290 C.C.C. (3d) 64 (S.C.C.), at paras. 25, 28; R. v. Figueroa (2008), 2008 ONCA 106, 232 C.C.C. (3d) 51 (Ont.C.A.), at paras. 35, 42.

[140] An accused’s opportunity to commit an alleged offence, both in physical and temporal terms, is a circumstance which may achieve particular importance in some cases. Closely related is consideration of the reasonableness of the exercise of any such opportunity given the associated risks of detection: see R. v. Dimmick, 2015 ONCA 402, at paras. 5-6; R. v. N.L.P., 2013 ONCA 773, at paras. 28-31, 75; R. v. A.S. (2002), 2002 44934 (ON CA), 165 C.C.C. (3d) 426 (Ont. C.A.), at para. 37; R. v. C.P., [2004] O.J. No. 4732 (C.A.), at para. 14 (leave to appeal refused [2005] S.C.C.A. No. 44).

Fact-Finding and Conclusions

[141] Given the complainant’s proven age of 13 years in June of 2012, as a matter of law she was incapable of consenting to sexual activity with an adult. There was no dispute between the parties that if the allegation as described by the complainant was established beyond a reasonable doubt to be true, the commission of the s. 151 crime would be proven.

[142] In a case such as this, with the passage of about four years between the date of the alleged offence and time of trial, a trier of fact must be sensitive to the understandable deterioration of witnesses’ memories as well as the phenomenon of a witness perhaps unconsciously filling in gaps or reinterpreting facts. Differences between trial evidence and earlier out-of-court accounts may be innocuous or telling about credibility or reliability.

[143] In the present case, as in many trials, some matters cannot be resolved on the conflicting evidence, for example, the precise timing of A.T.’s trips to the upstairs on June 9, 2012, who carried T. and when on that date, the timing of D.A.’s attendances at the J. residence, and the true state of the relationship between the accused and J.J.. In the end, these matters did not hinder the securing of a verdict.

[144] There were certain unsatisfactory aspects to the evidentiary record in this relatively short trial of which some examples follow. J.J. was not asked about the state of the door of the bedroom occupied by A.T. and its ability to fully close. Nor were she or E.J. questioned about the layout of the upstairs bathroom. The court did not hear from N. or L.. The complainant and the accused were not questioned about D.A.’s second-hand information that the accused sought to bribe M.P. The complainant was not examined regarding the conversation which E.J. maintains she had with her about leaving the house.

[145] On the totality of the trial record, as more fully explained below, the complainant’s evidence of the accused unlawfully touching her for a sexual purpose is accepted beyond a reasonable doubt and the accused’s denial is rejected. The accused’s evidence fails to raise a reasonable doubt as to guilt as does scrutiny of the whole of the evidence.

[146] The evidence, considered in its entirety, does not support a motive on the complainant’s part to falsely accuse her uncle of sexual assault. Nor is there a reasonable doubt that such motivation led to the allegation. M.P. liked the accused and they had had a good relationship.

[147] The submission that M.P., driven by wanting her bedroom back and for A.T. to leave, advanced a false accusation against the accused has no traction. M.P. denied any serious concern in this regard. While A.T. had stayed many weeks not just a few days after T.’s birth, A.T. and the accused had their own apartment and A.T. had not permanently moved into J.J.’s home. There is no evidence, including on D.A.’s relevant testimony, of any desire on M.P.’s part to move back to her original bedroom having become a chronic complaint or significant irritation. It is unclear how the alleged fabrication would necessarily further the objective of having A.T. leave as opposed to A.T. staying and the accused being barred from the house.

[148] The defence “theory” that D.A. orchestrated a plan putting M.P. up to falsely alleging a sexual assault against her uncle is equally unavailing. I accept the evidence of denial on the part of the complainant and of D.A. on this point. There is no compelling evidence of the existence of an intimate relationship between the two of them – only speculation. Nothing can be taken from M.P.’s description of her relationship to D.A. as a cousin and friend as opposed to being “close” – her testimonial acknowledgment of speaking to D.A. on the phone, of spending time with him watching movies at J.J.’s home, going with him to the pool, and of reaching out to him first to disclose what had happened to her, apart from any label, evidences a degree of closeness. A.T. was not the only supervisor at the apartment. L. also had this role when she was not working part-time or away at her fiancé’s home. Again, the suggestion of such a disproportionate response by a 13-year old makes little sense in terms of any reasonable assurance that M.P. would end up spending more time with D.A. by falsely accusing her uncle.

[149] Neither these submitted motives nor other hypotheticals not advanced by the defence, such as acting on a belief that the accused was cheating on A.T., or wanting to draw attention to herself after being serially disappointed by her father abandoning plans with her, factor into the credibility of the complainant’s account.

[150] Turning to the court’s evaluation of the complainant’s credibility, M.P. presented as a careful witness, on occasion somewhat emotional, who appeared to be making an effort to communicate an accurate account of an event years before she testified. She had no animus toward her uncle. She had no motive to falsely accuse him. M.P. gave detailed information in her June 14, 2012 videotaped statement in which she spoke of “private parts” and only on follow-up questioning stated “vagina” and “penis”. Her uncle was first “playing” in her vagina. M.P. described a progressively intrusive sexual assault. She told the police of a popping sound from her vagina shortly after intercourse began. On several occasions during her video statement, the complainant enacted a physical demonstration of what she was trying to describe.

[151] There was no exaggeration or overreach evident in M.P.’s testimony. She did not suggest that she was threatened, or that the bedroom door was fully closed, or that her uncle forced sex upon her as she said “no” or “don’t”, or that she was disrobed, or that she told the accused she was on her period.

[152] Of course, the complainant’s credibility, fully assessed, also requires consideration of such things as witness inconsistencies, submitted omissions from her videotaped statement, alleged implausible facts, the lack of resistance argued by the defence, the absence of forensic evidence, and the circumstances of disclosure by the complainant.

[153] In testifying, M.P. did not recall certain matters and acknowledged lack of memory in various answers. These instances were unrelated to the transaction she described in the bedroom. The complainant’s lack of reference in her police statement to the 7:42 p.m. June 9 phonecall with D.A. is irrelevant as it was not directly connected to the assault. It appears when M.P. told the police that no one else came up she either forgot E.J.’s brief appearance or interpreted the officer’s question to be whether anyone came upstairs during the incident. Other matters, such as whether M.P. carried T. at any point on June 9, or whether a necklace or bracelet was the piece of jewellery given to her by D.A., are essentially irrelevant. While M.P. could not recall at trial whether she told N. of what happened to her, she told the police that she had confided in N..

[154] Insofar as the complainant’s account of what transpired immediately after the assault, in her videotaped statement M.P. stated that she “ran out” and went downstairs. In this interview, she also said she was “walking” and “went past the washroom”. M.P.’s trial evidence was that she “walked past the bathroom a bit”. There is no clear inconsistency in this use of language, first by a 13-year-old grade 8 student and then by a 17-year-old witness at trial. Without a properly scaled floorplan or relevant photographs, it cannot be said that M.P.’s evidence should be rejected as to her ability to have made observations of her uncle in the bathroom. The confusion as to where and how often the accused told M.P. not to tell anyone does not detract from the complainant’s very clear recitation of the core details as to how she was violated.

[155] As to the subject of opportunity and risk of detection, on the evidence there were a number of persons in the two-level apartment – perhaps as many as eight (M.P., her grandparents, M.P.’s mother, E.J., A.T., the accused and T.). It is not entirely clear that L. was present. Committing a sexual assault with others present in a residence risks detection from persons observing the misconduct, hearing a call for help, or receiving an immediate report of abuse from the victim. Because an offender generally seeks to avoid being caught, such an environment may legitimately be viewed as an unlikely venue in which to act on sexual impulses which would result in commission of a crime. That said, on M.P.’s evidence, shortly after E.J. left the upstairs hall, and with the other adults downstairs, in a darkened room (except for the TV) with the bedroom door “slightly open”, after a hall check by the accused, she was briefly sexually assaulted in circumstances where no one’s clothes were removed. On the evidence accepted by the court, an opportunistic sexual assault did occur as described by the complainant. As a person in a position of trust and authority, the accused assumed the risk confident that M.P. would not resist, summon help, or report what he did.

[156] On the facts as found by the court, the ‘lack of resistance’ – questioning of M.P., and her answers, did not serve to impair the credibility of her account. M.P. informed the court that she did not fully appreciate what was happening. This was her uncle. He was an adult. He was bigger and muscular. When she tried to push back, he pulled her back to the position he wanted. He had her pinned. She suffered from a sore throat. The unexpected and intrusive sexual assault, in all its dimensions, lasted only about two to three minutes.

[157] Mr. Mattis is quite correct that no forensic evidence was a part of the prosecution. In this case, that fact is effectively neutral amounting to nothing more than an absence of confirmatory evidence connecting the accused to the commission of a sexual offence. No one reported looking for or finding a stain on the bed. With M.P.’s panties and shorts unremoved during the brief intercourse, and M.P.’s belief that no ejaculation occurred, it cannot be said that a staining was likely. There is no evidence that the rape kit examination in these circumstances, conducted some days later, would be expected to reveal probative evidence one way or the other. The garbage from the upstairs bathroom went down the apartment garbage chute in the ordinary course. M.P. explained the laundering of her June 9 attire, again tested days later after the washing, with no evidence that anything of probative value would predictably be discovered or not relating to M.P.’s account. There is no suggestion that M.P. deliberately attempted in any fashion to defeat forensic inquiry of her allegation.

[158] The form and pace of the disclosure of the sexual abuse to others by M.P. raises no concern about the credibility of the complainant’s account. M.P. variously described herself as being afraid to tell, in shock, scared, and the recipient of communications from her uncle as to why she should not speak to anyone about what had occurred. I accept the evidence of M.P. and D.A. that within a couple hours of the alleged assault, after numerous efforts to reach D.A. on his cellphone, the complainant reported what her uncle had done to her. The court’s inability to resolve the conflicting evidence as to whether D.A. had been the victim of sexual abuse does not detract from a finding that the call late on June 9 was a genuine disclosure communication. We understand that youthful complainants can be hesitant to report to family members an occurrence of intra-familial sexual abuse. Taking disclosure of breach-of-trust abuse outside the home, including to a school counsellor, is hardly unusual.

[159] E.J. was an impressive witness. Her evidence is accepted. On June 9, 2012, the witness found the accused very close to M.P. on the bed with his arm and hand draped over the complainant. When she appeared at the doorway and spoke, the accused moved or shifted. When E.J. arrived at the bedroom the accused was not standing at the foot of the bed as he claimed. E.J.’s first language is Creole and the court accepts that when she was interviewed by the police she was quite upset and did not provide all of these details she truthfully narrated at trial. As a trained teacher, the witness had an instant impression of the circumstances she observed such that she immediately spoke to J.J. about her concerns.

[160] The witness’ evidence that she spoke to J.J. about her concerns more than once on June 9 is also accepted in preference to J.J.’s testimony. J.J. presented as a witness with a vaguer recollection of events and as a person committed to not providing evidence which might have the effect of taking any side in this case. This court accepts without reservation E.J.’s description of M.P.’s changed demeanour immediately after the sexual assault.

[161] There was evidence capable of corroborating or confirming in some measure M.P.’s evidence of being sexually assaulted by her uncle. The complainant showered shortly after 6:00 p.m. On the testimony of E.J., M.P. was again showering that evening – conduct consistent with a young girl cleaning herself after being raped. There is also evidence of M.P.’s demeanour on June 9 before and after the 8:00 to 9:00 time period as described by E.J.. D.A. described M.P. as nervous, scared, hesitant and in need of comforting in the phonecall to him after 10:00 p.m. on June 9. On June 13, D.A. observed M.P.’s mood to be “really different” than what he had previously seen. Finally, Ms. J.M. described M.P. as teary and “very upset” on June 14 in disclosing what happened to her.

[162] In addition, the evidence of E.J., accepted by the court, of her discovery of the accused in the bedroom at the relevant time with his arm and hand draped over M.P., and his shift away, is consistent with the accused engaged in a certain degree of physical familiarity with his niece.

[163] Apart from the court’s acceptance of the complainant’s evidence beyond a reasonable doubt, as said, the accused’s evidence of denial is rejected. In presentation and content, the accused was entirely unpersuasive. He did attempt to distance himself, in 2012 and here at trial, from the complainant. In his 2012 videotaped statement provided to the police, without mistake or confusion on his part, and contrary to his trial testimony, the accused sought to give the impression that M.P. was not in the bedroom with him but that she might have just come by to say “hi”. As discussed, the accused’s trial testimony that he was standing by the bedroom door ready to leave when E.J. came by is simply not true – this amounted to a contrived effort to escape his physical proximity to M.P. by E.J..

[164] The accused’s evidence was strained in its attempt to describe the inability of the bedroom door to close without hitting the bassinet. A.T. advanced a different reason for the door not being able to close – that a hook for hanging towels and a robe impeded full closure. In any event, at two relevant points, whether or not the door was fully closable as maintained by M.P., on the evidence accepted by the court it was not fully open: (1) the door “was ajar” when E.J. peeked into the room, and (2) the door was slightly open as described by M.P. when she was assaulted.

[165] A.T.’s testimony as to her travel on June 9 to and from the bedroom where T. was located did not eliminate the opportunity for the offence to take place. In her evidence, it seemed to the court that the witness sought to exaggerate her supervision role in the residence as well as innuendo relating to D.A.. As a witness, A.T. quite transparently and unconvincingly acted as an advocate for her husband including the volunteered observation that in the apartment, “the floors and everything is crinkly (sic) so if anything is happening upstairs…”.

[166] The prosecution has established beyond a reasonable doubt, on the whole of the evidence, that the accused digitally penetrated his niece’s vagina before forcing sexual intercourse upon her. Accordingly, the s. 151 Criminal Code charge has been proven.

CONCLUSION

[167] The accused is found guilty as charged.

Hill J.

Released: June 20, 2016

CITATION: R. v. W.T., 2016 ONSC 3943

COURT FILE NO.: CRIMNJ(P) 522/13

DATE: 20160620

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

• and -

W. T.

REASONS FOR JUDGMENT

Hill J.

Released: June 20, 2016