COURT FILE NO.: 20-070

DATE: 20211027

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

G.W.

Katherine Spensieri, for the Crown

Leo Kinahan, for G.W.

HEARD: September 20, 21, 22, 23, 2021

CHRISTIE J.

OVERVIEW

[1] G.W., the accused, and DkM., the complainant, are related through marriage. G.W.’s wife is the sister of DkM’s paternal grandmother. G.W. was referred to as an uncle to the complainant throughout these proceedings.

[2] Two sexually inappropriate events were alleged by DkM. Specifically, she claimed that, sometime in 2017, when she was 9 or 10 years old, G.W. verbally invited her to touch his penis. Further, in October 2017, when she was 10 years old, she claimed that G.W. touched her on the breast and tried to force her hand down his pants onto his penis. DkM provided a statement to police in August 2018 and G.W. was subsequently arrested and charged as follows:

That between the 1^st day of January in the year 2017 and the 30^th day of November in the year 2017, both dates inclusive, at the Town of New Tecumseth in the said Region, he did, for a sexual purpose, invite [DkM], a person under the age of sixteen years, to touch directly with a part of her body, the body of G.W. contrary to the Criminal Code of Canada;

That between the 1^st day of January in the year 2017 and the 30^th day of November in the year 2017, both dates inclusive, at the Town of New Tecumseth in the said Region, he did, for a sexual purpose, touch [DkM], a person under the age of sixteen years, directly with a part of his body, contrary to the Criminal Code of Canada;

That between the 1^st day of January in the year 2017 and the 30^th day of November in the year 2017, both dates inclusive, at the Town of New Tecumseth in the said Region, he did, sexually assault [DkM], contrary to the Criminal Code of Canada;

[3] This trial was conducted without a jury.

[4] The only real issue to decide in this case was whether the Crown had proven beyond a reasonable doubt that the events as described by the complainant did in fact occur.

FACTS

[5] There were three witnesses called by the Crown:

a. D/C Susan Stone – the officer-in-charge

b. DkM – the complainant

c. DsM – the complainant’s brother

[6] The relevant parts of the evidence of D/C Stone provide some context and can be briefly summarized. This decision, however, requires a careful and thorough review of the evidence of the complainant and the complainant’s brother, as credibility and reliability are the central issues in this case.

Testimony of D/C Susan Stone

[7] On August 16, 2018, at approximately 1:00 p.m., D/C Susan Stone received a phone call from Det. Sgt. Stuart who advised of a sexual assault investigation. The person reporting the alleged events was Michelle Kerry, worker with the Children’s Aid Society in Alliston. D/C Stone spoke to Ms. Kerry, who provided “bare” details of the allegations, and named the potential suspect as G.W.

[8] D/C Stone contacted the paternal grandmother of the involved child complainant, as this was where the complainant was believed to be living at the time, to arrange for the child to come in to give a statement.

[9] The complainant, DkM, attended at the Nottawasaga OPP Station at 4:00 p.m. that day, August 16, 2018, with her paternal grandmother, as well as Ms. Kerry from the Society. DkM was interviewed on video from approximately 5:13 p.m. to 5:52 p.m.

[10] The following day, August 17, 2018, DsM, the complainant’s brother, attended the Nottawasaga OPP station with his paternal grandmother and was interviewed. His interview commenced at approximately 9:15 a.m. and lasted approximately 15 minutes.

[11] G.W. was arrested on August 21, 2018.

[12] On August 23, 2018, D/C Stone received an email from the paternal grandmother (with a time of 3:45 a.m., but not received by D/C Stone until noon), advising that DkM and DsM had run away to the home of T.S., who was the children’s father’s girlfriend (or ex-girlfriend) at the time.

[13] In cross-examination, D/C Stone agreed that there was turmoil in the complainant’s family at the time of this reporting that did not involve G.W. Specifically, the complainant’s father was under investigation, which had just commenced a few days earlier, and the children were interviewed. Further, the complainant’s father’s girlfriend’s daughter, B, was being investigated for allegedly being involved in a relationship with DsM, the complainant’s brother, who was many years younger than B. Two Agreed Statements of Fact were admitted as Exhibits at this trial (Exhibits 1 and 2). Both related to previous contact the complainant and her brother had with the police and the Society. It was agreed that the following contact occurred:

a. August 11, 2018 – PC Brown briefly spoke to individuals present at a location, including DsM, during an investigation of an entirely unrelated matter that did not involve G.W.;

b. August 12, 2018 – a CAS worker spoke with DsM and DkM at the police station about an unrelated matter;

c. August 12, 2018 – the OPP interviewed DsM in connection with allegations concerning a matter that had allegedly taken place in the preceding months which did not concern G.W.;

d. August 13, 2018 – the OPP interviewed DkM in connection with allegations concerning a matter that had allegedly taken place in the preceding months which did not concern G.W.;

e. August 14, 2018, a CAS worker attended at the OPP station with DsM. DsM was interviewed by police with respect to an unrelated matter.

It was agreed that neither DkM nor DsM said anything about sexual impropriety on the part of G.W. during any of these discussions.

Testimony of DkM

[14] Pursuant to s. 715.1, and on consent, the statement DkM made to police on August 16, 2018 was admitted for the truth of its content and formed part of her testimony. The video statement was played for this court and the video and transcript were entered as Exhibits 3A and 3B.

[15] At the time of her testimony, DkM was 14 years old, having just celebrated her birthday two weeks prior. She was in grade 9.

[16] DkM described two separate incidents involving G.W., one that allegedly occurred in her bedroom at her grandparent’s house, and the other that occurred sometime earlier in the bathroom at G.W.’s house. As for the timing of the alleged incidents, DkM indicated in her statement to police that the bedroom incident occurred in October 2017. When this was suggested to her as the time frame in examination-in-chief, she stated, “I think so yeah”. When asked about the timing of the bathroom incident, and specifically whether it happened in the same year, she stated, “I think so”. She confirmed that it happened in a different month. She thought the season was fall.

[17] The complainant confirmed that, at the time of these incidents, she was living between her grandparents’ house and her father’s girlfriend’s house (T.S.’s house) which were walking distance apart. She stated that her brother and her grandparents lived in her grandparents’ house, as well as sometimes she and her father. As to who lived in T.S.’s house, she stated that it was T.S. and her daughter, B. DkM stated that she spent time in both places and there was no specific arrangement. She clarified that her father mostly stayed at T.S.’s house. The complainant had her own room at her grandparents’ house, but sometimes would sleep with her father.

[18] As for bedrooms at her grandparents’ house, all four bedrooms were on the upper level. A diagram of the upper level of the home, as prepared by DkM during the preliminary hearing, was marked as Exhibit 4 in this trial. This diagram also depicted how she claimed she was lying on the bed and where G.W. sat when he came into her room (marked with an X). She also explained that the staircase was located between the bathroom and her brother’s room. There was only one bathroom in the house, which was on this upper level.

[19] DkM was unsure when her father started dating T.S. In fact, when specifically asked on the first day of her testimony, she was not even sure if he started dating her before or after the events in 2017. The complainant also did not recall when her father started staying at T.S.’s house. On the second day of her testimony, DkM stated that she met T.S. prior to October 2017, but did not know when she first met her. As for when the relationship between her father and T.S. ended, she said it was sometime in August 2018. When asked how she felt about that, she said that she moved in with her aunt around that time, that it did not really “bug” her, and that she did not really care. She confirmed that she continued living between the home of T.S. and her grandparents until the breakup in August 2018.

[20] When asked how often she would see G.W. before the alleged incidents occurred, she stated, “I’m not too sure”. When asked how often she would see him in a one-year period, she said, “Maybe a couple times a month, I don’t know”. As for where she would see G.W., she explained that it would occur if her father went over to G.W.’s shop, or also during events, like birthdays or Christmas. She stated that they were never close. When asked whether she felt comfortable around him before everything happened, she stated, “I don’t even know”. DkM stated that G.W. consumed alcohol when she was present and that she had seen him intoxicated prior to October 2017. She did not remember whether his behaviour changed when he was intoxicated.

[21] DkM was asked about her observation of the relationship between G.W. and her grandmother in 2017, to which she replied, “I don’t know”. She also did not know how often they would see each other. As for her father’s relationship with G.W in 2017, she stated that her father worked on G.W.’s vehicles in G.W.’s shop and “that’s about it, I think”.

[22] In her video statement, DkM described the alleged sexual impropriety in the bedroom of her grandparents’ home as follows:

….he came over one day and he told grandma he had to go to the bathroom. So he’d go to the bathroom and then he’d come into my room one time and I don’t remember what he said, but then he touched me.

When asked how he touched her, the complainant moved her right arm around her upper torso. She continued:

And then I pushed his hand away and then he forced my hand down his pants and I pulled back away…

In her statement, she recalled that this was in October as her “papa” had gone hunting. She also recalled that this was around 2:30 p.m. and that she was wearing pyjamas. She stated that G.W. touched her under her clothes. As for specifically where he touched her, she confirmed that he touched her left breast with one finger. She was not sure which hand he used. She stated that he tried to force her left hand down his pants, but her hand did not actually go into his pants. She said that he was facing her at the time and that he pulled his shorts out with one of his hands. She forced her hand away and he left. When asked if she said anything, she responded

I told him to stop everything.

When asked if she recalled anything unique about that day, she stated that “he drank a lot of beer that day” at the kitchen table with her grandmother. After the events in the bedroom occurred, DkM stated that G.W. went downstairs and she quickly ran down the hall and told her brother what happened. She did not know if she gave her brother any details. She then went downstairs, pulled a chair up, and sat right next to her grandmother in order to feel safe. According to DkM, her brother told their father and his ex-girlfriend a couple of months prior to her statement to police.

[23] At trial, DkM was asked to describe the circumstances around the bedroom incident. DkM stated that G.W. had arrived the day of the incident, but she did not know when he arrived. G.W. had been to the house before, but she was not sure if he had ever stayed over night in 2017. She did not know who was in the house the night before. She did not know when she last saw G.W. prior to that date. She did not know whether G.W. had visited the house the day before. She stated that her initial observations of G.W. that day were that he was downstairs in the kitchen. It was just DkM, her brother and her grandmother at home. G.W. was at the table with her grandmother and she remembered that they were drinking. She did not know the time when she made these observations, but it was light out. When asked what she was doing, she said that she was upstairs in her room. When asked if G.W. appeared intoxicated when she first saw him, she said “I don’t know”. When asked whether she said anything to him before anything happened, she said “No, I was in my room, I didn’t go downstairs”. When asked how she saw him at the table, she said “I don’t know”. She was then asked whether she saw him at the table after the events occurred to which she said “yes”. She described him as 4-5 on a scale of intoxication – 0 being sober and 10 being falling over drunk. She did not know how long he stayed at the house that day. She did not know if he slept over. She did not see him leave. She was asked whether she saw him or talked to him in any other part of the house to which she stated, “Yes…when I went down to the kitchen…like at the table”. Then when asked whether she talked to him, she said “I don’t remember if I did or if I didn’t”. As for assessing her grandmother’s intoxication, she said, “I’m not sure… I didn’t really pay attention to my grandma that much”.

[24] DkM was asked specifically about the events that she had described occurring in her bedroom. She stated that when G.W. entered the room, she was watching YouTube on her iPad. She was not sure if she had left her room that day prior to this occurring. She thought that her brother was in his room. In cross-examination, she agreed that she would have heard G.W. coming up the “creaky” stairs and that he would have walked past DsM’s open door to get to her room. Initially when G.W. came into her room, she did not think anything bad. Her door was open. After entering her room, she claimed that G.W. sat down on the bed. She was lying on her back. He was sitting on the bed, facing her on the left side. He then placed his hand on her left breast. She did not know how long his hand was there but responded “probably seconds” as opposed to minutes. As to how he got under her pyjamas, she stated that she was wearing two-piece pyjamas and he put his hand in her shirt through the bottom opening. She did not know what he was doing with his other hand. She did not remember what he was saying. When asked if he was talking, she said, “I think he was talking”. She did not know what she said to him. When asked if she did anything at that moment, she said, “I forget”. When asked what she was thinking and feeling, she said “probably scared”. She confirmed that she pushed his hand away and he then tried to force her hand down his pants. When asked what hand it was, she said “I think it was my right”. As for his grip, she described that he was cupping her wrist area and that it was not strong and did not hurt. He grabbed her with his left hand. She did not think that he said anything when he grabbed her hand and brought it toward his pants. She stated that it was “like a minute” between touching her breast to grabbing her hand, but then stated that it was more immediately after.

[25] DkM was asked whether G.W. was wearing a belt to which she stated, “I think so yeah”. She did not remember the state of his belt or whether he did anything with his belt when he sat on the bed. Her best memory at the trial of what G.W. was wearing on his bottom half was that he was wearing long pants.

[26] As for G.W.’s facial expression, DkM stated that, “he stared at me like really hard”. As to where she was looking, she said “everywhere”. She stated that G.W. was sitting upright in the middle of the side of her bed when this occurred but turned a little bit to the left. The left part of his body was facing her.

[27] When asked if she smelled any alcohol, she said “I don’t know…I don’t think I was focused on the smell of anything”. She stated that he did appear intoxicated and that she thought this because she knew he was downstairs drinking because she could hear him and her grandmother talking and “them two probably wouldn’t just talk without drinking”.

[28] She stated that when he grabbed her hand and pulled it toward his pants, she did not think he said anything and that “I think I pulled my hand back and said stop or something”. She did not remember how many times she said stop.

[29] She estimated that G.W. was in her room for two minutes. After that, she thought that G.W. went downstairs because she heard the stairs “creak”. She waited until the creaking stopped and then went to her brother’s room. Her brother’s door was open. When asked to describe her emotional state at the time, she stated, “I don’t know…I just didn’t think that would happen”. She did not remember what her brother was doing but he was in his room, in his bed, wearing daytime clothes. She sat on his bed and told him. When asked what she said, she responded, “All I said was ‘he touched me’.” She said that DsM did not believe her at first, that he “kinda rolled his eyes”, and said, “no he didn’t”. She said that she was not sure if they talked anymore about what had happened. When asked whether she described the events to her brother in any other way, she said, “No, I didn’t describe any of it” and that she did not say anything else to her brother about the events at that time. She said she was probably in her brother’s room for two minutes. On the second day of testifying, she stated that she said to her brother, “Uncle [G] touched me”. When asked why she went to her brother’s room, she said that she had always been close with him and he was the first person she would tell everything.

[30] According to DkM, G.W. then remained downstairs. After leaving her brother’s room, she stated that she went back to her room, grabbed her iPad and then went to her grandmother’s room. There was no one in there. She did not stay there long and then went downstairs where she remained for about 20 minutes. She was sitting beside her grandmother in the kitchen. When asked whether she talked to G.W., she stated, “I don’t think so”. She said that she went downstairs because she did not know if he was going to come upstairs or not. After leaving the kitchen, she went back to her grandmother’s room.

[31] DkM did not recall when G.W. left or whether he spent the night. She did not remember whether she saw him or interacted with him at any other point that day.

[32] According to DkM, she did not talk to her brother about these events again until her brother told T.S. and their father.

[33] Later in her video statement, the complainant described an earlier event that had occurred in G.W.’s bathroom in the same year:

It was still winter out and um, I was at his house and he came inside to help me set up the TV…But he was going to the washroom and called me in.

And um, then I kind of stepped back and I said, from the door, I said, “Yeah”. And then he’s like, “Come in. Come in.” And I’m like, “I think I’m good here.” And he’s like, “Come in now.” And I’m like, I kind of like tilted my head so I couldn’t see anything. And then he’s like, “You can touch it if you want.” And then I kind of ran outside.

According to DkM in her police statement, at the time G.W. said this, he was in front of the toilet urinating and she could see his penis. She stated that this occurred at 4:00 p.m. She stated that after doing this, G.W. set up the TV. Her father was in the garage at the time, but she did not tell her father. In fact, DkM stated that she did not tell anyone about this incident until three days prior to her police statement when she told T.S.

[34] At trial, DkM was asked further details about the bathroom incident at G.W.’s house. She confirmed that it happened prior to the bedroom incident. DkM recognized a diagram that she had drawn of the bathroom at the preliminary hearing. This was marked as Exhibit 5 at the trial. She testified that it was accurate. She confirmed that the letter “G” was to represent where G.W. was standing and the “scribble” next to the hallway represented the door.

[35] DkM stated that she went to G.W.’s house that day with her father. Her father and G.W. were working on her father’s truck. It was just the complainant, her father, and G.W. at the house that day. She was not sure how far the TV room was from the bathroom. She did not remember what time they arrived. She also did not know how long they were there in total or when they left.

[36] In cross-examination, she stated that she had been in the shop before. She agreed it was a big building and that there was a bathroom in the shop.

[37] DkM explained that, when they arrived, she went inside because she was going to watch TV. She then went outside to ask her father to fix the television. She then returned inside until G.W. came in. She was not sure what G.W. was wearing. DkM testified that after showing her how to work the TV, G.W. went to the bathroom. He then called her to the bathroom, but she did not recall what he said. At that moment, she did not know why he was calling her to the bathroom. When she went there, she saw him urinating and saw his penis. When asked what she felt when she saw that, she said, “I don’t know”. She agreed that the lights were off in the bathroom, but she could see because it was daytime and there was a window. When he told her to come in, he was still in the same place. His exact words were, “You can touch it if you want”. When he said this, she was standing where the letter “D” was depicted in Exhibit 5 – at the doorway. When asked if he was still urinating, she said, “I don’t think so”. He was facing the toilet. She walked in and kept tilting her head back. When asked why she walked in, she said, “I don’t know”. She said that she was “weirded out”. He only made the comment about “touching it” the one time.

[38] DkM testified that, after this occurred, she ran outside to her father. She did not say anything to her father, as she said that he tended to overreact to a lot of things. When asked what she believed would happen if she told her father, she said “I’m not really sure”. During the rest of the visit, DkM remained outside. Eventually they went home but she did not remember how long they stayed after this occurred.

[39] She did not tell anyone about this at the time. When asked whether she told anyone prior to police, she stated, “I think it was only when my brother, my dad and [T]… when my brother told them that other time”. She did not really know how that conversation started. The conversation was at T.S.’s house in the kitchen. It was her understanding that her brother told her father and T.S. about the bedroom incident. She did recall speaking to her father and T.S. that day but did not remember what she said. She stated that she told them about both incidents. She said her father was angry. According to DkM, DsM was present during the discussion which lasted about 10 minutes. She did not remember when the discussion was, but said it was just a few days before going to the police station on August 16, 2018. When asked if she spoke to any of them about it any further before going to the police station, she said “No, I don’t think so”. She did not know whose idea it was to go to the police station. When asked why she spoke to her father and T.S. on the day that she did, she said, “I didn’t really have a choice, they kind of already knew….They approached me”. As to what happened after the conversation or whether life just continued, she said “I am not sure”. She did not know what everyone was doing before this discussion, but believed she was probably on her iPad or playing PlayStation. After the discussion, she thought T.S. and her father went to the garage and her brother went upstairs.

[40] When asked why she decided to tell the police on August 16, 2018, she stated, “I don’t know”. She thought her grandmother had brought her to the station. She did not know how the arrangements were made.

[41] The complainant confirmed that she did go to T.S.’s again after reporting to the police. She was asked when that was to which she stated, “I don’t know, but we still would go see her afterwards…she was still around.”

[42] The complainant was asked whether she spoke to her father about this after telling police. She said, “A little bit, but my brother and I went up to Sauble Beach with my aunt and grandma…. Dad and [T] broke up… then I moved in with my aunt”. DkM did not know the date that her father and T.S. broke up but stated that it was the night of the Potato Fest in Alliston, as T.S.’s daughter, B, told her brother. She estimated that she and her brother went to live with her aunt about a week or two after this all came out. She then lived there for several years. She and her brother no longer live there together.

[43] When asked whether she ever spoke to her grandparents about the events after reporting to police, she stated, “I am not sure”. As to whether she ever spoke to her great grandparents about the events, she said “kind of”. She did not know when that occurred.

[44] The complainant was asked whether there was any reason she did not tell adults or police closer to the time these events occurred. She stated, “No. I just didn’t tell anybody”. She explained, “My dad overreacts…he would make a big deal….”.

[45] In cross-examination, DkM agreed that she had been in the police station a few days prior to attending to give her statement to police in relation to these events on August 16, 2018. She agreed that this earlier attendance at the police station had nothing to do with G.W.; in fact, it was in relation to her father being charged with something. When it was suggested to her that she never said anything about G.W. having done anything to her when she spoke to police on this earlier occasion, she responded, “I don’t think so”.

[46] DkM admitted in cross-examination that T.S. helped her remember that the bedroom incident happened in October 2017. She said, “[T] narrowed it down...” When asked what else T.S. helped her with, she said “I’m not sure”. When it was suggested that T.S. might have helped with other details, she said, “No” and that T.S. did not help with anything other than the season or month. It was suggested that T.S. tried to help her remember the timing of the incident in the bathroom, to which she responded, “I don’t know”. When it was suggested she might have tried to help with the timing of that incident, her answer was “maybe.” In re-examination, she was asked when T.S. helped with this memory of the timing of the bedroom incident, and she stated that it was during the conversation in the kitchen referred to earlier. She did not remember the details of this portion of the conversation. She thought DsM was present during this portion of the talk. She clarified that she did not remember T.S. assisting her with any other details, despite her earlier saying “maybe”.

[47] Also in cross-examination, it was suggested to DkM that at the time she went and spoke to police about this, B was being investigated by the police and CAS about her relationship with DsM, the complainant’s brother. She said “I guess”. DkM agreed that, after the interview with police on August 16, 2018, she and her brother were not permitted to reside at T.S.’s house, and that they returned to their grandparents. However, she also agreed that in the days following the interview with police, she and her brother ran away from their grandparents’ home, back to T.S.’s house. She agreed that CAS removed them from T.S.’s house.

Testimony of DsM

[48] The police statement provided by DsM on August 17, 2018 was admitted, on consent, pursuant to s. 715.1. The DVD and transcript of the statement were marked as Exhibits 6A and 6B. In that statement, DsM stated, in part, as follows:

Well I was in my room which is just down the hall from her room…

…she came running in my room and crying. And, uh, I was like what’s wrong? And she’s like Uncle [G] touched me. I was like touched you, how? And then she pointed to things and, uh… she…she just told me everything that happened. He… He t--… he sexually assaulted her.

…and then I saw him jump into bed with my grandma, then my grandma got out of bed and then went downstairs.

DsM explained to police that this happened “last October”, which would have been 2017, and that he knew that because his grandfather was hunting. DsM explained that this occurred “in the morning” at “seven, eight or nine…” He did not recall what her exact words were but explained that, as DkM told him this, she pointed, with both hands, to her chest and private area. He understood that it had just happened. DsM explained to police that G.W. had stopped by the evening before, had a few drinks and had slept over on the couch. DsM stated that eventually he told T.S.’s daughter, B. B then told her mother, T.S., who then told their father.

[49] By the time of trial, DsM was 16 years old, in grade 11, living with his aunt. He described his relationship with his sister, DkM, as a good relationship and that they “get along for the most part”. Their mother passed away in August 2017.

[50] In 2017, he lived with his grandparents, however, in 2018, about 4-5 months prior to the police interview, he, his sister, and his father moved into T.S.’s house, his father’s girlfriend’s house. Living at the home of T.S. were also her daughter, B, and her son, J. After moving there, they lived at T.S.’s house for the most part but there were times they went back to their grandparents. He was not sure when his father started dating T.S. or when he first met T.S., however, DsM confirmed that when DkM came into his bedroom upset in October 2017, he had not yet met T.S. He agreed that he and DkM met T.S. together.

[51] Before October 2017, DsM stated that he would see G.W. more than his sister would, but it was “not all that often”. It would be when his father would take him to G.W.’s residence. He explained that DkM would not typically go with them to G.W.’s house, rather it would usually just be him and his father. In 2017 and 2018, up to the time of his police statement, he estimated that he would see G.W. approximately once or twice a month, but stated that it was “hard to put a number on it”. He would also see G.W. at family events and at the home of his great grandparents and grandparents. He recalled attending at G.W.’s residence in the summer of 2018 and stated that there was a pool in the backyard. In cross-examination, DsM agreed that there was a working bathroom in the shop, that he had used that bathroom, and that when people were in the shop, they typically used that bathroom.

[52] G.W. had consumed alcohol in his presence and he had seen G.W. intoxicated. He did not notice much change in his behaviour when intoxicated, other than he would get a bit louder.

[53] Around 2017, his relationship with G.W. was good. He did not think there was much of a relationship between G.W. and DkM, as they did not see each other much. He knew that his grandmother also got along with G.W. As for his father, he said that his father liked G.W. and that they had a good relationship.

[54] As for the events in October 2017, DsM confirmed that G.W. had arrived the night before - around 5:00 or 6:00 p.m. He saw him when he arrived. At home in his grandparents’ house were DsM, his grandmother and his sister, DkM. He was not sure if G.W. was sober or intoxicated when he arrived. G.W. had been to his grandparents’ home before, however he was not sure if he had ever slept over. He did speak to G.W. that night, which he described as normal conversation in the kitchen. He observed him to be intoxicated later on in the night and described his level of intoxication as a 5-6 on the same scale mentioned previously. He described his grandmother as a level 3-4. For most of the evening, G.W. was in the kitchen with his grandmother. DsM was back and forth between the kitchen and his room. He stated that DkM was doing the same, as in she was back and forth between the kitchen, her room, and “maybe” his room.

[55] DsM did not remember what time he went to bed that night but knew that he slept in his room. DkM slept in her room. He did not know when DkM went to bed that night. He did not know when G.W. or his grandmother went to bed, but it was after he went to sleep. He did not know where everyone was when he went to bed. He stated that usually when someone came over, they slept on the couch, so he assumed G.W. slept on the couch, although he did not observe him there.

[56] The next morning, it was still just the four of them at the house. He had not exited his room prior to DkM coming in. His door was closed when DkM entered. When she left, the door remained open. Prior to entering the room, DkM was in her room. Their grandmother was in her room. He did not know where G.W. was in the house.

[57] At that time in his life, he testified that he would normally wake up around 8 a.m. and DkM would wake up about the same time. DsM confirmed that if someone came up the stairs or walked into his sister’s room, he could not see that if he was lying on his pillow. In cross-examination, he agreed that the stairs were “creaky”, and he would be able to hear someone coming up the stairs.

[58] When DkM came into his room, he was awake lying on his bed on his back with his head on the pillow. He was watching TV or on his phone. He did not remember hearing any “creaking” before DkM came into his room. He did not know what DkM was wearing. When asked to describe her emotional state, he said “She was crying”. When she opened the door and entered the room, he said “I just saw her crying, so I asked her what was up and then she told me about everything that had happened.” When asked whether DkM said “he touched me” or “Uncle [G] touched me”, he responded that she said “Uncle G”. When asked whether those were her exact words, he said “It’s hard to say, but I know…I know she said ‘Uncle [G] touched me’. I know for a fact she said ‘Uncle [G] touched me’. Yes. Those were her exact words.” According to DsM, she said that right away after she entered. When asked whether that was all she said about that on that day, he said “Yes”, however, when asked whether she said anything else to him in the room about that incident or any details, he said “Yes…she did say um where he touched her”. The following exchange occurred in examination-in-chief:

Q: She said where?

A: And pointed where

He confirmed that she pointed to her chest and private area. When asked specifically whether she said where he touched her or just pointed, he said, “I don’t really remember”. When asked whether she said anything else, he said “Not that I remember no”. DsM clarified in re-examination that DkM gestured to certain areas on her body but did not say in words where he touched her.

[59] When asked what he was thinking as DkM was reporting this to him, he said he was a little bit in disbelief, a little bit in shock, and quite angry. When asked whether he said anything to DkM that he did not say to police, he said “Not that I remember no”.

[60] It was suggested to him that he told the police that this event had happened 10 seconds before she came in and he was asked how he knew that. He responded, “I don’t know if it was exactly 10 seconds but I know it was right before she had come to my room….I know that because she told me.” When asked what she said, he said, “She said that Uncle [G] had just touched her.”

[61] DsM said that he did not do anything after she told him. She was in his room “maybe two minutes”. When she was leaving, he said that she was still crying. While in the room for two minutes, he said, “I was asking if she was ok. She said ‘yes’ and that was about it.” He believed that she returned to her room. When asked how he knew that, he said “I saw her leaving my room and the stairs creak at my grandma’s house so I would have known if she went downstairs, but I did not hear that so I was pretty sure that she had gone to her room.” He did not see DkM in her room.

[62] Right after DkM left his room, DsM said that he was walking to the bathroom, which was closer to DkM’s room, and he walked by G.W. who was walking into his grandmother’s bedroom. DsM stated that his grandmother’s door was open. DsM did not think he made eye contact with G.W. when he walked past him. He knew they did not talk. He did not recall what G.W. was wearing. He did not see his grandmother when he was walking to the bathroom. He was in the bathroom for a minute or two. On his way back from the bathroom, he saw that G.W. was in bed with his grandmother and his grandmother was getting out of the bed.

[63] DsM went back into his room after returning from the bathroom. His grandmother went downstairs and made breakfast. DsM then went down for breakfast. This was about 5-10 minutes after DkM left his room. G.W. was still in his grandmother’s bed when DsM went downstairs. He believed that DkM remained in her room. G.W. came downstairs after DsM went downstairs. In cross-examination, DsM confirmed that it did cause him concern that G.W. and DkM were both upstairs. He said that he did not do anything as there was nothing he could do about it. He said, “I was young. I was scared. I didn’t know what to do.” DsM, his grandmother, and G.W. had breakfast together. No one was consuming alcohol at breakfast. DkM remained upstairs in her room. After breakfast, G.W. left and DsM went back upstairs. He did not see DkM, although, he believed that she went back to sleep for an hour and half or two hours. DsM never saw DkM in their grandmother’s bedroom.

[64] After that day, prior to his police statement, DsM saw G.W. in the same way he would see him before, such as at his house and at his grandparents’ house.

[65] DsM confirmed that he did not say anything to adults in his life after DkM told him. When asked why, he said, “I didn’t think it was my place to tell…I thought I would be in a lot of trouble if I said something.” When asked who he would receive trouble from, he said “From the family”. He thought there would be a lot of yelling and screaming.

[66] DsM stated that he and DkM never talked about this event after that day in the bedroom. He never told his grandparents, his father, or T.S. DsM confirmed that the first person he told was B, T.S.’s daughter. He stated that he told B on Canada Day 2018. When asked why that day stuck out in his head, he said, “Because we were at a cottage, my cousin’s cottage… um… for that weekend and I just thought the time was right….that I should finally tell someone…and I knew I would be okay knowing it wasn’t family”. He said, “…I would have told someone that I knew really well and I trusted….that’s why I felt ok….I wanted to tell someone….I didn’t have a person to tell.” In October 2017, DsM had not met B. In cross-examination, he agreed that the cousin he referred to as being at their cottage was G.W.’s daughter.

[67] Around the beginning of August 2018, DsM did have a discussion about this with his father and T.S. He found out that B had told her mother and her mother told his father and this led to the conversation. He stated that the discussion was in the garage at T.S.’s house. He stated that present for this discussion were him, his father, and T.S. He explained that when DkM joined the discussion, he was not there any longer. When asked what he told his father and T.S, he said he did not tell them anything, as they knew already through B, but they wanted to speak to him about it because they knew he knew and he just told them, “Yeah that’s what happened.” DkM was not there when he was speaking to his father and T.S. DsM then went inside. His father and T.S. remained in the garage. He did not see DkM. In cross-examination, he agreed that it felt good to get this off his mind. It was suggested to him that when he spoke to the police about his father and his relationship with B in the days prior to his police statement on this matter, he did not say anything about G.W. He said, “I don’t remember”. The Agreed Statement of Facts, Exhibits 1 and 2, were then put to him, outlining his contact with police and CAS. He explained that he was scared because he had a “family that was all about their name….if you hurt the family name, that’s not good. You get in trouble for that.”

[68] DsM did not have any other discussions with T.S. or his father before giving his police statement on August 17, 2018. As for attending at the police station that day, he did not remember how he got to the station but said that it was either T.S. or his grandmother and believed it was his grandmother.

[69] His father and T.S. broke up in August 2018, before he gave his statement to police. He said he was sad about it at the time. When he gave his interview to police, he was living at his grandparents’ house. Around that time, CAS was involved with the family. He stated that after the police interview, the living arrangements changed and he started living with his aunt, who he still lives with. He moved in with his aunt August 25 or 26, 2018. In cross-examination, DsM agreed that he moved out of T.S.’s house because CAS did not want him living there. He agreed that the reason for this position from CAS was because B, T.S.’s daughter, was under investigation from CAS and police because of a relationship she was having with him and ultimately she was charged. Also in cross-examination, DsM agreed that within days of giving his police statement, he and his sister ran away from their grandparents’ home in the middle of the night back to T.S.’s home. It was suggested to DsM that CAS came and apprehended them from T.S.’s to which he disagreed. When asked how they got back to their grandparents, he said they did not go back to their grandparents’ house after that night, rather CAS allowed them to stay at T.S.’s that night and the next day they went to their aunt’s. He said that CAS never ordered them to leave T.S.’s or removed them from T.S.’s He then eventually agreed that it was the CAS that took them to their aunt’s. He stated that CAS found out they were at T.S’s house the night they ran there because T.S. called them.

[70] After providing his statement, but before leaving his grandparents’ house, DsM did speak to his grandparents about what happened. He did not know what day it was but said it was in August, probably a few days after the statement. His great grandparents (grandmothers’ parents) were there as well. The conversation was at the kitchen table at his grandparents’ house. Present were DsM, DkM, their grandparents, and great grandparents. Everyone was present for the whole conversation. He said, “…everyone was trying to tell my sister that nothing had happened to her…the exact words were ‘he just put his arm around you’.” DsM stated that they were mad at him for saying something and hurting the family name. Mostly it was his grandmother and his great grandmother saying these things. As a result of this conversation, DsM said that he felt sad that they did not believe his sister and was kind of mad at himself for not saying something sooner because maybe something could have been done about it. DsM said it was a very quick conversation. He did not recall any conversations after that day.

[71] In cross-examination, DsM agreed that, around the time of his police statement in this matter, B was under investigation and got charged due to an allegation that they were involved in some kind of a relationship. DsM claimed, however, that he told B about what DkM had reported to him long before there was any investigation of her. He told her in July and the investigation into B was in August.

ANALYSIS

General

[72] The obligation to prove guilt rests with the Crown. To prove guilt of an offence, Crown counsel must prove each and every essential element of the offence beyond a reasonable doubt.

[73] In the present case, involving a charge of invitation to sexual touching, the Crown must prove beyond a reasonable doubt:

(1) That DkM was under sixteen years old at the time;

(2) That G.W. invited DkM to touch G.W.’s body; and

(3) That the touching that G.W. invited was for a sexual purpose.

[74] It is agreed that DkM was under the age of sixteen at the relevant time, in fact, she was only 14 years old when she testified. Therefore, the first element is proven beyond a reasonable doubt.

[75] As for the required invitation, this element can be proven by G.W. requesting, suggesting, or asking DkM, either in words, by gestures, or both, that something be done. Further, the conduct that G.W. invites DkM to do must be to touch the body of a person, in this case the body of G.W. The proposed touching must involve intentional physical contact with any part of a person’s body. The contact can be direct or indirect. Force is not required but an accidental touching is not enough. It does not matter whether DkM agreed to touch or actually touched G.W. All that is required for this essential element is that G.W. invited DkM to touch him. It is alleged that in the bathroom, while he was standing in front of the toilet with his penis out, G.W. said to DkM, “You can touch it if you want”. There is no question that this would be an invitation to touch G.W.’s body. Further, with respect to the described incident in the bedroom, it is alleged that G.W. took DkM’s hand and tried to force her hand down his pants in the direction of his penis. Again, there is no question that this gesture would amount to an invitation to touch the body of G.W.

[76] As for whether the touching that G.W. invited was for a sexual purpose, this element is proven if the touching invited was done for sexual gratification, or for the purpose of violating DkM’s sexual integrity, including any act meant to degrade or demean DkM in a sexual way. To decide the purpose of the touching that G.W. invited, the court can consider all of the circumstances surrounding it, including what G.W. said and did. The court must also take into account the part of the body that G.W. invited DkM to touch, the nature of the contact in which G.W. invited DkM to participate, and any words or gestures that accompanied the invitation. In these circumstances, there is no question that both of these acts would satisfy this essential element. If true, on both occasions, G.W. was clearly and unequivocally inviting DkM to touch his penis.

[77] To determine whether this offence has been proven beyond a reasonable doubt, the only real question is whether the actions in fact took place. If the actions occurred, then this offence would most certainly be proven beyond a reasonable doubt.

[78] With respect to sexual interference, the Crown must prove beyond a reasonable doubt:

(1) That DkM was under sixteen years old at the time;

(2) That G.W. touched DkM; and

(3) That the touching was for a sexual purpose.

[79] This charge only applies to the alleged events in the bedroom. It is alleged that G.W. touched the breast of DkM with his finger. As stated above, there is no question that DkM was under the age of 16 years, as she was still under the age of 16 years at the time of her testimony. If the events as described by DkM are accepted, there is no question that G.W. touched DkM. Touching involves intentional physical contact with any part of the complainant’s body. The contact may be direct or indirect. Force is not required but an accidental touching is not enough. It does not matter whether the complainant agreed to the touching. There is no suggestion in this case that the touching was accidental. It was alleged that G.W. came into DkM’s room, put his hand under her top, and touched her breast with his finger. Clearly this is a touching. As for the touching being for a sexual purpose, the same considerations apply as those for invitation to sexual touching above. Considering that the touching involved G.W.’s finger on DkM’s breast in the manner described, this element would clearly be established.

[80] To determine whether this offence has been proven beyond a reasonable doubt, the only real question is whether the actions in fact took place. If the actions occurred, then this offence would most certainly be proven beyond a reasonable doubt.

[81] Finally, as for the offence of sexual assault, the Crown must prove beyond a reasonable doubt:

(1) That G.W. intentionally applied force to DkM.; and

(2) That the force that G.W. intentionally applied took place in circumstances of a sexual nature.

[82] This charge only applies to the alleged events in the bedroom.

[83] Given the age of the complainant at the time of these described incidents, between 9 and 10 years of age, there can be no consideration of consent.

[84] The application of force may be direct or indirect. The force applied may be violent or gentle and includes any physical contact with another person, even a gentle touch. To be an assault, however, the force must be applied intentionally. An accidental touching is not an intentional application of force. The word intentionally refers to G.W.’s state of mind when he applied the force. Intentionally means on purpose, not by accident. To decide whether the force was intentional, the court must consider all of the circumstances, including the nature of the contact and any words or gestures, along with anything else that indicates G.W.’s attitude or state of mind at the time. As for circumstances of a sexual nature, this will be the case where the sexual integrity of the complainant is violated, including any act that is meant to degrade or demean the complainant for G.W.’s sexual pleasure. An intentional touching takes places in circumstances of a sexual nature if the court is satisfied, beyond a reasonable doubt, that the sexual context of the touching would be apparent to any reasonable person who saw it. All of the circumstances must be considered, including the part of the body touched, the nature of the contact, the situation in which it occurred, and any words or gestures that accompanied the conduct. It is alleged that G.W. came into DkM’s room, put his hand under her top, and touched her bare breast with his finger. Clearly, this would amount to G.W. intentionally applying force to DkM. There is no suggestion that this application of force was accidental. As for the intentional application of force being in circumstances of a sexual nature, the totality of the circumstances make this clear. Considering that the touching involved G.W.’s finger on DkM’s breast in the manner described, this element would clearly be established.

[85] To determine whether this offence has been proven beyond a reasonable doubt, the only real question is whether the actions in fact took place. If the actions occurred, then this offence would most certainly be proven beyond a reasonable doubt.

Assessment of Credibility and Reliability of Witnesses - Generally

[86] As in most cases, the final determination in this case requires an assessment of the credibility and reliability of the witnesses.

[87] In assessing the credibility of witnesses in this case, the court must consider, among other things, their power of observation, memory, the passage of time, any bias, partiality, or interest in the outcome, and demeanour as they testified. With respect to demeanour, “triers of fact are entitled to consider demeanour, as long as it is not given undue consideration.” See: R. v. Ahmaddy, 2018 ONCA 496, para. 6. The court must consider the reasonableness of the evidence. Further, the court must consider inconsistencies within the evidence at trial, as well as inconsistencies between the evidence at trial, and previous statements to police or previous testimony. In R. v. Williams, 2018 ONCA 138, MacPherson J.A. for the court stated as follows:

[33]…In my view, a good summary of the relevant principles relating to the assessment of a witness’ credibility is contained in R. v. A.M., 2014 ONCA 769 at paras. 12-14:

… [O]ne of the most valuable means of assessing witness credibility is to examine the consistency between what the witness said in the witness box and what she said on other occasions, whether or not under oath: R. v. G.(M.) (1994), 93 C.C.C. (3d) (Ont. C.A.), at p. 354, leave to appeal to S.C.C. refused, [1994] S.C.C.A. No. 390. Inconsistencies may emerge in a witness’ testimony at trial, or between their trial testimony and statements previously given. Inconsistencies may also emerge from things said differently at different times, or from omitting to refer to certain events at one time while referring to them on other occasions.

Inconsistencies vary in their nature and importance. Some are minor, others are not. Some concern material issues, others peripheral subjects. Where an inconsistency involves something material about which an honest witness is unlikely to be mistaken, the inconsistency may demonstrate a carelessness with the truth about which the trier of fact should be concerned: G. (M.), at p. 354.

[88] In R. v. R.C., 2021 ONCA 419, the Court of Appeal recently stated:

[37] Trial judges are not required to address every inconsistency in the evidence of a witness. They are however obliged to explain how they resolve major inconsistencies. Inconsistencies about which an honest witness is unlikely to be mistaken can demonstrate a “carelessness about the truth” while inconsistencies about peripheral issues are of less significance: R. v. G. (M.) (1994), 1994 CanLII 8733 (ON CA), 93 C.C.C. (3d) 347 (Ont. C.A.), at p. 354; see also R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788, at paras. 30-31.

[89] Credibility is ultimately a question of fact to be determined by the trial judge having considered the totality of the evidence.

[90] In considering the reliability of the evidence, the court must consider the accuracy of perception and memory, and factors that may have affected that, such as ability to observe. Even the evidence of an honest witness may be of questionable reliability.

[91] Reasonable doubt applies to the issues of credibility and reliability. On any given point, this court may believe a witness, disbelieve a witness, or not be able to decide. This court need not fully believe or disbelieve one witness or a group of witnesses. The Court may accept some, none or all of what a witness says, and accord different weight to different parts of the evidence that it does accept: See: R. v. D.A.I., 2012 SCC 5, [2012] 1 S.C.R. 149, at para. 72; R. v. Howe (2005), 2005 CanLII 253 (ON CA), 192 C.C.C. (3d) 480 (Ont. C.A.), at para. 44.

[92] When making assessments of credibility, the court must constantly and consistently keep in mind that people react differently. In R. v. A.R.J.D., 2018 SCC 6, the Supreme Court of Canada dismissed an appeal, substantially for the reasons of the majority of the Alberta Court of Appeal. In those reasons, the Court of Appeal had a great deal to say about avoiding stereotypical thinking. In R. v. A.R.J.D., 2017 ABCA 237, 2017 A.J. No. 746 (C.A.), the Court stated in part as follows:

[42] … it has long been recognized that there is "no inviolable rule on how people who are the victims of trauma like a sexual assault will behave": R v D(D) at para 65. Just like the failure to make a timely complaint, a failure to demonstrate avoidant behaviour or a change in behaviour "must not be the subject of any presumptive adverse inference based upon now rejected stereotypical assumptions of how persons (particularly children) react to acts of sexual abuse" [emphasis in original]: R v D(D) at para 63.

[44] Stereotypicality is never a legitimate anchor on which to tie crucial credibility assessments in the context of sexual assaults. And, counter-stereotypicality must never translate to less credibility.

[45] Moreover, although it is trite that reasonable doubt leading to an acquittal can rest on an “absence of evidence”, the absence of evidence found here—no evidence of avoidance or change in behaviour—appears to be based solely on the trial judge’s impermissible reliance on his own unmet expectation, rather than on a clearly articulated and full assessment of the complainant’s police statement or trial testimony. In the result, the trial judge misdirected himself by basing his credibility assessment of the complainant not on a proper evidentiary foundation, but on inappropriate judicial stereotyping…

[57] “Assumptions about complainants and their behaviours in particular circumstances have plagued the law of sexual assault for generations . . . There was a time when it was often assumed that a complainant . . . would report the assault immediately, and would thereafter not associate with the perpetrator. In recent years many of the stereotypes . . . have been set aside”: R v Caesar, 2015 NWTCA 4 at para 6; see also R v Hajar, 2016 ABCA 222, R v Barton, 2017 ABCA 216. To the extent that such stereotypes or myths are relied upon in assessing a complainant’s credibility, an error of law will result, mandating a new trial: R v Wagar, 2015 ABCA 327.

[58] In other words, absence of avoidant behaviour or a change in behaviour as a generalization is logically irrelevant and as such, cannot form the basis of a credibility assessment leading to reasonable doubt—because we know that all sexual assault victims behave differently. This is all the more so when dealing with child victims who often fail to make early disclosure and may attempt to normalize behaviour for any number of reasons. …

[60] “As has frequently been noted, speculative myths, stereotypes, and generalized assumptions about sexual assault victims . . . have too often in the past hindered the search for truth and imposed harsh and irrelevant burdens on complainants in prosecutions of sexual offences. See Seaboyer, [infra], at p. 634”: R v Mills, [1999] 3 SCR 668 at para 119, 1999 CanLII 637 (SCC). The essence of this dicta is that judges must be hyper-vigilant against the incursion of stereotypical analyses or assumptions into their judicial reasoning, not any less so in cases of sexual assault that rest on the credibility of a child complainant. And to paraphrase one learned author, it would surely add judicial insult to criminal injury to tell a child complainant that their post-victimization behaviour is the sole reason for the abuser’s acquittal…

[93] In R. v. Dadson, 2018 ONSC 4823, Koehnen J. was deciding a case that turned largely on credibility and the evidence of only the complainant. The Court stated:

[71] Drawing an adverse inference against Ms. A because of late reporting would drag this court back into archaic thinking that the Supreme Court of Canada has definitively dismissed as erroneous. As already noted, there are no rules about how victims of a sexual assault are supposed to behave. Some will make an immediate complaint, others will delay, still others will never disclose the assault. There are many reasons for delay including embarrassment, fear, guilt, a lack of understanding, fear of continuing the trauma by being forced to relive it through police investigations or trial, a lack of desire to report because of depression, self-blame or loss of self-esteem: R. v. Seaboyer, 1991 CanLII 76 (SCC), [1991] 2 S.C.R. 577 (S.C.C.) at para. 139; R. v. D. (D.), 2000 SCC 43, [2000] 2 S.C.R. 275 (S.C.C.) at paragraph 65.

[94] Delayed reporting, especially by a child, cannot and must not act to undermine their credibility.

[95] At this trial, there was great emphasis placed on the previous interactions that DkM and DsM had with police and CAS in the days leading up to their police statements in relation to G.W. It was absolutely clear, as demonstrated in the Agreed Statements of Fact, Exhibit 1 and 2, that neither DkM nor DsM reported these events during these earlier opportunities. However, it is the view of this court that this is completely irrelevant. It would appear that this family was in turmoil around that time. Their father and B were both being investigated by the police and CAS and they were being questioned about it. This court is, obviously, not privy to the details of these earlier discussions, however, it is likely that the interviews were focused on the issues at hand, not on G.W. It is to be expected that DkM and DsM would simply answer the questions they were asked, not volunteer information about other matters. Further, both DkM and DsM expressed concern about reporting these events. While it is true that their father and T.S. would have known by this point, reporting the matter to the police is taking it to an entirely different level. Finally, people report events in their own time. There is simply no typical timeline when it comes to such matters. The fact that these events were not reported to authority figures on these earlier occasions is logically irrelevant and does not affect the court’s assessment of the credibility of either witness. The behaviour of DkM and DsM following these events is of no consequence in determining whether in fact these events occurred. People behave and react differently.

Assessment of Credibility and Reliability of Child Witnesses

[96] It must be remembered that DkM was only 9 or 10 years old when she claims these events happened, 10 years old when she made her statement to police, and only 14 years old when testifying at this trial. The other civilian witness, DsM, the complainant’s brother, was only 11 or 12 years old when these events are alleged to have happened, 13 years old at the time of his police statement, and 16 years old at the time of his testimony.

[97] As the Supreme Court of Canada stated in R. v. W. (R.), 1992 CanLII 56 (SCC), [1992] 2 S.C.R. 122, considerations of credibility applicable to adult witnesses should not be applied to children. The Court stated:

[25] The second change in the attitude of the law toward the evidence of children in recent years is a new appreciation that it may be wrong to apply adult tests for credibility to the evidence of children. One finds emerging a new sensitivity to the peculiar perspectives of children. Since children may experience the world differently from adults, it is hardly surprising that details important to adults, like time and place, may be missing from their recollection. Wilson J. recognized this in R. v. B. (G.), 1990 CanLII 7308 (SCC), [1990] 2 S.C.R. 30, 77 C.R. (3d) 347, 56 C.C.C. (3d) 200, 111 N.R. 31, 86 Sask. R. 111, at pp. 54-55 [S.C.R.], when, in referring to submissions regarding the Court of Appeal judge's treatment of the evidence of the complainant, she said that:

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

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

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

[98] This court has kept these principles in mind in assessing the evidence of the young witnesses in this case.

Prior Consistent Statements

[99] Before turning to an assessment of the evidence in this case, there is a need to briefly address the issue of prior consistent statements.

[100] In this case, one of the suggestions made by the defence was that the complainant made up and reported these allegations at a time when there was a lot of turmoil in her family, including a criminal and CAS investigation surrounding her father and his girlfriend’s daughter. There is, of course, no onus on any accused person to prove why someone has come forward with a false allegation. However, given this suggestion of recent fabrication, the Crown introduced, without objection, the evidence of DsM wherein he related to the court that the complainant reported an event to him at the time one of these events was alleged to have occurred in October 2017.

[101] It must be remembered that there are strict limits on the use of such prior consistent statements. In R. v. D.C., 2019 ONCA 442, the Court stated:

[19] Prior consistent statements are presumptively inadmissible. They lack probative value as the repetition of the statement is unrelated to the truth of that statement: R. v. Stirling, 2008 SCC 10, [2008] 1 S.C.R. 272, at para. 5; R. v. Ellard, 2009 SCC 27, [2009] 2 S.C.R. 19, at para. 31. Put differently a falsehood does not become true through repetition. If the statements are tendered for the truth of their contents, they are inadmissible hearsay statements.

[20] Traditionally, prior consistent statements may be admitted to rebut an allegation of recent fabrication, for narrative purposes, or as circumstantial evidence: see R. v. Khan, 2017 ONCA 114, 136 O.R. (3d) 520, at paras. 25-29, per Hourigan J.A. leave to appeal refused, [2017] S.C.C.A. No. 139; R. v. M.A.J., 2015 ONCA 725, 329 C.C.C. (3d) 149, at para. 46. In Khan, at paras. 58-59, Doherty J.A., in his concurring reasons, described a more principled approach to the admission of prior consistent statements based on relevance, materiality, and probative value of the evidence.

[21] Where a prior consistent statement is determined to be admissible under an exception, it is admitted for a limited purpose: Khan, at para. 27. That purpose is determined by the exception it is admitted under. It is important for a jury to understand what use they may make of evidence of prior consistent statements. Generally, if a prior consistent statement is admitted into evidence in a jury trial, the trial judge is obliged to provide the jury with a limiting instruction: M.A.J., at para. 47; Ellard, at para. 42. As Watt J.A. explained in R. v. T.(J.A.), 2012 ONCA 177, 288 C.C.C. (3d) 1, at para. 53, limiting instructions to a jury have three components:

(i) identification of the evidence to which the instruction applies;

(ii) a positive instruction about the use the jury may make of the evidence; and

(iii) a negative instruction on the use the jury must not make of the evidence.

[22] Limiting instructions play an important role in cases involving prior consistent statements given the reasoning dangers associated with these statements, and their limited use. The trier of fact may infer that consistent repetition is evidence of the truthfulness of the statement, and the trier of fact may infer that this repetition corroborates the testimony of the witness. These risks are particularly important to address in jury trials. As the Supreme Court noted in Ellard, “there is a danger that similar prior statements … could appear to be more credible to a jury”, and therefore “must be treated with caution” (emphasis in original): at para. 31. Indeed, the admission of prior consistent statements calls out for a limiting instruction because, as Hourigan J.A. observed in Khan, at para. 35, “[t]he line between the permissible and impermissible uses of prior consistent statements is a fine one”, and that line varies based on the purpose for which the statement is admitted: see also R. v. M.P., 2018 ONCA 608, 363 C.C.C. (3d) 61, at para. 79.

See also: R. v. D.K. 2020 ONCA 79, [2020] O.J. No. 432 (C.A.) at paras. 34-47

[102] Certainly, in the case at bar, DsM’s evidence concerning what DkM told him is not admitted for the truth of its content. However, if believed, it may serve to rebut any suggestion that DkM made up and reported these allegations at a time when police and CAS investigations were already underway in relation to other events. DsM’s observations, if believed, also provide crucial evidence about DkM’s state of mind at a time when the alleged events had supposedly just happened. Further, the utterance helps explain the narrative of the case and how it came before the court, as it was ultimately DsM who told another person who then told an adult. Finally, this evidence also provides context to evaluate the credibility and reliability of the complainant’s in-court testimony, in that immediately after these events are alleged to have occurred, the complainant went and reported something to her brother.

[103] However, the actual comments made by DkM, as reported by DsM, are not considered by this court for the truth of their content. The repetition of this allegation by DkM does not make it more likely to be true.

Assessment of the Evidence in this Case

[104] There were a number of inconsistencies within and between the complainant’s earlier statements to police, as well as inconsistencies between her earlier statements and her testimony. Some of those inconsistencies were as follows:

a. Whether she went to G.W.’s residence often

August 16, 2018 Statement to Police – p. 27

SS: …So – well, let’s go back to Uncle [G]. Have you ever been to Uncle [G]’s house?

DkM: A couple of times but not a lot.

At trial

When asked how often she would see G.W. before the incidents occurred, she stated, “I’m not too sure”. When asked how often she would see him in a one-year period, she said, “maybe a couple times a month, I don’t know”. As for where she would see G.W., she explained that it would occur if her father went over to G.W.’s shop, or events, like birthdays or Christmas.

Agreed Statement of Facts – Exhibit 2

In an Agreed Statement of Facts, entered as Exhibit 2 during this trial, it was agreed that on August 13, 2018 the OPP interviewed the complainant in connection with an event unrelated to G.W. In the course of that interview, she stated as follows:

DkM: We drove up to Uncle [G]’s then

UNRELATED REDACTED

PC Sawden: Do you go to [G]’s often?

DkM: Yah

PC Sawden: Does he have a pool?

Dkm: Yah

DkM agreed that what she told the police on August 13 was different from what she told police on August 16. She said that she probably did not understand because she never went there often.

b. When the bathroom incident happened

August 16, 2018 Statement to Police – page 27-8

SS: ….Um, so before this time happened in October, had Uncle [G] ever done anything before with you that caused you concern?

DkM: Well, in like – a long time ago, but it was last year.

SS: Okay.

DkM: Sometime in last year, before October.

SS: Okay.

DkM: It was still winter out and um, I was at his house and he came inside to help me set up the TV…

SS: Okay and you said it’s winter still. And how do you know, how do you remember it’s winter?

DkM: Well, it was like just past winter. The snow, there was only little bits of snow.

At trial:

When asked about the timing of the bathroom incident, and specifically whether it happened in the same year as the bedroom incident, she stated, “I think so”. She confirmed that it happened in a different month. She thought the season was fall.

In cross-examination, DkM agreed that she knew when the seasons were. She also agreed that the answers she gave to police and her answers in examination-in-chief were contradictory. She then added: “I didn’t know seasons….Now I know… I am not ten years old anymore…. I don’t remember half of this….well I remember it, but I don’t remember every single detail….could have been start of winter…could have been after winter…”

In re-examination, DkM was taken to her preliminary hearing evidence at p. 55:

Q: And then in the last part of your interview, maybe the last two or three minutes of your interview you talk about another incident that apparently had happened sometime earlier at Uncle [G]’s house?

A: Yes.

Q: And that happened you believed in the winter?

A: I think it was about March.

Q: Okay. And why do you think it was about March?

A: Because there was like – it was like sweater – sweater weather.

Q: Okay. So you’ve narrowed it down to March you think and we’re not going to hold you to that. Early March? Mid-March? Late March?

A: Probably about mid.

DkM recalled these questions and answers from the preliminary hearing, but when asked if it was correct, she said “I don’t know…I don’t know when it was”. She did adopt the notion that it was “sweater weather”.

c. Turn TV on before or after the event

August 16, 2018 Statement to Police – page 33

DkM: He said, “Do you want to touch it?”

SS: Okay. And what did you say?

DkM: I said, “No”, and then I ran outside.

SS: You ran out, okay. And where did you go from there? Did you go outside?

DkM: I went outside, and I went to see my dad, but I didn’t tell anybody.

SS: Okay and then what did Uncle [G] do?

DkM: He set up the TV and then went back outside.

At trial:

In examination-in-chief, DkM testified that G.W. fixed the TV first, and then went to the bathroom.

It was suggested to DkM in cross-examination that her statement to police and her statement in examination-in-chief were different as to the order of these events, and she was asked which one was true. At this point, she asked for a break. When asked again, she stated that he set up the TV first and then went to the bathroom. When asked why she told the police something different, she said, “I don’t know… maybe I was confused”. When it was suggested that she was lying, she said, “No, I had a lot going on”. She agreed she gave different answers, “not on purpose, but yeah”. She also agreed that if he fixed the TV after she ran out, she would not have known about it.

In re-examination, she was referred to her preliminary hearing transcript, page 60-2:

Q: Okay. And so how long – how long – did he turn the TV on for you?

A: I don’t understand.

Q: Well, before did he turn the TV on or at any point did he ever – the idea of him coming into the house was to turn the TV on or help you set it up. Did he do that for you?

A: Yeah.

Q: Okay. And was that before or after the bathroom incident?

A: Before.

Q: Okay. So you sit down and watch TV?

A: Yeah. Well, I – he set it up and then he went to the bathroom.

Q: Right.

A: Then called me in, but I never watched TV.

Q: Okay. After he set it up, what did you do?

A: I looked through the channels…

Q: Okay.

A: …as – like after that he called me in.

Q: Okay. So again, this incident in the bathroom I take it takes literally seconds?

A: Yeah.

Q: Okay. You leave the bathroom?

A: Yeah.

Q: And do you go outside or do you go back watching TV?

A: I go outside.

Q: Okay. And where does [G] go?

A: I think he comes outside a couple minutes after.

She agreed that this version of events from the preliminary hearing was correct.

d. Heard G.W. tell grandma he was going to the bathroom / whether he went to the bathroom

August 16, 2018 Statement to Police – page 6-7

SS: You’re allowed to do that, okay. So tell me what happened.

DkM: Um, well, he came over one day and he told grandma he had to go to the bathroom. So he’d go to the bathroom and then he’d come into my room one time and I don’t remember what he said, but then he touched me.

SS: ….And so he told your mom he had – so Uncle [G] told your mom…

DkM: Grandma.

SS: Or told your grandma that he had to go to the bathroom.

DkM: Yeah

SS: Okay, but instead, he came into your room.

DkM: Mm-hmm

Within these two excerpts, the complainant suggested that G.W. did go to the bathroom and then suggested that he did not go to the bathroom. At trial, when this inconsistency was put to her, she stated that he did not go to the bathroom, but rather came to her room. She agreed that her suggestion that he went to the bathroom was wrong and different from what she said only seconds later in her police statement.

At trial:

DkM stated that her initial observations of G.W. that day were that he was downstairs in the kitchen at the table with her grandma and she remembered that they were drinking. She did not know the time when she made these observations, but it was light out. When asked what she was doing, she said that she was upstairs in her room. When asked if he appeared intoxicated when she first saw him, she said “I don’t know”. When asked whether she said anything to him before anything happened, she said “No, I was in my room, I didn’t go downstairs”. When asked how she saw him at the table if she did not go downstairs, she said “I don’t know”. In cross-examination, she agreed that she did not hear G.W. tell her grandmother anything about going to the bathroom. She said, “I assumed”. She also agreed in cross-examination that she never saw G.W. at the table until after the events occurred. Therefore, she never saw him drinking and did not know if he was drinking. She had only heard him with her grandmother.

In re-examination, DkM was taken to her preliminary hearing evidence where she said:

Q: …Could you hear what was going on downstairs from your room or were you paying attention or were you just kind of engrossed in your iPad?

A: Yeah, I was just on my iPad.

Q: You were on your iPad. Okay. So you didn’t – you don’t know what was going on downstairs between Gramma and [G] and anybody else that might’ve been there?

A: No.

After putting this passage to her, she was asked whether she assumed they were drinking because they were talking to which she said, “I don’t know…I’m not sure”.

e. G.W. grabbed her right or left hand

August 16, 2018 Statement to Police – page 11:

SS: Okay, so which hand did he – which hand of yours did he try to force down his pants?

DkM: This one.

SS: So that’s…

DkM: My left.

At trial:

DkM confirmed that she pushed his hand away and he then tried to force her hand down his pants. When asked which hand of hers it was, she said “I think it was my right”.

When faced with this inconsistency, DkM stated, “It doesn’t really matter which hand it was. .. I know it still happened.”

f. Pants vs shorts

August 16, 2018 Statement to Police – page 6:

DkM: And then I pushed his hand away and then he forced my hand down his pants and I pulled it back away and….

August 16, 2018 Statement to Police – page 11-12:

SS: Okay, so which hand did he – which hand of yours did he try to force down his pants?

DkM: This one.

SS: So that’s…

DkM: My left.

SS: Your left hand, okay. So can you show me what or – so if my hand is, is you, what did he do. You pretend you’re Uncle [G].

DkM: So then he went like this and tried to push my hand down his pants.

SS: Down his pants, okay. So is he facing you?

DM: Mm-hmm.

SS: Like you can see directly the front of his body. Do you remember what he was wearing?

DkM: No.

SS: No, Okay. Now did your hand actually go into his pants at all?

DkM: No

SS: So how do you know he was trying to put it down?

DkM: Because he pulled and he pulled his shorts up like that.

SS: He pulled his shorts, he pulled it out.

DkM: Mm-hmm

August 16, 2018 Statement to Police - page 17

SS: Okay. So when you talked about Uncle [G] pulling his pants – you said his shorts I thought.

DkM: I’m pretty sure it was pants.

SS: It was pants.

DkM: (Nods head yes)

Preliminary hearing – page 42-3

Q: And your Uncle [G], in fairness, your Uncle [G], and he might not see the humour in me saying this but he’s not a small man; right? He’s kind of overweight?

A: Yeah.

Q: Okay. So he’s sitting with his back to you, he takes your hand with one of his hands and he guides it towards you believe the front of his pants?

A: Yes.

Q: Okay. And he was definitely wearing pants…

A: Yeah.

Q: …I take it? There’s no possibility he was wearing shorts?

A: No.

Q: And it would make no sense – this happened sometime in October, it would make no sense in all likelihood that he would’ve been wearing shorts that time of year?

A: Yeah.

Q: So it would be completely untrue to say that he was wearing shorts?

A: Yeah.

At trial:

Her best memory at the trial was that he was wearing long pants. DkM agreed that it would not make sense for him to be wearing shorts in October. She agreed that she knew the difference between shorts and pants. She also agreed that she did not call underwear “shorts” – she would call them underwear. She would not confuse those things.

g. Remembering what she told DsM

August 16, 2018 Statement to Police – page 14

SS: And then what happened?

DkM: Then he just went downstairs, and I quickly ran down, up -I’m – the bathroom’s about here, then there’s the hallway and the bathroom, my dad’s bedroom and then my room. So then I ran down the hall and told [DsM]…

SS: Okay.

DkM: …what happened, and yeah.

SS: Okay, did you give [DsM] details?

DkM: I don’t know actually.

SS: But you told him right away as soon as it had happened.

DkM: Mm-hmm

At trial:

When asked what she said to DsM, DkM responded, “All I said was ‘he touched me’…. She said that DsM did not believe her at first, “kinda rolled his eyes” and said, “No he didn’t”. She was not sure if they talked anymore about what had happened. When asked whether she described the events to her brother in any other way, she said, “No, I didn’t describe any of it” and that she did not say anything else to her brother about the events at that time. On the second day of testifying, she stated that she said to her brother, “Uncle [G] touched me”.

When asked in cross-examination what she told DsM, she stated, “My exact words were ‘he touched me’ and [DsM] didn’t believe me.” She said she knew from the start what she told her brother. She explained that she did not tell her brother every single thing that happened, however, she then said that she did tell him what happened. In one exchange in cross-examination, she initially agreed that she told her brother that G.W. tried to put his hands down her pants. However, there seemed to be a great deal of confusion. As the confusion cleared, she said that she did not tell her brother that G.W. tried to put his hand down her pants. It was agreed among the parties that a similar confusion occurred at the preliminary hearing (reflected at page 22, line 29 to page 23, line 19, page 54, line 27 to page 55, line 12, and page 66, lines 23-31). Ultimately, DkM stated that she would not have suggested to anyone that G.W. tried to put his hands down her pants.

h. When DsM told her father and T.S.

It was suggested to DkM in cross-examination that she believed that her brother told her father and T.S. about what happened to her a couple of months before August 2018. She said that she did not know when it was.

She was then taken to her police statement, page 16, where she stated that DsM told their father “a couple months ago”. She stated that she did not know when DsM told them. When asked why she told the police that it was a couple months earlier, she said, “maybe I did not know”. It was put to her that DsM claimed he told T.S.’s daughter, B, not his father or T.S. DkM stated that she did not know that DsM told B; she thought he told her father and T.S.

In re-examination, she was asked whether her understanding was that her brother told her father one time or more than one time, to which she responded that she did not really know but she thought it was one time.

i. Nothing like this ever happened before – then described the other incident

August 16, 2018 Statement to Police – page 19

After describing the details of the October bedroom incident, the following exchange took place:

SS: Okay. Okay. Pretty deep stuff for a young lady to be dealing with, eh.

DkM (Nods head yes).

SS: Yeah. Has anything like this ever happened to you before?

DkM: No

SS: No, okay. Okay. Oh, wow, okay, so what I’d like to do, I’m going to go talk to my partner and see if there’s anything else she wants me to ask, okay, and I’ll come right back and see you, okay.

DkM: Okay.

Cst. Stone then left the room for about two minutes. When she returned, they continue the discussion about the bedroom incident. Over eight minutes later, the following exchange took place at page 27:

SS: …Have you ever been to Uncle [G]’s house?

DkM: A couple of times but not a lot.

SS: Not a lot, okay. Um, so before this time happened in October, had Uncle [G] ever done anything before with you that caused you concern?

DkM: Well, in like – a long time ago, but it was last year.

DkM then described the bathroom incident which had not been mentioned earlier in the interview.

[105] In addition to the various inconsistencies, there were also things that DkM mentioned for the first time at trial. Such as:

a. when she told DsM, he did not, initially, believe her; and

b. after telling DsM, she grabbed her iPad from her bedroom and went to her grandmother’s room.

[106] On a couple of occasions, it was suggested to the complainant that she was reporting something for the first time at trial, however, in re-examination, it was clear that she had said something very similar on an earlier occasion. For example:

a. It was suggested to her that she said for the first time at trial that she went downstairs following the events in the bedroom because she did not know if G.W. was going to come back upstairs or not. However, in re-examination, her police statement was put to her wherein she said at page 15:

DkM: Okay, well, after it happened, I quickly pulled a chair up and sat right beside Gramma.

SS: Mm-hmm.

DkM: So then he wouldn’t do it again. And I just sat beside her and if I wasn’t with her, I’d be with [DsM].

SS: Okay and that made you feel safe?

DkM: (Nods head yes).

She adopted this as true during the trial.

b. It was suggested to her in cross-examination that she had stated for the first time at the trial that G.W. was staring at her really hard during the bedroom incident. In re-examination, she was taken to the preliminary hearing, page 19:

Q: Could you see his face at that time?

A: Yes.

Q: What if any facial expressions was he making?

A: I don’t know, he was just looking at me.

She agreed that this is what she said and adopted this as true at the trial.

[107] There were also a number of differences between the testimony of DsM and the testimony of DkM. The following were of note:

a. DkM testified that, at the time of these incidents in 2017, she was living between her grandparents’ house and her father’s girlfriend’s house (T.S.’s house) which were walking distance apart. DkM stated that she spent time in both places and there was no specific arrangement.

DsM stated that, in 2017, he lived with his grandparents, however, in 2018, about 4-5 months prior to the police interview, he, his sister, and his father moved into T.S.’s house, his father’s girlfriend’s house. After moving there, they lived at T.S.’s house for the most part but there were times they went back to their grandparents. He was not sure when his father started dating T.S. or when he first met T.S. However, DsM confirmed that when DkM came into his bedroom upset in October 2017, he had not yet met T.S. He agreed that he and DkM met T.S. together.

b. DkM disagreed that G.W. was there the night before the bedroom incident. She agreed that if one person said that G.W. was there the night before this incident occurred, staying over night, and another person said he just arrived the day this incident occurred, one person would have to be lying or wrong. Her testimony ultimately was that she was not sure if he was there the night before. This was contrary to what she had said in examination-in-chief and contrary to what she had said at the preliminary hearing in a passage that was put to her, wherein she was sure that he was not there the night before.

DsM was clear that G.W. had arrived the night before and that DkM saw him there the night before.

c. DkM disagreed that the bedroom incident occurred at 7, 8 or 9 in the morning. She agreed that if one person said it happened at 2:30 p.m. and another person said it happened at 7, 8 or 9 in the morning, one person would have to be lying or wrong. DkM said it could not have been that early because she would not have been up that early. When it was suggested to her that DsM said she told him in the morning and, therefore, it must have happened in the morning, she then said “It could’ve”. She then said she did not remember the exact time because it was a lot of years ago. However, she recalled telling the police in her statement that it was 2:30 in the afternoon (Police Statement - page 7) Also, she agreed that her grandmother would not have been drinking alcohol at that time of the morning as she previously described.

DsM agreed that if someone suggested that DkM came into his room and told him this at 2:30 p.m., that would be a lie. He was clear that it was not 2:30 p.m. He agreed that they both could not be correct.

d. DkM said her brother’s bedroom door was open when she went to his room. DsM said his door was closed before DkM came in.

e. DkM said that she told DsM “he touched me” and that DsM did not believe her. According to DsM, DkM came in and said “Uncle [G] touched me” and then pointed with both hands to her chest and vaginal area. DsM stated that he was under the impression that his sister was suggesting that she was touched in the vaginal area and in the breast area with both hands. According to DsM, DkM was clear that she was touched in the vaginal area. According to DkM, she was never touched in the vaginal area and never suggested such a thing occurred.

f. DsM specifically remembered that their grandmother was in her bedroom when DkM came into his room. He remembered this because he saw G.W. go into her bedroom, and a few minutes later, saw his grandmother getting out of bed. When DkM described the events, she said that G.W. and her grandmother were downstairs and that G.W. came upstairs, did this to her, and went back downstairs. Her grandmother was not upstairs.

g. DkM said that she went back to her room after speaking with DsM, grabbed her iPad, and went into her grandmother’s room where she was alone. She further stated that G.W. went downstairs right after touching her because she heard the stairs creak. DsM said that DkM went to her room after speaking with him and stayed there, and that G.W. and their grandmother were in their grandmother’s bedroom.

h. DkM said that DsM was present during the discussion she had with her father and T.S. DsM said that he was not present for the discussion when DkM was present.

[108] There were also some internal inconsistencies within DsM’s evidence when reviewing his police statement and trial testimony separately, and when comparing his trial testimony to his police statement. The following are of note:

a. DsM agreed that within days of giving his police statement, he and his sister ran away from their grandparents’ home in the middle of the night back to T.S.’s home. It was suggested to DsM that CAS came and apprehended them from T.S.’s to which he disagreed. When asked how they got back to their grandparents, he said they did not go back to their grandparents’ house after that night, rather CAS allowed them to stay at the home of T.S. that night and the next day they went to their aunt’s. He disagreed with the suggestion that CAS removed him and his sister from T.S.’s He then eventually agreed that it was the CAS that removed them and took them to their aunt’s house.

b. When asked at trial whether DkM said “he touched me” or “Uncle [G] touched me”, he responded that she said “Uncle G”. When asked whether those were her exact words, he said, “It’s hard to say, but I know…I know she said ‘Uncle [G] touched me’. I know for a fact she said ‘Uncle [G] touched me’. Yes. Those were her exact words.” According to DsM, she said that right away after she entered. When asked whether that was all she said about that on that day, he said “Yes”, however, when asked whether she said anything else to him in the room about that incident or any details, he said “Yes…she did say um where he touched her”. The following exchange occurred in examination-in-chief:

Q: She said where?

A: And pointed where

He confirmed that she pointed to her chest and private area. Then when asked specifically whether she said where he touched her or just pointed, he said, “I don’t really remember”. When asked whether she said anything else, he said “Not that I remember no”. In re-examination, DsM testified that DkM gestured to certain areas on her body but did not say in words where he touched her.

c. DsM testified at trial that he did not see G.W. do anything to his grandmother, just that G.W. was in bed with her and he saw his grandmother get up. However, in his statement to police, page 11-2, he said:

DCS: Okay. So tell me about your uncle…tell me about that day, how Uncle [G] came to be at your house.

DsM: He just stopped in.

DCS: Okay.

DsM: He…it wasn’t the day, it was the night before.

DCS: The night before, okay.

DsM: Yeah, he stopped in and then had a few drinks, …

DCS: Mm-hmm.

DsM: …so my grandma let him sleep on the couch downstairs.

DCS: Okay.

DsM: And then in the morning he came up and did all that stuff to Grandma and then went downstairs again, he ate breakfast and left.

In response to this passage being put to him, DsM suggested that he meant his sister not his grandmother. He did not see G.W. do anything to his grandmother.

[109] The Crown submitted that DkM testified in a fair and balanced fashion, admitting the limitations of her memory, and confirming what she remembered as true. This court accepts that there would be limits to memory after more than four years, especially given the age of the complainant. Difficulties with memory from the passage of time is to be expected and some latitude must be given in this regard.

[110] The questions had to be repeated on many occasions for both DkM and DsM. This court is well aware of the ongoing sound issues that existed during the trial. It appeared that on many occasions, the witnesses, who were testifying from another room, truly did not hear the question. There were many times that this court and counsel needed answers to be repeated. The fact that questions had to be repeated on many occasions has no impact whatsoever on the reliability or credibility of the witnesses in this case.

[111] There were occasions where both witnesses expressed frustration with the questions being asked. There were also occasions where the complainant smiled or gave a small laugh. This must be considered in light of the age of the witnesses and the subject matter being discussed. At times, cross-examination was forceful, albeit within proper limits given counsel’s role to vigorously protect the interests of the client. An expression of frustration or aggression in return is expected, especially given the age of the witnesses. The Crown acknowledged that DkM appeared dissociated at times and responded with “I guess” on many occasions. The demeanour of a witness should never weigh too heavily in the final analysis and demeanour does not play a significant role in the conclusion this court has reached.

[112] Some inconsistencies are to be expected – exactitude is not required. In fact, in cases where witnesses are extremely consistent, there is often the suggestion made that they have rehearsed their testimony, thereby leading to concern with their credibility. There is no question that some of the inconsistencies noted above, especially the internal inconsistencies, are not significant, especially in light of the age of the witnesses and the time that has passed. On their own, many of the inconsistencies would not cause this court any concern whatsoever. However, in combination, the inconsistencies take on a greater significance. As pointed out, there are some significant differences between DkM and DsM that simply cannot be reconciled or explained.

[113] In the final analysis, it was impossible for this court to accept the narrative put forward by the complainant in the face of material inconsistencies in her evidence and conflicts between her evidence and that of her brother. Given the significant frailties in her evidence, this court cannot conclude beyond a reasonable doubt that these events occurred.

CONCLUSION

[114] For all of the foregoing reasons, and having carefully considered the totality of the evidence and circumstances, G.W. is found not guilty of all three charges.

NOTE: As noted in court, on the record, this written Ruling is to be considered the official version and takes precedence over the oral reasons read into the record. If any discrepancies between the oral and written versions, it is the official written Ruling that is to be relied upon.

Released: October 27, 2021