SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR-20-50000315-0000

DATE: 20211022

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

R.A.

Anjali Rajan and Stuart Rothman, for the Crown

Ian McCuaig, for R.A.

HEARD: October 5, 6, 7, 2021

RESTRICTION ON PUBLICATION: Subject to any further Order by a Court of competent jurisdiction, an Order has been made in this proceeding directing that the identity of the complainant and any information that could disclose such identity shall not be published in any document or broadcast in any way pursuant to s. 486.4(1) of the Criminal Code of Canada. This ban does not apply to publication of these reasons in law reports nor to a discussion of the underlying legal principles in other publications.

R.F. GOLDSTEIN J.

1On a Sunday in November 2018 the complainant, C.A., was 11 years old. Her mother, Y.A. was at work. She was at home with her stepfather, R.A. R.A. was married to Y.A. – C.A.’s mother. C.A. sent a text to her mother. She told her mother that R.A. had touched her inappropriately. Y.A. came home immediately. She briefly talked to C.A. Then she told R.A. that he had to leave their home. He protested that he did not touch C.A., but he did leave the home. Several months later, C.A. disclosed the alleged touching to her teacher. C.A. later disclosed two incidents where R.A. allegedly kissed her in a car: one outside a Petsmart, and one outside of Lola’s, a grocery store.

2R.A. now stands charged with two counts of sexual interference contrary to s. 151(a) of the Criminal Code. One count relates to the sexual touching. The other count relates to the two kissing incidents.

BACKGROUND

Evidence of C.A.

3R.A. and Y.A. married in 2015 or 2016. The family immigrated to Canada in 2017. They moved into a 3-bedroom apartment. The apartment belonged to Y.A.’s father, C.A.’s grandfather. C.A.’s grandfather had one bedroom. R.A. and Y.A. had one bedroom. C.A. had another bedroom. She sometimes shared that bedroom with her aunt, who was more like a sister due to their closeness in age. The family had two rabbits and a cat.

4C.A.’s father remained in Chile when R.A., Y.A., and C.A. immigrated to Canada (C.A. was already a Canadian citizen, having been born in Canada. C.A.’s father came to Canada to visit for C.A.’s 11th birthday in September 2018, along with C.A.’s grandmother. C.A. was in Grade 6. She was having problems with other girls bullying her at school. Grade 6 was a difficult year.

5In June 2019 C.A. disclosed the touching incident to her teacher. That disclosure led to a police investigation. C.A. gave a video-taped statement to the police. She adopted that statement in court and it was admitted into evidence pursuant to s. 715.1 of the Criminal Code.

6C.A. told the police that on a Sunday morning in October 2018 she was 11 years old. Her mom was getting ready to go to work or study. It was at 10 or 11 in the morning. She and R.A. were supposed to clean the house. They decided to watch a movie when Y.A. left. They were in the bedroom shared by Y.A. and R.A. The television was in that room. C.A. was wearing her pyjamas – blue shorts and a red top. She was not wearing underwear under her shorts. She was “lying in the bed”, as she put it. She was trying to be nice so R.A. wouldn’t do anything. R.A. started hugging and kissing her on the lips, using his tongue. He then touched her on her “parts”, meaning her vagina. He touched her under her shorts and touched her on the “inside”. It went on for ten seconds. C.A. said: “what time is it” and went to her room. When she got to her room, she called Y.A. She told Y.A. that R.A. had touched her and kissed her. Y.A. came home. She went to C.A.’s room and asked what happened. C.A. told her mother that she was sorry because she didn’t want to ruin the relationship between Y.A. and R.A. Y.A. then went to R.A. and screamed at him. She did not hear what her mother yelled at R.A. R.A. left the apartment. He came by C.A.’s room on his way out and admitted that he had touched her.

7C.A. further stated in the video that she was crying and upset. She had felt close to R.A and did not want to ruin her mother’s relationship with him. She had been close to him and had started calling him “dad” when she was little because she had thought of him as a dad. Later, one or two months later, R.A. moved back in. It did not feel normal because R.A. was being really nice to her mom. He was also being nice to C.A.

8C.A. described in the video how the incident came to the attention of the authorities. At school C.A.’s teacher saw cuts on her arm. The teacher asked C.A. why she had cut herself. C.A. mentioned that she was being bullied at school. She had no friends at the school because the other girls were saying bad things about her. C.A. also told her teacher that her stepdad had touched her. She asked the teacher not to do anything about her stepdad. She was obviously worried about what would happen to her mother.

9In her evidence in chief C.A. adopted her videotaped statement. She testified that when left the bed she said: “what time is it” and “I had homework to do”. She testified that R.A. had kissed her twice in the past. Once was in front of Lola’s, a neighbourhood grocery store. They were in the car. R.A. leaned over and kissed her on the lips. C.A. said that she didn’t say anything to her mother because her mother had a friend over. The second occasion was at Petsmart when they were buying rabbit food. C.A. was talking about a fish, and R.A. kissed her on the lips. C.A. could not remember exactly when these things happened; she did say that it was after they moved to Canada but before the October 2018 touching incident. When asked why she didn’t disclose the kissing incidents to her mother, C.A. said that she don’t know what she was thinking but that she was probably too scared to say it or didn’t know how to say it.

10In cross-examination C.R. admitted that the touching incident might have happened in November, rather than October. She said that she did not really remember. She agreed that she was on the right side of the bed and R.A. was sitting on the left side of the bed. She said she could not remember which hand he used to touch her, but he was hugging her, so it was probably his left hand. She said he hugged her and then she was trapped. She said that she thought it was his right hand touching her. Counsel suggested that if she was laying on the bed, he had his arm underneath her. C.A. stated that it made sense, but she couldn’t remember. He was sitting and she was laying. She agreed that he had to move and use his right hand to touch her. She further agreed that he was on the left side facing her, with his arms around her and putting his right hand down her pyjama bottoms. She could not remember if he still had his arms around her, but she did agree it was a short amount of time, 8 or 10 seconds. She then said, “what time is it” and that she had to do homework.

11Defence counsel then went through the statement again. C.A. agreed that she was lying or slouching; that R.A. moved next to her; and that he turned on his side and was hugging and kissing her. When counsel suggested that he used his right hand, C.A. said that she didn’t remember completely but that is what she thought happened.

12C.A. further agreed in cross-examination that she did not get along with her father’s girlfriend. There was an incident where C.A. had stolen a box thinking that it contained wedding rings for her father and his girlfriend. She agreed that she did not get along with the girls in her Grade 6 class. Her father came to visit at the beginning of the school year. They did some outings, such as going to Niagara Falls. She explained that she started self-harming in Grade 6 because of the mean girls in her class, and because of what happened with R.A. She learned about it from a student in Grade 8, but she knew about it already from her cousin in Chile. C.A. also agreed that she learned about pornographic sites on her phone from her cousin. Her mother found pornographic sites on her phone.

13C.A. agreed that her relationship with R.A. got worse after her dad left. She did not agree it was because her dad left. As she put it, it was more homework than R.A. She agreed that she didn’t want to cooperate with things like doing chores, but it was not because of R.A. She agreed that R.A. did not move back in before Christmas of that year (2018). When he did come home, they had a conversation where she told him that she forgave him, and she still loved him. She did remember apologizing and saying nothing happened. She explained that she wanted them to be okay; she felt guilty although she knew it was not her fault.

14Defence counsel put omissions and contradictions to C.A. He asked C.A. about the two kissing incidents, at Lola’s and Petsmart. She agreed that even when she was asked for further details at the preliminary inquiry, she did not mention the kissing incidents. In re-examination, however, when her memory was refreshed with the transcript, she agreed that she had in fact mentioned that she was pretending to be asleep on the morning of the incident because R.A. had previously kissed her twice.

15She also agreed that at the preliminary inquiry she mentioned that the news had been on television, not a movie. She agreed that she had said at the preliminary inquiry that she was listening to music and was on her phone. She agreed that she stated at the preliminary inquiry she was worried something would happen, so she faked being asleep. She had not mentioned that to the police or during her evidence in chief. C.A. had mentioned at the preliminary inquiry that R.A. had his hand in her face during the touching incident, something she had not mentioned at trial or during her videotaped statement to the police.

16Later in the cross-examination defence counsel asked C.A. again about the touching incident. She agreed that R.A.’s right arm was under her body and his left arm was near her face. Counsel suggested that with his right arm under her body he reached into her pyjama bottoms he touched her. She then said it was his left hand. When counsel suggested that she had changed her story, she said she didn’t remember exactly but it would have to have been his left hand. She agreed that if R.A.’s left hand was next to her face and is right hand was wrapped around her then the touching as she described it was impossible. C.A. denied that she had sent a text saying that R.A. had touched her and asking if she could go to her cousin’s apartment.

Evidence of R.A.

17R.A. testified that he lived in Chile until immigrating to Canada. He did construction work in Chile. He works in construction in Canada. He has his own small business. He has children in Chile – all boys. He married Y.A. in December 2016. He, C.A., and Y.A. immigrated to Canada in April 2017. They lived together in Y.A.’s father’s apartment.

18R.A. testified that C.A. was like the daughter he never had. They did things together. It was a good life. C.A. had some trouble adapting when she arrived in Grade 4 and later in Grade 5 due to the language issue, but she was finally able to adapt well. C.A. moved to a different school for Grade 6. She had problems at that school due to bullying. R.A. would help her with her homework.

19R.A. discovered that someone on their shared computer had been accessing pornographic websites. He and Y.A. assumed that it had been C.A.

20R.A. testified that C.A. was happy and excited when her father came to visit. They held a birthday party for her in the party room of their apartment. C.A. and her father spent time travelling around and doing activities while he was in Canada. After C.A.’s father left she began to argue with him more. She engaged in bad behaviour. They argued about chores and homework.

21R.A. testified that on the day of the alleged touching incident C.A. came into the bedroom while Y.A. was getting ready for work. C.A. asked R.A. if he could help her with math homework. R.A. said he would but asked C.A. to control her temper as she sometimes became upset. They studied for 30-40 minutes. C.A. became upset over the way R.A. explained math to her. They started watching television. R.A. fell asleep. When he woke up C.A. was on her phone. He told her to clean the rabbit cage. C.A. left and went to her room. R.A. made some food. He left the food at C.A.’s bedroom door. C.A. joked about R.A.’s cooking. When Y.A. arrived at the apartment she went straight to C.A.’s bedroom. Y.A. then asked R.A. what happened between him and C.A. R.A. said he didn’t know what she was talking about. Y.A. then confronted R.A. with the touching allegation. He denied it. C.A. came out of her bedroom and repeated the allegation that R.A. had touched her. R.A. said it was not true. Y.A. then told R.A. that he had to leave the house.

22R.A. testified that after Christmas he had dinner with Y.A. and C.A. They discussed the alleged touching incident. C.A. said that she didn’t know if she imagined it or it was a dream, but she wanted them to be a family together again. She asked him to forgive her. They hugged and became emotional. R.A. denied that he ever went to C.A.’s room and confessed to touching her. He denied kissing her twice in the car. He denied ever touching C.A.’s vagina.

23In cross-examination R.A. agreed that Y.A. worked and went to school. His father-in-law worked long hours and was often away for days at a time. As a result, R.A. was alone many times with C.A. They did errands together, such as going to Petsmart, or for groceries. He could not recall a specific time that C.A. was referring to, because they went to Petsmart and Lola’s many times. R.A. testified that Y.A. worked at the mall at Fairweather’s. The mall was only 3 or 4 blocks from the apartment. He expected her home shortly after 3 pm, when she finished work.

24R.A. further testified in cross-examination that on the day of the alleged touching incident the only disagreement between him and C.A. was over homework. It wasn’t the first time they had had that argument. Neither of them was really upset about it. When C.A. left the bedroom, everything was fine. R.A. could not remember if Y.A. came home early that day, but he did remember Y.A. going straight to C.A.’s room. He assumed that C.A. had done something bad to upset her mother. R.A. left the house because it wasn’t easy for him to stay there when he had been accused of touching C.A. He agreed to come back because he hoped that C.A. would say the truth about what really happened.

Evidence of Y.A.

25The defence called Y.A. to give evidence. Y.A. testified that she, C.A., and R.A. did many things together as a family. Y.A. testified about C.A.’s father’s visit in September of 2018. She also testified that C.A.’s relationship with R.A. changed after the visit. She became more aggressive with R.A. Her attitude was poor.

26Y.A. testified that on the day of the touching incident she was getting ready to go to work. She was scheduled to work from 11 am to 3 pm. C.A. asked R.A. if he could help her with a math assignment. R.A. told her not to get upset at the way he was helping her. Y.A. then went to work. She worked at a Fairweather in a mall about 3-4 blocks from the apartment. C.A. sent her a text message when she was at work. Y.A. did not see the message until about twenty minutes before she was to leave work. C.A. told her in the message that R.A. had touched her parts. C.A. wanted to go to Perla’s apartment (Perla was her cousin). Y.A. sent her a message back saying that she should stay in her bedroom. Y.A. then arrived home and went directly to C.A.’s room. She told C.A. to stay there. She then confronted R.A. with C.A.’s story. He denied it. They were in the kitchen. C.A. then came to her and told her that R.A. didn’t have to leave, as it was not his fault. C.A. was asking Y.A. to forgive her. R.A. left the apartment that day.

27Y.A. testified that C.A. suggested going to a cousin’s New Years Eve party. Y.A. said it was better not to go because R.A. would be there. C.A. suggested they go together. Y.A. disagreed. C.A. suggest that they should all have dinner and talk. It was a few days before New Years. C.A. said that she didn’t know if it was a dream or it had happened, but she wanted the family to be together on New Years.

28In cross-examination Y.A. agreed that she had a good relationship with C.A. in 2018. C.A. had a good relationship with R.A. and Y.A.’s father – C.A.’s grandfather. She agreed that C.A. would get annoyed if Y.A. asked her to do something, but she would do it. Y.A. agreed that when C.A. was being disrespectful, it was not just to R.A. but to her as well. On the day of the touching incident she took her phone out to look at it. She kept it in a drawer because at work she was not allowed to have her phone with her. When she looked at it, she saw the text message from C.A. that R.A. had touched her.

29In cross-examination, Crown counsel asked C.A. whether R.A. had told her that C.A. had fallen asleep on the bed the morning of the touching incident and then said she was scared when she woke up. C.A. initially denied it but then agreed R.A. said it when confronted with her statement to the police. C.A. initially said that her English was not that good, so she didn’t fully understand. The same thing happened with C.A.’s statements that R.A. had kissed her. Y.A. agreed that C.A. had told her about R.A. kissing her.

30Y.A. also agreed that she had not told the police that when she, C.A., and R.A. had dinner that C.A. had said that it was a dream or had asked for forgiveness. Y.A. said that she was nervous and saying what came to her mind. She agreed that she had told a psychologist that C.A. had said something about it being a dream but not the police. Y.A. also testified that she no longer had the text message from C.A. about the touching incident.

31Y.A. further agreed in cross-examination that she had told the police that she did not want to say that C.A. was lying, but that it could be because her story changed. In re-examination, Y.A. clarified that she first believed C.A. in November 2018 when the touching incident occurred. In June 2019, when she spoke to the police, she wasn’t sure if C.A. was lying. Y.A. had changed her mind because C.A. had given different versions of the touching incident to different people. She also changed her mind because C.A. kept saying that she missed R.A. and wanted to see him.

ISSUES AND ANALYSIS

(a) Should I grant the Crown’s cross-count similar fact application?

(b) Do I believe R.A. or find that his evidence leaves me with a reasonable doubt, based on the whole of the evidence?

(c) Am I satisfied beyond a reasonable doubt of the guilt of R.A.?

(a) Should I grant the Crown’s cross-count similar fact application?

32The indictment charges R.A. with two counts of sexual interference: one count encompasses the allegation of touching; and the other count encompasses the allegation of kissing. In submissions, the Crown argued that I should apply the evidence across both counts. In other words, the Crown argues that the kissing incidents are probative of the touching incidents – and vice versa.

33Ordinarily, similar fact evidence is, in fact, discreditable conduct evidence. Evidence of a person’s discreditable conduct that is not the subject matter of a count on the indictment is inadmissible: R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908, at para. 31. The evidence is admissible, however, where the probative value outweighs the prejudicial effect. That analysis, in turn, depends upon the purpose for which the evidence is to be admitted: R. v. Handy, at para. 69. The evidence must be used for a purpose that does not merely blacken the character of the accused. Binnie J. in R. v. Handy at para. 32 quoted the famous statement of Lord Chief Justice Holt in Harrison’s Trial: "Are you going to arraign his whole life? Away, Away, that ought not to be; that is nothing to the matter".

34Here, the issue is not whether evidence of extrinsic conduct is so probative that it outweighs the prejudicial effect. The evidence of the kiss and the evidence of the touching are clearly admissible. In my view the evidence may be used to show that the offences were committed; and to provide context to C.A.’s evidence that she feigned sleep because she was concerned that R.A. might do something: R. v. C.W., 2019 ONCA 976, 160 W.C.B. (2d) 120, at paras. 13-15. The cross-count similar fact application is granted.

(b) Do I believe R.A. or does his evidence leave me in a state of reasonable doubt based on the whole of the evidence?

35Mr. McCuaig argues that R.A. was forthcoming and sincere. He did not put a shine on anything. For example, he did not claim that he and C.A. were never on the bed together. He recalled important details. He did not minimize or build up his image. It is difficult to say much more than “it didn’t happen”.

36I respectfully disagree. I find that when I examine R.A.’s evidence that I do not believe him and it does not leave me with a reasonable doubt.

37The most important question in any criminal trial is whether, on the whole of the evidence, a trier of fact is left with a reasonable doubt about the guilt of the accused: R. v. Vuradin, 2013 SCC 38, [2013] 2 S.C.R. 639, at para. 21. A criminal trial is not a credibility contest. A trial judge does not simply decide which version of events to believe: R. v. Y.(C.L.), 2008 SCC 2, [2008] 1 S.C.R. 5, at para. 6. As the Court of Appeal stated in R. v. W.(J.), 2014 ONCA 322, 316 O.A.C. 395, at para. 27, in a criminal trial the credibility assessment is not an either/or process where the trial judge is “required to choose a version of the events in order to reach a verdict.”

38In R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742, 122 N.R. 277, Cory J. suggested three questions that a trier of fact should ask:

First, if I believe the evidence of the accused, I must acquit.

Second, if I do not believe the evidence of the accused but I am still left in a state of reasonable doubt by it, I must acquit.

Third, even if I am not left in doubt by the evidence of the accused, I must still determine, based on the evidence that I do accept, whether I am satisfied beyond a reasonable doubt of the guilt of the accused.

39The W.D. formula is not a “magic incantation” that must be followed word for word: R. v. Y.(C.L.), at para. 7. I agree with Code J.’s approach to the W.D. analysis in R. v. Thomas, 2012 ONSC 6653, 104 W.C.B. (2d) 704, at paras. 22-24 (I excerpt the key points):

The first aspect of this argument is based on a literalist reading of the model jury charge in W.D., as if it sets out three sequential steps that the trier of fact must take, one at a time…

In my view, this is a misreading of W.D. That case does not describe three sequential analytical steps that a trier of fact must pass through, one at a time. Rather, it describes three distinct findings of fact that a trier of fact can arrive at, when considering all the evidence at the end of the case, namely, complete acceptance of the accused's exculpatory account ("step 1"), complete acceptance of the Crown witnesses' inculpatory account ("step 3"), or uncertainty as to which account to believe ("step 2")…

40… A trier of fact must look at all the evidence, when deciding whether to accept the accused's evidence and when deciding whether it raises a reasonable doubt. It is at that same point in time that the trier of fact will also determine whether the Crown's witnesses prove guilt beyond reasonable doubt and whether the accused's contrary exculpatory account must necessarily be rejected. In other words, these decisions are all made at the same time on the basis of the same total body of evidence…

41The point is that a trier of fact must analyze the evidence an accused person in light of the whole of the evidence to decide whether to accept it or find that it raises a reasonable doubt. As stated by Doherty J.A. in R. v. D.(J.J.R.) (2006), 2006 CanLII 40088 (ON CA), 215 C.C.C. (3d) 252, 218 O.A.C. 37 (C.A.), at para. 53: “The trial judge rejected totally the appellant's denial because stacked beside A.D.'s evidence and the evidence concerning the diary, the appellant's evidence, despite the absence of any obvious flaws in it, did not leave the trial judge with a reasonable doubt. An outright rejection of an accused’s evidence based on a considered and reasoned acceptance beyond a reasonable doubt of the truth of conflicting credible evidence is as much an explanation for the rejection of an accused’s evidence.”

42In this case, I am left with two competing versions of events. I want to emphasize that I am not simply preferring the evidence of C.A. over the evidence of R.A. Much like the situation in R. v. D.(J.J.R.) there are no obvious flaws or contradictions in R.A.’s evidence. An accused person is not entitled to an acquittal simply because there are no obvious problems or inconsistencies in his evidence: R. v. R.A., 2017 ONCA 714, 421 D.L.R. (4th) 100, at para. 55; R. v. G.C., 2021 ONCA 441, 173 W.C.B. (2d) 74, at para. 15. I find that R.A.’s evidence does not make sense in light of the totality of the evidence.

43I start with the text message. C.A. provided direct evidence of the contents of the text message. I find it was a text message and not a phone call, as I explain later in these reasons. In my view, nothing turns on whether it was a text message or a phone call. The content is the key point, not the method of transmission. Ordinarily, the text message would not be admissible for the truth of its contents as it is a prior consistent statement. It would, however, be admissible as narrative: R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788, at paras. 37-39. In this case, however, I admit it for the truth of its contents as a spontaneous utterance.

44In R. v. Mullin, 2019 ONCA 890, 383 C.C.C. (3d) 16, Strathy C.J.O. explained the admissibility of spontaneous utterances at paras. 40-41:

If used for the truth of the declarant's (Ms. Brent's) statements made during the call, the 911 recording was hearsay. It was an out of court statement being admitted for the purpose of establishing that the appellant had said, among other things, that he had "knocked [Ms. Martin] out".

The law permits the introduction of excited or spontaneous utterances as an exception to the rule against hearsay: a "statement relating to a startling event or condition . . . may be admitted to prove the truth of its contents if it is made while the declarant is under the stress of excitement cause by the event or condition": David M. Paciocco & Lee Stuesser, The Law of Evidence, 7th ed. (Toronto: Irwin Law, 2015), at p. 191. In order for a statement to be admissible, "[t]he stress or pressure of the act or event must be such that the possibility of concoction or deception can be safely discounted. The statement need not be made strictly contemporaneous to the occurrence so long as the stress or pressure created by it is ongoing and the statement is made before there has been time to contrive and misrepresent"…

45See also R. v. Camara, 2021 ONCA 79, 169 W.C.B. (2d) 536, at paras. 84-85.

46In R. v. Nurse, 2019 ONCA 260, 145 O.R. (3d) 241, two perpetrators stabbed the victim, Kumar, and left him at the side of a road. Kumar had rented a house to Nurse. Kumar could not speak. His vocal cords had been severed. While the paramedics tried to save Kumar, Nurse approached. A police officer testified that Kumar pointed towards his abdomen and then towards Nurse. An issue at trial was whether this gesture could be admitted as a spontaneous utterance (the difference between an utterance and a gesture being immaterial in these circumstances): At paras. 87-88 Trotter J.A. stated:

Mr. Kumar made his gestures moments after being viciously attacked. The trial judge acknowledged that there was not strict contemporaneity. He said, at para. 22 of the second ruling: "While not contemporaneous, there is a close enough temporal connection that I am satisfied that the gesture is closely associated to the stabbing." All other requirements were easily satisfied. Moreover, the admission of these gestures for their truth was well aligned with the rationale of the spontaneous utterance exception — they were made in response to being attacked where there was no realistic concern about concoction or fabrication.

The trial judge was right to conclude that Mr. Kumar's gestures were admissible under the spontaneous utterance exception to the hearsay rule.

47The Saskatchewan Court of Appeal recently considered a spontaneous utterance admitted for the truth of its contents in R. v. Badger, 2021 SKCA 118. Two assailants burst into a house. One of them shot the victim, Ray. Ray’s mother called 911. During the call Ray’s mother asked Ray who shot him. Ray answered, “fucking Jake from State Farm.” Jake from State Farm was Badger’s nickname. Ray survived. At Badger’s trial Ray would not or could not identify Badger as one of the assailants. The trial judge admitted the statement as a spontaneous utterance. The Court cautioned at para. 31 that for a spontaneous utterance to be admissible,

… the circumstances in which the statement was made must be carefully examined in order to determine if the statement in question meets the test of threshold reliability. Trial judges should ask themselves whether the event was so unusual or startling that it would dominate the thoughts and expressions of the person making the utterance. Exact contemporaneity of the startling event or condition is not required, as spontaneity resides on a spectrum and is dependent on the circumstances, but it must be reasonably contemporaneous and the nature of the event must be such that it would still be dominating the mind of the declarant when the statement is made.

48Once the evidence is admitted, the weight must be examined: R. v. Badger, at para. 36.

49The text messages meet the requirement for a spontaneous utterance. C.A. testified that she left the bedroom and immediately called her mother. She told her mother that R.A. had touched her. Y.A. testified that C.A. had sent her a text. She saw the text when she had a moment to check her phone. C.A. said in the text that R.A. had touched her. Y.A. then called C.A. It makes sense that C.A. sent a text and is confusing the call that Y.A. made to her with a call she thinks she made to Y.A. It makes sense that Y.A. would not have been permitted to have her phone with her at work.

50Whether C.A. sent a text or made a call is not material. C.A.’s mistaken belief that she made a phone call is relevant to her credibility and reliability but, in my view, it does not affect threshold admissibility. The key point that everyone agrees on is that C.A. communicated to Y.A. that R.A. had touched her; and that the communication occurred immediately after it happened. There is no question that R.A. touching C.A.’s vagina would have been a startling event for C.A. She was 11 years old at the time and R.A. was her stepfather. I do not doubt for a moment that it would have dominated C.A.’s mind.

51I give the text message great weight. I can see no reason to conclude that, out of the blue, C.A. fabricated an unfounded allegation of sexual touching against R.A. and sent a text message about it. I find that the statement that is true. When stacked up against the timing and content of the text message, I reject R.A.’s evidence.

52I also reject R.A.’s evidence based on C.A.’s demeanour at the time Y.A. came home. According to Y.A., C.A. came out of her room after Y.A. confronted R.A. C.A. was upset and crying. She told Y.A. that R.A. didn’t have to leave, and that it was not his fault. After R.A. left C.A. sat on the couch crying and saying: “please forgive me”.

53Post-event demeanor evidence (as distinguished from demeanor in the witness stand) of upset is admissible to support an allegation of sexual assault: R. v. A.(J.), 2010 ONCA 491, 261 C.C.C. (3d) 125, at paras. 17-18. C.A. may have been upset because she had been sexually touched by R.A.; or, she may have been upset because the allegation had caused her family to break up; or both. To me it is instructive that she kept saying that what happened was not R.A.’s fault at the time she was emotionally distraught. It must be remembered that a sexual assault victim is not expected to act in any particular way. That said, C.A. was an 11-year old girl experiencing a traumatic event. Sexual assault victims often experience feelings of shame and guilt. They often – wrongly – blame themselves.

54I do not give the demeanor evidence as much weight as the text message. In combination, however, when stacked up against this evidence R.A.’s evidence is not credible and does not leave me with a reasonable doubt.

55Y.A.’s evidence also does not leave me with a reasonable doubt. Y.A.’s evidence corroborated R.A.’s evidence in some respects. It also corroborated C.A.’s evidence in some respects. The Crown argued that Y.A. obviously wanted to assist her husband. They now have a child together. The Crown argued that Y.A.’s evidence is suspect. I should only believe her evidence where it agrees with C.A.’s evidence.

56I agree that Y.A. tried, in her evidence, to assist R.A. I agree as well that Y.A. has credibility problems. Her story kept changing. She tried to suggest that there was a language barrier because she gave her police statement in English. I reject that. I observed the parts of her statement that were played in court to impeach her credibility. It was clear to me that Y.A.’s English is very good. She did not require an interpreter when she gave her statement to the police.

57I accept Y.A.’s evidence that she received a text message from C.A. indicating that R.A. had touched her.

58I do not accept Y.A.’s evidence – which was identical to R.A.’s evidence – that C.A. later told her she wasn’t sure if the incident had actually happened or it was a dream. C.A. denied that she had ever told her mother that it was a dream. She said that her mother had said it. On that point, I accept C.A.’s evidence and reject Y.A.’s evidence (as well as R.A.’s evidence on the point). I do so for this reason: C.A. consistently said (according to Y.A.) that it was her fault. That is not consistent with C.A. also saying that maybe the touching incident was a dream. As well, Y.A. agreed in cross-examination that C.A. had told her about the kissing incidents (although the timing and circumstances are unclear). It does not make sense to me that C.A. would make that disclosure but also say that maybe the touching incident didn’t happen or was a dream.

59I am frankly unsure whether to believe Y.A. that C.A. had asked R.A. for forgiveness at a dinner. C.A. did not agree that this happened. At the same time, C.A. did say that it was her fault. I cannot exclude the possibility that this is a confusion by either Y.A. or C.A. regarding what was said at that dinner. It could also be that Y.A. is confusing the day of the touching incident – after R.A. left the home, C.A. asked for forgiveness, but not because she was denying the touching but because she was upset about breaking up the family. I cannot resolve this inconsistency. At the end of the day, however, I do not think it is material. It does not leave me with a reasonable doubt.

(c) Am I satisfied beyond a reasonable doubt of the guilt of R.A.?

60The basic defence position is that C.A. fabricated the touching incident and the two kissing incidents. Mr. McCuaig argues that C.A.’s description of the sexual touching was inconsistent and what she testified to was physically impossible. He further argues that C.A. gave contradictory details at different times about the two incidents. Mr. McCuaig further argues that C.A. was motivated by resentment at R.A. after having spent time with her father.

61Respectfully, I cannot agree. I accept C.A.’s evidence in her s. 715.1 statement that R.A. sexually touched her and on two occasions kissed her. I am satisfied beyond a reasonable doubt that the incidents occurred.

62I accept C.A.’s evidence because of the important circumstantial evidence around the incident. As I have already noted the spontaneous utterance to her mother that R.A. had sexually touched her is highly probative. The demeanour evidence is also probative. As well, I find that the two kissing incidents are probative because they explain C.A.’s tension about the prospect that R.A. would “do something” to her. I am not left with a reasonable doubt by the problems in the Crown’s case identified by the defence.

63I will deal with the following areas for the purpose of analysis, although there is obviously overlap between them:

• Contradictions in the details of the sexual touching:

• Contradictions in disclosure at different times;

• C.A.’s alleged motive to fabricate.

Contradictions In The Details Of The Sexual Touching

64I cannot agree that R.A. is entitled to an acquittal simply because C.A. agreed at one point in cross-examination that what she had described was “physically impossible”. In cross-examination, C.A. readily agreed with different versions of which arm was wrapped around her and which hand touched her. She also readily agreed that if what counsel was suggesting was accurate, then the sexual touching was physically impossible. With great respect, this was not some kind of Perry Mason cross-examination “ah ha!” moment. C.A. was consistent about the three critical things: that R.A. touched her vagina; that she could not really remember which hand he used; and that the whole incident lasted no more than 8-10 seconds.

65Details are a funny thing. They may be important or unimportant depending on the case. They may be the hallmark of an honest witness who is doing her best to get the details right; they may be the hallmark of an honest but mistaken witness; they may be the hallmark of an unreliable witness; or they may be the hallmark of a witness who is lying. Whether a witness falls into one of these categories depends on the case, on the witness, on the details, and on the totality of the evidence. Demeanour on the stand in and of itself tells a trier of fact very little.

66When it comes to a child witness, one should not expect perfect consistency. As Wilson J. noted in R. v. B.(G.), 1990 CanLII 7308 (SCC), [1990] 2 S.C.R. 30, 86 Sask. R. 111, at p. 54-55:

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.

67In R. v. R.W., 1992 CanLII 56 (SCC), [1992] 2 S.C.R. 122, 137 N.R. 214, an adult witness testified about childhood events. McLachlin J. (as she then was) stated at paras. 24-25:

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.

68C.A. obviously testified as a child but McLachlin J.’s comments are applicable.

69It is not surprising that C.A. would readily agree to innocuous-sounding suggestions from defence counsel. It is also not surprising that any sexual assault victim, whether adult or child, had trouble remembering some details. I doubt very much that C.A. took any real notice of which hand R.A. was using when the incident was happening. Months went by before she was even asked about it. It is not surprising that months or years later a child cannot remember which hand was used and could easily be led into contradiction by a trained and experienced lawyer.

70Ultimately, I do not think I need to resolve the contradiction about whether R.A. touched C.A. with his left hand or his right hand. The Crown does not need to persuade me beyond a reasonable doubt that R.A. touched C.A. with a particular hand. The Crown only needs to persuade me beyond a reasonable doubt that R.A. did touch her for a sexual purpose. I am satisfied that R.A. did so.

Contradictions On Details Disclosed At Different Times

71C.A. was 11 at the time of the sexual touching, two months shy of 12 when she gave her police statement, 12 at the preliminary inquiry, and 14 when she was cross-examined at this trial. There is no question that C.A. gave some different details at different times, as I have set out.

72I deal first with disclosure of the kissing incidents. She initially did not disclose them to her mother or to the police in her statement. At one point, she told her mother about one kissing incident. She later disclosed two kissing incidents at the preliminary inquiry. C.A. was asked at the preliminary inquiry as to whether she had anything to add to her 715.1 statement, and she said no. Later in the preliminary inquiry she mentioned the two kissing incidents. She said that she had faked being asleep in the bedroom on the day of the touching incident because she was concerned that R.A. might do something.

73Mr. McCuaig argues that C.A. fabricated the kissing incidents because she needed to explain why she had been asleep on the bed. I cannot agree. In my view, the explanation makes sense. C.A. was concerned about another incident.

74Another contradiction is over what C.A. was actually doing prior to the touching incident. C.A. testified at different times that on the morning of the sexual touching they she was watching the news, watching a movie, or on her phone. In my view, this is not a material contradiction. The evidence is that the TV was also on. As well, C.A. was not required to think about this detail until months later, when she was asked about it in her police statement. Finally, I think I can confidently assert that in our society teenagers and phones are never separated without great angst and drama. I find that this is hardly a major contradiction and I do not need to resolve it. I am certainly not left in a state of reasonable doubt by it.

75An argument can be made that all the contradictions and disclosures may be innocuous individually but seen in totality they should leave a trier of fact with a reasonable doubt. That may be so in many cases, but every case must be evaluated on its particular facts. On the facts of this case, I do not agree.

C.A.’s Alleged Motive To Fabricate

76I turn next to the question of C.A.’s motive to fabricate. The defence theory is that C.A. fabricated the entire incident due to resentment of R.A. Things had deteriorated after C.A.’s father came to visit. Things were not going well at school for her. She had become more rebellious. She was being bullied at school. She resented R.A. after spending time with her father. She did not like the way he told her to do chores or her homework. She had seen pornography on the computer. As a result, she decided to fabricate an incident with R.A.

77I cannot agree that C.A. had a motive to fabricate. I am not left with a reasonable doubt as a result. The evidence suggests that far from being resentful, C.A. did not want to get R.A. into trouble. She obviously understood that an incident of sexual touching could do just that. C.A. initially disclosed the incident to her mother, but then backtracked because she was concerned that it would ruin her mother’s marriage to R.A. C.A. also asked her teacher not to say anything to the principal of the school. I do not agree that C.A.’s actions are hallmarks of fabrication. I see them as the actions of an 11-year-old who may not have understood, for example, that a teacher has an obligation to disclose a possible child sexual assault.

78C.A. consistently maintained that she did not want R.A. to get into trouble. The transcript of the video with Detective Arbus is revealing:

C.A.: I told her that she please don’t do anything about my stepdad cuz (sic) I told her about what happen and she did like tell the principal but she tell him to like kind of like be quiet.

ARBUS: So you told your home room teacher who told the principal but they kept it quiet cuz (sic) you asked them to.

C.A.: Cuz (sic) I they didn’t want him to like go away –

ARBUS: -mm-hmm –

C.A.: - cuz (sic) I know my mom love him and he was with me when my dad wasn’t there.

79C.A. also described backtracking on the allegation to her mother:

ARBUS: Um what about was there ever a time where you told your mom it didn’t happen?

C.A.: Yah.

ARBUS: Tell me about that.

C.A.: Ah when I was crying in my room like the same day. I’m like it didn’t happen.

ARBUS: Mm-hmm.

C.A.: Nothing happened but then she didn’t believe me.

ARBUS: Yah.

C.A.: And said you’re lying cuz (sic) you’re crying and you’re scared –

ARBUS: -mm-hmm –

C.A.: - and stuff like that and then I said to her yah it’s true he did touch me but then I was like but I didn’t do anything to him. Don’t you lie anymore cuz (sic) I was scared.

80C.A. consistently maintained that she knew her mother loved R.A., that she knew that her mother was in a relationship with him, and that she did not want the incident of sexual touching to destroy their relationship. It is purely speculative to suggest that C.A. resented R.A. because she missed her father. C.A. testified that her father was something of a stranger to her, as he lived in Chile and she did not see him that often. As well, Y.A. testified that C.A. was resentful and rebellious towards her mother as well as R.A. Moreover, the evidence is clear that C.A. did not respond well to R.A.’s method of tutoring in math well before the touching incident. Teenage and pre-teen rebellion – something every parent has experienced – are the far more likely explanation for C.A.’s attitude.

DISPOSITION

81I find R.A. guilty of both counts.