SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR–18–10000695

DATE: 20201125

ONTARIO

BETWEEN:

HER MAJESTY THE QUEEN

– and –

S. F. B.

Emma Evans, for the Crown

Stephen Whitzman, for S. F. B.

HEARD: October 19-21, 2020

Reasons for judgment

P.J. Monahan J.

I. Overview

[1] SFB has been charged with sexual assault, contrary to s. 271 of the Criminal Code, touching the body of a person under the age of 14 years for a sexual purpose, contrary to s. 151 of the Criminal Code, and assault, contrary to s. 266 of the Criminal Code. These offences are alleged to have occurred between January 1, 2010 and May 31, 2017, when the complainant was between the ages of three and 11.

[2] The complainant, SFB’s stepdaughter, was born on May 31, 2006. The complainant’s mother met SFB sometime in 2010 and, some months later, SFB moved into the Toronto house where the complainant lived with her mother. The complainant’s mother and SFB were married in late 2011, and they subsequently had two children, a girl, KS, and a boy, LS.

[3] The Crown alleges that SFB began assaulting the complainant shortly after moving in with her and her mother in late 2010 or early 2011. The alleged assaults generally occurred late at night, after the other family members had gone to sleep. SFB would open the complainant’s bedroom door, completely naked. Sometimes SFB would just stand at the door and look at the complainant. At other times he would come into her room, stand by the side of her bed, and insert his finger into her vagina. The Crown alleges that these assaults occurred frequently until the complainant disclosed details of the assaults to her mother and her aunt in February 2018.

[4] The Crown also alleges that SFB bit the complainant on the chest while she was four or five years old, thereby assaulting her.

[5] SFB denies that any of the events alleged by the Crown took place.

II. Evidence

a. Crown Case

[6] Two witnesses testified for the Crown: (i) the complainant and (ii) the complainant’s aunt, AT.

i. Evidence of the Complainant

[7] On consent, the complainant testified remotely via CCTV. The complainant had also made a videotaped statement to the police on February 14, 2018, a few hours after disclosing the alleged sexual assaults to her mother and her aunt. The videotape of the statement was played in court and its contents were adopted by the complainant. On consent, the videotape was admitted as evidence pursuant to s. 715.1 of the Criminal Code.

1. Videotaped Statement

[8] In her statement to the police, the complainant indicated that SFB began sexually assaulting her almost immediately after he moved into her family home, when she was around three years old. The complainant slept in a bedroom on the second floor of the house with her younger sister, KS. Although there were bunk beds, the complainant and KS slept together on the lower bunk, with KS on the inside nearest the wall and the complainant on the outside. The door to the bedroom was generally closed once the girls had gone to bed. However, the complainant said that she placed some bells on her doorknob to wake her up in case the door was opened.

[9] SFB and the complainant’s mother slept together in another second-floor bedroom, along with the complainant’s brother, LS. There was also a common bathroom on the second floor. The complainant stated that every night, after she and her sister had gone to sleep, SFB would open her door and would be completely naked. Sometimes SFB would turn on the hall light. He usually carried a towel, which the complainant believed was intended to give the impression that he was going to the bathroom.

[10] The complainant reported that SFB would sometimes just stand at the door and look at her. At other times he would come into her room, stand by the side of her bed, and insert his finger into her vagina. The complainant said that SFB had long fingernails, which would scratch her and cause her to wake up. She would tell SFB to leave and kick him away, and SFB would leave the room. During these assaults, KS never woke up.

[11] The complainant told police that these assaults took place every night, sometimes twice a night, from the time she was three years old until she was 10. When she was 10, the complainant told her mother that SFB had been standing in the hall naked and looking at her at night. She did not disclose the sexual touching at that time. The complainant stated that after learning about SFB’s behaviour, her mother yelled at him and SFB stopped coming into her room for a couple of weeks. SFB came to her room one more time and her mother yelled at him again. Following this, SFB continued to come into the complainant’s room at night, but he did so less frequently, perhaps once a week or less.

[12] During the course of the interview, the complainant was asked when SFB had last come into her room naked. On a couple of occasions the complainant replied that the last incident had occurred when she was eight or nine years old. However, at another point in the interview she stated that SFB had come into her room and touched her when she was 10 years old.

[13] The complainant was asked whether SFB would ever say anything to her during these assaults. She described an incident that occurred when she was three years old. She had been watching TV in her bedroom and fallen asleep. SFB came into the bedroom with a towel and started touching her. She woke up and told him to stop. SFB threatened to turn off the television and, when he turned it off, the complainant started crying and her mother came upstairs.

[14] The complainant said that she was three years old the first time she was assaulted. SFB had gone out drinking and the complainant and her mother had fallen asleep on the living room sofa on the main floor of the house. When SFB came home, he picked the complainant up and started touching her vagina, and then brought her up to her room. The complainant’s mother yelled, asking where the complainant was, and the complainant told her she was in her room.

[15] The complainant was asked whether SFB would ever touch her on other parts of her body. She replied that she and her siblings would sometimes playfight with SFB and her mother. Sometimes while playfighting, SFB would touch her on her chest or on her bottom. When the complainant was nine years old, her aunt had observed a bruise on her chest which was caused by SFB while they had been playfighting.

[16] The complainant was asked what had caused her to report the sexual touching by SFB to her mother and her aunt. She indicated that the previous evening (i.e. February 13, 2018), SFB and her mother had engaged in a violent physical fight in which SFB had pulled her mother’s hair and kicked her mother in the head. According to the complainant, although SFB and her mother had often fought in the past, this was the worst fight she had seen in many years.

[17] The complainant stated that she disclosed the sexual touching by SFB after he left the house because she was frustrated and sad and did not understand what was going on. The complainant said that her aunt, AT, and a friend of her mother’s came over to the house at about 2:30 AM on February 14, 2018, and her mother told AT about the sexual touching by SFB. However, a few moments later in the interview, the complainant indicated that her mother had urged her to tell her aunt about the sexual touching, which the complainant did. Later still in the interview, the complainant said that she told her mother about the sexual touching at the same time as she told her aunt and her mother’s friend.

[18] The complainant also indicated that she had told two friends about the sexual touching by SFB about a year earlier. One of those friends had told her own mother about it. The complainant was concerned that the friend’s mother would report this to the complainant’s mother, so she later told the friend that it was not true.

[19] The complainant provided a diagram of the second floor of the family home that showed her bedroom, the bedroom occupied by her mother and SFB, and the common bathroom used by the occupants of the house. There was also a third bedroom on the second floor, which had previously been occupied by a babysitter but was currently used at night to house two family dogs. The complainant indicated that there was a fourth bedroom on the third floor of the house occupied by a tenant who worked at night.

[20] The complainant told the police that she did not want SFB to be around her mother anymore. The complainant was scared that SFB was going to hurt her mother even more, to the point where she would have to go to the hospital.

2. Evidence at Trial

[21] In her evidence at trial, the complainant stated that SFB would touch her vagina on most of the occasions when he came into her room at night. He would be naked except for a towel he was carrying and would stand right next to her bed. The complainant did not know how many times during a given week SFB touched her sexually, nor did she know how many times he had touched her sexually over the years. In response to questions from Crown counsel, she replied that in total it was more than once and more than 10 times.

[22] The complainant indicated that when she went to bed at night the light in the second-floor hallway would be off and the hallway would be dark. SFB would sometimes turn the hall light on when he opened the complainant’s door, but other times he would leave it off.

[23] The complainant described the first time she was touched sexually by SFB, which occurred when she was about three years old. The complainant and her mother had fallen asleep on the sofa in the living room. SFB came into the living room and picked her up. As he was carrying her upstairs, he touched her vagina. Her mother was downstairs in the living room at the time.

[24] The complainant also described the second sexual touching incident, when she had fallen asleep in her bedroom after watching TV. SFB came into the room and began touching her sexually. When she woke up, he threatened to turn off the TV. He turned it off, which caused her to start crying. Her mother heard her and yelled from the bottom of the stairs.

[25] The complainant indicated that when she was about 10 years old she had told her mother about SFB coming into her room naked, but not about the sexual touching. Her mother yelled at SFB. Although the frequency of the sexual touching decreased after that, it never stopped entirely. By February 2018, SFB was still touching her sexually on occasion.

[26] One time, when the complainant was at her grandmother’s home, her aunt noticed a bruise on her chest. She does not remember how old she was or how she got the bruise.

[27] In the course of her cross-examination, the complainant was asked about the circumstances in which she reported the sexual touching to her mother, her aunt, and her mother’s friend. Initially, she indicated that she was in the living room with her mother when her aunt and her mother’s friend came over at about 2:30 in the morning on February 14, 2018. She then told the three of them about the sexual touching. However, she subsequently indicated that it was possible that she had been asleep when her aunt came over and that her aunt had called her downstairs. She also agreed that her aunt had asked her whether she had been touched by SFB.

[28] The complainant was also asked whether she could remember the last time that SFB had touched her vagina, and she replied that she could not. She could not remember the last time that SFB had stood in the hall naked, either. She indicated that she remembered telling the police in February 2018 that SFB had last done these things when she was eight or nine years old.

[29] The complainant said that she had kept a diary in which she had described the assaults by SFB. However, sometime prior to her going to the police, the ceiling to her bedroom had caved in and she had lost the diary.

[30] The complainant agreed that in February 2018 she was concerned that SFB would hurt her mother even more and possibly put her in the hospital. The complainant further agreed that she wanted SFB to get out of the house and leave her and her mother alone, and that is why she spoke to the police. The complainant agreed that SFB had, in fact, been required to leave the home following her disclosure of the sexual touching.

ii. Evidence of the Complainant’s Aunt, AT

[31] AT is the sister of the complainant’s biological father. Following the end of the relationship between her brother and the complainant’s mother, she remained friendly with the complainant’s mother. They would talk regularly on the phone and AT would attend birthday parties at the complainant’s house.

[32] At around midnight on February 14, 2018, AT got a call from the complainant’s mother. The latter was upset because of a fight that had occurred between her and SFB the previous evening. After receiving a few additional phone calls, AT decided to go over to the complainant’s mother’s house, arriving there at about 2 or 3 AM.

[33] The complainant’s mother was crying. It appeared to AT that there had been a physical altercation of some kind, as she noticed the complainant’s mother’s hair extensions strewn about and drops of blood on the floor. However, the complainant’s mother was so upset that AT was unable to figure out exactly what had gone on.

[34] AT decided to call the complainant downstairs in an effort to get an explanation as to what had happened. She called upstairs a few times and eventually the complainant came downstairs. It appeared to AT that the complainant had been sleeping and had just woken up.

[35] AT asked the complainant if she was okay and whether SFB had touched her. The complainant replied, “not since last year”. AT then asked the complainant where she had been touched, and the complainant pointed to her private parts. AT asked if SFB had touched her under her clothes and the complainant said yes. AT cannot remember whether she asked the complainant any other questions.

[36] AT told the complainant that she was going to take her to the police. AT recalls that the complainant seemed relieved.

[37] AT was asked whether, prior to February 14, 2018, she ever had any concerns about how SFB interacted with the complainant. She indicated that once, when the complainant was about three years old, she had noticed a bite mark on the complainant’s chest. It was bruised, but AT could see teeth marks. She asked the complainant what had caused the mark, and the complainant replied that SFB had bitten her while they were playfighting.

[38] Later that day, AT was dropping off the complainant at her home and asked SFB about the bite mark. SFB told her that he and the complainant had been playfighting and that the complainant had played too rough. She could not remember if SFB acknowledged having bitten the complainant. AT accepted this explanation and never brought it up again.

[39] In the course of her cross-examination, AT explained that when she asked the complainant about whether SFB had touched her, she was not asking about sexual touching. AT was merely attempting to ascertain whether the complainant had been harmed during the apparent physical altercation that had taken place the evening before. She was completely shocked when the complainant disclosed the sexual touching by SFB.

b. Defence Case

[40] SFB testified in his own defence. He is currently 39 years old and was born in El Salvador. He came to Canada with his parents in 1988 when he was around six years old.

[41] After his parents separated when he was about 10 years old, SFB moved to the United States with his mother and brother. In 2004, he was convicted of aggravated assault with a deadly weapon and was sentenced to five years in prison. Upon his release from prison, he was deported to El Salvador.

[42] SFB returned to Canada in 2009. Although he was uncertain of the exact date, SFB indicated that he met the complainant’s mother sometime in 2010. In the summer of 2011, he began living with the complainant’s mother in the house she occupied with her daughter. He and the complainant's mother were married in November 2011.

[43] SFB indicated that there were two other adults living in the complainant’s house when he moved in: a female babysitter, who slept in the bedroom next to the one occupied by the complainant and KS, and a male tenant, who slept in a bedroom on the third floor of the house. SFB said that about four or five years after he moved into the house, the female babysitter moved out. The bedroom that she had used was then briefly rented to other tenants. Sometime in 2016 or 2017, those tenants moved out and the bedroom was used at night to house two large family dogs.

[44] SFB acknowledged that his relationship with the complainant’s mother was characterized by frequent arguments and physical fights. He admitted to having violently assaulted the complainant’s mother on numerous occasions, including pulling her by the hair, hitting her in the head and face, and grabbing her by the neck. These violent assaults took place in the presence of the children.

[45] However, SFB denied ever having sexually touched the complainant. He also denied ever going into her room naked and standing by her bed. SFB said he would not stand in the hallway on the second floor naked. SFB did indicate that if he and the complainant’s mother had been intimate, they might have a shower together and walk back to their bedroom wearing only a towel. SFB stated that the door to the bedroom occupied by the complainant and KS was sometimes open and sometimes closed at night.

[46] SFB testified that, prior to February 14, 2018, the complainant’s mother had never raised any concerns with respect to inappropriate sexual behaviour in relation to the complainant. He denied that the complainant’s mother had previously yelled at him about standing in the hallway naked.

[47] According to SFB, if he had been standing in the hallway outside the complainant’s bedroom at night, the dogs in the adjoining bedroom would have started barking and scratching at the door in hopes of being let out. SFB also noted that the family had four smaller dogs who slept on the main floor of the house. These dogs would also have barked if they heard the dogs on the second floor become agitated. This would have alerted the complainant’s mother to his behaviour.

[48] SFB stated that generally he had a very minimal role with respect to the upbringing of the three children. His regarded his responsibility as earning income for the family and he regarded childcare as the responsibility of the complainant’s mother. He never prepared meals and did not help the children get dressed, although he might help KS and LS put on their shoes and carry them to the car from time to time. If the children woke up at night, the complainant’s mother would get up and tend to them. SFB indicated that he was aware that the complainant and KS slept together on the lower bunk in their bedroom.

[49] SFB did not know the complainant’s birthday, although he thought it was in March. He expressed surprise when he was informed by Crown counsel that it was actually May 31.

[50] SFB was questioned as to the circumstances surrounding the bruise observed by AT on the complainant’s chest. He recalled having been asked about this by AT when the complainant was about eight or nine years old, and that he told AT that the bruise had been caused by playfighting. SFB testified that AT did not claim that the bruise resulted from a bite. He said that he saw the bruise and he did not observe any bite marks.

[51] SFB testified that he would playfight with all three children at the same time, not just with the complainant. He denied having bitten the complainant on the chest.

[52] SFB denied having kept his fingernails long. He stated that he regularly clipped them and kept them short.

[53] SFB acknowledged that he has a criminal record in Canada: a 2013 conviction for breach of probation, for which he received a fine.

III. Applicable Legal Principles

a. The Presumption of Innocence and Proof Beyond a Reasonable Doubt

[54] The presumption of innocence is a cornerstone of our criminal justice system, guaranteed by s. 11(d) of the Canadian Charter of Rights and Freedoms. The presumption of innocence and the standard of proof beyond a reasonable doubt are important and necessary safeguards to ensure that no innocent person is convicted of an offence and wrongfully deprived of their liberty.

[55] Thus, SFB is presumed innocent of the charges brought against him and this presumption stays with him unless and until the Crown proves his guilt beyond a reasonable doubt. This is a heavy burden that remains on the Crown and never shifts.

[56] I remind myself of the meaning of the phrase proof beyond a reasonable doubt. A reasonable doubt is not an imaginary or frivolous doubt. It is not a doubt based on sympathy for or prejudice against anyone involved in the trial. It is a doubt based on reason and common sense that arises logically from the evidence or absence of evidence. It is therefore not enough for me to believe that SFB is probably or likely guilty. In that circumstance, I am required to give the benefit of the doubt to SFB and acquit him because the Crown would have failed to satisfy me of his guilt beyond a reasonable doubt.

[57] I also recognize that proof beyond a reasonable doubt is not proof to an absolute certainty. But the standard of proof beyond a reasonable doubt falls much closer to absolute certainty than to probable guilt. I recognize that I must consider all of the evidence and be sure that SFB committed an offence with which he is charged before I can be satisfied of his guilt beyond a reasonable doubt.

b. Assessing Credibility

[58] SFB and the complainant testified to two contradictory versions of events. Their evidence cannot stand together and, to reach a verdict in this case, I must assess the credibility of each. However, this task does not simply involve choosing whose version of events I prefer. The decisive question is whether, considering the evidence as a whole, the Crown has proven the guilt of the accused beyond a reasonable doubt on the specific charges alleged.

[59] The correct approach to cases like this is set out in R. v. W.(D.).[^1] The Supreme Court of Canada directs, first, that if I believe the evidence of SFB that he did not commit the offence with which he is charged, I must find him not guilty. Second, if I do not believe the testimony of SFB but his testimony leaves me with a reasonable doubt of his guilt regarding the offence charged, I must find him not guilty. Third, even if SFB’s testimony does not leave me with any reasonable doubt as to his guilt, I must still consider whether the evidence I do accept satisfies me of his guilt beyond a reasonable doubt.

[60] As Doherty J.A. found in R. v. J.J.R.D., even if there are no obvious flaws in an accused’s evidence, it is possible to reject that evidence “based on a considered and reasoned acceptance beyond a reasonable doubt of the truth of conflicting credible evidence”.[^2] More recently, in R. v. C.L., Paciocco J.A. explained that such a finding would be appropriate where “the incriminating evidence is so compelling that the only appropriate outcome is to reject the exculpatory evidence beyond a reasonable doubt and find guilt beyond a reasonable doubt.”[^3] At the same time, the trier of fact must avoid engaging in credibility contest reasoning. For that reason, “the credibility of inculpatory evidence must be particularly impressive before that evidence can be credited beyond a reasonable doubt in the face of otherwise unassailable exculpatory evidence.”[^4]

c. Assessing Children’s Evidence

[61] The complainant was 11 years old when she provided her statement to police and 14 years old at the time of trial. It is well-established that in assessing the testimony of a child witness, the court should take a common-sense approach and not impose the same exacting standard as it does in the case of adults. As Wilson J. recognized in R. v. B.(G.), “[w]hile 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.”[^5] Flaws or even contradictions in a child’s testimony should not be given the same effect as a similar flaw in the testimony of an adult. The particular perspectives of children may affect their recollection of events and any inconsistencies should be assessed in that context.[^6]

[62] That said, the Crown is still required to prove the guilt of the accused on the basis of proof beyond a reasonable doubt. Where there are significant inconsistencies in a child’s evidence, or where it is contradicted by other evidence on the record, it is essential that the credibility and reliability of the complainant’s evidence be tested in light of all the other evidence presented. In particular, it would be improper to accept the testimony of a child complainant based on their demeanour in the witness box and apparent honesty without assessing the reliability of the evidence in light of improbabilities in the account provided, as well as other contradictory evidence.[^7] The trier of fact should carefully assess the evidence as a whole before concluding that guilt has been established.

d. Avoiding Myths and Stereotypes in Sexual Assault Cases

[63] The Supreme Court of Canada has repeatedly observed that relying on myths and stereotypes in assessing the credibility of sexual assault complainants invokes impermissible reasoning. In particular, no negative inference should be drawn regarding a complainant’s credibility that is based on assumptions about how a victim of sexual assault is supposed to react to the assault. This includes the now discredited belief that a sexual assault victim is expected to make a timely complaint. As the Supreme Court of Canada noted in R. v. D.(D.):

[T]here is no inviolable rule how people who are the victims of trauma like a sexual assault will behave.… Reasons for delay are many and at least include embarrassment, fear, guilt, or a lack of understanding and knowledge. In assessing the credibility of a complainant, the timing of the complaint is simply one circumstance to consider in the factual mosaic of a particular case. A delay in disclosure, standing alone, will never give rise to an adverse inference against the credibility of the complainant.[^8]

IV. Counts 2 and 3: Sexual Assault and Sexual Touching

[64] The analysis of counts 2 and 3 in the indictment, which allege that SFB sexually assaulted and sexually touched the complainant, turns on whether the Crown has proven beyond a reasonable doubt that the alleged touching and assaults actually occurred. If the Crown has so proven, then SFB concedes that all the essential elements of these counts, both in respect of mens rea and actus reus, will have been established, resulting in findings of guilt. Alternatively, if the Crown fails to prove beyond a reasonable doubt that the alleged assaults and touching occurred, then the result must be findings of not guilty.

a. Assessing SFB’s Evidence

[65] SFB testified in a straightforward manner. His evidence was internally consistent and did not seem implausible or illogical when considered in the context of the evidence as a whole. SFB also acknowledged certain facts that cast him in an unfavourable light. In particular, he admitted to having violently assaulted the complainant’s mother on numerous occasions. At the same time, he did not waver or equivocate in his denials that he had never sexually assaulted or sexually touched the complainant.

[66] Nevertheless, the Crown urges that SFB’s evidence should be rejected on the basis of certain inconsistencies in his testimony. Amongst the inconsistencies identified by the Crown are the following:

i. SFB’s evidence with respect to the bruise on the complainant’s chest was inconsistent and was tailored in such a way as to minimize the bruise. In his evidence in chief, SFB acknowledged that he had seen the bruise on the complainant’s chest caused by playfighting. However, in his cross-examination, he stated that he had not seen the bruise before reverting to his original position that he had seen the bruise. SFB also attempted to minimize the bruise on the complainant’s chest by claiming that the playfighting always involved the three children together, as opposed to the complainant alone. SFB’s claim that the bruise had occurred when the complainant was eight or nine years old is contradicted by AT’s evidence that she had observed the bruise when the complainant was three years old;

ii. SFB was unclear as to the age of the complainant when he first met her, as well as the date when he had moved in with the complainant and her mother;

iii. SFB’s evidence that the complainant’s mother would have been awakened by dogs barking if he was standing in the second-floor hallway at night is implausible. The Crown argues that if the dogs were barking frequently at night, the other adults in the house would have become accustomed to that behaviour. Accordingly, it was natural that neither the complainant’s mother nor the tenant on the third floor would have been concerned;

iv. SFB minimized his involvement with the complainant. The Crown points out that SFB was aware of the fact that the complainant and KS slept together in the bottom bunk in her bedroom, which knowledge on his part contradicts his claim that he never went into the complainant’s bedroom at night.

[67] Having carefully considered these concerns, I find that they are not sufficiently significant or material as to cause me to reject SFB’s evidence:

i. With respect to the bruise on the complainant’s chest caused by playfighting, SFB stated in his evidence in chief that AT had mentioned the bruise on the complainant’s chest about a week after it occurred. His said that he saw the bruise, that it was purple, but that there were no bite marks. He also acknowledged that he had caused the bruise through playfighting with the complainant.

It is true that at one point in his cross-examination, SFB stated that he had not seen the bruise. However, when questioned further about the apparent inconsistency in his evidence on this point, he explained that, although he had not seen the bruise when it had first happened, he had seen it about a week later when AT had shown it to him. This explanation is consistent with his evidence in chief, in which he had suggested that he become aware of the bruise when it was pointed out to him by AT.

The Crown also questioned SFB’s evidence that he would always playfight with all three children at once. The Crown pointed out that if SFB had been playfighting with the complainant when she was just three years old, it must have been with her alone since the other two children had not yet been born. The Crown relied upon AT’s evidence that the complainant had sustained the bruise on her chest through playfighting when she was three years old.

In fact, however, SFB’s evidence that he would always playfight with all three children together (rather than with the complainant alone) is supported by the complainant’s evidence. In her statement to police, the complainant indicated that the three children would always playfight together with both SFB and her mother. There is no evidence to the contrary on this issue.

As for whether the complainant sustained the bruise on her chest when she was three years old (as claimed by AT) or eight or nine years old (as claimed by SFB), the complainant’s evidence supported the account of SFB and contradicted that of AT. The complainant told the police in February 2018 that her aunt had seen the bruise on her chest when she was eight or nine years old.

I also note that the complainant could not remember how she had sustained the bruise and whether it had been caused by a bite. The only evidence for the bruise having been caused by a bite is the hearsay statement from AT that the complainant told her it was caused by a bite when she was three or four years old. SFB, on other hand, simply denies having bitten the complainant and there is no direct evidence contradicting that claim.

I conclude that SFB’s evidence with respect to the bruise on the complainant’s chest having been caused by playfighting is largely consistent with that of the complainant, and there is no direct evidence to the contrary. In my view, SFB’s evidence on the issue of the bruise does not give rise to any significant credibility concerns.

ii. It is true that SFB was not sure whether the complainant was four or five years old when he first met her. SFB was also unable to identify the date when he had moved in with the complainant and her mother, although he thought it was in the summer of 2011.

I see no cause for concern in these aspects of his evidence. SFB did not appear evasive in his responses and simply seemed unable to recall the relevant dates. There is no evidence contradicting SFB’s evidence on the point, since the complainant could not recall exactly how old she was when SFB moved into the family home (which is entirely understandable given her age at the time) and the complainant’s mother did not testify. In any event, nothing turns on whether SFB met the complainant when she was four years old as opposed to when she was five, nor is it material whether SFB moved in with the complainant and her mother in 2010 or 2011. In my view, these matters are collateral and do not call into question the overall credibility of SFB’s evidence.

iii. I see nothing implausible in SFB’s argument that, if he was frequently getting up at night and standing in the hallway outside the complainant’s bedroom, thereby causing the two dogs in an adjoining room to bark and scratch at the door, this would have drawn the attention of the complainant’s mother. This is reinforced by the complainant’s evidence that a year prior to going to police she had told her mother that SFB was standing naked in the hallway, alerting her mother to SFB’s inappropriate conduct. This would have made it all the more likely that the complainant’s mother would have noticed dogs barking frequently at night in a nearby bedroom. Moreover, the complainant testified that SFB would sometimes turn on the hall light while standing naked at her door, which would have drawn even more attention to himself.

Nor is there any evidence contradicting SFB on this issue. The complainant did not indicate whether the dogs in the next room would bark when SFB was standing in the hall at night. And there is no evidence from any resident of the house as to whether the dogs would or would not bark at night. In the absence of any evidence to the contrary and given the apparent plausibility of SFB’s evidence on the point, there is no basis for rejecting his account.

iv. I accept SFB’s evidence that he took very little responsibility for childcare or domestic tasks, leaving those duties almost entirely to the complainant’s mother. The complainant was not asked about the matter and there is no evidence contradicting SFB’s account. Nor do I see any contradiction between his evidence on this point and the fact that he was aware that the complainant and KS slept in the same bunk. SFB testified that the complainant’s mother told him about these sleeping arrangements. There is nothing inherently implausible about this claim, nor does the fact that SFB was aware of these sleeping arrangements necessarily mean that he must have been going into the complainant’s bedroom naked at night.

[68] I conclude that there were no material inconsistencies in SFB’s evidence and that his evidence was plausible when considered in the context of the evidence as a whole.

b. Assessing Any Conflicting Credible Evidence

[69] It remains to be seen whether, despite the absence of obvious flaws, SFB’s evidence should nevertheless be rejected based on a considered and reasoned acceptance beyond a reasonable doubt of the truth of conflicting credible evidence. The only conflicting credible evidence to be considered is that of the complainant.

[70] As noted above, the complainant was just 11 years old when she provided her statement to police and 14 years old at the time of trial. Given her age, flaws or even contradictions in her testimony should not be given the same effect as a similar flaw in the testimony of an adult. It is also the case that children may not be able to recount precise details of events, particularly when those events took place a substantial period of time in the past.

[71] That said, there were a significant number of inconsistencies in the complainant’s evidence. For example, she gave a variety of different answers when asked about the last time that SFB had touched her vagina. In her statement to police in February 2018, the complainant said that this had last occurred when she was eight or nine years old. A few moments later in the same interview, she stated that SFB had touched her when she was 10 years old. At another point in her interview, the complainant said that, although the touching by SFB decreased in frequency when she was 10 years old, SFB had continued to touch her up until the time she told her mother in February 2018.

[72] In her evidence at trial, the complainant indicated that she did not know how old she was when SFB had last touched her. However, the complainant also stated that the touching by SFB had continued up until the time she told her mother and aunt.

[73] On the other hand, AT indicated that, when she spoke to the complainant about the sexual touching in February 2018, she had asked when the complainant had last been touched by SFB. AT testified that the complainant replied, “not since last year”.

[74] In short, it is very difficult to determine whether the allegation is that the sexual touching by SFB ended when the complainant was eight or nine years old, when she was 10 years old, or whether it continued right up to the time the complainant reported to her mother and aunt.

[75] The complainant’s account of the sexual touching also raises numerous questions that were never addressed in the Crown’s case. For example, the complainant indicated that she told her mother that SFB was often standing naked in the hallway at night when she was 10 years old. The complainant stated that her mother yelled at SFB, which caused him to stop for a few weeks. When SFB did it again, her mother noticed it and yelled at him again. Despite her mother having been made aware of this conduct and having noticed it on at least one occasion, SFB continued to stand in the hallway at night, come into her room, and touch her. SFB would sometimes even turn on the hall light while he was standing there naked.

[76] Since the complainant’s mother did not testify, we have no way of knowing her level of awareness of SFB’s conduct in the year prior to the complainant’s report. Nevertheless, according to the complainant, her mother had been made aware of inappropriate conduct some substantial period of time prior to her reporting this to police. It is unclear how SFB continued to sexually touch the complainant without being detected by the complainant’s mother when she had been alerted to concerns over his behaviour at an earlier time. These questions could only have been answered through the evidence of the complainant’s mother.

[77] The complainant was also unclear as to the circumstances in which she reported the matter to her mother. In her police statement, she initially indicated that she had first told only her mother about the sexual touching and then, when her aunt came over, her mother instructed her to tell her aunt. However, a few moments later in the interview, she said that she told her mother and aunt about the sexual touching at the same time, and that there was another friend of her mother’s present. AT’s evidence is that the complainant told her and the complainant’s mother about the sexual touching together, but that there was no one else present at the time.

[78] In identifying these inconsistencies, weaknesses, and gaps in the Crown’s case, I do not mean to suggest that the sexual touching described by the complainant did not occur. Despite her youth, the complainant testified in a straightforward and genuine manner.

[79] Nevertheless, given that I have earlier found SFB’s evidence to be internally consistent and plausible, the issue is whether the Crown’s case is sufficiently compelling that it would justify rejecting SFB’s evidence and finding guilt beyond a reasonable doubt. Given the gaps and inconsistencies I have identified in the Crown’s case, it is clear that the evidence tendered by the Crown falls significantly short of what would be necessary to justify rejecting SFB’s otherwise unassailable evidence.

[80] Considering SFB’s evidence in the context of the evidence as a whole, I am left with a reasonable doubt as to whether the sexual touching and sexual assaults alleged by the Crown actually took place. On this basis, SFB is entitled to an acquittal on count 2, sexual assault, and on count 3, touching the body of a person under the age of 14 years for a sexual purpose.

IV. Count 1: Assault

[81] The Crown alleges that SFB assaulted the complainant by biting her while playfighting. The only evidence in support of this allegation is the hearsay statement by the complainant’s aunt, AT, that the complainant, then age three, told her that she had been bitten by SFB.

[82] No objection was taken to the admissibility of this hearsay statement and no voir dire was held to determine its admissibility. Even assuming it is admissible, I find that it does not provide a sufficient basis to establish SFB’s guilt beyond a reasonable doubt on this count of the indictment.

[83] The complainant does not remember telling her aunt that she was bitten by SFB. At the same time, the complainant did state that her aunt observed a bruise on her chest when she was eight or nine years old, rather than three years old as claimed by AT. SFB testified that the complainant had sustained a bruise while playfighting when she was eight or nine, which is consistent with the complainant’s evidence and inconsistent with that of AT.

[84] I have earlier found SFB’s evidence on the playfighting issue to be plausible. There is no basis to reject his evidence on the basis of the hearsay evidence of AT. I therefore find SFB not guilty of count 1.

VI. Disposition

[85] I find SFB not guilty of all counts in the indictment.

P. J. Monahan J.

Released: November 25, 2020

COURT FILE NO.: CR–18–10000695

DATE: 20201125

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

S. F. B.

REASONS FOR JUDGMENT

P.J. Monahan J.

Released: November 25, 2020

[^1]: 1991 93 (SCC), [1991] 1 S.C.R. 742.

[^2]: 2006 40088 (ON CA), [2006] O.J. No. 4749 (C.A.), leave to appeal refused [2007] S.C.C.A. 69, at para. 53.

[^3]: 2020 ONCA 258, [2020] O.J. No. 1669 at para. 30.

[^4]: Ibid at para. 40.

[^5]: 1990 7308 (SCC), [1990] 2 S.C.R. 30 at para. 48.

[^6]: R. v. W.(R.), 1992 56 (SCC), [1992] 2 S.C.R 122 at paras. 24-26.

[^7]: R. v. Gostick (1999), 1999 3125 (ON CA), 121 O.A.C. 355 (C.A.) at paras. 14-19.

[^8]: 2000 SCC 43, [2000] 2 S.C.R. 275 at para. 65.