COURT FILE NO.: CR-17-3884

DELIVERED ORALLY: Tuesday, August 25, 2020

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

JIMMIE WAYNER

Kimberley M. Bertholet, for the Crown

Paul F. Esco, for the Defence

HEARD: October 29, 30, 31, November 1, and 2, 2018, April 15, 2019, and January 13, 14, and 20, 2020

REASONS FOR JUDGMENT

Howard J.

Overview

[1] In a nine-count indictment, the accused, Mr. Jimmie Wayner, is charged with, among other things, three counts of sexual assault, contrary to s. 271 of the Criminal Code,[^1] three counts of sexual interference, contrary to s. 151 of the Code, and one count of invitation to sexual touching, contrary to s. 152 of the Code.

[2] All seven of the sexual offence counts involve the same complainant, a young female person, who is shielded from identification in this proceeding; hence, I refer to her as “the complainant” or by the initials “J.D.”

[3] At the time of the alleged incidents, Mr. Wayner was dating the complainant’s mother, to whom I refer by the initials “P.E.”

[4] All of the alleged sexual offences are said to have occurred within the same time-period, being from June 25, 2015, to September 1, 2015. J.D., who is a person with disabilities, was not yet nine years of age at the time of the alleged incidents.

[5] The charges in question involve incidents that are said to have occurred in Mr. Wayner’s apartment, when P.E. and her children came to visit him.

[6] The evidence here is disturbing. Based on the statements given by the young J.D. to the police, the evidence of the complainant includes allegations that Mr. Wayner touched her vaginal area while they were sitting watching a movie and that, on another occasion, Mr. Wayner put his penis into the little girl’s mouth and ejaculated in her mouth.

[7] While Mr. Wayner did make various inculpatory statements to the police when he was first interviewed, the voluntariness of which statements was initially challenged by the defence but subsequently conceded, Mr. Wayner recanted his statements at trial. At trial, Mr. Wayner maintained that the allegations against him are completely false and that the incidents of alleged abuse never happened. Accordingly, Mr. Wayner pled not guilty to the charges.

[8] Thus, the heart of the case is whether the alleged sexual touchings actually occurred or not – or, more accurately, whether the Crown has proven beyond a reasonable doubt that the touchings occurred.

[9] The hearing of this matter was held, without a jury, in Windsor on October 29, 30, 31, November 1, and 2, 2018, April 15, 2019, and January 13, 14, and 20, 2020. The court heard evidence from eleven witnesses over eight days. Final submissions were delivered on the ninth day. The witnesses at trial consisted of the complainant, the complainant’s older sister, the complainant’s mother, the complainant’s caregiver/tutor, the Crown’s DNA expert, police officers, the defence expert, and Mr. Wayner.

[10] In her closing submissions at trial, Ms. Bertholet for the Crown indicated that the Crown was not seeking the conviction of Mr. Wayner on counts 8 and 9 of the indictment, which involve allegations that Mr. Wayner made certain threatening remarks, contrary to s. 264.1 of the Code. I say simply that I agree with Ms. Bertholet’s submissions that the evidence before the court in respect of those two counts is not capable of belief beyond a reasonable doubt. Accordingly, an acquittal shall be entered on each of counts 8 and 9.

[11] The attendance for the delivery of judgment in this matter was initially scheduled for May 28, 2020. However, as we all know, on March 15, 2020, the Chief Justice of the Superior Court of Justice (“SCJ”) announced that in order to protect the health and safety of all court users and to help contain the spread of the 2019 novel coronavirus (COVID-19), the SCJ was suspending all in-person attendances, effective Tuesday, March 17, 2020, until further notice.

[12] Accordingly, by order of Morawetz C.J. dated March 15, 2020, for any accused person who had a criminal matter scheduled for any type of appearance in the SCJ in the month of May 2020, that matter was adjourned to June 4, 2020. By further order of Morawetz C.J. dated May 5, 2020, all criminal matters that had been adjourned to June 4, 2020, were further adjourned to July 8, 2020, at which time this matter was scheduled for delivery of judgment today. On consent of the parties, it was agreed that today’s appearance may proceed by way of virtual hearing held by Zoom video-conference.

Factual Background

[13] I do not propose to recount the entirety of the evidence given by each of the witnesses who testified at trial in any great detail. My review of the evidence is limited to those facts that are significant to the central issues or that provide context necessary to appreciate and determine the relevant issues. I will consider certain details of the relevant evidence in the course of my analysis below.

[14] The complainant was born in September 2006. Mr. Wayner was born on June 22, 1988.

[15] It is common ground that the complainant is a child with special needs. While there was no medical or psychological evidence before the court as to the exact nature or extent of J.D.’s limitations, the complainant’s challenges were demonstrably apparent in both the testimony she gave at trial and the video-taped statements she gave to the police. Both counsel at trial and the interviewing officers had some difficulty keeping J.D. focused on the questions at hand; her attention appeared limited, and she was easily distracted. In addition, J.D. presented with some degree of intellectual or developmental delay. In her closing submissions, Crown counsel observed that J.D. “functioned at a lower age-level” than her chronological age. As well, the evidence of J.D.’s tutor or caregiver was that her wages were paid out of a “disability” fund that had been established for J.D.

[16] In a similar vein, it is common ground that P.E., the complainant’s mother, also functions with some mental health challenges, the precise nature of which was not explained in the evidence.

[17] Finally, the defence placed great emphasis on the challenges that Mr. Wayner himself faces. The defence expert called at trial, Dr. Saadia A. Ahmad, who was qualified to give opinion evidence in clinical psychology with an expertise in nonverbal learning disorders, testified as to Mr. Wayner’s cognitive and psychological capabilities. Dr. Ahmad assessed Mr. Wayner and diagnosed him as having a Nonverbal Learning Disability.

[18] In explaining the capabilities of a person with a Nonverbal Learning Disability, Dr. Ahmad gave the example of a person who speaks well and apparently possesses a good vocabulary but does not necessarily understand context or concepts as well as his or her speech may suggest. Dr. Ahmad testified that a person with Nonverbal Learning Disability tends to be “very literal,” is very “in the moment,” and is “not good at context.” Dr. Ahmad testified that for such a person, it is “the immediate dominant need that dictates the behaviour” and that such a person “may not think of the consequences of their action.”

[19] The evidence of Dr. Ahmad was that in the course of her assessment of Mr. Wayner, she considered other assessments and reports, including a psychological assessment from June 2017 – that is, after the events in question here – from a Dr. Casati, a psychologist, who opined that Mr. Wayner’s abilities are consistent with a diagnosis of Fetal Alcohol Spectrum Disorder. Dr. Ahmad was also aware of, as reflected in Dr. Casati’s report, the long history of Mr. Wayner being variously diagnosed with different mental health disorders over the years, including Attention Deficit Hyperactivity Disorder, Obsessive Compulsive Disorder, Schizophrenia, and others. Dr. Ahmad testified that she specifically worded her own report so as not to list all of the previous noted disorders, explaining that an individual may be subject to different diagnoses over time. Rather, Dr. Ahmad preferred to leave it on the basis that Mr. Wayner had a Nonverbal Learning Disability and that his “clinical picture was consistent with someone who has a number of longstanding mental disorders.”

[20] At the time of the alleged incidents, Mr. Wayner was living in an apartment in Kingsville, Ontario.

[21] As I have said, at the time of the alleged incidents, Mr. Wayner and P.E., were involved in a boyfriend-girlfriend relationship. They had begun dating in the summer of 2015. P.E. was about 31-years-old at the time, and Mr. Wayner was 27-years-old. It appears their relationship was a brief one, measured by a matter of weeks rather than months.

[22] P.E. has four children, including the complainant. The Crown does not allege that any of the complainant’s three siblings were involved in any of the alleged sexual offences.

[23] P.E. and her children resided with her mother, that is, the children’s maternal grandmother, and P.E.’s step-father in the grandparents’ home in Kingsville. I refer to the grandmother by the initials “K.D.”

[24] The family was assisted by a person who was variously described as a tutor, a family friend, and even the complainant’s godmother, to whom I refer by the initials “G.N.” G.N. testified at trial. She had worked with the family for several years, and she explained her role by saying that she helps the family by taking J.D. from the family home for respite care, stating that because of J.D.’s disability, “she needs a break from the family, and the family needs a break from her.” As such, G.N. would bring J.D. to her own home for respite care. G.N. also helped J.D. with her homework four times a week and provided respite care about four or five times a week and sometimes on weekends. G.N. testified that she was paid for her tutoring and caregiving duties, through a fund that was established for J.D.’s disability.

[25] G.N. testified that her schedule with J.D. continued into the summer, and that in the summer of 2015, the mother P.E. had opted to take the children out of daycare. G.N. observed that in the summer of 2015, it seemed like J.D. spent more time at G.N.’s place than she did at home. Indeed, the family kept several changes of clothing for J.D. at G.N.’s home because, as G.N. explained, J.D. was prone to accidents and spills. Throughout the week, G.N. would pick up J.D. every day, usually at 2:00 p.m., and she would do activities and tutoring with her. G.N. explained that because of the nature of J.D.’s disability, it was important that the child have a consistent routine and structure. G.N. described that she sometimes encountered some difficulty with the complainant’s mother in maintaining a consistent schedule because, as she said, P.E. was “never home for me to pick her up” and G.N. or the grandmother would often have to look for P.E. or text her as to her comings and goings.

[26] It is common ground that from time to time during the course of their relationship, P.E. would go to visit Mr. Wayner at his apartment in Kingsville. On some of these occasions, she brought her children with her to visit. As referenced, all of the charges in question involve incidents that are said to have occurred in Mr. Wayner’s apartment.

[27] It appears plain that P.E.’s relationship with Mr. Wayner caused some friction between herself and her mother, K.D., and G.N. It appears that K.D. and G.N. were not particularly fond of Mr. Wayner and/or did not approve of P.E.’s relationship with him. Certainly, in Mr. Wayner’s view, he believed that K.D. and G.N. very clearly did not like him. The evidence suggests that when P.E. went to visit Mr. Wayner at his apartment, her mother would often be on the phone with P.E. constantly throughout the visit.

[28] I note that the evidence indicates there was at least one time when the complainant’s mother left J.D. alone with Mr. Wayner at his apartment. The evidence of the complainant is that she was left alone with Mr. Wayner. Even her mother admitted that she left J.D. alone with Mr. Wayner on at least one occasion. Further, J.D.’s older sister gave evidence at trial, and the sister’s evidence was that she knew of one instance when her mother left J.D. alone with Mr. Wayner at his apartment. The sister was 13 years of age at trial, and 10 years of age at the time of the incident. Her evidence was that she attended at Mr. Wayner’s apartment on two occasions, and on the second occasion, she was there with her mother and J.D., but then she and her mother left to go shopping, leaving J.D. alone with Mr. Wayner at the apartment. The sister’s evidence is that she and her mother were gone for about a half-hour. She recalls going to a bargain store and purchasing a small chalkboard. In cross-examination, Mr. Esco put to the sister whether she was “absolutely sure she left [J.D.] all by herself with Jimmie,” and the sister replied, “yes.” I accept her evidence.

[29] The initial disclosure of the alleged touchings came from J.D. to her caregiver, G.N., on September 1, 2015. The evidence of G.N. was that on that day, P.E. had told her that she wanted to spend the entire day with the children but that the grandmother had texted P.E. to say that the children had spent the morning with P.E. but that she should now take the children to G.N. to maintain some routine, particularly for the sake of J.D. G.N. recalls that it was very hot out that particular day, and the children arrived at her place hot and sweaty. The eldest child said that she was not feeling well on account of the heat, and G.N. told her that when she got home she should take a shower and relax in the air conditioning. The other children then left G.N.’s home, but J.D. remained. G.N. fed J.D. her lunch, and the child then said that she was hot and sweaty too and she also wanted to take a shower. G.N. stated that it was common for J.D. to shower at her home.

[30] G.N. testified that when J.D. got out of the shower and was towelling herself off, she was vigorously rubbing herself in her vaginal area with the towel, in response to which G.N. told the child not to rub so hard there lest she hurt herself. The evidence of G.N. was that J.D. replied, “Jimmie hurt me. He pushed there. He put his finger there. He hurt me.” I pause to note that defence counsel initially objected to this evidence, but Crown counsel clarified that she was not tendering the statement for the truth of its contents but, rather, for the limited purpose of recounting the narrative of how the disclosure was made. Defence counsel did not object to the court receiving the evidence for that limited purpose, and I allowed the evidence on that basis.

[31] G.N. then texted the grandmother that same day and said they needed to speak. K.D. and her husband came to G.N.’s home after work that evening, and G.N. told them what J.D. had disclosed to her. The grandparents advised that they were going to take J.D. to their family doctor for examination.

[32] Two days later, on September 3, 2015, J.D. was back at the home of G.N., who was helping the child with a reading comprehensive project in anticipation of the return to school. The evidence of G.N. was that in the course of her discussions with J.D. about school, the child made a further spontaneous disclosure to G.N. that, “Jimmie put his pee in my mouth,” and when G.N. questioned the child on how that happened, J.D. gestured with her hands as if her hands were rubbing up and down on a penis “and he then stuck it in my mouth.” G.N. testified that, with the child’s hand gestures, she then realized that J.D. was not speaking of “pee” as in urine but was speaking of a penis, as, she said, “P.” was the terminology permitted in the child’s home to refer to a penis.

[33] The evidence of G.N. was that she then contacted K.D. about this further disclosure, and the grandmother told her that they had taken J.D. to their family doctor, who referred her to a pediatrician. G.N. told K.D. that she needed to contact the police because “something definitely happened to this little girl.”

[34] As a result, on Friday, September 4, 2015, the grandmother reported the allegations to the Ontario Provincial Police. Later that same evening, K.D., G.N., and J.D. attended at the Essex County O.P.P. Detachment. Detective Constable Beauchamp met with J.D. that night and obtained a video-taped statement from her. However, given that by then it was getting late for the little girl – the interview started at about 9:43 p.m. that Friday night – and given further that J.D. was restless and having difficulty focussing on the questions, arrangements were made to have the complainant re-attend on an additional date for a further interview. To that end, on Monday, September 7, 2015, J.D. gave another video-taped statement to D.C. Beauchamp.

[35] I will review some of the relevant particulars of the complainant’s statements to the police in my analysis below.

[36] Mr. Wayner was arrested that same day. He was interviewed by Detective Constable Coene and provided a video-taped statement. The interview lasted about two-and-a-half hours, from about 10:23 p.m. until 12:55 a.m.

[37] During the course of his interview with D.C. Coene, Mr. Wayner made a number of inculpatory statements, admitting to some of the allegations of sexual touchings but denying others.

[38] Mr. Wayner said that the incidents in question happened “last month,”[^2] that is, in August 2015.

[39] At the outset of the proceedings, the Crown brought a voluntariness application to have the video-taped statement of Mr. Wayner admitted into evidence at trial. Initially, the defence contested the application.

[40] However, at the outset of the seventh day of the proceedings in this matter, Mr. Esco very candidly, but somewhat surprisingly given the number of days spent on the voluntariness voir dire to that point, abandoned his opposition to the Crown’s voluntariness application. The video-statement made by Mr. Wayner during his interview with D.C. Coene on September 7, 2015, was then admitted into evidence and made Exhibit No. 20 at trial.

[41] I review some of the details of Mr. Wayner’s statements to the police in my analysis below.

Fundamental Principles

[42] It is instructive to review the fundamental framework of analysis in a criminal trial.

Presumption of innocence and reasonable doubt

[43] The presumption of innocence is the most fundamental principle of our Canadian criminal justice system. It is the fundamental right of every person accused of criminal misconduct to be presumed innocent until proven guilty by the evidence presented and established by the Crown. Accordingly, Mr. Wayner, as every accused person charged with an offence, is presumed to be innocent unless and until the Crown proves his guilt beyond a reasonable doubt.

[44] The presumption of innocence is interwoven with the standard of proof required to displace that presumption. The standard of proof required of the Crown to secure a conviction in a criminal case is that it must establish each and every essential element of the offence against the accused by proof beyond a reasonable doubt.

[45] Much has been written on the meaning of “proof beyond a reasonable doubt.” The Supreme Court of Canada explained the meaning of “proof beyond a reasonable doubt” and its interplay with the presumption of innocence in its seminal decision in R v. Lifchus, as follows:

The accused enters these proceedings presumed to be innocent. That presumption of innocence remains throughout the case until such time as the Crown has on the evidence put before [the court] satisfied [the court] beyond a reasonable doubt that the accused is guilty.

What does the expression “beyond a reasonable doubt” mean?

The term “beyond a reasonable doubt” has been used for a very long time and is a part of our history and traditions of justice. It is so engrained in our criminal law that some think it needs no explanation, yet something must be said regarding its meaning.

A reasonable doubt is not an imaginary or frivolous doubt. It must not be based upon sympathy or prejudice. Rather, it is based on reason and common sense. It is logically derived from the evidence or absence of evidence.

Even if [the court] believe[s] the accused is probably guilty or likely guilty, that is not sufficient. In those circumstances, [the court] must give the benefit of the doubt to the accused and acquit because the Crown has failed to satisfy [the court] of the guilt of the accused beyond a reasonable doubt.

On the other hand, [the court] must remember that it is virtually impossible to prove anything to an absolute certainty and the Crown is not required to do so. Such a standard of proof is impossibly high.

In short if, based upon the evidence before the court, [the court is] sure that the accused committed the offence [the court] should convict since this demonstrates that [the court is] satisfied of his guilt beyond a reasonable doubt.[^3]

[46] In my view, it bears repeating here that it is not enough for me to believe that Mr. Wayner is probably or likely guilty of committing the sexual offences alleged against him. In those circumstances, I must find Mr. Wayner not guilty, because Crown counsel would have failed to satisfy me of his guilt beyond a reasonable doubt. Proof of probable or likely guilt is not proof of guilt beyond a reasonable doubt. Proof of probable or likely guilt is only proof on a balance of probabilities standard – and the standard of proof required in a criminal case is not the balance of probabilities. Again, the standard of proof required in a criminal case is proof beyond a reasonable doubt.

Assessment of credibility

[47] It is common ground that where an accused elects to testify on his own behalf, and the court is presented with two competing versions of the critical events in question, such that credibility is important, then central to the court’s analysis of the case are the well-known principles in R. v. W. (D.).[^4] Indeed, both Ms. Bertholet for the Crown and Mr. Esco for the defence submitted that the instant case is very much a W. (D.) case. There, the Supreme Court of Canada held that the trier-of-fact should be instructed on the issue of credibility in accordance with the following three-step analysis:

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.[^5]

[48] In my view, the commentary on the W. (D.) principles set out by Code J. in his decision in R. v. Thomas is of assistance. In that case, Code J. held:

… [W.(D.)] does not describe three sequential analytical steps that a trier of fact must pass through, one at a time. Rather, it describes three distinct findings of fact that a trier of fact can arrive at, when considering all the evidence at the end of the case, namely, complete acceptance of the accused’s exculpatory account (“step 1”), complete acceptance of the Crown witnesses’ inculpatory account (“step 3”), or uncertainty as to which account to believe (“step 2”). …

… A trier of fact must look at all the evidence, when deciding whether to accept the accused’s evidence and when deciding whether it raises a reasonable doubt. It is at that same point in time that the trier of fact will also determine whether the Crown’s witnesses prove guilt beyond reasonable doubt and whether the accused’s contrary exculpatory account must necessarily be rejected. In other words, these decisions are all made at the same time on the basis of the same total body of evidence. The so-called “three steps” in W.D. are simply different results, or alternative findings of fact, arrived at by the trier of fact at the end of the case when considering the totality of the evidence.[^6]

[49] The principles enunciated in W. (D.) are applicable whenever any evidence is called that is favourable to the accused.[^7]

[50] As such, in the circumstances of the instant case, I must assess the evidence as follows:

a. if I believe the evidence of Mr. Wayner that he did not commit the offences as charged, I must acquit him;

b. if, after careful consideration of all the evidence, I am unable to decide whom to believe, I must find Mr. Wayner not guilty because Crown counsel would have failed to prove Mr. Wayner’s guilt beyond a reasonable doubt;

c. even if I do not believe the evidence of Mr. Wayner, but I am left in a reasonable doubt by his evidence as to any essential element of the offences charged, I must acquit him of that offence;

d. even if I do not believe and am not left in a reasonable doubt by the evidence of Mr. Wayner, then I must consider, on the basis of all the evidence that I do accept, whether I am convinced beyond a reasonable doubt of the guilt of Mr. Wayner. Only where I am so convinced should Mr. Wayner be convicted. It is a very high burden.

[51] That said, I well recognize that the determination of an accused’s guilt or innocence must not devolve into a mere credibility contest between a complainant and the accused. Such an approach erodes the operation of the presumption of innocence and the assignment of the burden of proof beyond a reasonable doubt to the prosecution.

Credibility and reliability

[52] Credibility and reliability are not identical concepts. Credibility refers to the honesty of the witness. Was the witness telling the truth when he or she gave their evidence? Reliability refers to the accuracy of the witness’s evidence. Did the witness accurately receive the information, accurately remember the information, and accurately relate the information in their testimony? Was the witness accurate, was the witness correct, when the witness related past events in their testimony? A witness may be honest – i.e., credible – but simply wrong, simply incorrect, in relating past events – i.e., not reliable. I have considered both concepts in my assessment of the evidence.

[53] Where there are significant inconsistencies or contradictions within a witness’s testimony, or when considered against other conflicting evidence in the case, I must carefully assess the evidence before concluding that guilt has been established. Indeed, at the end of the day, the “court must be satisfied beyond a reasonable doubt on the issue of credibility where the case turns on the evidence of two conflicting witnesses.”[^8]

[54] Demeanour evidence alone cannot suffice to make a finding of guilt. One must not jump to conclusions based entirely on a witness’s demeanour when they were testifying. Giving evidence at a trial is not a common experience for many witnesses, and different people will react and appear differently. There are simply too many variables to make the particular demeanour in which a witness testifies the only or most important factor in one’s decision.

[55] To the extent a credibility or reliability assessment would be facilitated by a search for confirmatory evidence for the testimony of a complainant, such evidence need not directly implicate the accused or confirm the complainant’s evidence in every respect – the evidence should, however, be capable of restoring the trier’s faith in the complainant’s account.[^9]

[56] That said, it must be remembered that corroboration is legally not required to sustain a conviction.[^10] Indeed, it is an error of law to hold that “there can never be a conviction absent confirmation of the complainant’s testimony in a case of sexual assault where the only witnesses are the complainant and the accused.”[^11]

[57] To make my decision on the issues of credibility and reliability overall, I must consider carefully, and with an open mind, all the evidence presented during the trial. It will be up to me to decide how much or little I believe and rely upon the testimony of any witness. I may believe some, none, or all of it.

[58] One must use common sense and experience in deciding whether people know what they are talking about and whether they are telling the truth. There is no magic formula for deciding how much, or how little, to believe of the testimony of any witness or how much to rely on it in deciding this case.

Evidence of children

[59] In considering the evidence of the complainant, who was 12 years of age at the time she testified at trial, trying to recall events that occurred when she was still 8 years of age, I must bear in mind the change in the attitude of the law towards the evidence of children.

[60] In this regard, guidance can be found in two decisions from the Supreme Court of Canada: first, the 1990 decision of Wilson J. in R. v. B. (G.),[^12] and, second, the 1992 decision of McLachlin J. (as she then was) in R. v. W. (R.).[^13]

[61] These cases indicate that a “common sense approach” is appropriate in dealing with the testimony of young children. It is not the case that the standard of proof must be lowered when dealing with the recollections of a child. Rather, the court must be mindful of the approach described by McLachlin J. in R. v. W. (R.), as follows:

The second change in the attitude of the law toward the evidence of children in recent years is a new appreciation that it may be wrong to apply adult tests for credibility to the evidence of children. One finds emerging a new sensitivity to the peculiar perspectives of children. Since children may experience the world differently from adults, it is hardly surprising that details important to adults, like time and place, may be missing from their recollection. Wilson J. recognized this in R. v. B.(G.), … when, in referring to submissions regarding the Court of Appeal judge’s treatment of the evidence of the complainant, she said that:

… it seems to me that he was simply suggesting that the judiciary should take a common sense approach when dealing with the testimony of young children and not impose the same exacting standard on them as it does on adults. However, this is not to say that the courts should not carefully assess the credibility of child witnesses and I do not read his reasons as suggesting that the standard of proof must be lowered when dealing with children as the appellants submit. Rather, he was expressing concern that a flaw, such as a contradiction, in a child’s testimony should not be given the same effect as a similar flaw in the testimony of an adult. I think his concern is well founded and his comments entirely appropriate. While children may not be able to recount precise details and communicate the when and where of an event with exactitude, this does not mean that they have misconceived what happened to them and who did it. In recent years we have adopted a much more benign attitude to children’s evidence, lessening the strict standards of oath taking and corroboration, and I believe that this is a desirable development. The credibility of every witness who testifies before the courts must, of course, be carefully assessed but the standard of the ‘reasonable adult’ is not necessarily appropriate in assessing the credibility of young children.

As Wilson J. emphasized in B. (G.), these changes in the way the courts look at the evidence of children do not mean that the evidence of children should not be subject to the same standard of proof as the evidence of adult witnesses in criminal cases. Protecting the liberty of the accused and guarding against the injustice of the conviction of an innocent person require a solid foundation for a verdict of guilt, whether the complainant be an adult or a child. What the changes do mean is that we approach the evidence of children not from the perspective of rigid stereotypes, but on what Wilson J. called a “common sense” basis, taking into account the strengths and weaknesses which characterize the evidence offered in the particular case.

It is neither desirable nor possible to state hard and fast rules as to when a witness’s evidence should be assessed by reference to “adult” or “child” standards – to do so would be to create anew stereotypes potentially as rigid and unjust as those which the recent developments in the law’s approach to children’s evidence have been designed to dispel. Every person giving testimony in court, of whatever age, is an individual, whose credibility and evidence must be assessed by reference to criteria appropriate to her mental development, understanding and ability to communicate. But I would add this. In general, where an adult is testifying as to events which occurred when she was a child, her credibility should be assessed according to criteria applicable to her as an adult witness. Yet with regard to her evidence pertaining to events which occurred in childhood, the presence of inconsistencies, particularly as to peripheral matters such as time and location, should be considered in the context of the age of the witness at the time of the events to which she is testifying.[^14]

[62] Where the evidence of a child has sufficient flaws, it remains prudent for the trial judge to seek confirmatory evidence even in light of the particular principles appropriate for assessing the credibility of child witnesses.[^15]

[63] I instruct myself in accordance with all of these fundamental principles.

Law

[64] Counts 1, 4, and 7 of the indictment allege that Mr. Wayner committed the offence of sexual assault, contrary to s. 271 of the Criminal Code, which provides in pertinent part that:

Everyone who commits a sexual assault is guilty of

(a) an indictable offence and is liable to imprisonment for a term of not more than 10 years or, if the complainant is under the age of 16 years, to imprisonment for a term of not more than 14 years and to a minimum punishment of imprisonment for a term of one year[.]

[65] The essential elements of the offence of sexual assault were considered by the Supreme Court of Canada in R. v. J.A., as follows:

A conviction for sexual assault under s. 271(1) of the Criminal Code requires proof beyond a reasonable doubt of the actus reus and the mens rea of the offence. A person commits the actus reus if he touches another person in a sexual way without her consent. Consent for this purpose is actual subjective consent in the mind of the complainant at the time of the sexual activity in question: Ewanchuk. As discussed below, the Criminal Code, s. 273.1(2), limits this definition by stipulating circumstances where consent is not obtained.

A person has the required mental state, or mens rea of the offence, when he or she knew that the complainant was not consenting to the sexual act in question, or was reckless or wilfully blind to the absence of consent.[^16]

[66] Counts 2, 5, and 6 of the indictment allege that Mr. Wayner committed the offence of sexual interference, contrary to s. 151 of the Code, which provides in pertinent part that:

Every person who, for a sexual purpose, touches, directly or indirectly, with a part of the body or with an object, any part of the body of a person under the age of 16 years

(a) is guilty of an indictable offence and is liable to imprisonment for a term of not more than 14 years and to a minimum punishment of imprisonment for a term of one year[.]

[67] “To establish sexual interference, the Crown must prove beyond a reasonable doubt each of these essential elements: that the complainant was under 16 years of age at the time; that the accused touched the complainant; and that the touching was for a sexual purpose.”[^17]

[68] Count 3 of the indictment alleges that Mr. Wayner committed the offence of invitation to sexual touching, contrary to s. 152 of the Code, which provides in pertinent part that:

Every person who, for a sexual purpose, invites, counsels or incites a person under the age of 16 years to touch, directly or indirectly, with a part of the body or with an object, the body of any person, including the body of the person who so invites, counsels or incites and the body of the person under the age of 16 years,

(a) is guilty of an indictable offence and is liable to imprisonment for a term of not more than 14 years and to a minimum punishment of imprisonment for a term of one year[.]

[69] “To establish invitation to sexual touching, the Crown must prove beyond a reasonable doubt each of these essential elements: that the complainant was under 16 years of age at the time; that the accused invited the complainant to touch him; and that the touching was for a sexual purpose.”[^18]

[70] Given the age of the complainant at the time of the alleged incidents here, as a matter of law, it is not open to Mr. Wayner to maintain that J.D. consented to the sex acts in question. That position is foreclosed to Mr. Wayner by reason of the provisions of s. 150.1 of the Code, which provide that:

Subject to subsections (2) to (2.2), when an accused is charged with an offence under section 151 or 152 … or … section 271 … in respect of a complainant under the age of 16 years, it is not a defence that the complainant consented to the activity that forms the subject-matter of the charge.

[71] Further, none of the exceptions set out in subsections 150.1(2) through (3) applies to the circumstances of the instant case.

Issues

[72] The central issue before me is whether the Crown has proven beyond a reasonable doubt that Mr. Wayner engaged in the alleged sexual activity with J.D. That, in turn, requires a consideration of the following:

a. Issues concerning the evidence of the complainant;

b. The DNA evidence; and

c. The evidence of Mr. Wayner and his statements to the police.

Analysis

[73] As I have said, this case turns on whether the sexual activity in question actually took place.

[74] There were no independent witnesses to the activity in question.

Issues concerning the evidence of the complainant

[75] As I have said, J.D. gave two video-taped statements to the police, the one on September 4, 2015, and the second on September 7, 2015.

[76] At the very outset of the trial, the Crown brought an application for an order pursuant to s. 715.1(1) of the Code to have the video-taped statements of the complainant admitted into evidence at trial. The purpose of s. 715.1 of the Code was described by the Supreme Court of Canada in R. v. F. (C.C.), where Cory J., writing for the unanimous court, held that:

It will be self-evident to every observant parent and to all who have worked closely with young people that children, even more than adults, will have a better recollection of events shortly after they occurred than they will some weeks, months or years later. The younger the child, the more pronounced will this be. Indeed to state this simply expresses the observations of most Canadians. It is a common experience that anyone, and particularly children, will have a better recollection of events closer to their occurrence than he or she will later on. … It follows that the videotape which is made within a reasonable time after the alleged offence and which describes the act will almost inevitably reflect a more accurate recollection of events than will testimony given later at trial. Thus the section enhances the ability of a court to find the truth by preserving a very recent recollection of the event in question.[^19]

[77] For written reasons delivered orally on October 31, 2018, I granted the Crown’s application and admitted the statements into evidence at trial.[^20] The effect of such an order under s. 715.1 was described in R. v. F. (C.C.) in the following terms:

Once the trial judge rules that the statement has been adopted, the video becomes the evidence of the events described as if the child were giving the statements on the videotape in open court … . An adopted videotaped statement should, together with the viva voce evidence given at trial, comprise the whole of the evidence-in-chief of the complainant.[^21]

[78] I do not propose to summarize D.C. Beauchamp’s entire interview of the complainant on September 4, 2015. For present purposes, I note that during her interview, J.D. expressed, inter alia, the following:

a. “Jimmie just touched me right down here.”[^22]

b. She then confirmed that she meant Mr. Wayner touched her “private parts.”[^23]

c. She said Mr. Wayner “was a bad boy because he just touched me right down here.”[^24]

d. She repeated that Mr. Wayner touched her “private parts and bums.”[^25]

e. She said this happened when J.D. was sitting on a mattress in the living room while her mother and her siblings were in the bedroom.[^26]

f. This touching happened “once.”[^27]

g. It made J.D. “feel mad.”[^28]

h. J.D. demonstrated what Mr. Wayner was doing by moving her hips back and forth.[^29]

i. She told G.N. about the touchings.[^30]

j. She and Mr. Wayner were “playing private parts and bum.”[^31]

k. Asked how you play that game, J.D. said you pull down your pants and your underwear, and “I always lick the private part.”[^32]

l. She said Mr. Wayner put his private part in her private part and “bum” and “it really hurts really bad.”[^33]

[79] In her subsequent interview with D.C. Beauchamp and D.C. Coene on September 7, 2015, J.D. repeated many of the previous statements she had relayed at her first interview. However, she also gave other details, including the following:

a. J.D. said that she and Mr. Wayner were playing “the private parts and bums” game, and when asked to describe how she and Mr. Wayner played the game, she replied: “you got to pull your pants down and your underwears [sic] and he got to pull his pants down and his underwears [sic], and he put his private part to your … to your bum and your private part.”[^34]

b. J.D. repeatedly used the word “gum” in the context of Mr. Wayner touching her private parts, saying that “Jimmie was using his gum for my private part and my bum.”[^35]

c. J.D. demonstrated how Mr. Wayner touched her by taking a pen and putting it to her vaginal area, moving the pen in a manner that simulated sexual intercourse.[^36]

d. Asked how it felt when Mr. Wayner did that, J.D. replied that, “it feels bad, that’s why he should not allowed to do that [sic].”[^37]

e. J.D. said she put her mouth on his private part.[^38]

f. Using a pen to represent Mr. Wayner’s private part, she demonstrated how she put her mouth on his private part, moving the pen in and out of her mouth, in a manner that simulated oral sex.[^39]

g. J.D. said that when Mr. Wayner’s private part was in her mouth, “pee” would come out of his private part.[^40]

h. She said the “pee” went in her mouth.[^41]

i. She then indicated that she rinsed the “pee” out of her mouth using water from a cup.[^42]

[80] I agree with Ms. Bertholet for the Crown that in describing the various incidents, including, in particular, the alleged oral sex, the young complainant described the incident to the detectives using ways and terminology appropriate to her age and development. I accept, for example, that a little girl of J.D.’s age and circumstances may well refer to ejaculate as “pee.”

[81] I also agree with Ms. Bertholet that, particularly having regard for the manner in which the complainant demonstrated to the detectives the physical movements of Mr. Wayner, that is, her simulation of the acts of sexual intercourse and oral sex, it is difficult to accept that a young girl who is barely nine years of age, with J.D.’s level of intellect and sophistication, would have knowledge of such behaviours unless they had happened to her. I found that evidence to be both compelling and disturbing.

[82] However, there are certainly some difficulties with the evidence of the complainant. Indeed, standing by itself, if the only evidence before the court were the evidence of the complainant, one would be hard-pressed to think that the Crown could overcome the fundamental problem of reliability.

[83] In giving her evidence at trial, the complainant indicated that she could not remember the incidents in question. As the Crown acknowledged in her closing submissions, and as the Supreme Court noted in R. v. F.(C.C.), “a witness who cannot remember the events cannot be effectively cross-examined on the contents of his or her statement, and therefore the reliability of his or her testimony cannot be tested in that way.”[^43]

[84] Further, there were numerous times in her evidence at trial where J.D. indicated that she could not remember or, more commonly, merely answered, “I don’t know.” There is some merit in Mr. Esco’s observation that in respect of certain collateral or peripheral features of the chronology, J.D. appeared to be able to answer various details from memory. For example, she could remember that she was in the living room in Mr. Wayner’s apartment at the time or sitting on a mattress on the floor. She could remember her grandmother having a big argument with her mother over Mr. Wayner. She could remember her grandmother telephoning her mother a lot when they were at Mr. Wayner’s apartment. She could remember watching the movie Hook while at Mr. Wayner’s apartment. However, questions concerning the essential elements of the alleged sexual activity were more often met with the complainant responding, “I don’t know.”

[85] Moreover, there would appear to be certain inconsistencies in the evidence of the complainant. For example, at the first interview of September 4th, the complainant said that Mr. Wayner touched her private parts only once. But at the second interview of September 7th, her evidence would seem to indicate that she and Mr. Wayner played the “private parts game” on multiple occasions. That said, in fairness to J.D., it may be that her initial answer that the sexual touching happened only once was context-specific, as the child was speaking about an instance when she was sitting on a mattress in the living room while her mother and her siblings were in the bedroom; she may have meant that there was only one time when the touching happened in those conditions. The evidence is simply unclear.

[86] More problematic is the child’s statement at one point that similar sexual activity took place with each of her three siblings. Certainly, there is no evidence of any sexual activity involving the other children, and the Crown does not allege same. It is not clear whether that isolated statement was merely a product of a child engaging in hyperbole or “make-believe” or “telling stories,” but it implicates the integrity of the child’s evidence regarding the incidents in question.

[87] I think it is fair to say that during cross-examination, the complainant proved to be a fairly pliant witness. Under questioning by Mr. Esco, the complainant testified that she did not remember even going to Mr. Wayner’s apartment, even though she had testified just the day before that she did remember going there. She also said in cross-examination that she did not remember Mr. Wayner ever hurting her and did not remember telling people that Mr. Wayner hurt her. When asked by Mr. Esco if Mr. Wayner did “any bad things to you?” she replied, “I don’t know.” Her evidence indicates that she has no recollection of the material events.

[88] Mr. Esco invites this court to draw certain conclusions from the nature of the responses J.D. gave in cross-examination. I respectfully decline that invitation. Rather, I am again reminded of the comments of the Supreme Court in R. v. F. (C.C.), where Cory J. observed that:

A skillful cross-examination is almost certain to confuse a child, even if she is telling the truth. That confusion can lead to inconsistencies in her testimony. Although the trier of fact must be wary of any evidence which has been contradicted, this is a matter which goes to the weight which should be attached to the video-tape and not to its admissibility.[^44]

[89] In particular, while I agree with Mr. Esco’s observation that the complainant appeared to be able to remember certain peripheral details but could not remember any of the specifics of the actual incidents in question, I reject his suggestion that this court should infer from that dichotomy that the incidents in question simply did not occur.

[90] Mr. Esco invites this court to consider whether the complainant’s seeming inability to remember the details of any of the alleged incidents is a function of her blocking it out of her mind or is it that, as counsel suggested, “she knows that she was not telling the truth, and all this got out of hand.” Mr. Esco submitted that if Mr. Wayner had done “something bad to the complainant, she knew enough to say something – but she never did.”

[91] Apart from the fact that counsel’s submission is factually incorrect, in that, J.D. did in fact say something, i.e., she disclosed the touchings to her godmother, G.N., I am not tempted by counsel’s invitation to speculate as to the manner in which J.D. ought to have reacted.

[92] As Mr. Esco himself acknowledged in his final submissions, there is, of course, “no rule as to how victims of sexual assault are apt to behave.”[^45] In a similar vein, as to the apparent difficulty the complainant experienced in recalling the specifics of the incident in question, it is instructive to bear in mind the Supreme Court’s comments in R. v. F. (C.C.), where the court recognized the reality that:

Any kind of assault on a child may be traumatic. Assaults of a sexual nature are still more likely to have a serious deleterious effect. This traumatic effect will be greater still when the perpetrator is a parent, guardian or person in authority. Recalling the events will be extremely difficult for every child and the more sensitive the young person, the greater will be the difficulty experienced.[^46]

[93] Later in that same decision, the Supreme Court adopted with approval the observation in the academic literature that, “[t]he standard courtroom setting is particularly likely to induce trauma among child witnesses; it also is likely to impair their communicative abilities.”

[94] In my view, these same considerations are at play in considering the evidence of the complainant here, especially given J.D.’s limitations.

[95] Crown counsel candidly acknowledged some of the difficulties with the reliability of the evidence of the complainant here, and I agree with Ms. Bertholet’s tacit admission that the instant case is one where, as Hill J. said in R. v. M. (K.), the “credibility assessment demands a search for confirmatory evidence for the testimony of a complainant,” recognizing that “such evidence need not directly implicate the accused or confirm the complainant’s evidence in every respect.”[^47]

[96] In the instant case, that confirmatory evidence may be found by considering the DNA evidence, and Mr. Wayner’s statements to the police. I examine each in turn.

The DNA evidence

[97] It is common ground that a used condom was seized from the bathroom in Mr. Wayner’s apartment. The evidence of Mr. Wayner was a few nights before his arrest, he was planning on having protected sex with a female friend, and so he put on the condom, but was then advised by the female that she was allergic to latex. Mr. Wayner testified that he took off the condom and discarded it in the wastebasket in the bathroom. That used condom was submitted for DNA analysis.

[98] Ms. Melanie Richard, a forensic scientist employed with the Centre of Forensic Sciences, testified at trial and was qualified as an expert able to offer opinion evidence with respect to the examination and interpretation of items for the presence of DNA and DNA analysis and comparison.

[99] Consistent with her expert report,[^48] the evidence of Ms. Richard was that DNA profiles from three different individuals were found on the used condom. A DNA profile from a male individual was found on both the inside and outside of the condom, as received. A second DNA profile from a female individual was also found on both the inside and outside of the condom. A third DNA profile from a different female individual was found on the inside of the condom only.

[100] It was the expert opinion of Ms. Richard that the DNA profile of the male individual taken from the inside of the condom, as received, originated from sperm.

[101] The male DNA profile taken from the condom was compared to the known DNA profile taken from a blood sample from Mr. Wayner.[^49] The opinion of Ms. Richard was that it was 260 trillion times more likely that the DNA profile of the male individual found on the inside and outside of the condom originated from Mr. Wayner as opposed to some other unidentified male person. Based on the expert evidence, I find that the DNA profile of the male individual found on the inside and outside of the used condom came from Mr. Wayner’s sperm.

[102] Ms. Richard also gave evidence about whether the third DNA profile found on the inside of the condom was the same as the known DNA profile taken from a blood sample given by the complainant.[^50] In keeping with the particular phraseology of DNA analysis, the evidence of Ms. Richard was that she could not exclude the complainant as being the source of the DNA profile found on the inside of the used condom. However, the expert opinion of Ms. Richard was that it was 390 trillion times more likely that the DNA profile found on the inside of the condom originated from the complainant as opposed to some other unidentified person unrelated to J.D. I find that the DNA profile found on the inside of the used condom came from the complainant.

[103] In his closing submissions, Mr. Esco advanced a theory of the defence as to how the DNA of the complainant was found on the inside of the condom, as received.

[104] The defence theory is that the DNA of the complainant was transferred to the condom during what was referred to at trial as the “bathroom incident.” That is, it is common ground that on one of the days when the complainant and her mother were visiting Mr. Wayner at his apartment, J.D. had gone into the bathroom where the used condom was found and engaged in some activity that resulted in her mother giving her a “time-out.” The parties disagree as to the nature of the activity that led to the time-out. The evidence of Mr. Wayner was that the reason why J.D. was given the time-out was because she had trashed the bathroom, in the course of which she rummaged through the wastebasket. The evidence of P.E. was that she gave her daughter the time-out because she tore down the shower curtains when she was in the bathroom.

[105] In his closing submissions, Mr. Esco suggested that during the bathroom incident, J.D. rummaged through the contents of the wastebasket, came across the used condom and then began playing with it, as a result of which there was a primary transfer of her DNA onto the surface of the condom.

[106] I am not at all persuaded by the defence theory. Indeed, I find it improbable, fanciful, and speculative. Leaving aside the question of whether the complainant was given a time-out because she tore down the shower curtains or trashed the bathroom, there is no evidence that J.D. rummaged through the wastebasket. There is certainly no evidence that she was playing with the used condom. No witness, not even Mr. Wayner, testified that he or she observed J.D. playing with a used condom.

[107] Further, the evidence of Ms. Richard was that the DNA profile belonging to the complainant was found on the inside of the condom, as it was received by the lab. The expert evidence is clear that no DNA from the complainant was found on the outside of the condom, as received by the lab. However, it is not clear whether the discarded condom was or was not turned inside out before being received and examined by the lab. There was really no compelling evidence on that issue one way or the other. The most that can be said is that the expert evidence confirms that the DNA profile belonging to the complainant was found on the same interior surface as was the sperm of Mr. Wayner.

[108] More importantly, the fundamental assumption of the defence theory is inconsistent with the expert evidence of Ms. Richard.

[109] The evidence of Ms. Richard was that, while she could not say whether the DNA profile attributed to J.D. originated from bodily fluids or skin cells, in her expert opinion, based on the amount of DNA associated with that profile, it was unlikely that it originated from skin cells, that is, that it was the result of isolated contact by hand if, for example, someone had just picked up the condom with their hand. In other words, the evidence of Ms. Richard was that it is unlikely that sufficient DNA would be found on the condom if someone just touched it.

[110] In cross-examination, Mr. Esco asked Ms. Richard whether she would expect to find the complainant’s DNA on the condom if the complainant had been playing with the condom for, say, ten minutes. Ms. Richard replied that it is not the length of time that is critical; rather, it is the nature of the activity that is critical for DNA transfer. Ms. Richard testified that the amount of DNA found could not be accounted for by just touching the condom, which would provide the opportunity for just loose surface cells on the skin to transfer. Ms. Richard explained that in order to account for the amount of DNA found, the activity in question would have to generate sufficient friction to remove more than just the loose surface cells on the skin but also layers of cells below the surface. The analogy that Ms. Richard offered was rubbing skin against sandpaper, which would scrape off layers of skin cells, as opposed to just rubbing skin against a piece of paper.

[111] There is simply no evidence that the complainant engaged in any activity that would have generated sufficient friction to scrape off layers of skin cells akin to rubbing the skin against sandpaper.

[112] As such, the DNA profile of the complainant found on the inside of the condom is simply inconsistent with and unexplained by the defence theory.

[113] On the other hand, the explanation offered by the Crown is logical, grounded in common sense, and consistent with the expert evidence before the court. Ms. Bertholet submits that the complainant’s DNA was transferred to Mr. Wayner’s penis because his penis was in the little girl’s mouth at some point, and her DNA was then transferred to the inside surface of the condom when Mr. Wayner subsequently put on the condom in anticipation of sexual intercourse with his female friend.

[114] When that hypothetical was put to Ms. Richard in examination-in-chief, and Ms. Bertholet asked the expert if that activity would transfer the DNA to the inside surface of the condom, Ms. Richard replied that she would have a “high expectation” that there would be DNA transference in those circumstances because, as she testified, “saliva is a rich source of DNA.”

[115] Not only is the Crown’s explanation consistent with the expert opinion of Ms. Richard but it is, in my view, the only logical explanation, grounded in the evidence before the court, of how the complainant’s DNA came to be found on the inside surface of the used condom worn by Mr. Wayner.

[116] In my view, the DNA evidence in this case provides significant and compelling confirmatory evidence for the testimony of the complainant.

The evidence of Mr. Wayner and his statements to the police

[117] The final significant source of confirmatory evidence for the testimony of the complainant is the evidence of Mr. Wayner himself and, in particular, the various inculpatory statements he made during his interview with D.C. Coene on September 7, 2015.

[118] As I have said, while the defence initially contested the Crown’s voluntariness application, ultimately the defence conceded the voluntariness of the statement. I note that the evidence at trial concluded the day following that concession.

[119] To be clear, apart from the ultimate concession by the defence, I am satisfied that the Crown had established beyond a reasonable doubt that the statements made by Mr. Wayner to the police on September 7, 2015, were voluntary, and I admitted them into evidence at trial on that basis.

[120] As indicated previously, D.C. Coene’s interview with Mr. Wayner lasted about two-and-a-half hours, from about 10:23 p.m. until 12:55 a.m. I certainly do not intend to summarize the entire interview here. However, in my view, it is instructive to review certain salient features of the interview, as follows:

a. It is fair to say that for the first hour-and-a-half of the interview, Mr. Wayner denied any involvement in or responsibility for any of the alleged incidents. Rather, he repeatedly suggested to D.C. Coene that another male individual, whom he identified by name, was likely responsible for the alleged incidents.

b. After about an hour-and-a-half, there was a discernable pivot in the interview tactics employed by D.C. Coene when he began to appeal to the conscience of Mr. Wayner, particularly in the face of statements made by Mr. Wayner to the detective that he himself had been the victim of child abuse in the past. The following encounter took place:

D.C. Coene: Jimmie, do you love [J.D.]?

Mr. Wayner: As a child of my own, yes, even though she is not my blood. Not in the way you think. Although I’m not sure how you mean that, but I love her as though she is my own child, which I do the same for [J.D.’s siblings]. I’ve always wanted a family of my own. I always wanted my own family.

D.C. Coene: If you did this, Jimmie, you need to make this right. She’s telling us about the hurt that’s been caused to her, that someone that she trusted violated her, physically hurt her. That’s all I’m asking, Jimmie. She’s saying a hundred percent that it is you, Jimmie. If that’s the truth, I need to know the truth. If that’s the truth, Jimmie, I mean if this is – these things can be explained. You talked about being a victim yourself in the past. So, Jimmie, what’s the truth? Are you responsible for this that [J.D.’s] saying or do you want to just keep playing these games? Let this go through the court process, drag her through all that, make her get up there and testify about all these things that you’ve done to her. Is that what you want to see happen?

Mr. Wayner: No, I don’t want to see anybody go through that.[^51]

c. With that, there was then a discernable pivot in Mr. Wayner’s responses in the sense that he then began to speak in the conditional tense. That is, there was a “bridge” segment, if you will, in the interview that lasted for more than five minutes during which Mr. Wayner appeared to allow that he may have been involved in the incidents. During this “bridge” segment, Mr. Wayner gave numerous responses along the lines of:

i. “if I did do it, I will hate myself forever”;[^52]

ii. “[b]ecause if I did harm that little girl”;^53

iii. “I don’t know. I want to say that I think I might have”;[^54]

iv. “like I said, and if I did, I will never forgive myself, nor could I ever apologize for it, because there is no way to apologize for something like that”;^55

v. “because if I did do that, this … could never forgive myself”;[^56]

vi. “[a]nd if I turned around and did exactly what he did”;[^57]

d. It appears to me that D.C. Coene then decided to cut through it, as the detective then engaged in a series of direct questions with Mr. Wayner. The following exchange took place:

D.C. Coene: Well then, let’s be truthful, and let’s be honest about what we’re dealing with today.

Mr. Wayner: It hurts to say it. I should … [inaudible]

D.C. Coene: Jimmie, we’re done with hiding behind …

Mr. Wayner: I’m not trying to hide. It just hurts to say it.

D.C. Coene: Then just answer me yes or no then. I’m not going to make you say it. Did you have sexual intercourse with [J.D.]?

Mr. Wayner: I never had sexual intercourse.

D.C. Coene: Did you touch [J.D.’s] vagina?

Mr. Wayner: Yes.

D.C. Coene: Did you put your penis inside [J.D.]’s mouth?

Mr. Wayner: That I did not do. I touched her.

D.C. Coene: And when did that happen?

Mr. Wayner: I’d have to say last month …[^58]

e. D.C. Coene continued to appeal to Mr. Wayner’s conscience, and the following exchange subsequently took place:

Mr. Wayner: If I said yeah – again, it hurts to say it.

D.C. Coene: I know it hurts to say it, Jimmie. It’s never going to feel good to say it. No one expects that.

Mr. Wayner: And those who expect for it to feel good to say it, I mean, maybe it will be better for them.

D.C. Coene: Well, that’s – that’s true, right? Because that means you have a conscience and you actually feel bad about what you did to [J.D.]. And again, Jimmie, I just require a yes, if that’s what happened. Did you put your penis inside her mouth and ejaculate in her –

Mr. Wayner: – Yes.

D.C. Coene: Yes? Did you have sexual intercourse with [J.D.]?

Mr. Wayner: I never penetrated, no.

D.C. Coene: Did you place your penis on her vagina, on the outside of her vagina?

Mr. Wayner: No.

D.C. Coene: At any point, did you touch any part of her body with your penis?

Mr. Wayner: No.

D.C. Coene: Her mouth? Did you touch her bum with your penis?

Mr. Wayner: No.

D.C. Coene: Did you use some sort of object to touch her?

Mr. Wayner: No.[^59]

f. However, a few minutes later, the following further exchange took place:

D.C. Coene: Okay. But it was a game or – it was some sort of game that you guys would play together?

Mr. Wayner: Like I said, I never considered it a game.

D.C. Coene: What did you consider it?

Mr. Wayner: Something extremely hard for me to do, that is what I considered it. And why I still did it? I do not know.

D.C. Coene: Okay.

Mr. Wayner: I do not know. Because I can’t explain it. Just like you said, just hard to explain why. You said it’s common. But as long as we’re recording this, I say people who are like me deserve to be wiped off the face of the earth so it never happens to anyone else again. That is what I believe deep down inside. The people that did this to me, that made me this way – I could never forgive myself, and I don’t know how many times I could say that, but I can’t forgive myself for it, and I don’t expect her to forgive me for it either, because I never forgave John James or my mother. And the fact that I did this, which just kind of why I say I’m no better than them, but at least I admitted it. I guess that is one step, right?

D.C. Coene: Mm-hmm. That’s the biggest step. That’s the biggest leap, Jimmie. Because there’s people that will never do that, and they sit with that deep down inside them. That never goes away. How can that never go away?

Mr. Wayner: I don’t think it will ever go away, even if I – I may have admitted to, but I still don’t think it will ever go away. I’ve had nightmares on this, ever since I did that. It’s torn me up on the inside, waking me up with the night sweats.

D.C. Coene: Like this happened – she told us that this happened a number of times, is that true?

Mr. Wayner: I recall one time that I put my penis in her mouth. A couple of times I touched her in the bum and vagina.

D.C. Coene: Okay. And these were all the times that occurred in your apartment?

Mr. Wayner: Yeah, in my apartment. Which I don’t think I could ever go back to again. Because all that is a bad memory.

D.C. Coene: Did anything happen with any of the other kids, Jimmie?

Mr. Wayner: No.[^60]

g. A few minutes later, D.C. Coene returned to the issue of the oral sex, and the following exchange took place:

D.C. Coene: When you ejaculate in her mouth, what would she do with the semen in her mouth?

Mr. Wayner: Spit it out.

D.C. Coene: She told us that went into her tummy.

Mr. Wayner: I remember her spitting it out.

D.C. Coene: Did she do anything to – did she do anything after she spit it out?

Mr. Wayner: No.

D.C. Coene: Like, did she clean her mouth out any way or anything like that?

Mr. Wayner: I don’t think so. I don’t think so.[^61]

h. D.C. Coene and Mr. Wayner subsequently discussed whether there was any way to help the complainant understand what happened to her and, ultimately, D.C. Coene suggested to Mr. Wayner that he write a letter of apology to the complainant to “help with the healing process.” Mr. Wayner did not want to write a letter of apology; he did not think a “letter will do it.” But he asked the detective if he could video-tape Mr. Wayner so that he could “apologize that way, that would make me feel a lot better.” Accordingly, D.C. Coene left the interview room, and Mr. Wayner then provided an extensive apology to the complainant and her family, which lasted about five minutes. Mr. Wayner can be observed to be crying at one point during his apology to the complainant.

i. Following the conclusion of Mr. Wayner’s video-taped apology to the complainant, D.C. Coene returned to the interview room and raised with Mr. Wayner the question of whether there was any potential risk of sexually transmitted diseases being passed to the complainant. The following exchange took place:

Mr. Wayner: I am clean. I get tested every month.

D.C. Coene: Okay. And as far as pregnancy goes and that sort of thing …

Mr. Wayner: I never penetrated down there.

D.C. Coene: You never penetrated down there?

Mr. Wayner: No.

D.C. Coene: But your penis came close to that area, it came close to her vagina, like on the outside?

Mr. Wayner: I don’t know. I don’t recall being near there, just her mouth.

D.C. Coene: Just her mouth?

Mr. Wayner: Because I never wanted to take her virginity.

D.C. Coene: Okay.

Mr. Wayner: I never wanted to do that.

D.C. Coene: Is that a possibility that that did happen?

Mr. Wayner: I don’t think so, no.

D.C. Coene: Because she’s telling us that that did happen.

Mr. Wayner: Finger, yes. Penis, no.

D.C. Coene: Are you a hundred percent on that or just –

Mr. Wayner: I am a hundred percent on that. I never put my penis inside of her.

D.C. Coene: Okay, Jimmie.[^62]

[121] I have reviewed these inculpatory statements in some detail in order to provide a better appreciation of their context because, despite the detailed particulars of these inculpatory statements given by Mr. Wayner to the police during his interview following his arrest, at trial, Mr. Wayner recanted all of his statements in their entirety.

[122] In essence, Mr. Wayner now says that he was not being truthful when he made all of those inculpatory statements to the police. He says that his statements were all false.

[123] I am very conscious of the fact that “the phenomenon of false confessions is real and cannot be ignored.”[^63]

[124] In this regard, Mr. Esco for the defence relies upon the decision of the Manitoba Court of Appeal in R. v. Pearce, where that court held that:

Why someone would falsely confess to a particular crime is often difficult to pinpoint. Legal and academic sources cite frequent causes of a false confession in the context of a custodial interrogation as being a combination of factors such as: (1) the vulnerability of a suspect (e.g., low intelligence, poor memory, mental illness, youth or extreme age, a significant personality trait or disorder, the fulfillment of a psychological need such as a desire for notoriety or a temporarily diminished condition for reasons such as hunger, sleep deprivation or intoxicant withdrawal); (2) the circumstances and nature of the custodial confinement and interrogation; and (3) the manner of police interrogation (e.g., use of fabricated evidence) …[^64]

[125] In the instant case, the defence submits that, in keeping with the evidence of Dr. Ahmad, Mr. Wayner had a very limited ability to appreciate the consequences of his action, was prone to impulsive behaviour, had difficulties looking beyond his immediate situation, and is possessed of very limited intelligence.

[126] Harkening back to the opinion of Dr. Ahmad, who testified that for a person with Nonverbal Learning Disability, it is “the immediate dominant need that dictates the behaviour” and that such a person “may not think of the consequences of their action,” the central position of the defence is that Mr. Wayner offered a false confession in order to extricate himself from the stressful situation of the police interview.

[127] To that end, Mr. Wayner testified that he confessed in order to end the interview.

[128] I do not accept the defence position. I do not challenge Dr. Ahmad’s opinion that for a person with Nonverbal Learning Disability, it is “the immediate dominant need that dictates the behaviour.” However, in my view, that was not the dynamic that was playing out in the interview room with D.C. Coene that night. In my view, the opinion of Dr. Ahmad concerning the manifestations of Nonverbal Learning Disability is not particularly helpful in explaining any supposed false confession in this case.

[129] When one reviews the actual evidence of Mr. Wayner’s dealings with D.C. Coene that night, it is clear that it was not a situation where Mr. Wayner was attempting by any means available to him to end the interview and extricate himself from a stressful situation. The evidence of that interview simply does not support the central contention of the defence.

[130] Indeed, if one accepts for the moment that Mr. Wayner was prepared to do almost anything to end the interview – even falsely admit to very serious charges of sexual misconduct with a young, disabled girl – one would have thought there might have been some evidence of something approaching unthinking compliance with the suggestions of the interviewing officer. In this vein, I agree with Ms. Bertholet that if Mr. Wayner was confessing to the charges just because he thought that was what the detective wanted to hear, and that would then end the interview, one would have thought that Mr. Wayner would have just confessed to all of the allegations and ended the interview at the outset. But that is not what happened. Rather, Mr. Wayner was very considered and deliberate in what he did and did not confess to. He admitted that on one occasion he put his penis in J.D.’s mouth and on other occasions he touched her vagina and buttocks. But he vehemently denied having sexual intercourse with the complainant or touching other parts of her body with his penis. D.C. Coene came back to these issues on several occasions, but all such attempts were met with Mr. Wayner’s consistent denials.

[131] In my view, the actual evidence of the exchanges between Mr. Wayner and the detective establishes – not that Mr. Wayner was desperately trying to end the interview – but that he repeatedly sought to engage the detective in conversation, on a variety of points.

[132] For example, I described a “bridge” segment of the interview, when Mr. Wayner was speaking in conditional phrases, such as, “if I did do it” and “if I did harm that little girl.” I pause to note that the obvious effect of that curious “bridge” segment was to extend the length of the interview. To my mind, it was as if Mr. Wayner was not ready to confess just yet but needed additional time to ready himself to tell the truth.

[133] Towards the end of that “bridge” session, D.C. Coene asked Mr. Wayner to “think deep down inside, think back to when you were alone with [J.D.]” and Mr. Wayner replied that he was “trying to think deep down inside. I do remember.” The detective said to him that he needs to do the right thing, and Mr. Wayner responded, “[a]nd what is the right thing to do?” The detective told him the right thing to do was “owning up for what you’ve done to this little nine-year-old girl.” And in response, Mr. Wayner sought to engage the detective in a series of questions, asking “[a]nd what would happen if I did? Would the punishment be severe enough? Can you answer me that one?”[^65] That is not a person who is trying to do anything he can to bring the interview to a quick close. That is a person who is actively trying to engage the interviewer in discussion.

[134] To the same effect is an exchange that occurred after Mr. Wayner’s initial admission that he touched the complainant but at the point when he was still resisting the suggestion that he put his penis in her mouth. Mr. Wayner stated that he could remember one time when he touched the complainant. D.C. Coene asked if there may have been other times, like the complainant had told the police. And in response, again Mr. Wayner sought to engage the detective in a series of introspective questions, saying, “[i]t could have been. Why would I do something like this? Can you explain that to me? If it happened to me when I was a child, why would I put another child through that? Why would somebody do that? Can you explain that to me? Because I don’t understand it.”[^66] Again, that is not a person who is trying to end the interview. That is a person seeking to prolong the interview.

[135] But Mr. Wayner went on to delve into the psychological impact of persons who have been abused themselves going on to commit similar sexual offences, and he questioned why we see that in society. He asked the detective for an explanation as to why that seems to occur, and he asks if psychology provides some explanation. “Is it psychological? Like what is it?” D.C. Coene replied that he believes “it’s probably psychological.” And Mr. Wayner asks the detective, “[i]s there a cure?”[^67] Again, that is not a person trying to end an interview; that is a person seeking to prolong an interview.

[136] Towards the end of the interview, D.C. Coene invited Mr. Wayner to provide a written letter of apology to the complainant. Instead, Mr. Wayner asked for the opportunity to record a video-taped apology, and D.C. Coene accommodated that request. Mr. Wayner then proceeded to give a quite lengthy apology, which lasted about five minutes. A person who was actually trying to end the interview as soon as possible would not have provided such a lengthy, dramatic apology. Indeed, such a person would have declined the invitation in the first place.

[137] For these reasons, I reject the suggestion of the defence that Mr. Wayner offered false confessions merely in order to extricate himself from a stressful interview. I do not believe Mr. Wayner’s evidence that the reason why he confessed was in order to end the interview. His evidence in this regard does not raise a reasonable doubt either standing alone or in conjunction with all of the evidence. As such, I do not accept that Mr. Wayner falsely confessed to the incidents in question.

[138] Before leaving the defence position, I would address the various passing comments in the closing submissions of the defence to the effect that at the time Mr. Wayner gave his confessions, he was not taking his medications. The evidence concerning what medications Mr. Wayner was supposed to be taking at the time of his confession was not particularly clear or well-developed at trial.

[139] In any event, there was no medical or pharmacological evidence to explain the consequences of a person failing to take any such prescribed medications. Certainly, there was no medical or pharmacological evidence to suggest that a failure to take any such prescribed medications would explain, or be a contributing factor in explaining, why a person would offer a false confession.

Summary

[140] In my view, this case well illustrates the importance of considering the total body of evidence together, rather than attempting to separately analyze each item of evidence on a piecemeal basis. As such, I agree with Ms. Bertholet that the decision of Code J. in R. v. G. (P.) is instructive in explaining the proper approach to the assessment of evidence. There, the trial judge was confronted with different items of circumstantial evidence, which, if analyzed separately, were open to some innocent explanation. In rejecting a piecemeal approach to the assessment of evidence, Code J. held as follows:

The proper way to analyze these potential explanations for each piece of circumstantial evidence is not piecemeal, in isolation from the other evidence. Rather, they are to be assessed together and in the context of all the evidence. Furthermore, the individual items of evidence are not to be subjected to the standard of proof beyond reasonable doubt, which applies to the essential elements of the offences and to the verdicts. As Taschereau J. put it, speaking for six members of the Court in R. v. Côté … :

It may be, and such is very often the case, that the facts proven by the Crown, examined separately have not a very strong probative value; but all the facts put in evidence have to be considered each one in relation to the whole, and it is all of them taken together, that may constitute a proper basis for a conviction.

When the entire body of circumstantial evidence is considered together, and is considered together with R. K.’s own internally compelling testimony, I am satisfied that the innocent explanations for individual items of evidence should be rejected.[^68]

[141] In the instant case, when the entire body of evidence is considered together, I am satisfied that confirmatory evidence of the testimony of the complainant is found in the expert evidence concerning the DNA profiles found on the used condom and Mr. Wayner’s confession to the police.

[142] Considering the totality of the evidence, I am satisfied beyond a reasonable doubt that Mr. Wayner put his penis in the mouth of the complainant on one occasion (which forms the basis for counts 1, 2, and 3), that Mr. Wayner touched the vagina of the complainant on at least one occasion (which forms the basis for counts 4 and 5), and that Mr. Wayner touched the buttocks of the complainant on at least one occasion (which forms the basis for counts 6 and 7).

[143] The evidence does not convince me beyond a reasonable doubt that Mr. Wayner engaged in vaginal intercourse or anal intercourse with the complainant.

Conclusion

[144] In sum, for the above reasons, and after having reviewed all of the evidence, I make the following findings:

a. I do not believe Mr. Wayner’s denial at trial that he did not engage in the sexual activity in question with the under-aged complainant, J.D.;

b. I am not left with a reasonable doubt by the evidence of Mr. Wayner as to any essential element of the sexual offences alleged against him; and

c. on the basis of the evidence that I do accept, I am convinced beyond a reasonable doubt that Mr. Wayner is guilty of the sexual offences as charged in the indictment.

[145] Accordingly, I find Jimmie Wayner guilty of:

a. committing a sexual assault upon the under-aged complainant, J.D., contrary to s. 271 of the Criminal Code, as charged in counts 1, 4, and 7 of the indictment;

b. committing the offence of sexual interference upon the said J.D., contrary to s. 151 of the Code, as charged in counts 2, 5, and 6 of the indictment; and

c. committing the offence of invitation to sexual touching upon the said J.D., contrary to s. 152 of the Code, as charged in count 3 of the indictment.

[146] The charges against Mr. Wayner in counts 8 and 9 of the indictment are dismissed.

J. Paul R. Howard

Justice

Delivered orally: Tuesday, August 25, 2020

COURT FILE NO.: CR-17-3884

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

JIMMIE WAYNER

REASONS FOR JUDGMENT

Howard J.

Delivered orally: Tuesday, August 25, 2020

[^1]: Criminal Code, R.S.C. 1985, c. C-46.

[^2]: Exhibit 20, DVD of Interview of Jimmie Wayner on September 7, 2015 (“Wayner Interview”), at approx. 00:08 time-stamp; see also Transcription of Interview of Jimmie Wayner on September 7, 2015, at p. 78.

[^3]: R v. Lifchus, 1997 CanLII 319 (SCC), [1997] 3 S.C.R. 320, 118 C.C.C. (3d) 1, at pp. 336-337 [cited to S.C.R.].

[^4]: R. v. W. (D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742, 63 C.C.C. (3d) 397 [cited to S.C.R.].

[^5]: Ibid. at pp. 757-758.

[^6]: R. v. Thomas, 2012 ONSC 6653 (S.C.J.), at paras. 23-24.

[^7]: R. v. D. (B.), 2011 ONCA 51, 266 C.C.C. (3d) 197, at para. 114.

[^8]: R. v. M. (K.), [2008] O.J. No. 198 (S.C.J.), at para. 84 per Hill J., citing R. v. S. (F.) (1997), 1997 CanLII 1150 (ON CA), 34 O.R. (3d) 332, 116 C.C.C. (3d) 435 (C.A.), at pp. 349-350 [cited to O.R.]; and R. v. M. (N.), [1994] O.J. No. 1715 (C.A.), affirmed 1995 CanLII 95 (SCC), [1995] 2 S.C.R. 415.

[^9]: R. v. M. (K.), [2008] O.J. No. 198 (S.C.J.), at para. 86 per Hill J., citing R. v. Kehler, 2004 SCC 11, [2004] 1 S.C.R. 328, 181 C.C.C. (3d) 1, at paras. 12-15; R. v. B. (A.) (1997), 1997 CanLII 1902 (ON CA), 33 O.R. (3d) 321, 115 C.C.C. (3d) 421, (Ont. C.A.) at p. 329 per Moldaver J.A. [cited to O.R.], (leave to appeal refused [1997] S.C.C.A. No. 461, [1998] 1 S.C.R. vi (note)); and R. v. Michaud, 1996 CanLII 211 (SCC), [1996] 2 S.C.R. 458, 107 C.C.C. (3d) 193, at p. 459 [cited to S.C.R.].

[^10]: See Criminal Code, s. 274.

[^11]: R. v. B. (R.T.), 2009 ONCA 177, 95 O.R. (3d) 21, 243 C.C.C. (3d) 158, at para. 19.

[^12]: R. v. B. (G.), 1990 CanLII 7308 (SCC), [1990] 2 S.C.R. 30, 86 Sask. R. 111, 56 C.C.C. (3d) 200 [cited to S.C.R.].

[^13]: R. v. W. (R.), 1992 CanLII 56 (SCC), [1992] 2 S.C.R. 122, 74 C.C.C. (3d) 134 [cited to S.C.R.].

[^14]: Ibid., at pp. 133-134, citing R. v. B. (G.), at pp. 54-55. [Citations omitted. Emphasis added.]

[^15]: R. v. C. (M.M.), 2014 ONCA 307, 308 C.C.C. (3d) 318, at para. 46.

[^16]: R. v. J.A., 2011 SCC 28, [2011] 2 S.C.R. 440, at paras. 23-24.

[^17]: R. v. K.S., 2018 ONSC 1988 (S.C.J.), at para. 49, affirmed 2019 ONCA 474.

[^18]: Ibid. (S.C.J.), at para. 49.

[^19]: R. v. F. (C.C.), 1997 CanLII 306 (SCC), [1997] 3 S.C.R. 1183, 120 C.C.C. (3d) 225, at p. 1193 [cited to S.C.R.]. [Citations omitted.]

[^20]: R. v. Wayner, 2018 ONSC 6528 (S.C.J.).

[^21]: Ibid., at p. 1204, citing R. v. L. (D.O.), 1993 CanLII 46 (SCC), [1993] 4 S.C.R. 419, at p. 458. [Citations omitted.]

[^22]: Exhibit 6, DVD of Interview of J.D. on September 4, 2015, at approx. 21:45 time-stamp; see also Transcription of Interview of J.D. on September 4, 2015, at p. 4.

[^23]: Ibid., at approx. 21:46 time-stamp; Transcription, p. 5.

[^24]: Ibid., at approx. 21:52 time-stamp; Transcription, p. 11.

[^25]: Ibid., at approx. 21:58 time-stamp; Transcription, p. 17.

[^26]: Ibid., at approx. 22:04 time-stamp et seq.; Transcription, pp. 22-23.

[^27]: Ibid., at approx. 22:05 time-stamp; Transcription, p. 23.

[^28]: Ibid., at approx. 22:16 time-stamp; Transcription, p. 32.

[^29]: Ibid., at approx. 22:18:30 time-stamp; Transcription, p. 35.

[^30]: Ibid., at approx. 22:37 time-stamp; Transcription, p. 50.

[^31]: Ibid., at approx. 22:46 time-stamp et seq.; Transcription, pp. 58-59.

[^32]: Ibid., at approx. 22:50 time-stamp et seq.; Transcription, pp. 61-64.

[^33]: Ibid., at approx. 23:17 time-stamp et seq.; Transcription, pp. 83-84.

[^34]: Exhibit 7, DVD of Interview of J.D. on September 7, 2015, at approx. 10:02 time-stamp; see also Transcription of Interview of J.D. on September 7, 2015, at p. 36.

[^35]: Ibid., at approx. 9:48 time-stamp et seq.; Transcription, pp. 26-29.

[^36]: Ibid., at approx. 10:16 time-stamp; Transcription, pp. 44-45.

[^37]: Ibid., at approx. 10:20 time-stamp; Transcription, p. 48.

[^38]: Ibid., at approx. 10:35 time-stamp; Transcription, p. 58.

[^39]: Ibid., at approx. 10:35:27 time-stamp et seq.; Transcription, pp. 58-59.

[^40]: Ibid., at approx. 10:37 time-stamp et seq.; Transcription, pp. 59-60.

[^41]: Ibid., at approx. 10:40 time-stamp; Transcription, p. 61.

[^42]: Ibid., at approx. 10:43 time-stamp; Transcription, p. 63.

[^43]: R. v. F. (C.C.), at p. 1203.

[^44]: R. v. F. (C.C.), at p. 1205. See also R. v. D.P., 2016 ONSC 7795, [2016] O.J. No. 6783 (S.C.J.), at para. 100.

[^45]: R. v. Lacombe, 2019 ONCA 938, [2019] O.J. No. 6023, at para. 45. See also R. v. D. (D.), 2000 SCC 43, [2000] 2 S.C.R. 275, 148 C.C.C. (3d) 41, at para. 65; R. v. Kiss, 2018 ONCA 184, [2018] O.J. No. 1011, at para. 101; and R. v. J.L., 2018 ONCA 756, 143 O.R. (3d) 170, 367 C.C.C. (3d) 249, at paras. 46-47.

[^46]: R. v. F. (C.C.), at pp. 1193-1194.

[^47]: R. v. M. (K.), at para. 86.

[^48]: Exhibit 4, Biology Report dated May 10, 2017, by Melanie Richard, Forensic Scientist, Biology, Centre of Forensic Sciences.

[^49]: See Exhibit 5, Biology Report dated October 2, 2017, by Melanie Richard, Forensic Scientist, Biology, Centre of Forensic Sciences.

[^50]: See Exhibit 3, Report dated October 8, 2015, by Melanie Richard, Forensic Scientist, Biology, Centre of Forensic Sciences.

[^51]: Exhibit 20, Wayner Interview, at approx. 11:54:40 time-stamp; Transcription, at p. 71.

[^52]: Ibid., at approx. 23:59 time-stamp; Transcription, at p. 72.

[^54]: Ibid., at approx. 00:01 time-stamp; Transcription, at p. 74.

[^56]: Ibid., at approx. 00:02:18 time-stamp; Transcription, at pp. 74-75.

[^57]: Ibid., at approx. 00:03 time-stamp; Transcription, at p. 75.

[^58]: Ibid., at approx. 00:06 time-stamp et seq.; Transcription, at pp. 77-78.

[^59]: Ibid., at approx. 00:17 time-stamp et seq.; Transcription, at pp. 84-85.

[^60]: Ibid., at approx. 00:20:45 time-stamp et seq.; Transcription, at pp. 87-89. [Emphasis added.]

[^61]: Ibid., at approx. 00:28 time-stamp; Transcription, at p. 91.

[^62]: Ibid., at approx. 00:40:55 time-stamp et seq.; Transcription, at pp. 96-97.

[^63]: R. v. Pearce, 2014 MBCA 70, 310 Man. R. (2d) 14, 318 C.C.C. (3d) 372, at para. 55.

[^64]: Ibid., at para. 56. [Citations omitted.]

[^65]: Exhibit 20, Wayner Interview, at approx. 00:04 time-stamp; Transcription, at p. 76.

[^66]: Ibid., at approx. 00:11 time-stamp; Transcription, at pp. 80-81.

[^67]: Ibid., at approx. 00:12 time-stamp; Transcription, at pp. 81-82.

[^68]: R. v. Gibson, 2012 ONSC 900, [2012] O.J. No. 4611 (S.C.J.), at para. 131, citing R. v. Côté (1941), 1941 CanLII 348 (SCC), 77 C.C.C. 75 (S.C.C.), at p. 76. [Citations omitted.]