Her Majesty the Queen v. W.S.

COURT FILE NO.: 19-0580

DATE: 20200415

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

W.S.

Accused

COUNSEL:

Judith MacDonald, for the Crown

Aaron Harnett, for the accused

HEARD: February 7, 10, 11 & 12, 2020

REASONS FOR JUDGMENT

PETERSEN J.

[1] The accused stands charged of committing a sexual assault on his son, ZA, contrary to s. 271 of the Criminal Code, R.S.C. 1985, c. C-46. He is also charged with touching ZA, who was at the time 11 years old, with his hand, for a sexual purpose, contrary to s. 151 of the Criminal Code. Both charges arise out of a single alleged incident in the fall of 2017.

[2] The accused pleads not guilty to both charges. He was tried by me, sitting as a judge alone, over four days in February 2020.

[3] Six people testified during the trial. The Crown called ZA (the complainant), the complainant’s mother and the investigating officer as witnesses. The defence called the accused, the accused’s older son (the complainant’s brother), and the accused’s neighbour. Each witness provided relevant evidence, but as is common in trials involving sexual offences, only the complainant and the accused were able to testify about the alleged incident that is the subject of the charges.

[4] The complainant gave detailed testimony about what he claims his father did to him during the sexual assault. The accused swore that the alleged assault and sexual touching never occurred. Credibility is therefore a critical issue in this case.

Presumption of Innocence and Standard of Proof

[5] I am mindful that my task is not to choose between the complainant’s version of the alleged incident and the accused’s denial that it occurred. Such an approach would fail to give effect to the burden of proof that rests with the Crown and the presumption of innocence to which the accused is entitled.

[6] In order to secure a conviction, it is incumbent on the Crown to prove each essential element of the offences charged to the standard of proof beyond a reasonable doubt. The standard of proof beyond a reasonable doubt does not apply to the individual items of evidence that make up the Crown’s case, but to the total body of evidence upon which the Crown relies to prove guilt.

[7] The burden of proof never shifts to the accused person, who is presumed innocent until proven guilty beyond a reasonable doubt. Because of this fundamental presumption of innocence, I must not arrive at my decision simply by determining whose story is more believable. Rather, I must focus on the paramount question of whether the Crown has convinced me of the accused’s guilt beyond a reasonable doubt, based on the evidence as a whole.

[8] In R. v. W.(D.), 1991 93 (SCC), [1991] 1 S.C.R. 742, at p. 758, the Supreme Court of Canada suggested the following formulation of instructions for juries on how to approach the issue of credibility in a case such as this one:

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

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

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

[9] In R. v. S. (J.H.), 2008 SCC 30, [2008] 2 S.C.R. 152, at paras. 9-13, the Supreme Court of Canada quoted with approval the following passage from R. v. H. (C.W.) (1991), 1991 3956 (BC CA), 68 C.C.C. (3d) 146 (B.C. C.A.), where Wood J.A. stated:

I would add one more instruction in such cases, which logically ought to be second in the order, namely: "If, after a careful consideration of all the evidence, you are unable to decide whom to believe, you must acquit."

[10] I have adapted these jury instructions to instruct myself on the proper analytical approach to arrive at a decision in this case. The rationale underlying this approach is well-explained by Casey Hill, David Tanovich & Louis Strezos in McWilliams' Canadian Criminal Evidence, loose leaf, (Toronto: Canada Law Book, 2011) at p. 2521:

It is useful to think of W.D. as a teaching on the correct process of reasoning about credibility. It forbids two distinct lines of analyses because they are inconsistent with the accused's right to the presumption of innocence until guilt is proven by the Crown beyond a reasonable doubt.

First, it is forbidden to reason that the accused's evidence must be believed to secure an acquittal. The accused generally bears no burden of proof and thus need not be believed on a balance of probabilities and certainly not on the highest standard of proof beyond a reasonable doubt.

The second forbidden line of reasoning is for the trier of fact to think that the task of adjudication requires the trier of fact to answer the general question of "What happened?" The problem with such a focus is that it creates a tendency in the trier of fact to search through the evidence looking for the truth and deciding whose evidence to believe, rather than searching for a reasonable doubt and giving the accused the benefit of it.

Governing Principles for Assessing Credibility

[11] There are many legal principles that govern the assessment of witnesses’ credibility and reliability. I will highlight four specific principles that I find to be applicable and useful in this case.

[12] First, I am not required to choose between wholesale acceptance or wholesale rejection of each witness’s testimony. I may believe all, none or some of a witness’s evidence: R. v. M. (R.E.), 2008 SCC 51, [2008] 3 S.C.R. 3, at para. 65; R. v. H. (B.), 2015 ONCA 642, at para. 22; R. v. Doell, 2016 ONCA 350, at para. 7.

[13] Second, I should consider evidence of a witness’s reason to fabricate evidence: R. v. Howe (2005), 2005 253 (ON CA), 192 C.C.C. (3d) 480 (Ont. C.A.), at para. 56. The existence or absence of a motive to lie is, however, only one relevant factor in assessing credibility: R. v. Batte (2000), 2000 5751 (ON CA), 49 O.R. (3d) 321 (C.A.), at para. 120.

[14] Third, I may take into consideration the manner in which a witness testifies, including their apparent sincerity, but I must guard against over-reliance on demeanour in assessing credibility: R. v. D.P., 2017 ONCA 263, at para. 26, leave to appeal refused, [2017] S.C.C.A No. 261. In R. v. Rhayel, 2015 ONCA 377, 324 C.C.C. (3d) 362, at para. 85, the Court of Appeal for Ontario explained that “demeanour is of limited value because it can be affected by many factors including the culture of the witness, stereotypical attitudes and the artificiality of and pressures associated with a courtroom."

[15] Fourth, in addition to considering the usual indicia of a witness’s unreliability or incredibility – such as evasiveness, internal contradictions in their testimony or prior inconsistent statements – I should consider the inherent plausibility or implausibility of their evidence. However, in doing so, I must be cautious not to rely on false or unfounded assumptions about human behavior. I must be particularly hyper-vigilant against the incursion into my reasoning of prevalent myths and stereotypes about sexual offences, sexual assailants and survivors of sexual assault: R. v. A.R.J.D., 2017 ABCA 237, 353 C.C.C. (3d) 1, at para. 60 [“A.R.J.D. (Alta. C.A.)”], aff’d 2018 SCC 6, [2018] 1 S.C.R. 218, at para. 2 [“A.R.J.D. (S.C.C.)”].

[16] Having set out the proper analytical framework and the key guiding principles regarding credibility assessments, I will now consider the evidence in this case. Since the particulars of the allegations that form the basis of the charges against the accused are delineated by the complainant’s testimony, I will begin by reviewing his evidence.

[17] I should note that I am not required by W.(D.) to consider the accused’s testimony first: R. v. Y.(C.L.), 2008 SCC 2, [2008] 1 S.C.R. 5, at paras. 7-12. The three-step analytical framework set out in W.(D.) is not a “ magical incantation” or “sacrosanct formula” that must be followed precisely: R. v. S. (W.D.), 1994 76 (SCC), [1994] 3 S.C.R. 521, at p. 533; R. v. Boucher, 2005 SCC 72, [2005] 3 S.C.R. 499, at para. 29. It is a useful road map but is not the only route to arrive at a just verdict: Y.(C.L.), at para. 8. The order in which I summarize and review the evidence is inconsequential, provided that I do not approach my task as a credibility contest between the accused’s and the complainant’s evidence and remain mindful that the burden of proof beyond a reasonable doubt never shifts from the Crown.

Summary of Complainant’s Testimony About the Alleged Assault

[18] Although the complainant could not recall the precise date of the alleged assault, he was able to narrow the timing from mid-October to mid-November 2017 because he was confident that the incident occurred after his father’s birthday and shortly before his 12th birthday. He was 14 years old by the time he testified at the trial.[^1] The following is a summary of his testimony regarding the alleged incident.

[19] It happened on a Saturday. His father picked him up at his mother’s house around 4:30 or 5:00 PM. The sun was still up when they arrived at his father’s residence.

[20] His father rents a basement apartment in a house. The landlord lives upstairs. On the day of the incident, he believed that the landlord was not home because he did not see the landlord’s car parked in the driveway where it was usually parked. He remembered this detail because his father had parked in the driveway that day, which his father normally would not do if the landlord were home.

[21] The complainant brought his PlayStation with him to his father’s home. When they entered the apartment, he set up the PlayStation in the living room and started playing video games while his father prepared dinner. They ate a meal together then went into his father’s bedroom to watch television. The sun was by then going down, but it was not yet dark outside.

[22] The accused was seated toward the head of the bed, near the pillows. The complainant was seated at the foot of the bed. The accused got up, left the bedroom to go have a shower, and later returned wearing only a towel. The complainant was still sitting on the edge of the bed watching television when his father returned. He estimates that it would have been between 6:00 and 7:00 PM.

[23] His father stood in the doorway to the bedroom and told him to take off his clothes. The complainant was wearing a t-shirt and pants. Under his pants, he was wearing shorts and boxers. At first, he said no and refused to undress. His father kept telling him to take off his clothes. He repeatedly said no. He was confused about why his father was asking him to do this, but he did not ask his father why. He testified, “all I could think of to say was no.”

[24] His father’s demeanour changed. He (the father) raised his voice, showing irritation, and started to speak in a demanding and aggressive tone. He kept telling the complainant to take his clothes off until the complainant eventually “gave in” and removed his shirt and pants. The complainant was still wearing boxers and shorts.

[25] His father told him to lie down on the bed, so he did. He lied down on his back with his head positioned in the direction of the wall at the head of the bed.

[26] His father dropped his towel and was naked. The complainant became very alarmed at this point. His father had never exposed himself previously. He did not try to get up and walk out. He testified that, “I just laid back and listened to him.”

[27] The accused got on the bed and pulled down the complainant’s shorts and boxers. He got on top of the complainant, straddling his legs. He had an erection. He put his right hand on the complainant’s chest to hold him down and started to stroke the complainant’s thighs and penis with his other hand. He alternated between touching the complainant and masturbating his own penis.

[28] The complainant started screaming for help and tried to kick and punch his way out. His father put a “decent amount of pressure” on his chest, enough to hold him down. However, his arms were not pinned down. Both his arms were free to punch. He tried to punch his father’s face but was unable to land a blow anywhere other than on his father’s arms.

[29] The complainant believes that the assault lasted 20 to 25 minutes. His father would touch him, then break and masturbate, then touch him again, all while maintaining pressure on his chest with his right hand. The complainant tried grabbing at his father’s forearm. He kept punching and trying to kick. His father was on his legs, so he could not kick fully, but he was able to move his legs enough to force his father to adjust his seating. The complainant was screaming “help me” and “stop” throughout the assault.

[30] The complainant was eventually able to free himself. He explained, “For most of the incident [my dad] had firm pressure on my chest, but while still touching me and himself, he let off some pressure. I was still kicking. It gave me an opportunity to get out of the situation.” He did not push his father off. When his father relieved some of the pressure on his chest, he managed to get loose by “squirming” out. He got most of his upper body up and was then able to free his legs and get off the bed.

[31] The complainant immediately pulled up his boxers. They were half-way up and he got them fully on. Just before he exited the bedroom, he got his shorts partly up. He did not look back at his father. He slammed the door as he exited the bedroom.

[32] There was a couch with a blanket and pillows in the living room. He lied down under the blanket and tried to sleep, but he could not fall asleep. He was feeling scared, confused and upset. He stayed on the couch all night. His father did not exit the bedroom until morning.

[33] The next morning, his father acted as though nothing had happened. His father prayed, as he usually does in the morning, then asked the complainant if he wanted eggs. His father cooked breakfast, they ate, and then the complainant asked his father to drive him home. They did not speak about what had occurred the night before.

[34] The complainant testified that this was an isolated incident. Nothing like it had ever happened before. His father had never previously asked him to undress and had never touched him sexually.

Plausibility of the Complainant’s Account

[35] Defence counsel submits that the complainant’s account of the alleged incident has several implausible features that call into question its veracity. I will consider each of these features in turn.

[36] First, according to the complainant’s testimony, he ran from the bedroom as soon as he was able to free himself, then came to a full stop in the living room and settled on a couch for the night. He confirmed during his cross-examination that he had his cell phone with him but did not call or text anyone. He said he was nervous and frightened about what his father might do if his father saw him texting someone.

[37] Defence counsel queries why, if the complainant had been sexually assaulted, did he not call or text his mother to ask her to come pick him up, and why he chose to spend the night on a couch with his father in the adjacent room rather than leave the apartment. Defence counsel submits that the complainant’s description of his own conduct after the sexual assault renders his account of the alleged assault less plausible.

[38] This submission is based on unfounded assumptions about how a survivor of a sexual assault would or should behave. There is no such thing as “typical” survivor behaviour in the immediate aftermath of a sexual assault. Individuals respond differently to traumatic circumstances. Drawing adverse inferences about a complainant’s credibility based upon stereotypical assumptions about how people are supposed to react to acts of sexual abuse constitutes a reversible error of law: R. v. D.(D.), 2000 SCC 43, [2000] 2 S.C.R. 275, at paras. 58-63; A.R.J.D. (S.C.C.), at para. 2. For this reason, I reject defence counsel’s argument that the complainant’s conduct somehow renders his account of the alleged assault less plausible.

[39] Defence counsel also submits that the circumstances surrounding the alleged assault are so “unusual” as to lack plausibility. In particular, defence counsel cites the following features of the complainant’s account: the suddenness of the alleged attack, the lack of any prior “grooming” behaviour by the accused, and the absence of efforts by the accused to prevent disclosure by the complainant after the assault.

[40] During his cross-examination, the complainant confirmed that, prior to the alleged incident in the fall of 2017, he had never seen his father nude. His father had never asked him to remove his clothing, had not exposed him to pornography and had not engaged him in any sexually explicit discussions. On the night of the alleged incident, there is no evidence that his father gave him alcohol or drugs to attempt to reduce his inhibitions or impair his resistance. Defence counsel relies on this absence of evidence of precursor steps taken by the accused to plan and execute the assault and submits that the complainant’s account of a sudden attack “out of the blue” is highly unusual.

[41] Defence counsel also notes that, according to the complainant’s testimony, the accused took no steps after the alleged incident to mitigate the risks of disclosure. The complainant confirmed during his cross-examination that his father did not admonish him not to tell anyone what had happened. At the time, the complainant was living with his mother and older siblings. The accused did not reside with them and therefore had no control over discussions that occurred in his absence in their home. Defence counsel argues that, in these circumstances, it would be highly unusual for the accused to sexually abuse his son and not warn the child not to tell anyone.

[42] In my view, the lack of grooming behaviour does not detract from the plausibility of the complainant’s allegations. Grooming is employed by sexual offenders to develop a relationship of trust with a young person and isolate them from others – something that would not have been necessary in this case given the father-son relationship between the accused and the complainant.

[43] Moreover, although sexual offenders may engage in grooming behaviour and may also use threats or enticements to incentivize non-disclosure by their victims, that reality does not mean such conduct is so prototypical as to render a deviation from it implausible. Defence counsel’s argument about the “unusual” nature of the complainant’s allegations is premised on unfounded assumptions about what constitutes “usual” predatory sexual behaviour. I agree with Crown counsel’s submission that there is nothing “usual” about a parent sexually assaulting their own child. It is intrinsically aberrant behaviour.

[44] There is no evidentiary basis to conclude that adults who engage in this type of child sexual abuse necessarily (or even predominantly) follow a specific pattern of behaviour. I therefore draw no adverse inference about the credibility of the complainant’s description of the assault based on its supposed non-conformity with purportedly typical predatory conduct. There is nothing inherently implausible about ZA’s description of the suddenness of the assault or of his father’s casual and apparently “normal” behaviour afterward.

[45] Defence counsel argues that another implausible element of the complainant’s testimony is his assertion that he was yelling “help” and “stop” throughout the assault, yet his father neither said nor did anything to try to quiet him. Defence counsel submits that this element of the complainant’s account is particularly implausible because the assault allegedly occurred in the basement of a house, with upstairs neighbours who might overhear and call the police or come downstairs to investigate. Defence counsel argues that, according to the complainant’s testimony, his father would have had to have been “completely out of control” and acting with a “complete lack of concern for discovery”. I agree with the latter argument, but I do not find the circumstances to be implausible. Any person who sexually abuses their own child is, by definition, not in control of their impulses and is not concerned about the consequences of their actions.

[46] Defence counsel also argues that the complainant’s description of how the assault occurred does not conform to human experience and understanding of physical reality. The complainant testified that the incident lasted 20 to 25 minutes. He said he was punching and kicking his father throughout but was unable to land any blows on his father’s face. He stated that he was only able to strike and grab his father’s arms. Defence counsel submits that, given the accused’s alleged position on the complainant’s legs, with one hand on the complainant’s chest and his free hand stroking the complainant’s thigh and genitals, the face and body of the accused would have been an easy target for the complainant to strike.

[47] This submission is in no way intended to criticize the complainant for ineffective self-defence. It is not a victim-blaming argument. Defence counsel explicitly recognized that people have different self-preservation instincts. Not every victim of sexual assault physically resists their assailant. Some victims react by freezing, fleeing, submitting or cooperating. A complainant’s failure or inability to fend off their assailant has no bearing on their credibility. However, in this case, the complainant testified that he did physically resist his father by kicking and punching for 20 to 25 minutes. Defence counsel is therefore entitled to scrutinize the complainant’s description of his physical resistance, not for the purpose of criticizing its ineffectiveness, but rather for the purpose of assessing its plausibility and credibility.

[48] The evidence at trial established that the complainant had been training in boxing for three years, two to three times per week, prior to the alleged assault. He was, by all accounts, a very good boxer. His older brother AB testified that he had become strong and was “in shape” and physically large for his age. The complainant’s own evidence is that he weighed about 132 lbs. at the time, which is heavier than one might expect for an 11-year-old boy. Defence counsel argues that, given the complainant’s training, size and strength, it is not believable that the assault could have happened as he described it.

[49] In my view, the size, strength and pugilistic skills of the complainant do not render his account of the physical details of the assault implausible. He testified that he was lying on his back with his father on his legs and his father’s hand holding him down with pressure against his chest. Although both of his arms were free, that positioning would restrict his ability to swing them. It would be an unnatural position from which to try to throw punches. Moreover, there is no evidence about the length of his reach relative to that of his father. Finally, all witnesses agreed that he would have been shorter than his father at the time. The complainant’s uncontested evidence is that his head would have come up to his father’s shoulder. The complainant also gave uncontested evidence that his father weighed more than he did at the time. Given the difference in height and weight, the probable difference in reach, and the alleged positioning of the parties on the bed, the complainant’s account of being unable to strike his father’s face during the assault is not incongruent with human understanding of physical reality. When the psychological dynamics are taken into consideration, as well as the complainant’s youth and relationship to the accused, the complainant’s confusion, fear and franticness could also plausibly render him less able to throw punches with any degree of precision, despite boxing training. For these reasons, I do not find his account to be implausible.

[50] After careful consideration of all the evidence and the submissions of both counsel, I find that there is nothing inherently implausible about the complainant’s testimony regarding the allegations against the accused.

Prior Inconsistent Statement of the Complainant

[51] Defence counsel submits that there is inconsistency in the complainant’s statements about why he was unable to escape during the 20 to 25 minutes of the assault. He testified at trial that his only opportunity to free himself came when his father eventually loosened the pressure on his chest. Defence counsel argues that, if this were true, there must have been significant pressure brought to bear in order to stop a motivated, struggling and strong boy from escaping, yet the complainant told the police that the pressure was not that hard.

[52] When the complainant was interviewed by the police on February 6, 2018, he was asked to give details of what he was doing to try to get away from his father during the assault. He stated, “I was trying to like claw my way out and I was yelling and kicking and punching and just squirming around. And like I got loose.” The officer then asked whether his father was holding him down. The complainant responded, “He, like yeah but not like hard. It was just kind of like not as much force like as – if, if he wanted to hold me down, he probably could . . . but it wasn’t hard enough for me to be put like fully down. So I got out.”

[53] At trial, the complainant acknowledged his prior statements to the police but did not agree with defence counsel’s suggestion that they were different than what he said in court. He explained that what he meant when speaking to the police was that his father could have put a lot more pressure on him, but the amount his father was using was still strong enough to keep him from getting up. He testified that his father could have used even more pressure so that he could not get away.

[54] I accept his explanation. In my view, this is not a material inconsistency in his statements about the assault.

Evidence Contradicting Elements of the Complainant’s Testimony

[55] The complainant was cross-examined at length about his belief that the father’s landlord and upstairs neighbor was not home on the day of the alleged assault. He was also cross-examined about the extent to which sound travelled between the upstairs portion of the landlord’s home and his father’s basement apartment. These lines of questioning were relevant to the credibility of the complainant’s claim that he screamed for 20 to 25 minutes during the assault, yet no one appeared to hear his cries because no one responded to them or called the police.

[56] There are witnesses who contradicted elements of the complainant’s evidence on these issues. Defence counsel urges me to conclude from these contradictions that the complainant was manifestly dishonest in his testimony on these topics, which raises a reasonable doubt about his credibility as a whole, and therefore raises a reasonable doubt about the accused’s guilt. Before dealing with this argument, I will first summarize the relevant evidence.

[57] The complainant testified that he thought his father’s landlord was not home when he arrived at his father’s apartment on the day in question because he noticed the landlord’s car was not parked in its usual place in the driveway. He said he noticed this because his father parked in the driveway, which was unusual. He was asked to describe the landlord’s vehicle and said he believed it was a silver SUV. He was reminded that, during his testimony at the preliminary inquiry, he had stated that it was a white SUV. He acknowledged his prior inconsistent statement about the colour but maintained that he thought the car was silver.

[58] The landlord was called as a defence witness. He testified that he owns two vehicles, a grey sedan and a black SUV. He further testified that he always parks his cars inside his garage and never on his driveway. His evidence therefore directly contradicted the complainant’s evidence that he usually parked a light-coloured SUV in the driveway.

[59] Defence counsel argues that the complainant falsified his testimony about the landlord’s vehicle to bolster his assertion that the landlord was not home on the day in question and explain why no one heard his alleged screams. Defence counsel submits that the complainant also lied about the sound insulation in the basement apartment for the same reason, namely to enhance the believability of his alleged screams in circumstances where no one heard them.

[60] The complainant testified that, on the 15 or 20 occasions when he had previously visited his father’s basement apartment, he had not noticed noise emanating from the house above, except when the occupants were vacuuming. He had slept over at his father’s house on numerous Saturdays and said he did not recall hearing the upstairs neighbours talking or listening to television or making other noise (other than vacuuming).

[61] The accused, in contrast, testified that there is little sound insulation in his apartment. He stated that he can “hear anything” from his upstairs neighbours and that they can also “hear anything” from his basement unit. He said the neighbours are home most Saturdays. He observed that they spend most of their time in their kitchen, living room and family room, which are on the main floor of the house. He testified that he regularly hears them talking on the phone, walking around and doing dishes. He said he clearly hears their voices and their television. He stated that he wears ear plugs when he goes to sleep in the morning after his night shifts to block the noise.

[62] The accused also testified that the complainant must have heard the neighbours’ voices on at least one occasion because he recalled the complainant mimicking their accents in a joking manner. The complainant confirmed that he was aware of the neighbours’ accents because he had been introduced to them by his father, but he denied mocking their accent. He firmly denied ever hearing the neighbours’ voices through the ceiling of his father’s apartment.

[63] The complainant’s older brother, AB, testified for the defence. He had visited their father’s apartment on numerous occasions, sometimes alone and sometimes with the complainant. He recalled that, “you could hear people upstairs any time they walked or talked or dropped something – you could hear them clearly.”

[64] The landlord also testified about noise leakage between the basement apartment and the upstairs rooms in his home. He stated that sound travels easily in both directions, including the sound of voices speaking in normal tones. He explained that the kitchen of his home is located directly above the bedroom in the accused’s basement apartment. He was confident that, if a person were screaming for help for 20 minutes in that bedroom and he was in his kitchen, he would hear the screams. He said he routinely heard the accused talking on the phone in the basement, but he never heard any cries for help emanating from the accused’s unit.

[65] The landlord testified that he and his wife were retired in the fall of 2017. He said they did not take any trips away from home around that time. He described their weekend routine, which has been in place for several years. Their two children and their grandchildren visit them on alternating Saturdays almost every week. The family gatherings consist of his wife preparing meals while the grandchildren engage in various activities. They all eat lunch and dinner together and their family members stay overnight. He stated that dinner-time is around 6:00 PM, the grandchildren’s bath-time is at 7:30 PM and their bed-time is at 8:30 PM. He mentioned that he prays every night before dinner for 30 minutes, around 5:30 or 6:00 PM. He said his wife sometimes prays with him and sometimes he prays alone, while others look after the grandchildren.

[66] Although I accept some of the landlord’s uncontradicted evidence, I did not find him to be a credible witness overall. He gave pat answers to the questions he was asked, was rigid and categorical in his responses, and generally seemed intent on aiding the accused rather than the court.

[67] For example, he refused to acknowledge that, when his grandchildren visited, they sometimes made noise and provided a distraction to the adults in the home, who would then not be paying close attention to noises emanating from the basement. His grandchildren were all under six years old in the fall of 2017. His refusal to admit the obvious fact that they could be boisterous and were sometimes the focus of the adults’ attention is indicative of an intransigence that can only be explained by a strong desire to avoid saying anything that might be construed as supportive of the Crown’s case.

[68] Similarly, the landlord was reluctant to acknowledge that one of his children may have missed a weekend visit in the fall of 2017, though he did ultimately admit that possibility during his cross-examination. He was, however, adamant that he and his wife never go out on a Saturday night to socialize or for any other reason, except during wedding season, which he said is not in the fall. He would not allow for the possibility that they may not have been home one Saturday evening in late October or early November 2017. Although he was testifying more than two years later about inconsequential events in his life, he made no allowance for possible frailties or gaps in his memory. His inflexibility and intransigence on this issue further undermine his credibility.

[69] The landlord was asked about the floor plan of his house. He described a two-story dwelling, with the bedrooms on the upper floor. During his cross-examination, the Crown suggested to him that, when he is on the second floor of his house, he cannot hear what is going on in the basement. He retorted that he can hear noises from the basement through the air vents on the second floor. His retort was incisive but seemed both far-fetched and scripted.

[70] When asked about his evening prayer routine, he initially testified that he can pray anywhere, but later corrected himself and stated that he only prays on the main floor of the house and never on the upper level. He added, “there is no point in going upstairs to pray because there is more space on the main floor.” This explanation made little sense in the context of a Saturday with a crowded house full of guests who were occupying the main floor rooms. It sounded like another strained attempt to avoid saying anything that might assist the Crown’s case.

[71] For the reasons articulated above, I put little weight on the landlord’s evidence. I am not prepared to conclude, based on his testimony, that he and his wife were home every Saturday evening in October and November 2017. Even the accused readily admitted that he could not say for sure whether his landlord was home every Saturday evening during that time period.

[72] Although I accept the landlord’s evidence about the colour of his vehicles and about his habit of parking in the garage, I do not believe this necessitates a finding that the complainant lied about why he believes the landlord was not home on the night of the alleged incident. It is possible that the complainant had observed a light-coloured SUV in the driveway on previous weekend visits to his father’s apartment because the landlord’s children regularly came from Toronto to stay overnight on Saturdays. He would have no way of knowing who owned the vehicle or that the landlord’s cars were parked in the garage. He might well have mistaken one of the landlord’s children’s cars for the landlord’s vehicle.

[73] Based on the totality of the evidence that I accept as credible, I find that, on most Saturdays in the fall of 2017, the landlord and his wife were home with their children and grandchildren visiting them. I am, however, unable to reach any conclusion about whether or not they were home on the night of the alleged assault.

[74] The conflicting evidence about the noise leakage in the home is less important given my inability to determine whether anyone was upstairs when the assault allegedly took place. If the house was vacant, there would be no one to hear any screams, regardless of the level of noise insulation. However, the evidence about noise remains relevant because, if the complainant deliberately misled the court about the sound insulation in order to bolster his allegations, that would deal a serious blow to his overall credibility.

[75] I accept the accused’s and AB’s testimony that, when they were in the accused’s basement apartment, they heard noises emanating from the upstairs living space, including voices speaking in normal tones. I have no basis to question their credibility on this topic. Their evidence calls into question the reliability of the complainant’s testimony that there was little noise leakage between the floors of the home. However, for the reasons set out below, I am not prepared to infer that the complainant deliberately lied about this detail.

[76] First, the complainant’s evidence is that the landlord was not home on the evening in question, so he had no reason to fabricate evidence about sound barriers in the home in order to bolster his testimony about the assault. Moreover, it is possible that he was simply less observant of the noises than his brother or that there was less noise on the occasions when he was present. It is also possible that the noise from his video games, which the accused stated he played almost constantly while in the apartment, drowned out the noises from above. There are several plausible innocent explanations for why he may have perceived the noise leakage differently from his brother and father, so I do not view the contradictions in their testimonies as necessarily indicative of a deliberate falsehood by the complainant.

[77] I accept the accused’s testimony that there was little sound insulation between the basement and main level of the home. His evidence was corroborated by the testimony of AB, whom I found to be a credible witness. I therefore conclude that, if the upstairs neighbours were home on the night in question, they likely would have heard the complainant had he been screaming for 20 to 25 minutes. However, without being able to determine whether the neighbours were home, this conclusion does not give rise to a reasonable doubt about the accused’s guilt.

Evidence About the Complainant’s Behaviour Post-Assault

[78] The complainant testified that he saw his father less frequently after the assault and tried to avoid being alone with him. He said there were occasions when he texted his father to ask for food, but he no longer asked to sleep over and had no further visits at his father’s apartment. He explained that he no longer trusted his father. He said he felt “a lot more comfortable” seeing his father when AB was also present. He recalled that his father sometimes picked him up on a week day and they would get some food, then pick up his brother, so he was alone with his father for a while. He testified that he felt “kind of nervous, especially when it was just me and him. I was scared and nervous and questioning why the incident occurred.”

[79] Before assessing the credibility of these elements of ZA’s testimony, it is important to note that evidence of his avoidant behaviour, while relevant, is not required to corroborate his allegation of sexual assault. The absence of evidence of avoidant behaviour by a sexual assault complainant cannot form the basis of a presumptive adverse credibility inference leading to reasonable doubt about the accused’s guilt. This principle is particularly important in cases dealing with child complainants who allege sexual abuse at the hands of a family member because children in those circumstances may attempt to normalize their behaviour and their relationship with the assailant for any number of reasons: A.R.J.D. (Alta. C.A.), at paras. 58-60.

[80] As the majority of the Court of Appeal for Alberta stated in A.R.J.D. (Alta. C.A.), at para. 70, which was subsequently affirmed by the Supreme Court of Canada on appeal:

The search for avoidant behaviour or a change of behaviour in a sexual assault complainant, particularly a child, is in its essence nothing more than a search for confirmatory evidence, without which a complainant becomes less worthy of belief. The problem with such a search is that there is no reliable support for the presumption that a sexual assault victim will invariably, more often than not, or even to a statistically meaningful degree, display any predictable behaviours following the abuse.

[81] This jurisprudence is about the relevance of an absence of evidence of avoidant behaviour. It does not mean that evidence of avoidant behaviour by a complainant is automatically irrelevant. The relevance and probative value of such evidence will depend on the facts of each case.

[82] In this case, the Crown led evidence of avoidant behaviour through the complainant and the complainant’s mother, whose testimony is summarized below. Once that evidence was adduced, defence counsel was entitled to challenge its veracity by calling contradictory evidence and by cross-examining the complainant on whether he had, in fact, taken any steps to distance himself from his father after the alleged assault. This was not an improper exercise in comparing the complainant’s behaviour to stereotypical expectations about how a sexual assault survivor is supposed to behave, but rather a permissible exercise in challenging the truthfulness of the complainant’s evidence about a material issue.

[83] The complainant’s mother testified that she and the accused had separated before the complainant was born, but the complainant had a relationship with his father throughout his childhood. She recalled that in 2014, when ZA was in grade 4, the accused took an extended trip to Sudan and ZA had so much difficulty coping with his father’s prolonged absence that she sought counselling for him. She testified that after the accused returned from Sudan, and prior to the fall of 2017, ZA would frequently ask to visit his father overnight on weekends. She described him as desperate to spend more time with his father. She stated that he repeatedly called his father to ask to spend time at his father’s apartment. She recalled that his visits with his father leading up to the alleged assault were sporadic because the accused was working two jobs, including night shifts at a factory. She stated that whenever ZA came back from a visit with his father, his only complaint was that he wished he could spend more time with him.

[84] She testified that she noticed a change in ZA’s behaviour in the fall of 2017 in that he longer wanted to go see his father. She recalled that he would sometimes call his father to ask for food and his father would either prepare a meal or pick up some food for him and bring it to their house, but ZA’s desire to spend time with his father seemed to wane. She remembered instances when the accused would drop off AB at their home, park in the lot at their housing complex and ask for ZA to come out and say hello, but ZA would refuse, saying he did not want to see his father. This behaviour stood in stark contrast to his previous eagerness and enthusiasm to spend time with the accused.

[85] AB also testified about the complainant’s relationship with their father. According to his recollection, in the fall of 2017, ZA did not express any reluctance to spend time with their father and “wanted to see his dad as usual”. AB stated that he and the complainant sometimes slept over at their father’s house together. During his examination-in-chief, he was asked about the timing of their last sleepover. He stated that it was maybe a month or two before his father’s arrest at the end of January 2018. He said he thought it was about a month prior to the arrest but was not sure whether it was before or after Christmas 2017. Either way, on this account, the overnight visit would have been after the alleged assault, which would contradict the complainant’s testimony that he did not return to his father’s apartment after the assault.

[86] During AB’s cross-examination, however, it became immediately apparent that he was confused about dates and was unable to give reliable evidence about timing. He initially claimed that he and ZA stayed over at his father’s house on three or four occasions in 2018. He then confirmed that those occasions were not all in the month preceding his father’s arrest on January 31, 2018. He was then forced to admit that he must have been wrong about the year because his father was prohibited from seeing the complainant as a condition of his release on bail. When questioned further about the timing of his last overnight visit with ZA at their father’s house, he admitted that it could have been in September 2017. I therefore give no weight to his earlier testimony that they stayed over at their father’s house at some point in December 2017.

[87] I have no reason to suspect that AB was intentionally trying to mislead the court. I found him to be a credible witness. He simply could not recall dates given the passage of time. This does not make him a dishonest witness, but his evidence about the timing of events is unreliable. I therefore give no weight to his observations about the complainant’s relationship with their father in the fall of 2017. I do not believe that AB has a clear recollection of the fall of 2017.

[88] His mother’s testimony was, in contrast, credible and reliable. She remembered the fall of 2017 clearly because ZA started having disciplinary problems in school that semester. Her recollection of the ZA’s withdrawal from his father corroborates ZA’s testimony that he avoided overnight visits and tried to avoid being alone with his father as a result of the violation of his trust. This evidence of avoidant behaviour is consistent with and lends some credence to the complainant’s allegation of sexual assault because there is no evidence of an alternate explanation for the marked change in his attitude toward spending time with his father.

[89] The evidence about the complainant’s disciplinary problems at school in the fall of 2017 is also consistent with the sequalae of sexual abuse. Prior to that semester, he had done well in school and did not have any misconduct issues. His mother testified that he was “always a good student”, but in grade 7 (in the fall of 2017), “his grades started to slip and there started to be behavioural problems”. She said she received calls from the school principal almost weekly. She testified that the calls started in October or November 2017. She recalled that the complainant received several suspensions that academic year. She said one of them could have been in the fall of 2017. At the time, she thought the complainant’s behavioural problems were related to him associating with the “wrong crowd”. She was concerned about the negative influence of his friends.

[90] The complainant also testified that he had been a good student but started getting into trouble at school in the fall of 2017. He remembered his mother getting called in by the school administration to discuss his inappropriate behaviour. He was caught vaping and consuming alcohol. He recalled being suspended from school on at least one occasion in the fall of 2017. He stated that his behaviour at home also became problematic that fall. On one occasion, he got in trouble for burning Q-Tips in his home.

[91] During his cross-examination, the complainant was asked whether he was suggesting that his behavioural problems were caused by the alleged incident of sexual assault. He responded, “I think it had something to do with it – I’m not saying it’s because of the incident, but there is a correlation”. This answer was notably restrained. He could have blamed his misconduct entirely on his father’s alleged abuse. In my view, the restraint in his testimony promotes his credibility.

[92] The defence witnesses also recognized a change for the worse in the complainant’s behaviour in the fall of 2017. The accused recalled observing some changes in his son’s demeanour. He remembered a specific occasion when the complainant spoke to him disrespectfully. Mostly, he recalled AB telling him that the complainant was behaving badly. He recalled AB telling him, in January 2018, that the complainant had stolen money from their mother. He also remembered AB recounting lies that the complainant told about conversations the complainant reported having with him. The accused said he was planning to confront the complainant about this behaviour but never got the chance to do so because he was arrested at the end of January 2018 and was prohibited from having any further contact with the complainant as a condition of his release on bail.

[93] The accused’s ready willingness to acknowledge the change in the complainant’s attitude and comportment is notable. Even though it could be interpreted as symptomatic of a traumatic experience and therefore corroborative of the complainant’s allegation against him, the accused was frank and forthright in discussing it. His candour promotes his credibility.

[94] AB recalled reporting the complainant’s misconduct to their father. He remembered telling the accused about his brother’s drinking and smoking and also showing the accused a video recording of the complainant getting into a fight. He said the complainant was “acting strangely”, hanging out with “the wrong kids” and displaying a “bad attitude”. He thought it was just normal teenage stuff, caused by hormonal changes during puberty.

[95] AB testified that the complainant’s strange behaviour started in the summer of 2017, many weeks before the alleged sexual assault. Given the unreliability of AB’s evidence regarding timing and dates, I prefer his mother’s testimony that the problems started in October or November of 2017.

[96] I conclude that there was a marked change in the complainant’s behaviour in the fall of 2017, which led to disciplinary problems at his school. Although there may have been many contributing factors, including peer pressure and adolescent rebellion, I find that the change in his behaviour is consistent with and corroborative of his testimony that he was acting out at least in part because of what he alleges his father had done to him. The timing of the commencement of his disciplinary problems supports this conclusion.

Evidence Relating to the Complainant’s Disclosure of the Alleged Assault

[97] The complainant did not report the alleged sexual assault to any adult in a position of authority. The allegation came to the attention of the police after the complainant made a disclosure in a text message to a school friend, who then reported the disclosure to an adult, which triggered a sequence of events that led to the police attending at the complainant’s school to interview him on January 31, 2018.

[98] The officer who conducted the interview, Sgt. Clark, testified that the complainant became so distraught during the interview that she concluded it prematurely and re-attended the school on February 6, 2018 to interview him again. She recalled that the first interview began with “small talk”. She stated that the complainant initially appeared to be “a normal happy 12-year-old kid” until he was asked about the text disclosure to his friend, at which point he “just kind of crumbled”. She testified that he “deflated”, started crying and “had a lot of difficulty speaking through the tears”. She recalled him crying and “heaving” while describing the alleged assault to her. She described him as inconsolable. She acknowledged that it is not uncommon for witnesses to cry when interviewed by the police but said the complainant “was probably the worst I’ve seen.”

[99] Crown counsel argues that the complainant’s emotional distress during the initial police interview is probative of the authenticity of his disclosure. I disagree. Although his distress is consistent with a truthful disclosure of a traumatic event by a child who had not previously reported it to any person in authority, it is equally consistent with other plausible scenarios. The complainant could have become distraught because he told a falsehood to a friend, in circumstances where he believed it would never be revealed, then found himself in a police interview, in which it became apparent that his lie had been repeated and was about to have serious consequences that were beyond his control. I therefore draw no inferences from the complainant’s demeanour during the first interview.

[100] Defence counsel made submissions about the relevance of the fact that the complainant did not voluntarily disclose his allegation to an adult in a position of authority. The complainant testified that he had received instruction at school about what to do if ever he was touched inappropriately by anyone. He said he was aware that he should “tell a trusted adult”. His mother testified that she parented him in a manner to encourage him to feel that he could tell her anything. She hoped that he would tell her if anyone touched him inappropriately. The complainant did not disclose the alleged sexual assault to his mother, to any teachers or counsellors at his school, nor to even to his older adult half-sister, TH, whom he believed would be sympathetic to him because she had personally made some sort of allegation of sexual impropriety against the accused.

[101] There was considerable evidence during the trial about TH’s historical allegation of sexual misconduct by the accused, but the particulars of the allegation were not discussed by any of the witnesses. The evidence merely established that the accused had been charged with a sexual offence arising from an allegation made by TH but had been acquitted after a court proceeding.

[102] The complainant’s mother, his brother AB, and the accused all testified that this chapter in the family’s history was never discussed in detail with the complainant. All three witnesses said the complainant was curious about what had happened and would frequently make inquiries about it, but he was repeatedly told that he was too young to understand and would be told more about it when he was older.

[103] The Crown did not attempt to lead evidence about TH’s historical allegation as similar fact evidence to corroborate the complainant’s allegations at issue in this trial. The Crown did not ask this court to infer guilt from the fact that the accused had previously been charged with a sexual offence involving another young person in his care. Such propensity reasoning would clearly be impermissible and seriously prejudicial to the accused. Given the accused’s acquittal of the historical charge involving TH, the evidence relating to that charge has no probative value with respect to the allegations made by the complainant in this case.

[104] Evidence regarding the unproven historical allegation by TH would ordinarily be inadmissible in this trial. However, it is admissible and is relevant, not to a propensity by the accused to commit sexual abuse of minor children, but rather to certain peripheral issues that have a bearing on the complainant’s credibility. The first of these issues is defence counsel’s argument that, had the complainant been sexually assaulted by his father, he likely would have told his half-sister TH because he knew that she had also claimed to be a victim of sexual abuse by his father years prior.

[105] I reject the suggestion that the complainant’s failure to disclose his allegation of sexual assault to TH (or to any other adult or person in a position of authority) is evidence from which I should draw an adverse inference against his credibility. To do so would constitute a flagrant error of law based on a discredited myth about how survivors of sexual assault are “supposed” to behave, namely by disclosing their victimization: D.(D.), at para. 63. Survivors of sexual assault may be reluctant to disclose their experience of victimization for many reasons. A complainant’s failure to disclose, to do so promptly, or to make the disclosure to a particular trusted individual cannot be used to discount their credibility.

[106] The complainant made some disclosures to his peers, one of which was revealed to an adult and ultimately led to the police investigation and charges against his father. The complainant testified that the first person he told about the incident was his friend L. He said his initial disclosure to L was vague, along the lines of “something happened, I don’t really want to talk about it”. He said he did not give L any details. He thought that his conversation with L occurred during the school winter break in December 2017, but he was not sure of the date.

[107] The complainant testified that he made a disclosure by text to his friend O after he had spoken to L. A copy of their text message exchange was adduced as evidence in the trial. It reads as follows (the complainant’s messages are on the left):

I was raped… like actually… can you not say anything… of [sic] you want to talk to me about it come in the hall or that little room when Last year… again [?][^2] who I won’t say anything My dad… he’s a cunt was he mad Idk is he in jail again sorry if that makes you mad I act happy but I’m not… I’m actually depressed Can we become better friends than normal Sure Yeah but I’m sad all the time Wanna hang out some time and I can bring my drone Today and let you fly it in sport mode Yoooo That’s sick I cut myself on purpose I was really sad are you joking about all of this Nope Ok I believe you

[108] The complainant testified that after the police came to his school to interview him for the first time on January 31, 2018, he spoke to L again and told her more about the incident at his father’s house. L was interviewed by the police on February 6, 2018, the same day that Sgt. Clark conducted a second interview with the complainant.

[109] Sgt. Clark confirmed that the police wanted to interview L because they wanted to know more about the first disclosure that the complainant claimed to have made. They asked L if she remembered the first time that the complainant talked to her about the incident in question. L said it was “a few days ago”, meaning early in February 2018. When asked what the complainant disclosed to her, she said, “he told me that his dad raped him”. L was not called as a witness during the trial, but the Crown and defence counsel agreed that, had she been called, she would have made the same statements under oath that she made to the police.

[110] Defence counsel submits that L’s statements directly contradict the complainant’s testimony regarding both the timing and the content of his initial disclosure to her. Defence counsel argues that the complainant wants the court to believe that he made a disclosure to L in December 2017 because he wants it to be as proximate to the alleged event as possible in order to appear more genuine and truthful. Defence counsel argues that this is a serious blow to the complainant’s credibility because he gave his evidence about his first conversation with L with the same clarity and strength of delivery as all of his other testimony, yet it has been proven to be untrue.

[111] For the following reasons, I disagree with defence counsel’s assessment of this evidence. First, I do not have any reason to believe that the complainant thought his allegation would be more credible if he demonstrated that he made a prompt disclosure about it. There is no evidence that the complainant was motivated in this way to lie about the timing of his first disclosure.

[112] Furthermore, I do not see a necessary contradiction between the complainant’s testimony and L’s statement to the police regarding the disclosure. The complainant described his first disclosure to L in December 2017 as being so vague as to be non-descript (“something happened, I don’t really want to talk about it”). Such a disclosure would hardly have been memorable for L. The complainant said he gave L more detail about the incident after the police interviewed him on January 31, 2018. This is consistent with L’s statement that, in early February 2018, the complainant told her that his father had raped him. It is possible, indeed probable, that L did not connect the complainant’s earlier (December 2017) vague disclosure with the incident in question when she told the police that the complainant first told her what had happened in early February 2018. I therefore reject defence counsel’s submission that the complainant’s testimony regarding his initial disclosure to L was manifestly untrue.

[113] During the trial, the complainant was questioned about his use of the word “rape” in his text message to O. In his examination-in-chief, he testified that he knows what the word means but did not know it at the time. He said, “I could have used my words and changed my wording a lot more differently. I know what I said there was not what happened. I was really upset and not paying attention and careful to the word I was using.” During his cross-examination, he stated that he was upset at the time that he texted O. He testified that, at that time, he “knew what the word was but didn’t fully understand what it meant.” He added, “now I know what it means and regret using it.” He explained, “at the time, that was what I thought happened, that was the word I thought symbolized what happened, now I know different”. He stated, “at the time, honestly that is what I thought happened. I didn’t know the difference between being sexually assaulted and raped but using hindsight now I know it wasn’t the right word.”

[114] The complainant was also questioned about his use of the word “rape” when he testified at the preliminary inquiry. At that time, he stated, “yeah – that was in the moment, I was very upset and I did not initially want nor need or have to use that word”. Defence counsel relies on this earlier testimony as evidence that the complainant knew the meaning of the word “rape” when he texted it to O and when he used it to disclose his allegation to L. Defence counsel submits that his use of the word “rape” was deliberate and hyperbolic because the assault that he described during the trial involved only sexual touching by his father’s hand, which could not accurately be characterized as rape. Defence counsel suggests that this constitutes evidence of material inconsistencies in the complainant’s recounting of the alleged incident, which undermines his credibility.

[115] Finally, defence counsel submits that the intentional use of an inflammatory word like “rape”, in the context of the entire text message exchange with O, is suggestive of fabrication by the complainant. Defence counsel argues that he used the word “rape” for dramatic effect, as a means of getting O’s attention.

[116] I disagree with the submission that the text messages are indicative of attention-seeking behaviour by the complainant. They may be indicative of attention-seeking behaviour by O (who expressed a desire to become “better friends than normal” with the complainant), but that has no bearing on the complainant’s credibility.

[117] In my view, the complainant’s testimony at the preliminary inquiry did not constitute an admission that he knew the meaning of the word “rape” when he used it in communications with his friends in January and early February 2018. Rather, it constituted an acknowledgement, on the date of the preliminary inquiry, that he should not have used that word back in January and February 2018 because he had since learned that it was not an accurate description of what happened to him.

[118] I accept the complainant’s explanation that he used the word “rape” in his text message to O in January 2018 because he honestly thought, at that time, that the word described what his father had done to him. It is plausible that a twelve-year-old boy would think the word “rape” refers to any non-consensual sexual touching, without appreciating that it implies non-consensual penetration or intercourse. It is notable that the complainant’s older brother, AB, also used the word “rape” at one point during his testimony to refer to the complainant’s allegation against their father. He said he understood, from what his mother had told him, that the complainant was claiming their father had raped him. He clarified that his mother did not use the word “rape” in their discussion. He explained that he used the word rape because he thought it meant “touching somebody without their consent”.

[119] For the above reasons, I draw no negative inference about the complainant’s credibility based on his use of the word “rape” or based on the slightly different explanations that he provided for using that word during the preliminary inquiry and at the trial. However, there are two additional aspects of the complainant’s evidence regarding the text messages with O that do raise concerns about his credibility.

[120] The first problematic area of his testimony relates to the explanation that he provided for his use of the word “again” in his text message to O. After he told O that he was raped, O asked when it occurred and he replied, “Last year… again”. During his testimony in chief, the complainant confirmed that there was only ever one incident of sexual abuse by his father. He was asked why he used the word “again” in his text message to O. He said he accidentally typed a word that he was using in conversation with someone else at the same moment that he was typing the text to O. He claimed that this is a common mistake he makes “all the time”, accidentally typing what he is saying in conversation even though it is unrelated to whatever he is simultaneously texting.

[121] During his cross-examination, he denied that he used the word “again” to try to make O believe that he had been a victim of a sexual assault on more than one occasion. He insisted that it was just coincidence that the word he happened to type accidentally from his other conversation was one that made it appear he had been assaulted more than once.

[122] Defence counsel argues that the complainant’s use of an ellipsis (“…”) after the words “last year” was obviously for dramatic effect and undermines the credibility of his assertion that he accidentally typed the word “again”. I disagree with this submission because it is clear from the entire text thread that the complainant routinely uses ellipses as punctuation in his text messages, without any particular dramatic effect. However, I agree with defence counsel that the explanation of an accidental yet coincidental typing of the word “again” is not credible, particularly when the message is viewed in the context of the entire text exchange.

[123] After the complainant stated that his father is the person who raped him, O asked whether his father “is in jail again”. Clearly O was under the impression that the accused had previously been incarcerated, which is consistent with the complainant having conveyed that this was not the first time his father had committed a sexual offence.

[124] The complainant denied having told O that his father had previously been in jail. He claimed not to know why O asked him that question, which I find to be improbable because he did not respond to O’s message in a manner consistent with their never having discussed it previously. Had the complainant not mentioned anything to O about his father being in jail, he would have been perplexed or surprised by O’s question and likely would have replied accordingly. Instead, he did not react to the suggestion that his father had previously been incarcerated, from which I infer that the two friends had probably discussed this topic.

[125] Moreover, the complainant admitted during his cross-examination that he believed his father had been in jail in connection with the historical allegation by his half-sister. He said he had heard “something” about his father going to court, “something to do with something that happened with TH”. He claimed not to know any details. He said he had asked both his parents and his sister about it but was told to wait until he was older. He stated that this mysterious information was what gave him the impression that his father had been in jail. Despite acknowledging his belief that his father had been incarcerated, the complainant insisted that he never mentioned it to O or to any of his other friends, who could have relayed the information to O. He stated that it was just a “weird coincidence” that O responded to his text message about being raped by his father with a question about whether his father was “in jail again”.

[126] I find the complainant’s testimony regarding these text messages to be implausible. There are too many “coincidences” for his account to be credible. I believe that the complainant was not forthright in his evidence about a prior discussion he had had with O regarding his father. It is clear from the text messages that O was privy to some information about a prior allegation against the accused, as well as previous time supposedly spent in custody.

[127] It may be that the earlier discussion with O did not involve an allegation by the complainant that his father had sexually assaulted him. I accept defence counsel’s submission that it is more likely the prior discussion with O was related to TH’s historical allegation against the accused. It is clear from the totality of the evidence that, despite his parents’ attempts to keep him in the dark about that chapter in the family’s history, the complainant had deep curiosity about it, had either gathered or imagined details about it, and had shared some of those details with his friend O.

[128] I conclude that the complainant gave dishonest answers during his testimony at trial about the reason why he typed the word “again” in his text to O and about his prior discussion with O regarding his father’s jail history. However, I do not find that these falsehoods detract from the plausibility or credibility of his other testimony regarding the alleged sexual assault. The mere fact that he is concealing the truth about the extent of his knowledge of the historical allegation by his half-sister and his having discussed that topic with O does not, in my view, undermine the entirety of his evidence.

Does the Complainant Have a Motive to Fabricate?

[129] I find it notable that the complainant did not use the alleged sexual assault as an excuse to justify his inappropriate behaviour and try to get out of trouble at school when the disciplinary problems were occurring in the fall of 2017. Had he reported the abuse to the school administration in that context, it may have constituted evidence of a motive to fabricate the allegation in order to deflect responsibility for his own misconduct. Clearly, he was not motivated to lie by a desire to escape accountability for his actions.

[130] Crown counsel argues that the complainant has no motive to fabricate allegations of sexual abuse against his father. She submits and the evidence establishes that he desperately wanted to spend more time with the accused, not less. Falsely reporting sexual abuse at the hands of his father would predictably lead to restrictions on his father’s access to spending time with him, which would be counter-productive to his ultimate goal. Indeed, the complainant has had no contact with his father since the date of his father’s arrest at the end of January 2018.

[131] I agree with Crown counsel’s submission that the complainant was not trying to get his father in trouble by fabricating a false allegation of sexual abuse. He did not report the alleged incident to any person in a position of authority. Moreover, he did not want his allegation to be reported to persons in authority. When he disclosed the allegation to O, he specifically asked O not to tell anyone else. At trial, he explained that the incident was “messing with” him and making him “gloomy” and “really upset”. He thought he could tell O in confidence and hoped that by doing so, he would feel less upset because he would get it “off [his] chest”.

[132] The complainant testified that he did not want O to report what happened to the police. When asked why not, he stated, “I didn’t want to ruin the family dynamic” and “didn’t want to ruin the relationship between me and my brother.” He added that AB had just recently mended his relationship with their father after years of arguing. AB confirmed during his testimony that he has had a rocky relationship with the accused, but that they are currently close. Sadly, both the complainant and AB stated during their testimony that their relationship as brothers has been damaged by the revelation of the complainant’s allegation against their father.

[133] There is no evidence of a motive for the complainant to publicly disclose a false allegation of sexual abuse against his father, but the question remains whether he was motivated to make a false disclosure to his friend O. As noted earlier in this judgment, I disagree with defence counsel’s submission that the complainant’s text messages to O are indicative of attention-seeking behaviour. There is no evidence to support a finding that the complainant had a motive to lie to O about having experienced sexual abuse.

[134] Based on the above reasons, I agree with Crown counsel’s submission that there is no evidence of a motive for the complainant to fabricate an allegation of sexual assault by his father. Of course, the accused has no onus to demonstrate that the complainant had a motive to lie because the burden of proof rests with the Crown. The complainant's good relationship with his father and the negative familial consequences he experienced as a result of making the allegation are not capable of proving that he had no motive to fabricate: R. v. L.(L.), 2009 ONCA 413, 96 O.R. (3d) 412, at para. 45. They highlight the absence of evidence of motive to fabricate, but they do not prove that there was no motive. Motives sometimes remain hidden. The absence of evidence of a motive to fabricate is not determinative of the truth of the complainant's testimony: Batte, at paras. 121, 125. As Rowles J.A. stated in R. v. B. (R.W.) (1993), 24 B.C.A.C. 1 (C.A.), at para. 28: "it does not logically follow that because there is no apparent reason for a witness to lie, the witness must be telling the truth." The issue of motive therefore has no bearing on my determination of the complainant’s credibility.

Overall Assessment of Crown’s Evidence

[135] For the reasons set out above, I find that the complainant was generally credible, with the exception of his denial of a previous discussion with his friend O about his father’s alleged history of prior incarceration for a sexual offence. I do not believe that portion of his testimony regarding his text exchange with O, but I find that it does not detract from his overall credibility. It constitutes a minor frailty in his evidence. His testimony about the alleged incident of sexual assault was plausible, compelling and credible. It was not shaken in any way under skillful cross-examination.

[136] Had the accused elected not to testify in his own defence, I would have convicted him on the strength of the complainant’s testimony. However, the accused’s testimony, which is summarized below, was equally plausible, compelling and credible.

The Accused’s Testimony

[137] The nature of the Crown’s case is such that the accused’s only available defence is to deny his culpability. Unlike sexual assault cases where identity, consent, or mistaken belief in communicated consent are at issue, there is no alternative narrative for the court to probe. The accused’s defence is simply that he did not do what he is accused of having done.

[138] During his testimony in chief, the accused was asked a series of direct questions as to whether he committed the offences charged: Did he ever tell the complainant to undress? Did he ever touch the complainant’s penis? Did he ever engage in any sexual activity with the complainant? He responded categorically “never” to all these questions and repeated emphatically, “he’s my son man” and “this is my son”. He expressed incredulity about the allegations: “I would never do something like that to my son. I cannot even imagine – I can’t believe I’m here to talk about this.”

[139] The accused responded to questions as one would expect of a truthful witness and innocent person. He maintained his denials throughout his cross-examination. I reject Crown counsel’s submission that he was evasive in answering some of her questions. On the contrary, I found him to be forthright and candid.

[140] At one point, he stated, “I lost anyway this case. I lost my son. This is not easy – this is too much for me – either way, I’m losing because I lost my son.” This testimony appeared to me to be unscripted and sincere.

[141] However, I recognize that demeanour is a notoriously unpredictable determinant of credibility: Law Society of Upper Canada v. Neinstein, 2010 ONCA 193, 99 O.R. (3d) 1, at para. 66. I have therefore given only slight weight to these impressions of credibility that I formed based on the manner in which the accused testified.

[142] The accused gave credible evidence about his love for his sons and his efforts to provide a good life for them. Defence counsel submitted that “loving fathers do not sexually abuse their sons”. I find this submission to be singularly unhelpful in assessing the accused’s credibility. While parents who love their children ought not to abuse them, the sad reality is that many do. The disordered thinking of sexual offenders is such that some may even misperceive their sexual conduct as an expression of love and affection for their children. The accused’s paternal love for the complainant is apparent, but it does nothing to counter the complainant’s credible account of sexual abuse.

[143] I found the accused’s evidence to be credible, not because I accept that he loves the complainant, nor because his demeanour gave the impression of a truthful witness. As set out below, there are several other more reliable indicators of his credibility.

[144] The accused did not deny or downplay facts that could be prejudicial to his defence, such as the change in the complainant’s behaviour in the fall of 2017. He did not gloss over difficulties in his relationships with his sons or try to portray himself as a “perfect father”. He did not purport to be able to remember more than one would reasonably expect given the frailties of human memory and the passage of time since the alleged incident. He did not display a selective memory for facts that supported his defence. In short, he did not give self-serving testimony.

[145] The accused’s evidence was unshaken under skillful cross-examination. His testimony was consistent, both internally and externally. He did not contradict himself in any significant way and his evidence made sense in relation to objective evidence from other credible sources.

[146] It is for these reasons that I found the accused to be credible.

Conclusion

[147] In conclusion, I find no basis upon which to reject either the complainant’s or the accused’s testimony about the alleged incident. Both were credible and compelling witnesses. The strength of the accused’s denials responds equally to the strength of the complainant’s allegations. I am left uncertain as to what to believe.

[148] Although I find the complainant’s allegations to be believable, that is not sufficient to convict the accused, who is entitled to the presumption of innocence. After careful consideration of all the evidence, I am left with reasonable doubt about the accused’s guilt. In these circumstances, I must acquit him of both offences charged.

Petersen J.

Released: April 15, 2020

[^1]: Pursuant to ss. 486.1(1) and 486.2(1) of the Criminal Code, the complainant testified from outside the courtroom through a closed-circuit television, with a support person present throughout his testimony. The support person was directed to sit behind him, facing the camera, so that she could be observed throughout his examinations, to ensure that she did not consciously or unconsciously signal to him during his testimony.

[^2]: The complainant testified that the question mark "[?]" in this text message was an emoji that did not transmit properly to O’s cell phone. He could not recall what emoji he used when he typed the text.