Introduction

[1] The accused, SA, has pleaded not guilty to one count of sexual assault, contrary to s. 271 of the Criminal Code, R.S.C. 1985, c. C-46 and one count of touching the body of a person under the age of 14 years for a sexual purpose, contrary to s. 151 of the Criminal Code. Both charges relate to a single alleged sexual assault that occurred 30 years ago in the fall of 1991, when the complainant, SG, the accused’s cousin, was four years of age. The accused was tried by me, sitting without a jury, over eight days in July and August 2021.

[2] The Crown called six witnesses including the complainant, her mother, father, sister, family doctor, a former babysitter, and her sister’s former boyfriend. The defence called the accused, his aunt, and another former babysitter.

[3] Only the complainant and the accused were able to testify about what is alleged to have occurred in the fall of 1991 that forms the subject of the charges before the court. At that time, the complainant alleges the accused was living with her family. She says the accused sexually assaulted her when her mother was away on a trip.

[4] The complainant gave detailed evidence of the alleged sexual assault which she says occurred in the basement of her family home. It is not disputed that the complainant was diagnosed with gonorrhea on October 1,1991, by her family doctor, Dr. N, who testified for the Crown. The theory of the Crown is that complainant contracted gonorrhea from the accused when he sexually assaulted her.

[5] The accused does not deny staying at the complainant’s family home in the fall of 1991 from time to time but denies living there. The accused denies sexually assaulting the complainant and denies ever being tested for, or diagnosed with, gonorrhea. The theory of the defence is that SG either contracted gonorrhea at birth or from the person who sexually assaulted her, which was not the accused.

[6] Given this conflicting evidence, as is often the case in sexual assault trials, the credibility and reliability of the witnesses who testified is central to this case.

Analytical Framework

Reasonable Doubt

[7] At all times, the onus to prove guilt of an accused beyond a reasonable doubt remains with the Crown. Each person charged with a criminal offence is presumed innocent and this presumption remains throughout the whole of the trial, unless and until the court is satisfied that the charge has been proven beyond a reasonable doubt. At the end of hearing the evidence and submissions, if I am not satisfied that the Crown has proven any element of the offence charged beyond a reasonable doubt, the accused will be acquitted of the charge.

[8] A reasonable doubt is not an imaginary or frivolous doubt. It is based upon reason and common sense and it logically derives from the evidence or the lack of evidence adduced during the trial. While likely or even probable guilt is not enough to meet the criminal standard, proof to an absolute certainty is inapplicable and unrealistic. As noted by the Supreme Court in R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144, at para. 242, there is no mathematical precision to proof beyond a reasonable doubt, but it lies much closer to absolute certainty than to proof on a balance of probabilities. After considering all the admissible evidence, if I am sure that SA committed the alleged offence, then I must convict him because I am satisfied of his guilt beyond a reasonable doubt. Likewise, if I am not sure, then I have a reasonable doubt and an acquittal must follow.

W.(D.) Analysis

[9] Given the conflicting evidence of SG and SA, credibility assessments are key to the determination of guilt or innocence in this case. Therefore, the three-step analysis set out at pp. 757-758 of R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742 must be followed to prevent the burden of proof shifting to the accused. The three steps are as follows:

I. If I believe the evidence of the accused, I must acquit him.

II. If I do not believe the accused’s testimony but I am left in a reasonable doubt by it, I must acquit him.

III. Even if I am not left in doubt by the evidence of the accused, I must ask myself whether, on the basis of the evidence which I do accept, I am convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

[10] At all times, it is important to keep in mind that the accused’s credibility should not be assessed solely in relation to the credibility of the complainant. This is not a credibility contest between SG and SA. The burden remains on the Crown to prove SA’s guilt beyond a reasonable doubt.

[11] In a case such as this, when dealing with two witnesses whose evidence is completely contradictory, an accused is not to be disbelieved simply because the complainant is believed: R. v. V.Y., 2010 ONCA 544, 258 C.C.C. (3d) 281, at paras. 19 and 26. An accused is not to be found guilty, after accepting the evidence of the complainant, without properly assessing whether the accused’s evidence, or the evidence as a whole, raises a reasonable doubt: R. v. J.H., 2018 ONCA 245, at para. 37.

[12] The mere disbelief of the accused’s evidence will not satisfy the burden of proof upon the Crown: W.(D.), at p. 757. If, after considering all the evidence, the court is unable to decide whom to believe, then the court must acquit. The court must be satisfied, on the totality of the evidence that there is no reasonable doubt as to the accused’s guilt.

[13] There is a line of cases that deals with the rejection of an accused’s denial of any wrongdoing. In R. v. D.(J.J.R.) (2006), 2006 CanLII 40088 (ON CA), 215 C.C.C. (3d) 252 (Ont. C.A.), at para. 53, Doherty J.A. found that the trial judge rejected the accused’s denial because when the accused’s evidence was stacked up against the complainant’s evidence and other evidence, despite the absence of any obvious flaws, it did not leave the trial judge with a reasonable doubt. The court found:

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 as is a rejection based on a problem identified with the way the accused testified or the substance of the accused’s evidence.

[14] This reasoning was followed in R. v. D.(R.), 2016 ONCA 574, 342 C.C.C. (3d) 236, at para. 18, where the court found that the bare acceptance of a complainant’s evidence and the bare denial of an accused’s evidence are not sufficient reasons. If a trial judge is to rely on D.(J.J.R.), the court must set out the grounds for accepting a complainant’s evidence.

Assessing Credibility and Reliability

[15] In R. v. Hall, 2021 ONSC 28, Goodman J. reviewed some general principles in credibility assessments at paras. 23-36. I summarize his review as follows.

[16] When assessing credibility, I can consider how reliably or accurately the witness recall events and the way the witness presents his or her evidence. This includes whether they do so in a truthful and complete manner and whether they are being frank, biased, or careless with the truth: Hall, at para. 29.

[17] Credibility is often challenged using inconsistencies from either prior statements or evidence given by the witness, or from other evidence presented at trial. Inconsistencies can be expected, particularly as it relates to relatively minor issues or detail. If, however, the inconsistency respects a material matter that is central to the elements of the alleged offence, the court must assess whether that inconsistency demonstrates a carelessness with the truth that undermines the whole of the witness’s evidence: Hall, at paras. 30-31.

[18] In assessing a witness’s credibility and reliability, while I can consider the way a witness testifies, I cannot overly rely on demeanour: R. v. D.P., 2017 ONCA 263, at para. 26, leave to appeal refused, [2017] S.C.C.A. No. 261.

[19] Myths and stereotypes about how someone should behave following a sexual assault have, at times, tainted sexual assault jurisprudence. The court must not draw an adverse inference regarding a complainant’s credibility based on assumptions of how people react to acts of sexual abuse: R. v. D.(D.), 2000 SCC 43, [2000] 2 S.C.R. 275, at para. 63.

[20] Further, it is open to a trier of fact to believe all, none, or some of a witness’s evidence: R. v. M.(R.E.), 2008 SCC 51, [2008] 3 S.C.R. 3, at para. 65. The trier of fact may also accord different weight to different parts of the evidence that has been accepted: R. v. Howe (2005), 2005 CanLII 253 (ON CA), 192 C.C.C. (3d) 480 (Ont. C.A.), at para. 44; R. v. M.M., 2018 ONSC 1022, at para. 143.

[21] In assessing SA’s evidence, the court must consider his evidence in the context of all the evidence: R. v. J.H.S., 2008 SCC 30, [2008] 2 S.C.R. 152, at para. 15.

[22] Where there are significant inconsistencies or contradictions within a principal Crown witness’s testimony, or when considered against conflicting evidence in the case, the trier of fact must carefully assess the evidence before concluding that guilt has been established: R. v. S.(W.) (1994), 1994 CanLII 7208 (ON CA), 18 O.R. (3d) 509 (C.A.), at para. 15, leave to appeal refused, [1994] S.C.C.A. No. 290.

[23] In R. v. M.(A.), 2014 ONCA 769, 123 O.R. (2d) 536, at paras. 12-13, the Court of Appeal noted that one 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 he or she has said on other occasions, whether or not under oath. Inconsistences may arise not just from a witnesses’ evidence at trial, but from what witnesses may have said differently in other instances. Some inconsistences are minor or deal with more peripheral issues. Some are material. Material inconsistencies, about which an honest witness is unlikely to be mistaken, may demonstrate a carelessness with the truth that should concern the trier of fact.

[24] Reliability is separate from credibility. Credibility focuses on a witness’s veracity. Reliability has more to do with accuracy – the ability to observe, recall and recount events that are in issue: R. v. C.(H.), 2009 ONCA 56, 244 O.A.C. 288, at para. 41. A witness may be credible but give unreliable evidence. A witness whose evidence is not credible on a certain issue cannot be reliable on that same issue.

The Evidence of Adult Complainants Testifying about Events When a Child

[25] SG is now 34 years of age. She testified about one incident that occurred 30 years ago, when she was four years of age. When an adult testifies about what occurred as a child, their credibility is to be assessed according to the criteria applicable to adults. With regard to an adult’s evidence regarding events that occurred in childhood, the presence of inconsistences, particularly peripheral matters such as time and location, should be considered in the context of the age of the witness at the time the events took place: R. v. W.(R.), 1992 CanLII 56 (SCC), [1992] 2 S.C.R. 122, at p. 134.

[26] That does not mean I accept SG’s evidence uncritically. I just assess the evidence on a common-sense basis, considering the strengths and weaknesses of the evidence presented.

Delayed Disclosure/Incremental Disclosure

[27] In R v. D.(D.), 2000 SCC 43, [2000] 2 S.C.R. 275, at para. 65, the court found that there is no inviolable rule with respect to how victims of sexual assault will behave. Some victims will make an immediate complaint, some will never disclose, and others will delay in disclosing the abuse. The reasons for delaying disclosure may include embarrassment, fear, guilt, or a lack of knowledge. In assessing credibility, the timing of the disclosure is just one factor to consider. A delay in disclosure on its own does not give rise to an adverse inference against the credibility of the complainant.

Review of the Evidence

[28] Historical sexual assault cases pose challenges because witnesses are asked to testify about events that occurred many years ago. In this case, the assault occurred on one occasion thirty years before. It is to be expected that memories fade over time, which can result in conflicting evidence as witnesses attempt to recall distant events. Not surprisingly, therefore, I heard a great deal of conflicting evidence, not only with respect to whether the sexual assault occurred, but also with respect to who was living in the home at the time, SG’s health prior to and after the alleged assault, an alleged confrontation between SA and SG’s father some time after the assault, and whether SA admitted to having gonorrhea in a meeting between SA and SG’s mother and sister.

[29] As a result of that conflicting evidence, I have made credibility and reliability assessments of several witnesses who testified. These assessments have led me to conclude that the Crown has not discharged its onus to establish the guilt of SA beyond a reasonable doubt. While I find that SG was sexually assaulted and this assault led to her contracting gonorrhea, I am not satisfied, beyond a reasonable doubt that it was SA who sexually assaulted SG.

[30] I will start with a review of the evidence presented by the Crown followed by a review of the defence evidence.

SG’s Evidence

[31] SG is currently 36 years of age. She was four when the alleged assault occurred. She has two older sisters and one older brother. In 1991, she was living with her parents, VB and OG, her brother and sister, STG, at a home on Chadburn Crescent (“Chadburn”) in Mississauga. As will be reviewed in these reasons, there is conflicting evidence about whether STG was living in the home at the time. SG testified that a nanny/babysitter, DC, moved into the home after the alleged sexual assault. She also testified that SA was living at the home and that he stayed in a bedroom located in the basement. These reasons will also review conflicting evidence with respect to when SA lived in the home and where he stayed when he did spend the night.

[32] SG testified that there were four bedrooms on the second floor of the home. Her parents shared one bedroom, she had her own, as did her brother, and the fourth became the nanny’s bedroom. She testified that she also used to share her brother’s bedroom.

[33] SG testified that when she was four, SA sexually assaulted her in the basement. She has a very clear and distinct recollection of the details of the assault, although she could not recall the exact date or time of year this occurred other than it happened when her mother was on a trip. She knew the assault occurred at night. She testified that SA was looking after her one evening as her father was working nights at a car manufacturer and her mother was away. She did not know where her mother was at the time, but she now knows that she was in England. She said her sister STG was out with friends and her brother was sleeping at a friend’s house. SA was watching her that night as no adults were home.

[34] SG testified that she went to bed in her bedroom, but SA then brought her downstairs to the basement bedroom and put her to bed there. She described the basement bedroom as very small. It only fit a bed. The light was on in the bathroom beside the bedroom.

[35] She woke up to SA pulling her legs toward the end of the bed. She was on her back. He removed her underwear and began to perform oral sex on her. She did not know how long it lasted but it felt like a long time. He then made her sit up. She was on the edge of the bed and her legs were dangling over. He pulled out his erect penis and said, “I did it for you, now you have to do it for me.” She recalled saying, “What?” She moved back, but he put his penis in her mouth. She testified that he held her head as he pushed his penis into her mouth repeatedly.

[36] She testified that he then pushed her back onto the bed and put his penis into her vagina. As her vagina was small, he used his hands to hold her vagina open. On cross-examination, she added a detail that he also made her hold her own vagina open. She did not know how long his penis was inside her, but she said it felt like a very long time. It was longer than the oral sex. She testified he put his right hand on her face and pushed her face into the bed. She said it was hard to breathe as her face was smothered into the bedding. She felt excruciating pain in her vagina and pain and pressure on her face as he pressed it into the bed. She also said she lay as still as she could and tried to play dead until he finished. She testified SA called her a “whore” as he penetrated her vagina with his penis and asked her if she had ever done this before. She recalled saying “What?” again. She also recalled saying things like, “No,” “Don’t,” “Stop,” and “Mommy.”

[37] Her evidence was that SA ejaculated, as she described a wet feeling and she heard him exhale and sigh. SA then made SG put her underwear back on and he put her under the blankets in the bed. She started to cry. SA yelled at her, “Shut up or I will give you something to cry for.”

[38] SA left the room. SG spent the night in the basement bedroom and SA slept on a sofa in the basement.

[39] She testified that SA was wearing green plaid boxer shorts.

[40] The following morning SG woke feeling very scared. She recalled being very quiet and shut down. She did not tell her mother or father about the assault because she was petrified of SA. A few days or weeks after the sexual assault, she recalled SA playing with her brother in the same bedroom. SA was tickling her brother as he lay on the floor. She approached SA and he pushed her away. She said to SA that she was going to tell her mother what he did. She recalled that SA said her mother would not believe her and she would get in trouble. She said he also threatened her brother by showing her his muscles and saying he was much stronger than her brother. She inferred that he meant he could hurt her brother.

[41] After her mother returned home from her trip, SG recalled telling her that it “hurt to pee.” There was an odour and discharge in her underwear, so her mother took her to her family doctor, Dr. Ng. According to Dr. Ng’s testimony, SA tested positive for gonorrhea on October 1, 1991. He referred her to a pediatrician as he had never had a patient so young diagnosed with gonorrhea. He also contacted the Children’s Aid Society ("CAS”) and police. The police investigated but no charges were laid at that time. It was not until SG disclosed the sexual assault to her sister in 2013 that charges were laid against SA.

[42] At the time of her doctor visit, SG was not told of the diagnosis, but she knew she was sick in her vagina area. She testified that her mother told her she had gonorrhea at some point. Her mother, VB denies, that she ever told SG that she had gonorrhea.

[43] SG disclosed to her family the sexual assault and who assaulted her for the first time in 2013. She was in Trinidad and Tobago with her sister, visiting her mother who had moved there in 2013. They were supposed to go to visit family, but SG did not want to go as SA was going to be present. She and her sister ended up on a beach and her sister asked her if SG knew what happened to SG when she was younger. This led to SG telling her sister what occurred and who assaulted her. SG then gave a statement to police in January 2014.

[44] SG testified she never told anyone about the sexual assault because she was afraid that SA would hurt her brother or that she would get into trouble. She also said she did not know at the time that what happened was wrong. She also said she blamed herself.

[45] During cross-examination, she was asked whether SA was around the house after the alleged assault. She testified that he was still around, but she could not recall if he stayed overnight. She then said she remembered SA coming back to the house at some point. Although she did not recall exactly when this occurred, she testified that it was after the police had been notified by Dr. N. She recalled that SA approached her, and she told him she was in trouble. She explained that she said this as the police had been contacted and were investigating. SA told her to blame her father for the sexual assault. Her evidence was that her father saw SA talking to her and yelled at him to get away from SG.

[46] SG’s evidence in chief was that there was one other occasion when SA was tickling SG and he touched her inappropriately over her clothes on her vagina. She said it was like a “whoopsie.” On cross-examination, she expanded her evidence and said SA grabbed her vagina aggressively. Although this was the first time she described this interaction in this way, she testified that she was now giving a more accurate description of this incident.

[47] SG was cross-examined about her health both prior to and following the sexual assault. While she agreed that she had incontinence issues when she was young, she insisted it increased dramatically after the assault.

VB’s Evidence

[48] VB is SG’s mother. She currently resides in Trinidad and Tobago. Prior to her retirement, she worked in Canada for 37 and a half years. She has four children. In 1991, she lived in a house on Chadburn. She also owned a second home on Frankston Road (“Frankston”)in Mississauga. She testified that she and her husband shared a bedroom, and that SG and her brother had their own separate bedrooms. The nanny, DC, had the fourth bedroom upstairs and SA stayed in the basement. On cross-examination she testified that SG and her brother never shared a bed and only shared a room if family came to visit. Her evidence was that she could not recall when DC came to live with them, but said it was when they were on Chadburn prior to 1991.

[49] During the trial, there was a great deal of conflicting evidence about whether SA, her nephew, lived at Chadburn at the time of the assault. VB testified that in September 1991 she travelled to England for two weeks. She testified that, at that time, her husband, SA, SG, her son, and DC, the nanny, lived on Chadburn. Her older two daughters did not live in the home as both had previously moved out.

[50] VB’s evidence was that SA lived in the basement of the home on Chadburn for two to three years prior to 1991. She described the basement as a self-contained apartment. She said he was still living at the home when she went to England but was gone when she returned.

[51] Her evidence was that, after her family moved out of Chadburn, a friend of the family bought the home and SA moved in with the friend. VB could not recall what year her family moved out of Chadburn. This is consistent with SA’s evidence that he moved into the house on Chadburn in 1996.

[52] VB testified that when she returned from her trip to England, she was giving SG a bath when she noticed a discharge from her vagina that she had never seen before. She saw a discharge again the following day. There was an odour and SG was scratching, so she took her to see Dr. Ng about two to three days after she returned home. He examined SG and did some tests. The same day, Dr. Ng told her that SG had gonorrhea. She said he told her that SG had been sexually assaulted, and she would have to contact the police

[53] VB testified that she never told SG that she had gonorrhea or asked her how she contracted it. She told her older daughters but told them not to tell SG. She first became aware that SG knew what happened to her when she made the disclosure in 2013.

[54] VB is still married to OG. They separated for a period after the alleged assault because she initially believed OG had sexually assaulted SG.

[55] VB testified about a meeting she had with SA at some point after SG’s diagnosis. There is conflicting evidence about how this meeting occurred, when it occurred, and what was said at the meeting. VB’s evidence is that, at some point, she got a call from her sister MB. MB is not SA’s mother. She said MB told her that SA’s girlfriend, who worked in a daycare, had gonorrhea. She said MB also told her that SA had gonorrhea. VB called her older daughter, STG, and told her about the phone call. She said she called SA and told him she wanted to meet him at the house on Frankston.

[56] VB, STG, and SA met at the house. VB testified SA asked her why she wanted to meet him. She told SA what MB had told her, and asked SA if he knew that SG had gonorrhea. Her evidence is that he said, “Yes.” She then asked him if he ever had gonorrhea and he said, “Yes.” She asked him if he was cured and he said he went to a walk-in clinic for treatment.

[57] VB could not recall when she had this conversation with SA, but when her memory was refreshed with her preliminary inquiry evidence, she said it was after the police investigation so in “1992 or thereabouts.” Her evidence was that until MB called her, she still thought OG had sexually assaulted SG.

[58] VB also testified that this conversation occurred when SA was married, although she did not know when he got married. On cross-examination, she was asked if it was possible that this conversation occurred in 2001 or 2002. She said she did not know, but she knew it was before she moved to Trinidad and Tobago in 2013.

[59] VB testified she called a social worker liaison with the police and gave her the information about the conversation and requested it to be investigated. The social worker told her it was too late and the case had gone cold.

[60] I also heard conflicting evidence about when STG and her boyfriend, PG, lived in the home on Chadburn. VB said they lived in the basement apartment on Chadburn well before 1991.

[61] On cross-examination, it was put to VB that she identified PG in her police statement, dated January 16, 2014, because PG was around Chadburn at the time of the assault. She denied this and said she identified him only because he had a relationship with STG. She repeated her evidence that PG left Chadburn “a long time before.”

[62] During the 2014 police interview, VB told police that PG used to sleep over a lot. While he was not living there, he was there a lot of the time and she was pretty sure he was gone at the time of the assault. On cross-examination, VB attempted to distance herself from this statement to police. She explained that when she said PG was at the house and slept over a lot, she meant prior to the assault. She said she told police about PG because he was a male figure who frequented the house prior to 1991. She denied that PG was at the house a lot in 1991.

[63] On cross-examination she was asked about her evidence that SA lived with them at Chadburn for two to three years. In her police statement, she had told the officer he lived at Chadburn with her for a year and then said it was a “good six months.” She explained that SA was always at the house and that it may have been that he lived there permanently for six months. She also said that she should have said that SA lived at Chadburn temporarily for two to three years.

[64] On cross-examination, she was asked about her evidence that SA was living at Chadburn when she left for England. In the statement she gave to police, she was asked twice if SA was living at the home when she went to England. In her first answer, she said that he lived at the house before she went to England and would still come around after he moved out. She was then asked by the officer if SA moved out before she left for England and she answered, “Yes.” When this was put to her on cross-examination, she repeated her evidence that SA did not move out before she left for England, but when she came back, he was gone. She testified that she could not recall what she said to police when she gave her statement in January 2014, seven and a half years before, but what she told the police officer is what she recalled at the time. She then said she did not review the statement before testifying and she did not recall what she said. She then suggested that SA might have moved out the same day she went to England, but she did not recall.

[65] VB would not agree that her evidence was inconsistent with her previous statement to police. She did not agree with the proposition that her memory would have been better in January 2014 than it was now. She did not agree that, in general, it was easier to remember something that just happened versus something that happened many years ago. Her answer was that “it depends”. At the end of this area of questioning, her evidence was that she could not recall if SA moved out before she left for England.

[66] She then testified that SA came to the house after he moved out but not as much. She could not recall if he spent a weekend after he left. She was asked about an answer she gave to the police about whether he would stay the night after he moved out and her answer was “not the night – no.” Her explanation for this discrepancy was that when she told the police he did not spend the night she meant that he would spend the night occasionally rather than regularly.

[67] VB recalled taking SG to see Dr. Bates, a pediatrician, after she was diagnosed with gonorrhea. She was asked about Mr. Bates’s report to Dr. Ng, dated October 21, 1991, which stated that VB had been in Europe for three weeks until September 26, 1991, and that while she was away SG was with her ex-husband, two daughters and son. She agreed that she did not mention that SA was also staying in the house but did not agree with the suggestion that she would have told Dr. Bates if SA was living there. She explained that she only mentioned the immediate family to Dr. Bates and did not think it was relevant at the time to tell the doctor about SA, even though Dr. Bates was seeing SG about having contracted gonorrhea through a sexual assault.

[68] She did not know why SA was not tested for gonorrhea during the police investigation in 1991, as she said he was living in the home at the time. Her evidence is that she would have told investigating officers that SA was living in the house. She did not agree with the suggestion that SA was not part of the police investigation in 1991 because he was not living at Chadburn at that time.

[69] VB testified that she did not recall SA being in the home alone overnight with SG.

STG’s Evidence

[70] STG is SG’s older sister by 14 years. She testified that in 1991, SG, her mother, father, brother, and nanny lived at the house on Chadburn. She said that her cousin, SA, was also there at the time. In September 1991, she was living at the house on Frankston. She was going through a break-up with her boyfriend, PG. She said she and PG, and her son, had been living in the basement at Chadburn before their relationship ended and she moved out. This was before her mother went to England in September 1991. She said she never lived at Chadburn when SA lived there. She said that PG did not have any sexually transmitted disease, nor did she.

[71] She testified that when the police investigated the matter SA was no longer living in the basement of the house and could not be located.

[72] STG was present when her mother met with SA at the house on Frankston. She recalled her mother asking him in a vague way if he knew what happened to SG and he started to cry. She testified he said he did not understand why he is always accused. She thought this reaction odd as she felt it did not fit what his mother had asked him. She did not hear her mother use the word gonorrhea with him.

[73] After refreshing her memory from her preliminary inquiry transcript, she testified that at this meeting SA said he had a sickness. She said he gestured to his genital area and said he had gone to a clinic. He did not use the word gonorrhea.

[74] She said this meeting occurred after 1991, as her son was born in March 1990 and he was one year old at the time of the meeting. On further questioning during cross-examination she testified she did not know exactly when this meeting occurred but did not think it was years after SG was diagnosed with gonorrhea.

[75] She never spoke to SG about her gonorrhea diagnosis or about the meeting with SA.

[76] On cross-examination she was asked if SA was living at Chadburn in 1991 and she said she was not sure where SA was at the time. She described him as transient and said he would stay with her mother and other people. She said he did not have a permanent address. She then said he was staying at Chadburn at the time, but not on a permanent basis.

[77] She agreed that she and PG were in a relationship in 1991 and lived in the basement of Chadburn in 1990 and 1991. She said that if SA stayed over while she and PG lived there, he would sleep on a couch. She was not sure of the date she moved to Frankston, but said it was in the fall of 1991.

[78] She was asked about evidence she gave at the preliminary inquiry that, at the time of the assault, she, her son, and PG were living in the basement of Chadburn. Her evidence in response was that she lived in the basement around that time, as she was transitioning between homes. She said she did not know specifically where she was, as she was between Chadburn and Frankston. She did not agree with the suggestion that she and PG were living in the basement in the fall of 1991 and said they were living at Frankston, though she did not know what month she moved to Frankston. She said that she may have misunderstood the question at the preliminary inquiry as now she firmly believes that when SG was assaulted, neither she nor PG were living at Chadburn. She said that her understanding of the question is better now than it was at the preliminary inquiry.

Dr. N’s Evidence

[79] Dr. N had a primary care medical practice until July 2021. He was SG’s doctor since her birth.

[80] Dr. N was familiar with diagnosing and treating gonorrhea. He testified it is a disease caused by a bacterium that is almost always transmitted through contact with a person carrying the bacteria in their bodily fluids. It can be spread by way of a contaminated object, but that is rare. If infected, the bacteria is found in a person’s genital area, throat, or rectal area, depending on where exposure occurred.

[81] Gonorrhea can be transmitted from a mother to child during birth. When this occurs, the infection will be found in the infant’s eyes or on their scalp. He explained that in Ontario every baby is given eyes drops in the delivery room for this reason, and all pregnant women are screened for gonorrhea during their pregnancy.

[82] He explained that if a male with gonorrhea performs oral sex on a female, the disease can pass to the genitalia if the male has gonorrhea in his throat. If the infection is in the penis, it can pass from penis to vagina if there is contact. There does not have to be penetration. It is also possible to transmit the disease through kissing if the gonorrhea bacteria is in the throat. He said that gonorrhea does not cause urinary tract infections (“UTI”), as gonorrhea is an infection in the vagina/cervix whereas a UTI is a bladder infection. Those two systems are different.

[83] Dr. N’s evidence was that gonorrhea is treated with antibiotic medication and can be cleared in three to five days.

[84] The most significant symptom is vaginal or penile discharge. Another symptom is pain on urination, but that is more common in men.

[85] Dr. N saw SG on October 1, 1991 and arranged for her to be tested for gonorrhea given her vaginal symptoms. As the test was positive, she was treated with antibiotics. A second test performed on October 4, 1991 was negative. Dr. N referred SG to Dr. B, as he had never seen a child who tested positive for gonorrhea. Dr. N also called CAS and the police.

[86] Dr. N testified that he believed SG contracted gonorrhea two to three days before he saw her, based on the information SG’s mother gave him about when she first noticed symptoms. He agreed on cross-examination that SG could have been experiencing symptoms for much longer than two to three days.

[87] Dr. N explained that some people who contract gonorrhea have no symptoms and may never develop symptoms, which is why it is such a transmissible disease. Others may present with symptoms within two to three days of exposure. If a person does develop symptoms, it is often within 10 days of exposure. He could not say when vaginal discharge would develop after being exposed to gonorrhea. If you do have symptoms, they will get worse over time.

[88] Dr. N testified that SG’s father, OG, tested negative for gonorrhea on October 15, 1991. He was tested by way of a urine test, which only tested for gonorrhea on his penis and not in his throat.

[89] Dr. N was VB’s doctor when she was pregnant with SA. He referred her to an obstetrician for the birth, so it is possible VB was not tested for gonorrhea before SG was born.

[90] Dr. N agreed that if a person is treated with antibiotics, they can have no symptoms the following day. He agreed that if OG was treated with antibiotics by October 10, 1991, he would have tested negative by October 14, 1991.

[91] He further testified that SG had significant bladder issues starting at the age of 18 months. He agreed on cross-examination that these problems lasted for a long time but did not get worse after she was diagnosed with gonorrhea. He said that untreated gonorrhea in a child does not create bladder issues. A typical symptom of gonorrhea can be pain with urination, but that is not because of a bladder issue.

[92] He testified he did a vaginal examination of SG on October 1, 1991. He agreed that if a four-year-old was subjected to 10 minutes of penetrative intercourse, he would expect to see a broken hymen. SG’s hymen was intact. He saw no damage or injury to her vagina. He would have expected to see signs of injury if she had been subjected to that kind of sexual assault. He was not sure if that damage would be visible a few weeks later.

OG’s Evidence

[93] OG is currently 83 years of age. Before his retirement, he worked steady nights at a car manufacturer from 6:30 pm to 7:00 am.

[94] He recalled living on Chadburn but could not remember when he moved out. He recalled that the nanny, DC, and SA lived in the home. SA lived in the basement. He testified SA lived with them at Chadburn for about a year, but he could not recall dates. When VB went to England, SA and DC were living at the house. He did not know when VB went to England.

[95] He did not recall being tested for gonorrhea.

[96] On cross-examination, he testified his daughter STG was in a relationship, but that she and her boyfriend lived at Frankston. He did not remember PG living at Chadburn.

[97] He denied that SG ever slept with him and said she had her own bedroom. He initially said there were times when he stayed at home alone with SG and later said he could not remember any such times.

[98] His evidence was that after VB returned from England and took SG to see Dr. N, he never saw SA again. He denied ever having a confrontation with SA about SG and agreed he would remember if he had.

[99] He agreed that he had a hard time remembering timelines and dates from events that happened over 30 years ago. For example, he did not remember STG and PG living in the house on Chadburn. Nor did he remember what year SA lived at the house. Yet, he recalled specifically that SA was living at the home when VB went to England.

[100] OG was confronted with the suggestion that he sexually assaulted SG. He was very angry and upset at that suggestion and denied that he would ever do that to his daughter.

PG’s Evidence

[101] PG testified he was in a relationship with STG for about four or five years but could not recall the exact dates. He recalled living with STG and her son at her parents’ home, but he could not recall the street. He recalled that her mother, father, and two younger siblings also lived in the home. He and STG had a bedroom in the basement. He could not recall when he moved out, but it was around the time they had a bad break-up. He could not recall VB going on any trips when he lived there. He has never been diagnosed with, or tested for, gonorrhea.

[102] He recalled that he moved into Frankston when he and STG broke up. He testified that STG stayed living in the basement when he left. He did not remember SA living at Chadburn.

[103] He recalled speaking to police in 1991, likely not much longer than a couple of months after he and STG separated. They told him that SG had a disease, but he could not recall if he was told gonorrhea. He recalled the police coming to the home, telling him SG had a sexually transmitted disease, and asking if he had anything to do with it. He said no and he never heard from the police again. He was never asked to be tested for gonorrhea. He said that, as the break-up with STG was so bad, he thought, at the time, STG might have been behind the police coming to see him.

[104] He testified there were times he was left in the house alone with STG’s younger siblings, including SG. He denied sexually assaulting SG.

[105] PG’s evidence was not shaken on cross-examination. I found him to be both credible and reliable. He admitted to frailties with his memory given the passage of time which I find to be a reasonable explanation for not remembering exact details of the time or dates when he lived with STG, her son, parents, and siblings.

DC’s Evidence

[106] DC worked for VB as a nanny. She could not recall what year she started or for how long she lived at Chadburn working as a nanny. She recalled that when she first moved into the house to work, VB and the two younger children lived there. OG also lived at the house, but she did not see much of him. She said SA would come and go and would take the children to school when VB worked nights. She looked after the children during the day. She had a bedroom on the top floor. She did not always spend weekends at the home. She said there were times SA slept over if he was taking the children to school in the morning. If he stayed over, he slept on the couch or in the bedroom in the basement, but she did not always know when he stayed over. She only remembers VB leaving once for an extended trip when she took the children to Disney.

[107] Shortly after she moved into Chadburn, DC recalled that SG would frequently cry at night with pain and burning in her vagina. She recalled that VB took SC to Sick Children’s Hospital quite a few times, but DC was never told what was wrong. Eventually she was told by VB that SG had been molested, but VB did not say when this happened.

[108] DC recalled that there were two older daughters who did not live at the house but would be over often.

[109] She testified that SG had her own bedroom, but often wanted to sleep with her brother as he had a waterbed.

[110] She agreed that she would have remembered if VB went to England while she was living at the house. She never lived in the house when PG was living there, and she recalled that no one was living in the basement when she first moved into Chadburn.

[111] On cross-examination, DC was asked about the statement she gave to the police in 2014 where she said SA was not living at the house but was there often. She agreed that her memory may have been fresher in 2014 than it was now. She was not sure if OG was living in the house.

[112] In her 2014 statement to police, she said she did not know where SA slept if he stayed over, but it would probably be in the son’s room as SG and her brother used to sleep together a lot because SG used to be afraid to sleep alone. When asked about this statement, she testified that it was a guess about where SA slept. She said that SA might also have slept on the couch or in the basement. She agreed that he did not live at the house when she did. She also testified she would be at the house the nights SA slept over. She thought SA lived in Toronto at the time with his parents and sister.

SA’s Evidence

[113] SA was originally from Trinidad and Tobago. He began living in Toronto in 1989 in a house with his parents on Northcliff Boulevard. He lived there for just over one year. He then moved back to Trinidad and Tobago, before returning to Canada in May 1990. He again lived at Northcliff Boulevard with his parents and sibling, and in 1991 moved with his parents to Marlee Avenue. After three years at Marlee, his parents moved to Florida, so he moved in with his brother for about one year. In 1996 or 1997, when his brother’s family expanded, he moved into the house on Chadburn. He testified that VB and her friend, K were living three as well. SG and her brother were living at another house with their father. SA lived at Chadburn for three months and then moved into his boss’s home in Mississauga.

[114] Prior to moving into Chadburn in 1996 or 1997, he would occasionally sleep over at Chadburn. Between 1991 and 1992, at times he would be at the house one to three times per week. He explained that he was staying there as his newborn son was hospitalized at Credit Valley Hospital for a period as he was diagnosed with sickle cell anemia in May or June 1991. As the hospital is only 10 minutes from Chadburn, it was easier for him to stay there to travel back and forth to the hospital. He and his girlfriend, the mother of his child, would take turns spending time with their son at the hospital. When he would sleep over, he stayed in one of the bedrooms upstairs. Prior to 1996, he never slept in the basement. He stayed in the basement when he lived at the house in 1996.

[115] SA was married twice. The first time was in February 2000. A copy of his marriage certificate was filed as evidence.

[116] He testified that he did not know that SG was diagnosed with gonorrhea in 1991. The police never spoke with him. He testified that he assumed VB knew where he was living in 1991, as he was living with his parents and his mother and VB are sisters.

[117] He did not recall VB going to England and he never stayed in the house on Chadburn when she was out of the country.

[118] He recalled speaking to VB about SG’s diagnosis in 2002. He remembers the year because his aunt was getting married in Toronto and he was the master of ceremonies at the wedding. He was also married at the time. He recalled a phone call from his cousin Gloria asking him to meet with VB. Gloria told him that VB said SG was sick, and VB wanted to talk to him as soon as possible as she thought he might have something to do with it. He drove to the house on Frankston and met with VB and STG. VB told him that SG was ill. He asked her what it had to do with him, and she told him SG had chlamydia. She told him it was an STD [sexually transmitted disease]. VB told him that she had pulled his medical records. He assumed she was looking at his medical records to see if he also had the disease. He told her he knew nothing about this, that these were serious allegations, and she should call the police. He then left and went home. He did not hear the word gonorrhea used. He only found out about gonorrhea in 2018 when he was arrested.

[119] SA denied telling VB that he had a sexually transmitted disease or gonorrhea. He never said he had a cold or sickness, gestured towards his genitals or that he sought treatment at a medical clinic.

[120] On cross-examination, he denied that VB called him directly to arrange the meeting. He went to the meeting assuming he was going to be accused, as his cousin told him that VB said SG had a sexually transmitted disease. This was the first time he heard this about SG. At the meeting, he was told that SG had the sexually transmitted disease was when she was a child. He agreed that when she was a child, he spent nights at the home.

[121] SA also denied having a confrontation with OG. He denied that OG ever told him to stay away from his daughter. He never told SG to blame her father.

[122] The last time he saw SG was at his aunt’s wedding in 2002.

[123] He has never been tested for, or diagnosed with, gonorrhea, nor have any of his sexual partners.

[124] He denied sexually assaulting SG. He denied threatening her or her brother.

[125] On cross-examination he explained that when he stayed at Chadburn, he did not always spend nights there as he might have the night shift at the hospital with his son. He agreed that he spent nights at Chadburn in 1991 and 1992, and that he would take SG and her brother to school some mornings because VB asked him to help. He testified DC was living at the house in 1991 when he was there. He said he may have spent nights at the home before DC moved in, but he could not recall when she moved in.

[126] He denied being married in 1991. It was put to him in cross-examination that in his police statement, dated August 22, 2018, he admitted being married in 1991. The following is the exchange from his statement:

Q. Yeah.

A. And what I find is extremely strange, maybe to be documented. If this, if this warrant was out for my arrest since ni-, 1991, right?

Q. Mm-hmm.

A. That’s when, that’s when…

Q. Yeah.

A. Right. 1991. Um, I got married. I got in and out of Canada numerous amounts of times. Of course, I got tickets. I got stopped maybe a couple times by the, by the police, or, you know, maybe driving, whatever the case is.

Q. Sure.

A. It would have-, I’m, I’m just., I’m just trying to think here. Um, it would have come out.

[127] SA testified it was an error if he said he was married in 1991. He said he was very nervous at the time. He had a girlfriend in 1991 but he was not married.

[128] On re-examination, he said that when he answered the question, he was wondering about why he was able to travel in and out of Canada if there was a warrant for his arrest in 1991. He had also been stopped by the police for driving tickets at that time, but not arrested.

[129] On cross-examination, he agreed that he came to Canada in 1970-1971 and, at that time, he and his family would stay with VB as well as other family in Toronto. He agreed he had a close bond with VB and her family.

[130] He also said that when he stayed overnight at Chadburn in 1991, he stayed in a bedroom upstairs. He did not recall anyone living in the basement. He said he stayed in either SG’s or her brother’s bedroom as they often shared a room despite having their own bedrooms.

[131] He agreed that it is possible he could have had gonorrhea and not known about it, as he was never tested.

[132] He agreed that OG was always working and there were times when he was at the home and OG was not there.

[133] On cross-examination, he said that STG, her son, and PG lived at Chadburn in 1991. When they were in the basement, he would sleep upstairs.

[134] He agreed that he might have slept over at the house in the fall of 1991. He was not at the house when police were investigating what happened to SG. He did not see anyone upset in the house or crying. He did not recall OG no longer living in the house in 1991.

[135] SA was questioned about his statement to the police, dated August 22, 2018, in which he described the meeting with VB at Frankston. He told the police that that VB said her daughter “is” sick. It was put to him that this meeting, therefore, occurred in 1991 at the time SG was diagnosed with gonorrhea. He denied this timeline and denied knowing that SG was sick in 1991.

[136] He agreed that he was in Trinidad and Tobago in 2013 but he did not see VB or SG at that time. He agreed that after he moved to Canada, he travelled back and forth to Tobago. As he did not have an Ontario Health Card in the early 1990s, he agreed he would have had to pay for any medical treatment, but he never required any treatment.

MB’s Evidence

[137] MB is VB’s sister and SA is her nephew. Her evidence is that she was never told by SA that he or a friend had gonorrhea. She testified that she never called VB to tell her that SA or his friend had gonorrhea.

[138] On cross-examination, she testified that years ago she heard that SG had gonorrhea because in 1991 the family was talking about it. She denied ever speaking to SA about SG having gonorrhea. She agreed she had a conversation with VB about SG having gonorrhea and that VB was upset.

[139] When asked where SA’s mother was living in the early 1990s, she said she would come and go from Trinidad and Tobago. She did not remember if her sister had an apartment in Toronto in the early 1990s and did not know where SA lived in 1991.

MR’s Evidence

[140] MR is VB’s niece. She testified that she came to Canada in 1987 to work as a nanny for VB in her home. She worked for her for nine months looking after SG and her brother. SG was three months old when she arrived.

[141] She recalled that SG was always crying and often vomited. She described her urine as being white and milky. She said SG’s eyes appeared to be infected and she had rash on her skin, but not her head. She would tell VB that she had to take SG to a doctor as something was wrong with her. She described SG as sickly. She said VB never took SG to a doctor during the nine months MR lived in the home.

[142] She said SG screamed when she urinated. VB told MR that her formula needed to be changed. Even when it was changed, SG still cried a lot. She did not agree that SG’s problems were a reaction to the formula. However, she agreed to some extent that SG was reacting to her formula as she could keep other types of food down.

[143] She testified that for the nine months she lived with VB, VB never took SG out of the house without MR coming, even on days MR was not working. According to MR, she went everywhere with VB if SG was with her.

[144] MR’s evidence was that she was never paid for her work. She left the position as she could not “take it anymore.” She would get only three to four hours of sleep per night. She said that VB brought her to Canada under false pretenses and told her that she had to work to pay back the ticket VB bought her. She agreed that VB’s treatment of her was not positive.

[145] She did not agree with the suggestion that VB could have taken SG to a doctor without her knowledge. Her evidence was that she was disappointed that VB did not take SG to a doctor because SG seemed so sickly.

Position of the Parties

[146] It is the Crown’s position that the complainant’s evidence of SA sexually assaulting her is reliable, credible, and should be believed. The Crown argues that any inconsistencies with SG’s evidence are with respect to peripheral matters and are to be expected given her age at the time of the assault. The Crown also argues SG adequately explained other inconsistencies and urges me to accept her explanations, especially given SG’s young age at the time of the alleged assault.

[147] The theory of the defence is that SG contracted gonorrhea either at birth or from someone other than SA. Defence counsel contends that SG’s evidence is neither credible nor reliable. Defence counsel points to the inconsistencies in the evidence of SG and other Crown witnesses. Furthermore, the defence argues that SA was unshaken in his evidence, which was presented in a logical, coherent, consistent, and unwavering fashion. Defence counsel says his evidence should be accepted or, at minimum, raise a reasonable doubt.

[148] If I do not accept SA’s evidence that he did not sexually assault SA, or if I am not left with a doubt, defence counsel contends that the totality of evidence presented by the Crown that I do accept is insufficient to establish SA’s guilt beyond a reasonable doubt.

Analysis and Findings

[149] Corroboration of SG’s evidence that she was sexually assaulted is not necessary to accept her evidence: R. v. A.G., 2000 SCC 17, [2000] 1 S.C.R. 439, at para. 30. The Crown argues that there is, however, additional evidence that exists independent of SG that can support her evidence: R. v. D.A., 2018 ONCA 612, at para. 19. In this case, the independent evidence is her diagnosis of gonorrhea on October 1, 1991. The Crown’s theory is that SG contracted gonorrhea when sexually assaulted in September 1991 by SA.

[150] I will first address why I accept the Crown’s theory that SG contracted gonorrhea when she was sexually assaulted, and not at birth.

[151] SG and her mother, VB, were asked several questions on cross-examination about SG’s health prior to and after the alleged sexual assault. Evidence suggested SG had a problem with incontinence and was seen by various doctors prior to 1991. The defence theory is that SG’s health issues, including the incontinence, were the result of undiagnosed gonorrhea which she contracted from VB through birth.

[152] MR was called to testify about her observations of SG being sickly when she was an infant. While I accept MR’s observations that SG’s urine was white and milky, she cried a lot, had a rash, and had discharge from her eyes, I heard no medical evidence that these symptoms meant she had undiagnosed gonorrhea.

[153] Dr. N was also questioned about this theory and he testified that an infant can be infected with gonorrhea from an infected mother through the birthing process. If that occurs, the infection will be in the infant’s eyes or scalp. For this reason, Dr. N explained that pregnant women are tested for gonorrhea early in their pregnancy and newborn infants are given eye drops at birth.

[154] There was no evidence that VB had gonorrhea during her pregnancy or that SG was diagnosed with gonorrhea at birth. According to Dr. N, if SG had been diagnosed with gonorrhea at birth, he would have been informed as he was her family doctor.

[155] Furthermore, there was no evidence presented that an infant who contracts gonorrhea through the birthing process can, four years later, develop symptoms of gonorrhea in her vagina if untreated. Thus, while SG had health issues including incontinence prior to her diagnosis of gonorrhea on October 1, 1991, there is no evidence that those health issues were symptoms of undiagnosed gonorrhea that she contracted from her mother through the birthing process.

[156] I accept Dr. N’s evidence that SG contracted gonorrhea through a sexual assault that occurred at some point prior to October 1, 1991.

[157] Having found that SG was sexually assaulted, the Crown must prove, beyond a reasonable doubt, that it was SA who committed the offence. The determination of this issue turns on my credibility findings in respect to both SG and SA.

[158] The credibility of a witness is determined by addressing the credibility and reliability of a witness. Trial judges rely on several factors to assess the weight to be given to a witness’s evidence. Some of those factors are set out in Darkins v. Jones, 2020 ONSC 1299, at para. 11:

Does the evidence make sense?

Does the evidence have an internal consistency and logical flow?

Are there any prior inconsistencies, and if there are, how significant are they and are they adequately explained?

Is there independent confirming or contradicting evidence?

Is there an interest in the outcome or motivation to lie?

[159] None of these factors are alone determinative. I have considered each of these factors in assessing the credibility and reliability of the witnesses.

SA’s Evidence and Credibility Findings

[160] I will first consider SA’s evidence. Based on the W.(D.) analysis, if I believe his evidence that he did not sexually assault SG, or if I do not believe him but am left with a reasonable doubt, I must acquit.

[161] SA denies sexually assaulting SA. This is not an issue about consent, given SG’s age. The only defence is that he was not the person who sexually assaulted her.

[162] I found SA testified in a manner that was logical and internally and externally consistent. He gave his evidence in a straight-forward manner. He was not evasive or defensive. While care should be taken when dealing with demeanour evidence – or how a witness presents – it is only one factor that I have considered in accepting his evidence that he did not sexually assault SG.

[163] SA made two admissions that were potentially damaging and supported the theory of the Crown. These admissions are a factor I have considered when assessing SA’s credibility.

[164] First, SG admitted that in the fall of 1991, when SG was sexually assaulted, he was spending time at Chadburn, including overnight stays. He also admitted to being at the house when either VB or OG were not home. While he did not agree that he lived at Chadburn, as some other witnesses testified, his admission places him in the home and gives him the opportunity to sexually assault SG as she described.

[165] I also find that his evidence about not living in the home, but spending time there, is consistent with DC’s evidence. I found DC to be a straight-forward witness with no motivation to fabricate or interest in the outcome. She gave her evidence in a direct and matter-of-fact manner.

[166] SA’s evidence that he did not live at the home is also consistent with PG’s and STG’s evidence. While there were inconsistencies with STG’s evidence with respect to when she moved out of Chadburn, she admitted that she and PG lived in the basement of the home during part of 1991 and that when they lived there SA did not live in the home.

[167] SA’s evidence that he slept in a bedroom on the second floor when he stayed over because SG and her brother would share a room is consistent with DC’s evidence that SG often slept with her brother. It was also consistent with SG’s evidence as she testified that she and her brother would share a bedroom, meaning there was an empty bedroom on the second floor.

[168] SA’s evidence that he moved into Chadburn in 1996 or 1997 is consistent with VB’s evidence, as she testified that he returned to live in the home sometime after the family moved out.

[169] The second admission SA made that supports the Crown’s theory is that he met with VB and STG to discuss SG’s diagnosis. While the date and content of that meeting is disputed, SA’s evidence was consistent with STG’s evidence that he was upset at the meeting because he felt accusations were being made against him. While STG testified that she found his reaction strange, I find SA’s response to be reasonable under the circumstances. His evidence was that he was close to VB and he was upset as he felt she was making allegations about him.

[170] SA’s evidence was that his first marriage was in 2000. He testified that when he met with VB at Frankston he was married. This corresponds with VB’s evidence as she testified that he was married at the time of the meeting.

[171] I also found that SA agreed with reasonable suggestions made to him by the Crown on cross-examination. For example, he agreed he could have had gonorrhea as he was never tested. He agreed he and his family would stay with VB when he initially came to Canada in 1970-1971. He agreed he had a close bond with VB and her family, and he agreed that OG was always working, creating times when he was at the home when OG was not.

[172] SA was unshaken in cross-examination with respect to his denials of sexually assaulting SG. He was questioned about an alleged inconsistency in his statement to the police about whether he was married in 1991. However, when I read the excerpt from the transcript of the police interview, I accept his evidence on re-examination that he was not saying he was married in 1991 when he gave that answer. This was not, therefore, an inconsistency.

[173] He was also questioned about the contradiction between his evidence that he met with VB in 2002 and VB and STG’s evidence that the meeting occurred several years earlier. While the meeting may have occurred at some point closer to the time that SG was diagnosed, in my view, the more critical issue is what was said at the meeting and whether SA admitted to having gonorrhea, not the timing of the meeting. In that regard, SA’s evidence that he was not asked if he had gonorrhea, and that he did not have gonorrhea, was not successfully challenged in cross-examination.

[174] SA’s reliability and credibility was not challenged and I accept his evidence that he did not sexually assault SG. He did not display a selective memory for facts supporting his defence. In fact, he made important admissions with respect to his residency at Chadburn at the time the sexual assault occurred and the meeting with VB and STG about SG’s diagnosis.

[175] While that would end the W.(D.) analysis, I will go further and review the evidence presented by the Crown to assess whether the evidence that I do accept would be sufficient to establish the guilt of SA beyond a reasonable doubt.

SG’s Evidence and Credibility Findings

[176] Defence counsel did not question, nor do I draw any adverse inference from, SG’s delay in disclosing and reporting the alleged assault. It is not uncommon for victims of sexual assault to delay reporting for a substantial period. A delay in reporting, on its own, is not a basis to question the credibility of SG.

[177] SG was cross-examined extensively about her evidence that she tried to convince herself that what had occurred was a nightmare. She did not agree with the suggestion that she repressed her memory but said she was successful in thinking it was a nightmare and she did that to survive. She also described that she “successfully beguiled myself” into believing what occurred to her was a nightmare to protect herself from the memories. She insisted that despite using this coping mechanism to suppress the memories, she always remembered that SA sexually assaulted her. She buried the memory to survive. I accept her explanation. While there was extensive cross-examination of SG with respect to this issue and whether she suppressed her memory and then recovered it, I find that a victim of sexual assault, particularly at such a young age, may have required different coping mechanisms, including suppression of memories, to deal with the trauma.

[178] During her examination-in-chief, SG’s evidence about the sexual assault was clear and detailed. SG had a vivid recall of the particulars of the alleged sexual assault. She recalled where the assault occurred, what SA was wearing, what he said to her, and particulars of the oral and penetrative sex. She was very emotional when she testified about the assault, which I found to be genuine.

[179] Despite the clarity when she testified in chief, throughout her cross-examination, which was conducted in a thorough yet respectful fashion, SG was argumentative, defensive, and combative. That type of behaviour or demeanour does not, however, on its own, detract from her credibility. In my view, to be questioned about a sexual assault that occurred at such a young age would be extremely difficult and challenging. For that reason, wide latitude must be given in assessing how a victim of sexual assault presents while testifying about such a personal and violating act. Victims of sexual assault may be reluctant, defensive, angry, sad, or defiant when they testify. The court should accept a wide range of demeanour as normal when complainants are questioned in a thorough manner, as SG was, and be very cautious about using that demeanour as a significant factor when assessing the credibility and reliability of a victim of sexual assault.

[180] Through cross-examination, however, there were many areas in which SG’s credibility and reliability were challenged. I have carefully reviewed her evidence and the alleged inconsistencies. Some of the inconsistencies do not lead me to conclude that SG was not credible, as some can be attributed to frailties of memory caused by the passage of time, particularly given her young age at the time of the alleged sexual assault. There were other inconsistencies for which SG provided a reasonable explanation. However, there were some inconsistencies that SG was extremely reluctant to acknowledge, leading to what I considered to be unbelievable explanations that gave me concern with the reliability and credibility of her evidence in general. I will provide specific examples of when I found SG to not be credible or reliable.

[181] Her cross-examination revealed several inconsistencies in her evidence. These inconsistencies were in respect to both prior inconsistent statements and evidence from other witnesses. Without admitting the inconsistencies, SG was able to provide some explanations that I found to be logical and reasonable. For example, she explained that she did not disclose what SA said to her during the assault, either at the preliminary inquiry in 2020 or when she spoke to the police in 2014, as SA’s words haunt her and she was not ready to recount what he said in order to protect herself. She testified that recalling what he said led her to have suicidal thoughts. I accept that explanation as victims of sexual assault may give incremental disclosure over time.

[182] Having said that, I do have some concern with new evidence of several specific details being provided for the first time 30 years after the alleged sexual assault. The additional details included not only what SA said to her, but also that SA moved her from her bedroom to the basement, that she had to help hold her vagina open, that there was a confrontation with SA at some point after the sexual assault where he told her to blame her father, that she believed she may have saved her brother from the same fate when she walked in on SA tickling him, and that SA may have been grooming her brother as he groomed her when SA tickled her and grabbed her vagina aggressively, which at the preliminary inquiry she described as SA’s hand slipping. It is common sense that the passage of time generally dulls memories or increases the likelihood of the formation of inaccurate recollections. In this case, SG gave several details that she had never provided before which seem to be for the sole purpose of painting SA in a negative or unfavourable manner. I have also considered this new evidence when assessing SG’s credibility and reliability.

[183] What was also troubling was SG’s unwillingness to acknowledge the potential frailties and inconsistencies with her memory, particularly when testifying about events that occurred 30 years ago. She was often evasive in cross-examination and had to be instructed to answer questions more than once. At times, she answered questions with questions of her own. She was unnecessarily argumentative with defence counsel throughout the entire cross-examination. To be clear, defence counsel asked questions in a respectful and proper manner. There was no badgering or abusive treatment of SG. While I do not base my reliability and credibility assessment of SG solely on her demeanour, her evasiveness, combativeness and non-answers are factors that I have considered in assessing her credibility and reliability.

[184] Also concerning was SG’s inflexibility, intransigence, and reluctance to admit or agree with several reasonable suggestions put to her on cross-examination. While a number of these suggestions may have been on peripheral issues, her refusal to agree to what I found to be reasonable suggestions, and her refusal to acknowledge any possible or potential frailties with her memory, leads me to question the credibility and reliability of her evidence.

[185] For example, SG was questioned about whether she was in school at the time of the sexual assault. While I would expect that she might not remember if she was in school at that time, rather than reasonably acknowledge uncertainty, SG would not agree with the reasonable suggestion that most children start school at age four or five or that she might have been in school at the time of the assault.

[186] Another example was when she was asked about a medical report about her, dated July 29, 1991, by a doctor who Dr. N referred her to for her incontinence. She was questioned extensively about her health prior to the assault as part of the defence theory that she contracted gonorrhea at birth and that her health issues were symptoms of undiagnosed gonorrhea. I would expect SG to have difficulty remembering with any specific clarity whether she had health issues because she only four years of age at the time. SG was asked about this medical report which said SG’s name in the “re” line. In the first paragraph of the body of the letter, the pronoun “he” was used in one sentence. As a result of the use of that pronoun, SG’s evidence was that she did not know if the report was about her. Rather than agree with the possibility that it was a typing error or simply state that she had no recollection of seeing that doctor, which is to be expected as she was only four at the time, SG was combative and argumentative with defence counsel and refused to accept even the possibility that the medical report was about her.

[187] A third example is when SG was cross-examined about her evidence in chief that SA moved her from her bedroom on the top floor to the basement bedroom. She initially agreed with the suggestion that she never disclosed this information either to the police or at the preliminary inquiry. She said she was giving more detail at trial. SG was then asked about her evidence at the preliminary inquiry when the Crown asked why she was sleeping in the basement and she responded that her father often worked nights and she was moved to the basement, but did not know why. In the transcript from the preliminary inquiry, the Crown stated, “And I appreciate you may not remember who moved you,” to which her recorded response was “M’hm.” During cross-examination at trial, there was an extended back and forth between her and defence counsel about what “M’hm” meant. SG refused to consider the possibility that “M’hm” meant “yes,” and that at the preliminary hearing she might have been agreeing with the Crown’s proposition that she did not recall who moved her to the basement. Again, I don’t find that my credibility assessment of SG is solely impacted by her recollection of whether SA moved her downstairs or not. However, I am concerned by her reluctance to even acknowledge, when questioned by defence counsel, that perhaps the passage of time has meant she might not have an exact recall or memory of who moved her.

[188] During cross-examination, SG, without being asked, gave evidence about attending Sick Children’s Hospital in January 1993 to discuss what happened to her in 1991. She testified that when she saw the social worker she emotionally shut down and did not want to talk to anyone. Her evidence was that she was interrogated by the social worker and felt scared. SG said the social worker would ease up when SG agreed with what the therapist said, and she just wanted the therapist to stop asking her questions about the assault. She was then asked questions about the report form Sick Children’s prepared by the therapist that stated that SG said her father touched her in the privates once. The report contained several other statements attributed to SG that were in quotations such as, “He touched my gina”, “He seemed to like it. I didn’t like it” and that it “did not feel nice”. For the most part, SG denied making the statements, saying it was the therapist’s interpretation of what she said. She also testified that she had a vivid recollection of meeting the social worker and did not recall her taking any notes. She said she did not say any of the things in quotations in the report and that her evidence at trial was her truth. She also said that the therapist tried to coerce her to say something about her father. As the author of the report was not called to testify, I cannot conclude that this was a prior inconsistent statement made by SG given her denials of making the statement.

[189] A very significant concern regarding SG’s reliability was her insistence, more than once, that she had given certain evidence at the preliminary inquiry when she had not. This occurred when SG faced the suggestion that she was giving certain evidence for the first time at trial. Rather than acknowledging it as new evidence, SG insisted that she had given the evidence at the preliminary inquiry held one year before. When confronted with the fact that she had not given that evidence, SG then insisted that her evidence had been redacted from the transcript. Even after I assured her that the transcript the Crown provided her to review prior to the trial was complete, she repeated the same claim when confronted with a second inconsistency.

[190] The first time this occurred, SG was being cross-examined about the inconsistency in her evidence with respect to whether SA said anything to her when she was being sexually assaulted. During her evidence in chief, she testified about specific things SA said to her. SG was then confronted with her preliminary inquiry evidence that she did not recall SA saying any words to her. When confronted with this inconsistency, she said she testified at the preliminary inquiry that she did not recall what SA said “verbatim.” She also insisted that her answer at the preliminary inquiry was that SA was not mute and that he communicated with her. She also said that at the preliminary she asked defence counsel if she wanted to share her nightmares with her as well. Defence counsel put to SG that she had never gave this evidence at the preliminary hearing and was just making it up. SG denied this. This exchange repeated itself. SG then said she “objected” and claimed that the copy of the transcript she received from the Crown was redacted and all her evidence was not in the transcript.

[191] To investigate this issue, SG was excused from the courtroom. In SG’s absence, the Crown explained that she had redacted any objection or discussion of legal issues from the transcript, but SG’s evidence remained and was not redacted. It was agreed that I would explain this to SG, which I did.

[192] After my explanation, and further questioning, SG eventually agreed that she did not use the word “verbatim” or say that SA was a mute at the preliminary hearing. Her explanation for why it was not in the transcript was that she might have thought it.

[193] SG’s explanation rings hollow given her combative exchange with defence counsel and insistence on the transcript being incomplete. While delayed or progressive disclosure in and of itself is no basis to question a complainant’s credibility, in this case, I am troubled with SG’s changing evidence about the inconsistency.

[194] The second time SG suggested the transcript had been redacted was when SG was questioned about her evidence that she saw SA at the house at some point after the assault. She said SA told her to blame her father and her father yelled at him to get away from her. It was put to SG that this was the first time she gave this evidence. In response, she said that at the preliminary inquiry her evidence was that her father is her hero, greatest protector, and would never hurt her. She said she had described the backyard interaction. When again confronted that she never gave this evidence, SA asked defence counsel to search the transcript for the word “protector” and then again insisted that “chunks” of her evidence were missing from the transcript. She also stated she had concerns with the accuracy of the transcript. I again assured her that none of her evidence was missing.

[195] SG eventually conceded that this was the first time she had expanded upon her last interaction with SA. She thought perhaps she had not used the word protector at the preliminary inquiry. She then said that her father loved her and would never hurt her.

[196] What I find troubling is SG’s insistence that she gave specific evidence one year earlier at the preliminary hearing, to the point where she challenged the accuracy of the transcript more than once and suggested her evidence had been removed. This leads me to have significant concerns regarding her reliability as a witness.

[197] SG was very insistent that she had given very specific evidence at the preliminary hearing one year ago that she had not in fact given. She was similarly insistent about the clarity of her memory with respect to the details of the sexual assault and who sexually assaulted her 30 years ago. If her memory of her evidence just one year ago can be so inaccurate, it leads me to question the reliability of her memory of events that occurred 30 years ago and the identity of the person who sexually assaulted her. It is also concerning that when faced with an inconsistency, rather than explaining or accepting prior evidence, SG insisted that her evidence had been removed from the transcript.

[198] SG may have convinced herself that she gave specific evidence at the preliminary inquiry when in fact she had not. Alternatively, SG may have been seeking to justify the inconsistency by insisting her evidence was redacted. Either way, it leaves me with concerns of SG’s reliability and credibility generally as it suggests a degree of carelessness with the truth, which is concerning as it is her evidence alone that identifies SA as the person who sexually assaulted her.

[199] There were aspects of SG’s evidence that were detailed, clear, and believable. While she was unshaken in her evidence about the assault itself, there were areas of her evidence that leave me with significant concerns about whether her evidence can be relied upon regarding the identity of who sexually assaulted her.

VB’S, STG’S and OG’s Evidence

[200] There were several internal and external inconsistences with VB’s and STG’s evidence on the two issues for which they were called to testify, which leaves me with concerns regarding the reliability of their evidence.

[201] Both witnesses were called to give evidence about whether SA was living or staying at Chadburn in 1991. In that regard, both were very clear in their testimony that in September 1991, SA was living at Chadburn. Cross-examination revealed inconsistencies with their evidence from the preliminary inquiry. VB was also questioned about inconsistencies about what she told the police. My impression is that VB was very earnest to establish that SA lived in the home in the fall of 1991 at the time VB travelled to England, and thus had opportunity to sexually assault SG. She became very defensive when confronted with inconsistencies that differed from the narrative she was presenting of SA being a permanent presence in the home for a number of years leading up to the assault. I also note that even after being directed to what she told the police and at the preliminary hearing, she still insisted that that she was 100 percent certain that SA lived at Chadburn after PG left.

[202] VB was also confronted with the report from Sick Children’s Hospital where she brought SG to see a social worker and art therapist in January 1993. In that report, the therapist reported that VB told her that in September 1991, she went to Europe for a trip. She indicated that her two older daughters looked after SG and her son and that STG’s boyfriend PG was also at the home. VB said this was not correct and that despite what is the report, PG was not living in the home when she went on her trip. VB testified that she could not recall if she told the therapist SA was living at Chadburn when she went on her trip. I do not consider this to be an inconsistent statement, however, as VB did not recall what she told the social worker and the social worker was not called to testify.

[203] The inconsistencies in VB’s and STG’s evidence and the answers given when cross-examined revealed that both VB and STG were not certain about when SA lived at Chadburn and resiled from their original evidence that SA was living in the home in the fall of 1991. Their evidence in that regard is not that critical, however, as SA himself conceded that he was staying at Chadburn at times, including overnights, in the fall of 1991. Based on his own evidence, I am satisfied that he had the opportunity to sexually assault SG.

[204] The inconsistencies with VB’s and STG’s evidence regarding the living arrangements at Chadburn reveal frailties with their memories. That is to be expected, as they were testifying about events that occurred 30 years ago. I do not find that they were being deliberately untruthful, but these inconsistencies leads me to question their reliability as witnesses. This is not only with respect to who was living in the house around the time of the sexual assault, but also with respect to the meeting with SA where both say SA made some kind of admission about having gonorrhea or an illness.

[205] As a result of these inconsistencies, I do not accept VB’s evidence that SA was living at Chadburn for two to three years prior to September 1991 and was still living there when she went to England. This is inconsistent with what she told the police in January 2014 and inconsistent with STG’s, PG’s, and DC’s evidence. Both STG and PG testified that SA did not live at Chadburn when they lived at the home, although STG said he would stay overnight which was consistent with SA’s evidence. Furthermore, according to STG, she, her son, and PG were living at Chadburn in 1990 and for some period in 1991 which means that SA was not living in the home for two to three years before VB went to England.

[206] PG testified that he spoke to the police during its investigation. SA was not contacted. If SA was living at the home for two to three years before the sexual assault, as VB initially said, it defies common sense that VB would not tell the police about SA and that he would not be interviewed.

[207] The second area of inconsistency is VB’s and STG’ s evidence about the meeting with SA at the house on Frankston. While there is no dispute that there was a meeting, there is an inconsistency between VB and STG about what was said at that meeting and further inconsistencies with respect to how the meeting was arranged and when it occurred.

[208] VB testified that she was 100 percent certain that her sister, MB, called her and told her that SA had gonorrhea. MB denied this. I accept MB’s evidence as she also testified that she would have wanted to help her sister and give her information if she had it. There was no basis for her to fabricate evidence to support SA.

[209] VB also testified that she was 100 percent sure SA told her that he had gonorrhea at the meeting. STG was equally certain that the word gonorrhea was never used. STG adopted her evidence from the preliminary inquiry that for cultural reasons, SA would not have said he had gonorrhea, but would have alluded to being sick. SA also denied there being any reference to gonorrhea, but said the word chlamydia was used by VB. Given the unreliability with VB’s evidence generally, I accept SA’s and STG’s evidence that the word gonorrhea was not used at the meeting. This leads me to have further concerns with VB’s reliability as a witness if her memory of a detail for which she claims to be so certain is not accurate.

[210] I also accept SA’s evidence of the timing of the meeting for two reasons. First, both he and VB testified that he was married at the time of the meeting. According to his evidence, which I accept, he was married for the first time in 2000, meaning that the meeting did not take place in or around 1991 or 1992 as VB and STG testified. Secondly, VB testified that she contacted a social worker who worked with the police after the meeting to have them investigate SA’s admissions, and she was told that it was too late as the case had “gone cold.” If this meeting occurred around 1992, it defies common sense that the police would not follow up to speak to a person who was living in the house in 1991 and admitted to being diagnosed with gonorrhea, the same disease transmitted to the four-year old victim during the sexual assault.

[211] I also have concerns with OG’s reliability. He agreed with the suggestion that he has trouble recalling timelines from 30 yeas ago. For example, he could not recall when STG and PG lived at Chadburn or the years that SA lived at Chadburn. He also did not remember that he was tested for gonorrhea in 2013. Despite these deficits with his memory, which is not unexpected at 83 years of age, he had a distinct memory that SA lived at Chadburn when VB went to England. I have difficulty reconciling the frailties of his memory in many areas, but a singular clarity that SA lived in the home at the alleged time SG was sexually assaulted.

[212] OG became very angry when confronted with the suggestion that he sexually assaulted SG. This was not, however, the first time he was confronted with this accusation, as VB believed he was the perpetrator for a time and they temporarily separated as a result. He reacted with surprise and then was very angry when being cross-examined as if he was being confronted with this accusation for the first time. I found his reaction to be less than authentic for this reason.

[213] According to medical records from Dr. N., OG tested negative for gonorrhea a couple of weeks after SG tested positive. That does not mean that he did not have gonorrhea at some point prior to the sexual assault. Dr. N agreed with the suggestion that if OG received treatment for gonorrhea within days prior to being tested, he would have then tested negative. Thus, the negative gonorrhea test from October 15, 1991 is not in and of itself conclusive that OG did not have gonorrhea at some point prior to the test.

[214] While I make no finding that OG was the person who sexually assaulted SG, as he was living at Chadburn at the time of the sexual assault and therefore had the opportunity to do so, this is a factor I have considered when finding that I am left with a reasonable doubt with respect to whether it was SA who sexually assaulted SG.

Summary

[215] In denying that he sexually assaulted SG, there is no onus on SA to prove who assaulted SG. In acquitting SA, I do not have determine who sexually assaulted SG. I must only assess if, based on the evidence that I do accept, the Crown has proven beyond a reasonable doubt that it was SA who committed the offence.

[216] Having considered all the evidence and my conclusions regarding credibility and reliability, I accept SA’s evidence that he did not sexually assault SG. Even if I disbelieved his evidence or if I did not have a reasonable doubt, after reviewing and assessing the remaining evidence as a whole, including the inconsistences and contradictions with the evidence of SG, STG, OG and VB, I am not satisfied beyond a reasonable doubt that it was SA who sexually assaulted SG.

Shaw J.

Released: November 2, 2021

R. v. S.A., 2021 ONSC 7281

Case Summary