ONTARIO SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR-19-1407

DATE: 2021 01 28

BETWEEN:

HER MAJESTY THE QUEEN

Ysolt Brar, for the Crown

– and –

KULWANT DHILLON

Anthony Demarco, for the Accused

HEARD: December 15 -19, 2020

REASONS FOR JUDGMENT

J.M. Woollcombe J.

Introduction

[1] The accused, Kulwant Dhillon, is charged on a 12 count indictment with sexual offences alleged to have been committed in relation to A.G. between September 1, 2010 and December 31, 2016. Born on October 25, 2002, A.G. was between the ages of 7 and 14 during this period. Mr. Dhillon knew the complainant because his wife, Amarjit Dhillon, was a close friend of T.G., the complainant’s mother.

[2] It is the Crown’s theory that Mr. Dhillon repeatedly sexually abused A.G. in a variety of manners over the time frame in the indictment: he asked her to kiss him on the lips, he lured her to his car where he had her touch his penis, he touched her breasts and vagina, and he asked her to have sexual intercourse with him. The Crown further alleges that the accused showed her pornography on one occasion and used threats to maintain her silence. The Crown describes the accused’s conduct as opportunistic, given that it is alleged to have occurred on those relatively infrequent occasions when the accused was alone with the complainant, usually at his home while her mother visited with Amarjit Dhillon. Ultimately, the Crown says that the burden of her silence led the complainant to came forward and report what had happened to a teacher at her school.

[3] Mr. Dhillon testified and denied all of the complainant’s allegations. He denied the specific allegations and, more generally, denied ever having been alone with the complainant as she described. His wife’s evidence was largely consistent with his, emphasizing the absence of opportunity for the conduct described by the complainant. In some respects, the complainant’s mother’s evidence also confirmed the accused’s evidence respecting the absence of opportunity for the events described by the complainant to have occurred.

[4] The defence position is that the complainant was both internally inconsistent and that her evidence was inconsistent with the other witnesses, as a result of which she is said to be unreliable. Mr. Dhillon’s position is that the Crown has failed to prove the allegations beyond a reasonable doubt.

Summary of the Relevant Evidence

a) The Crown’s allegations

[5] While the indictment charges 12 counts, the charges really fall into four sets of allegations with multiple counts charged in respect of each set of allegations. I will begin by summarizing what the Crown alleges in each of these counts as described by the complainant in her evidence-in-chief:

Counts 1-3: The request to kiss the accused on his mouth

[6] Counts 1 through 3 are allegations of invitation to sexual touching, sexual assault and sexual interference alleged to have occurred between September 1, 2010 and September 1, 2011.

[7] The complainant testified that the accused’s wife, Amarjit Dhillon, and her mother, T.G., were best friends who worked together and had known each other for a long time. She said that they were like relatives and went to each other’s homes.

[8] The complainant said that the first incident with the accused happened when she was in grade 3, and would have been 7 or 8 years old. She said it was the first time she was alone with the accused. A.G. said that she was in her home, in her parents’ room playing on the computer. The accused asked her what she was doing. They had a conversation and he asked her to kiss him. She testified that she used to kiss her father on the cheek and was going to do the same to the accused, but that he said to do it on the lips. She did not know how to react and said she took it as a joke. She said that she tried to leave, but that the accused grabbed her wrist. She heard the creaking floor of her grandmother coming and said that the accused backed off.

[9] The complainant testified that this made her feel weird. She subsequently told her mother that the accused had pointed to his lips to kiss him. She testified that her mother did not take it seriously.

Counts 4-6: The Canadian Tire incident

[10] Counts 4 through 6 are allegations of invitation to sexual touching, sexual assault and sexual interference alleged to have occurred between September 1, 2010 and September 1, 2012, in what counsel refer to as the Canadian Tire incident.

[11] The complainant testified that after the kissing incident, the next time she saw the accused was at a Canadian Tire store in Rexdale. She believed it was the summer between grades 4 and 5, at which point she would have been 9 years old.

[12] The complainant described being at the store with her mother. While she was in the aisle next to her mother, she saw the accused. He invited her to go to his car for chocolate or candy. She said that she went with him to a white SUV that was parked at the end of the parking lot. She said that they both got into the back seat. She asked where the chocolate was.

[13] The complainant testified that the accused ignored her, unbuttoned his pants and pulled them down a bit. He took her hand and made her put it onto his semi-erect penis for six to seven seconds. She said that she was scared and so ran back to the store and found her mum, who was checking out.

[14] The complainant said that the accused followed her and talked with her mother. She testified that her mother asked where she had been and that the accused told her that they had gone to his car for chocolate.

Counts 7-9: The alleged touching of the complainant’s vagina and threats to harm her mother

[15] Counts 7 though 9 are allegations of invitation to sexual touching, extortion and sexual assault alleged to have occurred over a four year period between January 1, 2013 and December 31, 2016 when A.G. was between the ages of 10 and 14. The Crown says that these counts relate to allegations that the accused touched the complainant’s vagina and threatened to harm her mother if she did not comply with him.

[16] According to the complainant, while she was in grades 6 through 9, she and her mother went to the accused’s home a number of times. She thought they had gone there “pretty often”, which she described as being once a month or once every couple of months. She said that sometimes when she was there, a group of them were altogether and she was not alone at all.

[17] Other times, the complainant said that she went to the basement where there was a big television. She said that sometimes she could hear her mother and Amarjit Dhillon upstairs, sometimes they were in the back yard and sometimes they went out somewhere. The complainant said that the accused would touch her breasts and her vagina with his hand. She said that sometimes he pulled her pants down and sometimes he asked her to take them off. He touched her clitoris. She was not sure whether he had put his fingers in her vagina, but said that he could have, and that he hurt her.

[18] The complainant testified that the accused would tell her what to do and that if she was not willing to, she would threaten to scream and he would stop. She also described the accused telling her that if she did not do what he said, he would tell his wife, who was a nurse, and whom the complainant believed got medicines for her mother. According to the complainant, the accused threatened to put something into her mother’s pills. She said that she was worried that her mother would die as a result. She thought the accused had made this sort of threat twice and that it had been when he wanted to touch her vagina.

[19] The complainant described the incidents with the accused where he touched her vagina as being when she was in grades 6 and 7, when she was between the ages of 10 and 12.

Counts 10-12: Other sexual activity alleged between 2013-2116,

[20] Counts 10 through 12 are allegations of sexual assault, sexual interference and invitation to sexual touching between January 1, 2013 and December 31, 2016. These allegations are all alleged to have happened in the accused’s home and include:

i) About three instances in the basement living room in which the accused was said to have taken off the complainant’s shirt and bra and touched her breasts. On one occasion, she testified that he took a photograph of her breasts. She thought this had been in grade 6 and said it was before the incidents in which he touched her vagina. When she asked why he had done that and said it was weird, he told her he would delete the photograph;

ii) An instance on the main floor of the accused’s home at a time when the complainant’s mum was not there. The complainant said that she was following the accused around and he said to go into his son’s room and that he would show her something on the computer. They went into the son’s room and she said that the accused went on “Porn Hub”, a website with pornographic videos, and played a video of people having sex. He told her that this was what they were going to do. She said that she felt scared. The accused did not touch her, but he erased his son’s browsing history. She thought this had been near the end of grade 7.

iii) The complainant said that she had seen the accused’s penis at least four times when he took it out. Once was when her shirt was off and they were on the sofa in the basement. She also testified about an incident when he took his penis out and pointed to it and told her in Punjabi that he wanted her to suck on it and gestured to her. She said that she found this weird and abnormal.

iv) An instance in the basement when the accused and complainant were in a different room from where the sofa and television were. He shut the door and showed her that he had a condom. She said that her mother was not in the home at the time and that the accused suggested that they have sex. She said no and started crying and he stopped. The complainant said this was while she was in grade 8.

v) The complainant said that when she was in grades 6 through 8, the accused would call her home, ask if she and her mum were coming over soon and tell her that he wanted to have sex with her. She said she would answer those calls because she was scared that if her mother answered and found out, it would bring embarrassment on the family.

[21] The complainant disclosed her allegations to a teacher at her high school in October 2017 when she was in grade 9. He contacted the CAS and she provided a police statement.

b) The defence challenges to the complainant’s evidence

[22] The complainant’s evidence, which I have set out in summary form in respect of each of the counts charged, was challenged in multiple ways by the defence. She was cross-examined in detail about what were alleged to be multiple inconsistencies and improbabilities in her evidence.

[23] Among the areas in which her evidence was challenged were the following:

• In respect of the Canadian Tire incident:

o The time of day of this incident and inconsistencies about this between her evidence at trial, the preliminary inquiry and her statement to police;

o The amount of time she was gone from her mother during this incident;

o Whether she told her mother that she was leaving before she left the store with the accused and whether she was allowed to wander off as she described;

o Whether she was capable of recalling with precision the number of seconds the accused held her hand on his penis;

o Whether her mother and the accused spoke with each other in the Canadian Tire after the alleged assault.

• The frequency of her attendances at the Dhillon home between 2010 and 2017 and her assertion that it averaged out to about once a month;

• Whether her mother was with her for the duration of her visits at the Dhillon home;

• Whether she was able to actually recall that the porn web site the accused showed her was called Porn Hub;

• Her evidence respecting the accuracy of the number of times and manner in which the accused touched her breasts and vagina and whether she was inconsistent about what parts of her body he touched;

• The fact that she had claimed to have seen the accused at her school twice, knew that it was not true and the reasons why she had made this up;

• Why she had added into her evidence at the preliminary inquiry that there was a time when the accused touched her in the basement and began moaning, a detail that was not in her police statement;

• That she disliked the accused because her father disliked him;

• That is was unlikely that the accused would have touched her as she alleged on the basement couch, which she agreed was very close to the stairs and would have been visible to anyone going downstairs;

• That she had made up her evidence about the accused’s wife giving her mother pills when she knew that it was not true;

• The inconsistency between her evidence-in-chief that her mother was not there when the accused asked to have sex with her and her evidence at the preliminary inquiry that her mother had been in the back yard when this happened and that the accused locked the door in the basement room;

• That her mother was upset and depressed about the accused’s 2017 move to Caledon and whether it had occurred to her that her mother was having a relationship with the accused;

• That in her statement, she had had never mentioned to police that the accused had grabbed her breasts.

c) The defence evidence

[24] In addition to challenging the complainant’s evidence through cross-examination, the defence adduced evidence from the accused, his wife and the complainant’s mother, much of which conflicted with various aspects of the complainant’s evidence.

The relationships between the accused, his wife and T.G.

[25] The accused testified that he met the complainant’s mother, T.G., in 2006 when he and his wife worked at a factory where T.G. also worked. He said that they began a secret, sexual relationship in 2007 and that it continued until 2017. He said that in October 2016, he and his wife put their home on the market and that it did not sell for some time. Ultimately, it sold. He said that the complainant’s mother, T.G., learned that he was moving in May 2017 and was angry with him. He said that he decided to break off their relationship because she was bothering him with too many calls and that he was not able to see her.

[26] The accused provided lengthy, detailed evidence about his phone communication with T.G. over 2016 and 2017. The defence tendered as an exhibit the phone records between T.G.’s cell and home phone and the accused’s cell phone.

[27] Mr. Dhillon’s wife, Amarjit Dhillon, testified that she and T.G., had a close friendship and that they spoke on the phone almost every day. She said that A.G. also came to visit their home.

[28] T.G. also testified that she was friends with Mr. Dhillon and his wife, Amarjit Dhillon. She described the three of them as close and said that she trusted them. She denied ever being involved in a sexual relationship with the accused. She also said that her daughter never asked her about whether such a relationship existed or not.

The alleged request for a kiss on the lips

[29] Mr. Dhillon testified that he met the complainant at his house four to five times between 2007 and 2017. He was never asked whether he had ever been at her home. Nor was his wife or T.G.

[30] Mr. Dhillon testified that he never attempted to have the complainant kiss him on the lips. T.G. had no recollection of her daughter ever telling her that Mr. Dhillon asked her to kiss him on the lips. Under cross-examination, she agreed that A.G. had told her that Mr. Dhillon had told her to kiss him, but said nothing about doing so on the lips. At that at the time, A.G. had been 8 or 9 and she did not think there was anything improper about it.

[31] Under re-examination, I permitted T.G. to be cross-examined by the defence about a prior inconsistent statement respecting whether her daughter had told her about a kiss with Mr. Dhillon. She agreed that her daughter had never told her anything about it and said that it had been her son who reminded her about the kiss before she gave her initial statement to the police.

The alleged Canadian Tire incident

[32] In respect of the Canadian Tire incident, the accused testified that the incident the complainant described never happened. He denied ever inviting her to touch his penis.

[33] T.G., the complainant’s mother, was asked about taking her daughter to this Canadian Tire and agreed that she had done so on occasion. She testified that her daughter always stayed with her. Even when A.G. wanted to look at toys, T.G. said that she would stand and watch her daughter.

[34] T.G. recalled no occasion on which she had been at Canadian Tire with A.G. and seen the accused.

Evidence of opportunity at the Dhillon home

[35] Mr. Dhillon testified about each of the four to five occasions on which he met the complainant. He recalled his family hosting a function in 2009 where there were about 20 families present, or around 40 people, including the complainant and her mother. The complainant would have been 6 or 7 years old. He said he had been busy with his guests that day and had not been alone with the complainant.

[36] Amarjit Dhillon did not recall the date when A.G. first visited their home but said that after they bought it in 2009, they had a housewarming prayer in July, and that the complainant had come with her mother. She described there as having been 40 to 50 people of all ages in the home.

[37] The next time the accused said he saw A.G. was at the time of his son’s eighteenth birthday celebration, which was in late August 2016, when A.G. was 13 years old. He said that A.G. and her mother came to their home twice over two days. Again, he denied being alone with her in the basement.

[38] Ms. Dhillon confirmed A.G.’s presence, with her mother and grandmother, at the birthday party. The complainant testified that nothing inappropriate happened with the accused over the birthday weekend.

[39] Mr. Dhillon said that there were two other times when A.G. came to his home. On the first, shortly after the birthday, they all remained in the main floor living room. On the next occasion, the whole family sat together, possibly in the basement. He was unable to say when those occasions had been. He was never alone with A.G. in the basement.

[40] While Mr. Dhillon agreed under cross-examination that he really did not know A.G. from these interactions and that she was not important to him, he has testified to having a clear memory about each occasion on which he had seen her.

[41] Amarjit Dhillon was also asked how many additional visits A.G. had made to their home beyond for the larger gatherings. Her evidence was that there were three to four additional visits and a total of five to six visits between 2010 and 2017. She said that T.G. brought her daughter when there was no one at home to watch her.

[42] Ms. Dhillon testified that A.G. always came with her mother and sometimes was also accompanied by her grandmother. The complainant’s mother, T.G. came more frequently on her own, about four to five times a year, usually on weekends. Ms. Dhillon testified that during these visits, they would sit in the living room, chat and drink tea. Sometimes they went to the basement where the television was. She said that they never left the home and that A.G. was never left alone. She also said that the complainant was never in the basement alone with her husband.

[43] T.G. was also asked about the number of times she visited the Dhillon home. She testified that she did not clearly recall the number of visits but that she had sometimes gone a couple of times a month and sometimes gone every second month. Sometimes three months went by without a visit.

[44] T.G. was asked about the number of times she took A.G., to the Dhillon home and said in-chief that she had done so three to four times between 2010 and 2017. She testified that she never left her daughter at the home with Mr. Dhillon. She also said that her daughter was always with her.

[45] Under cross-examination by the Crown, T.G. agreed that it was routine to take A.G. to the Dhillon’s home and that she did so quite a few times, expanding her evidence in chief and agreeing that she had done so two, three or four times a year. She also agreed that sometimes she and Amarjit Dhillon spent time outside while A.G. watched television in the basement and that sometimes A.G. would be gone to the basement for 10 to 15 minutes. T.G. said that sometimes Mr. Dhillon would put the television on for A.G. in the basement, but would then return back upstairs.

[46] Mr. Dhillon denied ever spending time in the basement with the complainant. He denied ever taking her shirt off or removing her bra or taking a photograph of her bare breasts. He denied touching her breasts.

[47] He also denied ever touching the complainant’s vagina or inviting her to have sexual intercourse with him.

[48] Mr. Dhillon denied ever showing her pornography on his son’s computer. While his son had a computer, he said he never had the password and that her had never seen the website Porn Hub.

[49] Mr. Dhillon denied ever having gone to the complainant’s school. He also denied ever having called her family’s home to speak to her.

[50] In order to demonstrate that the accused’s window of opportunity to spend time alone in the basement with A.G. was limited, Mr. Dhillon testified about the times he was out of the country over the years 2010 through 2017. He also testified about renovations done in their home, resulting in he and his family having lived in the basement for a period of 2015. In addition, he testified about the various friends and relatives that stayed in the home, in a basement bedroom next to the area where the couch and television were, over the years. Ms. Dhillon’s evidence about the various guests and visitors was similar to her husband’s, confirming his limited opportunity to be alone there with A.G..

Evidence respecting Amarjit Dhillon’s medical assistance to T.G.

[51] T.G. testified that she had a heart condition and that in 2010, she had to have a stent put in. As a result of her condition, she took medications. T.G. said that Amarjit Dhillon never administered any medications to her, but that Ms. Dhillon sometimes checked what her doctor had prescribed and occasionally brought her Tylenol and other herbal pills.

[52] Ms. Dhillon testified that she was a nurse and that she and T.G. regularly talked about T.G.’s health situation over the phone. She never assisted T.G. with medications, although she did accompany her to her cardiologist appointments a couple of times and assisted her in changing physicians so that she had a Punjabi speaking doctor. Ms. Dhillon had given T.G.’s mother one B12 injection.

T.G.’s evidence respecting calls to the accused

[53] T.G. was asked how frequently she called the accused over the years 2016 to 2017 and said she did not know, although she agreed that it was more than 50 times in 2016. Ultimately, I permitted the defence to cross-examine her under s. 9(2) of the Canada Evidence Act respecting the number of calls she made. She had said at the preliminary inquiry that she called “a few times” over the period from 2010 to 2017. I understood her evidence under cross-examination to be that a few could mean 10 -15 and could mean 100. She denied lying at the preliminary inquiry in an attempt to minimize the number of calls.

Evidence about the police informing the accused and his wife about the allegations

[54] Mr. Dhillon testified that in October 2017, after his brother passed away, he went to India, where he stayed until February 2018. While there, his wife called and told him of the allegations made by A.G. When his wife asked him how these allegations came about, he revealed to her, for the first time, that he had been involved in a relationship with A.G.’s mother. Mr. Dhillon told his wife that his affair explain why A.G. had made up allegations against him.

[55] Ms. Dhillon also testified about what happened when she learned about A.G.’s allegations. She said that while her husband was in India, Officer Reid called her looking for him. On learning about the allegations, she asked her husband why this had happened, given that she did not think A.G. had been at their home very frequently and had never been there alone. Mr. Dhillon told her about his relationship with A.G.’s mother.

[56] Ms. Dhillon agreed under cross-examination that she had discussed A.G.’s allegations many times and tried to analyse the situation with her husband. She agreed that she knew the details of the allegations, that her husband had provided her with a copy of the Crown disclosure and that she had assisted him in understanding the allegations by translating them for him.

Applicable Legal Principles

[57] Mr. Dhillon, like all people charged with a criminal offence in this country, is presumed innocent. The burden of proof is on the Crown. It is for the Crown to prove beyond a reasonable doubt that Mr. Dhillon is guilty of the offences charged. There is no onus on the accused to prove anything.

[58] The standard of proof beyond a reasonable doubt is an exacting one. It is more than probable or likely guilt. Indeed, proof beyond a reasonable doubt falls much closer to absolute certainty than it does to proof on a balance of probabilities. Ultimately, I may find the accused guilty only if I am sure that he committed the offences alleged.

[59] The complainant and accused have both testified about interactions between them over the time frame in the indictment. Their versions of events are very different. I have also heard the evidence of Amarjit Dhillon and the complainant’s mother. My function is not to choose between their stories and decide which version of events I prefer. Rather, the evidence as a whole is to be considered in determining whether the Crown has proven any or all of the charges beyond a reasonable doubt. That turns, really, on an assessment of the credibility and reliability of the evidence of all of the witnesses.

[60] Credibility and reliability are different concepts. Credibility relates to sincerity and whether a witness believes those things about which he or she testifies. Reliability relates to whether what the witness has said is accurate.

[61] I am mindful of the need to avoid any assumptions and stereotypes as to how victims of sexual assault should or do behave: R. v. A.R.J.D., 2018 SCC 6; R. v. A.B.A., 2019 ONCA 124, [2019] O.J. No. 833. It is important not to make credibility findings on the basis of my own understanding of “common sense and logic” as this may mask improper reliance on prejudicial generalizations. Further, it is important to remember that there is no rule on how or when a person who has been sexually assaulted will complain about what occurred. There are many reasons why complainants often delay reporting. In assessing the credibility of a complaint of sexual assault, therefore, timing of her complaint is simply one circumstance to consider: R. v. D.D., 2000 SCC 43 at para. 65.

[62] While demeanour evidence may be a factor in assessing the credibility of a witness, care must be placed on the reliance of this evidence: R. v. W.H., 2013 SCC 22 at para. 41; R. v. N.S., 2012 SCC 72 at para. 22. It is important that undue weight not be given to demeanour because of its “fallibility as a predictor of the accuracy of a witness’s testimony”: R. v. Hemsworth, 2016 ONCA 85 at para. 44.

[63] When an adult witness, such as the complainant A.G., testifies about events that occurred when she was a child, her credibility is to be assessed according to the criteria applicable to adult witnesses. But, the presence of inconsistencies on peripheral matters like time and location must be assessed in the context of her age at the time of the events that she is describing: R. v. M.(A.), 2014 ONCA 769 at paras. 11.

[64] The law recognizes that one of the most effective means of assessing a witness’s credibility is to consider consistency between what the witness said when testifying and what that witness has said on other occasions: R. v. G.(M.), 1994 8733 (ON CA), [1994] O.J. No. 2086 at para. 23; leave to appeal refused, [1994] S.C.C.A. 390. However, it must be recognized that inconsistencies vary in their nature and importance. Some are about material issues and some are peripheral. Where an inconsistency is about a material event about which an honest witness is unlikely to be mistaken, that inconsistency may be indicative of “a carelessness in the truth about which the trier of fact should be concerned”: R. v. M.(A.), at para 13.

[65] The accused in this case has testified and denied each of the allegations made against him by the complainant. Accordingly, the important principles set out by the Supreme Court of Canada in R. v. W(D), 1991 93 (SCC), [1991] 1 S.C.R. 742 are applicable. If I believe the evidence of the accused, I must acquit. If I do not believe the testimony of the accused but am left with a reasonable doubt by it, I must acquit. Even if I am not left with a reasonable doubt by the evidence of the accused, I must ask whether, on the basis of the evidence that I do accept, I am persuaded beyond a reasonable doubt of the accused’s guilt. Furthermore, if after careful consideration of all of the evidence, I am unable to decide whom to believe, I must acquit: R. v. H.(C.W.) (1991), 1991 3956 (BC CA), 68 C.C.C. (3d) 146 (B.C.C.A.).

Analysis

[66] I will summarize my findings respecting the credibility and reliability of the witnesses.

Credibility of the defence witnesses

[67] Three witnesses testified for the defence.

[68] I found that the accused testified in a manner that was clear and straight-forward. He offered a denial of all of the allegations made by the complainant. The Crown suggests that his evidence was “colourless” and that he provided little beyond a bare denial.

[69] I do not think that is a fair way to characterize his evidence. About the specific incidents such as the request for a kiss on the lips and the Canadian Tire incident, he denied that they ever occurred. In respect of the incidents alleged to have taken place in his home, his evidence as a whole suggested that there was little, if any, real opportunity for things to have occurred as the complainant alleges because she was never in the house alone with him. Overall, I found there was no clear basis to disbelieve the accused’s evidence.

[70] I did find the fact that the accused seemed to have a very clear memory of the precise number of times A.G. was in his home somewhat surprising and not particularly believable. On his account, he saw the complainant in his home on only five occasions, three of which were for events when there were large groups of people in the home. He did not have a clear recollection of the other two occasions, but was adamant that there were only two. It seemed to me unlikely that he would have made as careful a mental note of her presence as he purported to have. I would allow that there could have been further occasions on which A.G. was in the home with her mother that he does not recall.

[71] The evidence of Mr. Dhillon’s wife, Amarjit Dhillon must be assessed carefully and critically as she has, in my view, been tainted by the fact that she is extremely familiar with the disclosure, having read and translated the Crown brief for her husband and discussed the allegations with him. The facts that she is obviously interested in supporting and defending her husband, and that she knows what the complainant and her mother have said, and was in a position to testify in a manner that opposed what she knew was the complainant’s evidence, causes me to have doubts about her credibility and reliability. I view her evidence with real caution.

[72] For instance, I have concerns about the reliability of Ms. Dhillon’s very clear recollection that T.G., whom she agreed was in her home four to five times a year between 2010 and 2017 (or a total of around 28 to 35 times) only brought her daughter A.G. a total of five or six times. It seems to me unlikely that she would have kept track of A.G.’s visits with this level of precision and accuracy, given the frequency of T.G.’s visits over the time and the closeness of their friendship.

[73] In respect of T.G., it is clear to me that her memory of events is either poor or selective. Her evidence about the number of phone calls between her and the accused over 2016 and 2017 demonstrated this. Similarly, she was reluctant to estimate the number of times she went to the Dhillon home. Her evidence about the number of times she took her daughter with her varied considerably between her examination in chief (where she said three to four times) and her cross-examination (where she said between two and four times a year, which would be between 14 and 28 times). Again, I have concerns about relying on her evidence.

[74] There are, however, aspects of the evidence of these three defence witnesses that are consistent and reliable. They all agree that on no occasion that AG. was in the home did her mother and Amarjit Dhillon leave. They also agree that the accused was never left alone in the home with A.G. They also agree that there were occasions when A.G watched television in the home in the basement. According to the accused and Ms. Dhillon, this could only have been when the group of them was in the basement, as there was never a time when A.G. was in the basement with the accused. T.G. allowed that her daughter had been in the basement alone, and that the accused had put the television on for her and then returned upstairs.

[75] The accused and Ms. Dhillon were also consistent about the frequency of other people visiting in the home, including staying there in the basement as guests. I have no basis to doubt this.

The complainant’s credibility

[76] In many respects I found the evidence of the complainant to be compelling. She testified in-chief in a manner that was persuasive and described in what I thought was appropriate detail a number of incidents that occurred between her and the accused beginning when she quite young. I did not think she embellished the allegations she made. It is not surprising that there are some details that she is unable to recall, given her age and the passage of time.

[77] The complainant was cross-examined at length. This cross-examination included asking her about many details that I found to be irrelevant to assessing her credibility. By way of example, she was asked many questions about the time of day of the Canadian Tire incident. Initially, when asked under cross-examination what time of day this trip had been, she said it was morning or afternoon, and that she thought it was the middle of the day. It was suggested to her that her evidence was different from at the preliminary inquiry when she had said that they had either gone in the morning or really late and that it wasn’t the middle of the day. She clarified that it had been during the day when the sun was out. Her police statement was then put to her, in which she had said that the trip was “afternoon-ish”, which she agreed was true. While the defence position is that the complainant was trying to shape her evidence so as to have the incident at a time when the parking lot was less busy, my review of her evidence did not lead me to believe that she had contrived it for that purpose. Rather, she seemed to me genuinely unsure about the time of day when the incident occurred. This makes sense as the time of day is not a detail that would have had any significance to her at the time, especially given that fact that she was only 9.

[78] Similarly, I find it unsurprising that the complainant cannot say, with certainty, how long certain things took during the Canadian Tire incident. One would hardly suspect she could account with precision how long it took to walk to the accused’s vehicle or how long it took to walk back. Again, these are details that would have been largely irrelevant for her to retain and recall, particularly given her age.

[79] It is also unsurprising that there are details about which her evidence has been inconsistent as between her police statement, her testimony at the preliminary inquiry and her evidence at trial. For a number of these, she was able to explain and account for the differences, a factor that enhanced her credibility.

The alleged affair as a motive to fabricate

[80] While most of the focus of my reasons will be on the credibility and reliability of the various witnesses, part of the defence theory relates to an alleged long-term sexual relationship, or affair, said to have occurred between the accused and T.G., the complainant’s mother. The evidence respecting this affair came from the accused and was said by the defence to be confirmed by the phone records between him and T.G.

[81] Significantly, T.G., who was called as a witness by the defence, denied the existence of such a relationship, A.G. testified that she had no knowledge of it either. The defence invites me to reject the evidence of the complainant and her mother on this point. As I understand that defence position, it is that the complainant may have fabricated her allegations against the accused because she was angry at him for some aspect of this alleged affair, likely because he hurt her mother when he terminated it, or possibly because of her close relationship with her father.

[82] The parties take different positions on the importance of this issue. The defence says that I need to decide whether or not there was such an affair and whether the complainant was aware of it as that could be relevant to whether she had a motive to fabricate her allegations. Similarly, the defence says if I find T.G. incredible respecting her denial of the affair, this may cause me to reject other aspects of the evidence that do not assist the defence. The Crown says that the issue is collateral to the issues I have to decide.

[83] The evidence of Mr. Dhillon and T.G. about the alleged relationship between them is irreconcilable and stands in stark contrast. I accept that the telephone records suggest that there was more phone contact between them in 2016 and 2017 than T.G. appeared to want to acknowledge or explain. But, I have concluded that I cannot and need not decide whether or not Mr. Dhillon and T.G. had a romantic or sexual relationship.

[84] In my view, this issue is relevant only if the complainant was aware of the existence of a relationship, and if there is some possibility that she fabricated her allegations because of it.

[85] I watched and listened closely when the complainant was asked whether it had occurred to her that her mother was having a relationship with Mr. Dhillon. While the defence suggests that she was “flippant”, I did not have that perception of her responses at all. I thought her answer revealed that she genuinely never thought that they had been together. When it was suggested to her that her mother had been upset about Mr. Dhillon’s move to Caledon and depressed because of it, her response was that she wasn’t sad and that it would be “stupid” for her mother to have become depressed when her friend only moved 25 minutes away. This made sense and suggested to me that she viewed the defence position as silly, a view I find to be reasonable in the circumstances as she understood them to be. I thought her responses were genuine and logical and I believed her.

[86] It is my view that, whatever the relationship was between Mr. Dhillon and T.G., all the complainant knew was that they were friends. She thought nothing of his move to Caledon. She did not know her mother to be depressed by anything in relation to Mr. Dhillon. As a result, I cannot conclude that she had any motive to fabricate her allegations because of anything related to an alleged relationship. She simply did not know about it, if it existed.

[87] I am likewise uninclined to find that T.G. is incredible because she lied about the alleged affair. In my view, her evidence was much more helpful to the accused than it was to her daughter. As I have said, however, I found her memory generally selective.

The complainant’s evidence about being afraid that the accused would kill her mother

[88] I accept that Amarjit Dhillon did not administer pills to T.G.. A.G. testified that she was fearful that the accused would have his wife do something to her mother’s medication if she did not permit him to touch her vagina. While Amarjit Dhillon was a nurse, and seems to have been fairly involved in assisting T.G. with her medical issues and appointments following the insertion of her heart stent, it seems clear that she was not responsible for injections or the administration of pills to T.G. I find that A.G. was mistaken about this, a mistake that seems unsurprising given her age and the fact that Amarjit Dhillon was a nurse who took an active role in her mother’s health. The fact that it is unlikely that the accused could have ever carried through on this threat does not cause me to have any doubts about whether such a threat might have been made, or whether, if it was made, it could have influenced the young complainant’s compliance with the accused’s demands.

Concerning aspects of the Crown’s evidence

[89] There are, however, two aspects of the evidence that cause me to have significant concerns about the reliability of the complainant’s evidence generally. The first relates to the Canadian Tire incident. The second relates to the evidence of opportunity in the Dhillon home.

[90] The evidence respecting the Canadian Tire incident raises for me concerns about the complainant’s evidence in respect of those allegations and as a whole. This evidence presents the following difficulties:

• First, the complainant’s mother testified that she never let her daughter wander alone in the store such that she could have just run into Mr. Dhillon in another aisle, as she described. This made sense given A.G. was only 9 at the time. This makes the whole background to the alleged incident unlikely;

• Second, the complainant’s evidence was inconsistent with respect to whether she told her mother that she would be back before she left with the accused. In chief, she said that she told the accused that her mother would not miss her if they went for the chocolate quickly. Under cross-examination, she said that she had actually told her mother that she would be back, but did not say where she was going, or that she was with the accused, and that her mother had not asked where she was going. This evidence is troubling both because of the inconsistency as to whether she told her mother and because I find it unlikely that, had the 9 year old complainant advised her mother she was leaving, and not said where, why or with whom, that her mother would have said nothing at all. Given her age, her mother would surely have asked where and why she was leaving, had the complainant told her that she was. While the complainant could have forgotten or been confused about discussions she and her mother had, she did not say so, and testified in a manner that suggested she had a good recall of them. I cannot accept her evidence about what was said between her and her mother;

• Third, I find it somewhat implausible that this incident could have taken place as the complainant alleges. There are just too many coincidences and improbabilities. On her account, it had been more than a year since she had seen the accused. She then happened to run into Mr. Dhillon, without her mother knowing, and did not tell her mother. On the evidence, he would not have anticipated this unexpected run-in. Yet, on the complainant’s evidence, he spontaneously asked her to go to his SUV on the pretext of giving her chocolate, apparently with a quickly formulated plan to sexually assault her. She agreed to go with this person, whom she would barely have known at the time, on her own evidence. Not knowing that any of this would occur, the accused happened to have parked at the far end of the Canadian Tire lot, a more secluded spot that presumably facilitated him committing a sexual assault. Yet, of course, it is reasonable to expect that there would still have been some foot traffic of other shoppers in the lot, making it an unlikely location for this sort of sexual assault. Once in the car, having no idea what the complainant would do or how she would react, he pulled down his pants, exposing his penis to her and to anyone else walking by. He then took her hand and put it on his penis. Then, when she left, he followed her into the store and told her mother he had given her chocolate. I find it very unlikely that an incident would have ever unfolded in this manner;

• Fourth, the accused denied ever having met the complainant at a Canadian Tire store;

• Fifth, it is significant that the complainant’s mother has no memory of ever seeing the accused at Canadian Tire when she was there with her daughter. While I appreciate that there might have been nothing remarkable about the incident from her perspective, it seems to me that had A.G. disappeared as she described, even for a few minutes, and then had her mother learned that she had been with Mr. Dhillon for chocolate, this is an incident about which she would have some recollection. She had none.

[91] The evidence leaves me with real doubt as to whether the Canadian Tire incident the complainant described ever happened. I do not accept her account of what happened. It just did not make sense. Moreover, I have no good reason to doubt the reliability of the accused and T.G.’s testimony that they had no encounter at Canadian Tire in which this could have happened. Accordingly, I find the accused not guilty on counts 4 through 6.

[92] The evidence respecting this incident leads me to have concerns about the reliability of the complainant more generally and hesitations about accepting it.

[93] The second troubling aspect of the Crown’s case relates to the evidence of opportunity for the alleged sexual assaults at the Dhillon home.

[94] On the complainant’s evidence, while she was not at the Dhillon household with great frequency, she was there in the range of eight times a year. I accept that there may have been more than the three or four visits by A.G. to the Dhillon home, in addition to the parties, described by the accused and his wife. Indeed, the complainant’s mother, under cross-examination confirmed this possibility. I also accept that the complainant was likely in the basement of the Dhillon home and watched television there. However, even if she was there, there are aspects of her evidence that are just not credible when viewed in light of the rest of the evidence:

• The complainant suggested that there were multiple times when she was alone in the basement with the accused while her mother and Amarjit Dhillon were either upstairs or in the back yard or away from the home. The rest of the evidence is that they never left the home and that A.G. was never in the house alone with the accused. This is important as it greatly diminishes the evidence of opportunity. More specifically, for instance, it causes me to have doubts about the incident in which the complainant alleges she was in the home alone with the accused and he showed her porn on his son’s computer on the main floor. I also have doubts about the incident she described in which her mother and Amarjit were out and the accused had a condom and told her he wanted to have sex. I accept the defence position that there were no occasions when A.G. was in the home alone with the accused. The effect of this is to greatly reduce the opportunities for the incidents she described to have occurred and further undermining the reliability of her recollections and evidence;

• The evidence of opportunity is also significantly diminished by the fact that there were many times when there were other people in the Dhillon home and in close proximity to the location where most of the incidents were alleged on the sofa in the basement. For instance, their son lived in the home while he studied at Ryerson University and had a bedroom on the main floor up until 2018. He was around. The accused’s nephew lived in the basement of their home from April 2011 to September 2013 while he studied at Humber College and would have been close to the sofa and television. Similarly, Ms. Dhillon’s parents lived in the basement from May to October 2014. Various international students stayed with the family over the time period, also in the basement. While I cannot say that the presence of these people precluded the accused ever having had the opportunity to sexually abuse the complainant as she described, in my view their presence greatly decreases the likelihood that he did so as she described;

• The evidence of the accused, his wife and T.G. all points to there being no time, or extremely short and limited opportunities when the complainant could have been alone in the basement with the accused. At most, T.G. allowed that the accused turned the television on for her and came back upstairs. It did not seem to me that she thought this happened with anything close to the frequency of the complainant’s recollection.

[95] There are other less significant, but troubling aspects of the complainant’s evidence. I am concerned that she has previously said that she saw the accused at her school, something she now agrees is not true. Her explanation for having said this when it was not true did not satisfy me that it was an innocuous mistake. I am concerned that in her police statement she never mentioned the accused touching her breast, but said this for the first time at the preliminary inquiry. I am concerned that if A.G. had been at the Dhillon’s home as often as she suggests, she would have seen their son, on at least some of those occasions, or would have been aware of such visitors as Amarjit Dhillon’s parents, who stayed there for six months. She was not. While each of these is a small point, together, they contribute to my view that her evidence is not reliable.

[96] Having considered the totality of the evidence of the incidents described by the complainant, including the concerns I have about her credibility and the genuine limitations on the accused’s opportunity to have committed the offences as alleged, I conclude that it is possible for them to have occurred. Indeed, I accept that the accused may have sexually abused and threatened A.G. in the manners that she described in his home as alleged in counts 7 through 12. I also find it is more than possible that he asked her for the kiss on the lips she described and as is alleged in counts 1 through 3.

[97] However, the test to be applied on a criminal trial is not whether the offences possibly, or even likely occurred. It is whether the Crown has proven that they occurred beyond a reasonable doubt. This is a high standard.

[98] As I have indicated, the Canadian Tire evidence causes me to have doubts about the reliability of the complainant’s evidence in respect of that incident and more generally.

[99] The accused has testified and denied all of the allegations. He was not effectively challenged on any of the material aspects of his evidence when cross-examined by the Crown. Indeed, most of his denials of any impropriety with the complainant were left unchallenged. His evidence respecting very limited opportunity is largely confirmed by his wife as each puts A.G. in their home on so few occasions, and never at a time when her mother was not in the immediate vicinity.

[100] On the totality of the evidence, I have real doubts as to whether the accused had the opportunities the complainant described to commit the offences the complainant alleges. To the extent that he had opportunity, I am not persuaded beyond a reasonable doubt on her evidence that he did what she alleges. Moreover, while I do not accept his evidence in its entirety, in combination with the rest of the evidence, it leaves me with a reasonable doubt about each of the allegations.

Conclusion

[101] On the basis of my findings, the accused must be acquitted on all counts.

Woollcombe J.

Released: January 28, 2021

COURT FILE NO.: CR-19-1407

DATE: 2021 01 28

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

KULWANT DHILLON

REASONS FOR JUDGMENT

Woollcombe J.

Released: January 28, 2021