Court File and Parties

COURT FILE NO.: 21-036 DATE: 20220113

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN – and – C.R. Defendant

Counsel: Rebecca Watson for the Crown Mitch Eisen for C.R.

HEARD: December 20-21, 2021

Reasons for Judgment

C. Boswell J.

[1] C.R. is a 71-year-old man who lives in Midland with his common law spouse, D.H. They have been together for 24 years. D.H. has a daughter, T.C. and, through that daughter, two grandchildren, T.C. and G.C. Since there are two T.C.’s, I will refer to the adult T.C. as T.C.’s mom. The young T.C. – the complainant in this proceeding – I will refer to simply as T.C. C.R. is the step-grandparent to T.C. and G.C.

[2] During the long holiday weekend at the beginning of August 2019, T.C. told his mom that C.R. had touched his genitals, or as he put it, “Papa touched my balls”. T.C. was eleven years old at the time.

[3] T.C.’s disclosure to his mom led to a discussion with two police officers in his back yard, followed by a formal videotaped interview with the police and a CAS worker on August 6, 2019. C.R. was arrested on August 8, 2019. He was tried before me, sitting without a jury, on an indictment that alleges that he both sexually assaulted and sexually interfered with T.C. between September 1, 2018 and December 31, 2018.

[4] The trial took place in a hybrid context. The court sat “in-person”. C.R. attended in person as well. Counsel attended virtually over the Zoom videoconference platform. All witnesses, apart from C.R., appeared over Zoom as well.

[5] The offence of sexual assault involves four essential elements – things the Crown has to prove to the reasonable doubt standard in order to establish the offence. They are: (1) an intentional touching; (2) the absence of consent to the touching; (3) knowledge by the toucher that the touching is not consensual; and (4) a sexual context to the touching.

[6] The offence of sexual interference has three essential elements. They are: (1) an intentional touching; (2) the person touched is under the age of 16; and (3) the touching is for a sexual purpose.

[7] Most of the essential elements of the two charged offences are not controversial. The real issue in this case is whether the Crown has established to the reasonable doubt standard that the alleged touching took place. If so, then both alleged offences are made out.

General Principles

[8] Before I embark on a discussion of the evidence adduced at trial, I will take a moment to remind myself of certain basic principles that apply to my assessment of the evidence.

The Presumption of Innocence

[9] First, C.R. is presumed to be innocent. That presumption is only rebutted if and when Crown counsel establishes each and every essential element of a criminal offence to the reasonable doubt standard.

The Burden of Proof

[10] Second, the onus remains on the Crown at all times to establish C.R.’s guilt with respect to a charged offence. That onus never shifts. C.R. has no obligation to prove anything in this case; certainly not that he is innocent.

The Testimony of the Accused

[11] Third, C.R. elected to testify in his own defence. He testified that he did not commit the charged offences. More particularly, he testified that he did not touch T.C. in a sexual or otherwise inappropriate way on the occasions in question or any other occasion.

[12] When an accused person elects to testify and denies culpability for a charged offence, the court is directed to consider and weigh his testimony within the analytical framework described by the Supreme Court in R. v. W.(D.) (1991), 63 C.C.C. (3d) 397 (“W.D.”). While there is no magic to the wording of the formula set out in W.D., it is important that its principles be applied.

[13] If I believe C.R.’s evidence that he did not touch T.C. in a sexual way, then I must acquit him. A belief in C.R.’s denial of culpable conduct obviously raises a reasonable doubt about his guilt.

[14] Even if I reject C.R.’s exculpatory testimony, I must still consider whether it nevertheless raises a reasonable doubt about his guilt of an offence. If it does, I again must acquit him of that offence.

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

[16] The application of the W.D. analysis does not mandate that a defendant’s evidence be considered in isolation. To the contrary, the court has a duty to consider a defendant’s evidence in the context of all of the evidence presented at trial. The court has a positive duty to compare the evidence of all the witnesses, recognizing of course that one possible outcome of the comparison and overall assessment of evidence is that a reasonable doubt may be raised about the guilt of the accused: see R. v. Hull, [2006] O.J. No. 3177 at para. 5.

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

The Evidence

T.C.’s Mom

[18] I will begin with an overview of the evidence of T.C.’s mom. She testified that she and her former husband, the father to T.C. and G.C., split up in 2018. They were living in Trenton where her husband, a member of the Canadian Armed Forces, was stationed. She moved to Port McNicol in June 2018 to be nearer to her family. Her children followed several weeks later. They moved into a rental property owned by her mother.

[19] In July 2018 T.C.’s mom secured employment in the Midland area as a dental receptionist. She worked 9-5, Monday to Friday, with two exceptions. Fridays her workday ended at 3:30 p.m. On Wednesdays the office was open late, so she worked an 11 a.m. to 8:00 p.m. shift.

[20] In the fall of 2018, T.C. and his sister began to attend public school in Victoria Harbour. Their school day ended at about 3:25 p.m. Most days they would walk from their school to their aunt’s house, where they would stay until their mom picked them up after she finished work.

[21] On Wednesdays, however, C.R. would pick the kids up after school and take them to the house he shared with D.H. He would look after them until D.H. got home from work, which was usually close to 6:00 p.m. He would make dinner for everyone in the meantime. After dinner he would drive the kids home and wait there until T.C.’s mom got home from work.

[22] T.C.’s mom recalled that the kids walked to her aunt’s even on Wednesdays and that C.R. picked them up from there. But both C.R. and T.C. testified that C.R. picked the kids up directly from school. I find that T.C.’s mom is simply wrong about where the pick-up occurred. That said, nothing turns on the exact location of the pick-up.

[23] The Wednesday babysitting routine lasted from the first week of school in September 2018 until February or early March of 2019 when C.R. asked T.C.’s mom to make other arrangements.

[24] T.C.’s mom perceived C.R. to be very hard on her children, particularly T.C. He was strict and often referred to T.C. as a “Momma’s boy”. In her words, “C.R. can be an ass and my son took the brunt of it.”

[25] T.C.’s mom described for the court the occasion when T.C. disclosed to her that he had been sexually assaulted by C.R. She said it was the long holiday weekend at the beginning of August 2019. The kids had come back to her home after spending some time at their dad’s. She explained to them that she had to work the following week and that they would be spending the week with their grandparents, D.H and C.R. There was an expectation that part of that time would be spent at a cottage at Bass Lake.

[26] According to T.C.’s mom, T.C. told her he did not want to go. Indeed, he said he wasn’t going. She pushed back and he began to cry and he told her that “Papa” had “touched his balls”. She told him he had to talk to someone about it and he asked to speak to Sammy, who is her cousin and an officer with the Ontario Provincial Police. She called the OPP and two officers, neither of whom was Sammy, came to the house to speak to T.C. A few days later they attended the CAS office in Barrie where she and both kids were interviewed.

T.C.

[27] T.C.’s evidence in chief was comprised largely of the introduction, on consent, of his video-recorded statement to the police on August 6, 2019. He adopted the content of that statement as part of his trial testimony.

[28] T.C. is presently 13 years old and in grade 8. At the time of his police interview he was 11 and had just finished grade 5.

[29] He was interviewed by OPP officer Robin Chiasson. He told her the following:

• His grandpa has been touching him and he thinks it is “a little disgusting” and he doesn’t like it.
• Every time he’d go to his grandpa’s house he’d sit on the couch and his grandpa would touch him. He’d get up and move and go somewhere else.
• The touching would take place when no one else was around. His sister would be downstairs playing and his grandma was never home when it happened.
• He would just be sitting there watching t.v. His grandpa would be sitting beside him and would just go touching him. He’d put his hand down his pants and touch him on his testicles. He thinks that is disgusting.
• It happened more than once. It was always at grandpa’s house and always on the couch. His sister was usually downstairs when it happened.
• It started the second week of school. The last time it happened was in December 2018.
• He feels pretty angry about it. He told his grandpa to stop a few times and he did not stop.
• He could not remember what kind of pants or shorts he had on when these incidents happened.

[30] T.C.’s video-recorded statement was supplemented by additional testimony.

[31] T.C. testified that, prior to the incidents of sexual assault, he had a good relationship with C.R. He had fun at his grandparents’ house. But that is no longer the case.

[32] Notwithstanding what he had said in his August 6, 2019 interview, T.C. testified here that the touching did not occur every time he was at his grandparents’ house. He said it was five or more times that his grandpa touched him inappropriately. He could not remember the specifics of each occasion. But he did recall that the television was on. It was usually playing Judge Judy or the news.

[33] The touching did not, he said, occur on top of his clothes. It was under his clothing each time. It consisted of touching his penis or testicles. Nothing was said between them when the touching occurred. It was always very brief, taking only seconds. When it happened, he would get up off the couch and go to the basement where his sister was. Eventually his grandma would get home. They would eat dinner and after dinner his grandpa would drive them home. When they got home, he would go into his room and lay down and watch You Tube.

[34] T.C. said he eventually told his mom about the touching because he did not want to go back to C.R.’s house. He was hoping that by telling his mom, he would not have to go there.

[35] During cross-examination, T.C. confirmed that he had given formal statements on four occasions. First, to two police officers in his backyard. Next, he gave his video-recorded statement to the police on August 6, 2019. Later, he testified at the preliminary hearing, which took place in April 2021. Finally, he testified at trial.

[36] C.R.’s counsel drew out a number of inconsistencies in things that T.C. had said over his four statements. For instance,

(a) He initially told the police that “every time” he went to C.R.’s, C.R. would touch him. Here he said it was 5 or more times in total. (b) When he spoke to the police in his backyard, he told them it happened “every week” when he went there on Wednesdays from the second week of school to the end of December. At the preliminary hearing he said it did not happen every time and said he was probably nervous when talking to the police. (c) He told the police that he would be on his phone when the touching occurred. Here he said that is not true. He would be watching television. (d) He told the police that the touching occurred both over and under his clothes. Here he said it was only under his clothing. (e) In his video-recorded statement, he said that the touching was of his testicles. At the preliminary hearing and again in his testimony here he said his penis was also touched. (f) At the preliminary hearing, he testified that he could not remember if the touching of his penis involved grabbing or stroking. He said here that it was stroking. (g) In his direct testimony here, he said that he had a good relationship with C.R. prior to the touching beginning. But he agreed with defence counsel that C.R. was stricter than his parents, that C.R. would yell at him sometimes and he would also refer to him as a “Momma’s boy”. He agreed that they got along okay at times and at other times they did not get along because T.C. thought C.R. was mean to him.

[37] T.C. told defence counsel that he could not remember what clothes he was wearing during any given incident of touching. He said he normally wore jeans or sweatpants to school. He agreed that during the preliminary hearing he said he usually wore jeans to school. He agreed that it would be more difficult for C.R. to put his hands down T.C.’s jeans than it would be to put them down sweatpants. He further agreed that he has never described C.R. undoing his pants.

C.R.

[38] C.R.’s testimony was fairly straightforward. He provided some of his personal background and then categorically denied touching T.C. in an inappropriate way at any time.

[39] C.R. is retired from a 30-year career as a security guard. Prior to embarking on that career, he was a bricklayer by trade. He continues to do a little bit of brick work from time to time.

[40] He said he was asked by T.C.’s mom to help out with childcare on Wednesdays once the kids started school in Victoria Harbour. He agreed. He described their routine. He collected the kids from school at about 3:25 or 3:30, then drove the 15 minutes to his house. The kids would usually play outside or come in and grab a snack and go to the basement to play.

[41] While the kids were playing, he got supper ready. His wife got home at about 4:50 p.m. They would normally eat dinner around 5:30 p.m.

[42] After dinner they would watch the news and then he would drive the kids home. The kids would go to their rooms and he would watch the hockey game on television until T.C.’s mom got home.

[43] C.R. denied that he touched T.C. in a sexual way. He denied ever touching him on his penis or testicles.

[44] C.R. could not recall any occasions when T.C. sat with him on the couch in the living room watching television. In direct examination he said it never happened, though under cross-examination he conceded that there could have been such a time, but he does not recall it.

[45] C.R. described his relationship with T.C. as one of “love/hate”. He agreed that he was strict with T.C. and he did sometimes call him a “Momma’s boy” because when he asked T.C. to do something, T.C. would instead run to his mom and sit on her knee.

[46] Under cross-examination, C.R. said that the whole time between when he and the kids arrived home and when his wife arrived home, he would be making dinner. He would never sit on the couch while making dinner. Instead he would sit on a chair at the kitchen table. He would be able to watch television while cooking because his house was small and the main floor was an open-concept design.

[47] He repeated, during cross-examination, his denials of any inappropriate touching and disagreed with the Crown’s suggestion that he continued to touch T.C. on multiple occasions because he had gotten away with it the first time.

C.V.

[48] C.V. is C.R.’s niece. She was tendered by the defence as a character witness for C.R. She described their family as close. C.R. is, she said, fun to be around, well-liked, trusted and dependable. He has a reputation in the community for honesty and integrity.

[49] She conceded, of course, that she was not present with C.R. on any of the occasions when the sexual touching of T.C. is alleged to have occurred.

[50] C.V.’s evidence, while admissible, does not attract much weight in my view.

[51] The sexual assault by a trusted adult of a child in his care is an act that almost always occurs secretly and in private and will not, in the result, be reflected in the reputation in the community of a defendant for honestly, integrity or morality. The propensity value of character evidence as to morality is diminished in such cases. See R. v. Profit, [1993] 3 S.C.R. 637.

Analysis

[52] Cases like this one appear deceptively simple. The evidence was limited and to the point. The arguments brief. The issues narrow. But they are, in fact, terribly difficult to resolve because the evidence offers very little to assist the trier of fact in discerning who is being truthful and who is not.

[53] The evidence of T.C. and C.R. is diametrically opposed. Obviously, they cannot both be telling the truth. That said, it is not, strictly speaking, my function to determine which of two versions of events is true. My task is to determine whether the Crown has met its burden to prove the essential elements of the charged offences beyond a reasonable doubt, though a conviction must necessarily rest on an acceptance of T.C.’s evidence as true.

[54] My assessment of the evidence must, of course, involve a careful analysis of the credibility and reliability of each witness.

[55] Credibility and reliability are not the same thing. Credibility has to do with the truthfulness of the witness. Reliability with the witness’ ability to observe, recall and recount evidence.

[56] I will begin with an assessment of the credibility and reliability of C.R.’s evidence.

[57] C.R. flat-out denied that he has ever touched T.C. in a sexual way, as alleged.

[58] C.R. testified in a straightforward manner. There were no obvious internal inconsistencies in his evidence and there was a good deal of agreement between his evidence and the evidence of other witnesses on peripheral matters.

[59] There are two features of C.R.’s evidence that do give me some pause.

[60] First, it is clear, on C.R.’s own evidence, that he held an animus towards T.C. He adduced evidence of that animus in an effort to establish that T.C. may have had a motive to fabricate the allegations of sexual abuse. That same animus is, however, to some extent consistent with the acts of sexual violence allegedly committed by C.R. against T.C.

[61] There can be no doubt that sexual offences against children are violent crimes. See R. v. Friesen, 2020 SCC 9 at para. 5. C.R. bullied T.C. at times. His repeated use of the phrase “Momma’s boy” to describe T.C. underscores how little he valued T.C. as a person.

[62] Obviously, there is no direct line between holding an animus towards a child and sexually abusing him or her. I note only that C.R.’s obvious animus towards T.C. is consistent with the violence inherent in any act of sexual abuse.

[63] Second, C.R. was, in my view, a little too insistent that he had never sat on the couch in his living room with T.C.

[64] C.R. said his house was a small bungalow – roughly 800 square feet. The main floor was an open-concept design. C.R. was, according to his evidence, always on the main floor while the kids were there. He said he would be occupied in the kitchen making dinner. The kitchen and the living room were contiguous. There was a television in the living room. There was also one in the basement, but T.C. said his sister would generally be downstairs playing or watching television. Sometimes, he said, he would watch t.v. upstairs. He said it was usually Judge Judy, which is consistent with what C.R. said he would watch.

[65] In all the circumstances, it seems unlikely to me that in four months of Wednesdays, C.R. and T.C. never found themselves sitting together, even briefly, watching television upstairs. Yet C.R. was adamant that they had not. I got the impression that C.R. may have been trying to distance himself from the alleged scene of the crime, even though, as a general proposition, there is absolutely nothing wrong with a grandfather sitting next to his grandson on a couch watching t.v.

[66] To be fair, C.R. did accept, under cross-examination, that he may well have sat with T.C. on the couch on occasion. But he explained that if he had done so, he does not remember it.

[67] The W.D. formula describes the three general states of belief that a trier of fact may arrive at after assessing exculpatory evidence. I may totally accept C.R.’s evidence, totally reject it, or find myself somewhere in between, where I cannot decide whether to believe or disbelieve the exculpatory evidence. See R. v. C.L., 2020 ONCA 258 at para. 27.

[68] Looking at C.R.’s evidence in isolation I find myself in that middle ground. C.R.’s evidence was not so obliviously flawed that I totally reject it. But in light of the issues I identified a moment ago, I cannot say that I totally accept it either.

[69] The evidence of any witness, C.R. included, must not, however, be assessed in isolation. I must instead consider it in the context of all the other evidence adduced during the trial, including, most significantly, T.C.’s evidence.

[70] Counsel take very different views about the probative force of T.C.’s testimony. The Crown urged the court to conclude that T.C. provided simple and compelling evidence about the events in issue. Despite minor inconsistencies in some aspects of his evidence, he never waivered, the Crown says, on the core elements of the offences and was never caught in a lie. Crown counsel urged me to reject C.R.’s denials and to conclude that T.C.’s testimony offers a sufficient basis to ground a conviction.

[71] Defence counsel demurred. He pointed to a variety of flaws in T.C.’s evidence and submitted that those flaws must give rise to a reasonable doubt about C.R.’s evidence, particularly when considered in the face of C.R.’s clear denial of the alleged touching.

[72] Crown counsel provided me with the citation for the Court of Appeal’s decision in R. v. D. (J.J.R.) (2006), 215 C.C.C. (3d) 252, frequently referred to as “J.J.R.D.” She did not actually raise the case in argument, but I take from the provision of the citation that I am encouraged to apply the principles set out in that case.

[73] Essentially, J.J.R.D. stands for the principle that a trial judge may reject exculpatory evidence that lacks any apparent flaws, based on “a considered and reasoned acceptance beyond a reasonable doubt of the truth of conflicting credible evidence. Applied to the case here, I am asked to outright reject C.R.’s denials of the alleged touching, by concluding that T.C.’s conflicting evidence is so compelling that it establishes C.R.’s guilt beyond a reasonable doubt.

[74] I will come back to the principles of J.J.R.D. momentarily. First, I will assess the credibility and reliability of T.C.’s testimony.

[75] Defence counsel mounted a three-pronged attack on the credibility and reliability of T.C.’s testimony. First, he pointed to numerous inconsistencies in T.C.’s evidence. Second, he argued that it is improbable that events unfolded as T.C. says they did. Third, he contended that T.C. has a motive to fabricate. I will consider each prong in turn, beginning with the inconsistencies in T.C.’s evidence.

[76] There are undoubtedly inconsistencies between what T.C. said here and what he has said on prior occasions. There is at least one inconsistency between what he said here in direct examination (about the nature of his relationship with C.R.) and what he said about it in cross-examination.

[77] The inconsistencies are definitely flaws in the Crown’s case. The fact that a witness has said one thing here and something quite different about the same subject matter on an earlier occasion may very well raise concerns about the credibility and reliability of the witness’ evidence. That said, not every inconsistency is significant. Moreover, I must take into account T.C.’s youthfulness at the time the events in issue are alleged to have occurred and at the times he made statements to the police or gave testimony in court.

[78] T.C. was 10 at the time of the alleged incidents, 11 when first interviewed by the police and 13 when he testified here. Disclosing sexual abuse by a trusted relative is undoubtedly an anxiety-producing event, to say the least, as is testifying in court about that abuse. T.C. has found himself on very unfamiliar ground and can be forgiven for being perhaps less precise in his accounts than one might hope for in a court of law.

[79] 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.

[80] While there are certainly numerous inconsistencies in T.C.’s evidence, I tend to agree with Crown counsel’s submission that the core of T.C.’s story has remained consistent over time. I do not completely discount the inconsistencies as entirely unimportant, but given T.C.’s age, I do assign less weight to them than I otherwise would if he were an adult witness. In my view, they do not seriously undermine the credibility and reliability of T.C.’s evidence.

[81] The second prong of the defence position with respect to T.C.’s evidence is the assertion of the improbability that the events described by T.C. happened or happened in the way he described them.

[82] The improbability of the alleged incidents is said to arise principally from two aspects of the evidence. First, that it would have been extremely difficult for C.R. to have reached down T.C.’s unbuttoned jeans to touch his genitals. T.C., as I noted, never mentioned that C.R. unbuttoned his pants. Second, that T.C. learned quickly that going downstairs where his sister was playing was a “safe haven”. C.R. posits that it is very unlikely that T.C. would have continued to sit beside his grandpa on a two-seater couch after the first incident of touching occurred. T.C. testified that he thought it was disgusting and it made him angry. As a matter of common sense and human experience, he would have exhibited avoidant behaviour.

[83] In my view, T.C.’s account of the events in issue is not implausible.

[84] T.C. was not entirely sure what pants he was wearing on any given occasion, whether jeans or sweatpants. Even if it were jeans, I am not persuaded that a grown man would have any difficulty managing the simple task of sliding his hands down the pants.

[85] There is a certain attractiveness to the suggestion that following the first alleged incident of touching, T.C. would have avoided putting himself in a position where that type of touching could be repeated. In other words, it may well have been logical for him to avoid being alone with his grandpa on the couch.

[86] That said, it is soundly accepted that victims of sexual violence react in all sorts of different ways. It is not possible to measure T.C.’s response against what might have been expected of a normal person in the circumstances. That stereotypical “normal” person just doesn’t exist. Moreover, a young victim of sexual abuse by a trusted family member must adapt to his or her changed circumstances. It is wrong to expect a young victim of sexual abuse to react in an adult manner, or in a manner that adults might expect him or her to react. The fact that T.C. may have put himself in the same vulnerable position time after time does not, in my view, say anything about the likelihood of the events actually having occurred as he said they did. In other words, the absence of avoidant behaviour does not, in my view, assist in the assessment of the credibility or reliability of T.C.’s evidence.

[87] Finally, there is the assertion that T.C. had a motive to fabricate the allegations against his grandfather. I want to again be clear that C.R. has no obligation to prove anything in this case. He does not have to explain why T.C. might make false allegations against him.

[88] That said, defence counsel did establish in the evidence that T.C. did not have a particularly close and loving relationship with C.R. In fact, C.R. could be mean to T.C. He was strict and demanding and referred to T.C. at times as a “Momma’s boy” which I think most people would agree is a demeaning, unkind and, indeed, appalling thing for a grandfather to say to a ten-year-old grandson.

[89] While I agree that T.C. had an understandable motive to avoid going to his grandparents’ house, I do not accept that he had a motive to fabricate a sexual assault allegation against C.R. or, if he did, that he acted in accordance with that motive. I reach that conclusion for the following reasons:

(a) T.C. did not demonstrate any animus towards C.R. in his statements to the police, his preliminary hearing evidence or his trial evidence. (b) Alleging sexual violence to avoid visiting one’s grandparents strikes me as a little extreme. Even more extreme is the fact that T.C. alleged multiple incidents. If he was really fabricating a sexual assault allegation to get out of spending time with C.R., one alleged incident would have achieved his objective. And, (c) T.C.’s demeanour at the time of disclosure was consistent with a genuine account of events as he experienced them. He initially avoided disclosure and then when he did reveal to his mom what had happened, he broke down in tears.

[90] Overall, I found T.C. to be a generally credible witness; one doing his best to recount unpleasant and embarrassing incidents with as much detail as he could recall. That said, there were inconsistencies in his accounts that must be carefully considered, in the context of all of the evidence adduced at trial, when assessing whether the evidence is capable of proving C.R.’s guilt to the reasonable doubt standard.

[91] I return to the principles of J.J.R.D.

[92] The W.D. instruction is meant to guard against a trier of fact reaching a conclusion of guilt on a simple preference of one witness’ evidence over another. In providing a formulaic approach to the assessment of exculpatory evidence, it ensures that the trier applies the reasonable doubt standard to that evidence.

[93] J.J.R.D. addresses one available route to the outright rejection of exculpatory evidence. But it must be remembered that the central issue in J.J.R.D. was the sufficiency of the trial judge’s reasons for rejecting the evidence of the accused. What is critical in the application of the principles of J.J.R.D. is the requirement of a considered and reasoned acceptance of inculpatory evidence beyond a reasonable doubt.

[94] The absence of a considered and reasoned explanation for the rejection of an accused person’s evidence, tends to suggest that the trial judge may have approached the evidence of the complainant and the accused as a credibility contest – exactly what the W.D. formula instructs against.

[95] J.J.R.D. does not include an analysis or guidance about the demands of the terms “considered” and “reasoned”. In R. v. C.G., 2021 ONCA 809, however, the Court of Appeal made it clear that it is necessary that a trial judge provide an explanation for a finding that the evidence proves the charged offences beyond a reasonable doubt. Most importantly, the trial judge must explain why any exculpatory evidence fails to raise a reasonable doubt, particularly where there are no obvious flaws in that evidence. Nordheimer J.A. emphasised this point by citing R. v. Gagnon, 2006 SCC 17, where the majority of the Supreme Court said, at para. 21:

…Where the charge is a serious one and where, as here, the evidence of a child contradicts the denial of an adult, an accused is entitled to know why the trial judge is left with no reasonable doubt.

[96] I have found that T.C. was a generally credible and reliable witness. But that finding does not inexorably lead to a finding of guilt. The Court of Appeal has unequivocally confirmed that a reasonable doubt can survive a finding that the complainant is credible.

[97] In the circumstances of this case, I believe it highly likely that C.R. sexually assaulted T.C., just as T.C. said he did. But the standard of proof in a criminal case requires more. Proof beyond a reasonable doubt does not require absolute certainty. But it requires something closer to absolute certainty than proof of probable or likely guilt – even highly likely, as I find the case to be here.

[98] Given the flaws in T.C.’s evidence (notwithstanding that he is a child witness) and the absence of any serious flaws in C.R.’s evidence, I am not persuaded that the Crown’s case is compelling enough to move my assessment of C.R.’s exculpatory evidence from the middle ground of uncertainty about its veracity, to an outright rejection of it. Expressed a somewhat different way, I find myself unable, in all the circumstances, to provide a considered and reasoned explanation sufficient to support an outright rejection of C.R.’s denials.

[99] In the result, and in accordance with the instructions of W.D., I must acquit C.R.

C. Boswell J. Released: January 13, 2022