ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR-19-50000782

DATE: 20211130

BETWEEN:

HER MAJESTY THE QUEEN

– and –

A.S.

Defendant

Ken Lockhart, for the Crown

Monte MacGregor, for the Defendant

HEARD: November 8-10, 12, 15, 2021

P. campbell j.

reasons for judgment

BACKGROUND

[1] A.S., now age 72, was born in Poland and came to Canada in 1972. He is married and has two adult children from a previous marriage.

[2] Mr. A.S. stands charged with three offences involving B.S., the stepdaughter of his brother, who is himself an immigrant from Poland. It is alleged in count 1 that between 1992 and 1994, when B.S. would have been about six to eight years old, Mr. A.S. committed the offence of sexual interference by placing his face on her buttocks. It is alleged in count 2 that during those years he also committed the offence of invitation to sexual touching by exposing himself and inviting B.S. to touch his penis. Finally, it is alleged in count 3 that he committed sexual assault in the years 2000 – 2004, while B.S. was a teenager, by touching her breasts and thighs as she sat on his lap working on a computer. There are no issues of identity or consent raised by the parties; the only question is whether the sexual misconduct alleged against Mr. A.S. took place. The only witnesses were B.S. and Mr. A.S.

[3] B.S. was born in Poland in 1986 and emigrated to Toronto with her mother, J., just before her fifth birthday in 1991. They left behind her biological father and two older brothers. B.S. testified that she had been brought up in an atmosphere of abuse and violence, which was the reason for her mother’s divorce and their departure from Poland. B.S.’s father had beaten her brothers, which she had witnessed, and her mother abused her both physically and psychologically. She suffered from post-traumatic stress due to her upbringing and sought therapy for it as an adult.

[4] Sometime after their arrival in Toronto, J. developed a relationship with J.S., the older brother of the defendant, which led to marriage. The couple moved into a ground-floor apartment on Finch Avenue West when the complainant was about six years old. They were joined there by A.S., whose wife and children were living in Calgary while he worked in Toronto. Mr. A.S. occupied one of the two bedrooms, while B.S., her mother, and her stepfather had the other. B.S. alleges three incidents of sexual impropriety on the part of Mr. A.S. at this location, but only the second and third are the subject of charges.

[5] B.S.’s family lived in four different residences during the years of her contact with Mr. A.S., though the dates of occupancy were not precise. After a year in the ground-floor apartment, she and her parents moved to a higher floor in the same building on Finch Ave. West, without Mr. A.S. While she was still in elementary school, they moved to a home on Hun Crescent for a short time until the purchase of a second home on Marchbank Court, in Rexdale, where they remained throughout her high school and university years.

THE COMPLAINANT’S EVIDENCE

The Bathtub Incident

[6] B.S. recalls taking a bath in the only bathroom in the Finch Ave. ground-floor rental unit. Her mother came in to say that Mr. A.S. had to use the bathroom and instructed her to close the shower curtain around the bath, which she did. She testified that when Mr. A.S. was in the bathroom, he pulled open the curtain a couple of times and looked at her, saying nothing as he did so. She said words like “no” or “don’t” but nothing else. There was, in her recollection, perhaps one or two minutes of “peeking” by Mr. A.S. during the several minutes she recalled he was in the bathroom. He did not touch her. She recalled covering her body with an inflatable toy fish, which she said Mr. A.S. had purchased for her at Marineland on a trip they took there together.

[7] Mr. A.S. left the bathroom and B.S. finished her bath. She then went to tell her mother who, she said, cut her off, saying “I know” — as if her mother knew something had happened that B.S. had misinterpreted. B.S. never discussed the matter with Mr. A.S.

The Nintendo Incident (Count 1)

[8] B.S. described an occasion when her parents were out, and she was in the apartment with Mr. A.S. She wanted to play with a Nintendo game and thinks Mr. A.S. may have told her not to. She grabbed the device, thinking of it as a form of rebellion, or perhaps as a game of “keep-away,” and ran into her parents’ bedroom with it. She recalled her own position as being on the side of the bed, with her upper body bent forward onto the bed.

[9] Mr. A.S. entered the bedroom, pulled down her pants or shorts, and then stuck his face between her “bum cheeks.” He remained in this position for a few seconds, making her feel very uncomfortable as she attempted to “wiggle out.” She may have told him to stop. She felt his hand on her back, but it was not very forceful. When she did manage to get out of the position, she went into her parents’ closet. She remained there for a long time, crying, and believes she came out only after her parents arrived home. She did not, however, tell them about the episode because she did not know how to put what happened into words.

[10] B.S. was challenged in cross-examination on the unlikelihood of her having been given a Nintendo game, which she said was a gift from Mr. A.S., at five or six years old. She also agreed that she could not see what was going on behind her during this event and that she saw Mr. A.S. only when he first came into the bedroom. She could not say with certainty what part of his body actually touched her. The entire episode of touching was two to three seconds long and not forceful. She agreed that, based on what she experienced, Mr. A.S. could have been trying to blow on her lower back. She responded, “I guess” when it was suggested to her that she was characterizing this event with “negative stigma,” as being sexual in nature, even though she did not know whether it was sexual based on what she had actually experienced and observed.

The Vaseline Incident (Count 2)

[11] The third incident in the shared apartment at Finch Ave. began with B.S. walking down the hallway “looking for company” and hearing Mr. A.S.’s television in his room, the door to which may have been slightly open. It was dark outside. She entered the room, sat on the edge of his bed, and began watching television with him. He was positioned on the bed with pillows behind him. He was wearing a white shirt, like a tank top or T-shirt, and had shorts on. The TV channel was changed to a fashion show in which models were nude from the waist up, wearing “pasties” on their nipples. Mr. A.S. took out his penis and reached behind or beside himself for Vaseline. He then started touching his penis.

[12] As this occurred, Mr. A.S. told her, “You can touch it if you want.” She had not seen a penis before but noticed that Mr. A.S.’s penis was erect. B.S. did not do or say anything but stared for a little bit, then got up and left. She estimates that she was in the bedroom for 10 or 15 minutes and guesses that the penis was exposed for perhaps two minutes. She recounted that when Mr. A.S. got the Vaseline, he put it on his penis. She does not know if he ejaculated. He did not touch her.

[13] In cross-examination, B.S. said that her parents could have been home when this incident occurred. She recalls the door being slightly ajar and herself opening it just a bit. She also recalled the white t-shirt worn by Mr. A.S., which stood out for her.

[14] B.S. did not tell her parents about this incident. She explained that she did not know if she could have put it into words, and she would not have wanted to cause trouble for her mother. She did not speak about this event with Mr. A.S. after it occurred. She accepted that, to a degree, the emotional impact of the memory strengthened her recollection of it and allowed her to gain a stronger “hold” on what happened.

[15] B.S. testified that she had not told anyone about the event since it took place — it did not even come up in the therapy sessions that preceded her police report. She denied that she had “constructed” the event, which she said she recalled happening. Rather, she said, she would “push down” her recollection in order to “get by” in her life.

The Computer Room Assaults (Count 3)

[16] On B.S.’s account, three changes of residence followed this third incident. Around 1993, she and her parents moved to a higher floor of the Finch Ave. building, though Mr. A.S. did not move with them. After about two more years, when she was in grade 4, they moved to 28 Hun Crescent. They lived there for about two and a half years and saw Mr. A.S. from time to time when he visited the home.

[17] The family’s next home was at 12 Marchbank Court in Rexdale, where they lived until B.S. was an adult. She was there from the middle of grade 6 until the end of university, apart from a year when she moved out on her own.

[18] In the summer of 2000, when B.S. was 14 years old and just starting high school, Mr. A.S. gave the family their first computer — an “old-school” beige device with a bulky monitor. B.S.’s parents occupied one of the three bedrooms in the house. She occupied the second bedroom, and the computer was placed in the third, which served as an office and guestroom.

[19] B.S. testified that she used the computer as much as she could, exploring its functions and playing games first, then learning about the internet. Her mother gave her a specific warning not to enter chat rooms or look at pornography. J. and J.S. did not use the computer themselves.

[20] In this period, Mr. A.S. would still visit the home once a month or so. This became more frequent after he gave the family the computer. He would come over for dinner and suggest that he and B.S. work together on the computer. He would sometimes upgrade it or install things on it with her present. She had had very little experience with computers and regarded Mr. A.S. as a “computer guy of some sort.”

[21] B.S. estimates that Mr. A.S. would come to the Marchbank home about once a week after the computer was acquired and maybe two times weekly at the beginning, when it was new. She would have to sit on a chair beside him when he was showing her something. When he was showing her something on the screen, he had her sit on his lap. B.S. testified that she did not want to be in the room with Mr. A.S., but her mother wanted her to join him as a courtesy because he had given the computer to the family for her benefit. She recalled having to sit with him each time he came to the home.

[22] While using the computer on her own, B.S. looked up pornography, out of curiosity, and downloaded a video. She testified that when Mr. A.S. was working on the computer, he saw the pornography, which was slowing down the machine’s operation. He asked her what it was and then, with her sitting on his lap, he played the video. She felt “really awkward” in that position. She said that he may have chastised her, but she could not remember his words. As she sat on his lap, his hands were around her waist.

[23] While generally Mr. A.S. would have his hands around her waist as she sat on his lap, sometimes he would caress her thigh or touch her breast. She testified that this kind of touching “built up” over the course of time. She estimated that she was in this position on his lap, being touched, around 50 times during his visits to Marchbank. Each time she was touched, it was over her clothing. However, she said there were a couple of times when his hand was under her shirt but over her bra. She would say nothing as this occurred, though she is not able to explain why she did not. She testified that she wished she had said something, but her mother had not taught her to say no and to stand up for herself. She does not recall Mr. A.S. saying anything.

[24] B.S. recounted that the computer room was very close to her parents’ room, with just a bathroom in between, and that the door to the room would be closed if her parents were doing something loud but it was otherwise kept ajar. She said that as these events occurred, her parents could have been in the basement watching television, or in their bedroom playing a board game, or in the kitchen or backyard. They might also sometimes be in the computer room, but on these occasions, she did not sit on Mr. A.S.’s lap.

[25] These incidents ended after an occasion when J. walked in while B.S. was sitting on Mr. A.S.’s lap, as he touched her inappropriately. J. became very angry — “livid” — and had B.S. leave the room. There was a heated exchange, at the end of which Mr. A.S. promised he would not be around anymore and would not be in their lives in the future. While he stayed away for about a year, he eventually resumed his visits to the Marchbank home. He would, as before, go into the computer room with B.S. and work on the computer. Her mother was aware of this and said that she should not sit on his lap.

Later Events and Relationships

[26] B.S. last saw Mr. A.S. in 2008. She was a university student, working with an old desktop computer. Her parents informed her that Mr. A.S. had offered to buy her a new laptop. While she was uncertain as to where she met Mr. A.S. on that occasion, she knows that they were together at the Apple Store where they examined various models of computer. She thanked him for the purchase, and he made a joke like “you will owe me in ten years.”

[27] B.S. testified that she had not seen or spoken to Mr. A.S. since that occasion. She recalled a time when her mother called her with Mr. A.S. present, but B.S. declined to speak with him. She thought that was around 2014 and recalled that it was sunny outside.

[28] By 2015, J. and J.S. had moved to a home in Welland. At a large Thanksgiving dinner that year, J. announced that she was planning to host Mr. A.S. at her home with leftovers from the dinner. B.S. found this reference to be “triggering” and confronted her mother about it a few days after the dinner.

[29] In the spring of 2016, B.S.’s parents told her that her niece, an adolescent, would be visiting from Poland and staying with them over the summer. B.S. did not want the niece to have contact with Mr. A.S. and was uncertain she could trust her parents to prevent this. She was advised by her therapist that she could either tell her parents or, if they could not be trusted, go to the police herself. B.S. did not recognize at the time that she was in “crisis mode” regarding the prospect of the niece’s visit and her niece’s possible contact with Mr. A.S. Her therapist told her that she was, indeed, in crisis mode and about a week later she went to the police.

[30] B.S. was cross-examined about the origin of her memories and the role that therapy and her own effort to recall events as an adult had played in the formation of those memories. The questioning included the following, based on passages from her statement to the police on June 2, 2016:

Q. Like I’m going from your statement...

A. Yeah.

Q. ...when you spoke to the police where you indicated to the officer, and I’m on page 185 - I’ll just - it’s just a short sentence. If you need to...

A. H'mm, h'mm.

Q. ...look at it, I’m sure we can, but it says, “And then like they’re definitely like partial like memories where like I don't know what happened”, you said that to the officer in very fair - I’m not --

A. Yes.

Q. I’m not trying to trick you and I’m not trying to be critical on you. I’m saying that given the extensive amount of suffering that you had throughout your entire life up to the point where you went to get therapy, a lot of it, you’re trying to reconstruct looking way into the past, right?

A. Yes, to some of it. I think some of it was just a blur because - and when I’m - I believe that when I was saying that statement, it is in reference to being groped because that particularly had happened on multiple occasions in the same room.

Q. Yeah. Well, and that’s what I’m trying to sort of deconstruct here because - and now I’m on page 186 of your statement. Maybe it would be helpful to look at, just in fairness to you. I don’t want to - to trick you here. So, I’m looking at 186 of 245, for everybody’s reference….Just let me know when you’re there.

A. Okay. I am there.

Q. All right. And see what’s happening here on the top of the page, it appears the officer is asking whether or not you were ever touched below - below your waist, and you’re being very fair saying, “No, I don’t remember that”, do you see that?

A. H'mm, h'mm.

Q. And then it seems to me like for the next couple of pages what you embark on is a bit of a conversation about deriving what happened in the past and where it comes from. So, it includes here about just past halfway mark on the page here down near the bottom, “So, I mean like, uh, sorry, I know I’ve been going through this like, uh, the post-traumatic stress and this has definitely been a huge part of it”, right?

A. H'mm, h'mm.

Q. You’re readily admitting that from what you understand to be post-traumatic stress, that’s what you’ve been suffering?

A. Yes.

Q. Right?

A. Yes.

Q. Then you say, “That some of these were almost like flashback memories”, correct?

A. Yes.

Q. And then you go over on the top of the next page and you’re trying to explain why you feel you have a very strong recollection of what happened when you were very young because you say, “And, like, and certainly the experiences when I was younger, like those happened and they are just so clear because of the uncomfortable feeling”, see that?

A. H'mm, h'mm.

Q. So, you’re attaching what is your emotional response, it appears, to the event that helps you believe that you have a strong recollection of what occurred, am I right?

A. Yes.

Q. And here on the next paragraph you say, “Like waking up from like, you know, a dream where like I’m sitting on his lap and like, you know, he was like touching or something and I’m certainly like have this strong flashbacks”, right?

A. Yes.

Q. And then on the top of the next page at 188? And this is the last one we’ll look at here, Ms. [S.], do you see that at the top of the page where it says, “I feel like, like sometimes like the memories are coming up still if - if that makes sense, like I, it’s almost as though like I - I have like I know I was there. I know stuff happened, but I feel like sometimes maybe like I - it’s almost like I blacked out or something”, do you see that?

A. Yes, I do.

Q. I think you’re describing what is the best ability you have to recall events that you’ve otherwise pushed out of your mind for a number of years, is that correct?

A. Yes.

Q. Okay. And because I think if I follow you correctly, then basically have been supressing that for a long period of time and now you’re climbing back to try and recall the details of what occurred even though it’s over 30 years ago?

A. Yes.

THE DEFENDANT’S EVIDENCE

[31] Mr. A.S. testified that during the year he lived in the Finch Ave. ground-floor apartment with the family, he worked Monday to Friday, getting home at 6:00-7:00 PM and usually leaving for work around 7:00 AM. He would also work on many Saturdays. When he was at home, he spent most of his time in his bedroom with the door closed, though it did not have a lock. He was never asked to babysit B.S. and did not do so.

[32] Mr. A.S. offered an extraordinary description of B.S. and his relationship with her, even when she was a small child. He determined that she was a “psychopath,” who did not smile, laugh, or associate with other children. She spoke only when she wanted something and reacted to virtually everything with a “stone-carved” face. He did not like her and never spoke or interacted with her. She did not speak “a single word” to him. These observations prompted him to conduct personal research on the nature of psychopathy.

[33] Mr. A.S. acknowledged a single exception to this pattern when he took B.S. to Marineland, in Niagara Falls, during the year they lived together. He said that this arose because he had suggested a Marineland trip that would include J. and J.S., but they withdrew from the excursion at the last minute because it was too expensive. They urged him to take B.S., which he agreed to do. He recalled purchasing a live goldfish for B.S. at Marineland but not the larger inflatable toy fish that featured in her account of the bathtub incident. In his statement to the police, he had expressly denied taking B.S. to Marineland by himself.

The Bathtub Incident

[34] Mr. A.S. testified that he had a vivid recollection of an occasion when he came home from work needing to urinate, while B.S. was having a bath in the apartment’s only bathroom. He told J. of his predicament and she went in to tell B.S. that Mr. A.S. would be coming into the washroom. Mr. A.S. understood that J. also pulled the shower curtain closed. He went into the bathroom, sat on the toilet to urinate (his general preference), and then left. The shower curtain remained closed, he had no interaction or conversation with B.S., and he did not see her in the tub. He also did not discuss this event with J. or anyone else afterward. This happened only once while he was living in the Finch Ave. apartment. Mr. A.S. was not asked, and did not explain, why such an inconsequential event remained vividly in his memory for three decades.

The Nintendo Incident

[35] Mr. A.S. also denied the allegation that he had pursued B.S. into her parents’ bedroom and placed his face on her naked buttocks after she had run away with the Nintendo. He said that he had given a Nintendo game to the family, after acquiring it from a co-worker, but this occurred at the Hun Crescent home, not when they were all living at the Finch Ave. apartment.

The Vaseline Incident

[36] Mr. A.S. also claimed a clear recollection of an occasion when B.S. came into his bedroom. It was a hot day in June or early July. He had come back to the Finch Ave. apartment after work around 7:00 PM. He thought that he was alone in the apartment as he saw no sign of J., J.S., or B.S. He prepared a sandwich at the refrigerator and took it to his bedroom, closing the door as was his habit. He remembers the apartment being very hot and without air-conditioning. He was wearing a T-shirt and the rest of his body was covered by a sheet, which came up to his waist. He was watching television and had a jar of Vaseline in the room, on a small shelf on the bed’s headboard. He had masturbated at some point during his time in the room but was not doing so when B.S. entered.

[37] Mr. A.S. testified that B.S. came into the room suddenly, without knocking, remained inside for no more than three seconds, looked at the television, and then turned and left. He was shocked; before he had time to react in any way she was gone. After her departure, he wondered whether she was going to talk about the incident with her mother. About a month and a half later, he said, J. spoke to him about his departure from the household, a development which he appeared to connect to this event, though J. did not mention it to him at all. He did not explain why such a brief and unexceptional episode would lead him to fear that it would be reported to his sister-in-law, nor why it might have been related to the end of his co-habitation with the family.

[38] In cross-examination, Mr. A.S. was taken to a passage from his August 16, 2016 statement to the police, given on the day of his arrest, in which he recounted the events surrounding B.S.’s entry into the bedroom quite differently. The audiotape of the statement was played in court as parts of it were hard to understand or incorrectly transcribed. In substance, Mr. A.S. told the investigator, Det. Cst. Hedgeman, that he recalled a single time when B.S. had come into his room. He was masturbating, likely with his Vaseline, and she suddenly opened the door and burst in. He stopped masturbating immediately but accepted that she would have seen his penis and likely the Vaseline as well. Despite the significant differences between his testimony and this statement, Mr. A.S. insisted that he was not lying to the investigating officer.

The Computer Room Assaults

[39] Mr. A.S. testified that he only assisted B.S. one time with a computer at the Marchbank home. J. acquired a computer for B.S. to use and he defragmented the device, showing B.S. how to do it as he did so. This occurred only once and took a few hours. B.S. did not sit on his lap at the computer on this occasion, or at any other time. Mr. A.S. also did not discover pornography on the computer, and he doubted whether it had the capacity to store and play videos.

[40] Earlier, Mr. A.S., who is adept with computer technology, also did an “upgrade” on a used computer that J. had purchased. He installed an up-to-date hard drive and perhaps a new central processing unit on this computer. After this, he would sometimes go to the computer room but only with J. and J.S., not with B.S. who would be elsewhere.

POSITIONS OF THE PARTIES

[41] Mr. MacGregor, on behalf of Mr. A.S., focused on the reliability of B.S.’s recollections. He stressed that her childhood had been marked by abuse by both her biological father and her mother. Mr. A.S. had been a prominent adult figure in her early years, especially during her time at the Finch Ave. apartment. It was suggested that he had been assimilated by B.S. into reconstructed or recaptured memories of her deeply unhappy childhood as a “negative” figure. When pressed as to why B.S. would mistakenly stigmatize Mr. A.S. with abuse performed by other, closer adults, Mr. MacGregor pointed to Mr. A.S.’s curt and abrasive demeanour, which she may have found alienating or intimidating as a child already subjected to abuse. He emphasized the potential unreliability of memories that have been recovered through the therapeutic process. Mr. MacGregor pointed to the fact that B.S. spoke to the police about recalling events that she had “pushed out of [her] mind” for a number of years. He also pointed to the acknowledged connection between her strong emotional feelings and her confidence in the factual events she claimed to recall.

[42] With respect to the three incidents described by B.S. when she was six years old and living at the Finch Ave. apartment, Mr. MacGregor pointed out that they were all subject to innocent explanations when looked at broadly. Mr. A.S. could have played with B.S. after she ran away with the game console, or he may have spanked her buttocks. She could be mistaken about the rather unusual suggestion of a face being planted between her buttocks which, on her account, she felt but did not see. The bathtub incident, if it occurred as she said, could have been an innocent game, without a sexual context. The entry into the bedroom could have entailed B.S. seeing Mr. A.S. in the process of masturbating — and being startled — without his inviting her to touch his penis. It is, he submits, unsafe to rely on these isolated, de-contextualized recollections of distant events, when they are not confirmed by other evidence and seem to have been constructed, or at least retrieved, through a therapeutic process about which there is almost no evidence.

[43] Mr. MacGregor also asks that portions of Mr. A.S.’s evidence be accepted, or credited sufficiently to raise a reasonable doubt, though he does not insist that it is all reliable. With regard to a patent contradiction between Mr. A.S.’s police statement and his examination-in-chief on whether he ever took B.S. to Marineland by himself, Mr. MacGregor accepts that the statement was incorrect. He relates it to faulty memory and the stress of the arrest and interrogation, not deception. On the bedroom incident, he invites me to prefer Mr. A.S.’s statement which, with its acknowledgement that B.S. at least glimpsed him masturbating, makes more sense than his blanket testimonial denials. He submits that Mr. A.S.’s denial of groping the teenage B.S. while she sat on his lap, with her parents in the home, on dozens of occasions, should be preferred to her unsupported evidence that this occurred and was ended only by her mother’s sudden entry into the computer room, a dramatic event for which there is no other testimonial support.

[44] Mr. Lockhart, for the Crown, forcefully challenged Mr. A.S.’s credibility, pointing to clear conflicts between his 2016 police statement and his testimony before me. He focused on Mr. A.S.’s “denigration” of B.S. when she was a very young child, with little or no English, because she did not speak, laugh, or smile in his presence, leading to his purported diagnosis of her as a six-year-old psychopath. He argued that these characterizations were simply not plausible on their face and that the attempt to besmirch B.S. was the hallmark of a dishonest witness.

[45] Mr. Lockhart acknowledged that B.S.’s testimony was not confirmed by any other evidence. Despite the absence of corroboration, he argued that her accounts of the offences should be accepted. He pointed out that she has no motive to lie — there was no antagonism between her and Mr. A.S. and on the last occasion they were together, in 2008, Mr. A.S. had given her an expensive computer. The best explanation of her reason to come forward is the one she offered — concern for her young niece visiting from Poland, who might be exposed to Mr. A.S. Mr. Lockhart pointed out that on Mr. A.S.’s own evidence the bathtub incident did not arise from an innocent game of “peek-a-boo” though this suggestion had been put to B.S. in cross-examination. He also noted that Mr. A.S. gave a blanket denial of the Nintendo incident and effectively renounced reliance on some act of discipline as the explanation for B.S.'s memory.

[46] Mr. Lockhart also emphasized aspects of B.S.’s testimony that enhanced her credibility. She chose her words carefully and made reasonable concessions when she was uncertain of a fact or how it should be interpreted. He offered specific examples of these qualities in her testimony.

[47] Mr. Lockhart also submitted that no negative inference should be drawn from witnesses not called — such as B.S.’s mother and stepfather — beyond the accepted fact that her testimony was not corroborated by other evidence. He said that even if there was some superficial attractiveness to the defence theory that B.S.’s memories regarding Mr. A.S. had been affected by the familial abuse she sought therapy for, there was no actual evidence to support it. Regarding the apparent implausibility of some of the incidents occurring in the way described by B.S., he noted that improbable events do happen. He stressed that the three counts relate to separate allegations and do not necessarily stand or fall together; this is not, he says, an “all or nothing” case. He also draws my attention to important authorities from the Supreme Court of Canada on how the evidence of both child witnesses and adults testifying about events from childhood should be assessed by triers of fact.

THE LEGAL FRAMEWORK

[48] There is no dispute on count 1 that if Mr. A.S. placed his face between B.S.’s unclothed buttocks for some seconds during the Nintendo incident, it could amount to sexual interference under section 151 of the Criminal Code: the inference of a “sexual purpose” would be reasonably available in the absence of any other plausible motivation for such conduct. Similarly, if B.S. entered Mr. A.S.’s bedroom, saw his penis, and was invited by him to touch it, the elements of invitation to sexual touching, contrary to section 152 of the Code, would be made out. Equally, if he touched her breasts or thighs without her consent, while she sat on his lap in the computer room, the elements of sexual assault contrary to section 271(1)(a) of the Code would be satisfied on count 3. I was not invited by Mr. MacGregor to consider a finding that Mr. A.S.’s face was placed between B.S.’s buttocks but that it was for a non-sexual purpose, or that he touched her breasts or thighs in the computer room but did so with her consent.

[49] The onus on the Crown, given the presumption of Mr. A.S.’s innocence, is to convince me beyond a reasonable doubt that he did the acts alleged to constitute the offence. I need to be sure that he did the acts with the proscribed states of mind. This standard does not equate to the rarely attainable standard of absolute certainty, but it is much closer to that level than to the mere probability of guilt, which is a degree of confidence that would compel me to acquit Mr. A.S.

[50] There were only two witnesses at trial and there are important legal principles pertinent to the assessment of each. Testimony about childhood sexual abuse should be evaluated with the words of Justice Wilson for the Supreme Court of Canada in R. v. G. B., 1990 7308 (SCC), [1990] 2 S.C.R. 30, at pp. 54-55, in mind:

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

[51] Guidance more directly applicable to this case, where the complainant is an adult testifying about events in the distant past, comes from the observations of Chief Justice McLachlin in R. v. R. W., 1992 56 (SCC), [1992] 2 S.C.R. 122 where she said, at p. 134:

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. [Emphasis added.]

See also R. v. A. M., 2014 ONCA 769, 123 O.R. (3d) 536 at paras. 8-18; R. v. J.M., 2016 ONSC 1615, at paras. 75-78.

[52] The Supreme Court of Canada’s judgment in R. v. W. (D.), 1991 93 (SCC), [1991] 1 S.C.R. 742 shapes how triers of fact must consider cases in which the defendant testifies or points to other exculpatory evidence. In summary, a judge should consider separately each of these questions: whether the evidence favouring the defence is affirmatively believed; whether, if not believed, it nonetheless raises a reasonable doubt as to guilt; and, finally, whether, if the exculpatory evidence is wholly rejected, the evidence accepted by the judge proves guilt beyond a reasonable doubt. This formulation, originally intended to guide decision-making in cases where the defendant testifies, has evolved into a framework for assessing any case where there is evidence which, if credited, would compel the acquittal of a defendant.

FINDINGS OF FACT

[53] B.S. is educated and articulate. She testified in a measured and balanced manner, thinking carefully when she was not confident about some of her answers. She was generally level in her emotional presentation, while appearing to quaver at a few points of particular sensitivity in her testimony. I never detected in either the content of her evidence, or her tone and demeanour, an attempt to deceive the court or even to embellish her factual assertions to appear convincing. These are impressive qualities in a witness.

[54] Mr. A.S. was much less impressive. His manner was abrasive and largely dismissive, both of B.S. herself and of contradictions between his statement to the police and the evidence he provided the court. He was prone to sweeping, categorical assertions — deploying words such as “always,” “never,” and “absolutely” — which were either unbelievable on their face or contradicted by his own statement. The most charitable construction of his testimony is that his disdain for both B.S. herself and for challenges to his evidence was a result of a belief in his own innocence so resolute that the allegations against him did not need to be taken seriously or rebutted with care and precision. If that is the explanation for his sometimes extravagant and incredible claims, it is a poor strategy for a defendant testifying in response to serious criminal charges. On matters where there is credible evidence against him, Mr. A.S.’s testimony is simply not capable of carrying the day for him, nor, on critical issues relating to the elements of the offence, capable of raising a reasonable doubt. Except for certain contextual matters, where his evidence makes sense and his memory is likely superior to B.S.’s on mundane details from her childhood, I place no reliance on Mr. A.S.’s testimony.

[55] The issue I have had to grapple with most directly is whether the evidence of B.S. is capable of constituting proof beyond a reasonable doubt of the three offences charged. If her evidence reaches that level of cogency, there is nothing about the testimony of Mr. A.S. capable of raising a reasonable doubt.

[56] A finding that B.S. testified sincerely and did not intend to mislead the court does not resolve the question of whether her evidence can satisfy the exacting burden of proof born by the Crown. Case law sometimes distinguishes the attributes of credibility and reliability. The former reflects honesty or a commitment to speaking the truth. The latter includes qualities such as the ability to observe, record, and recall relevant events accurately. They are not the same thing: R. v. H. C., 2009 ONCA 56, 241 C.C.C. (3d) 45, at para. 41; R. v. Morrissey (1995), 1995 3498 (ON CA), 97 C.C.C. (3d) 193 (O.N.C.A.), at p. 205; R. v. Vickerson (2005), 2005 23678 (ON CA), 199 C.C.C. (3d) 165 (O.N.C.A.), at para. 28; R. v. Norman 1993 3387 (ON CA), [1993] O.J. No. 2802, 16 O.R. (3d) 295 (C.A.) at paras. 28-31. It is important to consider carefully the testimony given by B.S., reproduced above, about the process through which some of the events she testified about came to be lodged in her memory. There was little elaboration in her cross-examination, and none in her re-examination, about evidence which raises concerns about the reliability of her testimony.

[57] In short, I take B.S. to have engaged in a therapeutic process to address her childhood trauma before going to the police in 2016 with her allegations against Mr. A.S. This was prompted, she said, by concern for her visiting niece that summer. She accepted that she had “partial-like memories,” where she did “not know what happened.” She said that some of her memories were a “blur,” though she seemed to relate that to the “groping,” which is the subject of count 3 (the computer room assaults). She accepted that some of her recollections arose from efforts to reconstruct events from the distant past. She told the police that she did not remember being touched below her waist, without clarity as to how that fit with evidence about Mr. A.S. fondling her thighs in a sexual manner as she sat on his lap. She agrees that some of her memories were “almost like flashback memories” and that her confidence in her recollection of the earlier events, covered by counts 1 and 2, is fortified by the emotional response and “uncomfortable feeling” they evoke in her. She agreed that she experienced a sensation “like waking up from a dream” where she would be sitting on Mr. A.S.’s lap while he touched her, and said she had “strong flashbacks.” She told the police in her 2016 statement that “memories are coming up still” and that while she knows that “stuff happened,” she feels sometimes that it is almost like she “blacked out or something.” She accepts that she suppressed or “pushed out of [her] mind” recollection of these events for a long time and is now “climbing back” to try to recall details of events more than thirty years in the past.

[58] This evidence causes me to be concerned about the accuracy of B.S.’s memory of events in which the details are critical. That concern is heightened because the earliest incidents, from age six, are of relatively brief events, which could reasonably be the product of erroneous recollection or interpretation by a child of tender years, who has no frame of reference for identifying sexual or nonsexual behaviour and appreciating its implications. These concerns with respect to count 3 could be reduced since, as a teenager, B.S. would likely have both a better memory for the evidence and an understanding of the boundary between proper and improper touching. However, she seems to relate aspects of her attempts to gain access to her memory specifically to this count. She was referring to the events surrounding count 3 when she spoke of the “blur” and the experience she likens to waking from a dream sitting on Mr. A.S.’s lap. She connected those experiences with the “strong flashbacks.”

[59] In my view, this is evidence that demands an added layer of scrutiny by a trier of fact: R. v. J. G. R., 2009 ONCA 116, at paras. 9-10. It raises the possibility that B.S.’s memory was influenced, and perhaps shaped, by a process that took place long after the events at issue. This added layer of scrutiny is necessary despite my certainty that she is testifying sincerely and believes that her memories are accurate accounts of actual events: Vanderkooy v. Vanderkooy et.al., 2013 ONSC 4796, at para. 134; R. v. S.D., 2005 41384 (Ont. S.C.), at para. 43; R. v. A.R., 2012 ONCJ 268, at paras. 36, 57; R. v. McGrath, [2000] O.J. No. 5735 at paras. 7-15; R. v. Kliman, 1996 8364 (B.C.C.A.).

[60] The concerns I have expressed are not unique to the controversial area of so-called “recovered memories” in the therapeutic or counselling process. My concerns would be no different in substance if B.S. gave the same evidence about her internal mental processes but related them to conversations with friends or family members rather than a professional, or if she said her memories were retrieved or shaped by a purely personal process of reflection that took the forms she described. It is, however, common for witnesses such as B.S. to explain that their recollections were formed, or shaped, or made accessible to them, through a therapeutic process. When evidence of that nature is given, it is sometimes accompanied by evidence from the witness’s therapist describing how the patient’s recollections assumed the form they have taken in testimony and what techniques may have been employed to elicit or refine them: Norman at paras. 25-29. In other cases, experts in memory-formation give evidence about the effect of the therapeutic process and the reliability of memories that emerge from it: see e.g. R. v. Marquard, 1993 37 (SCC), [1993] 4 S.C.R. 223, at pp. 248-249; Norman at paras. 25-36; S.D., at paras. 44-45; Vanderkooy, at paras. 85-103. Sometimes, where it appears that a memory was discontinuous or suppressed over time and then regained or clarified, evidence of an earlier disclosure by the witness may demonstrate that some later stimulus, such as a therapeutic technique, did not create or shape the recollection: see e.g. R. v. E. (P.), 2000 4760 (ON CA), 129 O.A.C. 369 (C.A.), at paras. 7, 12, 16; Marc Rosenberg, Issues Arising in Criminal Prosecutions for Distant Events, (1995 ADGN/RP-005) at paras. 92-96. In other cases, there is confirmatory evidence from sources apart from the witness that supports the account given at trial: see e.g. T.K.S. v. E.B.S., 1995 8907 (B.C.C.A.), at paras. 31-33; H.M.T.Q. v. R.J.H., 2000 BCSC 891, at para. 128. This may be particularly important in cases such as this one, where a measure of caution is called for: R.W., at pp. 132-133.

[61] I have examined the record in this case for evidence that would help to relieve my concern about the reliability of B.S.’s testimony and her current recollections. There was no evidence from her therapist or counsellor about the techniques used to assist her in dealing with her abusive childhood. Nor was there evidence about what she recalled and disclosed at the beginning and throughout that process. There was also no expert evidence.

[62] There is also no evidence on which I can find a disclosure by B.S., or any conduct by her, that confirms that her memories of abusive behaviour existed before the period of therapy, which preceded her 2016 statement to the police. Evidence of this nature would have been admissible after the challenge to the accuracy of her recollections in cross-examination, but it was not forthcoming through either the re-examination of B.S. herself or through other witnesses: R. v. Divartis, 2004 9212 (ON CA) at para. 30.

[63] Nor was there any evidence that provides confirmation of the allegations that form the subject matter of the accounts. Corroboration is not a legal requirement for acting on the evidence of a sexual assault complainant: Criminal Code, s. 274. Where, however, concerns arise about the reliability of disputed testimony, corroboration can provide a basis for resolving those concerns and concluding that guilt has been proven beyond a reasonable doubt. In this case, there is evidence from Mr. A.S. himself that corresponds generally to some of the settings in which B.S. recalls abuse having occurred. He confirms a trip to Marineland and even accepts that he went with B.S. alone, not with her family, as his statement had suggested. There was an occurrence where he entered the washroom and used the toilet while B.S. was in the bathtub, with J.’s permission. He purchased a Nintendo game, though not when she was six years old, nor at the Finch Ave. apartment. There was an occasion, memorable to Mr. A.S., where B.S. opened his bedroom door and startled him — something he discussed years later with her mother. There was a room at the Marchbank house where he sometimes worked on the family’s computer. To that limited extent, the evidence of Mr. A.S. demonstrates that B.S. can accurately recall certain features of her childhood and some specific events that took place during it. That, however, does little to elevate my confidence in B.S.’s recollection of specific acts of abuse. She first alleged that these acts occurred after going through the therapeutic process that she described in her statement to the police and largely adopted in court.

[64] There is one point in B.S.’s evidence where meaningful corroborative evidence would seem to be possible, and extremely helpful, if it exists. She testified that when she was a teenager, her mother entered the Marchbank computer room and saw her sitting on Mr. A.S.’s lap being touched by him in a sexual manner. J. was, in B.S.’s memory, “livid” about what she saw. This led Mr. A.S. to promise to have no further contact with the family, which he did not for a year or so. The Crown elected not to call J.’s evidence. Other evidence, which came from both B.S. and Mr. A.S. suggests that Mr. A.S. remained part of her life and her parents’ lives for years following the time in which the computer room assaults are alleged to have occurred. While no party is obliged to call a particular witness, it remains the case that there is no evidence to elevate my confidence that B.S.’s allegations were the product of actual events in her childhood rather than the process of therapy and recall she undertook as an adult. See R. v. R.(A.), 2012 ONCJ 268, for a similar analysis.

[65] It is possible that despite my broad concerns about the reliability of B.S.’s evidence, the cogency of her recollections on one or more of the three counts could dispel doubt about its occurrence and its critical details. I have gone over the evidence to determine if that was true of any of the incidents giving rise to the charges before me.

The Nintendo Incident

[66] The Nintendo incident, which underlies count 1, was described by B.S. as an episode of excitement, with a measure of childish transgression or rebellion on her part. As I understand her evidence, the event was marked by dynamic movement between B.S. and Mr. A.S. If, indeed, her present recollection of an intrusive touching between her buttocks is true, it would depend on her interpreting a very brief sensation, based wholly on her sense of touch — she did not see what she described but simply felt it.

[67] There is wide room for misinterpretation by B.S. about this incident, beyond questions about her memory. I would very likely have a reasonable doubt on this count even if there were not substantial concerns about the accuracy of her account. Nothing about the evidence on count 1 removes or overcomes the misgivings I have about the quality of her memory respecting this event.

The Vaseline Incident

[68] The Vaseline incident, covered by count 2, clearly refers to an actual event during the year or so that Mr. A.S. lived with B.S. and her family. Both she and Mr. A.S. acknowledged that she came into his room, surprising him. She says that she noticed a jar of Vaseline, saw Mr. A.S. touching himself, and — crucially for his legal liability — was invited by him to touch his penis. The episode lasted, on her account, for up to 15 minutes.

[69] Mr. A.S. testified that B.S. did come into his room unexpectedly, but that he was fully covered by a sheet and T-shirt. He claimed that the door was closed and while he could have been masturbating earlier, he was not when she came in and he did not masturbate after she entered. He agreed that a jar of Vaseline was at hand. His 2016 statement to the police, by contrast, acknowledged both that B.S. entered his room and that she saw his penis because he was masturbating. This was a potentially credible account of an unfortunate event but was weakened significantly by the sharply conflicting version he gave at trial. The statement and testimony could even be viewed as corroborative of B.S.’s evidence in that it makes it virtually certain that something occurred that involved her seeing his penis and his Vaseline. It is also, however, a version of the event which can be considered for its possible truth: R. v. J.B., 2019 ONCA 591, 378 C.C.C. (3d) 302, at paras. 30-31, 45-48. It is far from a proven account, but it strikes me as having the potential to explain how B.S. might have seen something novel and surprising when she looked into the bedroom — Mr. A.S. masturbating — which caused him to fear that she would tell her mother about it.

[70] The main problem on count 2 arises with respect to the single detail that must be proven to make this tableau a criminal offence — that Mr. A.S. told B.S. that she could touch his penis if she wanted. She was about six years old. She would likely have no understanding of why an adult man might invite the touching of his penis. She says that she remembers he had an erection, which is not likely either a term or a concept that would have meaning to her at the time.

[71] B.S. did not tell her parents or, it appears, anyone else about this event until her late 20s or early 30s. She did not even relate it to her therapist. When pressed on the absence of any disclosure to her therapist, she said that she would, as a “survival tactic,” “push down a lot of these things that would happen in order to get by, to live life.” Though I have not been given much detail about the counselling process, I view the lack of disclosure as a significant omission in an intensive therapeutic relationship that preceded her reporting other allegations of sexual abuse by Mr. A.S. Further, his misconduct played a “huge part” in her therapy according to B.S. The absence of any disclosure of this incident is, like much else about the genesis of her recollections, unexplained.

[72] This makes it very difficult to accept that after so many years of not recounting — and actively pushing down — the details of the event, her recollection of a particular detail can be relied upon beyond a reasonable doubt. B.S. appears to have acquired many of her present recollections, or at least details of them, during an emotionally turbulent period shortly before her report to the police. The process she describes creates concerns about the reliability of her testimony generally. In my view, those concerns are elevated because an episode as notable as this one was not even mentioned to her therapist. One potential explanation for that, which the Crown does not refute, is that the Vaseline incident was not accessible to her, in her memory, during sessions with her therapist where she was being as candid as possible. If there is some explanation as to why this should not be troubling to me, it is not in the evidence. Given the passage of so many years, and the importance of precise details about the episode, I have a reasonable doubt about Mr. A.S.’s guilt on count 2.

The Computer Room Assaults

[73] The repetitive groping in the computer room at the Marchbank address, the subject of count 3, appears to be the allegation the complainant spent the most time exploring in her pre-disclosure therapy sessions. It was also the focus of many of B.S.’s comments in her statement to the police and in the cross-examination about her memory.

[74] The occurrence of dozens of incidents in which Mr. A.S. had a teenage girl on his lap while working with her on a computer, in her own home, with her parents nearby, is not impossible but it is sufficiently difficult to credit that it has no particular cogency in itself. Why Mr. A.S. would be required to attend at the home, in the computer room, so frequently during B.S.’s early teens is not clear. I also give some weight to Mr. A.S.’s testimony about the relative infrequency of his visits to the Marchbank address, and his limited work on the computer during B.S.’s teenage years, despite my general distrust of his evidence. His account of his relationship with the family, and his involvement with the computer during these years, seems to me to be more plausible than hers. And, as I have indicated, this evidence is generally hard to square with a culminating episode in which J. came into the computer room to see her daughter being fondled by her middle-aged uncle. That could be easily confirmed if it did happen, but this event seems unlikely in view of the subsequent relationships between Mr. A.S. and the family, which involved both B.S. and her mother. There is, therefore, nothing about the allegations on count 3 that allows me to conclude that they have been established beyond a reasonable doubt, when viewed in light of the general concerns about reliability set out earlier.

The Bathtub Incident

[75] I have also considered the evidence regarding the bathtub incident but have not found it to be of significance to my conclusions. The conduct alleged is not criminal and does not give rise to a count on the indictment. It could, if proven, suggest some sexual interest on Mr. A.S.’s part in B.S. as a small child, but the evidence on it is no stronger, and in some respects weaker, than on the other counts. I also do not find this conduct to have been proven. It seems objectively unlikely that Mr. A.S. would commit the violation alleged when J. had, just before his entry to the washroom, taken steps to ensure B.S.’s privacy by pulling the curtain and when she would likely be alerted to any misconduct on his part as soon as he stepped out of the room. Indeed, B.S. says that she told her mother about the intrusion right away, though no evidence was led from the mother to this effect. There is a great deal of scope for both erroneous recollection of details and erroneous interpretation of them in this episode.

[76] I found it curious, and perhaps suspicious, that Mr. A.S. could even recall his entry into the bathroom under such unremarkable circumstances so many years later if it was as uneventful as he claims, but I have concluded that it is at least plausible that the episode, where he must have felt some urgency to relieve himself with a small child in the apartment’s only washroom, left a mark on his memory.

CONCLUSION

[77] Cases of this kind are difficult. There is generally a verifiable backdrop of contact and connection between a child and an adult but very few objective markers against which to measure the factual accuracy of allegations about conduct which, if it occurred, would be brief and furtive. While many crimes are capable of productive investigation by reference to contemporaneous memories and objective surrounding facts, childhood sexual abuse, especially when examined many years later, often eludes meaningful inquiry and may be incapable of confirmation or refutation. The result may leave either a truthful complainant or an innocent defendant unsatisfied.

[78] So it may well be here. I have found B.S. to be an honest witness, attempting to tell the truth to the best of her ability and searching her memory conscientiously for facts about which she feels confident. I have found Mr. A.S. to be a belligerent, dogmatic, declamatory witness, who plows through major contradictions in his own evidence, while pouring disdain on the evidence and character of B.S. If this case resolved itself into a simple credibility contest between B.S. and Mr. A.S., it would not be a close one.

[79] That is not, however, the approach I am required to take in deciding whether the Crown’s evidence proves Mr. A.S.’s guilt beyond a reasonable doubt. To convict him of any of the three charges, I would have to be satisfied that the unlawful conduct was proven with enough clarity to leave me sure of his guilt.

[80] After pondering the evidence with care, including rereading my notes and portions of the transcript, and even listening to passages from the trial again, I am not sure that Mr. A.S. committed any of the offences charged. My suspicion that he committed sexual violations against B.S., or even a conclusion that he probably did so, is simply not enough as a matter of law.

[81] I have to be influenced by the evidence of B.S. about how her recollections have emerged, or become clear and accessible to her, in adulthood, especially since findings of guilt would depend on very particular aspects of her testimony being accurate. Concerns about the reliability of distant memories can sometimes be overcome, but the means for doing so are not available to me here. There is no testimony to provide me with insight into the therapeutic process or into the reliability of recollections it helped bring to the surface. Nothing shows me that allegations made by B.S. in her thirties were articulated and cemented in her memory before the therapeutic process. No other witnesses verified key elements of her testimony, despite the possibility that her mother could have done so, especially on count 3.

[82] The evidence of Mr. A.S. conforms to certain broad aspects of B.S.’s testimony and lends some substance to it, without confirming the decisive details. On some general points of context — especially about the pattern of his attendance at the Marchbank residence in the 1990s — his evidence is at least credible enough that it cannot be rejected.

[83] What I am left with is uncertainty, along with a wish that greater insight and more information were available to me. My uncertainty must ultimately dictate my decision. I have a reasonable doubt.

[84] Accordingly, Mr. A.S. will be acquitted of the three counts on the indictment.

[85] I am grateful to both counsel for the professionalism and skill with which they conducted themselves during these proceedings.

Justice P. Campbell

Released: November 30, 2021

COURT FILE NO.: CR-19-50000782

DATE: 20211130

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

A.S.

Defendant

REASONS FOR JUDGMENT

P. Campbell, J.

Released: November 30, 2021