Court File and Parties

Court File No.: 1071/19 Date: 2020/08/21 Ontario Superior Court of Justice

Between: Her Majesty the Queen – and – T. W. Accused

Counsel: Sandra Town, for the Crown William Beach, for the Accused

Heard at Sudbury: July 27, 28 & 29, 2020

Reasons for Judgment

K.E. Cullin, J.

Overview

[1] The accused is charged on a three-count indictment with sexual assault, sexual interference and making sexually explicit material available to a child. The charges arise as a result of allegations made by the complainant L.P., of incidents that occurred in Sudbury, between October 2, 2015 and September 1, 2016.

[2] The female complainant was seven years old at the time of the alleged incidents. The accused was eighteen years old; he was the complainant’s uncle by marriage, her father being the accused’s stepbrother. The complainant and the accused were living at the residence of her paternal grandfather and his wife. She alleges that, on numerous occasions, the accused engaged in conduct which she described as, “inappropriate” and “illegal”, ranging from touching her with his penis to sexual intercourse. She also alleges that the accused would lock her into his bedroom and force her to watch sexual videos.

[3] The accused elected a trial by judge alone, and that trial was conducted over the course of three days. For the Crown, L.P. and her father J.P. testified. The accused, his stepfather R.P., his mother Rh.P. and his sister M.L. testified for the defence. It was the defence’s position at trial that the incidents as described by the complainant did not take place.

[4] During her closing statement, the Crown acknowledged that the elements to establish the charge pursuant to s.171.1(1)(a) of the Criminal Code (namely, the charge of making sexually explicit material available to a child) had not been met, and therefore an acquittal will be entered on that charge. This decision will rule on the remaining charges of sexual assault and sexual interference. For the purpose of trial, the issues of jurisdiction, the identity of the accused and the dates of the alleged offences were not disputed. The only issue to be determined by the court was whether the Crown had established, beyond a reasonable doubt, that the accused had sexually touched the complainant.

Facts

The Crown’s Case

[5] The complainant was born in 2008. At the time of the incidents in question, she was seven years old, and at the time of the trial she was twelve years old. She currently lives in Sudbury with her father, J.P.

[6] In 2015, the complainant and her father were residing in Brantford, Ontario. Her father was working at North West Rubber Ltd., but had injured himself at work and was unable to attend to L.P.’s needs. J.P. initially contacted his father’s brother, Brian, to ask if L.P. could reside with his family in Markham while he recuperated. Brian felt that it would be preferable if L.P. resided with people that she knew and, as a result, L.P. was placed in the care of her grandfather, R.P. and his wife, Rh.P. at their residence in Sudbury. Also residing in the home was J.P.’s step-brother, the accused T.W.

[7] It was J.P.’s evidence that L.P. lived at R.P.’s residence from December 7, 2015 to June 12, 2016. There was some discrepancy on this point in the evidence called by the defence, but there appears to be consensus that L.P. resided with R.P. and his family from early December 2015 to June or July of 2016.

[8] J.P.’s evidence led me to understand that he had infrequent contact with L.P. while she was residing with his father. He testified that he watched her while R.P. was at work in December 2015 until New Year’s Eve. He went to visit at Easter but, following a confrontation with his brother Brandon, was asked by R.P. to leave and not to come back. It was his evidence that he did not know where R.P. lived when he moved to Garson in June 2016; when L.P. returned to his care in June or July 2016, J.P. picked her up at a Wal-Mart.

[9] In August 2018, a little more than two years after L.P. stopped residing with R.P. and Rh.P., she disclosed to her father that the accused, T.W., had been sexually inappropriate with her. J.P. contacted the police who conducted an investigation, including an interview with L.P.; as a result of that investigation, T.W. was charged. Prior to her disclosure to her father, L.P. advised the police that she had told G.L., the younger daughter of her father’s girlfriend, that she had been hurt by her uncle doing “inappropriate stuff” to her, but that they, “kept it a secret because [they] didn’t wanna tell anyone until it was the right time”.

[10] L.P.’s evidence before the court consisted of her videotaped statement to Detective Constable D. Dewar (“D/C Dewar”) of the Greater Sudbury Police Service on August 20, 2018, as well as her oral evidence at trial, where she testified remotely by video.

[11] In her videotaped statement, L.P. advised D/C Dewar that she was speaking to the police, because there had been a lot of “inappropriate stuff” happening in her family. When asked to clarify, she indicated that there had been, “a lotta inappropriate videos” and “some sex happening”. She went on to say that her uncle T.W. was being, “a little bit too weird with different little kids”. On cross-examination, she clarified that when she said, “little kids” in the context of “sex happening”, she meant only herself, but that she had witnessed T.W. showing, “scary things” to little kids, including her cousin Jacob. On re-examination, she stated that she did not observe T.W. showing scary videos to anyone else.

[12] When asked by D/C Dewar to give examples of what her uncle was doing, L.P. initially explained that he was showing bad examples by only cooking one kind of food for a day and by showing nightmare videos, killing videos and some inappropriate videos. When asked to give an example of inappropriate videos, she initially described a video game which ended with a girl that screams in your face followed by a picture of a “really creepy ghost girl”.

[13] L.P. also described in her interview with D/C Dewar that T.W., liked to “teach” her about sex. She described that he would push her into his bedroom and lock the door behind her. In her oral evidence before the court, she described hearing the door lock, trying to open the door and being unable to do so until T.W. opened the door. On cross-examination, she testified that the door locked both from the inside and the outside.

[14] L.P. advised D/C Dewar that, while locked in T.W.’s bedroom, she would see videos of, “boys and girls doing it”, as well as some, “scary videos”. She would be alone in his bedroom while the “sex videos” were playing. She described these incidents as making her feel, “uncomfortable”. Although her evidence on this point vacillated, she eventually confirmed during cross-examination that T.W. did not watch the “sex videos” with her but stated that he did watch other videos with her.

[15] When asked by D/C Dewar about her reference to sex, L.P. advised that T.W., “likes to know about it and sometimes he does it on little kids”. When asked why she would say that, L.P. stated, “Because uhm, it happened once. But it happened for the whole time I was living with uhm, my grandma and grandpa.”. L.P. later reiterated several times during her statement to D/C Dewar that sexually inappropriate behaviour had occurred throughout the time that she lived with her grandparents. When asked on cross-examination why she had initially used the word, “once”, she said that she meant, “multiple times” but that she did not know what word to say.

[16] L.P. advised D/C Dewar that, while her grandparents were at work, T.W. would engage in sexually inappropriate behaviour with her. She advised D/C Dewar that her grandparents would leave for work late in the morning and would work for the whole day until night. She stated that T.W. would watch her while her grandparents were at work. In her oral evidence, she testified that she was left alone with T.W., “multiple times every day”. On cross-examination, L.P. confirmed that her grandparents worked from Monday to Friday. She testified on cross-examination that she was alone with T.W. most of the time that she lived with her grandparents.

[17] In her oral evidence, L.P. testified that she went to school on the school bus every morning, and that she was picked up after school by her grandparents, either by car or from the school bus. On cross-examination, she testified that it was always her grandfather who put her on the bus in the morning and picked her up after school; she testified that it was never her grandmother who picked her up after school.

[18] During her interview with D/C Dewar L.P. was asked what “inappropriate things” T.W. had done. She initially testified, “Like, he’ll try-, every time there’s a lil-, like, little kids around, he would try to like, sex with them or something.” When asked who T.W. had done that to, L.P. initially testified, “Me and some of my cousin-, this-, well, one of my uncles.” She then recounted that she had heard her father talking about T.W. and that she thought that something had happened to her uncle Austin. Later in her statement to D/C Dewar she stated, “I never seen him doing anything but every time he watches me, he does that but every time he-, he watches me and my cousin, he doesn’t do it. So when people are around, he doesn’t do it.”

[19] L.P. described in her interview with D/C Dewar that T.W. would remove his pants after her grandparents had left for work. She advised D/C Dewar, “when they were gone, he would take off his pants and just leave them off for the rest of the day.” She described that he would, “run around the house doing whatever he wants.” She stated that he would put his pants back on when her grandparents came home. She described that she would sometimes go to a friend’s house, “So I don’t have to be near it.” On cross-examination, she confirmed that he would not be naked from the waist down, but rather that he was wearing underwear and a t-shirt.

[20] L.P. also disclosed to D/C Dewar that T.W. had showed her an “inappropriate” piece of his body, and that he would try touching her with it. She explained that the “inappropriate” piece of his body was his front private, where he went to the bathroom. In her oral evidence at trial, L.P. clarified that the part of the body that she was referencing in her statement was T.W.’s penis.

[21] Initially, after describing that T.W. showed her “inappropriate” pieces of his body and that he would try touching her with it, L.P. stated, “And that’s really all he does”. As the interview continued, however, her disclosures became more expansive and more serious. She disclosed that in addition to trying to touch her with his private that he actually did touch her with his private. She described that he would touch his private to the area of her private, near her butt, where she would go to the bathroom. In her oral evidence at trial, L.P. clarified that in referring to her “private” in her statement to D/C Dewar, she was describing her vagina.

[22] L.P. initially advised D/C Dewar that T.W. would put his private “near” her private, but later stated that he would rub it on top of her private and finally that sometimes he would go inside of her private with his private. She stated that he would rub his private against her, and would tell her that, “this is what you do with your girlfriend-, if you have a boyfriend”. She also stated that he would smile when he put his private inside of her private. When asked on cross-examination why she did not initially advise D/C Dewar that T.W. had put his private inside her private, L.P. testified that she did not like saying inappropriate words. She could not remember during cross-examination how many times it had happened (T.W. putting his private inside her private), but testified that it happened more than once.

[23] D/C Dewar asked L.P. whether there was anything else that she had told her father about that she hadn’t disclosed in her interview with him. She said that T.W. would lay on top of her, but that her father did not know about that. She described that, “sometimes I wouldn’t be able to breathe because he’s too big on me.” She said that he would have his pants off and that he was rubbing his front private part on top of hers.

[24] When asked how the incidents with T.W. would end, L.P. advised D/C Dewar that she would push T.W. away from her. She described that she would try pushing him off, but that sometimes she would kick him. She later described kicking him in the stomach. She also described that sometimes things would end when the door opened, and her grandparents came home.

[25] L.P. was asked by D/C Dewar to describe how it made her feel when T.W. put his private near or in her private. She variously described it as feeling, “uncomfortable”, “unsafe” and “illegal”. She did not want to describe what T.W.’s private looked like, and later said that she did not know how to explain what it looked like. When asked by D/C Dewar if she was ever hurt from something that T.W. had done to her, L.P. advised D/C Dewar that T.W. would hurt her when he kicked her; she stated that he would kick her when she kicked him and pushed him away from her.

[26] When L.P. initially disclosed that T.W. had shown her his private, D/C Dewar asked her where the incidents had occurred. She advised him that they occurred in her grandma and grandpa’s house, but that she could not remember where they occurred in the house.

[27] As the interview with D/C Dewar progressed, L.P. testified that T.W. had removed her pants and underwear and had rubbed his private near her butt while she was in the living room using her tablet. During her oral testimony she indicated that the incident in the living room happened in the “new house”, which was the second house that she lived in with her grandparents. She testified that the living room incident happened on the couch and that it made her feel, “uncomfortable” and that she “didn’t like it”. It was not clear from L.P.’s evidence whether there was more than one incident on the couch in the living room.

[28] L.P. also advised D/C Dewar that T.W. had tried to lay down on top of her and rub his private on top of hers, with their pants off, in her bedroom. She advised D/C Dewar that these incidents occurred on her bed, where she was playing with her tablet. In her oral evidence, she testified that the incidents in her bedroom happened in the “first house” where she lived with her grandparents. She testified that T.W. never went into her bedroom in the “second house”. She testified that during the incidents in her bedroom she felt, “uncomfortable” and “unsafe”.

[29] L.P. also testified in her oral evidence, both in direct and cross examination, that sexual contact had occurred in T.W.’s bedroom. It was initially unclear whether these incidents occurred both in the “first house” and the “second house”, although L.P. later stated unequivocally in cross-examination that sexual contact had only occurred in the living room in the “second house”. It was not clear to me from L.P.’s evidence the nature of the sexual contact that she was alleging had occurred in T.W.’s bedroom in the “first house”.

[30] In addition to these incidents, L.P. described that T.W. would leave the door open every time that he went to the bathroom. She stated, “he would let me come see it, but I never did”.

[31] L.P. advised D/C Dewar that T.W. explained that he was doing, “inappropriate things” because his girlfriend had, “ditched him”.

[32] L.P. advised D/C Dewar that she tried telling her grandparents about what T.W. was doing to her but that, “they wouldn’t listen” and that, “they were saying to go away”. She advised D/C Dewar that she told her grandparents that T.W. was doing, “inappropriate things” and that he was, “making [her] watch scary movies.”

[33] In cross-examination, L.P. testified that she tried to tell her grandparents about the incidents with T.W., “a few times”. She could not recall when she tried to tell them. Later in cross-examination, she testified that she believed that she had tried to tell her grandparents twice, both times at the “first house”.

[34] During her interview with D/C Dewar, L.P. stated, “I found out that they actually knew because every time I went to camp they would give me candy so I wouldn’t say anything…And that’s because my dad knew because he’s really good at this because he went to law enforcement…So, he knew that they were just giving me candy for-, so I wouldn’t say anything.”

[35] During his cross-examination, J.P. testified that L.P. had advised him that she had told her grandparents about the alleged abuse multiple times, “until she was running out of air”. He testified that L.P. told him that she described to her grandparents that T.W. was doing, “inappropriate things” to her.

[36] In her oral evidence, L.P. testified that, when she moved in with her grandparents, she believed that she would be safe and cared for, but that did not happen. She testified that she found out that her grandparents were “liars” and that they, “don’t care” about the children who stay with them. On cross-examination, she testified that she figured out that her grandparents were liars because of things that she had been told by her father.

The Defence Case

[37] The first witness called on behalf of the defence was the accused, T.W. At the time of trial, he was twenty-two years old. He testified that he was eighteen years old when L.P. lived at his residence. He testified that he had, “a little bit of every type of disability”, including ADHD and Asperger Syndrome.

[38] T.W. testified that he had not completed high school. He had outstanding English and gym credits to complete, as well as his community service. He had planned to complete them before he was charged. He testified that he had never really been gainfully employed. He is a self-described “gamer” who spends his time on his computer playing video games and watching movies.

[39] It was T.W.’s recollection that L.P. was 4 or 5 years old when she moved into the residence that he shared with his mother, Rh.P. and his stepfather, R.P. It was his recollection that his stepbrother, Austin, lived with them while they lived on Leon Street in Sudbury; T.W. was the only witness to give this evidence. He testified that there was a one-year age difference between himself and Austin, and that Austin had a bedroom on the same floor as he and L.P. On cross-examination, he confirmed that he had told the police during his statement that his stepbrother, Brandon, had lived with them, but that he was incorrect in giving that information.

[40] T.W. testified unequivocally that he was not guilty of all charges before the court. He testified that his mother had taken him to the police station after the allegations were made and that he had given a voluntary statement during the police investigation.

[41] T.W. testified that his mother Rh.P. worked from 6am until 2 or 3 pm daily, and that his stepfather R.P. worked similar hours. He testified that R.P. would put L.P. on the bus daily, and that Rh.P. would pick her up from school.

[42] T.W. testified that he was alone with L.P. a maximum of four times during the six months that she lived with them, and never for more than two hours. This happened when his mother was late getting home from work and he had to watch L.P. after school. He testified that L.P. frequently went to camp on the weekends with R.P. and Rh.P; he did not like going to camp and chose to stay home to play video games. He testified that grocery shopping was usually done on the way to or from camp.

[43] T.W. denied kicking L.P. or touching her physically in any way. He specifically denied trying to touch her with his penis. He testified that he had never exposed himself to L.P. He denied walking around the house naked and testified that he would only walk around in a t-shirt and boxer shorts late at night when he went to the bathroom. He denied using the bathroom with the door open. He denied ever removing L.P.’s pants or underwear.

[44] T.W, testified that, not only had he never had sex with L.P., but he was still a virgin. He testified that he had never had a girlfriend, nor had he ever really wanted a girlfriend. On cross-examination, he admitted to watching pornography in the bathroom at home to satisfy his sexual urges. He testified that he would watch it on his phone, using headphones. He denied ever watching pornography in his bedroom.

[45] T.W. admitted to showing “scary things” to both children and adults. He testified that he also liked to jump out from behind corners to scare L.P., but that she did not like it. He testified that he played a “scary maze game” online that included jump scares and loud sounds; he would play it with his friends at school. After he left school, he would play it himself and he would try to scare his parents and his stepsisters with it. On cross-examination, he testified that he played a game called, “Bloody Mary” in which a woman’s face would “pop out” on the screen.

[46] T.W. denied showing, “inappropriate videos” to L.P. He testified that he would not even allow her to watch her favorite television show, “Vampire Diaries”, because she was not in the permitted age range to watch it.

[47] T.W. denied that he had ever locked L.P. in his bedroom. He testified that he did not have a lock on his bedroom door when L.P. lived with the family. He testified that he had a lock at one time, but that it was removed by R.P. and Rh.P. because they were “fed up” with the dirty dishes and dirty clothing that accumulated when he locked himself in his room to play video games.

[48] T.W.’s sister, M.L. testified. She is twenty-eight years old and is employed at Zulich Enterprises in Sudbury. She is the mother of six children, ranging in age from six months to eight years.

[49] M.L. testified that she has a close relationship with her brother. She testified that he has never had a girlfriend, and that he spends his time at home playing video games. She testified that T.W. has babysat her children, and that none of them have ever complained about him. She testified that her children love their uncle. M.L. was not cross-examined.

[50] R.P., the stepfather of T.W. and the grandfather of L.P. testified. He is fifty-four years old.

[51] R.P. testified that L.P. came to live with him at the suggestion of his brother, Brian. Prior to living with him, R.P. had not seen a lot of L.P. because she and her father had been “bouncing around” quite a bit.

[52] R.P. testified that L.P. came to his residence with a dresser, a bed and three garbage bags of clothes and toys. He described her clothes as, “quite old”. He testified that she was very well-mannered and mature. On cross-examination, he testified that L.P.’s school improved during the time that she resided with him. He testified that she was happy, she seemed stable and she had made a friend. The only disappointment that he observed while she lived with him was the lack of communication between L.P. and her father.

[53] R.P. testified that he would take L.P. to the school bus every morning, and that Rh.P. would pick her up after school. He testified on cross-examination that he did not recall T.W. picking her up after school; he testified that if there was a problem and Rh.P. could not pick her up, that she might go to a friend’s place. He testified that there were not a lot of opportunities for L.P. to be alone with T.W.

[54] R.P. testified that L.P. was alone with T.W. three or four times while she lived with them. He confirmed this on cross-examination and testified that she would have been alone with T.W. thirty to forty minutes each time. When it was put to him that he had told the police that L.P. had been left alone with T.W. while he or Rh.P. ran to the mall or to get groceries, he did not deny that this occurred, but stated that it would not be for long periods of time. He testified in direct examination that L.P. liked to go shopping.

[55] R.P. testified that L.P. enjoyed T.W.’s company. He testified that she would ask about him if he was not at home. She asked to watch him play video games. They let her do that a couple of times, but eventually they got her a laptop with games more appropriate for children her age.

[56] On cross-examination, R.P. testified that he could not recall if T.W.’s room had a lock on the door when L.P. moved in. He confirmed that there had been conflicts about the cleanliness of T.W.’s room, and that, at some point, the lock had been removed. He also confirmed that there was no door on T.W.’s basement room in the home that they moved to in Garson in June 2016.

[57] R.P. testified that L.P. had never disclosed to him that she had been the victim of any “inappropriate behaviour”. He testified that she never spoke to him about what she and T.W. did when they were alone together. On cross-examination, he testified that she would complain that T.W. ate all of the cookies, drank all of the milk or jumped out from behind a door and scared her.

[58] R.P. testified in cross-examination that he felt that children were comfortable talking to him. He testified that he was used to fielding complaints from children and felt that he communicated well with them. He did not think that L.P. was uncomfortable with him. He testified that he did not think that he would have forgotten L.P. telling him that something “inappropriate” was going on; he did question the use of the word, “inappropriate” by a seven year old child.

[59] R.P. testified, both in direct and cross examination, that he had never given L.P. candy to influence her not to disclose any inappropriate behaviour by T.W. He testified in cross-examination that he gave her what she needed, and that if she asked for something and he had it, he would give it to her.

[60] R.P. testified that after L.P. returned to her father’s care, he only saw her a few times. He first became aware of L.P.’s allegations when his son J.P. contacted him to say that L.P. was claiming that she had been sexually assaulted by T.W. He testified that there was “lots of swearing” and “lots of ruckus”. Rh.P. brought T.W. to the police station to find out what was going on.

[61] R.P. testified that in July 2018, L.P. had asked him and Rh.P. if she could move back in with them. The following month, T.W. was charged.

[62] The last witness for the defence was T.W.’s mother, Rh.P. She testified that she was employed by Zulich Enterprises and also by GDI as the head cleaner at the Laurentian University residences.

[63] Rh.P. testified that L.P. had moved into the residence that she shared with her husband R.P. and her son T.W. at the beginning of December 2015. She testified that she came with a bed, a dresser and two to three bags of broken toys and clothes that did not fit.

[64] With respect to T.W., Rh.P. testified that he had Attention Deficit and Hyperactivity Disorder (ADHD), Oppositional Defiant Disorder (ODD,) a touch of Autism Spectrum Disorder (ASD). She testified that he had lived at home with her all of his life, except for year when he lived with his sister, M.L.

[65] Rh.P. testified that she had a good relationship with L.P. She testified that they, “did everything together”. She was responsible for bathing her every night. She styled L.P.’s hair and did her nails. On cross-examination, she testified that L.P. was with her, “all the time”. She testified that L.P. went with her when she went grocery shopping.

[66] Rh.P. testified that T.W. did not have a lock on his bedroom door while L.P. was living with them.

[67] Rh.P. testified that T.W. was alone with L.P., “maybe three times”. She testified that occasionally he would walk her to her friend’s house after school. She testified that L.P. and T.W. had a good relationship and that L.P. “loved” T.W. She testified that she was always around L.P. and T.W., and that L.P. wanted to play with T.W. and to play on his computer.

[68] Rh.P. testified that L.P. was open with her, and that she did not observe anything amiss with her. She testified on cross-examination that L.P. would, “tattle” on T.W. She described that L.P. had complained that T.W. was jumping out of corners and scaring her. Rh.P. testified that she spoke to T.W. about it and he stopped.

[69] Rh.P. testified that L.P. never expressed to her that T.W. was doing anything inappropriate to her, either when she was living in their residence or after she left. She testified that it was, “not possible” that L.P. had disclosed something to her and that she had misunderstood it. She testified that, had L.P. made such a disclosure or if she “had a shadow of a doubt” that something had occurred, she would have taken T.W. to the police station herself. She testified that T.W. was well aware that she would have done that.

[70] Rh.P. testified that, when she first heard that L.P. was making allegations against T.W., she “lost it”. She testified that she questioned him for an hour when she first heard about it. She testified that the first time that she heard the particulars of L.P.’s allegations was when T.W. was arrested and in his bail hearing.

[71] Rh.P. acknowledged in cross-examination that she had a grade eleven education and no special training in childhood trauma, sexual abuse or dealing with children. She did, however, testify on cross-examination that she was a survivor of sexual abuse herself.

[72] Rh.P. denied that she ever discouraged L.P. from reporting anything that had happened between herself and T.W.

[73] Rh.P. testified that L.P. asked if she could move back into her and R.P.’s residence; she thought that occurred sometime in 2017. She testified that, “things seemed to be good” with L.P. and that she was, “all smiles and hugs” with her.

Law

Burden of proof

[74] It is a fundamental principal of the Canadian criminal justice system that every accused person is presumed to be innocent of the charges he or she is facing. At trial, the Crown has the evidentiary burden of proving, beyond a reasonable doubt, that the accused committed the offences with which he or she is charged: R. v. Lifchus, [1997] 3 S.C.R. 320, at para. 4.

Credibility and reliability

[75] The complainant has stated unequivocally that she was sexually assaulted by the accused. The accused has categorically denied that the alleged sexual assaults occurred. In the face of these competing narratives, the outcome of this case hinges upon the assessment of the credibility and reliability of the respective witnesses for the Crown and the defence.

[76] As noted by Watt, J.A. in R. v. C.(H.), 2009 ONCA 56 (para. 41):

Credibility and reliability are different. Credibility has to do with a witness’s veracity, reliability with the accuracy of the witness’s testimony. Accuracy engages consideration of the witness’s ability to accurately:

i. observe; ii. recall; and iii. recount

events in issue. Any witness whose evidence on an issue is not credible cannot give reliable evidence on the same point. Credibility, on the other hand, is not a proxy for reliability: a credible witness may give unreliable evidence: R. v. Morrissey (1995), 22 O.R. (3d) 514 (Ont. C.A.) at 526.

[77] Consistency is a significant consideration in assessing the credibility and reliability of witness testimony. It is a multi-faceted assessment, which involves a review of the witness’s pretrial statements and trial evidence, the witness’s evidence on direct examination and cross-examination and the witness’s evidence in relation to the evidence as a whole. A lack of consistency, particularly with respect to material facts and issues, may be fatal to the court’s acceptance of all or part of a witness’s testimony. (R. v. M.(A.), 2014 ONCA 769 (paras.9-13))

[78] In this matter, an assessment of the Crown’s case depends largely upon the credibility and reliability of the evidence of L.P., a child, who was seven years old at the time of the alleged incidents and twelve years old at the time of trial. The standard to be applied in assessing the credibility and reliability of a child witness is not necessarily the same as that to be applied in assessing the credibility and reliability of an adult witness. As noted by Wilson, J. in R. v. B.(G.), [1990] 2 S.C.R. 30 (para. 56), it is appropriate to apply a “common sense” approach in assessing the testimony of a child and not to impose the same, “exacting standards” on a child’s evidence as one would on an adults. A flaw or a contradiction in a child’s testimony should not be regarded in the same manner as one in an adult’s testimony.

[79] While a “common sense” approach and less “exacting standards” ought to be applied in assessing L.P.’s evidence, this cannot occur at the expense of the accused. The standard of proof beyond a reasonable doubt remains paramount. Further, the evidence of the accused cannot be held to a stricter standard of scrutiny than that of the complainant. (R. v. C.(H.), 2009 ONCA 65 (para. 62); R. v. B.(G.), [1990] 2 S.C.R. 30 (para. 56)).

Credibility and Impermissible Reasoning

[80] In addition to the special care which must be taken in considering the evidence of child witness, attention must also be paid to the manner in which the court approaches the evidence of a sexual assault complainant. This evidence must be assessed on a case-by-case basis and not viewed through the lens of how one “expects” a victim of a sexual crime to conduct themselves. Stereotypes and societal expectations have no place in the courtroom during a sexual assault trial. Adverse inferences cannot be drawn, for example, from delayed disclosure of a sexual assault or from a complainant’s ongoing association with an accused. This is particularly true when the complainant is a child and the accused is a family member – there is no script or playbook delineating how a child can be expected to act in such circumstances. (R. v. A.R.D., 2017 ABCA 237; R. v. D.(D.), 2000 SCC 43)

The rule in W.(D.)

[81] In this case, the accused, R.P. and Rh.P. have provided exculpatory evidence in support of the defence position that the sexual assaults alleged by L.P. did not occur. In assessing the evidence, I have applied the framework set out by the Supreme Court of Canada in R. v. W.(D.), [1991] 1 S.C.R. 742. In that case, the court set out the following guidelines for assessing the credibility of conflicting witness evidence (at 757-58):

In a case where credibility is important, the trial judge must instruct the jury that the rule of reasonable doubt applies to that issue. The trial judge should instruct the jury that they need not firmly believe or disbelieve any witness or set of witnesses. Specifically, the trial judge is required to instruct the jury that they must acquit the accused in two situations. First, if they believe the accused. Second, if they do not believe the accused's evidence but still have a reasonable doubt as to his guilt after considering the accused's evidence in the context of the evidence as a whole. [emphasis in original, references omitted]

… A trial judge might well instruct the jury on the question of credibility along these lines:

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.

Analysis

[82] At the outset, I will say that I was impressed with the evidence of R.P. and Rh.P, and I viewed their evidence with respect to material facts and evidence to be generally consistent, reliable and credible.

[83] R.P., in particular, struck me as a very straightforward witness. He was not argumentative or confrontational and willingly admitted to potential memory lapses when minor inconsistencies were raised on cross-examination between his pretrial statements and his trial evidence. He was neither an advocate for his stepson nor did he demonize his granddaughter L.P. or his son J.P. He appeared to me to make a genuine effort to be truthful and not to embellish his evidence.

[84] Rh.P. was, at times, defensive as a witness however, overall, I found her evidence to be credible and reliable. While she was obviously concerned about her son, I was not left with the impression that she was defensive because she was advocating on his behalf. Instead she appeared to be defensive about the suggestion that she had ignored L.P.’s efforts to disclose T.W.’s abuse. It was clear to me that Rh.P. had taken a special interest in L.P. during the six months that L.P. lived with her and viewed their relationship as open, close and loving. It was my impression that Rh.P.’s defensiveness came from feelings of disappointment and betrayal that L.P. was now saying that Rh.P. had knowingly failed to protect her from sexual abuse. The fact that Rh.P. was herself a survivor of sexual abuse made that suggestion even more offensive to her.

[85] T.W., the accused, presented as a very immature individual. No medical evidence was submitted in support of his stated disabilities however, I have no difficulty accepting that, at minimum, there are issues with his social development. He appeared to have developed very little in the way of a life for himself outside of the four corners of his video game terminals. I had doubts about the credibility of some of his evidence (for example, his evidence that he never watched pornography in his bedroom or that he did not walk around the house in his t-shirt and boxer shorts during the day). He appeared to me to be an individual who had difficulty admitting and accepting responsibility for his actions. The fact that his bedroom door lock was removed by his parents when he was practically an adult because of his failure to practice basic self-care, to me, spoke volumes about both his immaturity and his inability to self-regulate.

[86] L.P., the complainant, presented just as her grandfather R.P. described her in his evidence – as mature and polite. She also presented as deeply loyal to her father, J.P. Unfortunately, it was my view that this loyalty undermined both the credibility and the reliability of L.P.’s evidence.

[87] While it was not explicitly highlighted in arguments, there was an undercurrent in the evidence of conflict between J.P. and his father R.P., including conflict regarding L.P.’s care and best interests. The suggestion that L.P. arrived at her grandfather’s residence with little more than the clothes on her back, the limited contact between J.P. and L.P. while she was residing with her grandfather, the fact that J.P. was asked to leave his father’s residence and not return during the Easter weekend in 2016, the fact that J.P. did not appear to know where R.P. had moved in Garson and was required to pick up his daughter in a Wal-Mart parking lot, L.P.’s statements that her father had helped her to understand that her grandparents were “liars” and R.P.’s evidence that L.P. had asked to return to live at his residence shortly before the allegations leading to the charges before the court gave me the impression of a complicated family dynamic that may have influenced the actions and evidence of some of the involved parties, particularly L.P. and J.P.

[88] As I watched L.P.’s videotaped statement with D/C Dewar, I was left with the distinct impression that she had been coached or prepared in advance of her attendance at the police station. Her repeated use of the word, “inappropriate” seemed programmed and lacked authenticity, even for a child with L.P.’s relative maturity. At one point during her oral testimony, when asked to describe how sexual intercourse with T.W. felt, she described it as, “unsafe” and “illegal”, which also seemed to me to be a very adult choice of words. She either refused to or could not describe T.W.’s penis. When asked if any of her encounters with T.W. had hurt her, she described that he had hurt her by kicking her. There was little to no evidence by her that led me to believe that she had experienced the act of sexual intercourse with the accused as she alleged.

[89] It was also clear that D/C Dewar had spoken to J.P. in advance of the interview, and that J.P. had made specific allegations of abuse that D/C Dewar was attempting to explore with L.P. during the interview. More than once, D/C Dewar asked L.P. if there was anything else that she had told her father or anything that her father may have told D/C Dewar that she wanted to tell him about. In some instances, this prompted disclosure of escalating and more serious sexual conduct by T.W. I also found it problematic L.P. reported that her father had told her, in advance of her police interview, that her grandparents were liars and that they had attempted to bribe her with candy to prevent her from disclosing abuse. Further, was apparent that he had discussed potential sexual abuse of his brother Austin by T.W. in L.P.’s presence.

[90] To be clear, I am not suggesting that I observed any impropriety by D/C Dewar, who appeared to me to be treading very carefully not to put words into L.P.’s mouth. Rather, I am suggesting that it was clear that L.P. and her father had discussed the allegations against T.W. in detail in advance of her police interview. This made it impossible for me to distinguish between L.P.’s own evidence and allegations that may have arisen as a result of her discussions with her father. This severely undermined the credibility and reliability of her evidence.

[91] There were also marked inconsistencies between L.P.’s evidence and evidence from other witnesses that I accepted as truthful, as well as the evidence as a whole, which led me to question the credibility and reliability of her evidence. Specifically:

a. L.P. described that T.W. would lock her into his bedroom and force her to watch pornography. This is at odds with the evidence of Rh.P., which I accepted and which was essentially corroborated by T.W. and R.P., that T.W. did not have a lock on his bedroom door during all or most of the time that L.P. lived in the P. household. b. L.P. described that her grandparents would leave for work late in the morning and would work for the whole day until night, which is at odds with the evidence of T.W., R.P. and Rh.P, which I accept, that they worked early in the morning until mid-afternoon. c. L.P. described that her grandmother never picked her up after school, which is at odds with the evidence of T.W., R.P. and Rh.P., which I accept, that Rh.P. picked her up almost every day after school. d. L.P. described being left alone at home “multiple times every day” and “most of the time” with T.W. While I accept that she was likely left alone with T.W. more than the three or four times suggested by the witnesses for the defence, I also accept that it was not a regular occurrence and that she was not left alone for lengthy extended periods of time due to the evidence, which I accepted, about the work schedules and the regular routines of R.P. and Rh.P. e. L.P. described disclosing to her grandparents that T.W. was “acting inappropriately” with her, and that they dismissed her and refused to address her concerns. There were varying stories about when, where and how often the disclosures took place. In his evidence, J.P. indicated that L.P. had told him that she spoke to her grandparents until she was, “out of air”. Both R.P. and Rh.P. were adamant that L.P. had never made such a disclosure. The suggestion that R.P. and Rh.P. would have dismissed such serious concerns or repeated concerns when they had clearly disciplined T.W. for other, lesser conduct (for example, jumping out and scaring L.P.) is at odds with the evidence as a whole and is not credible.

[92] Finally, I would say that the accused presented to me as an individual who was extremely unmotivated to do much beyond playing his video games and watching movies. I would again point to the fact that he could not even find the motivation to clean his bedroom and put away his dishes to avoid having the lock removed from his bedroom door. While I had doubts about the credibility of some the accused’s evidence, I had difficulty believing that the accused was capable of mustering the motivation to engage in the campaign of predatory, exploitative, intentional sexually abusive behaviour that was described by the complainant. I am not saying that it is impossible, but I felt at the conclusion of the trial that it was highly unlikely.

Conclusion

[93] In the circumstances, I am not persuaded beyond a reasonable doubt that T.W. committed the offences of sexual assault and sexual interference of which he is accused. Given this, and the Crown’s acknowledgment that it has not discharged the burden of proving the charge of making sexually explicit material available to a child, I hereby acquit the accused, T.W. with respect to all charges.

Cullin, J. Released: August 21, 2020