Her Majesty the Queen v. M.W., 2019 ONSC 5951

2019 ONSC 5951

CR 18-0133

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

• v. –

M.W.

R E A S O N S F O R J U D G M E N T

RESTRICTION ON PUBLICATION

By court order made under subsection 486.4(1) of the Criminal Code, information that may identify the person described in this judgment as the complainant may not be published, broadcasted or transmitted in any manner. This judgment complies with this restriction so that it can be published.

BEFORE THE HONOURABLE JUSTICE V.V. CHRISTIE

ON OCTOBER 3, 2019 at Barrie, Ontario

APPEARANCES:

J. Armenise Counsel for the Crown

K. Miles Counsel Mr. M.W.

REASONS FOR DECISION

CHRISTIE J. (Orally):

1M.W. was charged with the following six offences:

Between the 21st day of August in the year 2009 and the 19th day of October in the year 2013, both dates inclusive, at the City of Barrie in the said Region, he did sexually assault TWB, contrary to the Criminal Code of Canada;

Between the 21st day of August in the year 2009 and the 19th day of October in the year 2013, both dates inclusive, at the City of Barrie in the said Region, he did for a sexual purpose touch TWB, a person under the age of sixteen, directly with a part of his body, contrary to the Criminal Code of Canada;

Between the 21st day of August in the year 2009 and the 19th day of October in the year 2013, both dates inclusive, at the City of Barrie in the said Region, he did for a sexual purpose invite, incite or counsel TWB, a person under the age of sixteen years, to touch directly with her body the body of M.W., contrary to the Criminal Code of Canada;

Between the 2nd day of September in the year 2009 and the 2nd day of September in the year 2012, both dates inclusive, at the City of Barrie in the said Region, he did sexually assault ET, contrary to the Criminal Code of Canada;

Between the 2nd day of September in the year 2009 and the 2nd day of September in the year 2012, both dates inclusive, at the City of Barrie in the said Region, he did for a sexual purpose touch ET, a person under the age of sixteen, directly with a part of his body, contrary to the Criminal Code of Canada;

Between the 2nd day of September in the year 2009 and the 2nd day of September in the year 2012, both dates inclusive, at the City of Barrie in the said Region, he did for a sexual purpose invite, incite or counsel ET, a person under the age of sixteen years, to touch directly with her body the body of M.W., contrary to the Criminal Code of Canada;

2Mr. M.W. pleaded not guilty to these charges and the trial proceeded without a jury.

3Identity was admitted.

FACTS

Allegations relating to TWB

Incomplete cross-examination

4It must be noted at the outset that TWB did not complete cross-examination at this trial. She had been cross-examined for a relatively short period of time on the first day of trial, when it was determined that it would be best to break early and complete her evidence the following day. The next morning, she testified for nearly an hour and a half before indicating “I’m done” and then left the courtroom.

5Subsequently, a voir dire was held to attempt to determine the reason she would not or could not continue. At the voir dire, she stated, “If I stay here any longer, I’m going to end up in the hospital. I know when my own mental breaking point is so me running out of the room, I can’t keep testifying. I’m sorry.” She indicated that she had considered self harm numerous times throughout her time in court and that no testimonial aid would improve the situation. She said “I can’t be here”.

6The Crown then brought an application to have her statement to police, dated September 7, 2017, and her evidence at the preliminary hearing, dated October 31, 2018, admitted into evidence in order to ensure a fair trial for Mr. M.W.. The defence requested that her evidence be “struck”, however, in the alternative argued that if one of the previous statements were to be introduced, then both of the statements should be introduced.

7Ultimately, this court decided to admit both the statement to police and preliminary hearing evidence for the truth of its content providing very brief reasons, with more fulsome reasons to follow. Those reasons will be addressed below.

Summary of TWB’s evidence

8At the time of her testimony, TWB was 18 years of age. She would be 19 years of age in […], a little over a month from the time she appeared in court. At the approximate age of ten, TWB was diagnosed with Asperger Syndrome. TWB testified that this affected her “social cues”, affected her focus, and made it difficult for her to understand certain things some people say.

9TWB explained that her parents were no longer in a relationship and, in fact, she was told that she was two years old when they separated. Her mother remarried approximately ten years ago, however, the relationship had commenced three or five years prior to the marriage. When she was growing up, TWB lived with her mother, the majority of the time, in Barrie and Innisfil, however, her father had parenting time on the first three weekends of every month and every Wednesday evening. In cross-examination, she agreed that some of this time she would actually be at her Grandma S.’s house, rather than her father’s house. Her father lived in Orillia, for some period of time, but for the most part lived in Barrie. Since April 2013, her father had lived in British Columbia, where she had visited a couple of times.

10TWB stated in cross-examination that her “young years” were all a “big blur”. Specifically, she stated:

I made it into a big blur, like I wanted to forget what happened, so I basically just pushed my like – my kid years into one giant blur, something that I would remember important moments of but I wouldn’t actually remember the tiny details of it all.

She described her “young years” as ages 6 to 16. When it was suggested to her that her Asperger’s does not affect her memory, she responded “It can but it doesn’t directly affect it, no.” After being shown a portion of the preliminary hearing transcript, she agreed that at the preliminary hearing she had said there that her Asperger’s did not affect her ability to remember and that she did not qualify that answer in any way at that time.

11When she was between the ages of 8 and 11 years old, her father lived on D[...] Street in Barrie. During this time, her father had a couple of girlfriends who also lived there while the relationships were ongoing. One girlfriend lived there with her two children for a period of time. Her father was employed, working in an auto glass store with one of his friends, who owned the store. He worked whenever he got a call, as opposed to a set schedule, however, he worked frequently. When her father was called in to work, he would get TWB a babysitter. The babysitter was most often her older cousin, M.W., who lived in his mother’s apartment in the same building. She believed that Mr. M.W. was currently in his 20s but was not able to say how far apart in age they were. Her father’s girlfriends would babysit if they were in the house, however, that was not very often as they both were employed.

12When Mr. M.W. would babysit, he would come upstairs to her father’s residence. TWB did not go downstairs to be babysat.

13Besides Mr. M.W.’s younger sister, who she thought may have lived with Mr. M.W. and his mother, Mr. M.W. also had one younger brother, and one younger half-brother, both of whom lived with TWB’s uncle (M.W.’s father) and aunt (M.W.’s stepmother). They lived in Barrie. TWB indicated that her relationship with her uncle and aunt was fairly good and that it was a loving relationship. However, she testified that her relationship with her cousin, M.W. was not as good. She stated:

Honestly, by the time I hit ten, I didn’t feel anything. I was completely numb when I came towards him. Like I still, yes, loved him as family because I would always have to, but I never – it hit a certain point where I stopped feeling any emotions when it came to him, and then it just turned to anger honestly.

She was asked what was it that brought her to this point and she stated, “When he molested me for four years”.

14TWB described her first memory of this happening. She stated that she was 8 years old and Mr. M.W. was babysitting her because her father went to work. In cross-examination, she agreed that she would have turned eight years old in […] 2008. She agreed that it started at her father’s house when Mr. M.W. would come to babysit because he lived in the same building. It was then put to her that Mr. M.W.’s mother did not move to that building until November 2009. She then said “Okay. So I was nine when it started. I got my birthday wrong”.

15She stated that she and Mr. M.W. were in her room at her father’s residence and Mr. M.W. was sitting on the love seat. He picked her up and put her on his lap, so that she was straddling him and facing him. She stated that she kept trying to get off because she knew it was wrong. She knew this because she had straddled her stepfather and he pushed her off, telling her that it was wrong to sit on a family member in that manner. According to TWB, Mr. M.W. would keep picking her up and putting her back on his lap. She initially stated that there was no conversation between them, however, later in examination-in chief she added that he said “just sit”. At the preliminary hearing, she stated that they were talking, and even as he pulled her onto his lap, they were still talking. She felt confused by what had happened with Mr. M.W. given what she had been told about this behaviour earlier.

16She was asked how often this would happen and she stated, “Honestly, I can’t tell you, but I would say often”. TWB was asked if she could describe a second or third time specifically, to which she stated:

It was honestly like – it went by – it was the same thing like I originally said. He would move slow with it all so it’s not like it changed fast. It would slowly work its way up. So I think probably like the fourth or fifth time is when he started to actually get more into kissing….He got more into kissing like my neck and my collarbones. He got more into being touchy, but I can’t say a specific time besides one of the last few times it happened which is when he actually started to get more into it with his member.

She clarified that by “member” she was referring to his penis and that he got more active with his penis and wanting his penis in her vagina.

17When asked for clarification about the progression of this activity, she described that it started off with her straddling him, then getting her to grind against him, then it progressed to him touching her with his hands. With respect to grinding, she explained that he would grab her hips with his hands and move her against his lower half, including his thighs and his penis. He would move his hips as well. She stated that initially when this would occur, she was wearing clothes. She stated that he did not get her to get undressed until age nine or ten. Mr. M.W. was wearing clothes of some sort throughout. She said that he always stayed in boxers or at least something covering him.

18With respect to location, she stated that at first these activities would always take place in her bedroom at her father’s. However, when she was 10 years old, it started taking place at her uncle’s residence in Mr. M.W.’s bedroom in the basement. She stated that she spent as much time there as she did at her father’s, sometimes staying the night, spending time with her cousin, Mr. M.W.’s younger half-brother. TWB indicated that by the time things started happening at her uncle’s residence, it was about two years after this had all started. Mr. M.W. would come upstairs when it was time to say goodnight to her and his half-brother. She indicated that he would never threaten her, however, “it was just though the thought of it I didn’t do what he asked, what would happen. Like it was more so terror, I guess you could say, that sent me down there always….”. At the preliminary hearing, she described that she shared a room with Mr. M.W.’s half brother, and that Mr. M.W. would come up and wake her, “whether it would be tapping, shaking”, would just do a gesture to come with him, or he would whisper.

19TWB was asked again later on in examination-in-chief how things progressed from straddling to other activity, she said:

He would start to make out with me, like it changed from just straddling and grinding and like the normal touching, to eventually starting to kiss me and make out with me, and then once I hit about ten or 11, then I started to actually get undressed. He would put his member between my legs….and he would slowly work his way up, which is when he also then started to put his member inside of me.

20With respect to the touching, TWB described that he would take her hand and would place it on his penis, on top of his clothes. She stated that he would just put her hand there “kind of like expected me to know what to do, but I didn’t”, so he would then move her hand up and down. He would also take his hand and would grab her breasts or her “butt cheeks”. She did not recall any conversation that occurred. She stated that at first when he started touching her, she was wearing clothes and then when she started taking her clothes off “that’s when he became more touchy with his hands”. When the touching occurred, TWB would be straddling Mr. M.W. and he would be kissing her neck and collarbones.

21She stated that the events that occurred with clothes on were when she was 8 and 9 years old. The events without clothes occurred when she was 10 and 11 years old. Mr. M.W. would take her clothes off. This would occur both in her bedroom at her father’s and in his bedroom at her uncle’s.

22According to TWB, at one point at her uncle’s house, when she was 11 years old, Mr. M.W. asked her to bend over his bed and he put his penis in between her legs, at her mid thighs, and he moved back and forth so that his penis slid between her legs. She described these incidents as being “not too long”, because she felt he was worried about someone coming downstairs, but then estimated that these incidents would be “an hour and a half max maybe”. She stated that “it slowly would start to work up, and he would never actually put his penis in me, but he did put the tip in me a few times.” The tip of his penis would be in her vagina and this made her feel very scared and it hurt. She stated that he had her bend over the bed at least three or four times. She said that he put the tip of his penis in her vagina three times. When this happened, she was not wearing anything, as he would remove her clothes. He would normally be wearing a shirt and nothing else. This specific behaviour only occurred at her uncle’s house.

23At the preliminary hearing, TWB described one of the first times at her uncle’s house being in a recreation room in the basement. The incident started on the couch, but they were only on the couch for five to ten minutes and then they ended up going into the bedroom because “I’m pretty sure he said that he was scared that it was going to be loud or that he was worried that I would be too loud”.

24When asked about the force that was used, she stated that it was not hard. She said, “Like he never used enough force to leave a mark or damage me in any way because he knew that, if I got hurt, or if I was damaged, then I 100 percent might go to a parent and be like I got hurt….” TWB did tell Mr. M.W. on some occasion that he was hurting her, and “then…..he would almost act as if like I was actually his girlfriend or something, and he would go slower and be more gentle”. She said as soon as she told him it hurt, he would take his penis out of her vagina.

25TWB also described that he touched her vagina with his fingers once or twice. She stated that she believed she was 10 years old at the time and that she thought it was the first time that he actually tried “experimenting with anything”. She stated that this occurred at her father’s residence.

26When asked whether Mr. M.W. would ejaculate, TWB stated that he would, but he would never ejaculate on her. It would either be on himself or into a Kleenex. She explained that this started happening when she was about ten, as he “started getting more into doing things for longer”. However, by the time she was 11 years of age, it became a frequent occurrence.

27TWB also stated that there were two occasions where something happened in her father’s bathroom. She said it was “just making out”, which she described as French kissing. She stated that the French kissing happened frequently, but not as frequently as the straddling. She stated that it started when she was halfway though age 9. At the preliminary hearing, page 119, she stated that the first time that he put his fingers inside of her was in the bathroom at her father’s house. She said she was standing on the edge of the bathtub.

28She said that when these things happened at her father’s house, there would be no one else home. At her uncle’s house, it would be night time, so everyone would be upstairs in their room sleeping.

29According to TWB, this came to an end when, on the last occasion, she looked at Mr. M.W. and told him that “I wasn’t going to be doing this anymore or else I will call the cops, like it’s not right.” She stated that she told Mr. M.W. that she was “fed up with it” and that she should not be treated like that and then she stopped going over there as much and stopped talking to this part of her family as much. She later added that:

So this was around the time that I personally never actually liked studying rapists and rape cases, only because I’ve been very in-tune with it, and I – like – at least with the emotions that they portray in the stories….And I was reading a lot more about it, and I kind of realized that that was more so the situation I was in where it was actually – like I knew the situation I was in. I just didn’t see how serious the actual situation was and what it could turn into until I read these stories….

She then described how she confronted Mr. M.W., and told him that she was not going to say anything because she was too scared, but if it happened again, she was calling the police. Then it stopped.

30TWB stated that her interest in true crime started when she was a baby, and that her main interest was serial killers. She stated, “Like Ted Bundy is one of my favourite people to study because of his charisma…”. She continued on to explain the circumstances of what brought her to confront Mr. M.W.:

Yeah, I was watching Criminal Minds and it was just one of the episodes where one of the girls got raped, and they were actually going into detail about it, though, when they were in the precinct, and I got curious and then I started reading a bunch more stories about it, and then though I also knew prior, I believe while reading one of like Ted Bundy’s cases, I just – one of the victims – I don’t know if it was Ted Bundy’s case, but like one of the victims gave an actual statement about how she felt, and for some reason I was just able to feel that like on a very personal level, and it got me to stop reading it. And then, like I said, I was watching Criminal Minds one day, and it got me re-interested in it, and honestly, I think the interest only lasted like a week. Like to this day, I still haven’t read up on any files like that. I haven’t looked at any court cases like that. I stay away from news articles like that. Like I don’t mess with the subject at all when it comes to reading anything about it.

She agreed that it was that which led her to tell Mr. M.W. that she was done. She did not speak to any adults in her life about this for another three years. In cross-examination, she added:

….after seeing this television show, though and seeing how well they were actually able to portray what a victim was based off of things that I had heard from my own family – like I do have family members that have gone through it. So they have explained to me the path that they had to go to get better because, frankly, I’ve had to be a part of that path for them. So when it came to me studying them, it was more so I want to know how – what happened to the victim. I want to know how the person got put into the mindset of wanting to be a rapist and just how that affected the actual person.

31In cross-examination, it was suggested to TWB that the conversations she had with other family members who had been sexually assaulted occurred before she told her parents. She stated that this was wrong. Further, she stated that they never actually went into details about their “harsher memories” until she was 16 years old because her mom thought it was not suitable for her to hear about. She then stated that her mother had told her that something had happened to her on the same night that she disclosed. It was suggested to her that she had a sense that something happened to her mother before she was told, to which she disagreed. It was suggested to her that she had said at the preliminary hearing that she knew from the time that she was young that something had gone on with her mom. She disagreed with that suggestion and then said “…younger to me is like now anywhere between the ages of 17 to five”. The preliminary hearing transcript was then put to her wherein she stated:

Q: Okay. So when then do you recall first making those observations, how old were you?

A: Probably around six or seven, just like – in between six to eight was when I really started to actually notice things, like emotions and facial expressions and everything. Yeah, probably six or seven.

She accepted that she said that at the preliminary hearing.

32TWB agreed at the trial that Ted Bundy was someone who kidnapped, raped and murdered women and girls in the 70s. She said that she also studied Ted Bundy in high school. She described Ted Bundy as “actually probably one of the most brilliant serial killers that ever existed because he knew how to use his charm. Now I’m not saying I like serial – like I’m not saying like I want to be a serial killer, but I’m saying that when it comes to Ted Bundy, he is quite possibly the only exception to me studying cases like that.” However, she also agreed that she studied and learned about Charles Manson, Jeffrey Dahmer, Ed Gein, Richard Ramirez, however, she clarified that she studied “their mind” She stated, “So when it comes to a part in a person that they’re talking about that was raped, I ignore it…And I read over it, because I don’t want to read it.” She agreed that this was something she started doing at age 5 or 6, continuing to the present day.

33After previously suggesting that she simply skips over the parts about rape, which contradicted what she had said earlier, she then stated:

….I feel like you’re trying to ask me if I’m kind of bullshitting all of this. No, when it comes to me studying and reading up about rape, I’m not studying and reading up about rape, like I said, and nor it is okay afterwards. In fact, afterwards, I still had a huge issue reading it. It’s just I also know that if I wanted to go into criminal defence, that’s the one thing that I can’t exactly skip over. Also, with the amount of rape that is going on in our world, I wanted to read up about it on ways that I could defend myself or what could happen if I was actually truly like kidnapped from somewhere or taken into a brush somewhere and actually raped.

34When TWB provided her statement to police on September 7, 2017, one of the first things she said, after it was explained to her that the interview was going to be video and audiotaped, was:

Yes, and all due respect I’ve studied cases like this, I wanted to go into criminal law when I was older, so I studied cases like this when I was younger.

This statement was made before TWB had even answered a question. She also explained at trial that she had been reading about serial killers since she was able to read and was reading her mother’s law dictionaries at a very young age. She stated that she started studying serial killers when she was five because that’s when her mind was actually able to comprehend that these are real people and real things that happened. Eventually, in cross-examination, she agreed that she was reading stories about sexual assaults both before and after she disclosed to her parents.

35At trial, TWB suggested that after she confronted Mr. M.W., she did not go over to her uncle’s residence as much. At the preliminary hearing, TWB stated that she did continue to go over to the residence of her uncle and aunt after confronting Mr. M.W.. She stated, “Just because he was there and he did these horrible things to me, I’m not – I wasn’t going to let that stop me from seeing my family”.

36Later in the trial, when asked how she was getting along with her father’s side of the family at the time the sexual activity stopped, she said “I think I was getting along with them beautifully” and “awesomely”. She stated that she still loved them and was able to go over to their house and show them that she loved them without paying any attention to Mr. M.W..

37TWB did not say anything to her parents or to any adult at the time, in fact, not until she was 14 years old. She stated that the reason for not saying anything was that she was scared that they would not believe her. When asked why she had this fear, she stated:

I was a kid. I was also at the time majorly into true crime and into just everything to do with it, and so I was worried that maybe they would think that I just saw it and I read about it, or it was just a really vivid dream I had, and I was just worried that they wouldn’t believe me. Because I also mean no disrespect here, but at the time M.W. was very big, and so there were also a lot of other things going on when it came to his physical physique that I figured they wouldn’t quite believe that he could have done it at the time.

TWB estimated Mr. M.W.’s weight during those years to be between 300 and 400 lbs. In cross-examination, she agreed that she did not tell the police that she was worried about not being believed because of Mr. M.W.’s size. At trial, TWB added that she was afraid she would not be believed because of her age. She agreed in cross-examination that she had never given this as a reason in her police statement or at the preliminary hearing.

38Eventually, at the age of 14, TWB did disclose these allegations. She stated that, again, she was watching Criminal Minds. She continued:

And I don’t know what happened, but I guess you could say I got triggered and I kind of just went out for a smoke or two, had a bit of a breakdown, and then walked back inside, and was like I need you to call Dad, I have to tell you and Ma. something.

In cross-examination, she agreed that this episode of Criminal Minds was about a girl that had been sexually assaulted who was the same age as her. This conversation was with her mother and stepfather and her mother did follow through and called her father. She stated that she did not give them all of the details of what had occurred, but she did tell them that it happened. At the preliminary hearing, at page 123, she agreed that she told her parents that Mr. M.W. would grind against her. She stated:

Yes. I at the time did not feel more comfortable going into detail with them about what happened. Still don’t but I was – I knew that I would have to at least tell them a little bit of what happened so they knew that it wasn’t just like an on-the-spur lie or something. So, yes, I did tell them and only told them that M.W. was grinding on me.

39At the preliminary hearing, page 124, TWB described what was going on in her life at the time and other reasons she was afraid she would not be believed by her parents:

Because, like I said, my mom and I had a really rocky history in between grade 7 to 10 and when I was in grade nine I was in – I wasn’t the best student and I wasn’t the best daughter. I did lie a lot, not about serious things. Like if I got caught in the lie, I would come clean about it but like I would steal 20 bucks out of her purse, I would take a couple cigarettes. I just wasn’t the best kid and so I had that fear that they wouldn’t believe me. And then not to mention when I hit like 13, 14, that’s when more assaults started going on around the Internet and more true stories about that type of stuff and nine of ten times all you really saw was they didn’t believe me.

40TWB did not want to go to the police at the time. She stated that “I’m scared to do any of this”. When asked why she was here, as in here in court telling her story, she stated, “Because I’m not doing it for me.”

41After she disclosed her allegations to her parents, she assumed that her father called his side of the family to tell them what she was saying about Mr. M.W.. The contact with that side of the family stopped. She stopped going to their home. She stopped talking to them as much. She stopped getting invited to their home. As to how this made her feel, she said that at the time, she did not really notice, because she had just started grade 9 and she was distancing herself from everyone.

42Between the time that she disclosed to her parents, but before going to the police, her mother and father tried to convince her to reconnect with that side of the family. She stated that the only person that she could contact that she knew would answer would be Mr. M.W.. Therefore, she messaged Mr. M.W. and stated that she was told to reconnect with this side of the family and asked if he wanted to go out for coffee or something sometime and catch up. She stated that she was planning to bring her mother or someone else with her. He said yes, that would be great and he would love to, but he would understand if she did not want to. A screenshot was apparently taken of this message, however, it was never introduced into evidence at this trial. According to TWB this response surprised her mother so it was never planned further.

43At the preliminary hearing, TWB described messaging Mr. M.W. quite differently. She stated that she messaged him as she “wanted to reconnect with that side of the family. I told my dad that I was going to message M.W.. My original point of messaging M.W. was literally just to see if he was still alive and okay and if he’s gotten any healthier because though he is a terrible human for doing this and I think he needs help, he is still my cousin and I still care about his weight and his health because he was on a very dangerous path when I last heard of him with his health and weight”. She said that her father had said it was a good idea to reconnect with the family and specifically stated not with Mr. M.W.. Her mother on the other hand did not see any harm with her contacting Mr. M.W..

44Subsequently, TWB’s father received information from ET’s father about something that Mr. M.W. allegedly did to ET. This was passed on to TWB by her father on August 12, 2017. TWB stated that she did not know ET’s full name or her last name, other than it started with a T. She did not remember meeting her, because they were so young, but she knew that she had met her at least once, because she was her aunt’s (Mr. M.W.’s stepmother’s) niece, the daughter of her aunt’s brother, so she would have been at family events. She did not have and never has had any relationship with ET. In cross-examination, she added that when that call came to her father, she was told that ET went to the police and ET’s father said there’s another girl, because he already knew about TWB’s allegations. She did not know how ET’s father knew about her, but he knew when she was 14 years old. ET’s father had called TWB’s father and TWB’s father called her mother and stepfather and told them and they told her “about what happened with M.W. and [E]”. Her father then asked her to give a statement. She said no, then maybe she would think about it. She stated that she did not know the details of ET’s complaint, but she knew of the complaint before she went to police.

45In cross-examination, it was suggested to TWB that her family was keeping her updated on what was happening with ET. She denied this. She said that her mother refused to give her updates, then stated that she did not think her mother was getting updates. She did ask her father if he knew what was happening with ET and he said that he did not. She was then shown her police statement from September 7, 2017 at page 49, which stated:

Well I met [E] a couple times ‘cuz I know it was her ‘cuz my dad told me who it was, um they’d been keeping me updated on the entire thing throughout it unless it was like really important stuff that they didn’t think I should know.

She agreed that she made that statement to the police, but claimed that the only things she was getting informed of was the fact that ET went in to give her statement and anything that had to do with the actual court proceedings. She said that was what she meant. She agreed that she knew that ET gave her statement to police prior to her. At the preliminary hearing, she stated that she did not know the details of what allegedly happened to ET, but she did know that it only happened once as far as she was told.

46In cross-examination, TWB added that at one of the family gatherings, she remembered “M.W. used to shoot [E] looks at that family gathering, and I’d get her to fuck off and go do something else so that he would stop shooting her looks”. She did not know how old she was at that time. She agreed that by bringing this up in court, she was implying that Mr. M.W. was giving ET inappropriate looks. She agreed that this would have been before she knew anything had happened to ET.

47At some point, TWB decided to report to the police. She said that she did not want to report to police but that it was already set up and she could not get out of the statement. However, then there was an incident at McDonald’s approximately a week before she gave her statement, or the week of her statement. She ran into Mr. M.W.’s mother and Mr. M.W. was there sitting in a booth. Mr. M.W.’s mother tried to have a conversation with TWB and invited her to sit down with them and have a chat. TWB refused and said she had to go. It was the first time TWB had seen Mr. M.W. in many years. Seeing them did not make her nervous or scared, but it put TWB on edge and made her agitated. It was that incident that encouraged TWB to give her statement to police. Also, TWB was aware that Mr. M.W. had a girlfriend and she was worried of any kids getting hurt.

48On the other hand, at the preliminary hearing, she suggested that this incident made her not want to give a statement. She stated at page 131:

Yes. I made it very clear when I – when this all first happened, I told them that first night instantly like without thinking that, yes, I would give a statement and partake in this. But then I saw them and then it went through my head and I told my mom, I was like I’m not doing the statement anymore, I’m done, I can’t do this, it’s just way too much anxiety and panic. My mom sat there and talked to me and like didn’t convince me or anything, like I don’t want to make it sound like she convinced me to do this but she definitely did help me notice the pros and cons of doing it.

49She stated that when she first went to give her statement to police, “that’s when it really hit”. She wanted to talk with her aunt and uncle and tell them that she still loved them and that she did not blame them for anything. She said that her mother was going to try and get in contact with them, but she thought that her mother likely decided that it was best if that did not happen. One of the hardest outcomes of this is her lost relationships with her other cousins.

50TWB was asked whether there was anything significant in her life that led her to disclose to the police at that time. She said no, that she was just depressed. She was also anxious of telling a random person this information. She stated:

I mean I’m literally not here for me, like I tried to put all of this behind me years ago. And this is a good thing for me to do, don’t get me wrong, but I would much rather, instead of sitting around doing nothing because I was scared, I would much rather sit here, deal with everything that I have been, like deal with my forms of PTSD, deal with my depression, deal with my anxiety, all of this now, so I know that he gets help, whether it be an actual psychiatrist or it is just sitting in a cell for a month. I don’t know, but I’m here to get him help, I’m here so that [E] knows that there was a bit of support. And I don’t talk to [E]. I haven’t seen [E] since she was a very little girl…But I’m here for her, I’m here to get him help. I’m not here for me.

51TWB agreed in cross-examination that she was doing this to help ET and to put Mr. M.W. in jail. She agreed that at the preliminary hearing at page 136, she stated:

Other witnesses, like my mom and everyone, they can’t help her the same way that I can and it’s just – that’s why I’m doing it ‘cause I know that I can help her on a different level than all the other witnesses and everything.

She explained that she meant she could help on a different level because she was the only one that it actually happened to for a longer period of time and other witnesses were never there. It was just her and ET, so they were the “only ones that can actually put him behind bars”.

52TWB stated that she had a close relationship with her father when he lived in Ontario and she still does today. As far as her relationship with her mother between the ages of 8 and 11, she stated that it was “as good as a relationship can be with your mom at that age when you have Asperger’s.” With respect to the relationship with her Grandma S. at that time, she said that “I didn’t really have a choice back then…..that was before I knew of all the crazy shit that she’s done and all the stuff that she lied about”. She agreed that at the preliminary hearing she simply said that she had a good relationship with her without describing her in this way, and stated, “No because back then I didn’t think that you guys deserved any right to know about anything that was too detailed like that because I was told not to give details.” She stated that she was told this by the Crown. She agreed that prior to her father moving to British Columbia when she was about 12 and a half, she would frequently spend time at her grandmother’s house, including overnight and time in summer.

53TWB agreed that she did not tell any of the adults in her life at the time this was happening. She also agreed that there were no threats from Mr. M.W., in that he never threated that if she told he would hurt her or hurt her family. It was suggested to her that despite all of these great relationships in her life at the time, no one suspected a thing. She then said that her mother did suspect and had admitted that to TWB and to the Crown and police. Her mother told her that “she had suspicions because of how M.W. would act at the time when I was around and she saw”. She described play wrestling with him and putting his hands in the wrong places. She said her mother told her about these suspicions within the past two years. She said that there was no further discussion with her mother about the case. Then she stated that “I told her that it was at dad’s; nothing else.” She did not agree that her mother asked her whether or not Mr. M.W. did anything to her prior her disclosure. Later in cross-examination, it was suggested to her that her memory had been influenced by things that she discussed with her mother and she was asked whether there was anything else that she could remember discussing with her mother. She said “Probably quite a few things seeing as to how it was making me a pretty big wreck”. She then admitted that her mother suggested to her that there was a time when she did not want to go to her father’s. Later in her cross-examination, she stated that in fact there were times when she did not want to go to her father’s.

54It was suggested to her that her mother talked to her and reminded her of things that she did not remember. She responded, “Way back when and it’s not exactly like I didn’t remember it. It’s just kinda like she pulled it out of that blur of memories. It’s the same way how I pulled all of this bullshitty memory out of that blur of memories…just for this…Bullshit means to me anything that mentally makes you unstable and hurt or anything that is made up. Now in this case, I mean it as anything that’s causing me mental pain and causing me to break”.

Summary of ET’s evidence

55ET was 16 years old at the time of her testimony. She is not biologically related to Mr. M.W., as Mr. M.W. is the stepson of her aunt. Mr. M.W. is quite a few years older than ET.

56When she was growing up, ET would spend a little bit of time with Mr. M.W. at family get togethers at her grandparent’s house. Also, she stated that she would go to her aunt’s house before and after school in grade 7 when she was 12 years old, but Mr. M.W. was generally not there, at least she did not have specific memories of him being there.

57ET testified that she was not familiar with TWB. She has heard her name but has never met her. She did not know of her father to spend time with TWB’s family.

58ET stated that the sexually inappropriate behaviour occurred when she was around 6 or 7 years old, when Mr. M.W. was babysitting her, her older brother, who would have been about 8 or 9 years old, and her younger sister, who would have been 1 or 2 years old, at her father’s house. She remembered her age because her younger sister, who is 5 years younger than her, was just a baby at the time. She stated that her father and stepmother were either at Casino Rama or at a staff party. She stated that it was not regular for them to go out but they would go out every now and again. She did not recall what time of year this was, other than it was not Christmas, it was not Halloween and it was not her birthday. She said that Mr. M.W. would generally babysit, but as she got older it would be Mr. M.W.’s younger brother. She did not believe Mr. M.W. babysat too many times before this and estimated it would have been one or two times.

59In cross-examination, she agreed that she told the police during her statement that her parents had more than likely gone to Casino Rama or a holiday party. When asked what holiday this could be, she said that it could be a Thanksgiving party. She said she had realized that it was not Christmas when she was reviewing her statement about a week before she testified, but she had not said anything to anyone. It was suggested to her that she had a conversation with her father or stepmother about when this happened and that they were the ones who suggested it was a holiday party, to which she said no. She recalled that her stepmother worked at The Children’s Place around that time. It was suggested to her that her stepmother did not start that job until 2011, to which she stated that she did not remember. She did not know where she worked before The Children’s Place, however, she then acknowledged that she did in home daycare prior to that job. She agreed her sister was born in 2008, but did not remember whether her stepmother was a stay at home mom. She agreed that she would be eight years old in 2011, and that if her stepmother had any holiday parties, she would have been eight at the time. Ultimately, she did not know for sure where her parents were that night.

60ET agreed that at the preliminary hearing she stated that, at the time of this incident, she was either attending school at M[...] or E[...]. She stated that she went to M[...] until the end of grade 2 and then switched to E[...]. She agreed that she started grade 3 at E[...] in 2011. She agreed that if she was attending E[...] at the time of this incident, she could not have been 6 or 7 years old.

61According to ET, Mr. M.W. began babysitting in the evening, just before dinner time. He cooked dinner for them. After dinner, they sat on the couch in the upstairs livingroom watching a movie or television. She agreed that at the preliminary hearing, she stated that they were watching a movie. She then said that she really had no memory of which it was other than the television was on. The livingroom and kitchen were on the same main level of the home. She did not recall how long they were all watching a movie upstairs, but it was starting to get dark.

62Her younger sister went to bed first. At the preliminary hearing, she agreed that she said that she did not remember Mr. M.W. putting her sister to bed.

63After her sister went to bed, Mr. M.W., ET and her older brother went down to the basement together. She did not believe that the lights were ever turned on. Mr. M.W. and ET’s brother played video games or watched television. Again, she said that she was not sure which, she just knew the television was on. She agreed that she did not say anything to the police or at the preliminary hearing about watching television in the basement. It was suggested to her that she was making an assumption that the television was on, to which she disagreed. She stated that she sat on the floor and watched. Mr. M.W. was in the rolling office chair. She agreed that Mr. M.W. was fairly big at the time and that it was a “tight fit” for him in that chair. She agreed that the first time she said anything about how he fit in the chair was at the trial. ET was sitting on the floor, against the wall to Mr. M.W.’s right. Her older brother was on the couch. Mr. M.W. was closer to the internal basement exit.

64She stated that her older brother went to bed before she did. It was suggested to her that there was no reason for her older brother to go to bed before her, to which she replied that “if he was tired he would”. She agreed that this was an assumption. She did not know what time he went to bed.

65The bedrooms were upstairs, off the main hallway. She believed that she was sharing a room with her sister but was not sure if her sister was still in a crib. After her brother went to bed, she continued sitting on the floor in the basement. In the basement, there was a storage room, big living space, laundry room, bathroom and a backdoor to the back yard. There were two televisions. The main television was on the far back wall. The other television did not work. In front of the main television, there was a love seat couch facing the television and a three-seater couch butted up against the love seat to form an “L” shape. As for other seating in the basement, there was the rolling office chair with arms, which sat beside the love seat couch in the middle of the basement, that her brother and father used to sit in to play video games or watch movies. The lighting in the basement consisted of three or four “slabs” of lights on the ceiling and three light switches, about a metre from the floor, all on the same wall to the right as one enters the basement.

66ET testified that Mr. M.W. was in the basement continuing to play video games on the television. It was dark out as it was night time. No more than a half hour after her brother went to bed, ET was getting tired and wanted to go to bed. She did not recall the time she normally went to bed at that age. She was afraid of the dark at the time and was not able to reach the light switch on the wall. She did not want to walk through the hallway and upstairs in the dark. The only light in the basement was the light of the television. There were no other lights on in the home. According to ET, she asked Mr. M.W. to turn on the light for her, to which he responded “no”. ET sat and waited for a couple of minutes. She then asked Mr. M.W. again, to which he responded, “no”, but said he would if she would touch his penis. E.T. said no. She continued to sit there, about a metre away from him. She stated that she felt scared and confused. She did not exactly understand what he was asking her but she had a feeling it was wrong. She then got up and went to walk past Mr. M.W. in the narrow space between the chair and the wall. There was no other way out of the area where she was sitting. Her plan was to run up the stairs and try not to notice the darkness.

67She testified that Mr. M.W. grabbed her right arm with his left hand and pulled her in front of him. She described it as a “fairly good grab” and that she was not able to get out of it. With her left hand that was free, she tried to swat his hand away. He then grabbed her left arm with his right hand. He pulled her in front of him and pushed her onto her knees. He was still seated in the office chair. She was still trying to pull away by pulling backwards. Mr. M.W. was wearing elastic waist band shorts and a t-shirt. He pulled the waistband down on his pants. With his left hand, he grabbed the back of the bottom of her head or neck and pushed her head toward his penis, which was exposed. This motion took about a second. She did not know if he was wearing underwear. She believed his penis was erect. When asked about this in cross-examination, she said that his penis was pretty small so it was hard to tell. At this point, it was suggested that the witness was smirking. It was suggested that she told the police that she did not recall whether his penis was hard or soft to which she agreed that was what she told police.

68Initially, she said that she was not saying anything, then a moment later, stated that she said “no”. She was pushing away as much as she could. He was pulling her head toward him and he put his penis in her mouth. She said that it all happened so fast. She was in that position for less than 5 seconds. He then let her go and she fell backwards, as she was still pulling away. She did not recall him saying anything after. She continued to be very confused and scared. As soon as she fell backwards, she got up and ran up to her bedroom upstairs. She closed the door and sat by the door. She did not recall whether she slept that night, but she did go to bed.

69ET agreed that at the preliminary hearing, when asked in cross-examination about these events, she testified that Mr. M.W. said “no” each time she asked him to turn the lights on. In re-examination at the preliminary hearing, she changed her answer to indicate that it was after the first time that she asked when Mr. M.W. said if you touch my penis I will turn the lights on. She agreed that the timing of this comment, as she described it at the preliminary hearing, was different than what she had described at the trial. She stated that this was a simple mistake of when he said it, but he did say it.

70At trial, ET was referred to her statement to the police and in fact took time to read the statement again. After a review, she agreed that she never told the police that she was pushed to the ground or pushed onto her knees.

71It was suggested to ET that at the preliminary hearing, she said that she was using her hands to push away. She said, no, that she was just using her body force to pull away from him. After being referred to the preliminary hearing transcript, ET agreed that at the preliminary hearing she said she was using her hands on his thighs, pushing away. She then said that her hands were on his thighs but she was using her body force to push away, including her head, neck, and back. She then agreed that she was using her hands to some extent.

72In her police statement, ET told the police that she was kicking to try to get away from Mr. M.W.. She agreed that she had not said this at the preliminary hearing or at the trial. She then explained that she was kicking with the upper part of her leg.

73At trial, ET stated that with his left hand, he grabbed the back of the bottom of her head or neck and pushed her head toward his exposed penis. In her statement to police, she agreed that she said he used both hands to grab her head. She agreed she said that and then said “after he pulled me in, yes”. At the preliminary hearing, she agreed that she said his hand stayed on her neck the entire time. She said that she meant the bottom of her head at her neck.

74With respect to how her mouth came to be on his penis, at trial, she initially said she was not saying anything but then said she was saying “no”. At the preliminary hearing, she agreed that she stated that she also said “this is wrong”, but she then explained at trial that she was not saying this out loud, just thinking it.

75ET did not see Mr. M.W. the next day. She did not recall whether he babysat after that incident. However, she then estimated that it would be less than five times that he babysat after that incident. In cross-examination, she recalled one time that he babysat with his younger brother present. She agreed that she told the police that Mr. M.W. did not babysit after the date of the allegations. She agreed that she had not mentioned to police that he babysat one time with his brother. She also agreed that at the preliminary hearing, she did not recall any times that he babysat after the allegations. She explained that she did not remember him babysitting alone after the date of the allegations, although she stated that he was the only one that babysat them. She remembered him being there but did not remember specific events of what was going on. She did not remember specific instances of him babysitting.

76ET did not talk to anyone that next morning about what had happened. She said she was still processing what had happened and did not know if she should say something or not. At that age, it was not on her mind to talk about it. As she began to get older, she did not want it to disrupt the family dynamic. She did not want it to prevent her from seeing other members of her family. She knew it would tear the family apart if she said anything. She felt her father would be mad at that part of the family and then they would not see each other anymore. ET agreed that at the time of these allegations, she had a good relationship with her father, mother and stepmother. She agreed that her mother had said to her if something inappropriate happens, she should tell someone and that her body is a private thing.

77There would be family gatherings at her grandparent’s house on Thanksgiving, Christmas and birthdays. About once per month they would get together and celebrate something. However, she stated that Mr. M.W. was rarely there. She only remembered seeing him at her grandparent’s a maximum of three times. She would say hi to him at gatherings. She approximated that the last time she saw him at a family gathering was before she was 12 years old. When she would see him at family gatherings, there was no discussion about the allegations. After these incidents, there were no sexual comments to ET by Mr. M.W.. ET agreed that Mr. M.W. never threatened her and did not tell her not to tell anyone or say it would wreck the family.

78At the beginning of grade 8, September or October when she was 13 years old, she spoke to her best friend about what had happened. They had been friends for about a year. She said that they were hanging out playing basketball and she had wanted to tell someone for a long time. It was on her mind a lot and she just wanted someone else to know about it. Keeping it to herself was making her upset all the time and feeling anxious and depressed.

79She testified that, right before grade 8 graduation, at the end of June, she told her mother. She agreed that she previously told the police in her statement that she told her mother after graduation. She testified that her mother picked her up from school one day and they were in the car driving home. They were talking about boys and she just came “straight out” with it. Her mother told her father. As soon as her father found out, he wanted her to go to the police, which she agreed to do. She felt nervous and anxious but otherwise felt good about it. She stated that she gave her statement to police the day after grade 8 graduation. In cross examination, she agreed that she went to the police on June 28, 2017, however, her video statement was done on July 4, 2017.

80She agreed that she told the police in her statement a different story about how and when she told her mother and the circumstances surrounding that. She further agreed that at the preliminary hearing, she remembered something different about how she told her mother and corrected what she had previously told the police.

ANALYSIS

Admissibility of police statement and preliminary hearing evidence of TWB

Factual Context

81As previously noted, TWB did not complete her evidence. At this trial, TWB completed her examination-in-chief without any obvious significant difficulties. However, in cross-examination, things were different.

82On the first day, TWB was cross-examined for approximately fifteen minutes before requiring a break. The court broke for lunch. After lunch, she testified for another ten minutes, at which time she requested and was granted a break. She then returned for another thirteen minutes, at which point she had her arms covering her ears and her head down, but asked to keep going. Defence counsel asked for the witness to be excused to address the court, given the difficulty in knowing whether the witness was listening to the questions. The Crown then spoke to the witness outside of the courtroom to the limited extent of finding out whether she wished to continue or return the next day. After inquiries, the Crown reported that TWB wished to come back the following day. Court recessed early for the day. On the second day, she testified for seventeen minutes, at which point an objection was made and she was asked to leave the courtroom. She then returned for forty-six minutes, at which point defence counsel suggested it was a reasonable time to give the witness a break. After the break, she was cross-examined for a further twenty-five minutes, at which point she stated that she was “done”. At various points in her cross-examination she was agitated and emotional, sometimes crying, sometimes hiding her face.

83Subsequently, a voir dire was held to attempt to determine the reason she would not or could not continue. At the voir dire, TWB stated, “If I stay here any longer, I’m going to end up in the hospital. I know when my own mental breaking point is so me running out of the room, I can’t keep testifying. I’m sorry.” She indicated that she had considered self harm numerous times throughout the days that she was in court, and that no testimonial aid would improve the situation. She said “I can’t be here”.

84This court accepted that Mr. M.W. had a great deal more to ask the complainant and was denied that opportunity.

85The Crown then brought an application to admit her statement to police dated September 7, 2017, as well as her evidence at the preliminary hearing on October 31, 2018 under the principled exception to the rule against hearsay. The Crown also asked that this court give significant weight to the viva voce evidence of TWB at the trial, due to the fact that there was significant cross-examination, and the admission of the police interview and preliminary hearing transcript would sufficiently ameliorate any unfairness to the accused.

86The defence opposed the application on the basis that neither the police statement nor the preliminary hearing evidence met the test to be admitted under the principled exception to the rule against hearsay, and further that the preliminary hearing evidence did not meet the test for admission under section 715 of the Criminal Code. The defence asked this court to dismiss the application and strike the evidence of TWB. Alternatively, if the court determined that either the video taped statement or the preliminary hearing evidence should be admitted, the Respondent requested that both be admitted into evidence, along with the viva voce evidence at trial, in order for the Court to adequately assess the witness’ credibility and reliability.

87After hearing submissions, this court ruled that the videotaped statement and the preliminary hearing evidence should be admitted pursuant to the principled exception to the rule against hearsay. The court provided very brief oral reasons at the time, indicating that more fulsome reasons would follow.

Legal Analysis

88It is the view of this court that there was absolutely no basis upon which to strike TWB’s evidence. Counsel did not request this as any form of Charter relief. Counsel did not provide any legal authority for this remedy. There was no request for a mistrial and no request for a stay.

89Therefore, it was incumbent upon this court to do something to remedy any unfairness that would result to Mr. M.W..

90The Crown bringing this application at this point in the trial was unusual. The Crown had completed examination-in-chief. It was in the midst of cross-examination that the Crown brought this application, arguing that, in fairness to Mr. M.W., the statement and preliminary hearing evidence must be admitted in order for this court to be in a position to fairly assess the credibility of the witness, including any inconsistences in her evidence.

91Hearsay, being any out of court statement tendered for the truth of its contents, is presumptively inadmissible. When contemplating the admissibility of hearsay evidence pursuant to the principled exception to the rule against hearsay, this court must consider whether the evidence is necessary and reliable.

92As for the necessity component, the threshold is met when evidence of the same or similar value cannot be produced to prove a fact in issue. As stated in R. v. Smith, 1992 79 (SCC), [1992] 2 S.C.R. 915 at para. 35:

34The companion criterion of "necessity" refers to the necessity of the hearsay evidence to prove a fact in issue. Thus, in Khan, the infant complainant was found by the trial judge not to be competent to testify herself. In this sense, hearsay evidence of her statements was necessary, in that what she said to her mother could not be adduced through her. It was her inability to testify that governed the situation.

36As indicated above, the criterion of necessity must be given a flexible definition, capable of encompassing diverse situations. What these situations will have in common is that the relevant direct evidence is not, for a variety of reasons, available. Necessity of this nature may arise in a number of situations. Wigmore, while not attempting an exhaustive enumeration, suggested at s. 1421 the following categories:

(1) The person whose assertion is offered may now be dead, or out of the jurisdiction, or insane, or otherwise unavailable for the purpose of testing [by cross-examination]. This is the commoner and more palpable reason ... .

(2) The assertion may be such that we cannot expect, again or at this time, to get evidence of the same value from the same or other sources ... . The necessity is not so great; perhaps hardly a necessity, only an expediency or convenience, can be predicated. But the principle is the same.

Clearly the categories of necessity are not closed. In Khan, for instance, this Court recognized the necessity of receiving hearsay evidence of a child's statements when the child was not herself a competent witness. We also suggested that such hearsay evidence might become necessary when the emotional trauma that would result to the child if forced to give viva voce testimony would be great. Whether a necessity of this kind arises, however, is a question of law for determination by the trial judge.

93The consideration by the court is one of reasonable necessity as opposed to absolute necessity. See Khan v. College of Physicians & Surgeons (Ontario) (1992), 1992 2784 (ON CA), 76 C.C.C. (3d) 10 (Ont. C.A.)

94The circumstances in this case are unique. TWB completed her examination-in-chief. She completed a portion of cross-examination. The Crown in this case argued that the hearsay evidence is necessary for this court to determine what, if any, inconsistencies are present in TWB’s evidence. Due to the fact that the cross-examination was cut short, the defence lost the ability to demonstrate the inconsistences through the normal course. It is the view of this court that the necessity component was met in this case. Where the accused has lost the ability to adequately cross-examine the main complainant in the case, the admission of such evidence may become necessary to demonstrate inconsistencies that might otherwise not be apparent to the trier of fact.

95With respect to reliability, the consideration is one of “circumstantial guarantee or probability of trustworthiness”. It is threshold reliability that the court is considering, not ultimate reliability. The question is whether the hearsay statement evidences sufficient indicia of reliability to afford the trier of fact a satisfactory basis for evaluating the truth. See R. v. Bradshaw (2017), 249 C.C.C. (3d) 429 (S.C.C.); R. v. Youvarajah (2013), 2013 SCC 41, 300 C.C.C. (3d) 1 (S.C.C.); R. v. Blackman (2008), 2008 SCC 37, 232 C.C.C. (3d) 233 (S.C.C.); R. v. Hawkins, (1996), 1996 154 (SCC), 111 C.C.C. (3d) 129 (S.C.C.)

96In R. v. Khelawon, 2006 SCC 57, a seminal decision providing guidance to the court on the application of the principled exception, the court stated:

61Since the central underlying concern is the inability to test hearsay evidence, it follows that under the principled approach the reliability requirement is aimed at identifying those cases where this difficulty is sufficiently overcome to justify receiving the evidence as an exception to the general exclusionary rule. As some courts and commentators have expressly noted, the reliability requirement is usually met in two different ways: see, for example, R. v. Wilcox (2001), 152 C.C.C. (3d) 157, 2001 NSCA 45; R. v. Czibulka (2004), 2004 22985 (ON CA), 189 C.C.C. (3d) 199 (Ont. C.A.); D. M. Paciocco, "The Hearsay Exceptions: A Game of 'Rock, Paper, Scissors'", in Special Lectures of the Law Society of Upper Canada 2003: The Law of Evidence (2004), 17, at p. 29.

62One way is to show that there is no real concern about whether the statement is true or not because of the circumstances in which it came about. Common sense dictates that if we can put sufficient trust in the truth and accuracy of the statement, it should be considered by the fact finder regardless of its hearsay form. Wigmore explained it this way:

There are many situations in which it can be easily seen that such a required test [i.e., cross-examination] would add little as a security, because its purposes had been already substantially accomplished. If a statement has been made under such circumstances that even a sceptical caution would look upon it as trustworthy (in the ordinary instance), in a high degree of probability, it would be pedantic to insist on a test whose chief object is already secured. [s. 1420, p. 154]

63Another way of fulfilling the reliability requirement is to show that no real concern arises from the fact that the statement is presented in hearsay form because, in the circumstances, its truth and accuracy can nonetheless be sufficiently tested. Recall that the optimal way of testing evidence adopted by our adversarial system is to have the declarant state the evidence in court, under oath, and under the scrutiny of contemporaneous cross-examination. This preferred method is not just a vestige of past traditions. It remains a tried and true method, particularly when credibility issues must be resolved. It is one thing for a person to make a damaging statement about another in a context where it may not really matter. It is quite another for that person to repeat the statement in the course of formal proceedings where he or she must commit to its truth and accuracy, be observed and heard, and be called upon to explain or defend it. The latter situation, in addition to providing an accurate record of what was actually said by the witness, gives us a much higher degree of comfort in the statement's trustworthiness. However, in some cases it is not possible to put the evidence to the optimal test, but the circumstances are such that the trier of fact will nonetheless be able to sufficiently test its truth and accuracy. Again, common sense tells us that we should not lose the benefit of the evidence when there are adequate substitutes for testing the evidence.

97The case law has provided some guidance as to indicia of trustworthiness which might suffice to permit reception of the evidence:

1. the presence of an oath or affirmation to tell the truth;

2. an audio or video recording of the statement, or in some other form, a verbatim account of what was said;

3. the fact that the statement was subjected to cross-examination;

4. the presence of an identified officer taking the statement;

5. the statement being taken in a relaxed, non-intimidating atmosphere;

6. the statement being given to a person in authority within a reasonable time of the alleged commission of the offence;

7. the inclusion of a discussion about the difference between the truth and a lie;

8. any corroboration for the statements made;

9. the absence of motive to fabricate

See: R. v. B.(K.G.) (1993), 1993 116 (SCC), 79 C.C.C. (3d) 257 (S.C.C.); R. v. SS, 2017 ONSC 5459; R. v. Smith, 1992 79 (SCC), [1992] 2 S.C.R. 915 (S.C.C.)

98In the present case, both the police statement and the preliminary hearing evidence have sufficient indicia of trustworthiness to make each reliable.

99TWB alleged that Mr. M.W. sexually assaulted her when she was a child between the ages of 8 and 11. She did not disclose these events until she was 14 years old. At the age of 16 (nearly 17), on September 7, 2017, she provided a statement to the police that was captured on video at the Barrie Police Service. In that statement, D/C Cummings identified herself as a detective constable with the Barrie Police, indicated to TWB that they were being audio and video recorded, pointed out another officer was monitoring and taking notes of the interview, and outlined that “these statements” are often forwarded to court relating to investigations. D/C Cummings also emphasized that it was important to tell the truth, as she stated “Um, so there’s only one, um, real thing I’m looking for in the…in this room and that’s the truth as best as you know it, okay?...”

100The transcript of the video statement was filed with the Ontario Court of Justice pursuant to section 540(7) of the Criminal Code at the preliminary hearing on October 31, 2018. TWB was cross-examined at that preliminary hearing by the same defence counsel as the counsel who represented Mr. M.W. at this trial.

101With respect to the police statement, there was a full verbatim account of what was said, as it is video and audio recorded. The complainant was advised that the statement was being video and audio recorded and that the statement may be used by the court. While it is not under oath, the officer expresses the importance of getting the truth. The complainant appears to be comfortable with the officer, expressing from the outset her knowledge of these matters, having “studied cases like this”. The atmosphere was relaxed. The complainant initially provides her own account of what she says occurred without prompting. While the officer does ask some suggestive questions during the interview, there is certainly a great deal of opportunity given to the complainant to give her statement in an open-ended fashion. Counsel for Mr. M.W., the same counsel at this trial, had the opportunity to cross-examine the complainant on this statement at the preliminary hearing, as well as to some extent at this trial.

102With respect to the preliminary hearing evidence, there is a verbatim account of every question asked and answer given. The complainant affirmed to tell the truth. Counsel for Mr. M.W., the same counsel at this trial, had the opportunity to cross-examine the complainant at the preliminary hearing. Mr. M.W. conceded that the preliminary hearing evidence meets the test for reliability “on its face”, however argued that they have not been able to fully cross-examine on it. This concession would seem to suggest that threshold reliability is demonstrated, which is all that is required.

103Further, counsel for Mr. M.W. took the position that if one statement is admitted, then both should be admitted, in order to preserve trial fairness for Mr. M.W..

104At this trial, the whole purpose of seeking the introduction of this hearsay evidence was to preserve trial fairness for Mr. M.W.. Mr. M.W. did not seek a mistrial or a stay of proceedings. Instead, he sought to have the evidence of TWB struck, without any legal basis for asking this court to do so. Given that Mr. M.W. was restricted in his ability to fully cross-examine the complainant, the admission of both statements only served to make the proceedings more fair for Mr. M.W., as it provided previous inconsistent statements made by the complainant from which Mr. M.W. was permitted to argue that she was not a credible witness. There was no suggestion by the Crown that any prior consistent statement be considered by the court and, of course, this court has not considered these statements in any way that would bolster the credibility of the complainant. The admission of this evidence serves only to assist Mr. M.W. at this trial.

105In the case of R. v. T.H., 2017 ONCA 485, the Court of Appeal provided some guidance on a similar situation to the circumstances in this case. In T.H., an 11 year old complainant became progressively unresponsive in examination-in-chief and refused cross-examination. Defence counsel did not seek a mistrial, however, he requested and was granted, unopposed by the Crown, that the complainant’s testimony at the preliminary hearing be admitted pursuant to s. 715 of the Criminal Code. At the conclusion of the testimony, defence counsel requested a stay of proceedings pursuant to s. 24 of the Charter, due to the lack of ability to cross-examine infringing his right to make full answer and defence under s. 7 of the Charter. The stay was refused and the trial judge dealt with the absence of cross-examination in his charge to the jury. The court stated in part as follows:

36Second, against the backdrop of the court's statement in Lyttle, at para. 45, that "the right of cross-examination itself is not absolute", there is a well-established test for determining whether a cross-examination of a witness impeded by unresponsiveness has such a serious impact on the accused's ability to make a full answer and defence as to render the trial unfair.

37The leading case is R. v. Hart, (1999), 1999 NSCA 45, 135 C.C.C (3d) 377 (N.S.C.A.), leave to appeal refused, [2000] S.C.C.A. No. 109, a sexual assault case involving a 12 year old complainant who was unresponsive during cross-examination. Based on the complainant's unresponsiveness, the defence sought a judicial stay or a directed verdict of acquittal. The trial judge declined to grant this relief and this decision was upheld by the Court of Appeal.

38After a careful review of relevant common law and Charter principles and Canadian, English and American authorities, Cromwell J.A. identified three factors that should be taken into account in determining whether the unresponsiveness of a child witness during cross examination denies an accused the right to make a full answer and defence and renders the trial unfair: (1) the reason for the unresponsiveness; (2) the impact of the unresponsiveness; and (3) possibilities of ameliorative action: Hart, at pp. 410-414; see also R. v. Cameron (2006), 2006 16078 (ON CA), 208 C.C.C (3d) 481 (Ont. C.A.); and R. v. Duong, 2007 ONCA 68, 84 O.R. (3d) 515.

39The first factor tells in favour of the appellant. The complainant's unresponsiveness was caused by the subject matter of her evidence; it was not caused by any improper defence action.

40The second factor favours the respondent. Obviously, the complainant was the main Crown witness. The absence of an opportunity to cross-examine her clearly removed a potentially important aspect of the defence case. On the other hand, the jury had seen the complainant testify for some time and then saw her become unresponsive. They also had the transcript and audiotape of the preliminary inquiry, where the complainant had testified, including cross-examination. They could evaluate the impact of her unresponsiveness on her credibility and reliability. Both of these aspects of her testimony were before the jury. Moreover, perhaps not surprisingly for an eight-year-old, her two statements to police which were admitted into evidence contained many inconsistencies.

[41 The third factor, in my view, is crucial. In Lyttle, the court said, at para. 45:

Just as the right of cross-examination itself is not absolute, so too are its limitations. Trial judges enjoy, in this as in other aspects of the conduct of a trial, a broad discretion to ensure fairness and to see that justice is done -- and seen to be done.

42In the present case, the trial judge decided that the unresponsiveness of an 11 year old witness in a cross-examination relating to allegations about sexual abuse by her mother's boyfriend was not fatal to a fair trial. Accordingly, he did not declare a mistrial (he was not asked to). Nor did he grant the stay sought by the accused long after the complainant had finished her testimony and after many other witnesses had also testified without objection.

43Instead, the trial judge sought to balance and accommodate the fair trial interests of the accused and the difficult situation of the young complainant. In doing so, he was, in my view, cognizant of something else Cromwell J.A. said in Hart, at pp. 399 and 400:

Over the last 10 years, there has been growing recognition that some rules of evidence and trial procedure do not adequately address the special needs of young witnesses, particularly in sexual abuse cases.

[F]lexibility and common sense must be applied when considering the consequences of a child witness becoming unresponsive during cross-examination. It seems to me to be wrong to base the analysis on whether the unresponsiveness is the "fault" of the witness, as some of the older authorities do. While it may be appropriate to consider whether the party calling the witness and the party cross-examining have done what is reasonably possible to mitigate the difficulties of testifying, the primary focus of the analysis should be the impact of the limitation on cross-examination on the ability of the jury to assess the evidence. This analysis should have due regard to the particular circumstances of the case, viewed realistically and with common sense by standards appropriate to a witness of the age and sophistication of the child in question. In short, the assessment must be made with the flexibility and common sense appropriate to child evidence generally, not according to stereotypes or rigid rules.

106While TWB was not a child witness, she was certainly a young woman, being only 18 years old (nearly 19 years old) at the time of her testimony. TWB was demonstrating psychological trauma, causing her to consider self-harm. While there was no “medical confirmation” to support this assertion, the court did accept the evidence of the complainant based on her demonstrated emotional state and testimony on the voir dire. The court was deeply concerned that somehow forcing the complainant to continue would have a serious impact upon her mental health and well-being. The complainant needed to be accommodated by the court. It is noted that neither counsel requested that the court force the complainant to continue. At the same time, the court needed to respect and ensure that Mr. M.W. was afforded his right to make full answer and defence.

107This court accepts that even where necessity and reliability have been established, the court retains a discretion to exclude evidence where “its probative value is slight and undue prejudice might result to the accused”: See R. v. Hawkins, 1996 154 (SCC), [1996] 3 S.C.R. 1043 (S.C.C.) at para. 85. It is the view of this court that not allowing the introduction of this evidence would have resulted in prejudice to Mr. M.W..

108In admitting the police statement and preliminary hearing evidence, the proper balance was struck between Mr. M.W.’s right to make full answer and defence and the need to protect a vulnerable person. It was clear that the complainant was not going to continue with cross-examination and that no further delay or special accommodation would have changed that fact. In those circumstances, the only fair remedy to Mr. M.W. was to allow the police statement and the preliminary hearing evidence to be admitted for the truth of its content so that the court could fully assess the credibility, and to a lesser extent, the reliability, of the complainant.

Trial Proper

109M.W. is presumed innocent. In order to prove his guilt on any of the charges, the Crown must prove the essential elements of the particular offence beyond a reasonable doubt.

110There does not seem to be any issue in this trial as to whether the events alleged would amount to the offences charged if the Crown were able to prove, beyond a reasonable doubt, that the events as described did occur.

111The only real issue at this trial is did the events happen. The focus therefore is on the assessment of the credibility of each of the two complainants.

112In R. v. Williams, 2018 ONCA 138, the court provided a good summary of the principles relating to credibility by quoting from a previous decision of the court:

33…In my view, a good summary of the relevant principles relating to the assessment of a witness’ credibility is contained in R. v.A.M., 2014 ONCA 769 at paras. 12-14:

… [O]ne of the most valuable means of assessing witness credibility is to examine the consistency between what the witness said in the witness box and what she said on other occasions, whether or not under oath: R.v. G.(M.) (1994), 93 C.C.C. (3d) (Ont. C.A.), at p. 354, leave to appeal to S.C.C. refused, [1994] S.C.C.A. No. 390. Inconsistencies may emerge in a witness’ testimony at trial, or between their trial testimony and statements previously given. Inconsistencies may also emerge from things said differently at different times, or from omitting to refer to certain events at one time while referring to them on other occasions.

Inconsistencies vary in their nature and importance. Some are minor, others are not. Some concern material issues, others peripheral subjects. Where an inconsistency involves something material about which an honest witness is unlikely to be mistaken, the inconsistency may demonstrate a carelessness with the truth about which the trier of fact should be concerned: G.(M.), at p. 354.

… A trial judge giving reasons for judgment is neither under the obligation to review and resolve every inconsistency in a witness' evidence, nor respond to every argument advanced by counsel: R. v. M. (R.E.),2008 SCC 51, [2008] 3 S.C.R. 3, at para. 64. That said, a trial judge should address and explain how she or he has resolved major inconsistencies in the evidence of material witnesses: G. (M.), at p. 356; R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788, at para. 31. [Emphasis added.]

113When assessing credibility, the court must not, and does not approach the evidence with preconceived assumptions, such as “what kind of person”, a victim or perpetrator of sexual assault, may be. Further, improper reliance on myths and stereotypes about complainants, such as what a person who has been sexually assaulted will or should do or say must be avoided. The Supreme Court of Canada recently stated in R. v. Barton, 2019 SCC 33, [2019] S.C.J. No. 33 in the opening paragraph:

…Without a doubt, eliminating myths, stereotypes, and sexual violence against women is one of the more pressing challenges we face as a society. While serious efforts are being made by a range of actors to address and remedy these failings both within the criminal justice system and throughout Canadian society more broadly, this case attests to the fact that more needs to be done. Put simply, we can -- and must -- do better.

114When making assessments of credibility, the court must constantly and consistently keep in mind that people react differently. In R. v. A.R.J.D., 2018 SCC 6, the Supreme Court of Canada dismissed an appeal, substantially for the reasons of the majority of the Alberta Court of Appeal. In those reasons, the Court of Appeal discussed the avoidance of stereotypical thinking. In R. v. A.R.J.D., 2017 ABCA 237, 2017 A.J. No. 746, the Court stated in part as follows:

42… it has long been recognized that there is "no inviolable rule on how people who are the victims of trauma like a sexual assault will behave": R v D(D) at para. 65. Just like the failure to make a timely complaint, a failure to demonstrate avoidant behaviour or a change in behaviour "must not be the subject of any presumptive adverse inference based upon now rejected stereotypical assumptions of how persons (particularly children) react to acts of sexual abuse" [emphasis in original]: R v D(D) at para. 63.

44Stereotypicality is never a legitimate anchor on which to tie crucial credibility assessments in the context of sexual assaults. And, counter-stereotypicality must never translate to less credibility.…

47There is no juridical foundation upon which a trial judge could correctly conclude that, as a matter of sound legal principle, child sexual assault survivors will demonstrate avoidant behaviour in relation to their sexual assault perpetrators. Or, in particular, that this child in this situation, had she truly been repeatedly sexual victimized by her step-father, would exhibit avoidance of her perpetrator.…

58In other words, absence of avoidant behaviour or a change in behaviour as a generalization is logically irrelevant and as such, cannot form the basis of a credibility assessment leading to reasonable doubt—because we know that all sexual assault victims behave differently. This is all the more so when dealing with child victims who often fail to make early disclosure and may attempt to normalize behaviour for any number of reasons. …

60“As has frequently been noted, speculative myths, stereotypes, and generalized assumptions about sexual assault victims . . . have too often in the past hindered the search for truth and imposed harsh and irrelevant burdens on complainants in prosecutions of sexual offences. See Seaboyer, [infra], at p. 634”: R v Mills, [1999] 3 SCR 668 at para. 119, 1999 637 (SCC). The essence of this dicta is that judges must be hyper-vigilant against the incursion of stereotypical analyses or assumptions into their judicial reasoning, not any less so in cases of sexual assault that rest on the credibility of a child complainant. And to paraphrase one learned author, it would surely add judicial insult to criminal injury to tell a child complainant that their post-victimization behaviour is the sole reason for the abuser’s acquittal…

70The search for avoidant behaviour or a change of behaviour in a sexual assault complainant, particularly a child, is in its essence nothing more than a search for confirmatory evidence, without which a complainant becomes less worthy of belief. The problem with such a search is that there is no reliable support for the presumption that a sexual assault victim will invariably, more often than not, or even to a statistically meaningful degree, display any predictable behaviours following the abuse. Indeed, the converse may well be true: that a vast proportion of child sexual abuse victims are asymptomatic in the post-victimization period both before and after disclosure."

Evidence of TWB

115It is the view of this court that there were many issues with the evidence of TWB which leads this court to question her credibility.

116TWB attempted to downplay her interest in true crime, and specifically that she was reading and studying various sexual assault cases. She did acknowledge in her testimony that she was “learning how the victim felt and understanding how they felt”. She suggested that Ted Bundy was one of the most “brilliant” serial killers and stated that she studied him, yet tried to suggest that when it came to the parts about sexual assault she would skip over those parts. After previously suggesting that she simply skipped over the parts about rape, she then stated:

…I feel like you’re trying to ask me if I’m kind of bullshitting all of this. No, when it comes to me studying and reading up about rape, I’m not studying and reading up about rape, like I said, and nor it is okay afterwards. In fact, afterwards, I still had a huge issue reading it. It’s just I also know that if I wanted to go into criminal defence, that’s the one thing that I can’t exactly skip over. Also, with the amount of rape that is going on in our world, I wanted to read up about it on ways that I could defend myself or what could happen if I was actually truly like kidnapped from somewhere or taken into a brush somewhere and actually raped.

This very statement is contradictory within itself. TWB clearly believed that her interest in serial killers and rapists would put her in a bad light. The fact that TWB attempted to downplay her interest in this regard leaves the court with some concern about the truthfulness of her evidence. This interest, and many of the comments made by the complainant about this interest, including the fact that she was less than candid with the court about this interest, leaves the court with a concern that TWB may have invented these allegations based on things that she had watched and read.

117While the defence is certainly not required to prove motive, where there is evidence of a motive to fabricate, it can lead the court to have concerns about the credibility of a witness. TWB readily acknowledged that she had an interest in helping and supporting ET in the allegations that she was making. Even though TWB claimed to have no relationship with ET and had only met her in passing at a family gathering when they were both children, she tried to suggest to this court that she witnessed Mr. M.W. looking at ET inappropriately. Further, TWB attempted to downplay her knowledge of the allegations that ET had made against Mr. M.W..

118TWB was certain that these sexually inappropriate behaviours started when she was 8 years old. However, when confronted with the fact that Mr. M.W.’s mother did not live in the same building as her father until she was nine, she started to change her evidence. TWB often seemed willing to adjust and change her evidence based on facts that did not line up with her version of events.

119TWB made some telling comments when she testified at the preliminary hearing. At the preliminary hearing, page 124, TWB described what was going on in her life at the time and why she was afraid she would not be believed by her parents:

Because, like I said, my mom and I had a really rocky history in between grade 7 to 10 and when I was in grade nine I was in – I wasn’t the best student and I wasn’t the best daughter. I did lie a lot, not about serious things. Like if I got caught in the lie, I would come clean about it but like I would steal 20 bucks out of her purse, I would take a couple cigarettes. I just wasn’t the best kid and so I had that fear that they wouldn’t believe me. And then not to mention when I hit like 13, 14, that’s when more assaults started going on around the Internet and more true stories about that type of stuff and nine of ten times all you really saw was they didn’t believe me.

120TWB was inconsistent concerning significant and material details, many of which went to the very heart of the alleged behaviour:

a. Whether they were talking or not during the first time this happened - She initially stated that there was no conversation between them, however, later in examination-in chief she added that he said “just sit”. At the preliminary hearing, she stated that they were talking, and even as he pulled her onto his lap, they were still talking.

b. How long he would have his penis between her thighs - She described these incidents as being “not too long”, because she felt he was worried about someone coming downstairs, but then in the next moment estimated that these incidents would be “an hour and a half max maybe”.

c. Where it would occur at her uncle’s house, whether in the bedroom or recreation room - At the preliminary hearing, TWB described one of the first times at her uncle’s house occurring in a recreation room in the basement and then moved to the bedroom. She did not mention anything at the trial about sexually inappropriate behaviour occurring in the recreation room.

d. What she knew about her mother - At trial, she stated that her mother had told her that something had happened to her on the same night that she disclosed. It was suggested to her that she had a sense that something happened to her mother before she was told, to which she disagreed. It was suggested to her that she had said at the preliminary hearing that she knew from the time that she was young that something had gone on with her mom. She disagreed with that suggestion and then said “…younger to me is like now anywhere between the ages of 17 to five”. The preliminary hearing transcript was then put to her wherein she stated that she first suspected something had gone on with her mother at the age of six or seven.

e. What events occurred in her father’s bathroom – TWB stated that there were two occasions where something happened in her father’s bathroom. She said it was “just making out”, which she described as French kissing. At the preliminary hearing, she stated that the first time that he put his fingers inside of her was in the bathroom at her father’s house. She said she was standing on the edge of the bathtub.

f. At trial, TWB added that she was afraid she would not be believed because of her age. She agreed in cross-examination that she had never given this as a reason in her police statement or at the preliminary hearing.

g. What she told her parents about the allegations - At the age of 14, TWB did disclose these allegations. She stated that, again, she was watching Criminal Minds, and she got “triggered”. She testified that she told her mother that she needed to call her father and that she had something to tell them. She stated that she did not give them all of the details of what had occurred but she did tell them that it happened. At the preliminary hearing at page 123, she agreed that she told her parents that Mr. M.W. would grind against her. She stated:

… I at the time did not feel more comfortable going into detail with them about what happened. Still don’t but I was – I knew that I would have to at least tell them a little bit of what happened so they knew that it wasn’t just like an on-the-spur lie or something. So, yes, I did tell them and only told them that M.W. was grinding on me.

h. The story surrounding her contacting Mr. M.W. a few years later to reconnect with that side of the family – At trial, she testified that between the time that she disclosed to her parents, but before going to the police, her mother and father tried to convince her to reconnect with that side of the family. She stated that the only person that she could contact that she knew would answer would be Mr. M.W.. Therefore, she messaged Mr. M.W. and stated that she was told to reconnect with this side of the family and asked if he wanted to go out for coffee or something sometime and catch up. He said yes, that would be great and he would love to, but he would understand if she did not want to. This message was never introduced into evidence at this trial. According to TWB this response surprised her mother so it was never planned further.

At the preliminary hearing, TWB described messaging Mr. M.W. quite differently. She stated that she messaged him as she wanted to reconnect with that side of the family. She said she told her father that she was going to message Mr. M.W. and that her reason for messaging him “was literally just to see if he was still alive and okay and if he’s gotten any healthier because though he is a terrible human for doing this and I think he needs help, he is still my cousin and I still care about his weight and his health because he was on a very dangerous path when I last heard of him with his health and weight”. She said that her father had said it was a good idea to reconnect with the family but specifically stated not with Mr. M.W.. She stated that her mother, on the other hand, did not see any harm with her contacting Mr. M.W..

i. Updates about ET – TWB testified at this trial that her father received information from ET’s father about something that Mr. M.W. allegedly did to ET. This was passed on to TWB by her father on August 12, 2017. In cross-examination, she added that when that call came, she was told that ET went to the police and ET’s father said there’s another girl, because he already knew about TWB’s allegations. She stated that she did not know the details of ET’s complaint, but she knew of the complaint before she went to police. In cross-examination, it was suggested to TWB that her family was keeping her updated on what was happening with ET. She denied this. She said that her mother refused to give her updates, then stated that she did not think her mother was getting updates. She did ask her father if he knew what was happening with ET and he said that he did not. She was then shown her police statement from September 7, 2017 at page 49, which stated:

Well I met [E] a couple times ‘cuz I know it was her ‘cuz my dad told me who it was, um they’d been keeping me updated on the entire thing throughout it unless it was like really important stuff that they didn’t think I should know.

At the preliminary hearing, she stated that she did not know the details of what allegedly happened to ET, but she did know that it only happened once as far as she was told.

j. The McDonald’s interaction - At some point, TWB decided to report to the police. She said that she did not want to report to police, but that it was already set up and she could not get out of the statement. However, then there was an incident at McDonald’s days before she gave her statement to police. She ran into Mr. M.W. and his mother. She stated that this put her on edge and made her agitated. She stated that it was that incident that encouraged her to give her statement to police. On the other hand, at the preliminary hearing, she suggested that this incident made her not want to give a statement. She stated at page 131:

Yes. I made it very clear when I – when this all first happened, I told them that first night instantly like without thinking that, yes, I would give a statement and partake in this. But then I saw them and then it went through my head and I told my mom, I was like I’m not doing the statement anymore, I’m done, I can’t do this, it’s just way too much anxiety and panic. My mom sat there and talked to me and like didn’t convince me or anything, like I don’t want to make it sound like she convinced me to do this but she definitely did help me notice the pros and cons of doing it.

k. Possible influences / discussions with her mother – TWB agreed that she did not tell any of the adults in her life at the time this was happening. It was suggested to her that despite all of these great relationships in her life at the time, no one suspected a thing. She then said that her mother did suspect and had admitted that to TWB and to the Crown and police. Her mother told her that “she had suspicions because of how M.W. would act at the time when I was around and she saw”. She described play wrestling with him and putting his hands in the wrong places. She said her mother told her about these suspicions within the past two years. She said that there was no further discussion with her mother about the case. Then she stated that “I told her that it was at dad’s, nothing else.” She did not agree that her mother asked her whether or not Mr. M.W. did anything to her prior to her disclosure. Later in cross-examination, it was suggested to her that her memory had been influenced by things that she discussed with her mother and was asked whether there was anything else that she could remember discussing with her mother. She said “Probably quite a few things seeing as to how it was making me a pretty big wreck”. She then admitted that her mother suggested to her that there was a time when she did not want to go to her father’s. Later in her cross-examination, she stated that in fact there were times when she did not want to go to her father’s. It was suggested to her that her mother talked to her and reminded her of things that she did not remember. She responded, “Way back when and it’s not exactly like I didn’t remember it. It’s just kinda like she pulled it out of that blur of memories. It’s the same way how I pulled all of this bullshitty memory out of that blur of memories…just for this…”.

121Having fully considered the totality of the evidence, this court is not able to reconcile the various inconsistencies in TWB’s evidence. It is the view of this court that the significant and material inconsistencies in the evidence of TWB make it impossible for this court to be convinced beyond a reasonable doubt that these events happened. While some inconsistencies are to be expected, given the time that has allegedly passed and the age of TWB at the time these alleged events are to have occurred, this court is simply not able to conclude beyond a reasonable doubt that Mr. M.W. acted in the way described.

122Therefore, Mr. M.W. is found not guilty of those offences relating to TWB, specifically, counts 1, 2 and 3

Evidence of ET

123The evidence of ET contained a number of admitted assumptions about events. For example, she appeared to make an assumption about where her father and step mother were when the alleged events occurred. The assumptions, however, appeared to be made based on facts known to her and did not cause this court to have any concern about her testimony.

124There were also some minor issues with her testimony which do not cause this court any concern, such as:

a. Whether they were watching television or a movie in the living room upstairs

b. Whether they were watching television or playing video games in the basement

These differences, or uncertainties, are expected given the time that has passed.

125With respect to the physical impossibility of this event, as submitted by defence counsel, this does cause the court some concern about whether in fact ET is telling the truth. ET described Mr. M.W., as a person over 300 lbs at the time, tightly seated in a rolling desk chair with arms, who is able to grab and hold her, while also pulling down the waistband of his pants to expose his penis, pull her head toward his penis, and insert his penis into her mouth. This court questions whether these events were physically possible as described.

126More significantly, however, her evidence was fraught with critical inconsistencies that went to the very heart of the alleged event, including but not limited to the following:

a. ET testified that she was 6 or 7 when this event happened. ET agreed that at the preliminary hearing she stated that, at the time of this incident, she was either attending school at M[...] or E[...]. She stated that she went to M[...] until the end of grade 2 and then switched to E[...]. She agreed that she started grade 3 at E[...] in 2011. She agreed that if she was attending E[...] at the time of this incident, she could not have been 6 or 7 years old.

b. She believed his penis was erect. When asked about this in cross-examination, she said that his penis was pretty small so it was hard to tell. At this point, it was suggested that the witness was smirking. It was suggested that she told the police that she did not recall whether his penis was hard or soft to which she agreed that was what she told police.

c. With respect to how her mouth came to be on his penis, at trial, she initially said she was not saying anything, but then said she was saying “no”, which she said once. At the preliminary hearing, she agreed that she stated that she also said “this is wrong”, but she then explained at trial that she was not saying this out loud, just thinking it.

d. ET testified at this trial that she asked Mr. M.W. to turn on the light for her, to which he responded “no”. E.T. sat and waited for a couple of minutes. She then asked Mr. M.W. again, to which he responded, no, but said he would if she would touch his penis. In contrast to that, ET agreed that at the preliminary hearing, when asked in cross-examination about these events, she testified that Mr. M.W. said “no” each time she asked him to turn the lights on. In re-examination at the preliminary hearing, she changed her answer to indicate that it was after the first time that she asked when Mr. M.W. said if you touch my penis I will turn the lights on. She agreed that the timing of this comment, as she described it at the preliminary hearing, was different than what she had described at the trial.

e. ET testified in examination in chief that Mr. M.W. pulled her in front of him and pushed her onto her knees. ET then was referred to her statement to the police and in fact took time to read the statement again. After a review, she agreed that she never told the police that she was pushed to the ground or pushed onto her knees.

f. It was suggested to ET that at the preliminary hearing, she said that she was using her hands to push away. She said, no, that she was just using her body force to pull away from him. After being referred to the preliminary hearing transcript, ET agreed that at the preliminary hearing she said she was using her hands on his thighs, pushing away. She then said that her hands were on his thighs but she was using her body force to push away, including her head, neck, and back. She then agreed that she was using her hands to some extent.

g. In her police statement, ET told the police that she was kicking to try to get away from Mr. M.W.. She agreed that she had not said this at the preliminary hearing or at the trial. She then explained that she was kicking with the upper part of her leg.

h. At trial, ET stated that with his left hand, he grabbed the back of the bottom of her head or neck and pushed her head toward his exposed penis. In her statement to police, she agreed that she said he used both hands to grab her head. She agreed she said that and then said “after he pulled me in, yes”. At the preliminary hearing, she agreed that she said his hand stayed on her neck the entire time. She said that she meant the bottom of her head at her neck.

i. ET provided inconsistent evidence about whether Mr. M.W. babysat her after these alleged events. At trial, she said she did not recall whether he babysat after that incident. However, she then estimated that it would be less than five times that he babysat after that incident. In cross-examination, she recalled one time that he babysat with his younger brother present. She agreed that she told the police that Mr. M.W. did not babysit after the date of the allegations. She agreed that she had not mentioned to police that he babysat one time with his brother. She also agreed that at the preliminary hearing, she did not recall any times that he babysat after the allegations.

j. She testified that, right before grade 8 graduation, at the end of June, she told her mother. She agreed that she previously told the police that she told her mother after graduation.

k. She agreed that she told the police a different story about how she told her mother and the circumstances surrounding that. At the preliminary hearing, she remembered something different about how she told her mother and corrected what she told the police.

The court is not able to reconcile the various inconsistencies in ET’s evidence. Many of these inconsistences are directly in relation to the alleged sexual assault, making it impossible for this court to be convinced beyond a reasonable doubt that these events happened. As previously stated, some inconsistencies are to be expected for any witness, and certainly are to be expected where years have passed and the witness was a child at the time of the alleged events. Having considered the totality of the evidence, however, this court is simply not able to conclude beyond a reasonable doubt that Mr. M.W. acted in the way described.

127Therefore, Mr. M.W. is found not guilty of those offences relating to ET, specifically, counts 4, 5, and 6.

NOTE:

As noted in court, on the record, this written Ruling is to be considered the official version and takes precedence over the oral reasons read into the record. If any discrepancies between the oral and written versions it is the official written Ruling that is to be relied upon.

FORM 2

Certificate of Transcript Evidence Act, Subsection 5(2)

I, Cathy Knelsen, certify that this document is a true and accurate transcript of the recording of R. v. M.W. in the Ontario Superior Court of Justice, held at 75 Mulcaster Street, Barrie, Ontario, taken from Recording No. 3811-01-20191003-085852 which have been certified in Form 1.

This certification does not apply to the Reasons for Judgment which were judicially edited.

November 25th, 2019 ________________________

Cathy Knelsen, ACT/CCR

cathytheartist@sympatico.ca