SUPERIOR COURT OF JUSTICE - ONTARIO
COURT FILE NO.: CR-18-125 (Brantford)
DATE: 2020/01/17
RE: R. v. D.W.
BEFORE: Justice D.A. Broad
COUNSEL: L. Brock, Counsel for the Crown
S.E. Bernstein, Counsel for the Accused
HEARD: November 25, 26, 27 and 28, 2019
SUBJECT TO ANY FURTHER ORDER BY A COURT OF COMPETENT JURISDICTION, AN ORDER HAS BEEN MADE IN THIS PROCEEDING DIRECTING THAT THE IDENTITY OF THE COMPLAINANT AND ANY INFORMATION THAT COULD DISCLOSE SUCH IDENTITY, SHALL NOT BE PUBLISHED IN ANY DOCUMENT OR BROADCAST IN ANY WAY PURSUANT TO S. 486.4 OF THE CRIMINAL CODE OF CANADA
reasons for decision
(Orally)
[1] The accused D.W. is charged with three offences alleged to have been committed against the complainant C.D. between January 1, 2012 and December 31, 2015 in the City of Brantford, as follows:
(a) sexual assault contrary to section 271 of the Criminal Code of Canada;
(b) for a sexual purpose did touch C.D., a person under the age of 16 directly with a part of his body contrary to section 151 of the Criminal Code of Canada; and
(c) did by word of mouth knowingly utter a threat to C.D. to cause bodily harm to her contrary to section 264.1(1)(a) of the Criminal Code of Canada.
[2] At all times during the charge period D.W. was living in a common-law relationship with C.D.’s mother D.B.(C.).
[3] C.D. was 5 years of age at the beginning of the charge period. She resided at that time with her family, including D.W., on S. Street. The family moved from S. Street to A. Street when C.D. was 6 years of age. C.D. was 8 years of age at the end of the charge period, at which time the family remained living on A. Street.
[4] C.D. was 10 years of age when she first made disclosure to her mother D.B.(C.) of alleged sexual abuse of her by D.W. and when she initially spoke to the police concerning the allegations giving rise to the charges in the indictment. She was 12 years of age when she testified at trial.
Guiding Principles
[5] The paramount question is whether, on the evidence as a whole, I am left with a reasonable doubt about the guilt of the accused D.W. That is the central consideration before me. A verdict of guilt must not be based on a choice between the evidence of the accused and the Crown’s evidence, as such an approach would undermine the presumption of innocence and the requirement of proof beyond a reasonable doubt (see R.v. Vuradin, 2013 SCC 38 at para. 21).
[6] Hill, J. in the case of R. v. Williams 2010 ONSC 184 (S.C.J.) reinforced the following principles at paras. 55-57:
a) The evidence of a single witness may be capable of raising a reasonable doubt.
b) A determination of guilt or innocence in a criminal trial does not devolve into a credibility contest between witnesses. Such an approach would erode the presumption of innocence and the assigned burden of persuasion of proof beyond a reasonable doubt.
c) Where credibility is a central issue in a trial, the court must be alert to the relationship between the assessment of credibility and the prosecution's ultimate burden to prove guilt beyond a reasonable doubt. Mere disbelief of an accused's evidence does not satisfy the burden of persuasion upon the Crown. The trier of fact must be satisfied, on the whole of the evidence, that there exists no reasonable doubt as to the guilt of the accused.
d) A trier of fact, in assessing credibility, considers a variety of factors including the plausibility of evidence having regard to experience and common sense and inherent probabilities and improbabilities, inconsistencies within a witness' evidence, how a witness' version of events fits with other evidence in the case, the weight of testimony pointing in a particular direction, motive to fabricate, and witness demeanour.
[7] Although it is fundamental that an accused is not required to testify, where he chooses to do so, as D.W. did in this case, the law requires that I take the following approach:
a) if I believe D.W.’s evidence that he did not commit the offences charged, I must find him not guilty;
b) even if I do not believe D.W.’s evidence, if it leaves me with a reasonable doubt about his guilt, or about an essential element of an offence with which he is charged, I must find him not guilty of that offence; and
c) even if D.W.’s evidence does not leave me with a reasonable doubt of his guilt, or about an essential element of an offence with which he is charged, I may convict him only if the rest of the evidence that I do accept proves his guilt of it beyond a reasonable doubt.
(see R.v. W. (D.) 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742 (S.C.C.))
[8] It is important to note, in applying the first two prongs of the W.(D.) formula, that D.W.’s evidence, and other evidence favourable to him, is not to be considered in isolation but rather is to be considered in the context of all of the evidence. The evidence of any witness, including D.W., may be believable standing on its own, but when other evidence is given which is contradictory to it or which casts doubt on the credibility or reliability of the witnesses’ evidence, that evidence may no longer be believable, or in the case of D.W., may no longer raise a reasonable doubt (see R. v. Hoohing, [2007] O.J. No. 34 (C.A.) at para. 15).
Evidence of Children
[9] The Supreme Court of Canada has given direction respecting the approach to be taken in assessing the credibility of child witnesses. 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. This is not to say, however, that the court should not carefully assess the credibility of child witnesses nor does it suggest that the standard of proof must be lowered when dealing with children (see R. v. B.(G.) 1990 CanLII 7308 (SCC), [1990] 2 S.C.R. 30 at para. 48, per Wilson, J.).
[10] Wilson, J. in B.(G.) went on to observe 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, and that, 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. While the credibility of every witness who testifies before the courts must be carefully assessed, the standard of the “reasonable adult” is not necessarily appropriate in assessing the credibility of young children.
[11] The Court of Appeal in R. v. H.C. 2009 ONCA 56 (C.A.) echoed this direction at para. 42, pointing out that “flaws, such as contradictions, in the testimony of the child may not toll so heavily against credibility and reliability as equivalent flaws in the testimony of an adult.”
[12] McLachlin J. adopted the comments of Wilson, J. in B.(G.) in R. v. W.(R.) 1992 CanLII 56 (SCC), [1992] 2 S.C.R. 122, pointing out at para. 27 that 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. She reiterated and emphasized at para. 26, in reliance on B.(G.), that the evidence of children remains subject to the same standard of proof as the evidence of adult witnesses in criminal cases, and that protecting the liberty of the accused and guarding against the injustice of a conviction of an innocent person requires a solid foundation for a verdict of guilt, whether the complainant be an adult or a child.
Rules Specific to Sexual Offences
[13] The Supreme Court of Canada in R. v. D.D., 2000 SCC 43, [2000] 2 S.C.R. 275 at para. 65, recognized that there is no inviolable rule as to how victims of sexual assault will behave and that delay in disclosure, standing alone, will never give rise to an adverse inference against the credibility of the complainant due, in part, to a recognition that the reasons for delay are many, including, at least, embarrassment, fear, guilt, or a lack of understanding and knowledge.
Evidence of the Crown
(a) Evidence of the Complainant C.D.
[14] C.D. was around one year old at the time that D.W. came into her life.
[15] C.D. stated that she first spoke to police regarding the incidents involving the accused D.W. on November 13, 2017. She was ten years old at the time. She also spoke to a police officer on November 15, 2019, 10 days prior to trial.
[16] C.D. stated that she was 5 years old at the time of the first incidents of sexual touching by D.W. at the family home on S. Street. The family moved from S. Street when she was 6 years old.
[17] C.D. described the sexual abuse as consisting of D.W. putting his penis in her mouth, in her vagina and in her “butt.”
[18] C.D. could not remember the first time the sexual contact occurred. She said D.W. put his penis in her vagina a “lot of times” but could not remember how many times. She stated that his penis was hard and she saw “white goo” coming out of it. The “white goo” went into her mouth or in her vagina.
[19] She described how he put his penis in her mouth. It took place in his bedroom. He would tell her to kneel and would then put his penis in her mouth. He told her to put her mouth on his penis and to suck on it. She stated that she would do so. “White goo” came out of his penis and went into her mouth. She tasted and swallowed it. She recounted that it tasted salty.
[20] C.D. was unable to say how many times this happened, describing it as “so many times.” She said that she was always on her knees when D.W. put his penis in her mouth.
[21] D.W. would have no clothes on during these incidents aside from his socks which he kept on. She was completely naked as D.W. took her clothes off.
[22] C.D. was unable to say how many times D.W. put his penis in her “bum” but “it was a lot.” He would take off her clothes. Fluid came out of D.W.’s penis, but she could not say how many times. She was unable to remember if D.W. said anything before, during, or after the incidents of him putting his penis in her bum.
[23] C.D. told police that D.W. threatened her by saying he would hurt her mom or would hurt her. This made her feel sad and scared. She said she was sad because it was her family and felt scared because she did not want D.W. to hurt her family.
[24] C.D. stated that prior to the sexual touching she did not like D.W. However, she said that she loved him and did fun things with him. He would take her to the park. When the sexual touching began he stopped doing fun things with her, which made her feel sad.
[25] C.D. stated that her bedroom in the S. Street residence did not have a lock. Her mother and D.W.’s bedroom had a lock and her brother D.’s room had a hook on the outside. Her mother and D.W. used the hook on the door if D. was being bad.
[26] She was unable to remember if D.W. had a job. Her mother worked at a clinic.
[27] D.W. would take care of her and D. while her mom was at work. This would last for hours. Her mom worked multiple times per week.
[28] C.D. stated that her grandmother also cared for her and her brother D. at her grandmother’s house. D.W. looked after them more often than her grandmother.
[29] C.D. testified that when D.W. had his penis in her mouth, vagina and butt she was screaming “stop.” She said she felt sad and scared and it would physically hurt – sometimes in her mouth.
[30] The doors would be shut while D.W. was doing these things. D. would be watching TV downstairs.
[31] C.D. stated that D.W. never sexually touched her when her mother was home or when her grandmother or any other adult was in the house.
[32] When C.D. and D.W. were in the bathroom together D.W. would make her take off all of her clothes and would tell her to get into the bathtub to “do things” while she was taking a bath.
[33] She stated that in the bathroom D.W. would place a blindfold over her eyes and would touch her vagina with his fingers. He put his fingers inside and would put his penis into her vagina. He would get into the bathtub fully naked.
[34] D.W. would also use “toys”. One was pink and it vibrated. It was like his penis. There was also a purple one. It also vibrated and was also shaped like his penis. She said that he used these toys every time they were in the bathtub together.
[35] C.D. also testified that D.W. would touch her while she was sleeping. She would wake up to him doing it.
[36] C.D. testified that she slept with the door closed. When she awoke the door would be open and D.W.’s clothes would be on the floor and on her bed. She would wake up and find him touching her. She said that this happened “a lot.” Her mom would be out at work or would be sleeping at this time.
[37] C.D. testified that, while she was living at S. Street at the age of 5 or 6 she never told anyone about what D.W. had been doing to her because he was living with the family.
[38] She never told her mother about the sexual touching. She was concerned that D.W. would hurt her if she told anyone.
[39] C.D. testified that she moved with the family to a house on A. Street when she was 6 and was in grade one. She lived on A. Street until she was 9 years of age.
[40] There were three bedrooms in the house on A. Street. She had her own bedroom. Her mother and D.W. shared a bedroom and her younger brothers shared a room. Each of the bedrooms had a door. The bedroom occupied by her mother and D.W. was the only one equipped with a lock and her brothers’ room had a hook on the outside.
[41] C.D. testified that D.W. would do the exact same things to her as he did to her at the S. Street residence. He put his penis in her vagina, his fingers in her vagina and his tongue on her vagina in the bathroom. He also put his penis in her mouth and in her butt.
[42] She was unable to estimate the times each activity took place, saying that they happened “a lot”. He only put his fingers and his mouth on her vagina in the bathroom. The other incidents happened in his bedroom and in her bedroom.
[43] C.D. stated that the incidents happened when her mother was at work, out with friends or with her grandmother.
[44] She stated that D.W. did not touch her when her mother was at home. When he touched her at night her mom would be out with friends.
[45] She said that while at A. Street, she saw “stuff’ coming out of D.W.’s penis in a similar way as at S. Street. She said the “stuff” did not come out of his penis each time.
[46] She said that she took baths at D.W.’s direction “a lot.”
[47] C.D. described that she had bladder infections “so many times.” She said she saw a doctor and was given pills which helped sometimes. She stated that she was also bleeding out of her vagina while living at both residences.
[48] C.D. testified that she was examined by doctors and nurses and was given medication for blood in her urine which did not help.
[49] She stated that she sometimes did not attend school due to a bladder infection.
[50] She stated that she did not know if she had bladder infections or blood in her urine prior to the sexual touching by D.W.
[51] C.D. also stated that she was sometimes unable to play with her friends because of the bladder infections. She experienced pain when urinating.
[52] She stated that D.W. told her that putting his penis inside her would make her medical issues better.
[53] C.D. stated that on A. Street she would scream to make the abuse stop. It would stop sometimes but not always.
[54] C.D. was unable to remember the name of the third street to which the family moved after A. Street. She could not remember what school she went to there. She did not remember if the sexual activity ended at A. Street, however, she did not think D.W. lived with the family at the third location.
[55] D.W. was no longer living with the family after he returned from jail. She said she was around eight years old when D.W. went to jail. The last time he touched her was a couple of weeks before he went to jail when he did exactly the same thing as previously – putting his penis in her mouth, vagina and butt.
[56] C.D. said she was happy when D.W. went to jail. She had no feelings for him while he was in jail.
[57] The first person she told about the abuse was her mother in 2017. She subsequently spoke with a police officer on November 17, 2017.
[58] C.D. chose to speak to her mom when she did because D.W. was no longer living with the family and her brothers were no longer going to his place on weekends. The family had moved far away from D.W.
[59] She said she did not report to her mom all of the details of the sexual touching.
[60] She said D.W. beat her mom and would not let her go out to visit with her friends. He also hurt her and her brothers. This made her feel sad and scared.
[61] On cross-examination C.D. acknowledged that at the preliminary inquiry on October 29, 2018 she had testified that all of the sexual touching by D.W. took place at one residence and that she had been unable to provide the street name. She stated that that was all she could remember at the time and that her memory of the events has improved.
[62] C.D. stated that when she gave her first statement to police, approximately a week after her disclosure to her mother, she told police all that she could remember at that time. This included D.W. putting his penis in her mouth, her vagina and her butt. She also told the police officer that the sexual contact had taken place at two different residences.
[63] C.D. acknowledged that she did not report D.W. using a vibrating object on her until she spoke to a police officer two weeks prior to trial. She stated that she did not want to talk about it before because she was not comfortable and could not remember that well. Over time she was able to remember more.
[64] C.D. also acknowledged that she had not told anyone about “white goo” coming from D.W.’s penis prior to trial. When asked on cross-examination why she had not reported this, she responded that she did not know what it had to do with anything. She was unable to tell what had happened to help her remember the white goo. She had never seen anything like that before, including on TV or in a show. She stated that she was sure that she was not getting it mixed up with something else. On re-examination C.D. confirmed that no one had asked her prior to trial whether she observed anything coming from D.W.’s penis.
[65] On cross-examination C.D. acknowledged that she had seen something like the objects that D.W. had used to penetrate her vagina in the bathtub at a store a few weeks prior to trial. She was at the store in a mall with three of her friends when they saw an object on a shelf which looked like the objects that she had seen with D.W. When asked how long the object in the store was, she stated that it was the size of a plastic water bottle.
[66] C.D. stated that seeing the object in the store caused her to remember the “toys” in the bathroom with D.W.
[67] C.D. testified that although she had been blindfolded by D.W. while in the bathtub she could see beneath the blindfold and the object being put into her. She said that D.W. inserted one half of it into her. She was unable to remember how long the penetration lasted. D.W. pulled the object out and put it back in “a tiny bit.” She stated that she screamed for D.W. to stop when he did this.
[68] C.D. agreed that her mother was home when some of the incidents in the bathroom occurred. However, she never came in when she screamed. She stated that her screaming was loud but was not as loud as she was capable of screaming. On re-examination C.D. stated that at the time there was a lot of noise happening in the home, such as the TV playing, and her brother was probably playing loudly with his toys.
[69] C.D. stated that she did not tell police about the “toys” that D.W. used on her in the bathroom because she had not been given a chance to. She tried to tell her Witness Assistance helper who advised her not to tell her but to tell police. She could not remember exactly when she said this or what she had said. On re-examination C.D. stated that she did not tell the Witness Assistance helper about the “toys” but just that there were some things that had not been discussed.
[70] When she was asked on cross-examination why she could not remember the first time anything of a sexual nature had happened with D.W., she responded that it was a long time ago and that it happened more than once. She was just unable to remember the first time.
[71] On cross-examination C.D. confirmed that D.W. was physically abusive to herself, her mother and her brothers. She also stated that she first learned that D.W. was not her biological father approximately one year prior to her first speaking to police.
[72] C.D. stated that the way D.W. treated her changed over time. Once he had his own biological children D.W. started treating her differently. Prior to that time D.W. had done fun things with her such as going to the park and playing games, but there had been less of that once he had his two sons. He spent less time with her and more time with the two boys.
[73] C.D. agreed that when she told her mother that D.W. had done things to her that he should not have, she knew that the next step would be to tell police which would create a problem for D.W. She also agreed that she was aware when she made disclosure of additional things such as white goo coming from D.W.’s penis and his use of the objects in the bathroom that “he would get in trouble for things that he has done.”
[74] C.D. testified on cross-examination that the “toys” or objects were always present when she went into the bathroom with D.W. She stated that there were times when her mother came home when she was having a bath with D.W. She stated that she never told her mother about the “toys.” She did not know why she didn’t tell her.
[75] C.D. stated that she could not remember the last time something of a sexual nature took place in the bathroom. The last incident took place in D.W.’s bedroom when her mother was not home and D.W. put his penis in her mouth, her vagina and her butt.
[76] On re-examination C.D. stated that her memory improved over time because the more she thought about the incidents the more she could remember.
[77] C.D. stated that she had not provided specific details when she made disclosure to her mother because her mother “doesn’t really like anything involving that stuff.” She also said that she did not feel comfortable telling her mother because her mother “did not handle these things well.”
[78] C.D. stated that, prior to speaking to police regarding the sexual contact by D.W., she had spoken to police once previously about how D.W. had hurt her mother. She said she felt uncomfortable and scared when she spoke to police about the sexual abuse.
(b) Evidence of Dr. John Burke Baird
[79] Dr. John Burke Baird, a staff pediatrician in the Child Maltreatment Clinic, McMaster Children’s Hospital in Hamilton Ontario, was qualified to give expert opinion evidence in the fields of pediatrics and child maltreatment.
[80] Dr. Baird testified that he conducted a clinical assessment of C.D. on November 13, 2017. The assessment was conducted due to C.D. having had recurrent episodes of painful urination as well as a recent report of sexual abuse. She was accompanied by Lindsay King, a worker with Family and Children Services of Niagara and C.D.’s mother D.B.(C.).
[81] Dr. Baird reported that the genital examination of C.D. which he conducted was normal and did not support or refute the allegations of sexual abuse described by Ms. King. He stated that, based upon authoritative medical literature, 95% of physical examinations in cases of pre-pubertal children who report sexual abuse are normal, as the types of things done to children which may be characterized as sexual abuse do not actually cause tissue injury. Moreover, significant injuries can and do heal to the point that they are undetectable. The exception is where a tear of the hymen goes all the way to the base of the vagina. If the hymen is torn but not all the way to the base of the vagina the injury can heal to the point where an examiner cannot detect it. These types of injuries can heal rapidly and accordingly may not be detected on a physical examination when there is a delay in reporting.
[82] Dr. Baird also testified that there is a difference between vaginal and genital penetration. When a female child refers to the female parts of her body, she is most often taught to use the term vagina to refer to her genitals. He also offered the opinion that, in the overwhelming majority of cases when pre-pubertal girls refer to sexual abuse in which they perceive there to have been penetration, they display a normal genital examination because there had been no penetration beyond the hymen and into the vagina. He stated that there is ample space between the skin surface and where the vagina begins for there to be a sensation of penetration.
[83] In children who refer to having experienced penetration in this way, the vast majority have normal genital examinations as the penetration did not enter the vagina. This phenomenon could apply to penetration by a male penis, a finger or an object. If full penetration to the vagina occurs, it would cause severe injury involving a visible cleft resulting in part of the hymen being gone, which would represent a visible defect.
[84] Dr. Baird offered the opinion that an erect penis can penetrate 1 ½ cm to 2 cm before entering the vagina. He also confirmed that the most sensitive part of the male penis is the head.
[85] On cross-examination Dr. Baird confirmed that there were many injuries that could have occurred to C.D. which would not have caused residual injury which he could have observed on his examination. However, if her hymen had been torn, that would not go away. He did not observe C.D. to have sustained a torn hymen.
[86] Dr. Baird also confirmed that a large portion of the 95% of pre-pubertal children reporting sexual abuse without any tissue damage would involve activities such as groping or fondling over clothing.
[87] Dr. Baird acknowledged that what was described by C.D. in her testimony, in which she related seeing one half of the object, which she described as the size of a water bottle, penetrating her and going “in and out,” could not have happened in the way she testified to it.
[88] Dr. Baird also confirmed on cross-examination that he examined C.D.’s anus and detected nothing out of the ordinary. He confirmed that there can be physical findings in the anal area showing signs of trauma that can be relied upon, like the hymen in the genital area. He made no findings in his anal examination showing healed areas indicative of trauma.
(d) Evidence of D.B.(C.)
[89] C.D.’s mother D.B.(C.). testified that she initially met D.W. on an internet dating site. She introduced C.D. to D.W. when C.D. was one year old. Shortly thereafter they began living together. D.W. and his mother, in speaking to C.D., began referring to D.W. as “Dad” and when C.D. became old enough to speak, she began referring to him as “Dad” and D.B.(C.) did nothing to correct that.
[90] D.B.(C.) testified to living, along with C.D., with D.W. at different residences before moving to S. Street. She stated that her relationship with D.W. involved incidents of physical violence. She had been afraid to report the violence to police.
[91] D.B.(C.) testified that she did not see D.W. exhibit any physical violence towards C.D. She thought he was a good father to her children and was fully engaged in parenting C.D.
[92] D.B.(C.) testified that D.W. committed many acts of physical violence on her and described several of them.
[93] One particular incident occurred when D.B.(C.) was pregnant with her first son D. She stated that D.W. became angry, punched her and sat on her stomach and punched her in the face. She delivered her baby one to three days later by caesarian section. She stated that she did not report the incident to the doctors, nurses, the police or the Children’s Aid Society.
[94] In 2012 D.B.(C.) together with D.W., their son D. and C.D. moved into a detached home on S. Street with D.W.’s mother B.K. and his brother W.M. C.D. was 5 or 6 years of age at this time. After five or six months B.K. and W.M. moved out, at which time C.D. was given her own bedroom on the upper level of the home. The family continued to live in the home on S. Street for two years. C.D. was 6 or 7 years old when the family moved from S. Street to A. Street.
[95] D.B.(C.) testified that none of the bedrooms on the upper level of the S. Street home had locks. She and D.W. placed a hook on D.’s bedroom door to keep him from wandering.
[96] D.B.(C.) described C.D.’s bathing routine while living on S. Street. Before bed or during the day C.D. would have a bath, would get into her pyjamas at night and would brush her teeth. She typically took a bath every day or every other day. D.B.(C.) stated that she gave C.D. responsibility to set up the bath but usually she would run the water for the bath for her.
[97] She stated that she and D.W. shared responsibility for giving C.D. her bath. She stated that she was not present every time D.W. gave C.D. a bath. She could not recall if D.W. ever had the bathroom door closed when he was bathing C.D. but it was possible.
[98] D.B.(C.) testified that she possessed a pink vibrator which was shaped like a penis. She estimated that it was 7 or 8 inches long. She bought it while the family lived on S. Street. She stated that it was only used by her and D.W. together in their bedroom at night with the door closed, however she acknowledged that it could have been used in the daytime. She had no recollection of C.D. ever walking into the bedroom and observing the use of the vibrator, or any other sexual activity. She said it was possible, but she did not recall it happening.
[99] D.B.(C.) stated that the vibrator was kept in the bedroom, probably in a drawer in her nightstand, under some things. Although she never instructed C.D. not to come into her and D.W,’s bedroom, she never discovered C.D. going through her belongings in the bedroom nor could she recall C.D. ever asking her about the vibrator. She stated that she was responsible for storing the vibrator and that she never stored it or brought it into the bathroom.
[100] D.B.(C.) testified that when the family first moved to S. Street she was employed as a medical receptionist in an x-ray and ultra-sound clinic, working on a casual part-time basis, between 5 to 30 hours per week. She worked mainly in the evenings between 4:00 p.m. and 9:00 p.m., some Saturdays and would sometimes work days. She quit that job six months after moving on to S. Street, was off work for a couple of months and then began working at a logistics company. She worked from 40 to 55 hours a week, starting at 7:00 a.m. or 8:00 a.m.. She stated that she worked strictly during the day and was home every evening.
[101] D.B.(C.) believed that D.W. was employed during the two years that the family lived on S. Street, however she could not recall where or when. She stated that D.W. worked full-time on and off and also worked part-time. She believed that he was unemployed between jobs and there were times during the two-year period when he was not working.
[102] D.B.(C.) testified that when she was working as a medical receptionist from 4:00 p.m. to 9 p.m., D.W. was responsible for caring for C.D., giving her a bath and putting her to bed at 7:00 p.m. or 8:00 p.m.. She stated that she engaged a child care provider when she and D.W. were both working. She would drop the children off and he would pick them up. She stated that there were probably “lots of times” when D.W. was taking care of the children when she was working.
[103] D.B.(C.) testified during the two-year period when the family was living on S. Street C.D. was “constantly” complaining that her private parts hurt. She took C.D. to the doctor to be tested for urinary tract infection. She stated on a couple of occasions she saw blood in her urine. She stated that the school would call quite often that C.D. was complaining of pain. She took C.D. to the medical clinic in relation to the pain in her private parts more than ten times. This issue began just prior to the family’s move to S. Street, occurred more frequently on S. Street and continued with the same frequency after the family moved to A. Street.
[104] While the family was living on S. Street in the spring of 2013 D.W. was arrested and charged with a criminal offence. He was in custody for one or two weeks, and was released on house arrest with his stepfather W.M. as his surety. D.B.(C.) testified that she understood that, as a condition of his release, D.W. was not permitted to be around children 16 years of age or under. As a result, D.W. was removed from the home however, two weeks after he was placed on house arrest at his surety’s residence, which was located around the corner from the S. Street residence, he moved back with her, leaving his belongings at his surety’s home. She stated that D.W. never sought a variance to his bail conditions to permit him to live with her. She stated that his surety never came to the home to check on him and that D.W. continued to live life as before, going to work and to bars.
[105] D.W. continued to live at the S. Street residence until he was sentenced and committed to jail on February 26, 2015.
[106] D.B.(C.) testified that D.W.’s violent behavior towards her continued on S. Street but in a different way than previously. The fights were usually about sex and involved D.W. abusing alcohol. She acknowledged that the violence could have taken place in front of C.D. but usually happened at night. There was shouting in the house a few times when C.D. was home. She stated that she did not talk to C.D. about her relationship with D.W. and C.D. did not ask any questions about it.
[107] D.B.(C.) testified that she was a very deep sleeper. If D.W. left the bedroom she would not naturally wake up. If D.W was out late and came back she would not wake up. When asked on cross-examination if she would wake up if one of the children were crying or screaming she responded that it would depend.
[108] D.B.(C.) testified that she went on a sick leave in September 2014 and gave birth to her second son in mid-October 2014. The family moved from S. Street to A. Street in December 2014 and she returned to work in June 2015.
[109] D.W. was initially charged with a criminal offence in the spring of 2013, was sentenced to jail on February 26, 2015 and was released on October 20, 2015. She stated that she never informed C.D. what was going on regarding D.W.’s incarceration and believed that she told her that D.W. was away working and that he would be away for a long time.
[110] She observed that C.D. was happy and healthy while D.W. was incarcerated. She did not really ask about D.W. during this time.
[111] D.B.(C.) stated that she decided not to continue with a relationship with D.W. following his release. D.W. stayed at the A. Street residence until he moved out in June 2016. Initially D.B.(C.) and D.W. slept in the same bed but later D.B.(C.) began sleeping at her friend’s home. If D.W. was at home he would be with the children. Only one of them would be with the children at a time.
[112] D.B.(C.) testified that on A. Street the two boys shared a room, C.D. had her own room, and she and D.W. initially shared a bedroom. The bathroom door had a lock on it and there was a hook on the boys’ bedroom door. D.B.(C.) and D.W. continued to share responsibility for giving C.D. baths until D.W. moved out in June 2016.
[113] D.B.(C.) described the incident that led to D.W. leaving the residence on A. Street. She had returned home and was taking a shower in the bathroom. While in the bathroom she looked at the vent, observed D.W.’s cell phone and realized that he was videotaping her in the bathroom. He had removed the vent cover and was reaching through with his cell phone. She stated that when she confronted D.W. about it he told her that he would delete the video. She told him that if he did not leave the house she would call the police. He called his girlfriend, who he had been together with for a few months, and moved out to live with a friend.
[114] On August 18, 2016 a court order was issued, on consent, granting sole custody of the two boys to D.B.(C.) with access to D.W. two weekends out of three.
[115] C.D. initially attended weekend access with D.W. with her brothers. In the spring of 2017 D.W. told D.B.(C.) by text that he did not want to take C.D. for weekend visits because she was not his child. She communicated to him that C.D. would be crushed and that she would have to explain it to C.D. that he was not her biological father. She kept C.D. home to tell her. When she told C.D. that D.W. was not her birth father or “real dad,” C.D. responded “that’s a relief.” She stated that C.D. never expressed a desire to see D.W., and in fact the opposite occurred.
[116] D.B.(C.) stated that as a result of the children relating negative experiences at D.W.’s residence she sought help from the Children’s Aid Society and the police and eventually took the matter back to court and obtained a restraining order requiring that D.W. not communicate or contact her or the three children and an order suspending D.W.’s access. These orders have not been varied, amended or repealed to date.
[117] D.B.(C.) testified that she later informed C.D. about the restraining order and that the family would not have to worry about D.W. coming to the home. C.D. was curious about what that meant and she explained that D.W. was not to come to the home or to her school. She stated that C.D. seemed happier and less stressed after this time. D.B.(C.) denied that she spoke negatively, disparagingly or in a hostile manner regarding D.W. to C.D.
[118] D.B.(C.) testified that within a day or two of her explaining the restraining order to C.D. she came to her in her bedroom in the morning and told her that she had had a bad dream that D.W. had put his “thing” in her mouth and “white stuff” was coming out. On cross-examination D.B.(C.) stated that C.D. told her that what she had related about the dream had actually happened, but she could not remember C.D.’s exact words. She said that C.D. related it in such a way that she knew that what she was describing had occurred in the past. She stated that she was hysterical and called her fiancé. She did not ask C.D. any questions but wanted help immediately. She drove C.D. to the Niagara police station and then returned home to wait for an officer to attend at the house.
[119] When the Niagara police officer attended he advised that C.D. needed to conduct an interview with police in Brantford. This did not take place until November 13, 2017. During the intervening time C.D. did not offer any further details and D.B.(C.) did not ask her for any details. Similarly, following her interview with police on November 13, 2017, C.D. has not provided D.B.(C.) with further details and she has not asked for any.
[120] D.B.(C.) denied that she ever told C.D. to make allegations of a sexual nature against D.W. She stated that she simply wanted to be there emotionally for C.D. and has never heard anything about the allegations subsequent to the first disclosure.
[121] When asked on cross-examination whether she ever heard C.D. let out a scream in either the S. Street or A. Street residence, D.B.(C.) responded that she never heard anything alarming. If there had been an alarming scream she would have investigated.
Evidence of the Defence
(a) Evidence of the Accused D.W.
[122] D.W. testified that he and D.B.(C.) met online in October 2009 and began living together in February 2010. On cross-examination he corrected this, confirming that they met in 2008 and began living together in 2009. He stated that their first son D. was born in 2011. C.D. turned 5 shortly after the family moved to S. Street. D. was 1 ½ to 2 years of age at the time of the move. D.W. stated that he was working at a tire business Monday to Friday 6:00 a.m. to 3:30 p.m. or 4:00 p.m. and D.B.(C.) worked part-time.
[123] D.W. stated that he had a good relationship with C.D., describing himself as her “dad.” He confirmed that C.D. called him “Dad”.
[124] D.W. testified that he had “court issues” while the family was living on S. Street. He stated he wound up in custody for over a week before he was “out on release.” According to his bail conditions he was supposed to be living at his stepfather’s residence. He testified that he lived at his stepfather’s home for the entire time that he was on house arrest, comprising twenty-two months. He stated that, during this time, he saw the children every day or every other day but he did not sleep at the family residence, and at no time was he left alone in the house with the children.
[125] D.W. stated that during the time he was on bail he and D.B.(C.) remained mutually responsible for the household. He acknowledged that he was at the family home in the evenings while he was on bail at S. Street and then on A. Street and had occasion to bathe the children.
[126] He stated that he was sentenced on February 26, 2015 and released on October 19, 2015. His relationship with D.B.(C.) ended shortly after he was released from jail, but he remained at the home. He stated that he and D.B.(C.) were each financially responsible for the household following his release from custody and they both looked after the children. They each bathed the children and got them ready for bed. He stated that C.B. ran the bathwater herself and denied that he watched her take her bath. He would tell her that it was time to get out of the bath and he would dry her hair but otherwise she bathed alone. He stated that the children would take baths during the day if they had been playing in the dirt. He denied that he ever undressed while C.B. was in the bathtub and he never bathed with any of the children.
[127] D.W. confirmed that D.B.(C.) possessed a vibrator which was kept in the night table beside the bed and to his knowledge was not kept in the bathroom. He said that, although there were children’s toys in the bathroom there were definitely no sex toys there.
[128] D.W. denied the truth of C.D.’s evidence respecting his use of two objects on her in the bathroom was true. He stated that he never heard C.D. scream in the bathroom. He denied inserting his penis into C.D.’s vagina or butt, saying that it “never happened.”
[129] D.W. testified that he and D.B.(C.) broke up after he was released from jail. He eventually moved out with a friend. He denied D.B.(C.)’s evidence with respect to the incident relating to him videotaping her with his cell phone through the bathroom heater vent.
[130] D.W. stated that, at the time of his departure from the home, he had started a relationship with another woman named Marcie. He stated that he took the children to Marcie’s place on his access weekends.
[131] D.W. testified that he wanted C.D. to be made aware that he was not her real father. He stated that he texted D.B.(C.) to advise that he would take C.B. on one of his access weekends but not on all of them. D.B.(C.)’s reaction to this was “pretty hostile.” He was told that C.B. would not be coming on access visits anymore. After that he only saw C.B. a few times while he was picking up the boys from the home.
[132] D.W. denied that C.B.’s evidence with respect to “white goo” coming out of his penis ever happened. He stated that he did not believe that C.B. ever saw him naked and she never walked in on him while he was unclothed. He denied that any of the allegations of sexual contact or abuse ever happened. He specifically denied placing his penis in C.B.’s mouth and telling her to suck. He also denied telling C.B. to get in different positions.
[133] When he asked in examination-in-chief why C.B. was talking in such a way, that is making the allegations, he responded “I’m not sure.”
[134] D.W. denied that he ever engaged in assaultive behaviour towards D.B.(C.), maintaining that the allegations of assault to which D.B.(C.) testified “never happened.”
[135] When asked on cross-examination whether, during the time that he was on bail, he was sure of his evidence that he lived full time with his surety, his stepfather, for twenty-two months, he responded that he “lived there” but did not always “stay there.”
[136] D.W. acknowledged on cross-examination that, while he was on bail he persistently breached his bail conditions, both before and after they were varied on July 17, 2013, stating that it was important for him to see both of his children.
[137] D.W. denied that he beat up D.B.(C.) when she was 9 months pregnant with D. stating “I didn’t punch anyone.” He denied punching D.B.(C.) on the chin and sitting on her abdomen, causing her to go into early labour.
[138] On cross-examination, D.W. acknowledged that when he was interviewed by police on November 23, 2017 and asked why C.D. was making the allegations against him, he stated that he strongly believed that D.B.(C.) would have “sat [C.D.] down and asked her things and she is saying this or that.” He added that there was a lot of ill-will towards him on the part of D.B.(C.) and that C.D. making the allegations was a way to take him out of his sons’ lives.
Reply Evidence of the Crown
(a) Evidence of W.M.
[139] D.W.’s stepfather W.M. was called to testify by the Crown in reply. He testified that on May 24, 2013 he agreed to act as surety for D.W. in connection with his release from custody on bail. Pursuant to the Recognizance of Bail entered into by himself and D.W., D.W. was to reside with him and be amenable to the routine and discipline of his home.
[140] W.M. confirmed that the original Recognizance of Bail was varied on July 17, 2013 to expand D.W.’s rights to visit with his children under the supervision of D.B.(C.) however, under the terms of the revised Recognizance, he was still required to reside with him.
[141] W.M. testified that, contrary to D.W.’s terms of release, he did not reside with him continuously for the twenty-two months he was out on bail. D.W. resided with W.M. for approximately one month and for the balance of the time he was on bail he resided with D.B.(C.).
[142] On cross-examination W.M. testified that D.B.(C.)’s residence was three blocks away from his home. W.M. stated that during his suretyship he “popped over” to D.B.(C.) residence where D.W. was residing a couple of times a week to “see what was going on.” He stated that during that time things were “going OK” and D.W. was not behaving in a manner that gave him concern. W.M. testified that he was familiar with the fact that D.W. was required to reside with him and be amenable to the routine and discipline of his home. He stated that D.W. was still listening to him and that, by being amenable with the routine and discipline of his home, he was complying with half of the bail requirements.
Position of the Defence
[143] Mr. Bernstein for the defence submits that C.D.’s evidence was inconsistent from her first disclosure to her mother, through her initial statement to police, the preliminary enquiry, her further statement to police two weeks prior to trial and at trial. Notably, C.D.’s first mention of the use by D.W. of sex toys in the bathroom was made in her statement to police on November 15, 2019, shortly after she said she observed a similar object in a store.
[144] Mr. Bernstein submitted that C.D. first made disclosure of “white goo” coming from D.W.’s penis at trial. However, it is noted that D.B.(C.) testified that C.D. mentioned “white stuff” coming from D.W.’s penis in her initial disclosure to her.
[145] Mr. Bernstein submits that, based upon C.D.’s testimony about being penetrated by a sex toy the size of a water bottle to half its length, it would be expected that she would have experienced significant physical injury, however no injury was found by Dr Baird on his examination. He also submits that no causal link may be drawn between the urinary tract infections and vaginal bleeding experienced by C.D. and the alleged sexual assaults.
[146] Mr. Bernstein pointed to C.D.’s evidence that she was screaming while being sexually assaulted by D.W. whereas there was no evidence that her mother D.B.(C.) heard any screaming. However, Mr. Bernstein acknowledged that the evidence only supported D.B.(C.) being in the home during the alleged sexual assaults in the bathroom and not in the bedrooms.
[147] Mr. Bernstein submitted that, although D.W.’s evidence that he resided with his surety W.M. as required by his release terms while he was on bail for twenty-two months was contradicted by W.M.’s evidence, and that he was not totally forthright to police while on bail, his behavior was not particularly sinister. D.W.’s surety W.M. had no problem with what D.W. was doing while on bail.
[148] Mr. Bernstein also submitted that the discrepancy between what D.W. said in his police interview and what he testified to at trial respecting his explanation for C.D. making the allegations against him does not undermine his credibility. Although, in his statement to the police, he pointed the finger at D.B.(C.), which was what he thought at the time, at trial he chose not to do so.
[149] Mr. Bernstein submitted that D.W. gave his evidence in a straightforward manner. Upon application of the test in W.D. the Crown has failed to prove the charges against D.W. beyond a reasonable doubt.
Position of the Crown
[150] Mr Brock for the Crown submits that following application of the test in W.D., based upon the whole of the evidence, the court should not be left in reasonable doubt of D.W.’s guilt.
[151] The Crown points out that what the defence characterized as “inconsistencies” in C.D.’s evidence were not actual inconsistencies but constituted additional aspects and details which had not been previously disclosed by her or which were disclosed incrementally. Although the presence of “white goo” coming from D.W.’s penis was a detail which had not been disclosed to police prior to trial, the late disclosure did not detract from C.D.’s evidence of sexual assaults having occurred. Moreover, D.B.(C.) testified that C.D. mentioned a white substance in her initial disclosure to her.
[152] The Crown submits that D.W. deliberately mislead the court in two respects.
[153] First, he lied by insisting that while he was on judicial release he lived for the entire twenty-two month bail period with his surety W.M. This evidence was directly contradicted by that of W.M. who testified that, after residing with him for one month, D.W. went to reside with D.B.(C.).
[154] Second, whereas in his examination-in-chief he professed to have no idea why C.D. would be making the allegations of sexual abuse against him, in his statement to police in November 2017 he stated that he believed D.B.(C.), motivated by her hostility towards him in relation to their dispute over his access to their children, caused or persuaded C.D. to make the allegations.
[155] The Crown submitted that D.W.’s evidence is not credible and should be rejected.
[156] The Crown submitted that the evidence of C.D. should be accepted by the court. She displayed no animus towards D.W. and only felt safe to disclose the sexual abuse when she learned that there was a restraining order in place. The Crown pointed out the degree of specificity that C.D. provided in her testimony. She provided details of the homes in which the alleged sexual abuse occurred, the locations within the home, what her mother and brothers were doing at the times, what she was asked by D.W. to do, that on certain incidents she was sleeping and woke to find D.W. fondling her, and a description of “white goo” coming from D.W.’s penis. The Crown suggests that no child at the age of 4 or 5, or 8 or 12 ought to have that degree of knowledge of male ejaculation.
[157] The Crown submits that it has discharged its onus of proving the guilt of D.W. of the counts in the indictment beyond a reasonable doubt.
Analysis
[158] This case falls to be decided on the principles laid down by the Supreme Court of Canada in W.(D.) as set forth above. I will review those principles again.
[159] If I believe D.W.’s evidence that he did not commit the offences alleged against him, I must acquit him. Even if I do not believe D.W. I must acquit him if his evidence leaves me with a reasonable doubt. Finally, even if D.W.’s evidence does not raise a reasonable doubt, I must only convict him if the rest of the evidence that I do accept persuades me of his guilt beyond a reasonable doubt.
[160] As noted by Code, J. in the case of R. v. Thomas, 2012 ONSC 6653 (Ont. S.C.J.) at para. 23, W.(D.) does not describe three sequential analytical steps that a trier of fact must pass through, but rather describes three distinct findings of fact that a trier of fact can arrive at when considering all of the evidence at the end of the case. At paragraph 24 he stated as follows:
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.
[161] The Court of Appeal has stated that "the considered and reasoned acceptance beyond a reasonable doubt of the truth of conflicting credible evidence is as much an explanation for the rejection of the accused's evidence as is a rejection based on a problem identified with the way the accused testified or with the substance of the accused's evidence" (see R. v. D. (J.J.R.) (2006), 2006 CanLII 40088 (ON CA), 215 C.C.C. (3d) 252 (Ont. C.A.) at para. 53).
[162] In the recent case of R. v. R.A., 2017 ONCA 714 (C.A.) the Court of Appeal found that the trial judge in that case was entitled to reject the accused's evidence based upon a considered and reasoned acceptance beyond a reasonable doubt of the truth of the conflicting credible evidence even where the accused had been found to have testified in a straightforward manner, was not evasive, did not exaggerate, embellish or colour his evidence and "withstood cross-examination without blemish." Writing for the majority, Huscroft, J.A. stated at para. 55: "the appellant was not entitled to an acquittal simply because his evidence did not raise any obvious problems. The trial judge did not accept the appellant's evidence, but nor did he reject it simply because he accepted the complainant's evidence."
[163] In the case at bar D.W. offered an outright denial that he had ever sexually assaulted C.D. or ever threatened her. He said that these things never happened.
[164] The Ontario Court of Appeal gave guidance on the proper approach to be taken in a case which the complainant's evidence is uncorroborated in the case of R. v. Gostick (1999), 1999 CanLII 3125 (ON CA), 137 C.C.C. (3d) 53 (Ont. C.A.), at para. 14, as follows:
The proper approach to the burden of proof is to consider all of the evidence together and not to assess individual items of evidence in isolation: see R. v. Morin (1988), 1988 CanLII 8 (SCC), 44 C.C.C. (3d) 193 (S.C.C.). This is particularly true where the Crown's case depends solely on the unsupported evidence of the complainants and where the principal issue is those witnesses' credibility and reliability. As Rowles J.A. emphasized in R. v. B. (R.W.) (1993), 40 W.A.C. 1 (B.C. C.A.), these issues are not to be determined in isolation. She said at p. 9:
Where, as here, the case for the Crown is wholly dependent upon the testimony of the complainant, it is essential that the credibility and reliability of the complainant's evidence be tested in the light of all of the other evidence presented.
[165] I find that, after consideration of all of the evidence, I do not believe D.W.’s denials that he committed the offences, nor does his evidence leave me with a reasonable doubt.
[166] D.W. strenuously maintained that he adhered to the conditions of release when he was out on bail for a previous offence, which required that he reside with his surety, his stepfather W.M. This was a clear falsehood. W.M. testified that D.W. resided with him for only one month and resided with D.B.(C.) for the full balance of the 22-month release period. D.W. was shown to be prepared to be untruthful and to mislead the court when it suited him to deflect blame from himself.
[167] He also sought to deflect blame from himself by denying that he ever engaged in assaultive behaviour towards D.B.(C.) during their relationship, and in denying the circumstances leading to his final departure from the family home involving him secretly video-recording D.B.(C.) in the bathroom. I find that D.B.(C.)’s evidence concerning her relationship with D.W. was straightforward, unembellished and believable and was not undermined on cross-examination. Moreover D.B.(C.)’s evidence was fair and balanced, describing the early relationship between her and D.W. and between C.D. and D.W. in positive terms. I find on the whole of the evidence that D.W.’s conduct towards D.B.(C.) was marked by control, intimidation and violence and that D.W.’s denials in that respect undermine his credibility.
[168] It must be noted that I do not rely upon the discrepancy between D.W.’s expressions of belief to police in November 2017 and at trial respecting the reason for C.D.’s allegations in assessing his credibility. Although the issue was initially raised in D.W.’ s evidence in chief and not by the Crown, what D.W. believed to be C.D.’s motivation is not relevant (see R. v. G.H., 2020 ONCA 1 (C.A.) at para. 29). Any contradiction between D.W.’s expression of his subjective belief in 2017 and his evidence at trial does not relate to a question of fact and does not assist in assessing his veracity on issues of fact.
[169] I found C.D.’s evidence to be credible and reliable. Her descriptions of the sexual assaults were internally consistent, detailed and vivid. She testified in a straightforward manner and was responsive to questions posed to her both in chief and on cross-examination. Although at certain points in her testimony she became agitated, sometimes visibly, and had to take breaks to recover her composure, I did not find this to be unexpected or surprising given her young age and the intrusive, embarrassing and intimate nature of the matters she was asked to describe.
[170] I find on the evidence that C.D. could not be expected to otherwise have knowledge of the sexual acts which she described to police at the age of 10 and again at trial at the age of 12. In R. v. Khan, [2009] 2 S.C.R. 531 the Supreme Court of Canada confirmed at para 36 that this factor is capable of imbuing the evidence of a child complainant with its own particular stamp of reliability. It is acknowledged that it is not incumbent upon the accused D.W. to explain how C.D. acquired the knowledge she had apart from the sexual assaults (see R. v. R.A.at para. 61). However, on the authority of Khan, the lack of any expectation that C.D. would have otherwise had of such knowledge is a relevant factor which can contribute to a lack of reasonable doubt. I find that it does in this case.
[171] The fact that C.D.’s evidence of “white goo” coming from D.W.’s penis first came out at trial and not in previous statements to police or at the preliminary inquiry does not, in my view, detract from the reliability of her evidence. When challenged on this on cross-examination she provided a plausible explanation, stating that she did not know that it had to do with anything and on re-examination she confirmed that she had not been asked prior to trial if she saw anything coming from D.W.’s penis. Moreover, D.B.(C.) reported that C.D. had, in her initial disclosure mentioned “white stuff” coming from D.W.’s penis.
[172] C.D.’s testimony respecting D.W.’s use of two sex toys on her in the bathtub was not undermined on cross-examination. Similarly, her explanation for not having disclosed it prior to the giving of her statement two weeks prior to trial made sense. She testified that having seen a similar object in a store triggered her memory and led her to advise her Witness Assistance helper that there were some things that had not previously been discussed, which in turn led her to make the disclosure to police. Moreover, she stated that the more she thought about the incidents the more she could remember.
[173] The evidence of Dr. Baird is not probative in and of itself of the sexual assaults described by C.D. However, he offered the opinion that pre-pubertal girls often perceive there to have been vaginal penetration and describe sexual abuse in that fashion, when there in fact had been no penetration beyond the hymen and into the vagina. In these situations, a physical examination of the genital area could be expected to be normal. Dr. Baird’s evidence serves to rebut the suggestion advanced by the defence that the absence of any sign of physical injury to C.D. casts doubt on the veracity of her descriptions of sexual assault. Moreover, his opinion evidence supports the proposition that C.D. may have perceived a degree of penetration beyond what actually occurred.
[174] Although Dr. Baird acknowledged on cross-examination that what C.D. related as having seen one half of an object the size of a water bottle penetrating her and going “in and out,” could not have happened in the way she testified to it, it must be remembered, as stated in B.(G.) that while a child may not be able to recount precise details and communicate the when and where of an event with exactitude, this does not mean that she has misconceived what happened to her and who did it. The circumstances of C.D. sitting in water with a blindfold on and being only able to see through a slit or a gap at the bottom, viewed within the context of the manner in which a child may experience the actual nature and extent of a genital penetration, as described by Dr. Baird, were such that C.D.’s misdescription of the specific details of the extent to which she was genitally penetrated by the object does not mean that she misconceived what happened to her and the person that did it to her.
[175] It is noted that the evidence that C.D. suffered from urinary tract infections has played no part in my determination of whether the Crown has proven counts one and two in the indictment against D.W. beyond a reasonable doubt. I find that there is no reliable evidence of a causal link between the sexual assaults committed by D.W. against C.D. and the urinary tract infections which C.D. suffered from during the charge period.
[176] C.D. testified that D.W. threatened to hurt her mother or to hurt her. D.W. offered a blanket denial of this, saying that it never happened. I find C.D.’s evidence with respect to the threats made by D.W. to her to be entirely credible and reliable and was not undermined on cross-examination. D.W.’s blanket denial that he ever threatened C.D., considered along with C.D.’s evidence, does not leave me with a reasonable doubt that he knowingly did so. I find that, when he made the threats to C.D., D.W. intended his words to intimidate C.D. into silence respecting the sexual abuse. I also find that a reasonable person, aware of the circumstances, would have perceived D.W.’s words to be a threat of bodily harm.
[177] As indicated above, a determination of guilt or innocence in a criminal trial does not rest upon the resolution of a credibility contest between witnesses, specifically in this case between the complainant C.B. and D.W, as that would reverse the burden of proof on the Crown. At the same time, as described previously, when considering whether the accused’s exculpatory evidence is to be believed or raises a reasonable doubt, the court must have regard to, not only the accused’s evidence viewed on its own, but also the evidence that is contrary to it.
Disposition
[178] In my view, on a consideration of the evidence as a whole, I am not left in reasonable doubt by D.W.’s evidence denying the allegations of sexual assault, sexual touching and threatening and I find, on the evidence that I do believe, that the Crown has proven that D.W. committed each of the offences in the indictment beyond a reasonable doubt.
[179] I therefore find the accused D.W. guilty of all three counts in the indictment.
D.A. Broad J.
Date: January 17, 2020