CITATION: R. v. R.D., 2017 ONSC 1856

COURT FILE NO.: CR-15-7436

DATE: 20170428

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

R.D.

Defendant

Jill Witkin, Counsel for the Crown

Corbin Cawkell, Counsel for the Defendant

HEARD: February 6-10, 13, 16, 17 and March 6, 2017

REASONS FOR DECISION

PUBLICATION RESTRICTION NOTICE

Pursuant to subsection 486.4 of the Criminal Code, there is a ban on

disclosing the name of any person involved in the proceedings as a party or

a witness or any information likely to identify any such person. This

Judgment complies with this restriction so that it can be published.

CHARNEY J.:

Background

1R.D. is charged with sexual assault, sexual interference and invitation to sexual touching of the complainant, J.F. who was under the age of 14 at the time of the alleged assault (the alleged offences having occurred before the age of consent was raised to 16 years of age in 2008). The Crown alleges that R.D. sexually assaulted J.F. at a swimming pool party for R.D.’s son sometime between September 1, 2001 and June 30, 2003. The allegation relates to a single incident at the pool party.

Complainant’s Evidence

2The complainant, J.F, was born in 1994. He was 8 years old and in grade 3 at the time of the incident. He attended a private school with the accused’s son, and was invited to attend the son’s birthday party at the house where the accused lived with his son and the rest of the family.

3The accused’s family home had an indoor pool, and the party was a swimming and sleepover party attended by the seven or eight boys in the class. The complainant was in the same class as the accused’s son, but they were not close. The complainant testified that he had never been to the house before, and was reluctant to go to the party because he was shy and had never been to a sleepover before, but was persuaded by his parents to attend. The plan was that he would call his parents to let them know whether he would stay for the sleepover.

4The complainant changed into his bathing suit in the change room adjacent to the pool but did not want to swim and testified that he sat by the side of the pool. He was the only one who did not go in the water. The complainant testified that only boys attended the party.

5The accused was the only adult in the pool area and was responsible for supervising the children while they were swimming. The accused’s wife was upstairs preparing the food. J.F. testified that he felt that the accused was acting like a child at the party, swimming with the children and hitting them with pool noodles.

6J.F. alleges that after about one-half hour the accused told him that he had to shower because he had been in the pool area near the chlorine. The complainant went to the shower adjacent to the change room. The accused told him to take off his bathing suit, and he did so. The complainant then went into the shower.

7J.F. alleges that after a few seconds the accused joined him in the shower. The accused was also naked and proceeded to wash the complainant’s body and hair. J.F. thought that maybe this was just what their family did. Soon the accused started to touch J.F.’s penis. The accused then took the complainant’s hand and placed it on the accused’s penis, which was erect. The complainant was standing to the accused’s left, facing the wall, and the accused was behind him. The complainant turned his head around a few times to see what was going on. The accused kept the complainant’s hand on his penis for about 15 seconds, moving it in a “masturbatory motion”. The accused started moaning and the complainant thinks that the accused ejaculated, but did not know what that was at the time.

8The accused left the shower and said nothing to anyone.

9J.F. stayed in the shower for a few more minutes. He felt “grossed out and confused, angry and guilty”. Then J.F. got out of the shower and got dressed. After that his memory is foggy. He recalls that he went to the living room with the other kids, and the accused was there but acted like nothing had happened.

10The complainant’s parents called the party to check on their son. He told them that he wanted to go home. The complainant’s father came to pick him up and he left the party soon after the incident and did not sleep over.

11He had no contact with the accused after the incident. He never told anyone what had happened until he was sixteen or seventeen years old.

12At the time of this incident the complainant testified that he was confused. He did not know about sex and thought that maybe he had done something to invite this.

13The complainant testified that he buried this memory for several years. He said that the years following he did not really think about it at all. “Whenever a memory would pop up I would supress it”. What happened in the shower only came back to him when he was a teenager.

14The complainant testified that when he was 13 or 14 years of age he was driving in the car with his mother and heard a woman being interviewed on the radio. The woman was remembering a sexual assault that had happened when she was young, but the woman had blocked it out of her mind for several years. He was very emotional when he heard this – he testified that he became hysterical - but did not understand why. He did not feel at that time that it was about him because he had no memory of the incident in the shower, but this was the first moment he realized that something like that could have happened to him.

15As time passed he “realized the truth”. One day in band class when he was in grade 11 he started to think about the incident in the shower, and he realized what had happened. He remembered that there was a shower and a pool party, but did not recall any of the details, such as his friend’s last name. He was about 16 years old. He understood that his memory was not just of his friend’s father being awkward, but was the memory of a sexual assault.

16Having recalled the assault, he was despondent for a couple of weeks, and decided to tell his mother what had happened, but did not tell her all of the details. He told her about a month after he had the recollection in band class. He recalled that the assault had occurred in the shower at the pool party, but did not remember the name of the accused. J.F. testified that after this revelation his mother told him that the father of the boy who had the pool party had been arrested for child pornography. J.F. testified that he did not recall knowing that the accused had been charged with child pornography prior to telling his mother about the incident in the shower.

17J.F. testified that he eventually told his psychologist about this incident, but not until after he revealed it to his mother.

18At the time he did not want to report what had happened to the police because he waited so long to tell anyone about it. He did report what happened to the police in March of 2015 when he was 20 years old because he felt that it was the only way to obtain closure.

Other Witnesses

T.F. - J.F.’s mother

19The complainant’s mother, T.F., also testified. She confirmed that the complainant was invited to the pool party when he was in grade 3, and that he was reluctant to go. J.F. was not friendly with the boy having the party, but all of the boys in the class were invited. She and the complainant’s father encouraged him to go to the party by telling him that he would not have to sleep over. She did not know the parents of the boy having the pool party.

20While J.F. was at the party the complainant’s father called the house and spoke to the mother of the boy having the party to see how things were going. The mother said that the complainant was OK, but they decided to pick him up, and the complainant’s father drove him home from the party. That was the only time the complainant had been to the accused’s home. The complainant never went to any other pool parties until he was in high school.

21T.F. confirmed that when the complainant was a teenager in grade 11 (16 years old) he confided in her about the incident in the shower at the pool party. He knew the incident had happened at a pool party and that he was about 8 years old, but could not remember the man’s name. He did not want to inform the police at that time. J.F.’s mother testified that the complainant’s recollection “made sense” because it was the only pool party he had been invited to.

22In 2005 the accused was charged with possession and making of child pornography. The defence has taken the position that this prior charge is relevant to the charges in this case because, the defence argues, the complainant’s memory of the incident at the pool party arose only after the complainant learned that the accused had been charged with offences relating to child pornography. It is the defence position that the complainant’s “recovered memory” was not a real memory but the result of his mother asking or suggesting to him that he had been abused by the accused at the pool party when she heard about the child pornography charges against the accused.

23T.F. was asked when she became aware that the accused had been charged with child pornography. She could not remember the exact year, but it was after J.F. had already moved to a different school (grade 5 was J.F.’s last year at that private school). T.F. was told about the charges by the mother of M.S. who had also attended the private school with J.F. and the accused’s son. The mother of M.S. was concerned because her son was a very close friend of the accused’s son and was at the accused’s house all of the time (M.S. is the witness referenced below). T.F. testified that she was not concerned about J.F. because J.F. had only been to the accused’s home the one short period of time for the pool party. She did however speak to the complainant about it saying something like “I have heard that J’s dad was charged with child pornography, it is very upsetting.” She did not know more than that. T.F. testified that this conversation occurred a few years before J.F. told her that he remembered being sexually assaulted at the pool party.

24The complainant’s mother had no recollection of the incident when J.F. was 13 or 14 years of age and he became emotional in the car when hearing a radio interview with a woman remembering a sexual assault. While this was clearly an important memory to the complainant, it was not an incident that stayed with his mother.

M.S.

25The court also heard the evidence from M.S., one of the other boys who attended the pool party and a classmate of J.F.’s when they were in grade 3.

26M.S. was best friends with the accused’s son, and went to their house once every week or two. He remembered the complainant and the pool party and could recall the names of some of the other classmates who were at the party. He recalled that all of the boys in the grade were invited to the party because it was a small class and it would not be fair to exclude anyone. He remembered that one of the boys did not sleep over at the party, but could not recall which one.

27M.S. recalled that everyone got changed and swam. He does not remember anyone staying out of the water. He remembers the accused being in the pool swimming. He said that the accused tried to get the boys to shower together (3 or 4 at a time), and to shower before they got into the pool. M.S. testified that the accused would encourage the boys to shower naked.

28M.S. remembers J.F. crying in the change room at one point, but the other boys ignored the crying. The accused and the other boys were in the change room at that time. He thought they spent more time in the change room than in the pool, but was not sure. They might have spent up to an hour in the change room.

29M.S. also stated that the shower was open to the change room: “you could look out and see the whole change room”. He agreed that someone in the change room could clearly see what was going on in the shower.

30He stated that the accused was a “pretty touchy guy”, and would sometimes make contact with private areas of the body like his penis, but would make it seem like an accident. He thought it was too much contact to be accidental. Most touching was when he was clothed, but once in the change room (he could not recall when) M.S. was not clothed and the accused touched M.S.’s penis “accidently” with the back of his hand. M.S. testified that the accused would always have his camera with him, including in the change room and the pool area.

31M.S. was told about the accused’s child pornography charges by his mother when he was about 14 or 15 years old, but his mother told him not to discuss it with anybody. He did not discuss the child pornography charges with the complainant (in fact the two were no longer in the same school by that point).

32M.S. also testified that he remembers the accused’s 14 year-old daughter was at the pool party and swam naked. He thought that was “weird”. The accused encouraged the boys to take off their bathing suits in the pool. M.S. remembers that some of the boys at the pool party ended up swimming naked.

33On cross-examination M.S. stated that he was not really sure if the accused’s daughter was at the pool party because he was at the house so many times it “all sort of blended together”.

34M.S. did not think that the accused’s behaviour was wrong or odd at the time, but in retrospect he realizes it was inappropriate.

L. F.

35L.F. was the accused’s wife at the time of the pool party. She recalls the pool party, although does not have any specific recollection of J.F., since he was not a close friend of her son’s. She was in the kitchen with her youngest child (then 2 ½ years old) and preparing the food for the party while the children were swimming. She could not see the pool from the kitchen. Her husband, the accused, was supervising the pool party.

36She testified that the shower could fit 2 persons. The pool rules were explained before people went into the water and included the rule that there always had to be an adult on deck to supervise, children were never left unattended in the pool, people had to shower after swimming (but not before). There were no girls at the pool party and absolutely no naked swimming at this pool party. She stated that her daughter never swam naked in front of M.S., and at the time of this pool party her daughter was 11 years old.

37She testified that the shower was down the hallway from the change room and that you cannot see the shower from the change room.

Admissibility of Expert Evidence

38At the end of the Crown’s case the defence sought to call Ms. Lindsay Fitzsimmons, a Ph.D. candidate (doctoral student) in the Clinical Developmental Psychology program at York University. She has provided clinical psychological services in hospitals and mental health institutions over the last several years and has taught Psychology and Law at York University’s Glendon Campus in 2014 and 2015. She has recently contributed a section on recollections of historical abuse to a book chapter about memory in the justice system.

39In preparation for her testimony Ms. Fitzsimmons read the transcript of the videotaped statement the complainant gave to the police on March 31, 2015, the transcript of the Preliminary Inquiry held on February 1, 2016 and was present for the direct and cross-examination of the complainant and his mother at the trial. She prepared a report outlining the nature of her proposed evidence.

40I held a voir dire on February 16, 2017 to determine the admissibility of Ms. Fitzsimmons’ proposed evidence. I heard from Ms. Fitzsimmons regarding her qualifications and the nature of her proposed evidence.

41Her expert report is divided into two sections. The first is a general description of memory science and the cognitive and social psychological research on human memory and social influence. She makes the following observations:

a. Sometimes memories suffer from “source confusion” – an inability to distinguish information acquired at the time of an experience from information that may be added later on. Sometimes people confuse actual events with imagined ones.

b. Inaccurate accounts of past experiences can arise because we unconsciously reconstruct an event based on what we think we know, rather than on actual memories.

c. When witnesses rely on memory, errors can occur. Memories of details fade over time, and gaps in memory can be compensated for by assumptions unbeknownst to the witness.

d. Memories are susceptible to post-event information. The combining of new information with old occurs unconsciously and makes it hard to know which facts came from which time period.

e. Emotionally impactful experiences (trauma) tend to be well remembered.

f. Sometimes an individual can “remember” an entire event as if they had experienced it, even if it never occurred. Through “imagination inflation” a person can remember an event that in reality they only imagined. Such memories seem real to the person describing it. The person will sound credible and sincere and convincing even though they are wrong.

g. Psychologists have been unable to find a way to distinguish between true accounts and those that are the product of imagination inflation.

42The second part of her report and proposed evidence is a review of the evidence provided by the complainant and his mother and her assessment of her “concerns” regarding the reliability of the complainant’s evidence. She states: “recovered memories should be viewed with caution”. And while she has “no opinion on the truth or falsity of the complainant’s allegations”, she concludes that “The veracity of his account…should be evaluated in the context of our understanding that memory is not always a faithful depiction of the past.”

43On February 16, 2017 I gave brief oral reasons for not permitting the defence to call Ms. Fitzsimmons as an expert witness, indicating that I would provide more complete reasons later. These are those reasons.

44There have been a number of cases in which defence has sought to call memory experts to provide testimony on the frailties of human memory and the susceptibility of memory to distortion through suggestive interactions, source confusion and imagination inflation. For the most part, courts have concluded that such expert evidence is not admissible because it does not meet the “necessity” step of the four criteria from R. v. Mohan, 1994 CanLII 80 (SCC), [1994] 2 S.C.R 9. These courts have concluded that such information regarding the limitations of human memory are well within the experience of judges and all triers of fact.

45A recent such example is the case of R. v. B.W.W., 2017 ONSC 985. This case is one of several to consider the admissibility of the evidence of Dr. Tim Moore, a professor of psychology at York University’s Glendon Campus with expertise in cognitive psychology, which includes “memory science”.

46I mention Dr. Moore by name because he is the Supervisor of Ms. Fitzsimmons’ doctoral program at York University, and has been Ms. Fitzsimmons’ supervisor at York University at each level of her psychology studies. The analysis applicable to the admissibility of Dr. Moore’s evidence is equally applicable to that of his student, Ms. Fitzsimmons.

47In B.W.W. Fairburn J. summarized Dr. Moore’s proposed opinion evidence regarding imagination inflation and source confusion and the possibility that people, often children, will confuse actual events with ones they have overheard or imagined. He relies on the same studies regarding “false autobiographical memories” as relied upon by Ms. Fitzsimmons. Indeed, portions of Dr. Moore’s report, including his conclusion, are identical to those of Ms. Fitzsimmons. Fairburn J. states (at para. 15):

While his report suggests that he has no opinion on the truth or falsity of the complainant’s allegations, he feels that the “veracity of her account … should be evaluated in the context of our understanding about how memory can sometimes be a less-than-faithful depiction of the past”.

48Proposed expert evidence must meet the four preconditions established by Mohan before being admitted for consideration by the trier of fact. These criteria are: (i) relevance, (ii) necessity in assisting the trier of fact, (iii) absence of an exclusionary rule (other than the opinion rule), and (iv) a properly qualified expert. Provided the applicant satisfies the court as to the existence of the four Mohan criteria, the court will go on to consider whether the proposed opinion evidence is sufficiently beneficial to the trial process to warrant admission, despite the “potential harm to the trial process that may flow from the admission of the expert evidence”: R. v. Abbey, 2009 ONCA 624, at para. 76.

49In dismissing the application to call Dr. Moore as an expert, Fairburn J. did not question Dr. Moore’s qualifications as an expert in psychology. She was prepared to assume that Dr. Moore’s evidence regarding the formation of memories and what renders them susceptible to falsity met the criterion of relevance. Fairburn J. concluded (at para. 23) that Dr. Moore’s evidence failed on the necessity requirement. She stated (at paras. 24 – 27):

I find that what Dr. Moore has maintained in his report, and testified to on the voir dire in this trial, is well within the experience of judges and, in fact, all triers of fact.

There is nothing unique about the facts in this alleged sexual assault case. S.L. disclosed the alleged conduct to her mother and the authorities were not told about the alleged conduct until it was later mentioned at school. If Dr. Moore’s opinion evidence was required to make proper credibility and reliability assessments in this case, one might reasonably question when this type of opinion evidence would not be required.

At its core, I understand Dr. Moore’s opinion to be that people can develop false memories. Children are not immune to this phenomenon, and, indeed, are likely more susceptible to falling victim to false memories. False memories can arise from, among other things, the communications that occur with others. Dr. Moore opines that T.S. may have, “without realizing it”, led S.L. to believe what she now believes. He says that there is simply no way of knowing. Such conjecture could apply in any case. This is not a basis upon which to admit expert evidence.

Moreover, nothing about false, inaccurate, untruthful, misleading, unreliable and incredible memories is new. S.L. testified and was thoroughly cross-examined. As Rosenberg J.A. held in R. v. T.C. (2004), 2004 CanLII 33007 (ON CA), 190 O.A.C. 380, at para. 32, when approving of the decision to exclude this expert’s evidence in circumstances where there was an attempt to have him testify regarding a videotaped statement of a child witness, most of the testimony concerned matters that were “self-evident”. They were described as being the “stock and trade of what trial judges do day in and day out”. While Dr. Moore’s area of social science is interesting and undoubtedly important, the need to be informed of it in this case is entirely unnecessary.

50In addition, Fairburn J. was concerned that Dr. Moore’s evidence touched on an exclusionary rule because it purported to comment on the credibility of the witness’ evidence even though he did not express an opinion on the truth or falsity of that evidence. Fairburn J. stated (at paras. 28 – 31):

There is a difference between opinion evidence “about credibility” and opinion evidence “relevant to credibility”: Paciocco, D., Stuesser, L., The Law of Evidence in Canada, Seventh Edition, (Irwin Law Inc.: Toronto, 2015), at pp. 204-5. This concept was dealt with by Charron J.A., as she then was, in R. v. K.(A.) (1999), 1999 CanLII 3793 (ON CA), 125 O.A.C. 1. She cautions that the credibility of witnesses is a question that is exclusively reserved for the trier of fact: see para. 95. As noted in R. v. Marquard (1993), 1993 CanLII 37 (SCC), 85 C.C.C. (3d) 193, at p. 228, and cited by Charron J.A. as support in K.(A.), it is “a fundamental axiom of our trial process that the ultimate conclusion as to the credibility or truthfulness of a particular witness is for the trier of fact, and is not the proper subject of expert opinion”.

…With that said, the difference between an expert providing an opinion “about credibility” and “relevant to credibility” is a fine line and one that I am concerned is crossed in this case. In K.(A.), at para. 96, the majority discussed the necessary distinction between “evidence about credibility” which is clearly inadmissible, even when proffered in expert clothes, and “evidence about a feature of a witness’s behaviour or testimony that may be admissible even though it will likely have some bearing on the trier of fact’s ultimate determination of the question of credibility”. An example is provided to highlight the point. It may be proper to tender evidence to show that it is not unusual to delay reporting sexual abuse. However, evidence tendered to show that the complainant is “more or less likely to be telling the truth because she delayed reporting the abuse is not the proper subject-matter of expert testimony and is inadmissible”: see K.(A.), at para. 96.

Among other things, Dr. Moore has commented in his report on some facts that may impact S.L.’s credibility… He addresses a few of his concerns, including what is said to be an evolution of S.L.’s memory regarding whether she experienced pain during the assaults... he concludes that “it is difficult to reconcile” the fact that she originally suggested there was no pain, with her later position that there was significant pain.

It is difficult to see these comments as anything other than directly remarking on S.L.’s credibility and reliability. I find that this evidence risks crossing, if not entirely crosses the line between testifying about matters relevant to credibility and testifying about credibility itself. While Dr. Moore disavows rendering an opinion on the truth or falsity of S.L.’s allegations, he comments on her evidence and, at a minimum, implicitly suggests his concerns regarding her credibility and reliability.

51These comments apply with equal force to the second part of Ms. Fitzsimmons’ evidence, which comments directly on the evidence given by the complainant and his mother, and in my view does cross the line to become a comment on the complainant’s credibility and reliability. As I advised counsel for the defence, all the concerns raised in Ms. Fitzsimmons’ report regarding the complainant’s testimony can be made by counsel for the defence in his closing submissions when he reviews the evidence and makes submissions thereon. These may all be legitimate concerns, but counsel does not need an expert to make them, nor do they carry more weight because they are advanced by someone with expertise in “memory science”. As many courts have expressed before me, the courts are aware of the frailties of memory discussed by Ms. Fitzsimmons, and it is certainly my intention to take them into account when I assess the evidence in this case.

52Accordingly, I agree with Fairburn J.’s analysis regarding the admissibility of Dr. Moore’s evidence and I adopt it with regard to the very similar evidence being proffered by Ms. Fitzsimmons in this case.

53As indicated, Fairburn J.’s decision in B.W.W. was not the first to rule Dr. Moore’s expert evidence inadmissible.

54In HMQ V. Patrick Sikorski & Daniel Griffiths, 2013 ONSC 5471, Nordheimer J. concluded that Dr. Moore’s proposed evidence should not be admitted, stating (at para. 15, 17):

I do not require an expert to inform me about the frailties of memory. Frailties of memory are evident in virtually every trial that is held. Trial judges, like juries, are constantly faced with considerations as to whether they can rely on the recollections of witnesses regarding events that are in issue…

The issue of memory, in this context, is not outside the experience of a judge or jury. As individuals we are confronted with the failures of memories, both our own and others, on a constant basis. From an early age, we become familiar with failed memories, inaccurate memories and unreliable memories. An expert is not required to explain the realities of those conditions or the caution that anyone should adopt when deciding whether to accept events recounted by a witness especially many years after those events occurred.

55In R. v. T.C. (2004), 2004 CanLII 33007 (ON CA), 72 O.R. (3d) 623, the Ontario Court of Appeal dealt with the admissibility of similar evidence from Dr. Moore in another sexual assault case. Rosenberg J.A. stated: (at paras. 32- 33):

The trial judge gave lengthy and detailed reasons for holding that Dr. Moore's evidence was inadmissible. In summary, she found that the evidence did not meet the necessity element of the test as set out in R. v. Mohan, 1994 CanLII 80 (SCC), [1994] 2 S.C.R. 9, 89 C.C.C. (3d) 402. She held that the observations Dr. Moore made on the voir dire were apparent from the videotaped interview and a lay person could make the same observations and take them into account in assessing the probative value of the complainants' evidence.

We did not call on Crown counsel to respond to this ground of appeal. Most of Dr. Moore's testimony concerned matters that were self-evident, such as the effect of leading questions, refreshing a witness's memory, the need for the child to understand the duty to tell the truth and failing to explore inconsistencies. This is the stock-[in]-trade of what trial judges do, day in, day out. Thus, most of Dr. Moore's proposed evidence would have been of no additional assistance to the trial judge. Even if the trial judge erred in excluding the evidence, that ruling could not have prejudiced the appellant. Through the voir dire, the trial judge was made aware of Dr. Moore's concerns about the manner in which the interviews were conducted and she was able to and did expressly take them into account in assessing the complainants' credibility.

56Dr. Moore’s expert evidence on memory science has also been held to be inadmissible in similar circumstances on the ground that it failed to meet the “necessity” criterion in: R. v. M.U. [2005] O.J. No. 4590 at para. 4, R. v. Qahwash, 2011 ONSC 6388 at para. 18, R. v. S.W.S., 2005 CanLII 44187 (ON SC) at para. 12 and R. v. Morgan, 2013 ONSC 6462 at paras. 384 – 387.

57I note that Dr. Moore’s expert evidence was admitted in the following cases: R. v. J.F., 2015 ONSC 3067, R. v. M.C., 2012 ONSC 868 (at para. 69, but for limited purpose), R v AA, 2013 ONSC 7124 (at paras. 33 – 35), and R. v. F.C., 2015 ONSC 6428.

58Defence also proffered a “Position Paper” on Adult Recovered Memories of Childhood Sexual Abuse prepared by the Education Council of the Canadian Psychiatric Association and published in the Canadian Journal of Psychiatry. This position paper advises that “reports of recovered memories that incriminate others should be handled with particular care”, and “reports of recovered memories of sexual abuse may be true, but great caution should be exercised before acceptance in the absence of solid corroboration”.

59Medical texts, journal articles and position papers are inadmissible unless introduced through an expert witness who is prepared to adopt the statements in the publication and be subject to cross-examination. It would make little sense for the court to dismiss the defendant’s application to call Ms. Fitzsimmons as an expert but permit defence counsel to rely on the text of a paper unconnected to an expert witness. The proposed evidence fails the necessity test of Mohan regardless of the form in which it is proffered. While these cautions are legitimate caveats for the court to keep in mind when assessing the reliability of the evidence, they are an inherent part of the “proof beyond a reasonable doubt” standard in criminal law.

Analysis

60The issue in this case is straightforward. Based on the evidence as a whole, has the Crown proven beyond a reasonable doubt that R.D. touched J.F. for a sexual purpose or invited J.F. to touch him for a sexual purpose?

61In conducting this analysis I begin by adopting the following rules for reviewing and assessing evidence set out in R. v. E.G., 2016 ONSC 4884, at paras. 15 – 22 (citations omitted):

In order to decide whether the Crown has proven the charges beyond a reasonable doubt, all of the evidence should be considered, rather than assessing individual parts of the evidence in isolation… This is particularly true where the main issue is the credibility and reliability of witnesses.

Credibility is a witness’ willingness to tell the truth. Reliability is the accuracy of a witness’s testimony. Accuracy is affected by the witness’s ability to observe, remember and recount events.

The court must be satisfied beyond a reasonable doubt that the evidence in support of a conviction is both credible and reliable.

A witness whose evidence is not credible cannot give reliable evidence. However, a credible and honest witness may still be unreliable. … The reliability of the evidence is what is most important.

A guilty verdict may be founded on the evidence of a single witness where that evidence constitutes the bulk of the testimony on that issue.

The Complainant’s evidence need not directly implicate the accused or confirm the Complainant's evidence in every respect but should be capable of maintaining the trier's faith in the Complainant's account.

Inconsistencies in areas considered important may make a witness’ testimony unreliable

Parts of a witness’ evidence may be accepted and others rejected and different weight may be accorded to different parts of the evidence.

62There is no doubt that J.F. attended the pool party at the accused’s home at the relevant time. The accused concedes identity – he is the father of the child who had the party and he was supervising the pool at the relevant time. The defence takes the position that J.F.’s “recovered” memory regarding the incident in the shower was the product of suggestions put to him by his mother. The defence does not doubt that J.F. honestly believes that he was sexually assaulted at that party, but questions the reliability of his memories given that they were “repressed” or “buried” (to use the complainant’s words) and only returned to the complainant when he was approximately 16 years old.

63J.F. testified that his brain was protecting him by making him forget this terrible experience until he was ready to deal with it, and that there were periods when he could not remember this event at all. J.F. explained that he did not understand what was happening at the time, and he put it out of his mind until he was older and understood. The defence submits that the court must be particularly cautious about such recovered memories because they can be sincerely believed by the victim but the product of external influences.

64Defence relies on the case of H.M.T.Q. v. R.J.H., 2000 BCSC 891, in which the Court made the following statements regarding recovered memory (at paras. 122 – 124):

It is to be seen that the task of deciding whether the Crown has proven, beyond a reasonable doubt, that the recovered memories of the Complainants are reliable, is a most difficult one…

Obviously the easiest course to follow, (but not I hope the wisest), would be to accept the impossibility of the task, and find that nagging doubt. However, each case must depend on its own peculiar facts, and until a higher Court says that that is the case, the course to follow, as I see it, is to proceed with much caution.

I have concluded from what I have heard, and all of my readings, that recovered memories can be valid, and that the primary question is whether or not they have been induced or suggested, or otherwise influenced by others, or by other contaminating factors. If the Crown cannot prove beyond a reasonable doubt that the recovered memory is basically free from such influences, then acquittal must follow.

65The defence takes the position that the Crown has failed to meet this onus.

66The defence supports its position by pointing to several instances in which the complainant’s memory appears to have improved over time. For example, in the preliminary inquiry the complainant testified that he was not certain if he took his swim suit off before he went into the shower or once he was in the shower. At trial the complainant could remember that he took it off before the shower. At the preliminary inquiry the complainant could not recall which hand the accused used to move the complainant’s hand to his penis, at the trial the complainant testified that the accused used his left hand. At the preliminary inquiry the complainant could not recall anything that happened after the shower and stated that the details were foggy. In his testimony in court he remembered going upstairs with the other children to watch T.V. When the complainant gave his statement to the police he could not remember being driven home by his father, but in his testimony at trial he could now remember this. The complainant agreed that his memory of the events was improving with the passage of time.

67Defence argues that “improved memory” suggests that at least some of the complainant’s memories have been manufactured to fill in gaps in his memory. While the complainant honestly thinks that he remembers these details now, the reality is that memories fade over time, and any details remembered later in time are inherently unreliable and should raise a reasonable doubt about their accuracy.

68The defence also questions the logical coherence of the complainant’s story. For example, the accused’s former wife testified that there was a strict rule that children had to be supervised in the pool by an adult. For the complainant’s story to be true the accused would have had to leave some of the children in the pool area without supervision. In addition, the complainant testified that as he was going to the shower, other children were moving to the change room after him, and that there might have been other children in the change room while the complainant and the accused were in the shower. The defence argues that this would be particularly risky behaviour on the part of the accused, since other children could have entered the shower at any time. The defence argues that given these factors, the complainant’s testimony is improbable.

69Finally, in his testimony in chief at the trial, the complainant spoke of the accused putting the complainant’s hand on the accused’s penis. At the preliminary inquiry the complainant testified that he could also feel the accused’s erect penis touching him in the area of his right hip before the complainant’s hand was placed on the accused’s penis. When asked about this in cross-examination the complainant stated that the accused was “slapping” his penis on the complainant’s hip, although not aggressively. At the time the complainant testified that he was facing the shower wall with his back to the accused. Defence counsel asked how the accused’s penis could touch the complainant’s hip given that the accused is over 6 feet tall and the complainant was, at the time, an eight year old boy of perhaps 4 1/2 feet tall. The complainant answered that the accused could have been crouching.

70The complainant testified that when he first told his mother about his memory of the incident in the shower, he said to her: “I think I was abused”. Defence argues that this statement, prefaced as it is with the words “I think…”, reveals that the complainant was still uncertain about what happened, and his present certainty should be approached with wariness. When asked about the use of the words “I think”, the complainant explained that he was just trying to ease into the subject to gauge his mother’s reaction. He gave as a parallel the time a few years later when he told his mother that he was gay. He testified that he introduced that subject by saying “I think I might be gay”. He explained that he did not say this because he had any doubt about being gay, but because it was an easier way to introduce the subject to his mother.

71In analysing the evidence of J.F. I am guided by the decision of the Supreme Court of Canada in R. v. G.B., 1990 CanLII 7308 (SCC), [1990] 2 S.C.R. 30, at p. 54. While there is no lower standard of proof for cases involving the testimony of children, “a flaw, such as a contradiction, in a child’s evidence should not be given the same effect as a similar flaw in the testimony of an adult”. The evidence of every witness must be assessed taking into account their mental development, understanding and ability to communicate. “Since children may experience the world differently from adults, it is hardly surprising that details important to adults, like time and place, may be missing from their recollection.” (R. v. W. (R.) 1992 CanLII 56 (SCC), [1992] 2 SCR 122 at pp. 133-134.)

72While J.F. was not a child when he testified, he was a child when the incident in the shower occurred. In R. v. W. (R.) the Supreme Court stated:

In general, where an adult is testifying as to events which occurred when she was a child, her credibility should be assessed according to criteria applicable to her as an adult witness. Yet with regard to her evidence pertaining to events which occurred in childhood, the presence of inconsistencies, particularly as to peripheral matters such as time and location, should be considered in the context of the age of the witness at the time of the events to which she is testifying.

73J.F. testified that he did not understand what was happening at the time. It is hardly surprising that he cannot recall details such as whether the accused was circumcised, or whether the accused ejaculated in the shower. His present uncertainty regarding those details does not raise a reasonable doubt about his evidence.

74Similarly, J.F. did not recall that the change room was downstairs from the pool. There is no doubt that J.F. attended the pool party and went to the change room to change into and out of his bathing suit. Having only been at the pool once, when he was eight years old, the precise location of the change room is not a detail that I would expect him to retain. The fact that he has forgotten that the change room was down a flight of stairs is inconsequential.

75In addition, there is no presumption that victims of sexual abuse will disclose the abuse immediately or that a delay in disclosure necessarily makes it less reliable. (R. v. D.D., 2000 SCC 43 at paras. 59 and 63.)

76As noted in R. v. A.M., 2014 ONCA 769, [2014] O.J. No. 5241 (C.A.), inconsistencies vary in their nature and importance. When an inconsistency involves something material about which an honest witness is unlikely to be mistaken, it may demonstrate carelessness with the truth. However, a contradiction on a peripheral matter may not be similarly concerning. Minor changes in the telling of the story may be unimportant, but major changes are cause for concern.

77In assessing the evidence of any witness, I am entitled to consider their demeanour. In R. v. Gagnon, 2006 SCC 17, at para. 20, the Court acknowledged that “assessing credibility is not a science”. In R. v. O.M., 2014 ONCA 503, at para. 34, the Court of Appeal stated: “It is well established that testimonial demeanour is a proper consideration in the evaluation of a witness’ credibility”. It is one of many factors to be considered in the analysis. While a witness’s demeanour is an appropriate consideration when assessing credibility, the Ontario Court of Appeal has warned that: “Demeanour can…be misleading and should be factored into the credibility assessment with care.” R. v. D.P., 2017 ONCA 263 at para. 26.

78I appreciate that I must be particularly cautious in my assessment of the complainant’s demeanour given the defence theory that his evidence is the product of “recovered memories” that the complainant honestly believes to be true, but may be the product of “imagination inflation”. He may appear honest because he believes that he is telling the truth, see: R. v. Stewart (1994), 1994 CanLII 7208 (ON CA), 18 O.R. (3d) 509 (C.A.) at pp. 516-17. This case is primarily concerned with the reliability of the complainant’s memory rather than his credibility as a witness, and reliability is difficult to determine on the basis of testimonial demeanour.

79In analysing the evidence I make the following findings.

80I found the evidence of T.F., the complainant’s mother, to be credible and reliable. She was candid when she did not have a specific memory of a situation. She confirmed the fact that the complainant attended the pool party and that he was brought home and did not sleep over. She confirmed that that was the only time J.F. was at the accused’s home, and that he did not attend any other pool parties until he was in high school. She also confirmed the fact that she told the complainant that the accused was charged with child pornography a few years before he told her of his recollection of what happened to him in the shower at the party. I am satisfied from her evidence that she did not suggest to the complainant that he had been abused by the accused at the party. Based on her evidence she thought it unlikely because J.F. was at the home only once and for a short period of time. In addition, she testified that she told J.F. about the charges a few years before he disclosed his memory of the shower incident. This makes sense because the charges were laid in 2005 and J.F. told his mother about the shower incident around 2009/10. Accordingly, I am persuaded beyond a reasonable doubt that there is no correlation between the discussion of the child pornography charges against the accused and the complainant’s later recollection that he had been touched by the accused in the shower.

81While the evidence of M.S. confirms that there was a grade 3 pool party attended by the boys in the class and that J.F. was at the party, I am not prepared to attach any weight to any of his other evidence. M.S. was at the accused’s home many times over the years, and he acknowledged that the various times “blended together”. I reject his testimony that the accused’s daughter swam naked at the pool during the party. M.S. acknowledged that he was not certain of this evidence, and J.F. testified that there were no girls at the party, and that he did not even know that there were any sisters in the family. M.S. also recalled that the sister was 14 years old at the time, while L.F. testified that her daughter was only 11, and was quite adamant that there was no nude swimming. M.S. was a very reluctant witness who acknowledged that he had lied to the police in order to avoid testifying. He was often confused as to the chronology of events. It seems clear to me that M.S. has blended together a number of incidents and memories over the years such that his evidence as to what happened at the party or around the time of the party is unreliable and cannot be used to either corroborate or contradict the complainant’s evidence other than to confirm that the grade 3 pool party took place and that the complainant was there.

82L.F. was a credible and reliable witness. Her evidence also confirms the pool party, although she could not recall any of the details. While she confirmed the swimming pool rules that children had to be supervised at all times and shower after swimming, she could not see the pool area during the party and did not know whether the accused was supervising as required. Her evidence is important because she confirmed that the shower area was not visible from the change room and that the shower could fit two persons. Accordingly, it is quite possible that the accused touched the complainant in the shower even if other children were in the change room.

83L.F.’s evidence regarding the visibility of the shower from the change room is different than the evidence of M.S., who thought that you could see the shower from the change room. In this regard I prefer L.F.’s evidence because it was her house and, as an adult, she would have a more accurate memory of the floor plan of the house where she lived than a child who was only a visitor, albeit a frequent visitor, to the home.

84There are no real inconsistencies in the evidence given by the complainant. There are several instances in which the complainant’s memory appears to have “improved”, but these improvements do not relate to significant or important details or the essential elements of the offence or otherwise make me doubt the central narrative of his evidence. It may be that he does not really remember whether he took his swim suit off before or after getting into the shower, or whether the accused used his right or left hand to touch him, but those details do not go to the core of his evidence that he was naked in the shower and the accused touched him. Nor does the addition of such details raise a reasonable doubt regarding the complainant’s credibility or the reliability of his core narrative. Similarly, J.F.’s evidence that he now remembers being driven home by his father, and that he now remembers being in a room with the other children who were watching television after they got out of the pool, relate to peripheral matters that he may well have recalled later in time (given their relative insignificance), and in any event do not, in my mind, undermine his other evidence.

85I found J.F. to be a compelling and straightforward witness. He retained his composure throughout his evidence even while being cross-examined about what were very difficult intimate matters. The manner in which J.F. made the initial disclosure after he was old enough to understand the sexual nature of what had happened in the shower at the pool party is credible. His reasons for putting this incident out of his mind, for burying it, also rang true. He retained sufficient details about the touching in the shower to persuade me that this was not just some vague recollection. He recalled what the accused said to him to get him into the shower, and how the accused began by washing his body and hair before moving to more intimate parts. J.F. recalled the accused touching his penis and placing J.F.’s hand on the accused’s penis. He did not attempt to exaggerate his memories, and his evidence about the incident in the shower included as much detail as one could expect from a person who underwent a brief but troubling and confusing experience as an eight year old. His other memories in relation to the pool party are generally consistent with those of the other witnesses.

86As indicated, I am persuaded beyond a reasonable doubt that these memories were not the product of suggestions or influence by his mother or by any other person, such as his psychologist. J.F.’s evidence remained consistent throughout his testimony and cross-examination.

87While there was no corroboration about the touching itself, corroboration is not necessary, although I recognize that the court must proceed cautiously in its absence (R. v. W. (R.), at pp. 132-133). This is not a case in which corroboration is possible; the touching is alleged to have occurred in the privacy of the shower, which, according to the evidence of L.F., was not visible from the change room.

88The one aspect of J.F.’s evidence that does give me pause is his suggestion during the preliminary inquiry that he remembers he could feel the accused’s erect penis against the area of his right hip. J.F. confirmed this evidence when asked about it during his testimony. This evidence strikes me as unlikely given the height differential between the accused and the complainant when he was eight years old. The question for me is whether this detail, taken together with the other points raised by the defence, is sufficient to raise a reasonable doubt when viewed in the context of the evidence as a whole.

89In my view this incongruity, viewed in the context of the complainant’s evidence as a whole, is not sufficient to raise a reasonable doubt. The core of the complainant’s evidence is that the accused went into the shower with him, that both were naked, and that the accused touched his penis and placed the complainant’s hand on the accused’s penis. This evidence has remained consistent throughout J.F.’s testimony and statements previously given. If I do not have a reasonable doubt about this part of the complainant’s evidence, then the accused is guilty of the charges.

90It is quite possible, and even likely, that the complainant is mistaken in his recollection of the accused’s penis hitting his hip. The complainant’s back was to the accused at that time, and it is possible that some other part of the accused’s body touched the complainant’s hip. But even if his memory is inaccurate with regard to this detail, it does not, in my view, call into question the balance of his evidence about what occurred in the shower.

91Based on the evidence of J.F. and the other witnesses who testified I am satisfied beyond a reasonable doubt that J.F. attended the pool party at the home of the accused, that the accused told J.F. to take a shower and remove his bathing suit and went into the shower with J.F., began to wash him, touched his penis and placed J.F’s hand on the accused’s penis. I am satisfied beyond a reasonable doubt that the accused touched J.F. for a sexual purpose, invited J.F. to touch the accused for a sexual purpose, and that J.F. was under 14 years of age at the time.

92As a result, R.D. is found guilty of sexual assault, sexual interference and invitation to sexual touching.

Justice R.E. Charney

Released: April 28, 2017

NOTE: As noted in Court, on the record, these written Reasons are to be considered the official version and takes precedent over the oral Reasons read into the record. If any discrepancies between the oral and written versions, it is the official written Reasons that are to be relied upon.

CITATION: R. v. R.D., 2017 ONSC 1856

ONTARIO

SUPERIOR COURT OF JUSTICE