Publication Ban Warning

An order restricting publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:

486.4(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences;

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).

(2) In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and

(b) on application made by the victim, the prosecutor or any such witness, make the order.

(2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

(2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the victim of their right to make an application for the order; and

(b) on application of the victim or the prosecutor, make the order.

(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.

(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22, 48; 2015, c. 13, s. 18.

486.6(1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15.

Court File and Parties

COURT FILE NO.: CR-20-207 DATE: 20220506 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – R.H. Defendant

Counsel: D. Bryant, for the Crown A.Goldkind, for the Defendant

HEARD: May 4, 2022 in person

Justice verner

Reasons for Judgment

[1] R.H. stands charged with a historical sexual assault against his friend’s daughter D.B.. He faces three charges including one count of sexual assault, one count of sexual touching and one count of invitation to sexually touch, all of which relate to a single incident from 2014 or 2015. The Crown called the complainant D.B. as a witness and introduced an agreed statement of fact. The Defence called no evidence.

The Facts

[2] D.B. is a 16-year-old girl and lives with her parents and her twin 14-year-old sisters. She has known R.H., a very close friend of her father’s, since she was an infant. When she was younger her family lived in a house with a separate studio apartment on the main floor, where R.H. lived. D.B. remembers that the walls in that house were paper thin, such that she could hear a sneeze or flatulence through the wall.

[3] Her family members visited R.H. in his apartment often. He had an open door policy, such that the family members could come and go as they pleased. She estimated that she visited R.H. in his apartment twice a week, and that she would often sit on his couch and watch television with him during her visits. She agreed that in the year leading to the incident in question she was likely in his apartment 100 times. During that time, he never made inappropriate comments or jokes, he never touched her inappropriately, and he never acted inappropriately around her.

[4] She testified that on a Saturday or Sunday, when she was 9 years old, while her family was at home, she went to visit R.H.. While she was watching television on the couch beside him, he asked her to “rub his dick”. His request was completely “out of the blue”. According to her testimony, his fly was down and his penis was exposed. She did what she was told.

[5] R.H. then asked D.B. to go over to his bed and again she complied. He laid her down on her back, undid her pants – which she believed were jeans – and pulled her pants and her underwear down to her knees. He did not “really” remove his pants, but his penis was still exposed. He then “inserted” his penis into her vagina. She could not say how long the penetration lasted. When asked for further detail with respect to what he did after he inserted his penis, she said he rubbed his hand along her vagina while his penis was inside of her. He also asked her to “suck” his penis, which she refused to do out of confusion with the entire situation. She did not know how the sexual encounter ended. She put on her pants and left his apartment.

[6] She did not remember any blood involved in the assault and she did not attend the hospital.

[7] After this event, she did not tell anyone what had happened. She never warned her sisters about going to R.H.’s apartment. She never was asked or threatened by R.H. not to disclose. And R.H. never acted inappropriately with her again.

[8] According to her evidence, in the following five or six years she never thought about this incident once. After blocking her memory of the assault out of her mind for years, something “triggered” it. According to D.B., her memory of the assault then “resurfaced”.

[9] At one point while she was blocking the memory of the assault out of her mind, she suffered a serious head injury. The injury impacted a number of her memories, including her memory of the assault.

[10] The first time she disclosed the allegations to anyone was when she was 14 years old. At that time, she was having difficulty in several aspects of her life, including her academics – she almost failed grade 9 English – and other social pressures. She described herself as having a “breakdown” at the time. She was aware of the “me too” movement going on. It was her 14th birthday and she had M. over for a sleepover. M. could tell something was wrong with D.B. and asked D.B. to share. D.B. talked to M. about many of her issues that night. M. “ended up walking [her] through” the assault. M. was very empathetic and supportive, and M. helped D.B. get to a more “relaxed state”. D.B. never intended on disclosing to her parents or authorities.

[11] D.B. did not disclose the allegations to anyone else for another five or six months, at which point she disclosed to two friends during a geography class. One of the two friends insisted that D.B. inform her parents as to what happened and the friend threatened to tell D.B.’s parents herself, if D.B. would not. It was only at that point that D.B. told her mother. Her mother told her father and D.B. then made a formal report to police.

[12] In 2021, after D.B. reported the allegations and after the preliminary hearing, she suffered yet another serious head injury. She received five staples to her head. Luckily, the injury did not have a significant impact on her cognitive functions. When asked if that injury impacted her memory of the assault, she said, “No, not that much really”.

The Complainant’s Demeanour

[13] D.B. is now 16 years old. Crown counsel struggled to find the right word to describe D.B.’s demeanour. Counsel came up with the term “unsophisticated”, although she felt that term was not quite right. I understand where the Crown is coming from since unsophisticated has a negative connotation and D.B.’s character on the stand was anything but negative. D.B. came across as uncorrupted, genuine and pleasant. She has a real innocence about her. Some 16-year-olds present as adults, others present as the children that they are. D.B. falls into the latter category.

[14] Not only was D.B. genuine, but she came across as extremely frank in her testimony. She was perhaps the most frank witness that I have encountered throughout my experience in law. She did not hesitate in answering the questions posed to her and did not consider whether the answers weakened or strengthened her testimony. She appeared to be straight forward and candid with the court.

[15] The other important aspect of her demeanour on the stand is that she readily agreed with almost all of the suggestions put to her in cross-examination.

Legal Principles

[16] The one issue before me is whether the complainant’s testimony proves the allegations beyond a reasonable doubt.

[17] In assessing D.B.’s testimony, I must keep in mind that she is not an adult. As McLachlin J. (as she then was) emphasized in R. v. W.R., [1992] 2 S.C.R. 122, children may perceive the world around them differently than adults and therefore children may remember different details about an event than we would expect an adult to remember. She said:

Since children may experience the world differently from adults, it is hardly surprising that details important to adults, like time and place, may be missing from their recollection. Wilson J. recognized this in R. v. B. (G.), [1990] 2 S.C.R. 30, 77 C.R. (3d) 347, 56 C.C.C. (3d) 200, 111 N.R. 31, 86 Sask. R. 111, at pp. 54-55 [S.C.R.], when, in referring to submissions regarding the Court of Appeal judge's treatment of the evidence of the complainant, she said that:

[I]t 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.

[18] In addition to the principle that the testimony of a child is to be assessed differently than that of an adult, McLachlin J. also emphasized in this passage that there is no presumption that a child is less reliable than an adult. On the other hand, if the evidence reveals that the testimony of a child in any specific case may be unreliable, the child’s evidence should be approached with appropriate caution. This principle was also emphasized in R. v. W.R.. McLachlin J. said:

The repeal of provisions creating a legal requirement that children's evidence be corroborated does not prevent the judge or jury from treating a child's evidence with caution where such caution is merited in the circumstances of the case. But it does revoke the assumption formerly applied to all evidence of children, often unjustly, that children's evidence is always less reliable than the evidence of adults. So if a court proceeds to discount a child's evidence automatically, without regard to the circumstances of the particular case, it will have fallen into an error.

[19] Whether the Crown’s case is based on the evidence of a child witness or an adult witness, the burden on the Crown does not change. The Crown must prove the allegations beyond a reasonable doubt. In the case before me, if I find that the complainant is credible and reliable such that R.H. probably sexually assaulted her, that is insufficient to support a conviction. Proof beyond a reasonable doubt is higher than a finding that he probably did it. Although the Crown need not prove the allegations to an absolute certainty, the burden on the Crown is much closer to an absolute certainty than it is to proof on a balance of probabilities (R. v. Starr, 2000 SCC 40 at para. 242).

[20] The question for me is whether the complainant’s candid testimony meets this burden.

Application of the Legal Principles

[21] Both counsel agreed the issue before me is not with respect to the complainant’s credibility, but with respect to her reliability. She was quite credible. As I indicated earlier, I am not sure I have encountered a more frank witness. The issue at trial is whether her memory regarding the allegations is sufficiently reliable to support a conviction.

[22] Three aspects of D.B.’s memory were corroborated through the agreed statement of fact. Her evidence that R.H. lived in an apartment in her family home when she was around 9 years old was corroborated. Similarly, R.H.’s apartment was as D.B. described it in her testimony and D.B. accurately remembered that when she was 14 years old she disclosed the abuse to her mother, before she reported the allegations to police. However, as pointed out by the defence, these pieces of evidence are not strong support for the position that her memory of the assault itself is reliable. R.H. lived with D.B.’s family for a number of years and she was in his apartment frequently. It is therefore not surprising that she remembers him living with them and that she could recall the layout of his apartment. Furthermore, her ability to recall disclosing the allegations at the age of 14, is not indicative of her ability to recall events that occurred when she was 9.

[23] I note that there are some aspects of her description of the sexual encounter which may seem implausible. As an example, when asked what R.H. did after he “inserted” his penis into her vagina, she did not suggest that he made any thrusting motion or any other movement. I find it implausible that there was no such movement. However, she was not directly asked about whether R.H. moved while his penis was inside her and, as pointed out by Crown counsel, her failure to mention that detail may simply be a factor of how a child perceives the world differently. She may not have felt that his movement was worth mentioning. I find that when you consider that D.B. is a child, there is nothing implausible about her description of the mechanics of the sexual encounter.

[24] D.B.’s evidence was credible, it was corroborated in some peripheral ways, there was no suggestion of any inconsistencies in her testimony and her description of the sexual encounter is plausible. There are therefore several reasons to find her reliable.

[25] However, there are a few aspects of her testimony that reveal weaknesses in her reliability. They include:

(1) Her admission that her memory of the assault is not strong;

(2) Her susceptibility to suggestion; and,

(3) The plausibility of R.H. sexually assaulting her while her family was within earshot.

[26] I will now assess each of those three factors in turn.

(i) The Complainant’s Admission regarding the Weaknesses with her Memory of the Assault

[27] D.B. admitted a number of problems with her memory of the assault. She admitted that after the assault she suffered a serious head injury which impacted her memory of the assault, as well as her memory of other incidents. When asked which incidents were most impacted by the injury, she explained that the events that her family often spoke about were events that were not forgotten or lost when she was injured. In contrast, many of the events that were not discussed in her home were erased from her memory at the time of her injury. Notably, the allegations before the court were never discussed by her family.

[28] D.B. also admitted that she blocked the assault out of her mind for five or six years. She testified that her memory was “triggered” by something. She could not say what or when it was triggered. Given her evidence that it was blocked for five or six years and given that the time between the assault and disclosure according to her timeline, was five years, the memory must have been triggered not long before she disclosed the allegations. In other words, on her evidence, she blocked out her memory of the assault from essentially the day it happened until the day she disclosed.

[29] Given these issues with her reliability, D.B. was asked to rate the strength of her memory of the assault on a scale of one to ten, where one would be almost no memory of the assault and ten would be a clear memory of the events akin to a video recording. She described her memory as a three or four. She admitted that her memory was “cloudy”, “hazy”, “confused” and “not sure”. Interestingly, her memory of when she accidentally stabbed her hand with a tool in grade one and her memory of accidentally stapling her index finger when she was in grade three are both very vivid memories, such that she would rate them as a ten on that memory scale. Those memories would be at least as old as her memory of the assault.

[30] Crown counsel submitted that although D.B. admitted her memory has weaknesses, she still remembers a significant amount of detail. Counsel pointed out that D.B. readily admitted that her memory was imperfect. She was frank about the many details that she could not remember. Yet she swore under oath that she remembers that R.H. sexually assaulted her. According to Crown counsel, we can trust that D.B. remembers enough to support the charges before the court.

[31] However, D.B.’s evidence was not that her memory was weak because it was spotty or had gaps. She admitted that her memory was weak in that it was “cloudy” and “hazy”, which suggests that her memory of what she did recount is unclear. I am particularly concerned about her agreeing that her memory of the assault is “confused” and “not sure”. Those terms suggest that although she has a memory of the sexual assault as she described it, she is at the same time “confused” and “not sure” about the strength of that memory.

(ii) Susceptibility to Suggestion

[32] My second concern is with D.B.’s susceptibility to suggestion. As I noted above, D.B. readily agreed with almost every suggestion that was put to her in cross-examination, such that it left the impression that she was susceptible to suggestion.

[33] This susceptibility is concerning given the lack of evidence as to what initially prompted her disclosure to her friend M.. D.B. testified that she first disclosed the allegations when she was having a “breakdown”, at a time when the “me too” movement was in people’s minds. She testified that her friend M. was perceptive that something was wrong with her that evening and prompted her to talk about it. According to D.B., M. “ended up walking [her] through” the assault. D.B. testified that M. was very empathetic and supportive, such that by the end of the conversation D.B. was in a much more relaxed state. Although there is no direct evidence that M. asked any leading questions, D.B.’s evidence raises the concern that M. lead D.B. through her disclosure of the assault.

[34] Given D.B.’s susceptibility to suggestion and given her timeline as to when her memory “resurfaced”, it is reasonably possible that her memory of the assault was “triggered” by leading questions from M.. (R. v. Villaroman, 2016 SCC 33). This possibility raises concerns about the reliability of D.B.’s memory. I also have concerns that D.B.’s memory was strengthened through the comfort she received from M. after she disclosed.

(iii) The Plausibility of R.H. Committing this Offence as Described

[35] Finally, I take into account that, according to D.B.’s testimony, the walls of R.H.’s apartment were paper thin, such that the occupants could hear a sneeze or flatulence from the other room. Yet according to the allegations, R.H. risked having full intercourse with a 9-year-old girl, not knowing whether she would scream out in pain in his apartment, while her parents were within earshot. Moreover, D.B. described R.H. as having an open door policy, such that any one of her family members, who were home at the time, could have come through his door. I find it somewhat unlikely that he would have done anything so brazen. However, I also acknowledge that he did not testify and I know nothing about his character beyond D.B.’s testimony. I therefore do not put much weight on this factor.

A Finding that R.H. Absconded

[36] In addition to the strengths and the weaknesses with the evidence, I may consider the fact that R.H. absconded midtrial, in assessing guilt.

[37] R.H. did not attend court today to hear his verdict. I found that he absconded and that accordingly, pursuant to s. 475 of the Criminal Code, I had the authority to continue his trial and deliver judgment in his case in his absence. I recognize that I may draw an adverse inference from his decision to abscond midtrial (R. v. Akhtar, 2022 ONCA 279). The decision to abscond may amount to evidence of a guilty conscience. I further recognize that in some trials, the accused’s decision to abscond tips the weighing of the factors over the threshold of proof beyond a reasonable doubt. On the other hand, an accused may abscond simply because he or she does not have faith that the justice system will work as it should, and fears that, although innocent, he or she will be found guilty. Although there was sufficient evidence to find that R.H. absconded, there was no evidence to assist with whether it was in fact a result of a guilty conscience or a fear of a wrongful conviction.[^1]

[38] On the facts of this case, I do not find that R.H.’s decision to abscond impacts the balancing of the relevant factors.

Conclusion

[39] D.B. was a pleasant, forthright 16-year-old witness. Her willingness to admit the weaknesses with her testimony is a breath of fresh air for the court. I do not believe for a minute that she intentionally misled the court. I believe that she has a memory of being assaulted by R.H. in a horrifying way, when she was only 9 years old. However, that memory is “hazy”, “cloudy”, “confused” and “unsure”. The lack of clarity with respect to her memory in itself raises concerns about the reliability of her account. And, as I have just outlined, I have other concerns with her memory. When considered cumulatively, these concerns raise a reasonable doubt in my mind. The Crown has not met its burden.

[40] I therefore find R.H. not guilty on all three counts.

Justice Verner Released: May 6, 2022

[^1]: Aside of course from the evidence presented at trial as to his guilt.