Court File and Parties

Court File No.: 21-025 Date: 2022-03-09 Ontario Superior Court of Justice

Between: Her Majesty The Queen – and – J.D., Defendant

Counsel: Jennifer Armenis, for the Crown James J. Grosberg, for J.D.

Heard: By Zoom Videoconference: January 31-February 3, 2022

Reasons for Judgment

Before: C. Boswell J.

[1] J.D. faces one count of sexual interference. He is alleged to have rubbed his penis on the abdomen of his wife’s five-year-old niece. His trial proceeded over four days before me, sitting without a jury.

[2] The offence of sexual interference has three essential elements. Essential elements are the things the Crown must establish to the reasonable doubt standard in order to secure a conviction against J.D. In this case the Crown must establish:

1. That the complainant – C.D. – was under the age of 16 years at the time of the alleged offence. This first element is easily established. C.D. is still just 12 years old. She was 5 at the time of the alleged incident;
2. That J.D. touched C.D.; and,
3. That the touching was for a sexual purpose.

[3] For all intents and purposes, the sole live issue for trial is whether J.D. actually did the act he is alleged to have done. In other words, did he rub his penis on C.D.’s belly? If I am satisfied beyond a reasonable doubt that he did, then the offence is made out. There is no suggestion that there might be any non-sexual reason for a grown man to rub his penis on the belly of a five-year-old girl.

General Principles

[4] Before I embark on a review of the evidence adduced at trial, it is worth taking a moment to recognize a number of important principles that govern my review and consideration of that evidence.

The Presumption of Innocence

[5] First, J.D. is presumed to be innocent. That presumption is only rebutted if and when Crown counsel establishes the essential elements of the charged offence to the reasonable doubt standard.

The Burden of Proof

[6] Second, the onus remains on the Crown at all times to establish J.D.’s guilt. That onus never shifts. J.D. has no obligation to prove anything in this case; certainly not that he is innocent.

Exculpatory Evidence

[7] J.D. elected not to testify, as was his right. He did call evidence, however, in the form of the testimony of his wife, J.C. I will consider her evidence in detail in a moment, but for now I observe that her testimony had an exculpatory flavour to it.

[8] There were three principal themes to J.C.’s testimony. First, that J.D. did not have the opportunity to commit the alleged offence. Second, that there are good reasons to be concerned that C.D.’s paternal grandmother influenced her to fabricate the allegation against J.D. Third, that perhaps C.D. was sexually interfered with by someone other than J.D.

[9] It is appropriate, in my view, to consider and weigh the exculpatory aspects of J.C.’s testimony within the analytical framework described by the Supreme Court in R. v. W.(D.) (1991), 63 C.C.C. (3d) 397 (“W.D.”). As Watt J.A. observed in R. v. Boucher, 2022 ONCA 40, at para. 55, “the principles of W.(D.) extend to exculpatory or potentially exculpatory evidence from sources other than an accused where credibility findings are required.

[10] There is no magic to the wording of the formula set out in W.D., but it is important that its principles be applied.

[11] If I believe J.C.’s evidence that J.D. had no opportunity to commit the alleged offence, then I must acquit J.D. A proven absence of opportunity would undoubtedly raise a reasonable doubt about his guilt.

[12] Even if I do not accept J.C.’s evidence about the absence of opportunity, I must still consider whether it, considered in the context of all of the other evidence (or lack of evidence), including but not limited to J.C.’s evidence of a motive to fabricate and a possible alternate suspect, nevertheless raises a reasonable doubt about J.D.’s guilt. If it does, I again must acquit him.

[13] Finally, even if J.C.’s exculpatory testimony fails to raise a reasonable doubt about J.D.’s guilt, I must not convict him unless and until I am satisfied that the evidence which I choose to believe and rely upon, establishes his guilt of the charged offence beyond a reasonable doubt.

[14] With those general principles in mind, I will turn to a consideration of the evidence, which was quite brief.

The Evidence

[15] The Crown tendered two witnesses: the complainant, C.D., and the complainant’s grandfather, L.M. A short agreed statement of fact was read into the record. The Crown’s case in chief was completed in half a day.

[16] As I noted, the defence tendered one witness, J.C., and her evidence was completed in under a half-day.

The Testimony of C.D.

[17] C.D. is twelve years old. She is the oldest of three siblings. She has two younger brothers. She and her brothers have lived with their paternal grandmother, R.M., and her husband, L.M., for the past four years. She refers to R.M. and L.M. as “Nana” and “Papa”.

[18] The bulk of C.D.’s testimony in chief was comprised of a videorecorded statement she gave to the police on August 22, 2018. She was 9 years old at the time and about to enter grade four. The videorecording was entered into evidence, on consent, pursuant to s. 715.1 of the Criminal Code. C.D. adopted its contents as true.

[19] C.D. told the investigating officer that something happened to her when she was five years old that involved her uncle, J.D.

[20] She said that she and her siblings were living with their mother, L.C., in a white house in Orillia at the time. Their aunt, J.C., and her husband, J.D., lived in the house as well. J.C. and J.D. lived in the basement.

[21] The incident in issue took place close to Christmas. Her mother had gone out shopping, she said, with, J.C. and her maternal grandmother. J.D. was left at home to take care of C.D. and her brothers.

[22] C.D. told the officer that she was in her room in her underwear, just about to get dressed. J.D. came in, pulled down his pants and put his doodie on her belly. “Doodie” was her word for penis. She said she saw it but could not recall what it looked like. She felt scared. She said she had a pink princess bed at the time and J.D. broke it by laying on top of her on the bed. Afterwards, J.D. went back down to the basement.

[23] C.D. did not say anything about the incident with J.D. for some considerable time after it happened. She told the officer who interviewed her that she had kept the secret of what happened inside of her since she was five years old. She was too scared to tell anyone. She finally told her Nana the evening before she met with the police. She explained that she had not told her mother previously because she does not really trust her mother. Her mother, she said, put drugs in her brother and had been involved with the police.

[24] C.D. was cross-examined about the timing of her disclosure of the incident with J.D. She said she did not say anything to her mother, grandmother or aunt when they got back from Christmas shopping on the day of the incident. According to her, J.D. and J.C. moved out of the white house right after the incident. She never saw J.D. again. She said she moved in with her Nana and Papa when she was 8 years old. Nana was the first person she told about what happened with J.D. and she was 9 at the time. She said she felt safe at that time to tell her Nana.

[25] Part of the defence position is that Nana (R.M.) strongly dislikes J.D. and influenced C.D. to fabricate an allegation of abuse against him. Defence counsel questioned C.D. thoroughly about whether her Nana influenced her or persuaded her to fabricate the allegation about J.D. She was firm and consistent in her responses. She said:

• She doesn’t know if Nana dislikes J.D. Nana does not say bad things about J.D. or that she does not like him;
• Her Nana and Papa did not tell her what to say;
• Nana did not tell her to say bad things about J.D.;
• She talked to her Nana and Papa the day before the preliminary hearing about her testimony. She has not talked to them about it since then;
• No one has talked to her about what she should say in court; and,
• She does not think her Nana would be happy if she told a lie about J.D.

[26] C.D. described life living with her mother as “awful”. She said her mother did not properly care for her and her brothers. They did not have enough to eat. There were drugs around, as well as lots of men and lots of parties. She agreed with defence counsel’s suggestion that her Nana had rescued her from all of that. She is now in a good place. She always listens to Nana and does what she is told. But she insisted that her Nana did not tell her to say bad things about J.D.

[27] C.D. did say, during cross-examination, that she heard that J.D. had “done the same thing” to his own children. She denied that her Nana told her this. She said she had just recently found this out from one of her cousins. Counsel did not explore what precisely she heard and when.

[28] C.D. was also cross-examined about her princess bed. She said the entire frame of the bed was broken when J.D. laid on her. She slept on the couch for a couple of days and then got a new bed. She said she put the broken parts of her bed in the garbage. She did not think that her mother or grandmother noticed that the bed was broken. No one asked her about the broken pieces.

[29] About two months after the alleged incident with J.D., her mother moved them into their maternal grandmother’s house on Laclie Street in Orillia. Her father helped move her things.

[30] C.D. has given formal, recorded accounts of the alleged incident with J.D. on three occasions: her statement to the police; the preliminary hearing; and at trial. Defence counsel questioned C.D. about a number of inconsistencies apparent in, or between, those accounts. Those inconsistencies include:

(a) In her statement to the police she said at one point that after J.D. put his doodie on her belly he left and she did not know where he went. At a later point she said he pulled up his pants and went into the basement. She agreed those answers were different. She did not know why she said different things. The true answer is that he went to the basement; (b) Her present recollection is that the incident happened in the morning. At the preliminary hearing, however, she said she was getting ready for bed when it happened. Again, she agreed that these answers were different. She said the true answer is that she was getting dressed; (c) She told the police officer that J.D. was wearing pants and a shirt. At the preliminary hearing, however, she said he was wearing jeans and no top. She again agreed that these were different answers. She said the true answer is he was not wearing a shirt.

[31] C.D. testified, under cross-examination, that she thought her father was living with them at the time of the alleged incident. She thought he was either at work when it happened, or in his room. She said she did not say anything, scream or cry out for help during the incident.

[32] She disagreed with a number of suggestions put to her in cross-examination, including:

(a) That she had never been left alone with J.D. She testified that she had been left alone with him twice; (b) She denied that J.D. and J.C. would sometimes put her to bed and read her stories; (c) She denied that J.D. was helpful to her and denied he sometimes cooked meals. She said she would see him sometimes in the house and he was not friendly with her. She did not really like him; and, (d) She denied that she had ever told J.C. or J.D. that her father had touched her in a sexual way.

The Testimony of L.M.

[33] L.M. is C.D.’s Papa, by virtue of his marriage to her Nana, R.M. He provided brief testimony about how C.D. and her siblings came to live with them in April 2018 and where they had lived prior to that time.

[34] He said C.D. was withdrawn when she first came to live with them. All three children were malnourished, had lice and other parasites. C.D., he said, did a “lot of waving” of her hand in front of her face. They sought medical attention for her and found out that she had epilepsy. She had been undiagnosed since birth. She had been having seizures which impaired her memory and ability to learn. Since being treated, she has progressed up to her grade level at school.

[35] L.M. testified about an occasion that his wife called him and said there were some problems at home. He came home and his wife asked C.D. to tell him what she had told her. As C.D. described the incident to him, she appeared nervous and had tears in her eyes.

[36] L.M. testified that he asked C.D. a number of questions after she disclosed the alleged abuse to her Nana. He said he was trying to validate her account. His questions included: whether she was fully naked or not; whether any liquid came out of J.D.’s “pee pee”; and who was in the house at the time of the incident. Under cross-examination, he agreed that he failed to mention these questions, and that C.D. had tears in her eyes, when he first gave a statement to the police in August 2018. He explained here that there was a lot going on in August 2018 and he missed telling the police about the questions he had put to C.D.

[37] In September 2021, L.M. provided more information to the police including the details surrounding the questions he put to C.D. He said that when he asked C.D. if there was any liquid coming from J.D.’s “pee pee” she said “yes, it was on my underwear”. I have not considered this evidence for the truth of its content. The sole purpose for its introduction was to establish an inconsistency between what L.M. told the police in August 2018 and what he told them in September 2021.

[38] L.M. was cross-examined about his wife’s feelings towards J.D. He said he can’t speculate about his wife’s feelings towards others. He denied that she was “going around telling people J.D. was a convicted pedophile”. He has never heard her say that to anyone.

The Testimony of J.C.

[39] J.C. was called to testify on J.D.’s behalf.

[40] J.C. is 42 years old. She is a maternal aunt to C.D. She met J.D. in high school. They have been married for over 20 years.

[41] J.C. confirmed that she and J.D. used to live in a white house on Parkhurst Crescent in Orillia with L.C., C.D. and C.D.’s brothers. She said C.D.’s father did not live in that residence. Instead, L.C. had a live-in boyfriend at the time.

[42] J.C. further confirmed that she and J.D. lived in the basement. The basement had two rooms: a rec room and a laundry room. There was a bed, couch and television in the rec room. On the main floor of the house there was a kitchen, dining room and living room. On the second level there were three bedrooms and a bathroom. L.C. and her boyfriend occupied one room. C.D. occupied one room and her brothers occupied the third. The bathroom on the second level was the only bathroom in the house.

[43] According to J.C., the white house was in a constant state of disarray. If she and J.D. did not do house cleaning, it would be messy. Dishes would be piled “to the ceiling”. The kids’ clothes would not be washed. Their diapers would not be changed. Moreover, the children were not properly fed. They didn’t get fruits and vegetables, but only fast foods like pizza pockets. She said there were frequently drugs in the house, though they remained in L.C.’s room, purportedly away from the children. For all these reasons, she said she and J.D. took care of the children more than their mother did.

[44] Each of J.D. and J.C. has multiple disabilities and each receives a disability pension through the Ontario Disabilities Support Program. According to J.C., they spent most of their time at home, in the basement. She emphasized that she was with J.D. all the time.

[45] J.D. and J.C. are the biological parents to four children. Those children were apprehended by the Children’s Aid Society some time before J.D. and J.C. moved into L.C.’s basement. The children have since been adopted out to another family. The precise reason(s) for the apprehension are not entirely clear to me. J.C. testified that it had something to do with the disabilities of J.D. and J.C. as well as their backgrounds.

[46] At any rate, it was clear to J.C. that the position of the C.A.S. was that J.D. should not be caring for children in an unsupervised fashion. Moreover, that she was not an appropriate supervisor. Nevertheless, she said she and J.D. frequently cared for L.C.’s children. With respect to C.D., she said they would play with her toys with her in the livingroom and in her bedroom, they cooked meals for her, read to her and put her to bed.

[47] J.C. said that, to be safe, J.D. was never left alone with C.D., given the concerns of the CAS. J.D. was almost always with her in the house. If he went to another part of the house, she would know where he was because she could hear him. She could hear him if he went up the stairs. She knew how long it would take for him to go upstairs and go to the bathroom. If it took him longer than a couple of minutes, she would investigate (though she said she never actually had to investigate). She said she also knew the sound of C.D.’s door and would know if it was opened.

[48] She said, at any rate, that J.D. was good with children. He made sure they were safe and took care of them. She has never witnessed anything alarming in J.D.’s interactions with children. He never exhibited any sexual interest in children.

[49] Some of J.C.’s evidence contradicted that of C.D. For instance, she said that she did not go Christmas shopping with her sister and mother on the occasion in issue. She said she stayed home to care for the kids while the others went out. J.D. was with her. She cleaned the house and made lunch at the time.

[50] J.C. confirmed that C.D. had a pink princess bed in her room, though she testified that she had never seen it broken. No one ever complained that the bed was broken and no one ever blamed J.D. for breaking it. She said that when L.C. and the children moved from the home, J.D. helped them do so and she witnessed him pick up and move the princess bed in one piece.

[51] J.C. denied that J.D. and C.D. had a poor relationship. She said, to the contrary, that they had an “awesome” relationship. They played together and laughed. J.D. would wrestle with her and the boys.

[52] J.C. testified about an incident that occurred with C.D. in the white house which was probably prior to the date giving rise to the index offence. She said she and J.D. were putting C.D. to bed and observed that she was very shy and seemed scared. J.C. asked her what was wrong. C.D. wasn’t very good with words at the time but pointed to her vagina. J.C. asked if C.D. could tell her what happened. She showed her what happened. Somehow C.D.’s father, R.D., was implicated in some abusive conduct. It was not made clear by J.C., however, what R.D. is alleged to have done.

[53] In any event, J.C. testified that she called the CAS to report the incident as sexual abuse. She said she spoke to an investigator there. The next day she arranged for C.D. to attend her family doctor. Whether she attended the doctor and what came of it are left as unknowns.

[54] J.C. also testified about an animus that C.D.’s Nana (R.M.) held towards J.D. She said that there was a time when she witnessed C.D.’s father, R.D., assault another male with a hammer. This assault occurred at a residence she and J.D. lived at prior to moving to the white house. She believes she gave a statement about the incident to the police. R.D. was charged and eventually went to jail. She says R.M. told her, “you hurt my family…I am going to hurt yours.”

[55] R.M., she said, hated J.D. She did not trust him and said she had heard rumours about him. She called him a thief in J.C.’s presence. R.M. generally avoided J.D., but if they were together, R.M. would give J.D. dirty looks.

[56] Under cross-examination, J.C. agreed that she and J.D. should not have been left to care for C.D. and her brothers. It was contrary to the position of the CAS. But the CAS was not actively involved in her life at the time and she disagreed with their position. She acknowledged that the CAS had ongoing involvement in L.C.’s life and that they were under the impression that L.C. was caring for the children full-time. She did not correct the CAS. She agreed that she was deceitful with them and explained that she hated them. They are the most-hated people in her life because they apprehended her children.

[57] Crown counsel suggested to her that she was prepared to say what she needs to say to get what she wants. She answered, “Pretty much, yeah. When you get to know me. I am the type of person no one tells me what to do. I’ve always just been that way.” Insofar as she was concerned, the CAS did not need to know what was going on.

[58] Still, she said, she did not want there to be any problems, so she and J.D. were always together. She disagreed with Crown counsel’s suggestion that it was impossible for her and J.D. to have been together 24 hours per day. She did agree that J.D. liked to go to the bathroom by himself at night. When he did so, however, she would be able to hear him walking up the stairs. She would also be able to hear if he opened any doors. C.D.’s door, in particular, had a distinctive squeak. It also had little ornamental bells taped to it.

[59] J.C. said she also timed J.D. when he went to the bathroom. She said she yelled at him if he spent three minutes in the bathroom instead of two. She still does this to the present day, she said, because she has a controlling nature.

[60] Crown counsel suggested to J.C. that it was improbable that she would call the CAS to report suspected abuse of C.D. by C.D.’s father, given how much she hated the CAS. While she agreed that she hated the CAS, she said her concern for C.D.’s welfare superseded that hatred. Though she placed a call to the CAS, no one from the CAS appears to have followed upon the investigation nor was there any contact by the police. In direct examination she said that she scheduled an appointment for C.D. to see the family doctor because C.D.’s mother (L.C.) would not do so. In cross-examination she said she told L.C. about the appointment and L.C. took C.D. to it. She had no further involvement in the matter after that.

The Parties’ Positions

[61] The Crown urges the court to conclude that any exculpatory evidence tendered on behalf of J.D. is not credible or reliable and should be entirely rejected. By contrast, the court should have confidence in the testimony of C.D. and conclude that it establishes the charged offence to the reasonable doubt standard.

[62] While Crown counsel accepts that there were some inconsistencies in C.D.’s various accounts of the incident, she contends that these are minor. Moreover, when viewed in a common sense way, and through the lens of a young child, they are easily understood and ought to be given little, if any weight. From the Crown’s point of view, C.D.’s evidence was compelling, consistent and straightforward. The timing of her disclosure makes sense in light of her lived experience. She is credible and worthy of belief. Her testimony alone is sufficient to establish the essential elements of the offence to the reasonable doubt standard.

[63] J.D.’s counsel did not agree. In his submission, there are numerous aspects of this case that alone, and certainly when considered together, clearly raise a reasonable doubt about J.D.’s guilt. Counsel’s submissions were generally marshalled into four categories:

(a) Inconsistencies in C.D.’s testimony; (b) A motive to fabricate, intimately related to the family dynamic in play; (c) The improbability of a number of important features of C.D.’s account; and, (d) The absence of a reasonable opportunity.

[64] Defence counsel outlined a difficult family dynamic, one in which R.M. hated J.D. She had threated to hurt J.C.’s family and found a means to do so when C.D. came to live with her. Counsel contends that R.M. rescued C.D. from awful living conditions. C.D. was indebted to R.M. She paid that debt by going along with a fabricated story about sexual abuse.

Analysis

[65] As is so often the case in trials involving sexual offences, the outcome turns on the court’s assessment of the credibility and reliability of the principal witnesses.

[66] Credibility and reliability are not the same thing of course. Credibility has to do with the truthfulness of the witness. Reliability has to do with the ability of the witness to observe, recall and recount evidence in issue. A witness who is not credible is not capable of giving reliable evidence. A witness who is credible may, however, offer evidence that is not reliable.

[67] In light of the exculpatory evidence offered by J.C., it is imperative that my assessment of the credibility and reliability of the witnesses tendered at trial be faithful to the W.D. framework. While that framework does not insist that exculpatory evidence be considered first, it often makes sense, as it does here, to proceed in that way. I begin, therefore, with my assessment of the credibility and reliability of J.C.’s testimony.

[68] As with any witness, I may believe some, all or none of J.C.’s evidence. Candidly, I reject J.C.’s evidence on any matter of any significance to the live issues in this case.

[69] J.C. was a generally non-credible witness. Under cross-examination, she boasted that she is a person who will not be told by others what to do. She makes the rules. And she will say whatever needs to be said to get what she wants. She backed that up with evidence that she repeatedly deceived the CAS about L.C.’s routine abandonment of her parental responsibilities and the fact that she and J.D. were regularly providing care to L.C.’s children. She justified her deceit on the basis that she hated the CAS and disagreed with their position.

[70] I found J.C. to be a witness whose evidence was less fact-based than it was goal-based. Her obvious intent was to say what needed to be said to raise doubt about J.D.’s guilt, even if what she said made little sense.

[71] In a number of ways, J.C.’s evidence confirmed peripheral aspects of C.D.’s evidence. For instance, she confirmed the time during which C.D. and her siblings lived in the white house in Orillia, as well as the fact that she and J.D. lived in the basement during that time. She confirmed that there were drugs in the house and that L.C. was involved with the CAS. And she confirmed that C.D. had a little princess bed in her room.

[72] On other aspects, she contradicted C.D.’s evidence. She testified, for instance, that she had never seen C.D.’s princess bed broken. She further testified that, on the date when the index offence allegedly occurred, she did not go Christmas shopping with L.C. and their mother, as C.D. suggested. She said that she was not invited to go and instead stayed home with J.D. to look after the children. Contrary to C.D.’s evidence that she had a poor relationship with J.D., J.C. said they had a great relationship. She said she and J.D. often cooked for the children, played with them and read C.D. stories at bedtime.

[73] The principal focus of J.C.’s evidence was on three areas:

(i) To demonstrate that J.D. had no opportunity to commit the alleged offence; (ii) To establish C.D.’s motive to fabricate the allegation against J.D.; and, (iii) To sow the seeds of doubt regarding the perpetrator of sexual abuse against C.D. by introducing a potential third party suspect – namely C.D.’s father.

[74] In each of these three areas, J.C.’s evidence was entirely unbelievable. I will consider each in turn, beginning with the matter of opportunity.

[75] According to J.C., her sister, L.C., was frequently absent from the home when they lived together at the white house. She and J.D. were often left to care for the children.

[76] There appears to be consensus that she and J.D. lived in the basement. But there was no bathroom in the basement. The white house included three bedrooms on the upper floor and one bathroom. It was the only bathroom in the house. C.D.’s bedroom was next to the bathroom. One would expect that, in the course of a normal day, J.D. would use the bathroom on a number of occasions. He presumedly would have had ample opportunity to commit the alleged offence, which took only a couple of minutes, according to C.D.’s account.

[77] J.C. was adamant, however, that she and J.D. were virtually glued at the hip. She never left him alone with the children. She accepted that he sometimes preferred to go to the bathroom alone, but even then she kept close tabs on him. She could hear him walking up the steps to the bathroom and she could hear what doors were opening and closing on the second floor. If he took more than two minutes she would yell at him.

[78] What J.C. described is a tyrannical obsession with J.D.’s every movement. So obsessive in fact, as to be entirely unbelievable. Her description of her attentiveness to J.D.’s movements might arguably have had more credibility if she described him as a person who needed to be under close scrutiny. But the opposite was the case. She said J.D. was “good with children”. He made sure they were safe. He took care of them. Moreover, he never exhibited any interest in children sexually. Nothing in her evidence offered any explanation for why she would be so interested in his every move.

[79] She also failed to consider occasions when perhaps she was in the bathroom, or when one or the other of them was showering or bathing, which presumedly took place with some regularity. It is all but impossible, in my view, given the frequency with which J.D. and J.C. were left to care for L.C.’s children, that J.D. did not have opportunities to be alone with C.D.

[80] I find that J.C. was simply doing her utmost to persuade the court that J.D. could not have had more than two minutes alone with C.D. at any time. And I find that the significance of two minutes is that C.D. testified that the incident in question took about two minutes.

[81] In terms of the alleged motive to fabricate, J.C. essentially posited that C.D.’s Nana hated J.D. and concocted a means to get back at him through the false allegation of sexual abuse.

[82] I reject the alleged motive to fabricate. Fundamentally, it makes no sense. Moreover, it is contradicted by the direct evidence of C.D., which I accept.

[83] According to J.C., Nana and J.D. did not have a meaningful relationship. That makes sense. J.D. was Nana’s daughter-in-law’s sister’s husband. He was not a member of Nana’s immediate family and was only a member of her extended family according to the most liberal understanding of that term.

[84] J.C. did not suggest that Nana had a direct reason to dislike J.D. other than some oblique reference to gossip on the street about him being a pedophile. Instead, J.C. described an incident where she witnessed L.C.’s former husband, R.D., (Nana’s son) assault another man with a hammer. She said she gave a statement about the assault to the police. R.D. was convicted and imprisoned. Nana supposedly blamed J.C., even though it does not appear that J.C. testified in court about the incident. Nana purportedly threatened J.C. that because she had done something to hurt her family, she would do something to hurt J.C.’s family.

[85] The theory is that Nana rescued C.D. from her terrible living conditions. C.D. was thereby indebted to Nana. She repaid the debt by co-operating with Nana’s scheme to get back at J.C. by implicating J.C.’s husband in a sexual abuse scandal.

[86] The theory is too far-fetched for me to accept.

[87] I found C.D. to be a timid little girl who presented as younger than her stated age. Her disposition is such that I find it highly unlikely that she would have been able to steadfastly and consistently maintain a fabrication about J.D. rubbing his penis on her through a statement to the police, the preliminary hearing and the trial.

[88] C.D. was firm in her evidence that her Nana does not say bad things about J.D., did not tell her to make this allegation up about J.D. and would be unhappy if she lied. I believe C.D.

[89] It strikes me as extremely unlikely that Nana would rescue C.D. and her brothers, only to turn around and abuse C.D. further by using her as a tool in a diabolical scheme to exact revenge on J.C. for witnessing her son assault another man. Viewed another way, J.C. testified that Nana threatened to hurt someone in J.C.’s family because J.C. had hurt someone in Nana’s family. Why then would Nana proceed to hurt one of the most vulnerable members of her own family in an effort to exact her revenge on J.C.? It makes no sense whatsoever and I reject it entirely.

[90] I find that C.D. had no motive to fabricate her allegations against J.D.

[91] Finally, there was a suggestion in J.C.’s testimony that C.D. disclosed to her and J.D., right around the same time as the index offence allegedly occurred, that C.D.’s father had touched her sexually.

[92] The details of exactly what R.D. is alleged to have done and in what circumstances were not part of J.C.’s evidence. I find that J.C. concocted this incident in a weak attempt to point suspicion away from J.D. and in the direction of a third party.

[93] J.C. testified that she promptly reported C.D.’s disclosure to the CAS. This is the same CAS she described as “the most hated people” in her life and the kidnappers of her children. It seems to me highly unlikely that she would have reached out to them for help. In my view, the last thing she would have wanted would have been to invite the CAS back into their lives.

[94] J.C.’s evidence could be easily corroborated by the CAS investigation that would inevitably have been initiated as a result of her call. But there was no investigation. Indeed, no response whatsoever, which tends to strongly contradict J.C.’s assertion.

[95] I reject any of J.C.’s exculpatory evidence. I find it so incredible and unreliable that it fails to raise a reasonable doubt about J.D.’s guilt. Having said that, it is certainly not positive evidence of guilt. If the Crown is able to establish J.D.’s guilt, it must do so on the strength of its own witnesses.

[96] I do not intend to explore L.M.’s evidence in any detail. I do not consider it as adding much to the analysis.

[97] I will focus instead on C.D.’s evidence.

[98] C.D. was a witness who I had great confidence in. She gave a simple account of a brief incident of sexual interference that occurred when she was a young girl. The core elements of her account have, in my view, remained consistent over time. And the manner in which she disclosed the incident to her Nana makes sense to me. At the time of the alleged incident, C.D. was living in a very unstable and vulnerable environment. She did not trust her mother for reasons I find compelling. It was not until she had lived with her Nana in a stable and loving home for a number of months that she had built up sufficient trust in Nana to feel comfortable in disclosing the abuse to her.

[99] There are certainly a number of inconsistencies in C.D.’s evidence. Whether she was getting dressed in the morning or getting changed for bed at night is one. Whether J.D. was wearing a shirt was another. But the core aspects of her evidence have remained consistent. I find that the inconsistencies are on peripheral matters only. They do not, in my view, weaken the cogency of her evidence on the whole.

[100] It must be kept in mind that children do not have the same ability that adults do to process information and retain it in memory. In R. v. B.(G.), [1990] 2 S.C.R. 30, the Supreme Court adopted a common sense approach to assessing the credibility and reliability of the evidence of a child witness. Certain flaws in a child’s evidence may not be given the same weight as similar flaws in the testimony of an adult. The fact that a child is unable to recount precise details of an event does not necessarily mean he or she has misconceived what happened to him or her.

[101] C.D. was a particularly vulnerable child. Her parents were separated and her father did not live with them. Her mother was inattentive and appears to have suffered with substance-abuse problems.

[102] I find that C.D. and her younger brothers were regularly left in the care of J.C. and J.D. C.D. had a bedroom right next to the bathroom on the upper floor of the white house. J.D. would undoubtedly have reason to be on that upper floor to use the bathroom on a regular basis. He would have had regular opportunity to be alone with C.D. And C.D. was an easy target.

[103] C.D.’s testimony makes sense. She has a clear recollection of the occasion in question. She is able to place it at Christmastime and at a time when her mother was out shopping, quite possibly with J.C. as well. I find that she was particularly vulnerable on this occasion.

[104] She recalls the incident occurring in her bedroom at a time when she was getting dressed or undressed. She recalls it occurring on her princess bed and that J.D., who weighed over 300 lb at the time, broke the little bed.

[105] She did not embellish the details of what happened, as one might expect if she had been coached. The incident consisted of J.D. pulling down his pants and rubbing his penis on her belly. She added nothing more than that. She says she saw his penis but was unable to recount what it looked like.

[106] I found C.D. to be a credible witness who gave a reliable account of what happened to her on the occasion in question. I completely accept her evidence and find that it satisfies me, beyond a reasonable doubt, of J.D.’s guilt of the charged offence.

[107] In the result, a conviction will be entered on count one.

C. Boswell J. Released: March 9, 2022