COURT FILE NO.: CR-18-0014-00

DATE: 2019-09-05

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

Tiffany Boisvert, for the Crown

• and -

A.K.

Neil J. McCartney, for the Accused

Accused

HEARD: June 10, 11 and 12, 2019 at Thunder Bay, Ontario

Madam Justice B. R. Warkentin, R.S.J.

Reasons for Judgment

[1] The accused, A.K., stands charged with one count of touching for a sexual purpose someone under age 16 contrary to s. 151 of the Criminal Code, one count of counselling to touch for a sexual purpose someone under the age of 16 contrary to s. 152 of the Criminal Code, one count of sexual assault contrary to s. 271 of the Criminal Code and one count of unlawful confinement contrary to s. 279(2) of the Criminal Code. These offences are alleged to have occurred between October 1, 2008 and December 31, 2014.

[2] The complainant, A.A., was seven years old in October 2008 when the offences are alleged to have started. There is a publication ban with respect to the identity of the complainant that remains in force. This ban is extended to the family members.

[3] The accused denies that he engaged in the offences for which he is charged and has pled not guilty.

Allegations and Summary of Crown Evidence

Evidence of the Complainant “A.A.”

[4] A.A. had recently turned 18 when she testified at trial. She first described her relationship with the accused. She indicated that he is her great-uncle; her mother’s uncle. She indicated that the accused and his wife, Mrs. K, were like parents to her mother, Ms. W.

[5] A.A. described a very close family relationship between the two families. She indicated that the accused and his wife attended the hospital when she was born and that they supported her mother financially and by providing child-care services for her. A.A. spoke about spending a lot of time in the K home as a young child, until she was about 14 years of age. The K’s regularly cared for A.A. in their home overnight when A.A.’s parents were out of town. One particular sleepover occurred during the birth of A.A.’s younger sister who was born in December 2007.

[6] The K’s live in the country on a property of approximately 40 acres with multiple out-buildings in addition to the house.

[7] A.A. described five incidents of sexual assault/sexual interference and touching as follows:

a) The first incident occurred when A.A. was approximately 7 years old. She was alone with the accused in the accused’s home. The accused told her he wanted to show her a photo that was in his bedroom. They were in the bedroom looking out the window when the accused began rubbing A.A.’s back. A.A. testified that the accused had often rubbed her back and had given her massages prior to this incident. He then told her to lay on the bed where he began to massage her. He then flipped her over and pulled down her pants, pinned her arms over her head, and began touching her vagina with his fingers including penetrating her with his finger. He then pulled down his own pants and penetrated her with his penis. A.A. testified that it was very painful and that she was screaming. The accused then left her lying on the bed. A.A. did not say anything to her aunt when her aunt returned.

b) The next incident occurred approximately 6 to 8 months after the first incident. A.A. believed she was 8 years old at that time. This happened during a family afternoon and dinner at the K home. The accused spent a lot of time outside and A.A. often tagged along. On this occasion, the accused told her that he wanted to share a secret space with her. He took her into the garage on the property where he showed her a secret room that A.A. described as a clubhouse. The secret space was accessible by pulling on a fishing line attached to a broom handle which opened a door in the ceiling of the garage. To access the secret space, they had to climb a step-ladder. A.A. described the space as dark with Christmas twinkly lights providing some light. Once they were inside, the accused began rubbing A.A.’s back. He then pulled down her pants and put his penis into her mouth. She was on her back and the accused pinned her down by putting his legs into her armpits. She described feeling very frightened because she was choking. The accused then slid backward and inserted his penis into her vagina. When he was finished, he left her in the clubhouse and she had to figure out, on her own, how to get down. She managed to get out and returned to the house where she joined her family for dinner. She did not tell anyone about this incident.

c) A.A. described a third incident when she was sleeping over at the home of her aunt and the accused. There was only one bedroom in their home at that time and A.A. slept in the bed with her aunt and the accused. As they were going to bed, A.A.’s aunt left to take a shower. As soon as her aunt left, a similar experience as in the past incidents occurred. The accused started by putting his fingers into A.A.’s vagina and then inserted his penis. When it was evident that her aunt was returning, the accused pulled up A.A.’s pants and told her not to tell anyone what they were doing. A.A. described being quite scared. She said that she did not say anything to her aunt because she did not want her aunt to think that she was doing something wrong.

d) The next incident, which might have been prior to the one A.A. described as the third incident, happened during the summer when A.A. and the accused were going on what she described as an “adventure” on the accused’s property. The accused took her to an old green car that the accused told her was a little clubhouse. The accused told her that the car was no longer used and did not run and that they were just going to sit inside. A.A. sat in the passenger seat and the accused in the driver’s seat. The accused leaned over A.A. and showed her how to recline the seat. He started rubbing her legs, then lifted her shirt, and pulled down her pants. The accused held her arms above her head and started touching her vagina with his fingers. A.A. described screaming, that she was very upset, and that the accused then stopped. A.A. then pulled her pants back up and returned to the house.

e) The last incident that A.A. described happened when A.A. was around 11 years of age. It was during a family Christmas gathering or a birthday party for A.A.’s younger sister, who was born close to Christmas. The family gathering was at A.A.’s home in Thunder Bay and there were a lot of family members present. A.A. was involved in dance and wanted to have some plaques and photos, that she had received, hung in her bedroom. A.A. and her mother asked the accused to hang them for her and showed him where they should be placed. A.A.’s mother left A.A. and the accused together in A.A.’s room to continue with hanging the plaques and photos. A.A. described the accused as locking the bedroom door from the inside. She could not recall how the door had come to be closed but that the accused told her that he was locking it to prevent anyone coming in while he was on a stool, hanging a plaque above the door. As A.A. was handing the accused a picture to hang, he began rubbing her back. He then pulled down her pants and, first, put his finger and, then, his penis into her vagina. A.A. testified that she did not scream and did not know how to tell anyone what was happening. She stated that when he was finished, the accused left her bedroom without having hung the plaques.

[8] When asked why she had not disclosed these incidents to anyone, A.A. testified that she felt that she was in the wrong and did not know whom to tell. She knew her mother was extremely close to the accused and that disclosing this to her mother would be very upsetting for her.

[9] A.A. also testified that there were other incidents when the accused touched her in similar ways. She estimated there might have been 15 to 20 incidents, but that the 5 she described were the ones that she specifically recalled. She believed that the last time the accused touched her was when she was about 13 years old, but she did not remember the particular details except that the incidents were similar in nature.

[10] A.A. decided to confide in her boyfriend in March of 2017. Being in a romantic relationship caused her to start her thinking about what had happened to her when she was a child. A.A. testified that she felt it was unfair to her boyfriend as their relationship became more serious, if he did not know what had happened.

[11] A.A. testified that her boyfriend became very upset when she told him. Her boyfriend insisted that she had to tell her parents. Thus, on Good Friday in April 2017, A.A. told her mother about the incidents of sexual abuse. Her mother contacted the police and A.A. gave two video statements to the police, one on April 18, 2017 and another on May 10, 2017. A.A. turned 16 in May 2017 just after she disclosed these incidents to her boyfriend, her mother, and the police – close to three years after she claimed the abuse had stopped.

[12] During cross-examination, A.A. disagreed with suggestions put to her that she was rarely alone with the accused. She agreed that her aunt was often at home, but contended that she, A.A., would be out and about on the property with the accused where the aunt was not around.

[13] A.A. confirmed on cross-examination that the word “clubhouse” was her description of the room above the garage but that as far as she was aware, no one else knew about the room except the accused. A.A. also accepted that she may not have put the incidents of abuse in the order that they occurred and that she was not entirely sure which incident occurred third or fourth.

[14] A.A. consistently testified on cross-examination that if the accused denied ever abusing her that he would be lying. She also consistently testified that if her aunt denied ever leaving her alone with the accused, particularly to have a shower when they were going to bed, or that they ever slept together in the same bed, her aunt was also lying. A.A. stated that by age 7, she was bathing herself, so no one would have seen evidence, if there was any, of sexual abuse.

[15] While cross-examining A.A. on the incident alleged to have taken place in the old car, the defence noted an inconsistency in her testimony regarding one of the incidents of alleged abuse from the evidence she had given at trial and to the police. This related to the accused having placed a sock in A.A.’s mouth during one of the incidents. When reminded of this, A.A. recalled that this had occurred, but it had been during the incident in the bedroom when her aunt was taking a shower, not during the incident in the car.

[16] A.A. also testified that when she was approximately 13 years old she began avoiding the accused. In response to this testimony, the defence produced 12 text messages between A.A. and her aunt between December 2014 and December 2016. The subject of the text messages related to the purchase of gifts for A.A.’s mother, getting together for various events, and seeking information about certain items. A.A. did not specifically recall the text messages but did not doubt that she and her aunt had exchanged them. A.A. did recall that some of the texts would have been sent because her mother had asked her to text her aunt about plans for get-togethers.

[17] The defence also produced various photographs of A.A. that had either been taken by the accused or that showed A.A. in the accused’s company when A.A. was between 13 and 15 years old. Three were taken in the summer of 2016 when A.A. was 15 years old. They were taken when A.A. and her younger sister attended the accused’s camp near Ignace with the accused and her aunt. One showed A.A. in the water with her sister and the accused playing with some stones. A.A. confirmed that she was comfortable being with the accused on that trip.

[18] A.A. also testified that notwithstanding that she wanted to avoid the accused, she did want to continue to see and spend time with her aunt.

[19] Finally, A.A. was cross-examined on whether she had observed anything unusual about the accused’s penis or groin area. A.A. agreed that she had seen his penis, but that she had not noticed anything in particular about it.

Evidence of Constable Jay Elvish

[20] The second Crown witness was Constable Jay Elvish from the Thunder Bay Police Service. Constable Elvish was part of a search team that searched the K property. His testimony was limited to describing the K property. He described the property as a large property of about 30 to 40 acres with a variety of outbuildings.

[21] As part of his search, Constable Elvish was looking for a hidden room in one of the outbuildings on the property where one of the allegations of sexual abuse had taken place.

[22] Constable Elvish testified about the difficulty he had in locating the hidden room but that he did eventually see the fishing line in the garage and that it was attached to the head of a broom, that looked like a whisk broom. When he pulled on the broom a concealed trap door opened on the opposite side of the garage.

Evidence of A.A.’s Mother

[23] A.A.’s mother, Ms. W, also testified. When speaking about her family relationships, Ms. W confirmed that Mrs. K is her mother’s sister and the accused is Mrs. K’s husband. Ms. W spoke about having an extremely close relationship with her aunt and the accused for most of her life. As a child Ms. W had spent a lot of time with her aunt and uncle on their property in much the same fashion as her own children. The relationship between Ms. W and the K’s was so close that the accused and Mrs. K were in the delivery room when A.A. was born.

[24] Ms. W testified that her aunt and the accused were very religious. They invited her to their church and “witnessed” to her. She described the accused and her aunt as being more like parents to her than an aunt and uncle.

[25] When A.A. was a baby, Ms. W separated from A.A.’s father. It was her mother, her aunt and the accused to whom she turned for support. While Ms. W was on maternity leave, there were extended periods that she and A.A. stayed with them and they continued to provide childcare in their home after Ms. W returned to work, including overnight care.

[26] Ms. W described how she and A.A. and later her new husband and younger daughter spent almost all holidays as well as most Sundays with her aunt and the accused. She described how the accused had many hobbies and was always taking photos, making things and taking A.A. around to show her things he had made.

[27] She testified that A.A. was often alone with the accused and that she slept over at their home regularly. She indicated that it was her understanding that during these sleepovers that A.A. would sleep in the bed with her aunt and the accused would sleep on the couch, but she did not have actual knowledge of the sleeping arrangements.

[28] Ms. W also relied on the accused and her aunt to assist with taking A.A. and her younger daughter to their dance lessons or other activities when her work schedule conflicted.

[29] Ms. W spoke about how the accused was always working on something around his property, whether it was his photography or building forts or other things on the property. She testified that the accused was always wanting to show A.A. what he had been creating and she was often alone in his company, tagging along with him as he engaged in his hobbies or worked around the property.

[30] Ms. W was not aware of the hidden room in the garage. She did know about the old car that was on the property. She testified that the accused would occasionally go sit in the car and take naps or unwind if he came home from work and found Ms. W and the children were over. She also testified that the car could not be seen from the house.

[31] During cross-examination, Ms. W agreed that during the summer of 2016 A.A. was being defiant and not following many of the rules in her home. She stated that this was out of the ordinary for A.A. and that she tried to speak with her about it. Ms. W believed the defiant conduct had to do with some of the crowd that A.A. was spending time with during that period.

[32] Ms. W was also asked about the disclosure by A.A. She testified that A.A. made the disclosure on Good Friday and that A.A. began by saying that her boyfriend had not taken her virginity, her uncle had. Ms. W also confirmed that until A.A. disclosed the alleged abuse in April 2017 that she had not suspected anything and had not seen any signs of sexual abuse.

[33] Ms. W claimed that she had seen the bedroom door was closed during the incident in her home when the accused was assisting A.A. with hanging plaques. She was questioned by defence counsel about why, in her statement to the police in May 2017, that she had not told the police about the closed door. Ms. W testified that she only answered the questions that the police asked her. She did not believe they asked her about the bedroom door.

[34] Ms. W described the loss of the relationship between her family and the K family. She testified that she had not spoken to her aunt or uncle since A.A. had disclosed the sexual abuse.

Defence Evidence

Evidence of the Accused

[35] The accused testified and described his relationship with A.A. and her family. He and his wife did not have children of their own.

[36] The accused agreed that the two families were very close and spent a lot of time together. He stated that he suffers from MS and that prior to his retirement in 2017 he was on total disability from about 2014 from his position as an electrician at Confederation College.

[37] When asked about the accusations made by A.A., the accused denied that he had ever touched her in a sexual way. In response to the specific allegations, the accused gave the following evidence:

a) The accused testified that he had been alone in his home with A.A. when she was an infant, but other than that he recalled only one time when he was alone in the house with her. His wife and a friend of hers wanted to go for a walk on their large property around noon one day so he agreed to supervise A.A. She would have been about 6 or 7 years of age. The accused described a baking experiment where A.A. was mixing various ingredients such as flour and combining other ingredients. His role was to prevent cross-contamination, ensure things were not spilled and to wash the dishes. He testified that his wife would have been gone for a maximum of 40 minutes.

b) The accused denied the hidden room in the garage was a secret. He described the room as a byproduct of the construction of the garage and was intended to be insulated. His wife knew about the room when they were building it and so would everyone who had been involved in building the garage. He showed the room to A.A. at a time he was working on the space. He estimated this to be some time in 2010. His wife was in the house doing dishes after lunch and had asked him if he would entertain A.A. He recalled assisting A.A. up the ladder and that they stayed in the room for only about 2 minutes, after which he assisted her down the ladder. He denied anything sexual had occurred when they were in the room and denied he would ever have left A.A. there on her own.

c) The accused then recalled that he must have shown the room to A.A. just prior to supper and that his wife joined them in the garage shortly after he and A.A. came out of the room. He did not recall any other details about that event. He denied there were ever lights of any type in that space.

d) The accused also described going for walks with A.A. around the property and that when her younger sister was old enough, she also joined them. They would look at the bees that he kept on the property, the orchards with apples and the garden where they grew giant pumpkins. He denied ever taking A.A. into an old car. He described it as an Oldsmobile Cutlass. He claimed it had been his family vehicle but because of mechanical problems they had stopped using it in 2008. At that time they purchased a new vehicle and left the old car parked on the property until 2012. He stated he never sat in it after it was parked and denied ever being with A.A. in the old car.

e) With respect to sharing a bed with A.A. during a sleep over, the accused recalled one time when A.A. slept with both him and his wife in the same bed. He did not recall the year but thought that A.A. would have been about 6 years of age and the event was memorable because it was during the birth of A.A.’s younger sister. He testified that A.A. slept on one side of the bed, his wife in the middle and he on the other side. He denied ever being alone in the bed with A.A.

f) The accused confirmed that he was asked to assist with hanging plaques in A.A.’s bedroom during a Christmas gathering at the home of A.A. He said there were about 30 people in the home for the event. While he was in A.A.’s bedroom the door was never closed. He agreed that he was probably alone in the room with A.A. for a short period of time.

[38] The accused also testified that he was not aware of A.A. avoiding him prior to making her disclosure. He confirmed that it was he who photographed special events for the family and that photography was one of his hobbies. He also testified that the summer of 2016 he and his wife brought A.A. and her sister to their camp for a couple of days; that they had fun but that A.A. was suffering from pain in her mouth due to irritation from her braces.

[39] Finally, the accused testified that he had a scar on his abdomen from a double hernia and that he was circumcised, but that there was some deformation on the head of his penis as a result. On cross-examination, the accused conceded that his hernia scar was partially obstructed by pubic hair.

[40] On cross-examination the accused first testified he would never have been alone with A.A. in the house or in his bedroom even for the purpose of showing her photos he had taken but then acknowledged that it was possible he had been alone with her, but just did not recall.

[41] The accused also agreed that he may have slept in the same bed with A.A. and his wife during other sleepovers, but again did not recall.

[42] He also recanted his testimony given in chief - that everyone involved in building the garage would have known about the hidden space. He clarified that the only ones who knew about it were his wife and A.A. He never showed the space to anyone else. He also clarified that when A.A. saw the space, construction of the hidden space was complete except for closing in some of the spaces between the roof and the walls to prevent the intrusion of rodents or snow and that it had not been insulated.

[43] The accused also admitted he had discussed the allegations with his wife. He stated that they were both living with the accusations. He also discussed the allegations with members of his church who have been supportive of him.

[44] The accused emphatically denied the allegations and stated that A.A. was lying.

Evidence of Mrs. K

[45] Mrs. K testified about her relationship with A.A. and her family as well as about the interactions that she knew about between her husband and A.A. Mrs. K was adamant that she always accompanied A.A. and the accused when they were walking on the property. If the accused and A.A. were alone together it would have only been for very brief periods until she would join them.

[46] Mrs. K testified about her knowledge of the accusations as follows:

a) There was only one occasion when she left A.A. alone with the accused in their home and that was a day she went for a walk with a friend. The accused and A.A. were in the kitchen during that time because A.A. wanted to bake something. She was gone for approximately 20 minutes and on her return found A.A. mixing things and the accused washing dishes.

b) She confirmed she knew about the hidden room in the garage and she thought it was “pretty cool”. She said the room was never kept secret from anyone. She recalled a time when A.A., at age 9 or 10 wanted to be with the accused when he was working in the garage. It was on this excursion that the accused showed A.A. the enclosed space above the garage. She believed that A.A.’s younger sister was also there during that visit. Mrs. K joined A.A. and the accused in the garage. A.A. was very excited about the space and wanted to turn it into a fort where they could play. It was her belief that this was the only time A.A. was in that space because it was difficult to enter.

c) The only time A.A. slept in bed with her and the accused was the night of A.A.’s sister’s birth. On that occasion, A.A. slept in the middle “all cuddled up”. She denied ever leaving A.A. and the accused in the bed alone. She stated she would not have gone to shower in the evening because she usually showers in the morning. She denied ever seeing A.A. upset or crying that night or any other time. She queried why, if A.A. had been sexually abused, that she would not have known. She assisted A.A. with bathing and that she never saw any signs of sexual abuse.

d) Mrs. K never went to visit the old car after it was parked and to her knowledge neither did the accused. The accused and A.A. would never have been together in it.

e) Mrs. K recalled the Christmas or birthday celebration and that she had been asked by either A.A. or Ms. W if the accused would bring his tools to the event in order to hang things for A.A. While A.A. and the accused might have been alone together for a few moments, there were always people nearby, going in and out of the room. She did not recall the door ever being closed. After the items were hung A.A. was happy and showing the other guests.

[47] Mrs. K confirmed that the text messages were ones between herself and A.A. but claimed this was just a sample of the types of messages they would have exchanged. She denied there was any distance that had developed between A.A. and the accused.

[48] Mrs. K testified that the scar from the accused’s hernia operation was still visible.

[49] On cross-examination, Mrs. K testified that she and the accused had an agreement, one that the accused was adamant about, that when A.A. was at their home, it was Mrs. K who was the babysitter. She stated that the accused found A.A. distracting and that whenever A.A. was out on the property with the accused she was required to join them and take A.A. away.

[50] When she was asked about how she remembered the one time she left A.A. in the accused’s care while she went for a walk, Mrs. K said she remembered this because when she returned the accused told her never to do that again.

[51] Mrs. K confirmed that at the accused’s bail hearing, when asked about any time the accused was alone with A.A., she had testified that the only time she had ever left A.A. alone with the accused was when A.A. was an infant. It was only later that she recalled the one time she had gone for a walk. She confirmed that she and the accused discussed this incident prior to the trial.

[52] When questioned about the sleeping arrangements when A.A. slept over, Mrs. K agreed that at times she did shower in the evening if she had been working outside. She stated that usually the accused would go to bed after her, but that he also sometimes would go to bed before her. She confirmed that when A.A. was there for the night, it was she, never the accused, who would put A.A. to bed. She stated that she would never have taken a shower and left A.A. in bed alone because A.A. required her attention.

[53] Regarding the hidden space in the garage, Mrs. K agreed that no one would know it existed if one was not aware of it. She stated that the ladder used to access the hidden space was kept in a different outbuilding because she parked her vehicle in the garage. She denied that it was possible that the accused could have taken A.A. to the space when she was not present because she never left them alone together long enough. If the accused had taken A.A. into the space when they were alone, she would have known about it.

[54] Mrs. K testified that she loved A.A. but that she did not trust her because she was known to tell lies. When she learned of the allegations against the accused, she knew that A.A. was lying.

Analysis and the Law

[55] The resolution of this case depends primarily on the credibility of the complainant A.A. and of the accused. The Court may believe all, none or some of a witness’s evidence. A determination of guilt or innocence must not devolve into a mere credibility contest between two witnesses in a trial. Such an approach erodes the operation of the presumption of innocence and the assigned standard of persuasion of proof beyond a reasonable doubt.

[56] Equally, it must be acknowledged that mere disbelief of the accused’s evidence does not satisfy the burden of persuasion on the Crown. The Court must be satisfied on the totality of the evidence that there is no reasonable doubt as to the accused’s guilt. In other words, in a criminal case it is inappropriate to determine a verdict by saying, “who do I believe?”

[57] I have reviewed the legal principles in the Supreme Court of Canada’s decision of R. v. W.(D.) 1991 93 (SCC), [1991] 1 S.C.R. 742 that sets out the test for determining credibility at paragraph 28 as follows:

First, if you believe the evidence of the accused, 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.

[58] Because the accused testified, the principles set out in R. v. W. (D.) apply. I must acquit him if I believe his evidence or, even if I do not believe his evidence, I am left in a reasonable doubt by it. If I am not left in doubt by his evidence, then I must ask myself whether, on the basis of the evidence which I do accept, I am convinced beyond a reasonable doubt by that evidence, of his guilt.

[59] In considering the evidence, I am entitled to believe all, some, or none of each witness’s evidence. Further, in assessing the evidence of the accused, I am entitled to consider it in the context of all the other evidence.

[60] In a case such as this where there were no witnesses to the alleged sexual interference, sexual assault, invitation to sexual touching and forceable confinement, W.(D.) prohibits me from concluding that the Crown has met its burden if I decide to prefer the evidence of A.A. to that of the accused. It is not enough if I only prefer the evidence of A.A. to the evidence of the accused. It is not enough even if I believe that the accused is probably guilty.

[61] I have a duty to assess the evidence of the accused considering the whole of the evidence, including the evidence of A.A. and, in so doing, compare the evidence of each of them. I must be satisfied beyond a reasonable doubt on all the evidence that the accused committed the offences for which he is charged, in order to find him guilty of the charges. I would add that if, after considering all the evidence, I am unable to decide whom to believe, I must acquit.

Positions of the Defence and the Crown

[62] In his closing submissions, defence counsel first drew the court’s attention to the well-known instructions a judge is required to provide to a jury with respect to the burden of proof that the Crown must establish. He noted paragraph 39 in the case of R. v. Lifchus (1997), 1997 319 (SCC), 9 C.R. (5^th) 1 (S.C.C.) in which the court directed that if one believes an accused is probably or likely guilty this is insufficient to establish guilt beyond a reasonable doubt and the accused must be acquitted.

[63] Counsel then referenced W.(D.) and asked me to find that in the context of all the evidence the accused should be believed and acquitted. He then noted that even if I do not believe his evidence, if I find that I believe the evidence of A.A. and use this as the basis for a conviction, that would amount to an error of law.

[64] Defence counsel then reviewed some of A.A.’s evidence that he described as implausible as follows:

a) A.A.’s description of the alleged sexual assault the night A.A. shared a bed with the accused and his wife should not be believed. It was implausible that Mrs. K would not have been aware that A.A. was upset or traumatized when Mrs. K returned to bed after having taken a shower. To find that something this traumatic could occur to such a young child without being discovered was not realistic or believable.

b) It was also not believable that A.A. would have been left alone in the loft over the garage. That a 9-year-old, who had just been sexually assaulted, would have been able to find her way down, should not be believed. A.A. then going to join the family for dinner without informing anyone about the loft or the assault was also implausible.

c) The likelihood that the accused could have sexually assaulted A.A. during a family gathering with 30 to 40 people in a small home is not believable. There was no noticeable change in A.A.’s demeanour after the alleged assault which is also implausible.

d) It would be highly risky for the accused to sexually assault A.A. in broad daylight in an abandoned vehicle. It is unlikely any perpetrator would take this risk.

e) The incident in the bedroom when no one else was home did not reach the same level of implausibility as the other incidents, however, the evidence from Mrs. K demonstrated that A.A. was rarely left alone with the accused. Taken with all the other implausible incidents, the allegations regarding this incident do not rise to the burden of proof beyond a reasonable doubt.

[65] Defence counsel cautioned the court not to discount the credibility of Mrs. K on the basis that as the accused’s wife she would be bound to favour her husband. Her evidence about the limited amount of time A.A. and the accused spent together should be accepted. Acceptance of this evidence would vitiate any basis for a conviction.

[66] Defence counsel then commented on the three-year delay between the last occurrence of the offences and A.A. reporting them. He acknowledged that there are many reasons why these types of offences may not be reported immediately after they occurred. However, he noted that A.A. was not told to keep silent after the first alleged assault. Given her young age when this was alleged to have occurred, the fact that she did not report it undermines the reliability and credibility of her allegations. The fact that A.A. chose to tell her boyfriend before confiding in her mother also negatively affects the credibility of her allegations.

[67] Finally, defence counsel noted that notwithstanding that A.A. had testified that she began to distance herself from the accused after she turned 13, the evidence in the form of text messages and photographs belied that testimony. The photos taken during the summer of 2016 when A.A. would have been 15 demonstrate that A.A. and the accused appear to enjoy each other’s company. This evidence did not reveal someone who appears fearful of an alleged abuser. The evidence instead supports the position of the accused that he did not commit the offences alleged.

[68] The Crown disagreed with the assessment of the evidence as suggested by the defence. The Crown noted that it was logical that A.A. did not want to disclose the sexual abuse because she was young and not sure about what was happening to her. A.A. testified that she thought she might be doing something wrong.

[69] The Crown also pointed to the close ties between the two families and that A.A. did not want to upset her mother by telling her about what was happening.

[70] The Crown invited the court to find that the evidence of Mrs. K was not credible. On many instances, Mrs. K’s evidence was contradicted by other testimony, particularly her evidence that the accused was rarely alone with A.A. Even the accused conceded he spent a significant amount of time with A.A. as well as with her younger sister when she was old enough. The accused conceded he may well have been alone with A.A. in the house over the many years that A.A. spent in their home.

[71] The Crown submitted that all the allegations made by A.A. were supported by the evidence and should be believed. She noted that child victims do not necessarily recall events in the same manner as adults. The fact that A.A. had difficulty remembering the order in which the incidents occurred is not enough to find her evidence lacked credibility or that her description of the incidents was unreliable.

Analysis

[72] My assessment of the credibility and reliability of the witnesses in this trial is central to the outcome. It is often difficult “...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.” R. v. REM, 2008 SCC 51, [2008] 3 S.C.R. 3 at para. 28.

[73] When the case involves allegations of sexual abuse it is critical for the judge considering the evidence to assess the credibility of a complainant on the evidence before the court and not on generalized and stereotypical assumptions of how a victim of sexual assault ought to properly behave. To rely on such assumptions results in the potential for injustice and jeopardizes the fair trial process. Such assumptions are “particularly invidious because they comprise part of the fabric of social ‘common sense’ in which we are daily immersed. Their pervasiveness, and the subtlety of their operation, create the risk that victims of abuse will be blamed or unjustly discredited in the minds of both judges and jurors.” R. v. Find, 2001 SCC 32, [2001] 1 S.C.R. 863 at para. 103.

[74] In this case, the defence invited the court to discount the credibility of A.A. and find it implausible that she would not have disclosed, even inadvertently, the allegations of sexual abuse after they occurred. He questioned A.A.’s ability to maintain composure after the assaults such that no adult was aware of something traumatic having occurred. He questioned why A.A.’s aunt and mother did not observe some evidence of trauma, either emotionally or physically on a child so young, if A.A. was telling the truth at trial.

[75] The defence also questioned the three-year delay that occurred before A.A. finally disclosed the abuse. He found the fact that she disclosed that abuse to her boyfriend rather than to her mother undermined her credibility. He also noted that A.A.’s testimony that she had been distancing herself from the accused after she turned 13 did not accord with the photographic evidence and evidence of text message communications with A.A.’s aunt.

[76] I disagree with defence counsel. It would be incorrect if I discounted A.A.’s credibility because she did not demonstrate fear or seek help from her mother or other family members immediately after one or more of the incidents of alleged sexual abuse or if I find her evidence is less credible because she delayed disclosing the alleged abuse. To assess her credibility on those bases would be to rely on generalized and stereotypical assumptions of how a victim of sexual abuse ought to behave.

[77] Equally, although the credibility of every witness who testifies must be carefully assessed, the standard of the “reasonable adult” is not appropriate in assessing the credibility of children. As McLaughlin J. (as she then was) stated in R. v. W.(R.), 1992 56 (SCC), [1992] 2 S.C.R. 122 at paras 144-144:

Since children may experience the world differently from adults, it is hardly surprising that details important to adults, like time and place, may be missing from their recollection .... the presence of inconsistencies, particularly as to peripheral matters, such as time and location, should be considered in the context of the age of the witness at the time of the events to which she is testifying.

[78] In her trial testimony, A.A. described five incidents of sexual abuse. She was candid in acknowledging that she might not have had all the incidents in the correct order. She candidly described the K property and the amount of time she spent with her aunt and uncle as a young child, into her early teenage years.

[79] A.A.’s evidence about the amount of time spent at the home of the accused was corroborated by A.A.’s mother, the accused and Mrs. K. Ms. W spoke about the extremely close relationship she had had with her aunt and uncle from the time she had been a child and how much she relied upon them for support, emotionally and with childcare. This was not in dispute.

[80] A.A., Ms. W and the accused all testified about the amount of time A.A. spent in the accused’s presence when on the K property. It was only Mrs. K who testified that she did not leave A.A. in the accused’s care for more than very short periods of time. She was the only witness who stated that the accused was adamant that he did not want to be with A.A. because he found her distracting. This directly contradicted the accused’s own evidence about his relationship with A.A.

[81] It is also worth noting that in addition to discussing the allegations with the accused, Mrs. K also reviewed the transcripts of A.A.’s statements to the police prior to trial.

[82] In his evidence, the accused conceded that he could not remember how often he was alone with A.A. inside the home and acknowledged that it would not have been unusual for him to want to show A.A. photographs he had taken or other projects on which he was working.

[83] Mrs. K was adamant that there had only been only the one time that she had left A.A. alone in the home with the accused, a time when she and a friend had gone for a walk. Considering the very close family relationship and the accused’s own evidence about his close relationship with A.A., I find this statement to be unbelievable. While I do not doubt that there was an event where Mrs. K went for a walk and left A.A. with the accused in the kitchen, I do not believe that in all the years that A.A. and her family visited and spent time in the K home that she would only once have been alone with the accused.

[84] I am also troubled by the evidence of the accused about the nature and purpose of the hidden room in the garage. Once again it is hard to reconcile the fact that both Mrs. K and the accused claimed that the hidden room was not a secret from anyone. Yet, no one except the two of them knew it existed until the accused showed it to A.A. While I do not find that the room was constructed specifically for any nefarious purpose, I do find that it is plausible and believable that the accused used the hidden room for the sexual purpose that A.A. described.

[85] Similarly, Ms. W testified that the accused often went to take naps or sit in the old car on the property when she was at the K home with the children. She testified that he did this because it was a way for him to unwind after work. The accused’s adamant denial that he ever sat in that car for this or any other purpose also leaves me in doubt about his testimony.

[86] Neither the accused nor Mrs. K denied that A.A. had slept with them on at least one occasion. The evidence also supported the possibility that this occurred on more than one occasion. Mrs. K denied ever leaving A.A. alone in bed with the accused, however, she described circumstances where she would have put A.A. to bed during a sleepover and left her alone in the room. She also agreed that she might have showered in the evening if she had been working outside and was sweaty.

[87] A.A.’s testimony was unshaken on cross-examination. In many respects her evidence was supported by the testimony of the other witnesses as to time and place and the opportunity.

[88] A young child who loves and trusts an adult relative, someone who is a large part of an extended family may not fully understand what is happening to her when that adult relative takes advantage of that relationship. A.A. described feeling as though she may have been doing something wrong, not understanding what was happening and fearful of upsetting her mother if she disclosed.

[89] As she became a teenager, she claimed that she began to avoid interactions with the accused. She did not testify that she refused to be with the accused. The two families still spent holidays and special events together. A.A. did not state that she feared her uncle. She did testify that she knew, particularly as she became a teenager, that disclosing the sexual abuse would hurt her mother and damage the family relationships. She was afraid of doing this. It was not until her boyfriend insisted she disclose the abuse that she developed the courage to tell her mother.

[90] I find that the credibility of A.A. was unshaken on cross-examination or by the testimony of others.

[91] I also find that in many instances the credibility of A.A. was enhanced by the testimony of others, including the evidence of the accused. A.A. was not lying when she testified that she had slept with the accused and Mrs. K; that she was shown the hidden room in the garage; or that the accused assisted her with hanging plaques in her bedroom during a family celebration. I have rejected the accused’s evidence that he never sat in the old car on his property and the accused admitted that there were likely times when he was alone in the house with A.A. other than that one time when Mrs. K went for a walk.

[92] Using the test in W.(D.), I do not believe the evidence of the accused, nor am I left in reasonable doubt about his testimony. I find, based upon all the evidence that I have accepted, that I am convinced beyond a reasonable doubt about the guilt of the accused with respect to counts 1 and 3 on the indictment, touching for a sexual purpose contrary to s. 151 of the Code and sexual assault contrary to s. 271 of the Code.

[93] I do not find that the Crown has established the offences of invitation to sexual touching in count 2 on the indictment or unlawful confinement in count 4. If the offence of invitation to sexual touching has been established, it has already been subsumed in counts 1 and 3 and an acquittal shall be entered on count 2.

[94] I do not find that the offence of unlawful confinement has been established. This count was not clearly articulated in the submissions of the Crown but presumably is based upon either or both the incident that occurred in the hidden room above the garage or the incident in the old car where A.A. was left alone after the sexual assault occurred. The evidence supporting unlawful confinement was weak and therefore an acquittal will be entered on this count.

[95] I also accept that a conviction for both sexual interference and sexual assault are with respect to the same offences. I am prepared to hear submissions from the Crown and defence on sentencing regarding these convictions and whether the sexual assault conviction should be stayed pursuant to the Keinapple principle. (R. v. Keinapple (1974), 1974 14 (SCC), [1975] 1 S.C.R. 729).

“original signed by”

Madam Justice B. R. Warkentin, R.S.J.

Released: September 5, 2019

COURT FILE NO.: CR-18-0014-00

DATE: 2019-09-05

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

• and -

A.K.

REASONS FOR JUDGMENT

B. Warkentin R.S.J.

Released: September 5, 2019