COURT FILE NO.: 120/17

DATE: 20180531

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

T.W.W.

K. de Koning for the Crown

C. Uwagboe and M. Farquhar for the Defendant

HEARD: April 16, 17, 18 and 19, 2018

RESTRICTION ON PUBLICATION

By court order made under subsection 486.4(1) of the Criminal Code, any information that could identify the person described in these reasons as the complainant shall not be published in any document, or broadcast or transmitted in any way.

Every person who contravenes the order is guilty of an offence punishable on summary conviction.

Grace J. (Orally)

A. The Background

[1] A two-storey townhouse on Court Lane in London, Ontario is the setting for the allegations that form the basis for the charges the accused faces.

[2] The indictment contains two counts: sexual interference with a person under the age of sixteen and sexual assault, contrary to ss. 151 and 271, respectively, of the Criminal Code.

[3] The complainant, A.W., lived with her maternal grandmother M.W. in another London, Ontario neighbourhood. However, she often spent weekends with her extended family: cousins T.W. and D.W., their mother S.W. and her fiancé C.H. The defendant is S.W.’s brother, M.W.’s son and A.W.’s uncle. He had lived in the basement of the Court Lane townhouse for about eight months at the time of the complaint.

[4] Four members of the accused’s family testified at trial concerning the events of Saturday, November 21 and Sunday, November 22, 2015: A.W., S.W., T.W. and M.W. C.H. did too. I start with their evidence.

B. The Early Evening

[5] C.H. told the court that he spent Saturday afternoon at home drinking. At some point the accused joined him. More drinks were consumed at one neighbouring residence before the two men met S.W. at a larger social gathering hosted by other neighbours. C.H. remembered leaving the accused behind when he returned home and went to bed at about 1:00 or 1:30 a.m. He said both men were drunk.

[6] S.W. offered a somewhat different account of this stage of the chronology. S.W. and her fiancé had accepted an invitation for dinner and drinks a neighbour had extended. While they were present throughout the evening, her brother joined the get-together later. S.W. said she left about 11:30 p.m. because she had to work the following day. C.H. and the accused stayed at the party.

[7] The three children spent the evening in the Court Lane residence. T.W. and the complainant remembered the adults drinking at a nearby residence. The neighbour’s unit was visible from the kitchen.

[8] T.W. and A.W. also recalled watching a movie in the living room during the evening hours of November 21, 2015. One thought it was a horror film, the other a movie about robots. T.W. was asked to describe the clothing A.W. was wearing. “Tight skinny jeans” borrowed from her was the answer given. A.W. agreed that she was wearing jeans but could not remember whether she owned them or not. She described the article of clothing as stretchy in the waist and tight around the knees.

[9] The two child witnesses recalled that one of the adults returned home from time to time to check on them: S.W. and C.H. in the case of T.W., the accused as well according to the complainant.

[10] T.W. told the court that she left A.W. in the living room and went upstairs to her bedroom at or soon after midnight. She said her mother and C.H. had returned home by then. While not certain, T.W. thought she had seen the accused “stumbling in” and going wordlessly to the basement before she went to bed.

[11] A.W. remembered T.W. going upstairs after the movie ended. She recalled her aunt and C.H. coming home too. She thought they arrived together. The accused was not with them. The complainant said that she was still wearing jeans when she lay down for the night on the long sofa the living room contained.

[12] While M.W. told the court that she understood A.W. slept in one of the upstairs bedrooms when visiting Court Lane, all of the other witnesses agreed that the complainant ordinarily spent the night in the living room.

C. The Incident

[13] At the time of the alleged incident C.H., S.W., T.W. and D.W. were all upstairs in their beds. None of them saw or heard anything that A.W. described as occurring next.

[14] A.W. thought that she had been asleep for an hour or two when she heard the defendant enter the living room. She was lying on her stomach. Her uncle was holding and speaking into a cell phone.

[15] The complainant said that the accused walked to where she was lying. He touched her buttocks, moved his hands around, spread her legs apart and walked away. The complainant said that she responded by closing her legs. She pretended to be asleep.

[16] A.W. reported that her uncle returned soon afterward. She said he gripped her thighs and moved her legs apart again. Counsel for the accused reminded A.W. that when interviewed by the police she had told the interviewer the accused had grabbed her calves. A.W. conceded that she was unsure what part of her legs the accused had used to create separation between her legs.

[17] A.W. described the defendant’s body position. She said he was crouched when he reached under her pants with a cold hand. She said that the accused was talking to himself as he digitally penetrated her with two fingers about five times. The complainant said that she could feel her uncle’s nails during and after the incident. At trial she said the activity went on for a period that was “long but not too long”. When cross-examined she was reminded that twenty minutes was the estimate given during the interview conducted by a member of the London Police Service.

[18] She said that soon after withdrawing his hand, the accused lowered his pants and underwear. She said she rolled over as he bent down and started to bring his erect penis toward her mouth. A.W. told the court that she felt the defendant’s penis touch the back of her head.

[19] She alleged that for much of this time the accused was holding a cell phone. She said she could see a red square and a red light which indicated that her uncle was taking still photos or videos. At trial, A.W. said that she thought the accused put the phone down while disrobing. During the preliminary hearing the complainant testified the accused continued to hold his phone even when undressing.

[20] A.W. also said that the accused was talking throughout. He was alleged to have said something like “your vagina is mine” during the initial portion of the incident she described. After rolling over, she heard several comments. “She must not like that”, “I’ll go back to the fingering thing” were direct quotes. The complainant also alleged that her uncle mumbled words to the effect that the accused knew he would be going to jail and that there was no turning back.

[21] She described what happened next. The accused had pulled up his underwear and pants. Soon afterward he was sitting on a smaller couch the living room contained. The complainant sat up.

[22] She said that the accused asked her why she was awake and told her to go back to bed. A.W. said she thought her uncle was intoxicated. She could smell alcohol. The accused had been unsteady when upright.

[23] She relayed her side of the conversation. She told him that she did not want to go back to bed and asked the accused why he was looking at her in a way that was “creepy”. “It’s none of your business” was his reply. She thought she made the accused aware that she had noticed his phone in video mode. When the complainant was asked by defence counsel why she had not confronted the accused about what he had done, A.W. said that she was scared and worried there would be a fight if she disclosed his inappropriate behaviour to the other adults in the house.

[24] During the preliminary hearing, the complainant introduced the exchange I have just described differently. At that time she told the accused’s counsel:

He stands back up, pulls his underwear back up, pulls his pants back up, goes to kitchen again and…he like stands in that doorway of the kitchen and says, “Oh, she must not like that. I’m just going to go back to the finger thing.” And then he walks over to me again and then he was like about to do that, but I sat up…

[25] A.W. told the court she waited for an opportunity to go upstairs after the conversation ended. That occurred when the accused said goodnight, walked into the kitchen, washed his hands and then went out the back door and onto the porch area to smoke a cigarette.

[26] Once the accused’s back was turned, A.W. said that she ran upstairs and went to T.W.’s room after making an unsuccessful effort to wake her aunt.

D. The Immediate Aftermath

[27] The complainant testified that she was “freaking out” when speaking with T.W. She told her cousin that the accused had touched her rear end. She said she provided that same information to S.W. after T.W. was able to get her mother’s attention.

[28] T.W. provided a similar version. She remembered hearing A.W. coming down the hall. She thought the time was about 1:00 a.m. The complainant was sobbing and shaking. She mentioned the accused touching and perhaps pinching her buttocks. Questions were asked but A.W. was largely unresponsive. T.W. remembered waking her mother and C.H. She said they did not seem to fully understand what was going on.

[29] S.W. remembered playing a somewhat different role. She placed the time at approximately 4:00 a.m. T.W. and A.W. were at her bedroom door. T.W. was screaming at her. A.W. was crying hysterically. She said the children used the Spanish word for uncle when referring to her brother. Using that descriptor, T.W. told her mother that the accused had pinched A.W.’s bum. S.W. said that she tried to calm the girls and put them to bed in T.W.’s room. In cross-examination, S.W. also said that she spoke to A.W. about the incident.

[30] S.W. said that caused her to go downstairs. Once on the main floor she encountered her brother entering the living room from the kitchen. She asked the accused what happened. He replied that he was trying to wake A.W. up and direct her to a bedroom upstairs.

[31] S.W. testified that she then returned to the second floor, checked on the girls and went back to bed.

[32] At trial C.H. said that he woke up at some point during the night because he heard A.W. running upstairs. She was crying. He got up but went back to bed when S.W. told him she would deal with the situation. That evidence differed from the version he provided to the police when interviewed on November 29, 2015. At that time, C.H. said that he was dead asleep and was not awakened during the night.

E. The Balance of November 22, 2015

[33] All of the witnesses addressed what occurred after they awoke for the day.

[34] A.W. said that she was sitting with her cousin T.W. on a couch in the living room when C.H. entered and asked her how she had slept. A.W. said that caused her to cry. She told C.H. that the accused had touched her buttocks and scared her. He dismissed the contact as a nudge and told her not to worry about it.

[35] The complainant said she encountered her uncle as she was taking a dish to the kitchen. While no words were exchanged, she remembered the accused glaring at her as he went by.

[36] She recalled that S.W. and C.H. took her back to her grandmother’s later that morning.

[37] T.W. said she was watching movies in the living room with C.H., her brother and A.W. when the accused came upstairs. Her mother was at work. She said she overheard C.H. speaking with the accused. During that conversation her cousin was shaking and pulling a blanket up towards her face. She asked A.W. if she was okay and received a negative response.

[38] C.H. provided yet another version. He said he left the house at about 8:30 a.m. and drove S.W. to work. He was back home when A.W. came downstairs. She went straight to the sofa. He said her behaviour was unusual. She was pale and quiet. He asked her twice what was wrong. He was met with silence the first time and with the word “Uncle” on the second occasion. She was shaking a little. He put a blanket around her. Soon afterward A.W. told him about being pinched. C.H. said that he did not speak to the accused about the incident.

[39] S.W. told the court work ended at 5:00 p.m. During a break she reviewed a text she had received from the accused. He asked what had happened the previous evening. S.W. told him again that A.W. had alleged he had pinched her buttocks. In-chief, the witness said that the accused responded that he had no memory of the incident. The exchange ended when S.W. told him there would be no more drinking and that they would discuss the matter later.

[40] In cross-examination, the witness agreed with the suggestion that she told the police the accused denied that he would do what was alleged. In re-examination S.W. confirmed that was her present memory although the detail was unmentioned during examination-in-chief. Although she said she took a screen shot of the conversation and provided it to the London Police Service, a copy of the exchange was not provided to the court.

[41] All of the witnesses agreed that S.W. and C.H. took A.W. back to her grandmother’s home sometime on November 22, 2015. With the exception of A.W., all of them said that occurred in the early evening hours.

[42] What occurred at M.W.’s residence was remembered somewhat differently too. The complainant said that she went to her room while the adults talked in the living room. A.W. told the court her grandmother was “flipping out” when next seen by her. The complainant testified that she told her grandmother about being digitally penetrated when asked whether the accused had hurt or put anything inside her. That was information she had not previously shared with anyone else.

[43] S.W. said A.W. was very quiet as she led the adults to the main level of M.W.’s residence. She remembered M.W. following A.W. into her bedroom. Soon afterward, M.W. exited and told S.W. and C.H. what A.W. had said about the incident. The allegation included touching of a sexual nature. The police were called. S.W. spoke with her niece before leaving and was told directly and for the first time about the alleged digital penetration. She had no further contact with her brother concerning the things the complainant described.

[44] C.H. remembered taking A.W. home but thought that S.W. and M.W. accompanied her into the bedroom. He did not overhear their conversation. He remembered being asked by S.W. to go home to pick up T.W. and D.W. At some point he took A.W. to the hospital.

[45] M.W. told the court that she knew something was wrong as soon as she saw her granddaughter. It was unusual for the adults to accompany A.W. inside the residence. Ordinarily, she ran upstairs happily. On this occasion she was uncharacteristically quiet.

[46] M.W. remembered S.W. and C.H. leading the way upstairs. Once on the main level A.W. went immediately to her room. M.W. followed. She described A.W.’s face as red. Her eyes seemed glazed and distant. When asked what was wrong she referred to her uncle. When asked for details, A.W. held up two fingers and moved them in an upward direction. She told M.W. that the accused had inserted his fingers into her when asked to explain the meaning of her actions.

[47] M.W. said she joined the other adults in the living room after the initial discussion with her granddaughter. She wanted to know why she was only hearing about the incident then. A conversation followed. The police were called and at some point A.W. was taken to the hospital.

[48] I turn now to the issues, the positions of the parties and the applicable legal principles.

F. The Issues, the Parties’ Positions and the Applicable Principles

[49] As noted, the accused has been charged with two criminal offences: sexual interference and sexual assault, contrary to ss. 151 and 271 of the Criminal Code respectively.

[50] At issue is whether the alleged incident occurred at all. Specifically, has the Crown proven beyond a reasonable doubt that the accused touched A.W. during the early morning hours of November 22, 2015? If so, was the touching for a sexual purpose as s. 151 of the Criminal Code requires or, as s. 271 mandates, in circumstances of a sexual nature?

[51] The applicable legal principles are well known and undisputed. Innocence is presumed. The accused does not have to prove a thing. Nor was he obligated to provide any explanation.

[52] The Crown bears the burden of proving each element of each offence beyond a reasonable doubt. Certainty is not required. However, far more than probable guilt is needed.

[53] As with all cases, the analysis is to be undertaken dispassionately, using reason and good common sense. Sympathy has no role to play.

[54] A trier of fact may believe and accept as reliable all, some or none of the testimony of each witness. The task is not to choose a version of events it accepts and reject another. The trial judge must consider, examine, assess and weigh all of the evidence. If the court is left with a reasonable doubt concerning an element of the offence under consideration, the accused is entitled to its benefit. If the Crown’s case lends itself only to a conclusion the defendant is likely guilty, an acquittal must be entered: R. v. Starr, 2000 SCC 40.

[55] Alcohol use was mentioned frequently during the trial. The accused’s conduct generally is not in issue. Nor is his overall character. The accused is only on trial for the two charges set forth in the indictment, not for any other conduct.

[56] The parties’ lawyers agree that an assessment of the credibility and reliability of the complainant is particularly critical. The Crown acknowledges that the reliability of some of A.W.’s testimony at trial warrants careful consideration. Some of the answers given to the questions posed at trial were inconsistent with things she had said previously to the police or during the preliminary hearing. On occasion, A.W. seemed confused although much of that, the Crown submits, was a product of the manner in which the cross-examination was conducted. Nonetheless, the Crown maintains that, on balance, the alleged victim’s trial testimony was unshaken, particularly as it related to the essential elements of the two offences the accused faces.

[57] The defence disagrees. While the complainant’s sincerity was not seriously questioned, the accuracy of her account was the subject of lengthy submissions and detailed challenges. Counsel for the defendant argues that the number, nature and extent of the inconsistencies identified during the course of the cross-examination make it impossible for the court to be satisfied beyond a reasonable doubt that the accused touched his niece for a sexual purpose or in circumstances of a sexual nature.

[58] Unquestionably credibility assessments can be very difficult. An oft-quoted passage from R. v. Gagnon, 2006 SCC 17 at para. 20 bears repeating:

Assessing credibility is not a science. It is very difficult for a trial judge to articulate with precision the complex intermingling of impressions that emerge after watching and listening to witnesses and attempting to reconcile the various versions of events.

[59] Changing accounts, periodic confusion or vague testimony are some of the reasons testimony may be discounted as being untruthful or unreliable: R. v. S. J., 2007 CanLII 27978 (Ont. S.C.J.) at paras. 13 and 22.

[60] I have already mentioned some of the inconsistencies identified during the course of A.W.’s evidence. They included varying descriptions of when the accused was or was not holding his cell phone, different answers concerning the complainant’s ability to see its screen, one statement that A.W. sat up to speak with her uncle while he was seated on the adjacent sofa and another suggesting she did so as he walked toward the couch she was lying on. In addition, A.W. agreed that she had not mentioned the defendant saying goodnight until trial.

[61] Inconsistencies may be particularly vexing. Counsel for the defendant relies on an instructive passage drawn from the judgment of Harris J. in R. v. T.J.A., 2016 ONCJ 314 at para. 90:

In assessing the credibility of a witness, it is appropriate to examine the inconsistencies between what the witness said in the witness box and what she said on previous occasions. It is also appropriate to examine inconsistencies with what other witnesses said. Inconsistencies on minor matters or matters of detail are normal and do not generally affect the credibility of a witness, particularly by a young witness. But one or more inconsistencies involving material matters can justify concluding that the witness is neither credible nor reliable. In determining this, it is necessary to look to the totality of the inconsistencies.[^1]

[62] As the passage suggests, some allowance must be given to child witnesses. A.W.A.W. is currently 15 years old. She was 12 at the time of the alleged incident. When testifying about events which are alleged to have occurred in childhood, the presence of inconsistencies, especially on peripheral matters such as time and location, are to be considered in the context of the age of the witness at the time those events are alleged to have occurred.[^2]

[63] Furthermore, the court’s task is to consider and critically analyze all of the admissible evidence.

[64] During this trial, the court learned that some of what A.W. said was consistent with statements she had made beforehand. As a general rule, prior consistent statements of a witness are inadmissible: R. v. Ellard, 2009 SCC 27, [2009] 2 S.C.R. 19 at para. 31. The court cannot conclude the evidence of a witness is credible or reliable simply because it has been repeated. An untruth or inaccuracy does not cease to be one through repetition.

[65] However, that does not mean consistent statements are always to be excluded. As the Court of Appeal explained in R. v. Murray, 2017 ONCA 393 at para. 152:

The prohibition against the introduction of prior consistent statements of a witness is not absolute…Prior consistent statements may provide important context in which a trier of fact may assess an attack on the witness’ reliability based on alleged inconsistencies. And consistencies may counter, or at least mitigate, a claim that a witness is not credible or their evidence reliable because of many prior inconsistent statements… [Citations omitted]

[66] Inaccuracies must also be added to the analytical mix. On at least one occasion, the complainant misremembered an event. She did not return to her grandmother’s during the morning hours of November 22, 2015 as she thought. Based on the evidence of S.W., C.H. and M.W., it is clear A.W. did not return home until early evening.

[67] I have also borne in mind that no version of events told by any witness at trial accorded in all respects with any other. Examples include whether the accused was at home during the afternoon hours of November 21 and the order in and times at which the adults returned to the Court Lane townhouse after attending the nearby get-together that evening. Those in attendance at the residence of M.W. also had different memories of the content and circumstances surrounding the initial conversations that occurred there.

[68] The time of reporting should be addressed too. Although limited details were provided, A.W. made an almost immediate complaint to T.W. and her aunt. There was no mention of under clothing touching until the complainant spoke to her grandmother that evening.

[69] The law is clear that the time of reporting is not an accurate indicator of credibility or reliability. Standing alone, a delay in disclosure will never give rise to an adverse inference against the credibility of the complainant.[^3] Similarly, an instantaneous complaint does not prove that the alleged conduct occurred.

[70] The timing of a complaint is simply one circumstance to consider. As Rouleau J.A. said on behalf of a unanimous court in R. v. G.C., 2006 CanLII 18984 (ON CA), [2006] O.J. No. 2245 (C.A.), at para. 20:

…the evidence of prior complaint cannot be used as a form of self-corroboration to prove that the incident in fact occurred. It cannot be used as evidence of the truth of its contents. However, the evidence can “be supportive of the central allegation in the sense of creating a logical framework for its presentation”…and can be used in assessing the truthfulness of the complainant.[^4]

[71] Those principles apply, equally, to cases such as this one where additional allegations are disclosed over time: R. v. P. (D.), 2017 ONCA 263.

[72] As stated earlier, the accused in this case is the uncle of the complainant. Of itself that relationship is of no significance to the analysis. Experience tells the courts there is no stereotype for sexual assault, persons who commit it, or persons who are victims of such offences. The crime can take place in virtually any circumstances between all kinds of different people who react in a variety of ways. On the other hand, complainants are not immune from misremembering, from exaggeration or untruthfulness.

[73] The defence noted that A.W.’s account of the alleged touching is uncorroborated. No other witness saw or heard anything while the complainant was in the living room. No evidence of injuries was led. Nor was anything said concerning the outcome of the complainant’s visit to the hospital the evening following the alleged incident.

[74] That submission is of little force. Corroboration of the evidence of a complainant is not required.[^5] Truthful and reliable evidence of the alleged victim of a crime can and often does meet the standard of proof beyond a reasonable doubt. It is the quality of the evidence that is determinative, not its quantity.[^6]

[75] The Crown submitted that the Court need not concern itself with R. v. W. (D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742 because the accused did not testify. The defence did not challenge that submission. It is clear, however, that the principles established by that case must be applied whenever exculpatory evidence is introduced which could be a source of a reasonable doubt whether believed or not: R. v. Brown, 2018 ONCA 481 at para. 67.

[76] During her testimony S.W. described a brief conversation with her brother during the early morning hours of November 22, 2015 and an exchange of text messages later in the day.

[77] When cross-examined and re-examined S.W. told the court she remembered receiving an electronic message from the accused saying he would not have touched the complainant’s buttocks as was then alleged. I will address that evidence further toward the end of these reasons.

G. Analysis and Decision

[78] At last, I turn to my conclusions and the reasons for them. While the alleged criminal conduct occurred during a confined period, the evidence appropriately covered a longer time frame that provided helpful context.

[79] Court Lane was a welcome destination when A.W. arrived for the weekend. The defendant’s counsel suggested to several witnesses that was the first time A.W. had stayed overnight since September, 2015. Only M.W. agreed. In fact, the complainant was a regular and frequent visitor.

[80] That comes as no surprise. She maintained a close relationship with her extended family. A.W. said that D.W. and T.W. were like a brother and sister to her. T.W. agreed that she and her cousin were close.

[81] It was also clear from the evidence that the defendant had been a member of the Court Lane household for about eight months. The complainant was asked about her relationship with the accused. The accused was one of the people she trusted most, she said. During cross-examination she maintained the level of trust even exceeded that earned by her grandmother.

[82] Saturday night was unremarkable. The household’s three adult members socialized together in close proximity to their home and within sight of the children left behind. Defence counsel’s questions suggested something may have happened at the neighbour’s residence that resulted in an ambulance attending but nothing emerged that seemed to have any relevance to the events or persons involved in this case.

[83] From the perspective of T.W. and A.W., the evening hours were entirely uneventful. They watched a movie. D.W. may have watched the film too or he may have been playing video games in his room. An adult checked on them periodically. S.W. and C.H. returned home at some point. All but T.W. thought that the defendant was still at the neighbour’s residence when they went to bed. Those who occupied the townhouse went to their bedrooms. As usual, A.W. remained in the living room.

[84] That was how things were when the clock moved from the evening hours of the 21st to the morning hours of the 22nd. Even then, from the perspective of those sleeping upstairs, nothing of note happened until a sobbing A.W. joined them on the second floor.

[85] This matter arises from events that are alleged to have occurred during the time a fully clothed A.W. was lying alone on a living room sofa. I will return to that part of the chronology shortly. For now, it is important to remember how the complainant said things involving the accused ended. She said that she ran upstairs when her uncle exited the kitchen door to smoke a cigarette.

[86] That brings to mind some of S.W.’s testimony. She told the court that she descended the stairs to the main level after speaking with T.W. and A.W. It was then about 4:00 a.m.

[87] S.W. said that she encountered her brother as he entered the living room. That fits precisely with the complainant’s testimony. The accused was awake. He was coming from the direction of the rear of the residence where the deck and kitchen were located. S.W.’s testimony was credible. It was also reliable.

[88] I accept that S.W. told her brother what a clearly agitated young girl had just alleged. The accusation was then confined to a touching, or perhaps pinching, of the buttocks.

[89] S.W. told the court about the conversation. The defendant did not deny touching his niece in some manner. Instead, he offered an explanation: that he tried to wake A.W. up in order to get her to go upstairs to bed. The problems with that attributed statement are twofold. First, the complainant was already asleep in her usual spot. Second, it does not address, let alone explain, A.W.’s dramatic reaction.

[90] That brings me to the complainant’s testimony. Aspects were problematic. I found A.W.’s evidence concerning the defendant’s possession and use of a cell phone difficult to follow. Some of the commentary attributed to the accused was, to my ears, bizarre. However, I did not doubt her sincerity at any time. The defence fairly challenged the reliability of some of her evidence. Ultimately she fared well in that assessment too.

[91] The core of her account was detailed and convincing: a gradual awakening, an initial exploratory over clothes touching, a brief gap in time, followed by a return and more bold and invasive action. I found A.W.’s description of the accused’s cold hand reaching under her pants, of his fingers penetrating her most private area and of the sensation of nails to be credible and accurate. As the complainant delivered this part of her testimony her voice became thick. Breathing became more difficult. A.W. briefly laboured. She seemed to be unlocking a genuine and painful memory that caused her stress and discomfort.

[92] The complainant conceded some uncertainty in describing what happened next. She could not remember whether the accused walked away or stayed where he was after removing his hand from under her pants. However, she remembered vividly the lowering of trousers and underwear. Her reaction, turning over and away from the approach that followed resonated. The fact that she offered different versions of the cell phone’s location is hardly surprising. A cell phone would not be her primary focus at that time and in those circumstances.

[93] Her in-depth narrative continued with her uncle retreating, regrouping and then returning. I accept the complainant’s evidence that she sat up at that time and engaged the defendant in a brief conversation. Whether he was already seated on the sofa or standing when she did so is, in my view, of no consequence. Of importance is the fact that events moved in a different direction following the discussion.

[94] Beyond doubt the twelve year old was overcome with emotion when she raced to the upper level of the residence soon afterward.

[95] This case is analogous to R. v. R.A., 2017 ONCA 714. The accused was charged with various sexual offences involving his then partner’s young daughter. The version of events the complainant described to her mother contained what was described as an “oral sex allegation” that was not repeated at any other time. Nonetheless, a finding of guilt was made. In upholding the trial decision a majority of the Court of Appeal said at para. 53:

This was a credibility case and at the end of the day the core of the complainant’s allegations were unaffected by the inconsistency. They remained consistent throughout. The complainant provided graphic details as to how the assaults took place.[^7]

[96] That is precisely the situation here. While several inconsistencies were identified, they related to less significant, if not peripheral, matters. The central and crucial aspects of the complainant’s account did not shift. Towards the end of the cross-examination, the defendant’s counsel put some propositions to the complainant. He suggested that although A.W. was startled when awakened, the accused did not subject her to the intimate and inappropriate contact she had described in-chief. The questioner received a calm but definite response. “It did happen” the complainant said. I am certain that response was honest and accurate.

[97] I have not forgotten other evidentiary points raised by the defence. As mentioned, T.W. testified that A.W. was wearing “tight skinny jeans”. That testimony was the basis for a submission that the court should be skeptical of A.W.’s evidence that the accused’s hand was inserted as alleged. I disagree. How similar were A.W. and T.W. in size? What does “tight” mean in the context of waist size? Does lying down make any difference? I simply do not know. The complainant said the jeans she was wearing were stretchy in the waist. T.W. told the court that the jeans she described loosened a little during the course of being worn. The evidence simply does not support a finding that what A.W. described was physically impossible. Nor does it leave the court with a reasonable doubt. The court will not, indeed cannot, speculate.

[98] The reasons A.W. advanced for gradual disclosure were scrutinized too. Defence counsel submitted her stated desire to avoid adult conflict was not consistent with the complainant’s decision to tell T.W., S.W. and later C.H. that the accused had touched her buttocks. I do not agree. The fact is that S.W. had a brief conversation with her brother and returned to bed. C.H. said that he did not speak to the accused about what A.W. had told him. That is consistent with A.W.’s evidence. She testified that C.H. responded to her disclosure by saying the accused must have nudged her and not to worry.

[99] More serious allegations were made once the complainant was back at the residence she shared with her grandmother. Thereafter, the situation escalated beginning with a call to the police.

[100] I have also considered the circumstances in which additional information was disclosed. Accusations made with the encouragement of those who are negatively disposed toward the accused should be approached with extreme caution: R. v. S. J., supra at paras. 22 and 23. However, that is not this case. There was no suggestion of ill-will between M.W. and the accused. Furthermore, whether grandmother and grandchild spoke immediately after A.W.’s return or later, the evidence does not support a suggestion that the complainant was adopting and parroting information planted by someone else.

[101] The exchange of texts requires further comment too. As mentioned, S.W. remembered her brother saying that he would not have touched his niece’s buttocks as was then alleged. The electronic discussion must also be placed in context. There had already been a brief face-to-face conversation. The first text S.W. received was one asking what had happened. In the one that followed, the accused claimed to have had no memory. The ultimate message was one that suggested the alleged conduct was beyond a line the accused would not have crossed.

[102] The exchange of texts adds nothing to the analysis. The accused’s inquiry may have been genuine. It may have been a search to determine the extent of the information that was then in hand. The final message may have been intended to be exculpatory, an attempt to deflect blame or something else. I do not know. If the former, I do not believe it. Furthermore, nothing said to have been contained in the text messages leaves the court with a reasonable doubt about guilt or an essential element of either offence.

H. Conclusion

[103] Based on my review and assessment of the totality of the evidence, I am satisfied beyond a reasonable doubt that on November 22, 2015, the accused touched the buttocks of and then digitally penetrated his then twelve year old niece A.W.A.W. That touching was for a sexual purpose. I find the defendant guilty of sexual interference contrary to s. 151 of the Criminal Code.

[104] I have also concluded beyond a reasonable doubt that the accused acted intentionally and touched the buttocks of and digitally penetrated the complainant in circumstances of a sexual nature. The Crown has also proven the elements of sexual assault contrary to s. 271 of the Criminal Code to the required high standard. Findings of guilt are hereby made and convictions entered.

Grace J.

Delivered orally: May 31, 2018

COURT FILE NO.: 120/17

DATE: 20180531

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

T.W.W.

REASONS FOR DECISION

Grace J.

Delivered orally: May 31, 2018

[^1]: The cases cited in support of that proposition included R. v. A.M., 2014 ONCA 769, [2014] O.J. No. 5241 (C.A.) at paras. 12-13.

[^2]: See, for example, R. v. C. (H.), 2009 ONCA 56 at para. 42.

[^3]: R. v. D. (D.), 2000 SCC 43 at para. 63.

[^4]: Cited with approval by the Supreme Court of Canada in R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788 at para. 38.

[^5]: R. v. Khela, 2009 SCC 4, [2009] 1 S.C.R. 104 at para. 2.

[^6]: In R. v. A.H.M., 2018 ONCA 503 the Court of Appeal agreed with the trial judge’s conclusion that the complainant’s testimony was corroborated by the circumstances surrounding the complainant’s departure from the accused’s residence and her state and demeanor at that time. Similar evidence exists in this case.

[^7]: Affirmed on appeal, 2018 SCC 13, [2018] S.C.J. No. 13.