COURT FILE NO.: CR-17-3905-0000

DELIVERED ORALLY: Tuesday, November 20, 2018

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

PAUL WADE KIYOSHK

Elizabeth Brown, for the Crown

Jennifer A. Comand, for the Defence

HEARD: September 24, 25, and 26, 2018

REASONS FOR JUDGMENT

Howard J.

Overview

[1] The accused, Paul Wade Kiyoshk, stands charged with one count of sexual assault, that on or about July 17, 2015, at the City of Windsor, he did commit a sexual assault on the complainant, contrary to s. 271 of the Criminal Code.[^1] The complainant is shielded from identification in this proceeding; hence, I refer to her as “the complainant” or by the initials “C.B.”

[2] The charges arise out of an encounter that occurred on the night of Friday, July 17, 2015. The date, time, and place of the encounter are all admitted. The encounter occurred at Victoria Manor, a rest home in downtown Windsor, which provides services to individuals requiring supervised residential living facilities. At the material time, the complainant and her sister (whom I will reference by the initials “N.B.”) were residents at Victoria Manor, and they shared a room together.

[3] Mr. Kiyoshk did not reside at Victoria Manor; however, the evidence indicates that he was known to the staff at Victoria Manor, and on various occasions he would visit friends and acquaintances who did reside at Victoria Manor.

[4] It is common ground that Mr. Kiyoshk was present at Victoria Manor on the night in question. Indeed, he was upstairs after-hours on the same residential floor where the room shared by the complainant and her sister was located.

[5] Although the parties’ explanations of the events leading up to the encounter differ, it is common ground that Mr. Kiyoshk encountered the complainant on that floor and, one way or the other, they entered the complainant’s room.

[6] At the time in question, N.B. was in her bed, as she had gone to bed prior to the encounter between her sister and Mr. Kiyoshk. When N.B. realized that Mr. Kiyoshk was present in their room, she immediately left the room and went downstairs to advise the staff that there was a man in their room.

[7] The alleged assault in question took place after N.B. had left the room. As such, there are no independent witnesses to the actual encounter, although a staff member did find Mr. Kiyoshk in the complainant’s room, as further described below.

[8] There is no dispute that Mr. Kiyoshk had vaginal intercourse with the complainant; other sex acts are disputed.

[9] The central dispute is whether the complainant consented to the sex. The complainant maintains that she did not.

[10] For his part, Mr. Kiyoshk says that the complainant was a willing participant. He says that the complainant consented to the sex acts. Thus, Mr. Kiyoshk pled not guilty to the charges.

[11] The trial of this matter was held, without a jury, in Windsor on September 24, 25, and 26, 2018. The court heard evidence from seven witnesses over two days. Final submissions were delivered on the third day. The witnesses at trial consisted of the complainant; N.B., the complainant’s sister; the complainant’s mother; a nurse employed at Victoria Manor; a P.S.W. or personal service worker employed at Victoria Manor; a nurse employed at the Sexual Assault Treatment Centre at Windsor Regional Hospital; and the accused.

Factual Background

[12] I do not propose to summarize the evidence of every witness who testified in great detail. My review of the facts is limited to those facts that are significant to the central issues or that provide context necessary to appreciate and determine the relevant issues.

[13] At the time of the encounter between the complainant and Mr. Kiyoshk in July 2015, the complainant was 33 years of age. As I have said, at that time, she resided at Victoria Manor, sharing a room with her sister, N.B., which was room 224. At the time of trial, the complainant was 36 years of age, and she and her sister then resided with their mother.

[14] In her opening address, Crown counsel indicated that the complainant was developmentally delayed and visually impaired. In her evidence at trial, the complainant testified that she can see “a little bit” up close but that she cannot see things far away. She attended at trial while using a white probing cane. The precise nature of the complainant’s developmental delay was not in evidence before me, but it is common ground that the complainant’s limitations were demonstrably apparent in the testimony she gave at trial.

[15] That said, Crown counsel advised that the Crown was not taking the position that the complainant lacked the requisite capacity to consent at the time of the alleged incident or at trial. Rather, the Crown’s position was that while the complainant did have the capacity to consent at the material times, she did not in fact consent to the activity in question.

[16] At the time of the incident in July 2015, Mr. Kiyoshk was almost 47 years of age. He was 50 years of age at the time of trial. When asked where he resided at the time of the incident in question, he replied that he resided at 664 Victoria Avenue, in Windsor, which is the address of the Downtown Mission of Windsor, located about a half-block away from Victoria Manor.

[17] The complainant’s account of the events in question began, in her examination-in-chief, when Crown counsel, quite properly, orientated C.B. to the date of July 17, 2015, and then asked C.B. “in your own words, you tell us what happened to you that day.” The complainant immediately responded, “he raped me.”

[18] I will examine in greater detail below certain aspects of the complainant’s evidence. However, for present purposes, I would summarize her version of the incident as given in her examination-in-chief as follows (and at times I am paraphrasing C.B.’s account). On the night in question, her sister N.B. was already in bed in their room sleeping. C.B. had gone to the bathroom on the same floor as their room to get ready for bed, and she then returned to their room. She entered the room and then locked the door behind her, and got into bed.

[19] C.B. was lying awake in her bed when a man entered their room. She did not know the man and had never met the man before. She did not know his name at the time of the incident or the time of trial. She does not know how the man entered the room or got into the building. She did not let the man into the room. The man took her clothes off, and took his clothes off, and then he raped her. He put his penis in her vagina. He touched her breasts with both his hands and his mouth.

[20] C.B. did not say anything to the man during the incident. She said she could not say anything; she froze. She said the man did not say anything to her either. C.B.’s eyes were open at the time, but she could not really see him.

[21] C.B. was asked whether she said it was okay for the man to do that, and she replied, very adamantly, “no!”

[22] I will not go through all of the inconsistencies in C.B.’s testimony that arose out of cross-examination, but I would note the following. Although C.B. was not always consistent in her evidence on these points, C.B. did repeatedly agree with defence counsel that:

a. although C.B. could not remember their names, she does remember the nurse and personal support worker came to her room and asked her if she was okay;

b. C.B. told the staff that she was fine;

c. the nurse asked if she knew the man, and C.B. replied that he was her friend;

d. she was not crying or upset when she spoke with the nurse;

e. she did not tell the nurse to call 911;

f. she did not tell the nurse that the man raped her;

g. her mom came to the room later that night, and was very upset that there was a boy in the room;

h. her mom got mad at C.B., and she does not like it when her mom gets mad;

i. her mom said to C.B. that, “if you don’t tell me the truth, I’ll throw you through the wall”;

j. C.B. was a little scared and a little upset when her mom was yelling at her;

k. C.B. thought the only way to get her mom to stop yelling at her was to tell her mom that she did not consent to having sex with the man.

[23] C.B. also agreed with defence counsel that she believes her mom is over-protective of her, which she finds frustrating at times because she is an adult and can make her own decisions, and sometimes she and her mom argue about that.

[24] The evidence of the sister N.B., who was about 30 years of age at the time of the incident, was that she was sleeping in her bed in room 224 with the lights off. She said her sister C.B. was not in the room at that point but was getting ready for bed. The bedroom door was not locked at that point. N.B. testified that she was awoken by the door opening and a man entered the room. Her bed was closest to the door, and when she opened her eyes, she saw a man standing in the middle of the room. She had never seen the man before. N.B. said the man did not say anything.

[25] The evidence of N.B. is somewhat unclear as to the whereabouts of C.B. when the man entered the room. N.B. testified that she did not see C.B. and the man enter the room together. N.B. said that she did not see C.B. enter the room, but she thought the man entered the room before C.B. When N.B. was asked in examination-in-chief where was C.B. when she saw the man standing in the middle of the room, she said that she was not sure. In cross-examination, she said that C.B. was sitting on her bed, but she did not say anything to her. N.B. said that C.B. was not upset at the time, nor did she tell N.B. to go get help.

[26] The evidence of N.B. was that as soon as she saw the man standing there, she quickly left their bedroom and went downstairs to the nursing station and told the nurses what had happened. N.B. then went to telephone her mother and told her mom that there was a man in their bedroom. She waited downstairs for her mother to arrive, which she said did not take long because her mom lived just around the corner from Victoria Manor.

[27] In examination-in-chief, N.B. said she went downstairs because there was a man in their room, and she was not sure what he was going to do with C.B. N.B. testified that she is over-protective of her sister. In cross-examination, N.B. was also asked about why she went downstairs. N.B. understood there were residence rules at Victoria Manor, and they were not allowed to have “boys” in their rooms after-hours. N.B. said she thought C.B. was breaking the rules, and N.B. did not want to get in trouble.

[28] N.B. further testified that when her mother arrived, they both went upstairs to room 224, and N.B. was present when she observed her mother asking C.B. what had happened. She said that her mother was mad at C.B. because she thought that C.B. had let the man into the room, and C.B. was crying and saying to their mother that she did not let the man in the room. N.B. denied that her mother was screaming at C.B. but said her mom was very loud.

[29] Although in examination-in-chief N.B. said that she heard the man and C.B. talking to each other (although she could not hear what they were saying), in cross-examination she corrected her evidence and adopted the statement she had given to the police that she did not hear or see anything between the man and her sister that night. The evidence of N.B. was consistent throughout that she did not observe any touching or anything bad happening between the man and C.B.

[30] N.B. testified that she never saw the man again after that night. She specifically rejected the suggestion that she saw the same man the next morning at Victoria Manor.

[31] The Crown called two witnesses who were employed as staff members at Victoria Manor.

[32] The first staff member was Analyn Durocher, who was a personal support worker or PSW working the midnight shift on the night in question. Ms. Durocher was 47 years of age at the time of trial and had been employed at Victoria Manor, working steady night-shifts, for some 26 years.

[33] Ms. Durocher confirmed that she was working the night-shift at Victoria Manor on July 17, 2015. She recalled that her involvement in the incident began when the charge nurse, Ms. Xiu Su, paged her sometime around midnight or 12:30 a.m., Ms. Durocher went to the nursing station, where Nurse Su said that they needed to go up to C.B.’s room. Ms. Durocher did not know the precise reason why they were going up; she knew nothing of any alleged sexual assault.

[34] Ms. Durocher testified that she and Nurse Su went to the room together, where only C.B. was present. That is, the sister N.B. was not present when Ms. Durocher and Nurse Su first went up to the room.

[35] Ms. Durocher said that she observed clothes all over the room with blood on them. She said there was undergarments “full of blood” all over the room, and there was blood running down both legs of C.B. Ms. Durocher recalled it was “pretty gory in there.”

[36] Ms. Durocher testified that they asked C.B. what happened, and C.B. told them that it was consensual sex, that she knew the man, and that he was her friend. When questioned further, Ms. Durocher said that she did not remember the precise language C.B. used but it was to the effect that C.B. consented to having sex with the man.

[37] Ms. Durocher said that she then left to go back to her work, and she believed Nurse Su remained in the room with C.B. Ms. Durocher recalled that it was around 1:00 a.m. when she left the room and went back to work, as it was getting late, and she had work to do.

[38] In cross-examination, Ms. Durocher adopted the contents of the statement that she gave to the police around 2:00 a.m. that night, to the effect that when the staff first engaged C.B., she told staff that she had consented to the sexual activity, that she knew the man, and that he was C.B.’s friend. She confirmed that when staff first engaged C.B., she was not crying or upset, and following their exchange with C.B., Ms. Durocher did not think there was any problem and so she went back to work.

[39] Sometime later, the complainant’s mother arrived at Victoria Manor and went up to room 224 to speak to her daughter C.B. Ms. Durocher testified that she was present in the room for some part of the conversation. Ms. Durocher said that the mother was loud, and they had to remind the mom and C.B. to lower their voices, again because there were other residents around.

[40] Ms. Durocher testified in examination-in-chief that the mother was screaming at C.B. and she (the mother) kept repeatedly telling C.B. that she was raped, and then C.B. was replying back to her mom that she was raped. Ms. Durocher recalled that at one point the mother was banging C.B.’s head off the wall, yelling “I want to know the truth.”

[41] In cross-examination, Ms. Durocher again adopted her statement to the police and testified that in the course of the exchange between C.B. and her mom, the mother was shaking C.B., screaming at her, saying “tell me the truth,” hitting her head on the wall and her back. She said the “poor kid was terrified.”

[42] Ms. Durocher was asked in cross-examination whether N.B. was present to witness that exchange between C.B. and their mother, and Ms. Durocher replied that she believed the police had N.B. settled downstairs. On the whole of her evidence, Ms. Durocher could not fully recall whether N.B. was then present in the room, but it she was, she was there for only a few minutes before the police brought her downstairs.

[43] Ms. Durocher was questioned in examination-in-chief about the difference in C.B.’s demeanour, and she explained that prior to the mom’s arrival, C.B. said it was consensual with her friend but then she kept changing it and saying it was rape.

[44] Ms. Durocher was also asked in cross-examination about how the demeanour of C.B. changed once her mother arrived. Ms. Durocher said C.B. got louder once her mother got there, that her mother was hounding C.B., and that it was only after the mother showed up that C.B. began to talk about having been raped.

[45] Ms. Durocher confirmed that at the point when they first engaged C.B., Ms. Durocher did not think that there was any reason to call the police. At the end of her testimony, I asked Ms. Durocher if one of her residents were to say to her that she or he had been raped, what would she do, and Ms. Durocher replied that she would report it to the charge nurse. The evidence of Ms. Durocher was that she herself did not call the police, and she believed it was not the staff at Victoria Manor who called the police; but Ms. Durocher did not know who actually called the police.

[46] The Crown also called the charge nurse who was working that night at Victoria Manor, Ms. Xiu Su.

[47] Ms. Su was 52 years of age at the time of trial. She was employed as a registered practical nurse at Victoria Manor, and had been an R.P.N. since 2011. Nurse Su confirmed that she was working the midnight shift at Victoria Manor on July 17, 2015.

[48] Nurse Su testified that Mr. Kiyoshk was known to her because he would sometimes frequent Victoria Manor to visit the residents there. In fact, Nurse Su saw Mr. Kiyoshk at the beginning of her shift that night, as he was outside talking to some of the residents. Nurse Su told Mr. Kiyoshk that he had to leave the premises; however, she said he was not causing any problems.

[49] Nurse Su testified that it was sometime after midnight that night when N.B. came down to the nursing station and told her that there was a guy in her bedroom and that she had already called her mother. In cross-examination, Nurse Su clarified that she understood that the residence rules of Victoria Manor did permit male visitors in a resident’s room but did not permit visitors after 11:00 p.m. As such, the concern of Nurse Su in finding Mr. Kiyoshk in C.B.’s room was that it was after midnight and there was not supposed to be any visitors at that hour.

[50] Nurse Su then went up to room 224, where she found the door to the room was unlocked and open, i.e., ajar. As Nurse Su stood in the doorway, she could see C.B. in bed and there was a man lying on top of her in bed. The lights in the room were on at that point, and Nurse Su could see that the man was Mr. Kiyoshk, whom she recognized right away given her previous dealings with him. Nurse Su observed that Mr. Kiyoshk was wearing a T-shirt but not pants or underwear; she could see that Mr. Kiyoshk was having sex with C.B. Nurse Su said she could not see what C.B. was wearing because Mr. Kiyoshk was on top of her. However, she did not observe any struggle between the two.

[51] Nurse Su right away yelled at Mr. Kiyoshk that he had to leave the premises. He replied, “okay, okay” and he got up out of bed. She said C.B. did not say anything. Mr. Kiyoshk was naked from the waist down, and Nurse Su could see his private parts. So Nurse Su closed the door over and stepped back into the hallway as Mr. Kiyoshk changed into his clothes. If Mr. Kiyoshk and C.B. had a conversation while the door was closed over, Nurse Su did not hear it. She said Mr. Kiyoshk put on his pants and he then left the residence, and she waited until he left and watched him leave.

[52] Nurse Su then turned back to C.B. and asked her if she was okay; C.B. replied that she was fine. Nurse Su asked her if she knew the guy. Nurse Su testified that C.B. replied to her that she knew the man and he was her friend. Nurse Su asked C.B. if she was okay, and she replied that she was fine. Nurse Su confirmed that C.B. did not ask for help in any way and did not say anything like the man had hurt her.

[53] Nurse Su observed that C.B. was not upset, she was not crying; rather, she was calm throughout.

[54] So Nurse Su then left the room, went back downstairs, and called her co-worker Analyn Durocher. She explained that she was a little scared because it was her first time dealing with such a situation.

[55] Ms. Durocher responded to Nurse Su’s call, and they both then went back up to room 224 to make sure that C.B. was okay. Nurse Su testified that they asked her if she was okay, and she said yes, she was fine, and that the man was her friend. She never told them that she was forced by the man to have sex; she never said anything to that effect. C.B. was calm, she was not upset, and she was not crying. Nurse Su said that at that point, she and Ms. Durocher returned to the nursing station. Nurse Su thought at that point that it was the end of the situation.

[56] Nurse Su testified that at that point she saw no reason to call the police. She confirmed in cross-examination that if she had seen anything alarming or if C.B. had told her that she had been forced in any way, she would have called the police.

[57] Nurse Su testified that later on the complainant’s mother arrived, and she was very upset. The mother asked Nurse Su to call the police and she then went up to room 224. Nurse Su stayed at the nursing station and called the police to comply with the mother’s request, and she told the police what had happened and that the complainant had said that the man in question was a friend. However, Nurse Su said that she did not feel that it was necessary to call the police because the complainant had told her that the man was her friend. Nurse Su called the police only because the mother told her to call, even though she herself did not see the need to call police. She said the police replied to her that she should call back to them if she thought she needed to.

[58] Nurse Su then went back up to room 224 to make sure that C.B. was okay. As she walked down the hallway approaching room 224, she heard the complainant’s mother screaming at C.B., threatening her, and telling C.B. to “tell me the truth. Or if you don’t tell me the truth, I’m going to throw you through the wall.” Nurse Su did not hear if C.B. replied to her mother or what she might have said, but she could tell that C.B. was crying. As she approached the room, she saw that C.B. was in her bed, crying. The mother said to Nurse Su that there is blood, and Nurse Su then noticed for the first time that there was blood on the pillow, the sheets, and C.B.’s legs; she had not seen the blood before.

[59] Nurse Su did not observe the mother put her hands on C.B., but she confirmed that the exchange was the first time she observed C.B. upset that night. At that point, C.B. was crying and was visibly upset. Nurse Su confirmed that it was only after the mother arrived at Victoria Manor that night and only after the mother was screaming and yelling at C.B. and threatening her that she observed C.B. become upset that night.

[60] Nurse Su then returned to the nursing station and called back to the police because of the blood and because the mother had asked if the police were coming.

[61] Nurse Su said they also called the ambulance and arranged to have C.B. taken to Metropolitan Hospital.

[62] Following the incident at Victoria Manor, C.B., N.B., and their mother attended at the Sexual Assault Treatment Centre at Windsor Regional Hospital, where C.B. was examined by two registered nurses, Shelley Berdan and Jo-Anne Treverton. Nurse Treverton gave evidence at trial, and confirmed that they dealt with C.B. at about 2:50 a.m. on July 17, 2015.

[63] Nurse Treverton confirmed that C.B. had advised that she had been sexually assaulted. Nurse Treverton understood that the complainant’s mother had some concern as to whether C.B. had the ability to make decisions, so the nurses called Victoria Manor to confirm and were advised by the Manor that C.B. was competent to make her own decisions. Nurse Treverton herself testified that C.B. understood quite well, that the was very upset, but was cooperative and trusting of the nurses.

[64] The nurses took a history and advised C.B. of her options for care at the Treatment Centre. The nurses then jointly conducted a physical examination of C.B. and opened a sexual assault evidence kit, collecting various samples by way of swabs according to the sexual assault evidence kit protocol.

[65] Nurse Treverton observed that there was blood on C.B.’s white bikini underwear, that had C.B.’s initials on them. Nurse Treverton testified that C.B. told the nurses that she had no bleeding prior to the assault. The nurses asked her if she was menstruating at the time of the assault, and C.B. answered no, but she was menstruating at the time of the nurses’ examination of her. Nurse Treverton said that C.B. made it clear that she had not been menstruating prior to the alleged assault but had started after the incident.

[66] Upon physical examination of the external genitalia with the patient in lithotomy, the nurses observed and documented two abrasions to the fossa navicularis at the six and eight o’clock positions. They also observed that the patient was torn to the base of the hymen and documented a full hymenal transection at the eight o’clock position. Nurse Treverton testified that they observed blood at the edges and around the transection and also beyond the hymen.

[67] Nurse Treverton said they did not conduct an internal genitalia examination because the patient reported some discomfort in the area of the injuries.

[68] Nurse Treverton testified that the nurses conducted a head-to-toe examination of C.B. and observed no other lacerations, bruises, or other injuries to the body of C.B.

[69] Nurse Treverton was very clear in her testimony that she could not say what was the cause of the observed injuries. That is, she was unable to say whether the observed injuries were a product of consensual activity or assaultive conduct. Nurse Treverton also testified that she could not confirm whether the blood that was observed around C.B.’s injuries was menstrual blood or blood caused by a sexual assault.

[70] As referenced above, Mr. Kiyoshk took the stand in his own defence and offered the following account of his encounter with the complainant. He testified that he usually steals from Shoppers Drug Mart to support his drug habit, that he had served 30 days’ imprisonment, and having been released from jail, he was on his way to the Downtown Mission, “when someone randomly gave [him] a $50 morphine pill for free.” As he was walking along, he was thinking where he could get a needle. He thought of his girlfriend, whom I will reference as D.C., who also lived at Victoria Manor, right across the hall from “the twins,” i.e., C.B. and N.B.

[71] So Mr. Kiyoshk made his way over to Victoria Manor. He recalls that it was daylight when he was walking over to the Manor. He could not completely account for the passage of time from daylight to around midnight, other than to say that he had a lot of friends at Victoria Manor and he would talk to them and usually they did drugs. However, the owners at the Manor did not like him. He recounted how he had been accused of stealing a television and selling drugs to the residents. He said the lady at the Manor had banned him from the premises, and he was not allowed inside.

[72] Mr. Kiyoshk was asked how he entered the premises that night. He said that he went up the back and entered the hallway where his girlfriend D.C.’s room is located. He said there was no one else in the hallway. He knocked on the door to D.C.’s room. There was no answer. However, Mr. Kiyoshk heard a door open up behind him, and he then turned around and saw a young woman whom he did not know, who was the complainant.

[73] Mr. Kiyoshk said he and the complainant stood there for a moment looking at each other, and he thought she had a “sick look in her eyes.” He said that the woman then asked him whether he had anything. He asked her what she meant. She asked him if he had any dope. Mr. Kiyoshk replied that he had some “hydro-morph” and he asked her, “are you sick?” He said she responded that she “needed something” but she said she did not have any money. Mr. Kiyoshk replied with words to the effect that he was a “stand-up guy” and he would help her out. Mr. Kiyoshk suggested that they step into the stairwell because there were cameras in the hallways.

[74] Mr. Kiyoshk testified that rather than stepping into the hallway, the woman said to him that he should come into her room. He said he asked her twice if she was sure, and she answered in the affirmative. With that, she turned to the door of the room across the hall from D.C.’s room, and she reached under her blouse or shirt and took a key from around her neck and unlocked the door.

[75] Mr. Kiyoshk testified that they walked into the room, and she moved some items off of her bed and he sat down. He asked her for a piece of paper, and she gave him one. He said he then took out the hydro-morph pill, opened it up, the beads fell into the paper, and then he took out his lighter and went to work crushing the beads.

[76] Mr. Kiyoshk said that as he was working on the pill, he noticed that there was another woman lying down in the bed closest to the door. The woman sat up, looked at Mr. Kiyoshk, and he asked the other woman if she wanted “some of this?” The complainant then said to Mr. Kiyoshk words to the effect that the other woman would go back asleep, but Mr. Kiyoshk should just be quiet. Mr. Kiyoshk observed the two women just looking at each other, and then the woman in the other bed said, “I’m going to call mom,” and she left the room.

[77] Mr. Kiyoshk was then alone in the bedroom with the complainant. The door was still open. Mr. Kiyoshk testified that he was working on crushing the beads when the complainant placed her hand on his shoulder. He looked up from his work, and the complainant started kissing him. He said she motioned for him to stand up, which he then did. She then unfastened his jeans, and they fell to the floor. He testified that the woman then got to her knees and started to give him oral sex.

[78] She then pushed him back onto the bed, and Mr. Kiyoshk asked her, “can I put it in?” He said the complainant then pulled her pants down to her ankles, he undid the laces to her shoes, and she kicked off her shoes. He said she then took off her clothes and he pulled off his pants, although they both still had their shirts on, and they started having sex on her bed. Mr. Kiyoshk said that he was on top of her having intercourse in the missionary position.

[79] At one point, Mr. Kiyoshk asked the complainant if they should not close the door, and he said she replied that she did not care. Mr. Kiyoshk testified that throughout the sex, the complainant repeatedly said to him that “after this, I want to be with you.” Mr. Kiyoshk asked her what was her name, and she told him, and he then replied that he is Paul Kiyoshk but “people call me Glove.”

[80] Mr. Kiyoshk testified that throughout the encounter, the complainant never asked him to stop and never tried to push him away; he said they were both “into it.”

[81] Mr. Kiyoshk testified that at some point one of the nurses at Victoria Manor appeared in the hallway in front of the open door and yelled at him, “you’re not supposed to be here, Paul. You have to leave right now.” Mr. Kiyoshk responded, “okay, I don’t want any problems, I’ll go.”

[82] Mr. Kiyoshk testified that the nurse turned to speak to the complainant, and she asked C.B if she was okay. He said the complainant responded to the nurse by saying, “I’m fine. I know him. He’s my friend.”

[83] Mr. Kiyoshk got up out of bed and started to put his clothes on. He turned to the complainant and told her that he had to get out of there, that he got accused of stealing a TV from the Manor, that he sells a lot of drugs there, and he has hydro-morph on him. He made ready to leave, and the complainant asked him to meet her tomorrow, so they made arrangements to meet the next day at 10:00 a.m. outside by the picnic tables. He then kissed her goodbye and gave her a hug.

[84] Mr. Kiyoshk said he then left the room, went out the stairwell, and left Victoria Manor out the back. He did not return to Victoria Manor that night.

[85] The mother of the complainant was called as a witness for the defence.

[86] I do not propose to spend a great deal of time summarizing the testimony of the mother. For present purposes, I note that her evidence directly conflicts with the evidence of the two Victoria Manor staff members in certain material respects. In particular, the mother denies that she screamed at or threatened C.B. in any way. The mother ultimately agreed that she was very upset that night; she was upset that this had happened and that the man was in the building.

[87] However, when asked by defence counsel in examination-in-chief if she raised her voice to C.B., the mother gave various answers, including “I may have,” “I could have,” “I don’t recall that I did,” and finally “it’s likely that I did – to make sure, to reinforce that you [C.B.] can’t lie to me about this.”

[88] The mother was also asked whether she remembers putting hands on C.B. I thought the following exchange between the mother and defence counsel was significant, and I remembering remarking upon it to myself when I first heard the testimony:

Q. Okay, so she told you at first that she didn’t let him in, correct?

A. Yes.

Q. Okay. And do you remember ever putting your hands on [C.B.] that night?

A. I cuddled her. I was helping her get dressed, get ready, which I shouldn’t have done. I, ah, held on to her and tried to calm her down the best I could. I don’t know what more to say …

Q. So do you or do you not recall putting hands on [C.B.] other than cuddling her?

A. No.

Q. Okay. So you never shook her?

A. [Pause.] Maybe to calm her – to get her hysteria out of her, um, that’s possible. I don’t recall. It’s possible, that I could have “it’s okay, it’s okay.” And I – I don’t know.

[89] On the whole, I agree with the submissions of Ms. Comand that, in her testimony before this court, the mother very much attempted to minimize her actions that night.

[90] The mother was also questioned about a passage in the mother’s statement to the police that night, in which she reportedly said to police: “At first [C.B.] was lying. But then she told me that a man pushed her down. Then I told the nurse to call police.” In particular, the mother was asked, when she said to the police that “[a]t first [C.B.] was lying,” what was she lying about.

[91] The mother’s varied responses to that question struck me as evasive, to say the least. At the end of the day, it is fair to say that the mother distanced herself from the statement she had given to the police, saying that, among other things, she “wouldn’t think I would word it that way” and “I don’t know how it would be worded this way.” Ultimately, the mother said that her focus that night was not on the wording of her statement to the police but, rather, her focus was on her daughter.

[92] At the end of the day, the mother maintained that C.B.’s story to the mother that night remained consistent throughout, that is, that she did not let the man in, that she did not know the man, that the man pushed her into the room, and that he hurt her.

[93] I would comment on two other aspects of the mother’s testimony.

[94] First, it is clear that the mother disagreed with the approach of Victoria Manor concerning the implementation of their house rules. As the mother said in her testimony, “I don’t agree with a lot of things that go on there.” In particular, the mother disagreed with the Manor’s house rules that C.B. was “old enough to make her own decisions.” The mother believed that Victoria Manor was wrong to give C.B. such permission, and, as she said in her testimony, “that really upset me because they had no right to do that.”

[95] The mother confirmed that C.B. knew that the mother was upset C.B. had been given such permission.

[96] Second, it is clear from the mother’s evidence that her feelings of protectiveness for her daughter – which are certainly understandable – were informed in part by C.B.’s interest in the opposite sex. The mother confirmed in her testimony that C.B. had consistently expressed an interest in boys, that since high school she had expressed her desire to have a boyfriend, to get married and have babies, and that C.B. had just turned 33 years old at the time of the incident.

Law

Consent in sexual assault

[97] As I approach the consideration of the legal analysis, I bear in mind the words of L’Heureux-Dubé J. in the Supreme Court of Canada’s seminal decision in R. v. Ewanchuk, that, “the primary concern animating and underlying the present offence of sexual assault is the belief that women have an inherent right to exercise full control over their own bodies, and to engage only in sexual activity that they wish to engage in.”[^2]

[98] To the same effect is the rationale offered by Major J. for the majority of the Court in Ewanchuk:

Society is committed to protecting the personal integrity, both physical and psychological, of every individual. Having control over who touches one’s body, and how, lies at the core of human dignity and autonomy. The inclusion of assault and sexual assault in the Code expresses society’s determination to protect the security of the person from any non-consensual contact or threats of force. The common law has recognized for centuries that the individual’s right to physical integrity is a fundamental principle … It follows that any intentional but unwanted touching is criminal.[^3]

[99] The essential elements of the offence of sexual assault were considered by the Supreme Court of Canada in R. v. J.A., as follows:

A conviction for sexual assault under s. 271(1) of the Criminal Code requires proof beyond a reasonable doubt of the actus reus and the mens rea of the offence. A person commits the actus reus if he touches another person in a sexual way without her consent. Consent for this purpose is actual subjective consent in the mind of the complainant at the time of the sexual activity in question: Ewanchuk. As discussed below, the Criminal Code, s. 273.1(2), limits this definition by stipulating circumstances where consent is not obtained.

A person has the required mental state, or mens rea of the offence, when he or she knew that the complainant was not consenting to the sexual act in question, or was reckless or wilfully blind to the absence of consent. The accused may raise the defence of honest but mistaken belief in consent if he believed that the complainant communicated consent to engage in the sexual activity. However, as discussed below, ss. 273.1(2) and 273.2 limit the cases in which the accused may rely on this defence.[^4]

Fundamental Principles

[100] It is instructive to review the fundamental framework of analysis in a criminal trial.

[101] The presumption of innocence is the most fundamental principle of our Canadian criminal justice system. It is the fundamental right of every person accused of criminal misconduct to be presumed innocent until proven guilty by the evidence presented and established by the Crown. Accordingly, Mr. Kiyoshk, as every accused person charged with an offence, is presumed to be innocent unless and until the Crown proves his guilt beyond a reasonable doubt.

[102] The presumption of innocence is interwoven with the standard of proof required to displace that presumption. The standard of proof required of the Crown to secure a conviction in a criminal case is that it must establish each and every essential element of the offence against the accused by proof beyond a reasonable doubt.

[103] Much has been written on the meaning of “proof beyond a reasonable doubt.” It sometimes seems that trial judges strive or struggle to express the same basic notion in different ways. For myself, I find it convenient and instructive to explain the concept by simply reciting the model jury charge suggested by the Supreme Court of Canada in its seminal decision in R v. Lifchus, as follows:

The accused enters these proceedings presumed to be innocent. That presumption of innocence remains throughout the case until such time as the Crown has on the evidence put before [the court] satisfied [the court] beyond a reasonable doubt that the accused is guilty.

What does the expression “beyond a reasonable doubt” mean?

The term “beyond a reasonable doubt” has been used for a very long time and is a part of our history and traditions of justice. It is so engrained in our criminal law that some think it needs no explanation, yet something must be said regarding its meaning.

A reasonable doubt is not an imaginary or frivolous doubt. It must not be based upon sympathy or prejudice. Rather, it is based on reason and common sense. It is logically derived from the evidence or absence of evidence.

Even if [the court] believe[s] the accused is probably guilty or likely guilty, that is not sufficient. In those circumstances, [the court] must give the benefit of the doubt to the accused and acquit because the Crown has failed to satisfy [the court] of the guilt of the accused beyond a reasonable doubt.

On the other hand, [the court] must remember that it is virtually impossible to prove anything to an absolute certainty and the Crown is not required to do so. Such a standard of proof is impossibly high.

In short if, based upon the evidence before the court, [the court is] sure that the accused committed the offence [the court] should convict since this demonstrates that [the court is] satisfied of his guilt beyond a reasonable doubt.[^5]

Assessment of credibility

[104] It is common ground that where the court is presented with two competing versions of the critical events in question, and credibility is important, then central to the court’s analysis of the case are the well-known principles in R. v. W.(D.).[^6] Indeed, both Ms. Brown for the Crown and Ms. Comand for the defence submitted that the instant case is very much a W.(D.) case. There, the Supreme Court of Canada held that the trier-of-fact should be instructed on the issue of credibility in accordance with the following three-step analysis:[^7]

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

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

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

[105] In my view, the commentary on the W.(D.) principles set out by Code J. in his decision in R. v. Thomas is of assistance. In that case, Code J. held:

… [W.(D.)] does not describe three sequential analytical steps that a trier of fact must pass through, one at a time. Rather, it describes three distinct findings of fact that a trier of fact can arrive at, when considering all the evidence at the end of the case, namely, complete acceptance of the accused’s exculpatory account (“step 1”), complete acceptance of the Crown witnesses’ inculpatory account (“step 3”), or uncertainty as to which account to believe (“step 2”). …

… A trier of fact must look at all the evidence, when deciding whether to accept the accused’s evidence and when deciding whether it raises a reasonable doubt. It is at that same point in time that the trier of fact will also determine whether the Crown’s witnesses prove guilt beyond reasonable doubt and whether the accused’s contrary exculpatory account must necessarily be rejected. In other words, these decisions are all made at the same time on the basis of the same total body of evidence. The so-called “three steps” in W.D. are simply different results, or alternative findings of fact, arrived at by the trier of fact at the end of the case when considering the totality of the evidence.[^8]

[106] That said, I well recognize that the determination of an accused’s guilt or innocence must not devolve into a mere credibility contest between a complainant and the accused. Such an approach erodes the operation of the presumption of innocence and the assignment of the burden of proof beyond a reasonable doubt to the prosecution.

[107] Credibility and reliability are not identical concepts. Credibility refers to the honesty of the witness. Reliability refers to the accuracy of the witness’s evidence. A witness may be honest but wrong. I have considered these concepts in my assessment of the evidence.

[108] I instruct myself in accordance with these fundamental principles.

[109] I would add this further point on the standard of credibility and reliability. As I have said, the Crown took the position that while the complainant had the capacity to consent to the sexual activity at the material times, she did not in fact consent to the activity in question. The position of the Crown that C.B. was able to consent was supported by the evidence of the complainant, the complainant’s mother, Nurse Su, and Ms. Treverton of the Sexual Assault Treatment Centre, a very experienced nurse who testified that she believed the complainant was capable of giving consent to Nurse Treverton conducting a physical examination of her.

[110] That said, having observed the complainant give testimony in both examination-in-chief and cross-examination, I share the view that it is obvious that the complainant was functioning with certain limitations, quite apart from the circumstance of her visual impairment. However, there was no medical or psychological evidence before the court as to the exact nature or extent of the complainant’s apparent limitations.

[111] While Crown counsel took the position that C.B. was capable of giving credible evidence (and, it was submitted, did in fact give credible evidence), in her closing submissions counsel for the Crown asked that I be mindful of the “common sense approach” that the case law has suggested is appropriate in dealing with the testimony of young children, in cases like R. v. B.(G.)[^9] and R. v. D.P.[^10]

[112] In particular, counsel took me to a passage in R. v. D.P., in which Spies J. had occasion to quote from the decision of the Supreme Court of Canada in R. v. F.(C.C.) in the context of a s. 715.1 application, where Cory J. observed that:

A skillful cross-examination is almost certain to confuse a child, even if she is telling the truth. That confusion can lead to inconsistencies in her testimony. Although the trier of fact must be wary of any evidence which has been contradicted, this is a matter which goes to the weight which should be attached to the videotape and not to its admissibility.[^11]

[113] Ms. Brown was clear that she was not advancing the position that the defence had anticipated the Crown might adopt, that is, that the standard of proof must be lowered when dealing with a witness who demonstrably displays some limitations. Rather, Ms. Brown simply asked the court to be mindful of the caution struck by Cory J. in R. v. F.(C.C.) that a skilful cross-examination can confuse a witness with limitations.

[114] In my view, the question comes down to the approach directed by the Supreme Court of Canada in R. v. W.(R.), where it was held that:

Every person giving testimony in court, of whatever age, is an individual, whose credibility and evidence must be assessed by reference to criteria appropriate to her mental development, understanding and ability to communicate.[^12]

Analysis

[115] As I have said, this case turns on whether the complainant consented to the sexual activity in question.

[116] As is typical in these cases, there were no real independent witnesses to the activity in question.

[117] The sister N.B. did not witness any sexual activity, touching, or anything “bad” happening to her sister. Once she realized that there was a man in their room, she got out of bed and left the room almost immediately. Thus, her evidence does not really assist the court.

[118] Turning to the medical evidence, while Nurse Treverton of the Sexual Assault Treatment Centre was certainly a very credible and impressive witness, she was very clear in her testimony that she could not say what was the cause of the observed injuries to the complainant. In other words, the medical evidence in this case is equally consistent with sexual intercourse, which is admitted in this case, as it is with assaultive conduct. We simply cannot know from the medical evidence the nature of the sexual encounter, and whether it was consensual or not.

[119] Thus, in the end, in the circumstances of this case, where it is admitted that sexual intercourse did in fact occur, the medical evidence does not really assist the court either.

[120] As outlined above, Mr. Kiyoshk gave evidence at trial and offered his own version of the events in question.

[121] If I believe the evidence of Mr. Kiyoshk that the complainant consented to the sexual activity in question, or if I am left with a reasonable doubt by all of the evidence, then I must acquit.

[122] I must say at the outset that I have some concerns regarding the evidence of Mr. Kiyoshk. Simply put, I have difficulty believing some aspects of his account of the events in question. However, given my analysis below on what I perceive to be the most telling aspect of this case, I do not propose to catalogue all of my concerns regarding the evidence of Mr. Kiyoshk.

[123] That said, I tend to agree with Ms. Comand’s submissions that in respect of his account of the core incidents in question, Mr. Kiyoshk’s evidence was generally consistent and was not really shaken in cross-examination. But whether that largely consistent account is credible is a separate question.

[124] In particular, and for example, I find it difficult to believe his evidence in chief that “someone randomly gave [him] a $50 morphine pill for free.” In cross-examination, we learned that this third person was not “random” at all but was in fact known to Mr. Kiyoshk; however, he did not wish to “rat out” this person, and hence apparently he decided to tell the court in the first instance that some random person gave him this pill, even though that was not the truth.

[125] In that regard, I am not convinced by Ms. Comand’s submission that that was not a lie but was simply “an omission of fact.” I view it more as, if not an attempt to mislead the court, then it was a conscious attempt to not be fully candid and transparent with the court. That causes me to cast some cloud over the veracity of Mr. Kiyoshk’s other evidence – in respect of which I would then ask the question: if Mr. Kiyoshk was prepared not to be completely honest with the court for the sake of not placing this third person in jeopardy, then how can the court be satisfied that he is being completely honest with the court when his own interests are directly in jeopardy.

[126] I also confess to having some difficulty believing the evidence of Mr. Kiyoshk that, subsequent to the events in question, he had further encounters with both C.B. and N.B., and, in particular, he and N.B. went and smoked “a doobie” or “joint” together. The evidence of each of C.B., N.B., and their mother was that the daughters never saw Mr. Kiyoshk after the night in question. While I confess that Ms. Comand’s submissions that the court should have some cause for accepting the credibility of the mother’s evidence have some traction with me, I have no such reservations regarding the credibility of N.B., who impressed me as a sincere and truthful witness, free of guile.

[127] In any event, given my fundamental concerns below, I need not ultimately resolve my concerns regarding the evidence of Mr. Kiyoshk.

[128] I then consider the evidence of the complainant. I will say that assessing only the evidence given in her examination-in-chief, the complainant initially presented as a credible witness who was doing her best to relate what had happened to her to the best of her abilities despite some apparent limitations. But of course the credibility and reliability of a witness cannot be completely assessed based only on their presentation of the evidence in chief. And certainly in this case, problems arose and were made apparent in the course of Ms. Comand’s cross-examination.

[129] I do not propose to review at length my concerns for some aspects of the reliability of the complainant’s evidence because I would not rest my decision on those considerations alone. To her credit, Ms. Brown has very candidly and fairly conceded that the Crown acknowledges that there are certain reliability concerns.

[130] That said, I agree with Ms. Brown that some of the alleged deficiencies advanced by Ms. Comand for the defence must be considered in their proper context. In that regard, I point to Ms. Comand’s point that, for example, the complainant could not explain how Mr. Kiyoshk was able to enter the room if, as she testified, she locked the door behind her and Mr. Kiyoshk entered the room after her. Ms. Comand also challenged the complainant’s inability to explain how Mr. Kiyoshk was able to remove all of her clothes. In respect of these and other areas, I think one must make some allowance for the limitations on the complainant’s ability to accurately observe and relate some particulars given especially the limitations of her visual impairment.

[131] However, in respect of other aspects of the complainant’s testimony, I agree with Ms. Comand that, even if some leniency or allowances are to be made for C.B.’s evidence, some deficiencies in her evidence far exceed the allowances that could be made for a witness with her apparent limitations.

[132] In this regard, I was troubled over the evidence of the complainant’s understanding of the word “rape.” As I have alluded to above, I was struck by the fact that, at the outset, when Crown counsel first asked the complainant to tell us in her own words what happened that night, the first thing out of the complainant’s mouth was “he raped me.” In fairness, taken by itself, that response might very well simply be a concise, direct, unvarnished, and powerful affirmation of the assault that the complainant believed had happened to her.

[133] However, in cross-examination, when Ms. Comand asked the complainant if she knew what the word “rape” meant, C.B. said she did not. When Ms. Comand then questioned whether C.B. said anything about being raped that night, C.B. responded, “I have no idea.” Ms. Comand suggested to the complainant that she does not really know what the word “rape” means, and C.B. responded, “no, I don’t.”

[134] In re-examination by the Crown, Ms. Brown asked the complainant what does the word “rape” mean to her, and C.B. replied she did not know. She was then asked when she said that the man raped her, what did that mean, and C.B. replied she did not know. Ms. Brown then asked the complainant if she knew where she heard the word “rape” and C.B. replied she did know. Ms. Brown then asked again what the word meant to the complainant, and after a very lengthy pause, C.B. ultimately answered that “he shouldn’t put his penis in my vagina.”

[135] Considering the complainant’s testimony as a whole, I am not entirely satisfied that C.B. really does have an understanding of what the word “rape” means, and that then begs the question of where she heard that word in the first place.

[136] That brings me to my paramount concern with the evidence of the complainant and, in particular, my concerns for its credibility, in the sense that credible evidence is evidence that is given without bias or external influence. My central concern here is whether the evidence of the complainant that she did not consent to the sexual activity was given without contamination from external influence.

[137] In this case, I have the benefit of the evidence from both the charge nurse that night, Nurse Xiu Su, and the P.S.W., Analyn Durocher. Both of these witnesses impressed me as being candid, forthright, and sincere. Both of these witnesses were independent of the parties in this proceeding.

[138] Both of these independent witnesses gave evidence that they went to speak with C.B. right after the incident in question, and C.B. told them, more than once, that she was fine, that she knew the man, and that he was her friend.

[139] They both stated that, on the basis of their initial interaction with C.B., they had no cause for alarm. They testified that, essentially, there was nothing about their interaction with C.B. that caused them to believe that C.B. was in any distress or that anything untoward had happened or that there was any cause to call the police to alert them to a possible sexual assault.

[140] There is no real reason grounded in the evidence to explain why C.B., if she had in fact been assaulted, would have lied about that to the staff and would have repeatedly represented to them that everything was fine.

[141] Of course, it must be borne in mind, as the Supreme Court of Canada reminded us in its 2000 decision in R. v. D.(D.), that “there is no inviolable rule on how people who are the victims of a trauma like a sexual assault will behave.”[^13] More recently, in its decision earlier this year in R. v. J.L., the Ontario Court of Appeal held that a trial judge erred in relying upon assumptions, as if they were fact, as to what young women will or will not do.[^14] Accordingly, the significance or evidentiary relevance, if any, of a complainant’s conduct both during and after a sexual assault is not fixed in stone and will vary from individual to individual and case to case.

[142] However, what the court heard was that it was only after the complainant’s mother attended at the Manor that there was ever any indication from the complainant that what had occurred was not consensual.

[143] What the court heard from the charge nurse, Ms. Su, was that she overheard, from outside in the hall, the interaction between C.B. and her mother in room 224 and, in particular, the mother yelling and screaming at C.B., threatening her, and telling C.B. that she better tell the mother the truth or she was going to throw C.B. through the wall.

[144] What we heard from the P.S.W., Ms. Durocher, was that she actually witnessed the mother physically shaking her daughter, slamming her head and body into the wall, and threatening her to tell the truth.

[145] In my view, these two staff members have no interest in the proceedings before the court, and there is no reason I can glean for them to tell the court anything other than exactly what they observed. I accept their evidence.

[146] That evidence is to be contrasted with the evidence of the mother. I have already alluded to, above, my concerns regarding the credibility of the mother’s evidence. As I have said, the mother very much attempted to minimize her actions that night. While the mother conceded that she may have raised her voice with C.B., she denied having screamed at or threatened her daughter. When the mother was asked whether she put her hands on her daughter that night other than to “cuddle” her, she responded in a rather evasive manner, but allowed that it “was possible” that she did, but she did not recall.

[147] I would simply note that the court heard a very different account from the independent staff at Victoria Manor, whose evidence I prefer.

[148] I also note that the mother could not adequately explain why she had told the police that “at first, [C.B.] was lying” but then said that a man pushed her down. To my mind, the mother’s explanation of why she would use those words was evasive, unconvincing, and really did not make any coherent sense. On the basis of all of the evidence before me, I infer that the “lie” to which the mother was referring in her statement to the police when she said that at first her daughter was lying was C.B. telling her mom that she was not forced against her will to have sex with the man, which the mother did not believe and could not accept.

[149] In short, given my concerns regarding the evidence of the mother, I reject her version of the events in question unless it is corroborated by other evidence.

[150] Having said that, I found it telling that the mother so freely and fervently admitted that she did not agree with a lot of things that go on at Victoria Manor and, in particular, she did not agree with the extent to which the Manor permitted its residents, and C.B., in particular, to make decisions for herself. It was something that the mother and C.B. argued about. While I can certainly understand the mother’s desire to protect her daughter from harm, I can also appreciate the impact that the mother’s known feelings might have had on the daughter.

[151] That is, I find that C.B. knew that her mother would be angry about the fact that a man had entered her daughter’s bedroom. The evidence is clear that C.B. did not want to get into trouble with her mother and, further, that she became upset and scared when her mother yelled at her. That, in turn, suggests to me that a very reasonable explanation as to why C.B. would tell her mother that she did not let the man enter her bedroom, when she had just moments before told the nurse who had witnessed C.B. having sex with Mr. Kiyoshk that she was fine, that she knew the man, and that he was her friend, was that she knew her mother would be angered by that admission, and C.B. did not want to get into trouble with her mom.

[152] I come to this conclusion even apart from the evidence of C.B. given in cross-examination that C.B. thought the only way to get her mom to stop yelling at her that night was to tell her mom that she did not consent to having sex with the man. On the one hand, I appreciate the reliability concerns surrounding that admission. But on the other hand, I cannot completely ignore it either.

[153] In my view, at the end of the day, what we are left with is the complainant having clearly told the staff at Victoria Manor, repeatedly, that she was fine, that she knew the man, and that he was her friend – that is, that she was not assaulted – and the complainant then subsequently having indicated that perhaps their encounter was not consensual only after her mother had threatened and assaulted her.

[154] In these circumstances, the evidence supports the conclusion that the complainant’s change in her account of the events could have reasonably been motivated by her anticipation of her mother’s anger, and that in turn gives rise to a reasonable doubt as to whether the complainant’s evidence has been contaminated by external considerations.

[155] In the result, I conclude that, considering the totality of the evidence, even though the court has some concerns about the evidence of Mr. Kiyoshk, taking into account all of the reliability and, more fundamentally, the credibility concerns regarding the complainant’s evidence, coupled with the concerns surrounding the mother’s evidence, the evidence in this case falls considerably short of proof beyond a reasonable doubt. That is the onus that the Crown must discharge – regardless of whether there are some allowances made for the testimony of the complainant in this case – and that onus, I find, has not been discharged in the instant case.

Conclusion

[156] I would hasten to add that my finding that the evidence raises a reasonable doubt is not the same thing as deciding in any affirmative way that some of the events in question never happened. Rather, to be sure, at the end of this trial, a reasonable doubt exists because it cannot be determined, with any reasonable degree of certainty, that which is true and that which is false. It has been said that the standard of proof in a criminal case requires sufficient clarity in the evidence so as to permit a confident acceptance of the essential facts. The state of the evidence in this case permits no such confident acceptance of the essential facts. Taken as a whole, the evidence here is incapable of displacing the presumption of innocence.

[157] Accordingly, I find that the charges against the accused have not been proven beyond a reasonable doubt. For these reasons, I find Paul Wade Kiyoshk not guilty of the charges in the indictment.

[158] In closing, I wish to thank counsel for the professional and respectful manner in which they each dealt with the witnesses at trial.

Original signed by Justice J. Paul R. Howard

J. Paul R. Howard

Justice

Delivered Orally: November 20, 2018

COURT FILE NO.: CR-17-3905-0000

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

PAUL WADE KIYOSHK

REASONS FOR JUDGMENT

Howard J.

Delivered Orally: November 20, 2018

[^1]: Criminal Code, R.S.C. 1985, c. C-46.

[^2]: R. v. Ewanchuk, 1999 CanLII 711 (SCC), [1999] 1 S.C.R. 330, at para. 75, citing R. v. Park, 1995 CanLII 104 (SCC), [1995] 2 S.C.R. 836, at para. 42.

[^3]: Ibid. at para. 28.

[^4]: R. v. J.A., 2011 SCC 28, [2011] 2 S.C.R. 440, at paras. 23-24.

[^5]: R v. Lifchus, 1997 CanLII 319 (SCC), [1997] 3 S.C.R. 320, at para. 39.

[^6]: R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742.

[^7]: Ibid. at para. 28.

[^8]: R. v. Thomas, 2012 ONSC 6653 (S.C.J.), at paras. 23-24.

[^9]: R. v. B.(G.), 1990 CanLII 7308 (SCC), [1990] 2 S.C.R. 30, at para. 48.

[^10]: R. v. D.P., 2016 ONSC 7795, [2016] O.J. No. 6783 (S.C.J.), at para. 96-102.

[^11]: Ibid., at para. 100, quoting R. v. F.(C.C.), 1997 CanLII 306 (SCC), [1997] 3 S.C.R. 1183, at p. 1205.

[^12]: R. v. W. (R.), 1992 CanLII 56 (SCC), [1992] 2 S.C.R. 122, 74 C.C.C. (3d) 134, at p. 134.

[^13]: R. v. D.(D.), 2000 SCC 43, [2000] 2 S.C.R. 275, at para. 65.

[^14]: R. v. J.L., 2018 ONCA 756, at paras. 46-47.