Her Majesty the Queen v. K.P.P., 2019 ONSC 7068

ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR-16-1955

DATE: 2019 11 29

B E T W E E N:

HER MAJESTY THE QUEEN

G. Gill, for the Crown

• and -

K.P.P.

M. Bornfreund, for the Accused

HEARD: April 9, 10, 11, 12, 15, September 9, 10, 11, 12, 13, 2019

REASONS FOR JUDGMENT

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of the Criminal Code, information that may identify the person described in this judgment as the complainant may not be published, broadcasted or transmitted in any manner.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.

FRAGOMENI J.

1The accused, K.P.P., is charged with two counts of sexual assault as follows:

Count 1 – That he, on or between the 1st day of October, 2013 and the 31st day of December, 2014, at the city of Brampton, in the Central West Region did unlawfully commit a sexual assault on [K.P.], contrary to section 271 of the Criminal Code of Canada.

Count 2 – That he, on or between the 1st day of October, 2013 and the 31st day of December, 2014, at the City of Brampton, in the Central West Region, did for a sexual purpose touch [K.P.], a person under the age of sixteen years directly with a part of his body, contrary to section 151 of the Criminal Code of Canada.

2The complainant, K.P. is the accused’s niece. K.P.P. is her father’s brother. K.P.’s date of birth is […], 2001. At the time of these offences she was around thirteen years old.

3K.P. testified at trial. Her videotaped statement to the police made on June 18, 2015 was filed as Exhibit 1(a) with the corresponding transcript filed as Exhibit 1(b).

4At trial and in her videotaped statement K.P. describes two incidents that form the subject matter of the charges before the court.

COUNT 1

5The first incident occurred around the month of October 2013. It was in the evening at about eight or nine o’clock. She recalls it being dark outside. This incident occurred at her father’s home in the plant room. The plant room has all open windows without curtains.

6K.P.’s parents are separated and on this occasion she was visiting with her father. K.P. was making hot chocolate in the kitchen for her sister who was upstairs in her bedroom.

7K.P. was wearing either a tank top and track pants or her basketball shorts. K.P.P. asked her to go into the plant room. After K.P. brought the hot chocolate to her sister upstairs she did go into the plant room. K.P.P. started complimenting her about how pretty she was. He said, “can you give me 5 to 10, 5 to 20, 10 to 20 minutes.” K.P. said no and didn’t know exactly what he meant. K.P.P. then said, “I haven’t had sex in a while and I need sex”.

8K.P.P. continued to ask for 5 minutes. K.P. said no she had to go upstairs to her sister. When she turned K.P.P. grabbed her hands and put her hand behind her back. With the other hand he lifted the left side of her shirt and put her breast out and he sucked on it from the front. Then he went behind her and pulled down her pants. He let go of both of her hands and was ready to pull down his pants. At that moment she kicked him from behind in the groin area and ran out of the room upstairs.

9K.P.’s father returned home shortly after. She didn’t say anything to her father. She explained it this way:

well my thought process was like I don’t want to ruin him and his brother’s relationship. That’s, that was like my main thing. And then like sometimes I don’t, I hate to say it, but my parents I feel like they don’t understand me and they’re too judgemental. So that was my one issue that I had with telling my parents.

That they would think I ask, I asked him to have sex with me

… as my mom likes to say I’m boy crazy. Those are her words.

COUNT 2

10This incident allegedly took place in November 2014 or December 2014, a few weeks before Christmas. Again it was night time. Her father was home and her sister may have been there as well. This incident again took place in her father’s home while K.P. was there visiting. On this occasion she was making tea and bread and was going to bring it to K.P.P. K.P.P. was again in the plant room. As he took a sip of tea and a bite of his bread he told her she’s a beautiful lady and he really needed to have sex. He asked her for 10 to 20 minutes. K.P. said no.

11K.P.P. then put one hand over her mouth and he had put both her hands behind her back with his other hand. He let go of her hands and pulled down her pants. He then bent her over the couch. He unzipped his pants and had his penis out with a condom already on. He inserted his penis inside her vagina. She thinks he heard someone coming down the stairs so he pulled his penis out and removed the condom. She believes the word for the mess made on the couch when he took off his condom is called cum.

12After he finished she pulled up her pants and pulled down her shirt and went upstairs. Her father was in the bedroom but she did not tell him what just happened.

TEXT MESSAGES

13On June 17, 2015, K.P.’s mother took K.P’s phone and unlocked it and saw text messages between K.P. and her 18 year old boyfriend. In her videotaped statement K.P. stated that her mother had no idea that she had a boyfriend. At pages 34 to 36 the following exchange between K.P. and officer Zelinski is informative:

K.P.: …give me your phone. And she had taken my phone and went upstairs with it. Um, then she had unlocked my phone and went through my phone and saw text messages of me and my boyfriend and at that-, she had no idea that I had a boyfriend.

ZELINSKI: Okay.

K.P.: Um, so then she had read through my text messages and what not and started asking me like, who is he? Where does he live? Do you know his name? Um, and then from there she, I, it dawned on me when she, like 20 minutes after she started asking all these questions, it dawned on me that there was one text message there of me telling my boyfriend oh my uncle said to me that um if I have sex with him he’ll give me $100. That was the one text message that was in there that I sent my boyfriend. And it dawned on me that she, would read that and then I figured I would let her know ahead of time before she thinks something different.

ZELINSKI: Okay. Um, and that text message, what’s that from?

19:44 Because you haven’t mentioned that.

K.P.: What do you mean (inaudible)?

ZELINSKI: Oh that you mentioned that your uncle was going to give you $100.

K.P.: Mm-hmm.

ZELINSKI: Where does that fit into all this? How did that come about?

K.P.: With it, how did that come about, about within my text messages to my boyfriend?

ZELINSKI: Well when did it happen or did it happen or did you just tell your boyfriend that and it didn’t happen?

K.P.: Ah I it’s, I told my boyfriend that it didn’t happen.

ZELINSKI: It didn’t happen?

K.P.: It did not happen.

ZELINSKI: Okay.

K.P.: Because there was no chance of it happening because I haven’t gone to my dad’s house in three weekend, three weeks now.

ZELINSKI: Okay.

K.P.: I believe.

ZELINSKI: So why did you tell your boyfriend that your uncle offered you $100?

K.P.: Um, because when my boy, when I had um, so me and my boyfriend were over the phone and we were talking. And then we decided to, I guess come out with things that we have been keeping a secret from each other. So he told me his secrets that he’s been keeping from me. And then I only had one which was that one, and then I told him. And then he said that he thinks I’m lying. There’s no way that an, an uncle would do that to one of their nieces. And them I’m like well I can prove it to you. There’s no reason for me to lie. There’s absolutely no reason.

ZELINSKI: Mm-hmm.

K.P.: And then he’s like okay. And then I’m like would you like me to three-way call him and you mute yourself and you stay silent. And then he’s like okay sure. And then I had, I had told him put yourself on mute now and then he put his self on mute. And then I added my uncle to the call. And then my uncle has, was, was like talking to me. And like saying how he wants me to call him or text him and let him know when I’m going to my dad’s house. That way he can um meet me there. And then talking about how he needs sex again and how he’ll pay me ah money if I do it. And then he asks me if I had a boyfriend, I said, yes. And he’s like, are you and your boyfriend having sex? I’m like, no I wouldn’t do that. Then he’s like, well if you do you know I’m always here for you. I can give you condoms. And if you let me know before you have sex or after you have sex, I can bring you the pregnancy pills. He was basically trying to encourage me to have sex over the phone.

14K.P. went on to say that K.P.P. has offered her money multiple times, $20 to $100. K.P. did confirm that her uncle has never, in fact paid her for sex.

15The June 2015 text messages filed as Exhibit 3 set out the following, in part:

• K.P. is the complainant

• M.K. is her boyfriend

• June 13, 2015

K.P. – Baby bye my uncle said he will give $100 if I give him head

K.P. – Help

K.P. – Hello

M.K. – Yeah? I’m here and he did? What did you have to do to get it?

K.P. – …but I didn’t do anything yet

K.P. – I found someone selling a iPhone 5s do u want it???

M.K. – Selling? Lol baby I don’t have money need to find a job first

K.P. – I was going to buy it for u for your birthday

M.K. – Alright and you better not do that thing your uncle asked you to do to get the money

K.P. – Y would u be mad

M.K. – Hell nah I would be ferious and yes I am here

• June 17, 2015

K.P. –Can you send me that recording please? (Referring to the three way call recorded by M.K.)

• June 18, 2015

K.P. – I need that recording please

K.P. – I need the recording I’m going to tell the police about it please send the recording baby

M.K. – I found it (Referring to the recording)

K.P. – Hi baby it’s me the police would like u to give them a call when u get a chance I have spoken to the police and they would like the recording. Her name is Cst. Zelinski or Cst walker at 2 pm tomorrow or tonight till midnight 905 453 3311 ext 3460. She wants to get recording can u please do this for me baby and I hope that I will get to talk to u soon

K.P. – But they are going to take my phone to use the text messages so I won’t be able to talk to u for a while plus when they do give it back I don’t think mom will give me my phone back so if I don’t talk to you for like 4 months just know that I love u

Three way call with K.P. and M.K.:

16The audio of the four calls was filed as Exhibit 4(a) and the transcript of the four calls was filed as Exhibit 4(b).

17K.P. testified that all four recordings were made on the same day.

18The audio of the recordings was played in Court for K.P. and she was also taken through the transcripts.

19I will not review each of the four recordings in their entirety in these reasons but there are portions that require comment as the interpretation of the inaudible parts differs between K.P.P. and K.P.

Caller # 1 is K.P.

Caller # 2 is K.P.P.

Caller # 3 is M.K.

Track One

Caller # 1 Hello

Caller # 2 Yeah, uh, one or two times, okay I told you I will call you (inaudible). I want like cum. I just tried cumming with you. Just like that. Just like that. No argument. I just tried cumming with you one or two times. I’m not going to pressure you by anything. Just three of them and one or two times, that’s it. Just all over the floor. You understand?

Caller # 1 Yes

Caller # 2 Mh – hmm, but you have to learn to keep your mouth close. Don’t say anything to nobody - the authorities, because you know what? You must (inaudible) you must love money. I’m telling you you must love money (inaudible). Money (inaudible) just take it off, you’re gone and you enjoy yourself. That’s how it is. And at the same time….

Caller # 1 (Clatters) Oh, sorry I dropped something.

Caller # 2 Mh-hmm. At, at the same time, I am the one who (inaudible) same way – Because if I know that like you know you and your boyfriend have sex, I will just try (inaudible) so therefore you cannot get pregnant

Caller # 1 And, and …

Caller # 2 That’s (inaudible) for me. That’s (inaudible for me, you can-, you don’t have to (inaudible) or whether or not or, you know, I have unprotected sex with this man. I will just protect you, but you have to tell me like the day after or the same night. You have to tell me so I can (inaudible) come and give it to you and protect you. That’s how it is.

Caller # 1 And …

Caller # 2 You can’t tell me like two or three days after. You have to tell me like the next morning so I can (inaudible) with you. You understand me?

Caller # 1 yes, but I’m not planning on having sex with him.

Caller # 2 No, you don’t have to. You don’t have to. But you never can tell. One of these days, probably you’re going to need it. (Inaudible.)

Caller # 1 He-, he’s not necessarily like that. We can chill without having sex.

Caller # 2 Okay. (Inaudible) makes you feel (inaudible) whatever. Mh-hmm. Well, you know what (inaudible) according to you, so I can’t tell you what to do, just protect yourself if you know, you know that I protect you from those (inaudible)?

Caller # 1 Pardon?

Caller # 2 Like, you remember those time I mention how I protect you and you see that nothing don’t happen, right?

Caller # 1 Did you hear everything?

Caller # 3 Yeah, I recorded everything.

Caller # 1 Huh, you recorded it?

Track Two

Caller # 3 And you’re what, what’d you say?

Caller # 1 I said when – whenever I’m with my dad, I just tell my dad that I just want to be around him cause I’m all – like whenever my uncle is at my dad’s house, I’m always close to my dad. I don’t leave my dad’s side.

Caller # 3 And why don’t you leave him?

Caller # 1 My dad’s side?

Caller # 3 Mm-hmm

Caller # 1 ‘Cause then my uncle is going to try and talk to me.

Caller # 3 What does he say?

Caller # 1 He just called me over to him.

Caller # 3 And says what?

Caller # 1 I don’t go so I don’t know.

Caller # 1 I’m not stupid I know you’re recording me. Just stop.

Caller # 1 Now that you talked to him can you delete the recording?

Caller # 3 Hmm?

Caller # 1 I said now that you talked to him you can delete the recording

Caller # 3 Now that I talked can I what?

Caller # 1 Delete the recording

Caller # 3 Hmm. Okay

Caller # 1 Don’t lie to me. I know you’re not gonna delete it

Caller # 3 Okay

Caller # 1 Can you delete it?

Track Three

Caller # 3 Baby, explain more the story.

Caller # 1 Stop, stop, stop. What?

Caller # 3 I said I care about you too much and I want to know more about the story. So please explain.

Caller # 1 No, I don’t want to make your life a, a living hell.

Caller # 3 Yeah. If you tell me I won’t [get upset]. If you don’t tell me I will.

Caller # 1 Well, then you’re going to have to get upset.

Caller # 1 It’s not that serious.

Caller # 3 Huh?

Caller # 1 It’s not that serious. Calm down.

Caller # 3 Okay. If it’s not, then tell me the story.

Caller # 1 I just don’t want to.

Caller # 3 Hey, tell me the fucking story.

Caller # 1 I love you that is the story.

Caller # 1 Okay. So the rest of the story basically is that one day we were all sitting down, me, him, my cousin, and then his son. And he says to his son, Oh, why don’t you go fuck, [K.P.]?

Caller # 3 He’s what?

Caller # 1 Sorry. He said to his son-, he ask-, he told his son to go and fuck me ‘cause I was laying upstairs in the bed. He’s like go, go with [K.P.] and go give-, go make her feel nice. So, yeah, he’s trying to make his son have sex too.

Caller # 3 Go make her feel nice?

Caller # 1 Yeah.

Caller # 3 How do you know he was trying to make his son have sex with you? That makes no sense.

Caller # 1 That’s the-, uh, that’s my uncle and stuff. He like (inaudible) and then when-, then, then he brought his son upstairs and then he was you two go have fun. I was like um, watch it, Louis, your son is ten. Cool it.

Caller # 3 What does his, what does his son do?

Caller # 1 No, he didn’t do anything. His son just got on the bed watching TV with me.

Track Four – Caller # 2 KPP is back on line

Caller # 3 … Wha the hell-, what do you want from her?

Caller # 2 (inaudible)

Caller # 3 Yo, (inaudible = my nigger), I swe-, yo, what the fuck’s your name, eh?

Caller # 1 Yes, he hung up

Caller # 3 Oh, I’m gonna kill- oh my god, I’m gonna kill his ass. What the fuck is his number?

Caller # 1 Baby, baby, baby, just leave it. I swear, just leave it.

Caller # 3 [to caller # 2] Eh, eh, eh! You- what do you think you’re doing with [K.P.]?

Caller # 2 hang sup again

Caller # 3 Hello? Hello Mr. (inaudible). Shots to his chest, nigger.

Caller # 1 Did he answer?

Caller # 3 no. He answered and then hanged up.

Caller # 3 Mh-hmm. Shots to your best nigger. For my girl, now you rest nigger. At the end of the day I feel best, nigger. I’ve got big dreams at first light.

Caller # 1 Okay. Are you made at me?

Caller # 3 Oh, no, I’m not made at you

Caller # 1 Are you going to call him back?

Caller # 3 No

Caller # 1 Good.

Cross-Examination of K.P.

20In cross-examination by the defence K.P. confirmed or acknowledged the following or had no recall of details put to her:

• With respect to Track 1 and the discussion about having sex with her boyfriend, K.P. agreed that K.P.P. was telling her to be careful. The following exchange is relevant:

MR. BORNFREUND: Q. “Caller Number 1: Yes, but I’m not planning on having sex with him.”

A. Yes.

Q. Right. And then [K.P.P.], “No, you don’t have to. You don’t have to , but you never can tell.” And you go on to talk back and forth. We’ll go into that in some detail, but I – I would suggest to you what he’s saying is just, just protect yourself and just have protected sex. Is that – is that what he’s saying to you?

A. Yes.

Q. He’s saying be careful…

A. Yes.

Q. … and be safe with [M.K.].

A. Yes.

Q. Even though you say you’re not planning on it, he’s telling you, I suggest, that if you were ever to get in trouble, and what I mean by that is you ever had unprotected sex with [M.K.], then he would bring you a morning after pill.

A. Yes.

Q. Is that what he’s saying?

A. Yes.

• K.P. agreed that the whole point of the three way call with K.P.P. was for her boyfriend, M.K., to speak to him

• When K.P.P. said to M.K. “So you are talking care of your friend” she interpreted that as asking if M.K, was treating her right – not asking about unprotected sex

• K.P. testified that she told M.K. about what happened before the call. The following exchange is relevant:

Q. Okay. So then Caller 3, [M.K.] says: “Hey, hello.” And then [K.P.P.], who is still on the line says, “Hello.” And there’s some hello, hello back and forth. And all of a sudden [M.K.], half way down, Caller 3, says, “What you got it in for?” Which you say, “What are you plans?” Is that Patois, “What ….”

A. No, that’s …

Q. “…you got it in for?” Sorry.

A. That – that’s more of just slang.

Q. And you say that means, “What are your plans?”

A. Yes, what are you plans, what are your intentions, like ….

Q. With respect to what?

A. He is referring to the situation where I told him about what happened between me and [K.P.P.]

Q. Well, hang on a second, because you’re not sure if you actually told him what happened before this, right? You’re not sure what details you provided and what dates you provided those details. Is that …

A. I’m not sure about the dates. I know that he does know about the scenario, which is why this conversation even started, so he could talk to him.

Q. But what did you tell him? Did you tell him that he was bothering you for sex or that he had had sex with you, K.P.P.?

A. I don’t recall the specifics of what I told him.

• She denied she told M.K. to leave it alone because these incidents are all made up

• At no time during the three way call were the incidents discussed:

Q. “Yo, what the fuck’s your name, eh?” That’s not a angry tone of voice?

A. That’s a angry tone. That is not a threat.

Q. Okay. You say, going back to page, “Babe, just leave it. He gets the point. He gots [sic] it. He knows.” Nothing is – you agree with me, absolutely nothing is said about K.P.P. having unwanted sexual contact with you?

A. No.

Q. There’s not a word of it.

A. Not in the conversation, the audio recording.

Q. not in the audio recording. So there are other parts of the telephone call that are not recorded?

A. Oh, no, no, no, no, no. I told him what happened before he wanted to have the conversation, so he knows. [M.K.] knows.

Q. What did you tell him exactly?

A. I don’t remember the specifics.

Q. Are you sure?

A. Yes, I am.

• K.P. agrees that her boyfriend did say “shots to his chest, nigger” as set out in the transcript. K.P. takes this as M.K. just singing a song

• She was in a relationship with M.K. for a little bit over a year. She met him through a friend named Chin, a nickname. M.K. was 18 or 19 years old

• Again she confirms she does not recall what she told M.K.:

Q. Well – and you’re not sure exactly what story you told him either, right, because you don’t know if you told him that your uncle, K.P.P., was trying to sexually assault you or had actually sexually assaulted you

A. I don’t recall what I told him

• K.P. did not recall the date of those calls

• She explained her comment “It’s not that serious. Calm down.” as follows: “It’s not serious enough for him to get to the extent – to the point where he was mad like that.”

• When she said on the audio “My babe is not talking to me and you’re not interesting” she could not recall who she was talking to and does not remember who it was that was not interesting.

• When she said she’s always by her dad’s side when her uncle is there, she meant it like when they are sitting at a table.

• At the time of the track one call K.P. did not know the word “cum”:

Q. Okay. But you agree with me that the word “cum” is reference to ejaculation meant nothing to you at the time, right?

A. No.

Q. You don’t know it?

A. I didn’t know that word, no.

Q. So that wasn’t a word that your uncle used to talk to you, to have a sexual talk with you about him ejaculating. He never said cum, cum, right or cumming or anything like that?

A. I don’t recall.

Q. You don’t recall.

A. I don’t recall.

• In track 1 K.P.P. says:

But you have to learn to keep your mouth close. Don’t say anything to nobody – the authorities, because you know what?

Q. He doesn’t say “the authorities.” He says, “that’s how it is”. Do you agree or you’re not sure?

A. I’m hearing authorities but I’m not sure.

• K.P. agreed that on track 1, K.P.P. does say he will just buy the pill so she couldn’t get pregnant. She had no idea he was referring to a birth control pill or morning after pill. She never discussed that with him

• In track 1 when K.P.P. says “Like, you remember those times until now how I protect you and you see that nothing happens” is a reference that “he used a condom and I’m not pregnant”. The following exchange is relevant on this point:

Q. And you are not happy that it’s being recorded, but did you not stop to consider that he – it’s your opinion that he has just admitted to trying to have sex with you or encouraging you to have sex with him. Isn’t that what you think he was saying to you here?

A. No. He was talking about how I should keep my mouth closed, not to say anything to the authorities. And then he started talking about me and [M.K.] and mentioning getting pregnant and protecting me from that, and referring to how – when he did what he did, I didn’t end up getting pregnant because he took his precautions. That’s what I’m getting form this phone call.

Q. Okay. And when he did what he did, you didn’t get pregnant, and that didn’t involve any pills, right?

A. No.

Q. All right. You weren’t on the birth control pill or you didn’t take the morning after pill?

A. No.

Q. So you think that this call stands for – that he had sex with you with a condom and that’s why you were protected – he being [K.P.P.]. He’s stating, I, I had sex with you, but look, you didn’t get pregnant ‘cause I used a condom.

A. No, he’s not saying it.

Q. He’s not saying it?

A. No, he’s not. He’s not directly saying it. Those aren’t his words.

Q. Didn’t you just tell me, I’m going back to page three, when I read you [K.P.P.] – “Like, you remember those times until now how I protect you …”

A. Yes.

Q. “… and you see that nothing don’t happen, right?”

A. Yes.

Q. You, you say that he’s not talking about …

A. No, he’s …

Q. … that?

A. … talking about what had happened, but he’s referring to the fact that he used a condom and I didn’t need to take a morning after or birth control.

Q. Okay. But those times, in your allegation, was only a single time. There wasn’t many times that he had intercourse with you, it was once, right?

A. Yes. He attempted more than once, but it only happened once.

Q. So why would be “those times”?

A. That’s his words of choice.

Q. Okay. And you maintain that he is – or, or let me finish asking my question. So do you consider this call to have any value in terms of corroborating your allegations against him?

A. Yes, I do.

Q. Right. So why weren’t you happy that it was recorded and could now be taken to the police?

A. It wasn’t necessarily that I wasn’t happy. It was more – it was a shock. He didn’t communicate before I put him on to a three-way call that this is what his intentions were.

Q. You spend the rest of the time, the three calls, asking [M.K.] to delete it. You’re not happy.

A. No.

Q. You want it deleted, the evidence …

A. I wouldn’t ….

Q. …that could help you in court to – that – what he did and, and send him to jail.

A. In that moment in time I wasn’t thinking about that. I was thinking of – when I was in school I let my friends use my phone. I didn’t want that. That kind of stuff is sitting on his phone and other people might use his phone and run into it. That’s not something that I want somebody else to hear and listen to.

Q. You did not want him to have that recording because you were concerned that the story, this fictional story had now taken on a life of its own, right?

A. Incorrect.

Re: The Incidents

• She confirmed that the two incidents took place in the plant room. She does not recall if anything happened in the living room. She does not recall if he ever touched her inappropriately in the living room

• She could not recall ever telling anyone that he put his finger in her vagina

• There was a surveillance camera in her father’s house so if something did happen in the living room there would have been camera footage of it

• K.P. could not recall the following:

Q. You purposely delete text messages from your uncle, okay? Is that right?

A. I don’t recall.

Q. You purposely destroy a note in his own handwriting, making a sexual comment towards you, right?

A. Don’t recall.

Q. Okay. How much did [K.P.P.] offer you for that blow job, was it $100 or was it $20?

A. One hundred.

Q. Did you tell your mother it was 20?

A. Don’t recall.

Q. Might you have told your mother it was 20 after the allegations came out?

A. Don’t recall.

Q. Why did you lie to your mother after the allegation came out?

A. Don’t recall.

• When K.P’s mom seized and accessed her phone on June 18, 2015 K.P. doesn’t recall if her mom knew about her boyfriend:

Q. Did she know about your boyfriend at that time, [M.K.]?

A. Don’t recall.

Q. She didn’t, right?

A. Don’t recall.

Q. You’re hiding him, right …

A. Don’t remember.

Q. …because your mother would flip out if she knew that her 13 year-old daughter was dating an 18 or 19 year-old man, right?

A. Don’t recall.

• K.P. does not recall if she was purposely hiding M.K. from her mother

• At the Preliminary Hearing on November 21, 2016 she could not recall either way if on the second incident she bit his hand. In her June 18, 2015 video statement to police she stated she did bite his hand and on the video indicates the inside of the palm. She testified at this trial she must have bit his hand pretty hard to end the alleged sexual assault

• The plant room has glass doors you can see through

• K.P. does not recall or remember the following as established in cross-examination:

• How she ended up in the plant room – there was one situation where she was bringing him something

• She could not recall the time of day

• whether it was the second incident in which she cried and took a shower

• on the incident she brought K.P.P. tea and bread she could not recall if he took the tea and bread, or drank it and ate it, or whether they talked about anything

• she doesn’t remember how the second incident began

• she doesn’t recall if she was concerned about being pregnant or talking to anyone about this worry

• In her video statement she said that whenever she wanted to go to the mall she would ask for money from her uncle. At trial she said she was referring to only one single time

• The only reason she was at trial to testify was because her mother took her phone and went through her messages and that was the only reason it was reported to the police. She may have reported it a year later or months later, she doesn’t know. She told police in her video statement she was going to wait until she was in her 20s or 30s to report it but she didn’t recall telling the police that.

Re-Examination by the Crown

21When asked about why she went to police:

Q. My friend asked you about the portions of your police statement where you say that you didn’t want to tell anyone because you didn’t want [K.P.P.] to get into trouble. And my friend asked you about your relationship with [K.P.P., and he suggested to you that it was a good relationship, and you indicated that it was not. Did you not want to tell the police – or did you not want [K.P.P.] to get into trouble because what you said happened didn’t happen, or was there another reason?

A. There would’ve been another reason.

Q. Sorry?

A. It would’ve been because of another reason.

Q. And what was that reason?

A. I just don’t remember at the moment.

M.K.

22M.K. is 23 years of age. He is employed as a chef. He cannot recall how long he dated K.P. and when he started dating her. He has never met K.P.P. and had never spoke to him prior to this matter.

23Exhibit 3, the text messages, were reviewed by him.

24With respect to the three way call with K.P.P., K.P. did not know he was recording the calls.

25Prior to these calls there was more conversation between him and K.P. which is not captured on the calls. M.K. said K.P was telling him what was going on with her uncle. M.K. did not provide details of those conversations.

26M.K. recorded track # 2 on a different day but can’t remember when. His plan was to show these to her mother. He does not recall when track # 3 was made vis-à-vis tracks # 1 and 2. He has no idea of the sequence of the four tracks but knows track # 4 is after track # 3.

27M.K. stated that if K.P.P. did not stop asking K.P. for a blow job he was going to tell her family. He was pressing K.P. for more details to show her mother it wasn’t made up.

28At page 23 of track # 4 the reference to “shots to his chest, nigger” is a song by Lil JoJo called Put in the Work. He was just talking or singing to himself but changed some of the words. These were not threats against K.P.P. and even if they were he would never have carried them out. He is not that type of person.

29Although he was upset he was not so upset that he called her mother. He was still pressing K.P. for more information.

30M.K. testified that he knew K.P.’s mother. He had been invited over to their home for dinner and actually met her mother and father.

Cross-Examination of M.K.

31Defence counsel put the actual lyrics of the Lil JoJo song to M.K. and M.K. stated he recognized the song. M.K. acknowledged and confirmed that none of the words captured in the recording that he was singing to himself appear in that song, not even close.

32M.K. stated he met K.P.’s mother and father at a dinner prior to June 17, 2015. He could not recall her mother’s name, what street the house was on or what the house looked like.

33M.K. and K.P. both spoke to her mother about K.P. dating him. Her mother said it was okay for M.K. to date her 13 year old daughter. He told K.P. that he was 18 years old. M.K. could not remember how he asked her mother about dating K.P.

34In his statement to the police M.K. indicated that of the four recordings one should’ve been with K.P.’s cousin Antoinette. He recorded that one but he doesn’t have it and has no idea where it is.

35The purpose of the three way call was to get K.P.P. to admit that he was sexually assaulting K.P. Although K.P. told M.K. what her uncle was doing he didn’t believe her fully.

36In re-examination he said he changed the words in the Lil JoJo song.

37With respect to the Antoinette call recording it was not sent to K.P’s mother. It was deleted by mistake but he can’t remember when.

N.P.

38N.P. is K.P’s mother. At the relevant time period, 2014 and 2015, K.P. lived with her. D.P., K.P’s father lived in Brampton and K.P. would visit him on occasion.

39N.P. testified that K.P. had not been taking care of her household responsibilities so she took K.P.’s phone. N.P. uncovered some disturbing messages. She saw conversations between K.P. and M.K. about K.P.’s uncle sexually assaulting her. N.P. was questioning K.P. while reading the messages. K.P.’s behaviour had been quite upside down. K.P. was acting out a bit and having an emotional meltdown – when she would ask K.P. to do the simplest things. This behaviour dragged on for well over a year.

40N.P. was reading the messages and having a lengthy conversation with her. N.P. only learned on this day while she was reading the messages that M.K. was K.P.’s boyfriend. N.P. had no knowledge of M.K. prior to this day.

41N.P. called K.P.’s father and he eventually came over. N.P. took a screen shot of the conversation between K.P. and M.K. and texted them to her father.

42D.P. talked to K.P. alone for a bit and then they all talked together. K.P. was crying and looked scared.

43Exhibit 3, the test messages filed at trial, are some of the messages she was reading that day but there were many, many other messages we don’t have and are not filed at this trial.

Cross-Examination

44N.P. was reading the messages and talking to K.P. at the same time. K.P. told her verbally her uncle was sexually assaulting her.

45N.P. testified that at no time did she ever have dinner with M.K. She never had and never will have dinner with M.K. K.P. told her mother she met M.K. on Instagram and has known him for three weeks. Her mother didn’t want K.P. on Instagram at her age.

46N.P. testified that K.P. told her K.P.P. inserted his finger in her vagina on the first occasion.

47N.P. acknowledged that K.P. was starving for attention and not getting the right attention. She has always wanted her father’s attention.

48With respect to the shower incident K.P. told her mother K.P.P. knocked on the door first.

49K.P. knew there were surveillance cameras in the house.

Cst. Zelinski

50The surveillance system was installed November 2013. The monitor was in D.P.’s office at the house. There was nothing on the system at all when it was checked on April 5, 2016 by the officer.

Defence

K.P.P.

51K.P.P. was born on October 17, 1977 in Jamaica. He moved to Canada in September 2009. While in Jamaica he worked as a police officer for five years. In Canada he works as an upholsterer. D.P. is K.P.P.’s half brother as they share fathers.

52K.P.P. visits with D.P. and stays at his home. He stays in the plant room and sleeps on a sofa. His son either stays upstairs or on the couch in the living room.

53He stated he had a good relationship with his niece K.P. They talked, played games and would go to the movies.

54He testified that he never asked K.P. for sex, he never asked her for oral sex and he never touched her breasts. He never inserted his finger in her vagina. He never inserted his penis into her vagina.

55The telephone recordings were reviewed with him. K.P. called him and told him she heard about the pill, Plan B, Plan A and could he get it for her. K.P. told him she had a boyfriend. He spoke to her about safe sex. She was only a teenager and he wanted to protect her.

56He had protected her on other matters as well. One time at her father’s home she used his phone and he noticed some texts on his phone she sent. He did not tell her father. On another occasion he saw K.P. at the movies kissing a teenage boy. She begged him not to tell her father and he did not.

57In summary K.P.P. denied all of the allegations made by K.P.

Cross-Examination

58In cross-examination K.P.P. confirmed or acknowledged the following:

• K.P. called him one day and said she needed a Plan B or Plan A pill but never told him why

• He assumed she was doing something sexually inappropriate

• K.P. told him she had a boyfriend

• She asked him for $100 for her graduation

• K.P. was young but he didn’t know her age

• K.P.P. told K.P. he would help her a couple of times but she could not take it for granted

• On one occasion she took his phone and texted a boy. She asked him not to tell her father. She didn’t use her own phone as her mother checks it.

• He saw her kissing a boy at the Yorkdale Mall. She begged him not to tell her parents

• He didn’t tell her parents on those two occasions, the texting a boy on his phone and the kissing a boy at the mall

• He told K.P. he was not going to help her anymore

• He never did tell K.P. to talk to her mother about Plan A or Plan B. He never did ask her what was going on but did try to talk to her about being careful

59The Crown reviewed the audio recordings with K.P.P. K.P.P. provided the corrections or explanations to what is captured in the transcript. Page 2 of 25 – “Just all over the floor” is wrong. He is saying “just allow the flow”. He is telling her to calm down and tell him the truth. She’s pretending she knows a lot of things and he’s telling her to calm down so he can help her and protect her.

60“I just tried cumming with you” is wrong. He is telling her he is coming to bring her the pill. He’s speaking English but with a heavy accent.

61“Authorities” is incorrect. What he is in fact saying is “that’s how it is”. He doesn’t want her to tell her parents he’s helping her as they will be mad at him. He agrees that it probably would have been better to tell her parents what was going on, but she begged him not to.

62He tried to contact her father on two occasions but never connected.

63“You must have money” – he’s telling her to save money so she will have it for the future.

64In this call he is not offering her money nor is K.P. asking for money.

65Page 3 – “Protection” is not a reference to using a condom on the alleged second incident.

66He never advised K.P. to use a condom if she was going to have sex. He never thought of telling her that. They only talked about the pills.

67The reference to cum or cumming in the transcript is wrong.

Track 4

68Page 13 – “Just work with me”. This was in reference to her needing to tell him the truth and that he’s not going to assist her all the time. She can’t take it for granted that he will.

69M.K. sounded angry on the phone but K.P.P. doesn’t know why he was angry. K.P.P. was not nervous someone was listening in on his call with K.P. as he wasn’t saying anything inappropriately.

70K.P.P. hung up on M.K. because M.K. was being rude to him.

71He denies all of K.P.’s allegations.

Position of the Defence

72The defence submits that the complainant, K.P., was dishonest and reckless with the truth. This, combined with the loss and destruction of evidence, clearly establishes that the Crown has failed to meet her onus of proving these allegations beyond a reasonable doubt.

73K.P. had a strong motive to lie to draw attention away from her relationship with an older boyfriend that she didn’t want her parents to know about.

74K.P. is also providing false details about her uncle to placate her boyfriend, M.K.

75With respect to the audio recordings of the calls, the defence submits that they are incomplete. They have been tampered with by M.K. The recordings may be suspicious but they do not provide compelling evidence to support K.P.’s allegations.

76The Crown had indicated on her witness list that she would call Chanel, Monique and Antoinette to support K.P.’s testimony. None of those witnesses were called. There is no burden on the defence to prove anything or call witnesses. The burden is always on the Crown. The absence of this evidence should concern the court.

77K.P. acknowledges to M.K. on the calls that “it’s not that serious”. Despite the fact that the three way call was meant to see if K.P.P. would admit to his wrongdoing K.P. urges M.K. to delete the recording.

78M.K. is clearly not a truthful witness. His testimony was impeached by the testimony of N.P., K.P.’s mother. He lied about the Lil JoJo song.

79N.P.’s testimony establishes significant inconsistencies in what K.P. told her and what K.P. said at the preliminary hearing, to the police and here at trial.

80The defence submits that the testimony of K.P.P. is credible. The transcript inaccuracies were dealt with by him. He said the words so he should know what he said and what he meant. If there is any doubt on what is being said the court can’t use it as evidence in support of the Crown’s position.

81Finally the defence submits that even if the court rejects the testimony of K.P.P., there is insufficient evidence called by the Crown to prove these charges beyond a reasonable doubt.

Position of the Crown

82The Crown submits that the court can reject the testimony of K.P.P. based on the evidence as a whole, even if there are no inconsistencies in his testimony.

83The Crown submits further that the audio recordings were not tampered with. The Crown acknowledges that the recordings are not complete but that should not concern the court. It would have been preferable to have a more complete recording but there was no sinister motive on the part of K.P. or M.K.

84The three way call was designed only to show her boyfriend that she was telling him the truth. M.K. records it to confirm what’s happening to K.P.

85The Crown submits further that even if I can’t decide what the audio or transcript say, K.P.P.’s explanations about what is being said makes no sense. He struggled and seemed confused when providing his explanations at trial.

86The Crown asserts that M.K. is a credible witness. He is credible about his role in relation to the three way call.

87With respect to K.P.’s evidence the Crown argues that she was credible and reliable. There were no significant inconsistencies considering her age at the time of these alleged offences.

88Her statement to the police was detailed. The Facebook texts and audio of the three way call did support her testimony. The rich detail she provides cannot be made up.

Analysis and Conclusion

89It is always useful and informative to review the fundamental principles that govern and guide the court in its analysis and determination of whether the Crown has proven these charges beyond a reasonable doubt.

Presumption of Innocence

90K.P.P. is presumed to be innocent, unless and until Crown counsel proves his guilt beyond a reasonable doubt.

Burden of Proof

91The burden of proof rests with the Crown from start to finish and that obligation never shifts. The accused does not have to present evidence or prove anything.

Reasonable Doubt

92Reasonable doubt is a doubt that logically arises from the evidence or the absence of evidence. This requirement applies to each and every essential element of the offence but not to individual items of evidence introduced at trial.

Motive

93In R. v. M.S., 2019 ONCA 869, a recent decision of our Court of Appeal released November 5, 2019, the court dealt with the issue of a complainant’s motive at paras. 13 and 14 as follows:

13The trial judge erred by using the evidence to enhance his assessment of the complainant’s credibility. He fell into the error articulated in R. v. Bartholomew, 2019 ONCA 377, at para. 23 and “transformed” the absence of a proven motive to fabricate into a proven lack of motive. A proven absence of motive may provide a “platform to assert that the complainant must be telling the truth”: Bartholomew, at para. 21. But, the absence of evidence of motive does not mean that the complainant must be telling the truth.

14The danger in relying on this factor to bolster the complainant’s credibility is that an absence of proved motive is often unreliable. This court has raised this concern repeatedly:

There are simply too many reasons why a person might not tell the truth, most of which will be unknown except to the person her/himself, to use it as a foundation to enhance the witness’ credibility. Consequently, [a motive to fabricate] is an unhelpful factor in assessing credibility: R. v. Sanchez, 2017 ONCA 994, at para. 25, citing L.(L.) at para. 44.

94In R v. Sanchez, 2017 ONCA 994 the Court noted the following at para. 25:

25It is recognized that whether a person does or does not have a motive to lie is not generally a reliable basis upon which to assess credibility. Certainly the absence of any apparent motive to lie is an unreliable marker of credibility. There are simply too many reasons why a person might not tell the truth, most of which will be unknown except to the person her/himself, to use it as a foundation to enhance the witness’ credibility. Consequently, it is generally an unhelpful factor in assessing credibility: R. v. L. (L.) (2009), 96 O.R. (3d) 412 (C.A.), 2009 ONCA 413, at para. 44.

Complainant’s Avoidance of K.P.P.

95In A.R.J.D. v. Her Majesty the Queen, 2018 SCC 6, [2018] 1 S.C.R. 218, the Supreme Court of Canada stated the following at para. 2:

2We would dismiss, substantially for the reasons of the majority of the Court of Appeal. In considering the lack of evidence of the complainant’s avoidance of the appellant, the trial judge committed the very error he had earlier in his reasons instructed himself against: he judged the complainant’s credibility based solely on the correspondence between her behaviour and the expected behaviour of the stereotypical victim of sexual assault. This constituted an error of law. We do not read the majority reasons, including paras. 39 and 41 highlighted by the defence, as suggesting otherwise.

96The Alberta Court of Appeal in R. v. A.R.D., 2017 ABCA 237, stated the following in its decision that was endorsed by the SCC:

41First, there is a troubling circularity about the sought for avoidant behaviour, in that “avoidance” defines an interactional aspect of this particular interpersonal relationship which could be equally attributable to both the respondent and the complainant, or to neither of them. Its presence or absence signifies nothing in particular in relation to the credibility of the complainant about the alleged sexual assaults.

42Second, 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.

50The Supreme Court of Canada, and this Court, have held that relying on myths and stereotypes in assessing the credibility of sexual assault complainants invokes impermissible reasoning that is often, if not always, an error of law. This Court recently said in R v ADG, 2015 ABCA 149 at para 33:

No inference should be drawn regarding a complainant’s credibility that is based on assumptions about how a victim of sexual assault is supposed to react to the assault. The Supreme Court of Canada has made clear that sexual assault cases should be decided “without resort to folk tales about how abuse victims are expected by people who have never suffered abuse to react to the trauma”: R v Shearing, 2002 SCC 58 at para 121, [2002] 3 SCR 33. There is no inviolable rule on how victims of sexual assault will behave: R v D(D), 2000 SCC 43 at para [65], [2000] 2 SCR 275. It cannot be assumed that sexual assault victims will react to abuse in any objectively identifiable way. Findings of credibility should not be affected by the timing of disclosure alone – that is, affected by a comparison between a complainant’s disclosure and the disclosure of a hypothetical ‘objectively reasonable’ victim.

51R v ADG concerned the timing of disclosure of the allegations by a complainant. The doctrine of “recent complaint” has long been determined to be based upon an impermissible stereotype that victims are likely to disclose abuse immediately; no presumptive adverse inference may be drawn against a complainant who does not make such a disclosure immediately after being abused (section 275 of the Criminal Code). Similarly, corroboration is not required to prove sexual offences (section 274), evidence of sexual reputation of a complainant is not permitted (section 277), and there are extensive rules and protocols related to the disclosure and admissibility of evidence related to a complainant’s sexual activity and medical/therapeutic records (sections 276-276.5, 278.1-278.91). Consent has also been strictly defined (sections 273.1 and 273.2); and the legislation makes clear that spouses may be charged with sexual offences against their husband or wife (section 278). All of these codifications are aimed at, inter alia, prohibiting impermissible judicial reasoning based on myths and stereotypes about sexual assault victims and their behaviours.

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. This record speaks to those reasons—the complainant resided in the home of the alleged perpetrator and in her words, it “changes everything . . . [w]hen people know”. While it might appear logical to suggest that a victim of sexual assault will choose to run away or distance themselves from an assailant, relying on failure to do so, particularly when dealing with a child complainant, is simply incorrect.

97In this case KPP testified so the W.D. analysis is required:

1If I believe KPP’s evidence he did not commit the offence(s) charged, I must find him not guilty.

2If, after a careful consideration of all the evidence, I am unable to decide whom to believe, I must find him not guilty (because Crown counsel would have failed to prove his guilt beyond a reasonable doubt).

3Even if I do not believe his evidence, if it leaves me with a reasonable doubt about his guilt, I must find him not guilty (of that offence).

4Even if KPP’s evidence does not leave me with a reasonable doubt of his guilt, I may convict him only if the rest of the evidence that I do accept proves his guilt (of it) beyond a reasonable doubt.

Absence of Evidence

98There is no doubt that there is an absence of evidence that causes me concern. Although D.P.’s residence had surveillance cameras in the home at the relevant time the issue of whether anything was on these cameras was not considered until April 2016. There is no way of knowing whether there was anything on the cameras at the time that could have been secured and provided for the assistance of the court.

99The audio recordings were incomplete. There were discussions between K.P. and M.K. prior to the call not captured. M.K. testified there was a recording of a call with K.P.’s cousin, Antoinette, but somehow it was deleted and unattainable. There is a discrepancy between K.P. and M.K. as to whether the four tracks are recorded all on one day or different days.

100The Facebook text messages are incomplete. What was filed with the court is incomplete. As a result there may be a context to what was going on in those messages that are missing. K.P.’s mother testified that what was filed in court is not complete. She testified that she was reading many more messages not filed as part of the trial exhibit.

101Finally, although the Crown has the discretion on which witnesses she needs to call to prove the case, the absence of Chanel, Monique and Antoinette is of concern to the court. The law is clear that corroboration is no longer required, however, the absence of those witnesses is a factor that the court can consider in its assessment of reasonable doubt.

M.K.’s Testimony

102I do not find that M.K. was a credible witness. Firstly he was totally impeached as it related to the Lil JoJo song he says he was singing on the audio recording. The Crown argues he changed some of the words and M.K. testified that he did. However, in cross-examination after being confronted with the actual words of the song, M.K. had no option but to acknowledge none of the words he was singing appear in the lyrics, not even close.

103Further the testimony of K.P.’s mother clearly contradicts M.K.’s testimony about his relationship with K.P. Contrary to what M.K. said, M.K. never met K.P.’s parents or had dinner with them prior to these incidents. K.P.’s mother found out about M.K. while she was reading the Facebook messages. She was never asked if it was okay for him to date her daughter.

104Both M.K. and K.P. were hiding this relationship from her parents. It is a reasonable inference that they were doing so because she was thirteen and he was around eighteen.

105M.K. testified that K.P. had verbally told him what her uncle was doing to her. He also had the Facebook message that her uncle offered her $100 for head. M.K. testified that his intention was to tell her mother. It is difficult to understand, then, why he needs more information before he goes to her mother. What was he waiting for? He apparently would have had a great deal of information that would have prompted him to go to her mother.

106The reason he did not go to her mother relates to the fact that her mother didn’t even know who he was. She had no idea M.K. was K.P.’s boyfriend.

107Further we have no clear idea what K.P. told M.K. K.P. does not remember if she told M.K. that her uncle was sexually assaulting her or telling K.P. that he would give her $100 for head. It is difficult to accept that K.P. cannot remember what she told M.K. in that regard.

108In summary I find that M.K. is not a credible or reliable witness.

N.P.

109I find that N.P. was a credible witness. I accept her evidence that she had no idea that K.P. had a boyfriend, until she was reading the messages on her phone.

110I also accept her evidence that the messages filed at the trial are incomplete. There were many, many more not filed with the court.

111N.P. testified that while she was reading the messages she was asking K.P. questions and K.P. was telling her about what was happening with K.P.P. N.P. did not take notes of that conversation.

112One significant detail she said K.P. told her was that K.P.P. inserted his finger in her vagina. This detail was not provided by K.P. in any of her testimony.

The Three Way Call Audio Recordings

113The Crown submits that those recordings clearly point to an admission or acknowledgement that K.P.P. was sexually assaulting K.P. It confirms that he ejaculated when the transcript sets out the words cum or cumming. The difficulty with this assertion is that K.P.P. does not agree with the transcript’s version of what he said. Both K.P. and K.P.P. hear something different.

K.P.P.’s Testimony

114It is difficult to accept all of K.P.P.’s testimony. The idea that as her uncle, he feels he has a responsibility to provide her with advice relating to safe sex seems strange. He is not particularly close to K.P. The evidence does not demonstrate they have developed a trust with each other or confidences with each other.

115K.P.P. maintained that he was going to talk to her father about it but the evidence showed he made very little effort in that regard. He tried to text him a couple of times. Why didn’t he just go to K.P.’s father’s house and talk to him face to face if he was so concerned?

116K.P.P. testified that what he meant by protecting her on two occasions referred to the incidents of K.P. using his phone to text a boy and seeing her in the mall kissing a boy. K.P. begged him not to tell her parents and he didn’t. I cannot say with certainty that this explanation is true, however, it is possible and leaves me in doubt on that area of the evidence.

117Exhibit 4(a) is the audio recordings of the three way call. Exhibit 4(b) is the transcript of the audio recordings. If there is any difference between the recordings and the transcript the Court must rely on what is heard on the recording.

118I have again listened to a portion of track one and specifically the start of the conversation between K.P.P. and K.P. Having done so and having listened again to what K.P.P. is saying I am satisfied the corrections he makes are accurate. I note the following:

‒ “just all over the floor” is wrong – he is saying “just allow the flow”

‒ “I just tried cumming with you” is wrong. He is saying “I just carry come and give you”

‒ “authorities” is wrong – he is saying “that’s how it is”

119I accept K.P.P’s corrections. Further any explanations he provided to what he is saying are reasonable and considering the totality of the evidence at trial, those explanations cannot be rejected.

120It is important to recall that K.P. herself cannot recall if she told her boyfriend M.K. that K.P.P. was in fact sexually assaulting her or was asking her to give him head for $100. This is important in light of the incomplete Facebook messages filed at trial. In that first message to K.P. texts that her uncle would give her $100 if she gave him head. It is within this context that much of K.P.P.’s testimony is to be assessed.

121This contextual framework is also important when I look at the three way call. Again these recordings are incomplete. There was a conversation between K.P. and M.K. not captured in the recordings. There was a conversation between M.K. and Antoinette recorded but M.K. deleted that recording and it was not available for the trial.

122The surveillance footage, it if even existed, was not available.

123The Facebook messages are incomplete and according to K.P.’s mother there were many, many other messages that were on the phone but not encompassed within the trial exhibit. I cannot speculate as to what those many other messages were, however, the absence of this evidence causes me to pause.

124The first step in the W.D. analysis is to determine if I believe the accused in that he did not sexually assault K.P. In considering the totality of the evidence I cannot say with any certainty that I believe the accused on all aspects of his testimony.

125However, and again considering the evidence or the absence of evidence, when I consider the second step in the W.D. analysis I am unable to resolve the conflict. The burden is on the Crown. This is not a credibility contest.

126Further, at the very least, I find the testimony of the accused when considered within the context of all of the evidence leaves me with a reasonable doubt. I am not sure that he committed these offences and that is the very essence of reasonable doubt.

127When considering the principle of proof beyond a reasonable doubt I instruct myself that such proof is based on the totality of the evidence. The court is not to examine each item of evidence within that standard. It is the totality of the evidence or absence of evidence that results in my conclusion that the Crown has not proven these charges beyond a reasonable doubt.

128The testimony of K.P. is problematic. This is not a credibility contest between K.P. and K.P.P. The burden is always on the Crown. The court does not decide the case by choosing which version sounds better. It is the Crown’s responsibility to prove each count on a standard of proof beyond a reasonable doubt.

129The Crown submits that K.P.’s testimony carries a body of truthfulness because it contains rich detail. I cannot accept, in the circumstances of this case, that the detail provided by K.P. equates to truthfulness or reliability. There were inconsistencies in her testimony. She told her mother that her uncle had inserted his finger in her vagina on the first incident. That detail does not appear in her police statement, preliminary hearing testimony or her trial testimony.

130She stated that she told her boyfriend, prior to the three way call, what her uncle had been doing with respect to the sexual assaults. However, in cross-examination at trial she stated she could not remember what she told M.K. She could not remember if she told him her uncle had sexually assaulted her or was asking for sex for money as set out in the Facebook messages of June 13, 2015.

131The overall recall of many details by K.P. was weak. She answered a multitude of questions with “I don’t recall” or “I don’t remember”.

132The three way call was set up so that K.P. and M.K. could speak to K.P.P. with a hope that he would confirm or acknowledge his wrongdoing with respect to K.P. Although M.K. was recording the calls he did not tell K.P. he was doing so. Once K.P. found out he was recording the calls K.P. asked him and urged him to delete the recordings. This request to delete the recordings is at odds with the intention of the three way calls, that is to obtain an admission of wrongdoing by her uncle. Why would she ask M.K. to delete the very recordings that could possibly assist her in proving to M.K. that what her uncle was doing was in fact the case. K.P.’s explanation for why she wanted the recordings deleted is not one that I can accept.

133It is also troubling that K.P. would tell M.K. in the call that “it is not that serious”. If in fact she did tell M.K. that her uncle had sexually assaulted her twice that flies in the face of her statement to M.K. that it was not that serious. Further, and as I indicated earlier, if in fact M.K. had those details prior to the three way call and having received the Facebook message that her uncle would pay her $100 for head, M.K. would have had plenty of detail to go to her mother, as was his stated intention. A reasonable inference in light of this testimony is that M.K. was not in receipt of the details as suggested by M.K. and K.P. The three way call recordings are not dated so it is difficult to fix the calls within the timeline suggested by K.P. and within the timeline of the Facebook messages.

134It is not necessary for me to consider whether K.P. had a motive to lie for the reasons set out by the defence. M.S and Sanchez set out the evidence of a motive may not be helpful. In the circumstances of this case it is not necessary to consider and analyse whether K.P. had a motive to lie and what that motive might have been.

135I am not satisfied that the Crown has proven these charges beyond a reasonable doubt.

Disposition

136There will be findings of not guilty on both counts 1 and 2.

Fragomeni J.