Her Majesty the Queen v. A. B. Sazal, 2019 ONSC 964

ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR-18-10000025-0000

DATE: 20190208

BETWEEN:

HER MAJESTY THE QUEEN

– and –

A. B. SAZAL

Defendant

Nicole Bailey, for the Crown

Leah Shafran, for the Defendant

HEARD: January 28 - Feb 04, 2019

PUBLICATION BAN

An Order has been made pursuant to s. 486.4 of the Criminal Code directing that the identity of the complainant and any information that could disclose such identity shall not be published or broadcast or transmitted in any way.

G. Roberts J.

I: Overview

1CA described being sexually assaulted on two occasions by AB Sazal in her home. The second time occurred around 4 p.m. on November 1, 2016. CA told her mother immediately after, and the family went to the police.

2Mr. Sazal testified and vehemently denied ever touching CA in an inappropriate fashion or ever even being alone with her. In addition, he testified that he was away from CA’s home (he rented a room in the basement) between about 11 a.m. and 10 p.m. on November 1, 2016.

3There is no question that the conduct CA describes in this case amounts to sexual assault and sexual interference. Nor is there any question of identity. The issue in this case is whether the Crown has proven beyond a reasonable doubt that Mr. Sazal did what CA alleges he did.

II: The Evidence

(i) CA’s mother - SA

4SA was born in Bangladesh. She married her husband, AM, in 2000 in Bangladesh. He was also from Bangladesh but immigrated to Canada in 1995. After they were married, AM sponsored SA to come to Canada, which she did in 2002. SA became a Canadian citizen in 2007. The couple have one child, CA, who was born in 2005 (on […]). They speak Bengali at home to each other and to CA.

5In November of 2016, CA was 11 years old and in grade 6. She lived with her mother, SA, and her father, AM, in a house at 108 DR in Toronto. The family bought the house in October of 2012, and moved in at the end of December 2012. It had two stories and a basement. The family rented out the top floor, which had 3 bedrooms and a kitchen, and a room in the basement. The family lived on the main floor. CA and her mother shared a room, bed and closet, and her father slept in a room in the basement.

6The accused, AB Sazal rented the other bedroom in the basement, from about January of 2013 until November 1, 2016. Mr. Sazal worked in a restaurant six days a week so mostly ate there. When he did not eat at work, he would come to the staircase and call out and SA would give him food, which he took back down to the basement. He never ate with the family. In November of 2016, the basement had two bedrooms, a partial kitchen, with a fridge and sink, a bathroom and a furnace room. Mr. Sazal used the bathroom in the basement. He did not come upstairs, except occasionally to collect food. The bathroom and space on the main floor was for the family only.

7AM worked as a waiter in a restaurant, usually doing the afternoon shift from about 3 - 11 p.m. Since the summer of 2015, when CA was 10, SA worked in a bakery during the day. CA would go to a babysitter after school, and SA would pick her up from the babysitter. In summer, AM would drop CA at the babysitter’s on his way to work, and SA would pick CA up after she finished work.

8Sometimes SA and CA would take naps. In summer, if it was hot, they would nap in AM’s bedroom in the basement, because it was cooler. SA would not do that if Mr. Sazal was home though. If she knew he was in the basement, she would not go down. CA would not go to the basement alone.

9SA testified that on Tuesday, November 1, 2016, SA picked CA up from her after-school babysitter and they walked home. SA then went to the bank, leaving CA at home so she could take a shower. SA normally never left CA alone, but she had an emergency to deal with, and did not want to make CA walk to the bank with her after just having walked home after a long day at school and the babysitter. SA was gone for about 25 minutes. CA was in the shower when she got home. When CA finished getting dressed, she appeared in the kitchen and told SA that she had something “important” to tell her: She pulled down her pants a little and pointed at the private place and said Mr. Sazal entered his penis there. CA was teary and looked scared. She said Mr. Sazal called “Auntie, Auntie” from the staircase. When CA said SA was not there, Mr. Sazal entered the main floor. CA tried to hide, but Mr. Sazal found her. She just had a towel on as she was about to shower. Mr. Sazal kissed her breasts and lips. He tried to put his tongue in her mouth, but she kept her mouth closed. He squeezed her so tight his nails cut into her back and pinched her. CA spoke in Bengali when she described this to her mother, except she used the English words “important”, “penis”, “kiss” and “boob”. CA also told her mother that something similar happened in the basement on an earlier occasion. SA noticed that CA left her towel hanging on a hanger hanging from a hook in the closet in their shared bedroom. She could see it was wet.

10SA started crying, but made herself stop as she was worried it would make CA more upset and scared. She told herself to be strong and tried to stay as normal as possible. She gave CA a meal and called her husband at work and asked him to come home. He asked why and she explained that there had been an incident with CA and Mr. Sazal. AM asked if it was sexual and SA said yes. He told her to call the police but she did not want to because then the whole community would see the police come to their home and would know what happened. AM called back and told SA that he was coming home and to get ready to go to the police station. He parked across the street from the home and called CA and SA to come out. They drove to the police station. They did not talk in the car about what had happened other than her husband telling CA to tell the truth to police. They waited for a detective and then each gave a video-taped statement. Later that night, the police seized the towel that CA had been using at the time of the incident.

11SA did not see Mr. Sazal at all on November 1, 2016.

12After CA’s disclosure November 1, 2016, SA never spoke to CA about the details of her allegations again. Up until that time, SA had never taught CA the Bengali names for her private body parts, or discussed sex with her.

13SA met Mr. Sazal once before he moved into their home through her husband. She understood that he was from the same area of Bangladesh as her husband. They were friendly with Mr. Sazal, and he addressed them as “Auntie” and “Uncle”, and CA as “brother”, but it was a landlord/tenant relationship. They never spent time with him inside or outside their home. He never babysat CA.

14The family never had any problems with Mr. Sazal.

15SA denied having an affair with Mr. Sazal.

(ii) The complainant - CA

16With the consent of the defence, the video-taped statement that CA gave to police on the night of November 1-2, 2016, was played in court and admitted for the truth of its contents pursuant to s.715.1 of the Criminal Code. CA also provided some additional evidence in chief and then was cross-examined.

17On November 1, 2016, CA was 11 years old and in grade 6. She went to school that day and her babysitter picked her up from school. Her mother picked her up from the babysitter and they walked home together. Her mother dropped her off at home. CA was pretty sure her mother had to go to the bank. CA changed out of her clothes to take a shower, which she used to do every day after school. As she was about to get into the shower, she heard Mr. Sazal, the basement tenant, call out to her mother that he wanted food. CA told him her mother was not home. CA then heard Mr. Sazal come upstairs.

18Mr. Sazal called CA and asked her to come to him and give him a hug. She said no. She was scared. He dragged her to the centre of the room, hugged her and started kissing her “boobs”. She was only wearing a towel, and Mr. Sazal took it off, and put it on a chair. CA identified exhibit 2 as a photograph of her towel. He tried to put his tongue in her mouth but CA kept her mouth closed. He then took out his penis and “stuck it in” or “onto” her “private part” (she pointed to her pubic area in the video-statement). She was standing up. Mr. Sazal took his penis out when he heard something outside and went back downstairs. Watery stuff came out of his penis which ran down her leg. Mr. Sazal told her not to tell her mother, or anyone. CA estimated that the assault lasted about ten minutes. CA then went into the bathroom and took a shower. She put her towel on the drying rack in the living room after her shower. When she heard her mother come home she told her what happened.

19CA did not speak to her parents about what happened on the way to the police station. She has never discussed the details of what happened with them any time since. She has never spoken directly about what happened with her father. She did not discuss what was said at the preliminary inquiry with her parents.

20CA told police that the same thing happened before. The first time was “a long time ago” and involved the “same thing”. She was 11 at the time, her present age. She did not recall the time of year, but she was wearing a t-shirt and shorts at the time. She recalled that she was downstairs taking a nap in her father’s room in the basement. Mr. Sazal started touched her boobs with his fingers and then kissed them, and her private part. He took his penis out and put it in her private part. It ended when there was a small noise outside. Mr. Sazal told her not to tell her parents because they would beat him if they found out. The watery stuff came out of his penis and ran down her leg. CA went upstairs and changed out of her shorts because she felt disgusting (she was not wearing underwear at the time).

21Before November 1, 2016, CA had never discussed her body parts, or sex, with her mother. She learned about body parts in grade 6 health class, before November 1, 2016. When she told her mother what Mr. Sazal did to her she spoke in Bengali. She could not remember whether she used any English words, but she did not know the Bengali word for “private parts”, “boob”, or “penis”.

22CA was cross-examined on why she decided to tell her mother what happened after the November 1 assault, but not after the earlier assault. She explained that she was concerned that if she did not take action it would get worse. She did not think it would get worse after the first time so did not say anything at that time.

(iii) CA’s Father - AM

23AM confirmed that he is married to SA and they have one child together, CA. He recalled getting married in 2001 and sponsoring his wife around 2003-4. He worked as a waiter, and had been working at the same place for 15 years. His family bought the house at DR in September or October of 2012 and moved in after. They were living there in November 2016. They rented out the top floor, and a room in the basement.

24AM was active in the Bangladeshi community in Toronto, and tried to help Bangladeshi immigrants where and how he could. In approximately 2010, he received a call from AB Sazal, who explained that they were from the same district in Bangladesh, and asked if they could meet. Mr. Sazal said he got AM’s number from a newspaper in Bangladesh. AM agreed. At some point, Mr. Sazal also visited AM when he lived in an apartment on Teesdale. AM did not think Mr. Sazal stayed over in that apartment, but agreed it was possible.

25When AM bought his home on 108 DR, Mr. Sazal asking about living in the basement apartment. AM agreed to rent him a room in the basement, initially charging $350 a month, but at some point increasing this to $400 a month. Mr. Sazal had a room in the basement and access to the basement bathroom and kitchen/living room area in the basement. He was not permitted in the main floor apartment, or the main floor bathroom. Food was not included in the rent, but AM agreed that the family sometimes shared food with Mr. Sazal, and the upstairs tenants as well. On those occasions, AM would bring his plate up, get the food, and then return with it to the basement. He did not eat with the family in their main floor apartment. Mr. Sazal never babysat CA.

26On November 1, 2016 AM worked the afternoon shift as usual. He left home in the morning as he had to go to Service Canada. On his way out, he bumped into Mr. Sazal, who was also going to Service Canada. AM offered to drive him. Once at Service Canada, AM helped Mr. Sazal fill out the forms he needed, but he was at the wrong place. AM offered to drop him at the subway, which he did, and then went home, ate, and went to work.

27AM was busy at work but called home around 3:30—4:15 p.m. in order to check in on his family once CA was home from school, as was his habit. He spoke briefly to CA and learned that his wife was at the bank. When he next looked at his phone, he saw about 8-9 missed calls from home. He called home as soon as he could. His wife told him that Mr. Sazal had done something sexual to CA. He was horrified and said he did not want to hear and hung up the telephone. He tried to go back to work but a co-worker, just seeing his expression, told him to go home. His manager then approached him and said his wife had called because there was an issue at home. His manager told him he could use the hotel telephone, which he did. His manager and co-worker told him to go home, and they would cover the rest of his shift. Before getting in the car, AM called his wife and told her to meet him on the street outside their home. AM picked up CA and his wife and they drove directly to the police station.

28AM did not discuss the allegations with CA either at the time, or to this day. He did not want to hear anything about them (and still does not). Rather, on the way to the police station, he told CA that she had been born in Canada, in Saint Michael’s Hospital, and that she had all the rights of a Canadian citizen. He told her that there were some good people in the world, and some bad people, but in Canada the law was good. If anything happened she had to face it and speak up.

29The police came to their home later that night and took photographs. He also gave the police CA’s towel. It was on the corner of the sofa in the living room. He could not remember if the police took it or he handed it to them. He did not think he put the towel in a plastic bag for police. He elaborated in cross-examination that he was not concerned with the towel.

(iv) Forensic Evidence

30After CA and her parents gave video-taped statements, the police went to their home and took photographs, some of which were entered as exhibits, and seized the towel CA used after her shower (photographed in exhibit 2). It was in a plastic bag in the kitchen (as seen in exhibits 3A and 6A). Roger Landry used a special light source to scan the towel for possible biological substances and found many on both sides (see exhibits 6C and D). He sent the towel to the Centre for Forensic Science (CFS) for further inspection.

31The day after the alleged assault, CA was examined at Sick Kids Hospital and a sexual assault evidence kit done, including skin swabs and external genital swabs (see Agreed Statement of Facts at exhibit 8).

32Joanne Cox, a biologist with the CFS, found male DNA on a swab taken from CA’s external genitalia. There was not sufficient quantity to determine the biological source of this DNA, or develop a DNA profile. The biological substances on the towel included semen. Ms. Cox took a sample of one area where semen was found. She confirmed the presence of semen and was able to develop a full DNA profile at all 15 known alleles. The sample also included female DNA, but the quantity was too small to develop a profile. It also included DNA from an unknown source, but again the quantity was too small to develop a profile or even determine whether the source was female or male. The DNA profile developed from the semen on the towel was compared with a DNA profile developed for AB Sazal. Mr. Sazal could not be excluded as the source of the profile found on the towel at all 15 known alleles. Ms. Cox calculated the likelihood of a random person in Ontario having the same DNA profile (the random match probability or RPM) as 1 in 5.5 quintillion (see exhibits 7A-D).

(v) AB Sazal

33AB Sazal testified that he was born on September 03, 1980 in Bangladesh. He is a restaurant cook, and came to Canada in 2008 on a work permit. Once in Canada he also sought refugee status, but this was denied. He has no criminal record.

34Sometime toward the end of 2009 he found AM’s name and telephone number in a newspaper from Bangladesh. He knew AM’s name, as AM had been involved in student politics. Mr. Sazal called AM, explaining that they were from the same district in Bangladesh, and asked to meet. AM agreed, and invited him to visit his home. Mr. Sazal was living in Stratford at the time, so he stayed overnight in AM’s apartment on Teesdale, with his wife and CA. Mr. Sazal kept in touch with AM. When Mr. Sazal’s work permit was about to expire, AM invited him to move into his apartment on Teesdale, and found him a job at a restaurant in Barrie and managed to get him a work permit. When AM bought the house at 108 DR, Mr. Sazal asked about moving into the basement. AM agreed. Mr. Sazal moved into the home in December of 2012, and began paying rent ($400/month) in January, 2013.

35Shortly after moving into the basement at 108 DR, Mr. Sazal began to have sex with SA. He explained that this began by SA asking for a massage in the kitchen. Later he came into his bedroom and found her lying face down on his bed, asking for a massage. In cross-examination, he elaborated that she wrapped herself around him. He admitted in cross-examination that he was afraid of being caught by AM but, when SA came to him, “I am a young man, what can I do?” The sexual relationship continued until CA’s disclosure, and he had sex with SA the day before (October 31, 2016). SA would come to his room for sex a couple of times a week. Mr. Sazal added in cross-examination that this was because her husband did not satisfy her. SA would bring a condom with her and put it on his penis and then remove it after sex. She would also wipe the ejaculate off his penis using a tissue, her scarf, or a towel, which she would bring with her back upstairs afterwards. AM was not home when they had sex.

36Mr. Sazal testified that AM helped him a great deal. Both AM and his wife SA were very kind to him. He respected them both, addressing AM as “uncle”, and SA as “auntie”. He had an excellent relationship with them both right up until the time CA made her disclosure. He considered himself a close friend of the family. He would eat with the family in the kitchen on the main floor.

37Mr. Sazal was not working on November 1, 2016. He left the house that morning around 10 a.m. and planned to go to Service Canada. He bumped into AM on his way out. AM asked him where he was going. When he said where, AM offered to drive him as he was also going to Service Canada. Once there, AM helped Mr. Sazal with his forms. Mr. Sazal was only able to do the form to get identification (which was entered as exhibit 9). He was told he had to go to the Service Canada on College Street to get his health card. He waited for AM and once AM was finished, AM dropped him at Main station.

38Mr. Sazal took the subway to Yonge and Bloor and got out and had a coffee at Tim Horton’s. He realized he did not know College Street, but was familiar with the Service Canada at Yonge and Sheppard, as he had gotten a health card there in the past. He decided to go to the Yonge and Sheppard location. He stood in line but was told he needed a letter from his employer. He left, planning to get this from work the next day. When he was finished he went to “Agrafine”, a restaurant on Sheppard, for a meal. He then got back on the subway and went to Victoria Park, where he went to a meeting of the BNP (a Bangladeshi opposition party) at a local restaurant, Red Hot Tandoori, at 3030 Danforth Avenue. He walked home around 10 p.m. and went to bed. He was woken by police in the early hours of the following morning and arrested.

39In cross-examination, Mr. Sazal added that he had leant AM $56,000. Upon further probing by the Crown, Mr. Sazal explained that this had come at various times:

• When he was working in Stratford he gave AM $10,000 for a car. He provided this in cash and there was no receipt given, or any documentation done.

• While he was working in Barrie, he gave AM $13,000. There was no specific reason, just because he had it with him. Again it was in cash, with no documentation.

• He gave AM $28,000 to help with the down payment for 108 DR. He got this from his credit card and claimed to have a bank statement reflecting this payment. In re-examination, his counsel provided a copy of his visa statement for June 2012, which shows two cash advances and four VISA cheques for a total of $28,000 (exhibit 11).

• He gave AM another $5000 after he moved into 108 DR to help with renovations. Again this was in cash, and there was no documentation done.

40AB Sazal emphatically denied ever touching CA in an inappropriate fashion. He never babysat her, and was never alone with her.

III: The Applicable Legal Principles

41The accused is presumed to be innocent of these offences. This presumption remains with him at all times throughout the trial unless and until the Crown establishes his guilt beyond a reasonable doubt. The accused has no obligation to establish his innocence.

42It is also important to remember the meaning of proof beyond a reasonable doubt. A reasonable doubt is not an imaginary, far-fetched or frivolous doubt, or a doubt based on sympathy or prejudice. Rather, it is a doubt based on reason and common sense. It is a doubt that logically arises from the evidence, or the lack of evidence. It is not enough to believe that an accused is probably guilty or likely guilty, as that is not proof beyond a reasonable doubt. However, the Crown need not establish guilt with absolute certainty, as such a standard of proof is impossibly high. But proof beyond a reasonable doubt is much closer to proof of absolute certainty than it is to proof of probable guilt. At the end of the case, after considering all of the evidence, I must be sure that the accused committed the alleged offences in order to find him guilty.

43As the accused testified in this case, I must follow the approach set out by the Supreme Court of Canada in R. v. W.(D.), 1991 93 (SCC), [1991] 1 S.C.R. 742, at pp. 757-758 in assessing whether or not the Crown has proven Mr. Sazal’s guilt beyond a reasonable doubt: (1) if I believe the testimony of the accused that he did not commit the alleged offences I must find him not guilty; (2) even if I do not believe his testimony, if it leaves me with a reasonable doubt as to his guilt regarding these offences, I must find him not guilty; and (3) even if his testimony does not leave me with any reasonable doubt as to his guilt regarding the alleged offences, I may only find him guilty if, based on the evidence that I do accept, I am satisfied that all the elements of the offences have been proven beyond a reasonable doubt. This approach ensures that my analysis of the evidence does not devolve into a credibility contest between the two main witnesses – the complainant and the accused – and ensures that the presumption of innocence and the Crown’s burden of establishing the accused’s guilt beyond a reasonable doubt operate properly.

IV: Analysis

44As I noted at the outset, there is no issue that what CA described Mr. Sazal doing to her amounts to both sexual assault and sexual interference. The issue is whether or not what she described happened.

45I do not accept Mr. Sazal’s evidence. Nor do I find it raises a reasonable doubt. I reject his evidence. I will explain why.

46When I consider Mr. Sazal’s evidence both on its own, and in the context of the case as a whole, I find it implausible.

47I cannot believe that SA initiated an affair with Mr. Sazal immediately after he moved in, and continued this activity on an approximately twice weekly basis right up to the day before CA’s disclosure. Mr. Sazal’s description of the affair was generic. When he was pressed for details, including the first time they had sex, he kept repeating the same general account. In addition, having met CA’s family, and watched and listened to their evidence, Mr. Sazal’s description of the affair does not make sense. This is a loving and close-knit family whose lives centre around their daughter CA. The living room of their home is full of her art, her work and photographs of her. They never left their daughter alone or even put her in daycare until the summer after grade 5 when CA was 10, and SA went to work. During the school year in grade 6, they arranged for CA to be picked up from school by a babysitter. SA then collected CA from the babysitter when she finished work. SA slept with CA so CA would not have to sleep alone on a floor of the house. AM and Mr. Sazal both worked in restaurants and kept similar hours. To the extent Mr. Sazal came home before AM, or their shifts did not coincide, CA was in the house. CA was 7 when they moved into 108 DR. I cannot believe that SA would regularly leave CA alone, beginning when CA was only 7, and go down to the basement to have sex with Mr. Sazal. To the extent the sex occurred after CA was asleep, and Mr. Sazal testified it usually occurred between 10 and 12, SA risked AM coming home at any moment.

48Even if there was an affair (and to be clear I find there was not), I reject Mr. Sazal’s evidence that it was SA’s practice to put a condom on him, take it off him, and wipe the ejaculate off his penis using a tissue, scarf, or a towel. Exhibits 3A, 3C and 6A show photographs of the home on the night of CA’s disclosure. Even during the upset of this event, this kitchen is pin neat, with dishes washed, and everything put in its place. Supplies from Costco are stored above the cupboards, and the family appears to re-cycle plastic wrap. I find it inconceivable that this loving mother and neat home-maker would take her cherished daughter’s towel downstairs with her to use to wipe her lover’s ejaculate and then simply return the towel for her daughter to use. It also defies belief that SA would simply leave these items, covered in her lover’s ejaculate, amongst the family’s laundry. Especially as they were in the habit of going all together to the local laundromat to do the laundry.

49It does not make sense to me that Mr. Sazal leant AM $56,000 over the course of their relationship. Mr. Sazal was a cook who came to Canada on a work permit. When he worked, it was in a kitchen. He claimed that he saved this money (apart from $28,000 which he obtained through his credit card) from work. This strikes me as a lot of money to save while paying for living expenses and clothing and transportation with only a modest source of income. Also, Mr. Sazal and AM did not know each other well. Both testified that AM did his best to help Mr. Sazal, as was his practice, but they essentially had a landlord and tenant relationship. Mr. Sazal had to navigate the complicated immigration system and knew the importance of documentation. He still had both forms that AM helped him complete on November 1, 2016 at Service Canada (exhibits 9 and 11). I find it implausible that he would hand over his life savings in cash to an acquaintance without so much as a note to document these transactions. The credit card statement he provided in re-examination does not assist. It simply shows a series of cash advances and VISA cheques from his credit card. It does not link these in any way to AM or 108 DR. In addition, the statement is from June of 2012, well in advance of the purchase of 108 DR which both AM and SA testified occurred in the fall of 2012.

50I also reject Mr. Sazal’s so-called alibi. It is only an alibi to the most recent allegation, but, if believed, or it raises a reasonable doubt, it is almost dispositive: if CA is wrong about the most recent incident, or there is a reasonable doubt about this, her evidence cannot be trusted. The Crown first learned about the alibi during Mr. Sazal’s examination in chief. I find that the Crown was significantly prejudiced by this late disclosure. At this point, the Crown was no longer able to investigate the alibi in any meaningful way: any CCTV footage was long since gone (Mr. Sazal explicitly noted that there were cameras at the Service Ontario location at Yonge and Sheppard); the restaurant where he claimed to eat after attending Service Canada at Yonge and Sheppard is no longer open. It is open to me to consider this late disclosure in deciding whether or not to accept the alibi. Even without factoring this in, however, I reject the alibi. Mr. Sazal was finished at Service Canada by 12:24 p.m. (see exhibit 9) and AM dropped him at Main station around 1 p.m. Accepting that he did attend another Service Canada location that day, either at College Street or Yonge and Sheppard, or even both, he could easily be back at 108 DR by the time CA and her mother got home around 4:00 p.m. It does not make sense that he would eat at a restaurant at Yonge and Sheppard only to go directly to another restaurant near home for a dinner time meeting.

51Even though I have rejected Mr. Sazal’s evidence, and found that it does not raise a reasonable doubt, I must still go on and consider whether the evidence that I do accept satisfies me beyond a reasonable doubt that Mr. Sazal is guilty of sexual assault and sexual exploitation.

52I accept CA’s evidence, and that of her parents. It satisfies me beyond a reasonable doubt that AB Sazal sexually assaulted CA on November 1, 2016, and on another earlier occasion. The same acts that amount to sexual assault also amount to sexual exploitation. I will explain why I accept CA’s evidence.

53Defence counsel complains that there are inconsistencies in CA’s account, and she has added information over time in a way that detracts from her credibility. In considering these arguments, it is important to remember that CA was 11 years old on November 1, 2016, and 13 years old when she testified at trial. Although the credibility and reliability of her evidence must be carefully scrutinized, and the same high standard of proof continues to apply, a common sense approach must be taken when considering the significance of the defence complaints. Every witness must be approached as an individual and their evidence assessed according to their mental development, understanding and ability to communicate. The evidence of a child cannot be assessed according to stereotypical assumptions of how adults behave, as children’s brains and bodies are still developing, and they experience the world differently than adults. In particular, details which may be important to adults, like time and place, may be missing from their recollection, or may be experienced in a different fashion. As Justice Wilson wrote in R. v. B.(G.), 1990 7308 (SCC), [1990] 2 S.C.R. 30 at pp.54-55, “While children may not be able to recount precise details and communicate the when and where of an event with exactitude, this does not mean that they have misconceived what happened to them and who did it.” See also R. v. W.(R.), 1992 56 (SCC), [1992] 2 S.C.R. 122 at p.134; and R. v. M.(A.), 2014 ONCA 769 at paras.8-14.

54Defence counsel argued that the fact that CA testified that Mr. Sazal put his penis in her vagina but there was no pain is implausible and detracts from her credibility. I disagree. First, CA initially told the police that Mr. Sazal “stick [his penis] onto [her private part]”. She later said “he put it part – in the private part”. She was 11 at the time with limited sexual education and no experience. It is not clear that she was describing full penetration. Second, while she did not describe pain to police, she was not asked about this. Instead she was asked “Has he hurt you anywhere on your body?” She did describe pain at the time of the alleged assault to her mother and during her medical examination the following day. As the Crown points out, the fact that she did not remember the pain at trial does not mean it was not present at the time of the assault.

55Defence counsel argues that CA is inconsistent about whether she was awake or not when Mr. Sazal approached her in her father’s room in the basement, and it defies logic that Mr. Sazal would notice the one time CA was alone in her father’s bedroom and assault her while her mother was upstairs. CA told police that she awoke to find Mr. Sazal above her. She testified at trial that her mother woke her and then Mr. Sazal appeared and asked for a hug. I do not find this to be a significant difference. Also, I do not find the allegation impossible given the evidence that CA did not go to the basement alone. CA and her mother could have begun a nap together, but the mother woke up first and either woke CA, or let her continue to sleep, but either way did not stand over her and wait until CA was ready to come upstairs. CA was 11 years old and could follow her mother up when she was ready. Nor do I find that it defies logic that Mr. Sazal would seize on this brief time CA was alone. CA testified that Mr. Sazal stopped on hearing a sound outside, suggesting he was on high alert to prevent being discovered.

56Defence counsel argues that it is a major inconsistency that CA “made up a third allegation”. I disagree that this is what happened, or that the inconsistency around the number of prior alleged assaults is significant. In her statement, after describing what happened on November 1, 2016, CA was asked “has anything like this ever happened before?” She responded, softly, “two times”. It is not clear that she meant two times before, or two times in total. This was not clarified. CA was then asked, “can you tell me about the first time.” She described the assault in her father’s room in the basement. She was then asked “you said there was another time that happened too”. She said this happened two or three months later, she forgot where, and it involved “the same thing”. Defence counsel argues that because CA also went on to add the specific detail that it happened in the basement kitchen, that this “third” assault is concerning, arguing if CA was able to create a detail for that occasion, she could have done so on the others as well. But a detail about location is exactly the kind of detail that is of less significance in the context of a child witness. More importantly, CA has provided an explanation for the inconsistency which makes sense to me. She explained that she meant to say one other time in her video-taped statement, but said two. When CA’s statement to police is read as a whole, it is not clear to me that CA is describing two assaults in total, or two assaults before November 1, 2016, as the questioner presumed. In all the circumstances, I find that there was a miscommunication or misunderstanding between CA and the police during her statement about the number of incidents, but CA clarified this in her testimony at the preliminary inquiry and at trial. I do not think it detracts from her credibility.

57I find that the balance of the complaints that defence counsel makes about CA’s evidence relate to matters that are understandable given her age, are not in fact inconsistencies at all, or are peripheral, specifically:

• When the first assault occurred. We know children experience time differently than adults and I do not think any inconsistency around this is significant, if there even was an inconsistency. CA was able to say it was summer, as she was wearing only shorts and a t-shirt. Otherwise her statement is telling about how children and adults may experience time differently: she told police the first assault happened “a long time ago”. When she was asked how old she was, she stated 11, the same age she was at the time.

• CA was cross-examined extensively about her failure to mention certain details until “impeached” in cross-examination, such as exactly where Mr. Sazal kissed her, whether he dragged her and how. But she told police about these details in her statement, which was played at trial and admitted for the truth of its contents, on consent, pursuant to s.715.1 of the Criminal Code.

• CA was cross-examined on the fact that at trial she testified she called Mr. Sazal “baya” or “brother”, but at the preliminary inquiry she testified that she did not have a nickname from him. As I understand it, “brother” is a term of respect, like addressing an elder as “uncle”, and not necessarily a “nick name”.

58CA was also cross-examined at length about alleged inconsistencies which I find peripheral or minor and do not relate to material things which would potentially cause me concern about her truthfulness (see e.g. R. v. M.(A.), supra at para.13). These included whether her mother or her babysitter picked her up from school, whether she changed into her clothing after her shower in her bedroom or in the bathroom, whether she was still in the shower or in the bedroom when her mother arrived home from the bank.

59I find that the core of CA’s allegations – what was done to her and by who – have remained clear and consistent. I also find that details of her accounts make sense. On the first occasion, Mr. Sazal asked for a hug and she gave it to him. On the second occasion, he asked again and she would not give him a hug and he had to drag her to him. She did not tell anyone after the first time, but when it happened again, she did tell, explaining that she was concerned that it would keep happening if she did nothing. When the police asked CA if she could describe what Mr. Sazal was doing with his body when he put his penis in her private she said “He was rocking back and forth”. Later she was asked how their bodies were during the assault and she said “a bit shaking”. And “some watery stuff” came out of his penis “when he stopped”. It went “down my leg”.

60I find that the presence of Mr. Sazal’s semen on the towel CA was wearing at the time of the assault provides powerful confirmation of CA’s allegation and evidence. While there were inconsistencies around where the towel was last seen, and exactly how it was handed over to police, these do not detract from the confirmatory power of the towel.

61Every family member had their own towel. AM’s towel was blue, SA’s was cream, and CA’s was cream with flowers – the towel shown in exhibit 2 on which Mr. Sazal’s semen was found. The tenants did not use the family’s towels. Nor did SA do any laundry for the tenants. CA identified this towel as what she was wearing on her way to the shower when Mr. Sazal found her. SA last saw CA’s towel in the closet in their bedroom hanging on a hanger on a knob. She did not touch it. It was still there when they got home from the police station. It was gone the next day and her husband told her that he gave it to police during the night. She denied putting it into a plastic bag for police. CA testified that she put the towel on the drying rack in the living room after she used it. The last time she saw the towel it was still on that rack. It is not clear to me that these things are different as exhibit 4, the photograph of the living room, shows what looks like a closet in the living room. However, AM does have a different recollection: he remembers the towel being on the living room sofa, and giving it to police directly from there. Constable Landry testified that the towel was in a plastic bag in the kitchen when it was provided to him, as shown in exhibits 3A and 6A.

62I agree with the Crown that these differences are of no moment and do not detract from the confirmatory power of Mr. Sazal’s semen on CA’s towel. The first time CA mentioned “white watery stuff” coming from Mr. Sazal’s penis was during her video-taped statement to police. This was not part of her disclosure to her mother. And she never spoke to her father about any details. At the time AM provided the towel to police, neither he nor his wife would have had any idea of its potential significance. In the circumstances, if anything, the discrepancies in the family’s account of where they last saw the towel speak to the honesty of these witnesses and the fact that each are simply recounting what they remember as best as possible.

63I agree with the Crown that some of the circumstances surrounding CA’s disclosure to her mother support her evidence. To be clear, I am not considering what she told her mother for the truth of its contents, but rather considering whether the circumstances of the disclosure add to or detract from the cogency of CA’s evidence. See e.g. R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788 at paras.37-38, citing R. v C.(G.), 2006 18984 (ON CA), [2006] O.J. NO. 2245. I find they add to it. Specifically, CA and her mother spoke to each other in Bengali. Both testified that they had never discussed sex or body parts, and CA testified that she did not know the Bengali words for these things. CA learned about body parts in grade 6, before the events of November 1, 2016. SA testified that CA told her about the assault in Bengali, but used English words for “penis”, “boobs” and “private parts”. This is consistent with CA’s evidence that she did not know the words for these in Bengali. Also, if SA was putting CA up to the complaint, as Mr. Sazal suggests, it does not make sense that any English words would be used.

V: Conclusion

64I am satisfied beyond a reasonable doubt that AB Sazal sexually assaulted CA on November 1, 2016, and on an earlier occasion in the previous eighteen months. The same acts that amount to sexual assault also amount to sexual exploitation. Convictions will be entered on all counts.

G. Roberts J.