CITATION: R. v. A.A., 2017 ONSC 4810

COURT FILE NO.: 1853/16

DATE: 2017 08 10

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Her Majesty the Queen

– and –

A.A.

Sarah Stackhouse, for the Crown

H Bassi, for the Defence

HEARD: June 27, 28, 29, 30, 2017

REASONS FOR JUDGMENT

M.J. Donohue, j.

INTRODUCTION

[1] In May 2015, when she was 12 years old, Ms. N.A. disclosed to her teacher, and then police that, two or three years before, her father had touched her private parts when they were sharing a bed one night.

[2] Mr. A.A. is charged with sexual interference pursuant to s. 151 of the Criminal Code. The offence is touching a part of the body of a person less than 16 years of age for a sexual purpose.

[3] It was agreed by counsel that Ms. N.A. was under 16 years of age and that the touching described on the child’s vagina and breasts, if it occurred, was for a sexual purpose.

[4] The issue for the court was whether the Crown has proven beyond a reasonable doubt that the touching occurred.

[5] Mr. A.A. denied that the touching occurred and denied that he shared the child’s bed.

EVIDENCE BEFORE THE COURT

[6] The incident is alleged to have occurred during a time when Mr. A.A. and his wife were reconciled after a 2010 separation. The dates of the reconciliation were disputed.

[7] The complainant, Ms. N.A. now aged 14, testified, as did her 18 year old sister, Ms. Ar. A., her mother Mrs. R.A. and her teacher, Ms. Lynch. Ms. N.A.’s two videotaped interviews with police were admitted into evidence, on agreement.

[8] The accused, Mr. A.A. also testified.

GENERAL LEGAL PRINCIPLES

[9] The general legal principles that apply in every case have been recently reviewed in paragraphs 4-7 of the decision of Fairburn, J in R. v. W.(B.), 2017 ONSC 1774,137 W.C.B. (2d) 610.

[10] Keeping these principles in mind, I note:

[11] Mr. A.A. is presumed innocent. He started this trial with the presumption of innocence and the Crown carries the burden of displacing the presumption with proof beyond a reasonable doubt that he committed the crimes with which he is charged: R. v. Lifchus, 1997 CanLII 319 (SCC), [1997] 3 S.C.R. 320 (S.C.C.), at para. 27.

[12] A reasonable doubt is not an imaginary, far-fetched or frivolous doubt or one based on sympathy for or prejudice against anyone. It is a doubt based on reason and common sense and one that logically arises from the evidence or absence of evidence. While likely or probable guilt is not enough, it is nearly impossible to prove something to an absolute certainty.

[13] If after considering all of the evidence, I am sure that Mr. A.A. committed the offence, then I will be satisfied of proof beyond a reasonable doubt. If after considering all of the evidence or the absence of evidence, I am not sure that Mr. A.A. committed the offence, then I will not be satisfied of proof beyond a reasonable doubt. (See D. Watt, Watt’s Manual of Jury Instructions, 2^nd Ed. Thompson Reuters Canada Ltd. 2015, Final 13 “Reasonable Doubt”, and Lifchus, at paras. 36-40.)

[14] Mr. A.A. testified. In determining whether the Crown has proven beyond a reasonable doubt that he committed the offence, I must apply the principles set out in R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742 (S.C.C.). If I believe his evidence, his denial of wrongdoing, then I must find him not guilty. Even if I do not believe his evidence, but it leaves me in reasonable doubt as to his guilt, then I must find him not guilty. Even if his evidence does not leave me in a reasonable doubt regarding his guilt, I may only find him guilty if, based on the evidence that I do accept, I am satisfied of guilt beyond a reasonable doubt.

FACTUAL BACKGROUND WHICH IS UNDISPUTED

[15] In 1998 Mr. A.A. was wed to Mrs. R.A., by arranged marriage in India. He was a police officer there and she worked as a teacher. Their eldest daughter, Ms. Ar.A. was born in 1999. Their second and youngest daughter, Ms. N.A. was born in […] 2003.

[16] Mr. and Mrs. A.A. had a high conflict marriage, separation and divorce. The reconciliation period was also characterized as high conflict.

[17] Mr. A.A. rarely visited the children during both separation periods and admitted to stopping child support due to the conflict, at times. The girls were very close to their mother.

[18] The marriage was fraught with arguments from the beginning. In 2008 the family immigrated to Canada to seek a new life with new opportunities. They resided in a basement apartment of a house owned by Mr. A.A.’s cousin. The marital arguments continued in their new home.

[19] Generally, Mr. A.A. had a more affectionate relationship with his youngest daughter, Ms. N.A. The eldest daughter, Ms. Ar.A. challenged his authority.

[20] In early 2010 Mr. A.A. moved out of the home to an apartment a kilometer away.

[21] Mr. and Mrs. A.A. signed a separation agreement in March 2011, and a divorce was finalized in July or August 2011.

[22] It is agreed that Mr. A.A. returned for a time to the matrimonial residence in an attempt to reconcile. Mrs. R.A. phoned him and she and the children asked him to return.

[23] The date and length of this reconciliation is in dispute.

[24] During the time of the reconciliation Mrs. R.A. slept in one bedroom and the two girls slept in a Queen-sized bed in the second bedroom. Mr. A.A. slept on a bed in the living room area.

[25] In 2013 Mrs. R.A. filed a court application for custody of the children and for child support. At that time, Mr. A.A. was working in Alberta. In 2014 Mr. A.A. consented to the custody and support order which Mrs. R.A. sought. Child support was not regularly paid until 2015.

THE EVIDENCE OF THE INCIDENT

Evidence of Ms. N.A.

[26] Ms. N.A. testified that, after her parents divorced, her father returned to live with them for a time. She was nine or ten years old. [2012 or 2013].

[27] She had asked her dad a few days before to come sleep in the bed with her and her sister. She said she insisted, and after a few days he agreed to do so. She thought it was a Sunday night as she had school the next day.

[28] She wore underwear, pyjama pants and a green shirt with a school logo on it. She had bathed and washed her hair before bed.

[29] She woke that night with her hair sticking to her neck and became aware that he father’s hand was moving her shirt. He touched her breasts, licked them, and then moved his hand into her underwear, “touching her inside”. At her police interview she said he moved his fingers inside her private parts. At trial she clarified that the private part was her vagina.

[30] She testified that she froze and couldn’t speak. She tried to push his hands away. When he realized she was awake her father spoke to her in Punjabi not to tell anyone or he would hurt her or her mother or her sister. She could not say what Punjabi words he used.

[31] Her sister was sleeping on the other side of her father and did not wake.

[32] The next morning, when she woke, her father was gone. She dressed and went to school. She testified that this was the only time her father had slept in the bed with her and her sister

[33] Ms. N.A. described that “a while” after the incident, her father moved out. She said his parents had come to stay with them. He moved out and her mother was “still paying for them” and finally told her grandparents to go.

Evidence of Mr. A.A.

[34] Mr. A. A. testified that he did not live with his family in 2012 or 2013; that he never slept with his daughters; nor was he asked to. He testified that he did not touch Ms. N.A. as alleged.

THE TIMING OF THE RECONCILIATION

[35] Mr. A.A. testified that he did not live in the home in 2012 or 2013. He agreed there was a time when his wife phoned him and his daughters asked him to return to live with them. His evidence was that it was only for a month’s time and it was before the separation agreement was signed in March 2011.

[36] His eldest daughter was uncertain when he came back but related it to a time when they had bought a Queen-sized bed for the girls’ bedroom. She thought her dad was home for months.

[37] As noted above, Ms. N.A. described to police that her father was with them “awhile” and then his parents came to live with them as well. She related it to a time “after the divorce.”

[38] Mrs. R. A. testified that they attempted to reconcile in 2012, some time after the July 2011 divorce. She described family pressure by relatives. She said that she was finding it difficult for a single mother to survive in the Punjabi culture. “They are looked at differently.”

[39] She stated that he stayed about a year in 2012 and left around January 2013. She related the date to his parents coming to stay with them in September or October of 2012. She testified that his parents were still with her in January 2013 when her husband moved out. His parents later moved out and she moved her daughters to Brampton in March 2013. The move meant a new school for her youngest daughter, Ms. N.A., in mid semester but she simply couldn’t stay where she was. She recalled it was very upsetting for N.A.

[40] It was in 2013 that she started the court application for custody and support.

FINDING ON THE RECONCILIATION DATE

[41] I do not accept Mr. A.A.’s evidence when he describes reconciling for only a month, sometime between January 2010 and March 2011. He did not link the time to any other event other than to say it was before the separation agreement.

[42] Mr. A.A. did not contradict that his parents came to their home in the fall of 2012 and were still there when he left for the last time. I consider it unlikely that they would have come to stay with their daughter-in-law, Mrs. R.A., if their son was not also residing there.

[43] Mrs. R.A.’s story is also more credible because it relates his leaving in January 2013, followed by his parents leaving and then her own departure from the house where his extended family lived; the change of Ms. N.A.’s school and the commencement of the court application.

SHARING OF THE QUEEN BED

[44] Mr. A.A. testified that during the time of reconciliation he slept on the bed in the living room; he did not sleep with his wife; nor did he sleep with his daughters. He denies that Ms. N. A. asked him to share the bed in the girls’ room.

[45] Under cross-examination the Crown suggested that Mr. A.A. had admitted that on Saturdays and Sundays sometimes the girls slept with him. He was cross-examined on his statement.

[46] At trial he expanded that, on his bed in the living room, they would come and sit by him to watch television but not to sleep. He had told police, “…and when it is off on Saturday ….that day I may sleep with children otherwise they mostly sleep with their mummy. They will not sleep next to me, sir.”

[47] Read in context of his interview I find that he told police he had never slept in the same bed as his daughters and do not find he made an admission to doing so.

[48] Ms. N.A., the complainant, testified that it was only one time that they and their father slept in the bed together.

[49] Mrs. R.A. said Mr. A.A. sometimes slept in the girls’ bedroom and that her youngest, N.A. would ask him to sleep with them. She testified that it happened a “few times. Two-three times.” She told police that Mr. A.A. insisted on sleeping with his daughters. At trial she was less sure and no longer remembered.

[50] Ms. Ar.A. recalls her father sleeping with her and her sister a few times after they got the Queen-sized bed. She recalls waking and her dad was there. She does not remember her sister N.A. suggesting or asking if their dad could sleep with them.

VIOLENCE IN THE HOME

[51] All witnesses described a marriage filled with strife and yelling. Ms. N.A. said the yelling scared her.

[52] At trial, Ms. N.A. said she was frightened by her father’s Punjabi threat of harm because her parents had fought in the past. Shortly before, she saw her father hit her mother and kick a table. She thought she should not tell what happened so no one would get hurt.

[53] Under cross-examination Ms. N.A. altered her testimony about seeing her father hit her mother. When asked where he hit her mother she said she didn’t actually see it, rather she heard him hit her.

[54] To police, Ms. N.A. volunteered information that, once, her father had hit her to the ground and kicked her. He had been angry that she would not obey him by changing her clothes after her day at school. Neither her mother or sister were questioned about this story.

[55] Ms. N.A. denied feeling upset when her father left for the second and last time. She said she just felt relieved.

[56] Ms. Ar.A. described her parents fighting once and her father tried to hit her mother but she stopped him with her hand. She did not describe any other physical violence towards things or toward her sister or herself. She mentioned several times her father driving drunk and arguing with her mother.

[57] Mrs. R.A. described yelling arguments which caused her daughters to cry. She did not give any evidence of physical violence by her husband directed against either herself nor her daughters.

[58] Mr. A.A. testified that he never lost control nor hit his wife nor broke any objects.

FATHER NOT HOME

[59] Although Mr. A.A.’s relatives lived at the family location he rarely visited his daughters after January 2013. For a time, he was living in Alberta.

[60] Mr. A.A. recalls seeing the girls once after the court order was made in the fall of 2014 when he took them shopping to Bramalea City Centre. Ms. Ar.A. recalls the trip as well as seeing him in a parking lot on another occasion. Mrs. R.A. testified that he saw the girls perhaps two or three times.

[61] Ms. N.A. however said she recalled speaking with her father on the phone but did not remember ever seeing him again. She said she refused to see him. She had no memory of the Bramalea City Centre outing.

NIGHTMARES

[62] Ms. N.A. described nightmares after the incident that would not stop.

[63] Her mother, Mrs. R.A. said that she took N.A. to the doctor because of “nightmares and doing poorly in school.” She described the time frame however as starting when this case began, for the last two years.

DISCLOSURE TO THE TEACHER

[64] Ms. N.A. testified that she had nightmares of the incident happening again. After a while she pushed them away but in Grade 6 they kept coming back. She could not focus on anything. That is when she told her teachers “because I was doing bad in school.”

[65] Ms. Lynch was the Grade 6 teach for Ms. N.A. Ms. Lynch described the girl having a “fabulous personality” but for no reason she would “fall off” in academics. The teacher said her student scored so high across the board that it made no sense for her to do poorly on assignments.

[66] The teacher said there was no consistency in N.A.’s poor performance. Every few weeks N.A. would fail to do her homework or even a major project. Ms. Lynch thought the problem began early in the school year, 2014.

[67] On May 26, 2015 another teacher interrupted Ms. Lynch’s class saying that N.A. needed to talk to her. Ms. Lynch stepped out and N.A. said that she wanted to tell her something that had been bothering her for a long time, about her father.

[68] Ms. Lynch described N.A. as being upset and getting more upset, to the point of a panic attack. As they talked, she calmed down. Ms. Lynch said the principal then took over and the Children’s Aid Society was notified.

[69] Three days later Ms. N.A. gave her statement to police.

DISCLOSURE TO HER SISTER

Evidence of Ms. N.A.

[70] At the May 29, 2015 police interview Ms. N.A. was asked if she had told anyone about this incident before. She said she told her sister, Ar.A. a year before. Ms. N.A. described the nature of the disclosure in detail. She had been crying after a phone call from her father. Her sister wanted to know what was wrong and offered to tell her “something.” The description was a sharing of, or exchange of, secrets.

[71] Once her sister agreed to exchange secrets, Ms. N.A. asked her sister if she remembered the night when the three of them slept together in their bed. Her sister said yes. N.A. said to her that she woke up and he was touching her in spots that she did not like. She told her sister that she would remember it forever. Her sister told her, “it’s gonna be alright. He’s out of our lives now. You’ll forget it.”

[72] Under cross-examination Ms. N.A. was asked how her sister reacted to her story about the incident. She was asked if her sister was shocked or surprised. Ms. N.A. said she did not remember her sister’s reaction. Ms. N.A. believes that she told her sister not to tell anyone, as she was scared.

[73] Ms. N.A. then asked for her sister’s secret. Ms. Ar.A. told her that previously, in India, their mother was so desperate after fighting with their father that their mother attempted suicide.

[74] Ms. N.A. would have been 11 years of age and her sister would have been 15.

Evidence of Ms. Ar.A.

[75] Ms. Ar.A, now 18, testified. She said the first she learned of the incident between her sister and her father was after her sister reported it to the school in May 2015. Her mother told her she had to be interviewed by police.

[76] When told of the details of the disclosure described by Ms. N.A. she said she was shocked and upset. Police said that her sister said she had made this disclosure a year prior. Ms. Ar.A. stated that she did not remember N.A. telling her this and, if she had been told then, Ar.A. would have done something; she would have told someone.

[77] Ms. Ar.A. testified that she was not saying that N.A. did not tell her, but on the other hand, if she had been told, she would have remembered it.

As well, Ms. Ar.A. said that their mother’s suicide attempt was not a secret. She recalls telling N.A. before he left for the last time. She wanted her little sister to know how far back the situation went, that their mother had been troubled by him.

Ms. N.A.’s Response to Her Sister’s Denial

[78] Police met with Ms. N.A. a second time and told her that her sister did not recall this disclosure.

[79] Ms. N.A. expressed surprise and said that a week before attending the police station she again discussed the incident with their father and them sleeping together and at that time Ar.A. said she remembered.

[80] Ms. N.A. concluded that her sister must have been agreeing to something else.

DISCLOSURE TO HER MOTHER

Evidence of Ms. N.A. At Police Interview

[81] At the May 29, 2015 police interview Ms. N.A. said she told her mother months before i.e. before January 2015. She told police that the incident was on her mind most of the time and eating inside of her.

[82] In her June 17, 2015 police interview she described that she and her mother were in the car going somewhere. She told her mother what had happened and that she was sorry she didn’t tell her earlier because her mother would have done something. N.A. apologized and her mother said it was okay. Then they went home.

Evidence of Mrs. R.A.

[83] Mrs. R.A. in examination in chief said that N.A. first told her a few weeks before it was told at school. She said that her daughter was having difficulty with school. In the car, on a trip to Walmart the disclosure occurred.

[84] Mrs. R.A. was asked at trial;

Q. And so how did it come about that she ended up talking to you about what happened?

A. Actually, I took her to do the grocery shopping and over there in the Walmart I asked her, like, ‘What’s happening with you? Do you need a help or something? You can talk to me,’ and then she spoke about this incident.

Q. Okay. When you say she spoke about the incident, she talked about something to do with her dad?

A. Yes.

Q. Did she give you details of what happened?

A. No, she didn’t give me details and I didn’t ask much about that.

[85] Mrs. R. A. under cross-examination said this occurred 3-4 weeks before the police interview of May 29, 2015.

[86] She said she did not know what she should do. She thought “maybe I can’t do anything.” She agreed that when interviewed by police she told them that it was “unbelievable”, a “fantasy”, although her daughter had always been truthful with her. At the time she had custody and there was no communication with the father. She spoke to a friend and made an appointment with their family doctor. She said neither mentioned calling the police.

[87] The mother admitted she had doubts when first told, and wondered if it arose out of sex education at school. At trial she stated she no longer doubts that it happened.

[88] Under cross-examination Mrs. R.A. was asked why she did not go to the police. She said she thought that after a two-year gap, that it was too late. She was unsure about the law. She was questioned;

Q. So what did you do to clarify your uncertainty?

A. I talked to my friends, I talked to my – you know, because rather than reporting this to the police, I want to – my daughter to be safe and I talked to my family doctor about that incident because she is having trouble, she is having nightmares, she is not working on her school things and she is not – she is in stressful mode. She is stress. So I talk to my family doctor, then I talk to my friend that if I get help – because if – I thought, like, ‘Let’s go to my family doctor. If she - he can give a psychological reference to her so that it can be helpful out [sic] for her to come out of that stress.’ But she doesn’t want to talk to the family doctor. Family doctor says that, ‘I can’t help her out until she spoke to me.’

Evidence of Ms. N.A. at Trial

[89] Under cross-examination Ms. N.A. confirmed that she had not been comfortable telling her mom about the incident and it was after the school reporting and before the police interview [a period of three days] that she told her mother. She recalled the teachers saying that if she did not tell her mother that they would.

[90] She recalled that when she disclosed it to her mother that she told her mother that the school knows as well.

[91] Ms. N.A. could not say when she went the family doctor relative to these disclosure events.

POSITION OF THE PARTIES

The Defence

[92] The defence urged the court to accept Mr. A.A.’s denial of the incident and the facts alleged surrounding it. Even if the court did not believe Mr. A.A.’s denial, and even if it did not leave the court with a reasonable doubt, the defence pointed to inconsistencies in the Crown’s case that would leave a reasonable doubt of the accused’s guilt.

[93] The defence pointed to the lack of detail in Ms. N.A.’s recollection but focused on the material discrepancies in the complainant’s disclosure to both her mother and to her sister. He also argued that the death threat or threat of harm had no air of reality as the father was out of their life after the final separation.

[94] The defence also suggested that the animus these three women had against the man who abandoned them was a motive to fabricate.

The Crown

[95] The Crown emphasized to the court that the core allegations about the incident were not contradicted in any way and that the details which Ms. N.A. provided had the ring of truth, such as the green shirt she was wearing and her hair drying on her neck. The words she used to describe the sexual act were simple and showed her lack of knowledge and so would bear their own special stamp of reliability.

[96] The Crown suggested various reasons why the inconsistencies in the disclosure might be explained away.

EVIDENCE OF THE ACCUSED

[97] Mr. A.A.’s evidence of the timing of the reconciliation did not line up against the more persuasive evidence of his wife and daughters, as noted above. I found that he was residing in the home when Ms. N.A. was nine years of age.

[98] His testimony of his tearful love of his daughters and his heartfelt longing to hug them again was somewhat at odds with his behaviour; of stopping child support when he was angry with his wife; his not visiting his children during the first separation; and visiting them only once after the 2013 separation.

[99] I found he stretched his credibility too thin by his blanket denial of details that I found proven: that he did not reside in the home after 2011; that his daughter never suggested they share the Queen bed; that he never slept in that bed.

[100] When asked why he never visited at the house, even with his relatives upstairs, he said that his wife called the police on him one day and he was frightened of what she would cause. This evidence was not put to any of the Crown witnesses and frankly came across as a fabrication. The basement apartment had a separate entrance from his cousins’ home. He could not explain why he could not easily visit his daughters in their cousins’ residence upstairs.

[101] Standing alone his evidence was not persuasive nor did it raise a reasonable doubt on the allegations charged.

LAW REGARDING THE EVIDENCE OF CHILDREN

[102] The approach to assessing evidence of a child witness is well summarized by Corrick J at paras. 44-45 of R. v. Sumagpang, 2015 ONSC 7487,130 W.C.B. (2d) 558.

[103] I must consider that special considerations apply when I consider the evidence of Ms. N.A., given that she is 14 years old and has testified about things that happened when she was 9 or 10 years old. Courts have adopted a common sense approach to assessing the evidence of children, and have recognized that their evidence cannot be assessed on the same standard as the evidence of an adult witness. I must assess Ms. N.A.’s evidence having regard to her age, mental development, understanding and ability to communicate both at the time that the events took place and when she gave her evidence in court. The presence of inconsistencies in Ms. N.A.’s evidence, particularly about peripheral matters, should be considered in the context of her age at the time of the events.

[104] This does not mean, however, that Ms. N.A.’s evidence is not subject to the same standard of proof as the evidence of an adult witness. Although the Crown’s case depends almost entirely on the evidence of a child, it remains the obligation of the Crown to prove the offences alleged against Mr. A.A. beyond a reasonable doubt.

THREAT OF HARM

[105] It was argued by defence that there was no air of reality to the threat of harm which Ms. N.A. testified to and the reason she did not speak of the assault immediately. The defence pointed out that Mr. A.A. was in India and Alberta and not part of their lives after January 2013. The most he did was phone at times.

[106] I do not accept this argument as her evidence was that her father stayed for some months after the incident and she feared he would harm one of them. Once suppressed, it would not be surprising that the disclosure would then be long delayed. Ms. N.A. said how relieved she felt when her father left.

CREDIBILITY ASSESSMENTS

Mrs. R.A.

[107] Mrs. R.A. on several occasions appeared to be straining to support her daughter’s complaint, thereby weakening some of her testimony.

[108] Although at trial her evidence was that she was told that her husband and daughter planned to share a bed and there was “no need to get her permission”, she originally told police that her husband “insisted” on sleeping with the girls. When cross-examined on this point she was very unsure and no longer remembered.

[109] When she spoke to police in May 29, 2015 she told them that her daughter disclosed the incident 3-4 weeks before. At trial she said it was the end of March or early April and definitely not before January which was the time frame her daughter had told police.

[110] This confusion contrasted with her clear recollection of all other dates in the marriage and family history.

[111] It was also contradicted by Ms. N.A’s admission at trial that she told her mother after telling the school, which was only a few days before seeing the police.

Ms. Ar.A.

[112] Ms. Ar.A. testified at the age of 18, having graduated from a gifted, challenging high school program. She was articulate, clear and related time lines to events that happened to ground them.

[113] By all accounts she has long been an outspoken and feisty daughter who challenged her father. She described him as financially irresponsible. She was suspicious of him when he returned after the first separation. She described herself as one who “does not hold back”; as an “expressive person”; and one who is “very vocal”

[114] Once her father left for the second and last time she said the stopped caring about him and “moved on with her life.” She said they were “better off without him”.

[115] Throughout her evidence it was evident that she loved and supported her little sister and struggled with her sister’s evidence that she had been told of their father’s assault.

[116] Consistent with Ms. Ar.A.’s strong personality she told police and the court that if her sister had disclosed this incident that she would have acted. She would have told someone.

[117] I found her to be a consistent, credible and reliable witness.

Ms. N.A.

[118] In her police interview and in examination in chief. Ms. N.A. was markedly stressed and presented as a sincere child who tried to describe what she thinks happened to her one night.

[119] Her credibility was marred in some measure by her argumentative and evasive answers on cross-examination.

[120] More serious, is the concerns raised on her reliability as that is the crux of the Crown’s case against Mr. A.A. The problems with the reliability of her evidence cause me to lack confidence of his guilt beyond a reasonable doubt.

[121] Although Ms. N.A. described the core details consistently there were several questions she could not answer which I would have though a 9 or 10 year old would recall. Examples are:

• although she recalled her initiating the fun idea of the three of them sharing the bed she does not recall who went to bed first;

• she could not say any of the Punjabi words her father threatened, despite it being the language spoken at home.

[122] There were other gaps in her memory such as;

• she described her sleeping outfit but did not recall what her father wore;

• how old she was when her father moved out;

• how old she was when she moved to Brampton;

• whether she had any good feelings about her father growing up;

• the shopping trip their father took them a year before disclosure which all other witnesses described.

[123] Ms. N.A. described much more physical violence than any of the other witnesses. She told police that she had disclosed it all to her mother some months before when it was really only days before. Lastly, as noted, above her disclosure to her sister was denied. In particular, her description of the sister’s response of “it’s gonna be alright. He’s out of our lives now. You’ll forget it.” Is highly inconsistent with the strong response her sister believes she would have given.

[124] For these reasons, I consider Ms. N.A.’s evidence unreliable.

ANALYSIS

[125] I am not persuaded that this was a fabrication. All three women related a theme of “moving on”. The custody and support order had been accomplished nearly a year before this disclosure.

[126] Nonetheless all three of these women have a close relationship as they “survived” the “abandonment” by this man and they share a disdain for him.

[127] In the circumstances of this case the delay in disclosure by Ms. N.A. is not a relevant factor. It would be natural and reasonable in the context she described. Further, as Major J noted in R. v. D.(D.), 2000 SCC 43, [2000] 2 S.C.R. 275 at para. 63, “the complainant’s failure to make a timely complaint must not be the subject of any presumptive adverse inference based upon now rejected stereotypical assumptions of how persons (particularly children) react to acts of sexual abuse”.

[128] My concern is the description of the disclosure to her sister. Just as Ms. N.A. recalls the incident so clearly, she also described, in detail, the sharing of her secret with her sister. I found her sister’s evidence very credible that Ms. Ar.A. does not recall Ms. N.A. disclosing this and that if she had she would have done something.

[129] I am led by the frailties in all the Crown’s evidence to doubt the reliability of Ms. N.A.’s account of this assault.

[130] Because of the inconsistencies and frailties, particularly concerning the disclosure to the sister, it would be unsafe to convict on this evidence. I am not satisfied beyond a reasonable doubt of the offence.

[131] Accordingly, Mr. A.A. must be acquitted.

M. J. Donohue J.

Released: August 10, 2017

CITATION: R. v. A.A., 2017 ONSC 4810

COURT FILE NO.: 1853/16

DATE: 2017 08 10

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Her Majesty the Queen

– and –

A.A.

REASONS FOR JUDGMENT

M. J. Donohue, J.

Released: August 10, 2017