ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR-19-1795

DATE: 2020 12 09

B E T W E E N:

HER MAJESTY THE QUEEN

Carson Coughlin, for the Crown

• and -

A. J. P.

David Bayliss, for the accused

The Accused

HEARD: October 14, 15, 16, 19, 20, 21, 2020

REASONS FOR JUDGMENT

RESTRICTION ON PUBLICATION

By court order made under subsection 486.4(1) of the Criminal Code, information that may identify the person described in this judgment as the complainant may not be published, broadcasted or transmitted in any manner. This judgment complies with this restriction so that it can be published.

Justice Thomas A. Bielby

INTRODUCTION

[1] The accused, A. J. P., pleaded not guilty to the following charges:

1. That he, between the 1st day of January 2015 and the 30th day of August 2017, at the City of Mississauga, in the Central West Region, did commit a sexual assault on M. J., contrary to s. 271 of the Criminal Code of Canada;

2. That he between the 1st day of January 2015 and the 30th day of August 2017, at the City of Mississauga, in the Central West Region, did for a sexual purpose touch M. J., a person under the age of sixteen years directly, with a part of his body, contrary to section 151 of the Criminal Code of Canada;

3. That he, between the 1st day of August 2017 and the 1st day of November 2018, at the City of Mississauga, in the Central West Region, did commit a sexual assault on M. J. contrary to s. 271 of the Criminal Code of Canada;

4. That he, between the 1st day of August 2017 and the 1st day of November 2018, at the City of Mississauga, in the Central West Region, did for a sexual purpose touch M. J., a person under the age of sixteen years directly with a part of his body, contrary to s. 151 of the Criminal Code of Canada; and

5. That he, between the 1st day of August 2017 and the 1st day of November 2018, at the City of Mississauga, in the Central West Region, did, for a sexual purpose invite M. J., a person under the age of sixteen years, to touch directly with a part of her body, the body of A. J. P., contrary to s. 152 of the Criminal Code of Canada.

[2] The matter proceeded before me as a judge-alone trial.

[3] The accused is the common law spouse of the complainant’s great aunt (the aunt). At all material times the aunt and the accused resided together along with the aunt’s two daughters T. W. and W. W. and her son B. J. and his girlfriend. The offences are said to have occurred in the accused’s home, to which the complainant was a frequent visitor and house guest.

[4] In fact, over the periods of time in question, the family lived in two homes, both in Mississauga, moving to their current home in August 2017.

THE EVIDENCE

The Complainant

[5] The complainant was born on July 21, 2007 and at the time of the trial was 13 years old and in grade eight. At the time the offences are alleged to have occurred, M. J. resided with her mother, J. M., in a basement apartment in Brampton.

[6] M. J. testified the she would often go to her aunt’s home and stay for a few days especially in the summer, during holidays and on some weekends. She testified that it was fun to go to her aunt’s home and said she got along with everyone and hung out with T. W.

[7] M. J. identifies as indigenous or native and during the summer her aunt would take her to visit members of her family who lived on or near Manitoulin Island in Northern Ontario.

[8] In accordance with the Criminal Code of Canada in regard to the evidence of children, the majority of M. J.’s evidence in chief was introduced in the form of her audio/video recorded police statement which she gave to the police on December 30, 2018. She was 11 years of age at the time. Prior to giving her statement and again at this trial, M. J. promised to tell the truth. Her statement was played, and the contents were adopted by M. J. as true. A copy of the recorded statement was made Exhibit 1.

[9] On December 30, 2018 M. J. got up early, as she was inclined to do, and decided to bake some cookies. However, she ended up burning the cookies. Her aunt awoke, smelled something burning and came down to see what had happened. The aunt scolded M. J. for using the oven without supervision.

[10] The aunt then questioned M. J. on her use of the aunt’s computer and the search parameters employed, being pornography and child pornography. The aunt asked M. J. to tell her what she was searching. M. J. just looked at her aunt and said, “you know what I searched” and then told her aunt that she was “just curious”. When asked about what, M. J. whispered, “sex”.

[11] M. J. told her aunt that she did not know what the term child pornography meant. Her aunt then told her the search M. J. did was illegal and was now part of her work computer’s search history. After further discussion the aunt went into her office, leaving M. J. in the living room.

[12] Shortly thereafter, M. J. went into the office to ask her aunt not to tell her mother.

[13] At some point, whether in the living room or the office the aunt asked M. J. if anyone had touched her. M. J. pointed at the accused who had just come downstairs from the bedroom, and said, “him”.

[14] M. J. went on to explain that she learned about pornography from the accused who had asked her if she was curious about sex and told her he would teach her about, “some stuff”. M. J. told her aunt that the accused had showed her two pictures he had on his phone. One was of a woman, “sucking a guy’s dick” and the other was of a “woman having sex with two men”.

[15] M. J. then went on to provide her aunt with details of what had allegedly occurred over a period of time.

[16] Counts 1 and 2 relate to an incident when M. J.’s pants were pulled down, which was alleged to have occurred when the aunt and her family lived in the old house.

[17] M. J. testified that on this occasion she was sleeping in the same bed as her cousin T. W. and the accused came into the room and woke her up and asked if she wanted to hang out. M. J. and the accused went to the accused’s bedroom which he shared with her aunt and they watched tv for a while. The accused then asked M. J. if she wanted to wrestle which, it would appear, they often did. M. J. ended up on the bed on her stomach and testified that the accused then pulled down her pants below her bum. M. J. testified that this was the first memory she had of the accused making her feel uncomfortable.

[18] On cross-examination, M. J. agreed that the pulling down of pants incident only occurred once. In her police statement, M. J. said that, sometimes he would pull my pants down when we were wrestling, which suggested it happened more than once. She conceded that what she told the police was a bad choice of words. She denied it was the result of her making things up and explained she does not recall a lot of detail.

[19] M. J. testified that she told the police this incident was the only one that occurred at the old house, saying that, at the time she spoke to the police, this was the only incident she remembered occurring at the old house. She testified that she had since remembered other incidents that occurred at the old house, such as the incident involving the accused’s penis touching her leg (as described below).

[20] In relation to Counts 3 and 4, M. J. told the police of the following incident, which is alleged to have occurred after August 1, 2017 at their new home. On this occasion M. J. testified that she was sleeping in the spare room in the basement and the accused came down and asked if she wanted to participate in a role-playing game. He explained that he would play the role of a police officer arresting her. He held her arms behind her back like a police officer would do to handcuff someone and pushed her onto the bed, on her stomach. The accused then held her arms over her head and out in front of her. M. J. told the police that he then started moving like they were having sex, which was described as, “humping” and saying such things like, “fuck me girl”. Both M. J. and the accused were fully clothed during all of this.

[21] M. J. told the police that after it ended, the accused apologized to her and said he should not have been doing that “stuff” and then left the room. M. J. testified that she responded, “it’s fine”, to which the accused said “no, it was not fine”. She could not remember how this incident made her feel and on cross-examination she said the role-playing incident was a one-time thing, although agreeing that the language she used with the police suggested role playing was something that occurred more than once.

[22] M. J. testified that the accused did not put all his weight on her and that she was not hurt.

[23] On cross-examination and in regard to the role-playing incident, M. J. said it happened at night but that she could not remember the year or the season. She agreed that she told the police that the accused handcuffed her but later said he just pretended to put her in handcuffs.

[24] M. J. agreed that the incident occurred when others were in the house. She was unsure if B. J. was in his room next door to the room in which she was sleeping.

[25] M. J., on cross-examination, testified that her aunt was probably in her room and that her aunt went to bed around 8:00 pm and 9:00 pm. When it was suggested that this was not true, M. J. testified that that’s what she remembered and then said that she did not really remember.

[26] It was suggested to M. J. that she told her aunt that she and the accused that in role-playing, were copying something they saw on the iPad involving superheroes. This was denied by M. J. and she explained that she was not into superheroes. She testified that she did not remember telling her aunt anything like that, and that she did not remember what she told her aunt.

[27] To the suggestion that she told her aunt a lie and forgot it and then told the police a different lie, M. J. again said that she could not remember what she told her aunt.

[28] M. J. did not believe the humping was sexual, explaining that they were both clothed and his hands were not, “all over her”.

[29] In regard to Count 5, M. J. testified as to an incident when the accused was driving her home to her mother’s place in Brampton. The accused stopped at a Tim Horton’s restaurant to get M. J. something to eat and drink. They used the drive-through service and stopped in the parking lot to allow M. J. to eat her two donuts and drink her chocolate milk. It would appear that the accused was having difficulty with his GPS and locating M. J.’s home. He was communicating with the aunt as to where he was and when he would be dropping M. J. off. Apparently, M. J.’s mother was calling and wondering when her daughter would get home.

[30] The accused wanted M. J. to finish what she was eating because he did not want M. J.’s mother to know that he had bought M. J. donuts.

[31] M. J. told the police that when stopped in the parking lot, the accused offered to give her six dollars if she sucked his dick or let him lick her vagina. M. J. said that she had been sitting in the front passenger seat but as a result of what the accused asked, she felt uncomfortable and moved to the back seat.

[32] The accused allegedly said to M. J. that she was not to tell anyone because he would get into trouble. M. J. guessed this to mean he would go to jail. When testifying in court M. J. explained that she would not want to put anyone in jail even if they did something bad. In her police statement M. J. said that the accused told her he’d go to jail and stuff. On cross-examination she acknowledged that the accused did not mention going to jail but that jail is what she thought the accused meant.

[33] When it was suggested to M. J. that she had taken a routine situation and added lies about sexual misconduct, she answered, “no, it happened”.

[34] M. J. testified as to other incidents of sexual misconduct.

[35] M. J. told the police that when alone with the accused in the white car at a hockey rink, the accused started talking about “dicks” and showed her how to rub it and suck it. He asked M. J. if she ever played with herself. He said he would give her five or six dollars to rub it (his penis).

[36] On another occasion in the old house, M. J. said she and the accused were on the bed, hugging. She was on top. At one point she felt the accused’s “dick” on her leg which had poked out of the hole (the fly) in his boxer shorts. M. J. described the incident as an accident but that when she was touched, she jumped off. The accused asked her what was wrong and then noted his penis was out of his boxers. She testified that she was again offered money to touch it or suck it.

[37] As alluded to earlier, M. J. told the police about being shown pornographic pictures by the accused. She explained that the accused worked shift work in a factory and would often come home around 5:00 am. On this occasion the accused woke up M. J. to hang out and showed her the two pictures he had stored on his phone.

[38] M. J. was asked by the interviewing officer if the accused ever touched her in a sexual manner. M. J. told her of one time when they were in the living room where she had been sleeping. The accused asked her how big her boobs were and proceeded to pull up her shirt. She said that his hand “kinda” touched it (her breast) but that she quickly pulled her shirt down.

[39] Under cross-examination M. J. agreed that on another occasion she testified that while the accused almost touched her breast, he did not, in fact, touch it. When asked why she told the police he touched her breast, she explained, he was going to, but I pulled down my shirt on his hand.

[40] M. J. testified that the incident occurred in the living room but that she could not remember how it started. M. J. was unable to say when the incident regarding the touching of her breast occurred or what time of day it occurred. She went on to say that all of the incidents occurred at night but some occurred in the very early morning. She agreed that in her statement she said that the incident occurred in August 2018, but when testifying at the trial she said that she could no longer recall when it occurred.

[41] It can be said generally that M. J.’s memory as to time, date and to some degree, place, was not very good.

[42] M. J. acknowledged that she had told the police that she was glad that the accused had not yet done anything sexual and hoped that it would stay that way. Other than touching her breast, or the attempted touching, she said that it was never sexual like, “touching her all over”. When asked if she had ever seen pornography prior to being showed the pictures on the accused’s phone, M. J. said she could not remember.

[43] In her video recorded statement to the police, M. J. asked the officer not to tell her mother. When asked about this she testified that she did not want to stress her mother out and that it made her sad when her mother cried.

[44] Towards the end of her police statement, the police officer tells M. J. that her mother was already at the police station. M. J.’s reaction to this statement is notable. The look on M. J.’s face was one of fear or panic and she seemed to push herself into the back of the couch, as if to disappear.

[45] The officer took some time to ensure M. J. that her mother was not angry with her but rather was crying. The officer told M. J. to take a minute (before leaving the interview room), saying she had to be strong for her mother.

[46] M. J. also testified that when her aunt confronted her about using her computer to search pornography, as noted above, she asked her aunt not to tell her mother. She explained that she was embarrassed and was afraid her mother would get mad at her.

[47] M. J. had testified that while she had her own iPad, her mother had deleted the “apps” that would allow M. J. to do internet searches. Initially, on cross-examination, M. J. testified that her mother restricted her internet access because, she had watched porn previously. She quickly backed away from this admission which suggested she had searched pornography on an earlier unrelated occasion, saying the restriction was imposed from the beginning because of all of the bad stuff on the internet and that she was much younger then.

[48] M. J. could not remember when her mother got her the iPad, whether it was Christmas 2018 or 2017. She also said that when she visited her aunt’s home, she would use her cousins’ iPad on which she could do searches.

[49] M. J. agreed that her aunt had a very busy household with all the people and pets who lived there. M. J. acknowledged that at the preliminary hearing, she agreed with the suggestion that there was never a time in the house that she and the accused were alone. On cross-examination M. J. testified that she could not remember if she and the accused were ever alone in the house.

[50] M. J. was asked if she had a problem being honest and answered, “I wouldn’t say so, I can’t remember.”

[51] M. J. was cross-examined on certain video games she played, particularly one game in which a player could create alternate realities for characters or scenes as they were called. She agreed such scenes could be created however said she never did, but rather, just played.

[52] M. J. agreed that at the times in issue she listened to rap music and knew the words to certain songs by heart. She could not remember if any such music had sexual content. On cross-examination it was suggested to her that through such music she was familiar with sexual terms to which she said, back then, she did not care about the meaning although agreeing that the music contained references to ‘fucking” and “eating ass”.

[53] M. J. could not remember where she heard the word, “humping”.

[54] In her statement to the police, M. J. seemed to suggest that such things happened all the time. She would be sleeping, and the accused would come in and wake her up and things would happen. Under cross-examination, M. J. said that things did not happen all the time and that it was a matter of sloppy language on her part. She agreed that she told the police that he always slept in my bed. She described this comment as a mistake and that the accused was not in her bed all the time.

[55] She agreed that she had said he (the accused) kept waking her up and stuff to wrestle and stuff. She conceded that while it happened more than once, it was not a regular thing.

[56] On other points in her police statement or her preliminary hearing testimony, M. J. said that when she said always, she meant sometimes and that she said what came to mind but did not use the right words or say it right.

[57] When it was suggested to M. J. that she had made stuff up, she testified, that’s a lie and that she would never get involved with the police. She denied making stuff up because she did not want to get into trouble for watching porn.

[58] In regard to the events of December 30, 2018, M. J. agreed that the accused had never used the term pornography or child pornography with her.

[59] M. J. could not recall how long she looked at pornography but said she watched a girl and a guy having sex. She never watched anything resulting from her search for child pornography.

[60] M. J. agreed that at the preliminary hearing she testified that she could not remember what she saw as a result of her search but testified she remembered it now.

[61] M. J. agreed that when her aunt confronted her about her pornography search, she froze and went dead because she knew she did a bad thing. She agreed that when her aunt first confronted her about searching pornography, she did not initially blame the accused but rather told her aunt that she had been curious.

[62] When M. J. was first confronted by her aunt about her computer search of pornography, she was in the living room. M. J. agreed that a short while later she went into the office and approached her aunt and asked her not to tell her mother that she had watched pornography.

[63] It was suggested to M. J. that she knew she was in trouble and asked her aunt not to tell her mother and that, to deflect her guilt, she blamed the accused. M. J. responded that no (that was not true) and that she didn’t remember anyone asking her if someone had touched her. She remembered her aunt asked why she was curious and in answer, she said, the accused’s first name and went on to tell her aunt about the incidents with the accused.

[64] M. J. admitted under cross-examination that she did not think her allegations would result in police involvement.

[65] M. J. agreed that as of December 30, 2018, she had been staying at her aunt’s for about a week and that during that week there were no incidents between her and the accused. In fact, she agreed that nothing had happened for a couple of months. She could not however, remember why she became so curious on December 29, 2018, but still believed it was the accused’s fault she did a search, utilizing her aunt’s computer.

The Aunt

[66] M. J.’s aunt was called as a witness by the Crown. She explained that she and the accused had been together since 2013.

[67] The aunt testified that she wanted M. J. to know her family and during the summer took her, with the rest of the family, to Manitoulin Island. She further explained that M. J.’s mother was, at times, struggling, as a single parent. There was a time when M. J.’s mother signed over guardianship of M. J. to the aunt resulting in M. J. living with her aunt for a couple of months. Thereafter M. J. spent time with her aunt and her family, during the summer and holidays and on weekends.

[68] The aunt believed she had a good relationship with M. J. However, since these allegations were made, the aunt has not reached out to her niece, believing she could no longer trust her. She struggles with what M. J. told her and doesn’t understand why she did it. She believes that M. J. was not honest and was trying to deflect the discussion away from the computer issue.

[69] As noted above, after the initial confrontation, M. J.’s aunt went into her office. The aunt testified that, after a few minutes M. J. came into the office, still crying and begged her aunt not to tell her mother.

[70] The aunt testified that she was thinking, why was M. J. so upset and worried about her mother? Why would M. J. search child pornography? She then asked M. J. something to the effect of, did someone touch you inappropriately?

[71] The aunt testified that M. J. said the accused’s first name and pointed at him, the accused, having just come downstairs. The aunt testified that she froze and felt like her heart was in her throat. She thought of the many times over the years that M. J. had stayed in their home.

[72] When asked what she meant, M. J. told her aunt that she was trying to avoid the accused and that he had shown her a picture on his phone of a woman on top of a man. M. J. told her aunt of the incident in the Tim Horton’s parking lot and of the role-playing incident.

[73] The aunt told M. J. that she needed time to think. She knew she had a duty to report what she had been told by M. J.

[74] The aunt went upstairs to her bedroom where the accused asked her if everything was ok with M. J., to which the aunt responded, no, and said they will talk later. The aunt testified that she first wanted to process what she had been told by M. J. The aunt ended up calling the police and later that day taking M. J. to the Special Victim’s office of the Peel Police.

[75] Upon arrival at the police station M. J. and her aunt provided statements. Later the aunt brought her two daughters T. W. and W. W. to the police station to provide statements. The aunt had still not spoken to the accused although they had shared text messages. On that day, after exercising a period of Christmas Holiday access, the accused had to drive to Owen Sound to return his son (from a former relationship) M. P., to his mother.

[76] The aunt testified that her initial reaction was to believe M. J., describing herself as a child advocate. She has since concluded however that the allegations could not have happened. It was unlikely that the accused was ever alone with M. J. She further testified that she has no reason not to trust the accused and that at no time did she observe anything unusual.

[77] The aunt testified that since their move to the new home, M. J. usually slept on the couch. On one occasion M. J. slept in the bedroom downstairs and another time with T. W., on an air mattress on the floor in the hall.

[78] In the old house M. J. would sleep in T. W.’s room or on the couch.

[79] The aunt testified that typically, the accused slept in his boxers but that when he got up, he would always make sure he was dressed before leaving the bedroom.

[80] The aunt testified that they have two pet dogs, Cinder and Deenotch, the latter being especially attached to the accused and was said to follow him everywhere.

[81] During her Crown testimony the aunt testified as to M. J. telling her she did not want anyone to go to jail. M. J. was also heard to say that the accused was still “useful”, a comment not disclosed in the aunt’s initial statement to the police. The aunt testified that she had a few conversations with the police and may have disclosed the “useful” reference during those discussions, but that she could not be certain.

[82] The aunt testified that she never saw a change in M. J.’s attitude towards the accused or any effort to avoid the accused. M. J. never acted in a manner to suggest she was uncomfortable around the accused.

[83] The aunt testified that she believed that there were no opportunities for the accused to do what is alleged based on the layout of the house and the fact that someone was always home.

[84] The aunt testified that the accused and her daughters wrestled, which she described as rough housing. She was not sure if M. J. would have been involved in the wrestling.

[85] A number of pictures of the current residence were entered as Exhibit 4.

[86] When asked if the accused and M. J. would ever be alone in a vehicle at a hockey arena, the aunt said, no. She did agree that, at times, the accused was alone with M. J. when driving her home or picking her up.

[87] The aunt testified as to a set of circumstances that suggest the accused attempted suicide since being charged. The accused was dealing with the expense of retaining counsel. He did not have the money. He approached two family members for financial assistance but was turned down. The aunt recalled one time after the accused had worked a night shift, she observed the accused hobbling around with a sore foot. She observed little freckles on the accused’s face. She observed a huge red mark or laceration on the side of his neck.

[88] Later that day the aunt went down into the basement and observed a broken rope over a rafter. A chair was observed on its side.

The Accused

[89] The accused, A. J. P., testified on his own behalf. He is 50 years of age and up to the point of these charges had never been arrested before. He has been in a relationship with M. J.’s aunt for eight years.

[90] The accused has an interest in leather crafting and miniature tabletop war gaming and maintains a workshop in the basement.

[91] The accused has an interest in sports having coached hockey and lacrosse.

[92] The accused denied all the allegations of sexual misconduct, specifically denying that he ever showed M. J. pornographic pictures, pulling down her pants, letting his penis protrude from his boxer shorts and touch M. J.’s leg, attempting to touch her breasts, role-playing and denied while in a parking lot, asking M. J. to rub or suck his penis.

[93] The accused testified about an attempt he made last winter, to take his own life. He did not have the money to retain counsel and his family would not loan him the necessary funds. He believed he would have to represent himself. He was overwhelmed. The accused found a rope, wrapped it around a ceiling joist in the basement and stepped off a chair. At that point, everything went black and he woke up on the floor with a headache and injuries to his foot and side. He had rope burns across his neck and around his back.

[94] The accused testified that in the basement of their current home, there are two rooms. In 2018, one of the rooms was utilized by B. J. for his bedroom and the other at times was described as a spare room and as a junk room. The accused testified that everyone in the house used the room for storage but did say there was a bed set up in the room. He acknowledged that M. J. stayed in the spare room on one or two occasions.

[95] The accused testified that he was in the spare room alone with M. J. only on one occasion, during which they watched the movie “Annabelle” together.

[96] The accused testified as to his relationship with T. W. and W. W. He told the court that when the girls were younger, he would play fight and wrestle with them. As the girls got older, he stopped. He further testified that on a couple of occasions M. J. got involved in the wrestling.

[97] The accused testified that the family had two dogs, the smallest of which, Deenotch, was very attached to him and followed him everywhere in the home. When he was wrestling with the girls the dog would be present, get very protective and bark. The accused testified that if he was interacting with anyone in the home it was likely that Deenotch would be there.

[98] It was the evidence of the accused that he tried to treat M. J. exactly how he treated the other girls. He would involve M. J. in family activities.

[99] The accused works shift work in a factory. When on afternoons he would work from 5:30 pm to 4:00 am, returning home at approximately 5:00 am.

[100] The accused testified that he has never been alone in the house with M. J.

[101] In regard to December 30, 2018, the accused recalls waking up to the smell of smoke. The aunt jumped out of bed and went downstairs to investigate. The accused put his clothes on and followed. When downstairs, the accused witnessed the aunt “giving crap” to M. J. for using the oven. The accused got some coffee and cleaned up the kitchen, after which M. J. asked him where auntie was. The accused pointed to the office door.

[102] The accused’s son, M. P. had spent part of the Christmas holidays with his father and was to be taken home on December 30th. The accused spent the day with his son, first taking him to see someone in Orillia and then taking him home to his mother’s in Owen Sound.

[103] While on his way home from dropping off his son, the accused received a text saying, “I trusted you with the girls”. The accused testified that he responded with “what” or “what the fuck” to which he received a response of, “M. J. told me everything”.

[104] The accused testified that he pulled over and tried to call the aunt. Shortly thereafter, the police called him and asked him to come into the station but instructed him not to go back to the house. The accused testified that he had no idea of what was going on other than it had to do with the girls and was something serious. He did not know it involved allegations against him of inappropriate sexual behaviour.

[105] In his statement to the police, the accused said that the aunt messaged him telling him not to come to the house and messaged, “I trusted you with the girls and M. J.”. The accused acknowledged he told the police this but testified that is not what she said, exactly.

[106] Upon his arrival at the police station the accused was arrested and interviewed.

[107] With respect to the alleged incident in the parking lot of an arena, the accused said that there was no time he was alone with M. J. in such circumstances. He testified he was only alone with M. J. in a vehicle on two occasions when he drove her home to her mother’s. M. J. would sit in the front passenger seat.

[108] In regard to the alleged incident in a Tim Horton’s restaurant parking lot, the accused testified that upon their arrival, he utilized the drive-through and stopped in the parking lot to allow M. J. to eat her two donuts and drink a chocolate milk. While she was eating, the accused testified that he was trying to get the GPS to work, unsure of how to get to M. J.’s house. The aunt called wondering where they were as M. J.’s mother had called her, inquiring. On cross-examination the accused agreed that he wanted M. J. to finish her donuts before he dropped her off so that her mother did not know that she had eaten donuts.

[109] The accused denied asking M. J. for oral sex.

[110] While under cross-examination, the accused testified that the family would watch movies together such as Game of Thrones and the Sons of Anarchy and the girls, including M. J. if she was visiting, would hear and see things of a sexual nature. However, it was not until he was under arrest that he found out M. J. watched pornography.

[111] The accused testified that he could only remember two times when he was wrestling with M. J. He described what happened as typical wrestling, horsing around, referencing the W.W.F. (World Wrestling Federation). The accused said that typically he would be sitting down somewhere watching television and T. W. would come in and jump on him and M. J. would join in. The accused went on to say that this rarely happened in the new house because the girls were getting older.

[112] Under cross-examination the accused denied pulling anyone’s pants down or pulling a shirt up. He denied ever touching or trying to touch the girls’ breast or buttocks. He denied accidentally touching those areas when play fighting with the girls.

[113] The accused testified that he never worked weekends so the only times M. J. could be present when he came home from work was during a holiday period, although he could not recall M. J. ever being in the home when he was working.

[114] The accused, under cross-examination, denied showing M. J. pornographic pictures which he had on his phone, although he admitted that he had looked at pornography on his phone. He testified that he did not have his own computer.

[115] It was suggested to the accused that he knew M. J. was vulnerable. She had no real relationship with her father who died of a drug overdose. She lived with her mother who had different boyfriends living in the home. M. J. was often left at home alone when her mother was at work. They lived in a basement apartment and her mother did not drive. Things were always tight financially. While the accused agreed that such circumstances might make M. J. vulnerable, he responded that while he wouldn’t say he tried to be a role model for M. J., he tried to treat her as he did the other girls.

[116] The accused was cross-examined in regard to the alleged incident involving role-playing. He testified that at the time he weighted 315 pounds and that if he was holding M. J.’s arms and hands out in front of her he could not have been on top of her without hurting her.

B. J.

[117] B. J. testified as a witness for the defence. He said that M. J. would visit sporadically, that is, every once in a while. He could not remember a time when M. J. stayed in the basement. The odd time he would see her in the spare room playing on the iPad. He testified that he did recall the accused’s son, M. P., staying in the spare room.

[118] B. J. testified that while the accused was very involved with his sisters, B. J. did not see the accused talk too much to M. J. He did not observe any change in their relationship.

T. W. and W. W.

[119] T. W. and W. W. testified and are now 15 and 17 years of age, respectively. Both girls were active in sports especially hockey and lacrosse.

[120] T. W. testified that she used to wrestle with the accused but that he never made her feel uncomfortable. She testified that the accused treated M. J. no differently than he treated her. T. W. testified that at times M. J. participated in the wrestling.

[121] T. W. did not observe any change in attitude or interaction between M. J. and the accused and could not recall a situation when the accused would be alone in a vehicle with M. J.

[122] During cross-examination T. W. agreed that it was possible that things could happen in the house that she was unaware of.

[123] W. W. testified that the accused never did anything to make her feel uncomfortable. Nor did she see anything that could be said to be inappropriate. She never saw M. J. act in a way to suggest she was uncomfortable with the accused. She too could not think of a situation when M. J. and the accused would be alone in a vehicle. She never observed the accused wrestling with M. J.

[124] Under cross-examination, while she did not think M. J. was vulnerable, W. W. testified that she believed M. J. lived a tough life and that her family was trying to take care of M. J.

Character Witnesses

[125] A number of character witnesses were called by the defence.

[126] M. T. had a daughter who played hockey and lacrosse with T. W. and W. W. She has known the accused and his family for four and a half years. She testified that she is aware of the accused’s reputation and that he is well thought of by parents and coaches.

[127] In regard to honesty and integrity, the witness had not heard anything negative in nature.

[128] In regard to morality, the witness knew of nothing to suggest inappropriate behaviour on the part of the accused.

[129] Knowing the allegations, M. T. stated she would still be comfortable with her daughter being with the accused.

[130] P. S. had a daughter who plays hockey and came to know the accused through the hockey community. To his knowledge the accused has a good reputation and has heard nothing bad said about him. Nor had he heard anything to suggest untrustworthiness or inappropriate behaviour other than the current allegations.

[131] P. S. conceded he had no first-hand knowledge of what the accused did at home.

[132] C. P. is also aware of the current allegations against the accused and testified that she came to know the accused through girls’ hockey. She testified that the accused is highly regarded and that she has nothing of a negative nature in regard to the accused’s integrity and honesty.

ARGUMENT

The Defence

[133] Counsel for the accused submits that there is a complete lack of credibility on the part of M. J. While recognizing the law in regard to child witnesses, it is said that the standard of proof remains unchanged.

[134] It is submitted that one of the issues to be considered is motive and whether there is a reason a complainant would fabricate a story. It is submitted that in fact the complainant did have a reason to fabricate the allegations and did in fact fabricate all of the allegations.

[135] The complainant was caught using her aunt’s computer to search pornography and child pornography. It is submitted that this was not the first time M. J. was caught watching pornography. She had watched on a previous occasion on her own iPad and that was the reason her mother restricted M. J.’s access to the internet. It is submitted by defence counsel that, under cross-examination, M. J. let the, “cat out of the bag” and admitted to this. It is submitted that, when confronted with her use of the computer to search pornography and child pornography, M. J. asked her aunt to please not tell her mother believing her mother would be angry especially because of being caught doing so previously. When asked if anyone had touched her inappropriately, it is submitted that to avoid her mother’s anger, and to deflect fault, the complainant falsely implicated the accused.

[136] Counsel for the accused acknowledges that in regard to the evidence of children, inconsistencies in terms of time and place and in regard to peripheral matters, are forgivable. However, it is submitted that within her evidence, the complainant is guilty of inconsistencies on core issues.

[137] Counsel submits that the court ought to consider the demeanour of the complainant when giving her statement to the police (Exhibit 1). Her demeanour is inconsistent with the gravity of the offences. She can be seen laughing and enjoying herself and under no visible stress.

[138] It is submitted that the complainant only appeared to be under any kind of stress when told that her mother was at the police station.

[139] While corroboration is not required, the lack of corroboration can still be considered.

[140] The complainant stated that she felt uncomfortable around the accused but no one in the family noticed any change in behaviour.

[141] It is submitted that the complainant, on multiple occasions and in regard to core issues, often said she could not remember. Counsel submits that such responses were done to avoid the questions asked of her.

[142] Counsel for the accused submits that in regard to the role-playing incident, the complainant has provided two versions. She first said they were adopting the roles of superheroes but then her story changed to that of a policeman and someone being arrested.

[143] Another example is with respect to the accused allegedly wanting to see the complainant’s breasts. In her statement to the police the complainant said the accused, “kinda touched her breast”. In her testimony at trial the complainant said that while the accused tried to touch her, he did not because she pulled her top down over his hand.

[144] Such inconsistencies, it is submitted, are very significant. They are not matters which can be said to be peripheral in nature.

[145] It is submitted by defence counsel, and as noted in, Watts’ Jury Final 14, juries are asked to consider whether inconsistencies make the rest of a witness’ evidence unreliable. It is submitted that if the Court concludes that the complainant tells a deliberate lie, the rest the evidence becomes suspect.

[146] The accused also asks the court to take into consideration the fact that the complainant played a computer game that allows players to craft their own scenes, their own alternate realities. At the preliminary hearing the complainant referred to the incidents of alleged sexual misconduct as “scenes”.

[147] It is submitted that the evidence of the complainant is just not creditable or reliable.

[148] Counsel for the accused asks this court to consider the accused’s “innocent reaction” when confronted with the allegations. He immediately responded to the text messages he received from M. J.’s aunt. He freely gave a statement to the police without asking to speak to a lawyer because he did not believe he did anything wrong. It is submitted that he did not act as a guilty person would.

[149] Counsel for the accused, in regard to character evidence, acknowledges that with respect to alleged sex offences and a child complainant, such evidence has a diminished value. However, such evidence is still relevant and is not to be ignored.

[150] It is submitted that on December 30, 2018, the accused walked into a “perfect storm” involving a very smart eleven-year-old, with a vivid imagination, who had experience creating alternate realities and who already had knowledge about sexual matters and who felt a need to deflect fault away from her.

[151] Counsel for the accused submits, that reasonable doubt exists on all counts and can only lead to findings of not guilty of all charges.

The Crown

[152] The Crown submits that this case all boils down to credibility and reliability. He submits that the complainant is both credible and reliable.

[153] It is submitted that any inconsistencies in the evidence of the complainant are the type to be expected from child witnesses.

[154] The Crown asks the court to consider the evidence of the complainant when she said she did not think some of things the accused did were sexual in nature. For example, the role-playing incident and the fact that the complainant did not believe it was sexual in nature because they both had all their own clothes on, and the accused’s hands were not everywhere on her body. It is submitted that such evidence, supports M. J.’s credibility.

[155] It is submitted that the complainant conceded she used wrong words and sloppy wording in describing incidents which did occur.

[156] The Crown submits that the complainant was a vulnerable child and that sets her apart from T. W. and W. W.

[157] It is submitted by the Crown that the evidence amounts to the accused “grooming” the complainant for further sexual behaviour. If the court finds that the accused did in fact show pornographic pictures to the complainant, it leads to findings of credibility in regard to the other incidents.

[158] The Crown submits that in fact there is indirect corroborative evidence which suggests credibility, some of which are as follows:

(a) There is third party evidence that the accused wrestled with his stepdaughters and the complainant when she was present in the house.

(b) There is other evidence that, on occasion, the complainant slept down in the basement in the spare room.

(c) The accused admits being alone with the complainant when in the parking lot of Tim Horton’s.

(d) The accused admitted watching porn on his phone.

(e) The accused admitted that while he would not drive the family to arenas, once everyone got out and the equipment was unloaded, he would slide over and drive the vehicle for the purpose of finding a parking spot.

(f) The accused admitted that he wore boxers to bed.

[159] The Crown submits that the complainant did not exaggerate the incidents or their frequency.

[160] The Crown submits that there is no weight to the argument about the complainant’s motive to lie.

[161] It is further submitted that sexual misconduct, such as alleged, is conducted in secret and does not last very long. It is therefore not unusual that no one else in the home witnesses anything inappropriate. Such behaviour it is submitted, happens in the best of homes, even in a home when the accused’s spouse is a child advocate.

[162] The Crown denies that any inconsistencies go to core issues.

[163] Counsel for the Crown, while sympathetic to the accused’s suicide attempt, submits that it is not just supportive of a claim of innocence.

[164] Finally, in closing, the Crown submits that the essential elements of the charges have been proven beyond a reasonable doubt and the accused ought to be found guilty.

THE LAW

[165] The charges against the accused relate to allegations of sexual misconduct. As often the case, the matters before me turn on the evidence of the complainant and the accused, the only witnesses to the alleged crimes.

[166] When the offences are alleged to have occurred the complainant was no more than 11 years of age. When she testified at this trial, she was 13 years of age.

[167] Further to the dicta found in, R. v. W. (D.) (1991) 1991 93 (SCC), 63 C.C.C. (3d) 397 (S.C.C.), if the accused is believed or if his evidence raises a reasonable doubt, he is entitled to be found not guilty. If the evidence of the accused is not believed, nor found to raise a reasonable doubt, he can only be found guilty if the balance of the evidence is such that the trier of fact is satisfied of his guilt beyond a reasonable doubt.

[168] However, the W. (D.) formula is not a magical incantation and the specific language used in W. (D.) need not be followed provided, if the substance of the principles are considered.

[169] From R. v. Hull 2006 26572 (ON CA), [2006] O.J. No. 3177 (On. C.A.), para. 5 I quote,

“W. (D.) and other authorities prohibit triers of facts from treating the standard of proof as a credibility contest. Put another way, they prohibit a trier of fact from concluding that the standard of proof has been met simply because the trier of fact prefers the evidence of Crown witnesses to that of defence witnesses. However, such authorities do not prohibit a trier of fact from assessing an accused’s testimony in light of the whole evidence, including the testimony of the complainant, and in doing comparing the evidence of the witnesses. On the contrary, triers of fact have a positive duty to carry out such an assessment recognizing that one possible outcome of the assessment is that the trier of fact may be left with a reasonable doubt concerning the guilt of the accused.”

[170] The evidence of any witness, including the accused, may be believed standing on its own. However, when other conflicting evidence is given, it may cast doubt on the accuracy or reliability of the witnesses’ evidence to the extent it raises a reasonable doubt.

[171] To state the obvious, the evidence before me is conflicting. The complainant alleges sexual misconduct on the part of the accused, which he adamantly denies.

[172] R. v. L.H. [2007] O.J. No. 1588, is a decision of C. Hill J., who as usual, provided an excellent summary of the law. He noted that;

1. A court may believe some, all, none or some of a witness’ evidence (para. 83).

2. The vast majority of sexual assault cases turn on the evidence of two principals – the complainant and the accused (para. 84).

3. A determination of guilt or innocence must not, however, devolve into a mere credibility contest between two witnesses (para. 85)

4. The disbelief of an accused’s evidence does not satisfy the burden of persuasion upon the Crown. The court must be satisfied on the totality of the evidence that there is no reasonable doubt as to guilt (para. 86).

5. The court must be satisfied beyond a reasonable doubt on the issue of credibility where the case turns on the evidence of two conflicting witnesses (para. 87).

6. Demeanour evidence alone cannot suffice for a finding of guilt (para. 88).

7. “To the extent that credibility assessment demands a search for confirmatory evidence for the testimony of a complainant, such evidence need not directly implicate the accused or confirm the complainant’s evidence in every respect – the evidence should, however, be capable of restoring the trier’s faith in the complainant’s account.” (para. 89)

[173] R. v. B.B. [2009] O.J. No. 2991 is another decision of C. Hill J. and from paragraph 54, I quote,

It is not an error for a judge to make a finding of credibility as between the complainant and the accused particularly where they provided the bulk of the evidence as to what happened. This is a necessary part of the judge’s duty. While it is not the end of the journey of decision-making, it is a necessary intermediate step along the way. Indeed, the first two elements in a proper jury instruction on the issue as set out in W.(D.) assume that the jury should decide whether or not they believe the exculpatory evidence of the accused. Those first two steps are:

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

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

Accordingly, it was not an error for the trial judge here to assess the credibility of the accused in relation to that of the complainant.

An error under the W.(D.) principle is committed when the judge treats the matter as concluded once the assessment of credibility has been completed. To do so misses the third and critical step in the application of the burden of proof. As described in W.(D.), the last crucial step is as follows:

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

[174] In relation to the W. (D.) test or formula, in cases where the evidence is “he said/she said’, the second level of analysis was said to have been reformulated to be:

If, after a careful consideration of all the evidence you are unable to decide whom to believe, you must find the accused not guilty because the Crown would have failed to prove the accused’s guilt beyond a reasonable doubt. (R. v. D.G. 2018 ONSC 6612, (para. 96).

[175] In R. v. B.D. 2011 ONCA 51, the Ontario Court of Appeal had the following to say in regard to the W. (D.) formula;

“As a general rule, the standard of proof beyond a reasonable doubt is not to be applied piecemeal to individual items or categories of evidence. The Crown is not required to prove or disprove beyond a reasonable doubt any single fact or item of evidence, unless that fact or item is an essential element and the jury is required to make credibility findings with respect to the conflicting evidence.”

THE EVIDENCE OF CHILDREN

[176] In R. v. B. (G.) 1990 7308 (SCC), [1990] 2 S.C.R. 30, at paragraph 48, it was said that in regard to the evidence of children,

“While children may not be able to recount precise details and communicate the when and where of an event with exactitude, this does not mean that they have misconceived what happened to them and who did it. In recent years we have adopted a much more benign attitude to children’s evidence, lessening the strict standards of oath taking and corroboration, and I believe that this is a desirable development. The credibility of every witness who testifies before the courts must, of course, be carefully assessed but the standard of a reasonable adult is not necessarily appropriate in assessing the credibility of young children.”

[177] In R. v. W. (R.) [R.W.] 1992 55 (SCC), [1992] 2 S.C.R. 112, McLaughlin J. wrote,

“Since children may experience the world differently from adults, it is hardly surprising that details important to adults, like time and place, may be missing from their recollection.” (para. 24)

[178] It was also said however, that these changes do not mean that the evidence of children should not be subject to the same standard of proof as evidence of adult witnesses in a criminal case. The approach to the evidence of children ought to be on a common-sense basis (para. 25).

[179] The existence or absence of a motive to fabricate is a relevant factor (R. v. L.H. para. 94).

[180] The evidence of a child has to be understood in the context of our everyday experience and common sense (R. v. D.G. O.J. No. 6873, para. 99).

GOOD CHARACTER EVIDENCE

[181] R. v. Profit, 1992 7513 (ON CA), 11 O.R. (3d) 98 is a decision of the Ontario Court of Appeal. Griffiths J. A., in his dissent, was of the opinion that while evidence of reputation for good character enjoyed by the accused in the community may be relevant in cases involving crimes of commercial dishonesty, it has little probative value in cases involving sexual misconduct against children by persons in positions of trust or control. Such offences usually occur in private and are not reflected in his or her reputation in the community for morality.

[182] The matter was appealed to the Supreme Court of Canada and the judgement of the Court was delivered by Sopinka J. who said,

“We agree with the conclusion of Griffiths J. in his dissenting reasons. When the reasons of the trial judge are considered as a whole, we are satisfied that he dealt with the character evidence tendered in this case adequately. The reasons of the trial judge must be viewed in light of the fact that as a matter of common sense, but not as a principal of law, a trial judge may take into account that in sexual assault cases involving children, sexual misconduct occurs in private and in most cases, will not be reflected in the reputation in the community of an accused for morality. As a matter of weight the trial judge is entitled to find that the propensity value of character evidence as to morality is diminished in such cases.” (R. Profit 1993 78 (SCC), [1993] S.C.J. No. 104, para. 1)

[183] That is not to say however, that in cases alleging sexual misconduct, evidence of good character is not to be ignored altogether (R. v. Norman 1993 3387 (ON CA), 1993 CarswellOnt 140, para. 45).

PRIOR CONSISTENT STATEMENTS

[184] Prior consistent statements of an accused, including exculpatory out-of-court statements are generally considered inadmissible, although this rule is the subject of many exceptions (R. v. Edgar 2010 ONCA 529, [2010] O.J. No. 3152(On.C.A.), paras. 18 & 26).

“The proposition that spontaneous statements made by an accused person when first confronted by the police with an accusation, or upon arrest, are probative and should, therefore, be admitted enjoys considerable support in the case law.” (R. v. Edgar, para. 41)

[185] Where the accused takes the stand, the rational for exclusion is weakened (R. v. Edgar para. 58).

ANALYSIS

[186] As noted above, the evidence before me is conflicting. The complainant alleges sexual misconduct on the part of the accused which he adamantly denies.

[187] This case stands or falls on the issue of credibility and the evidence of two conflicting witnesses. As noted above therefore, I must be satisfied beyond a reasonable doubt on the issue of credibility.

[188] Portions of the evidence of both the accused and the complainant are compelling and credible. Other portions of their evidence challenge their credibility.

[189] With respect to the complainant, M. J., when testifying to the role-playing/humping incident, she said that the accused apologized to her and when she responded, “It’s fine”, the accused responded, “No it isn’t”. If this incident was fabricated then why would a child complainant include the apology? The evidence seems genuine.

[190] Further, the complainant did not believe the incident was, sexual in nature. No clothes were removed and the accused’s hands were not, “all over her”. If the incident occurred, it was sexual in nature, but the complainant’s innocent belief as to the nature of the incident, suggests she was being truthful.

[191] Although inconsistent with respect to dates, time and place, the complainant was, for the most part consistent in her description of the essential elements of the charges.

[192] There are also troubling features of the complainant’s evidence which goes to her credibility. In offering that opinion, I was aware that in assessing the evidence of the complainant, as noted above, I am to take a common-sense approach to the complainant’s evidence and agree that such evidence is to be treated differently than that of an adult. A child experiences the world differently.

[193] The complainant’s inability to remember time and place are to be expected.

[194] There is, however, evidence that suggests the complainant had motive to lie and fabricate allegations to deflect blame away from her.

[195] The complainant told her aunt on December 30, 2018, that her use of the computer the previous day was the first time she had searched the internet, under the word, pornography. She had also testified in chief, that while her mother had given her, her own iPad, her mother had already removed any “apps” which would allow her to search the internet, to prevent her exposure to bad things.

[196] Under cross-examination the complainant gave some testimony to suggest otherwise. During her cross-examination, the following questions were asked and the answers given by the complainant in relation to when and why her iPad was disconnected from the internet.

Q. And why did your mom do that?

A. Because of what happened, most likely. Cause she found out I was watching porn, in the first place.

Q. Okay. So when, when did she do that? In other words, when did, when did…

A. To be honest, I had it before that too.

Q. Sorry. We cannot talk at the same time, so I’m sorry. When did she disconnect the app.?

A. Well, kind of right when I got my iPad, which was for that Christmas or the Christmas before that, I forgot. And the reason why, it’s also because of the - because of – she thought I was watching porn that day I went - not the day that (the aunt) found out and stuff. She got, she got – she — okay, okay, I’m sorry. It’s gone for that reason and also because — what’s it called? There is like bad stuff on the internet anyway, so it, it was gone before, like, the incident happened.

[197] Clearly the complainant, when asked why her mom disabled the internet search feature, by saying such things as, “Cause she found out I was watching porn in the first place”, “I had it before that too” and “she thought I was watching porn that day I went – not the day that the aunt found out and stuff”, can be said to have been alluding to a previous incident when she was caught watching pornography.

[198] The complainant, when confronted by her aunt about searching pornography and, in the words of the aunt, begged her aunt not to tell her mother. The complainant asked the police not to tell her mother. When told her mother was already at the police station, as noted, the complainant’s reactions suggest panic or fear.

[199] Such evidence can be said to support the argument that the complainant had a motive to lie. If she was caught by her mother on an earlier occasion searching pornography, after being caught a second time by her aunt, M. J. may have been fearful of her mother’s reaction and, an effort to deflect her mother’s likely anger, from herself to the accused, made allegations of sexual misconduct.

[200] In her police statement and in her testimony the complainant said she did not think what she disclosed would involve the police. She also said that she did not want the accused to go to jail. It was the evidence of the aunt, that the complainant added that, “he is still useful”. Such expressions would be consistent with fabricating incidents of sexual misconduct only to avoid the anticipated consequences imposed by her mother for again searching pornography.

[201] The existence of a possible motive to fabricate the allegations of sexual misconduct goes to the issue of the complainant’s credibility in regard to all of the allegations.

[202] There were other inconsistencies in the complainant’s evidence that go beyond issues of place or time or to peripheral facts.

[203] In her statement to the police, the complainant said that when they wrestled the accused always pulled her pants down or that he was always sleeping with her in her bed. When questioned about this she said that when she said always, she meant sometimes.

[204] She initially reported to the police that the accused had “kinda touched her breast”. She later said he only, almost touched her breast.

[205] Another example relates to the incident of role-playing. Initially the role-playing involved being superheroes whereas she later said it involved a policeman and a girl he had arrested.

[206] Even when recognizing the approach required when considering the evidence of a child and utilizing a common sense approach such inconsistencies have an impact on the complainant’s credibility.

[207] With respect to the testimony of the accused, he never wavered in his statements of innocence. While it can be said that his admission that he watches pornography on his phone, is corroborative of the complainant’s evidence of being shown pornographic pictures, it also can be said to be evidence of the accused’s honesty. He could have chosen to deny it and likely such a denial would likely have gone unchallenged.

[208] When testifying in chief or on cross-examination, the accused responded directly and immediately to the questions put to him.

[209] On two occasions the accused, while testifying, became very emotional, crying, even sobbing briefly. He raised his voice in anger and perhaps frustration when denying the Crown’s suggestions. On one of those occasions the accused apologized to the court for raising his voice. While demeanour evidence has its own problems, I was struck by the intensity of these exchanges and it can be said to be the responses of someone telling the truth.

[210] I accept the evidence of T. W. and W. W. that the alleged behaviour on the part of the accused was never experienced by them. Nor did they notice any change of behaviour on the part of the complainant.

[211] There were also elements of the accused’s evidence that were troubling. The accused’s admission that he watched pornography on his phone, as noted above, can also be said to be indirectly corroborative of the complainant’s evidence that the accused used his phone to show her pornographic pictures.

[212] The evidence of the existence of a spare room in the basement and the fact that the accused works shiftwork and often came home from work around 5:00 am, are other examples of indirect corroboration of the complainant’s testimony.

[213] I also note that the accused’s suicide attempt, while it may be the act of an innocent person, wrongly accused, it can also be said to be the act of a guilty person, overwhelmed with guilt.

[214] On the issue of good character evidence, while relevant in the matter before me, it has very little weight, even if I accept such evidence. I would not expect the good character witnesses to have any idea of what might have occurred in private.

[215] In regard to spontaneous statements of innocence, I am not persuaded that the accused’s utterances are of assistance one way or the other.

RULING

[216] I do not necessarily disbelieve the complainant. However, after careful consideration of all of the evidence and especially the evidence of the complainant and the accused, as analyzed above, I am unable to decide whom to believe. I am not satisfied beyond a reasonable doubt, on the issue of credibility, that would result in findings of guilt.

[217] To put it in another way, after assessing the evidence of the accused, in light of the whole evidence, including the testimony of the complainant, I am left with a reasonable doubt.

[218] The verdict is not guilty on all five counts and the charges are dismissed.

Bielby J.

Released: December 9, 2020

COURT FILE NO.: CR -19-1795

DATE: 2020 12 09

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

– and –

A. J. P.

REASONS FOR JUDGMENT

Bielby J.

Released: December 9, 2020