COURT FILE NO.: CR-21-00000655-0000
DATE: 2022 05 27
ONTARIO
SUPERIOR COURT 6OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
H.K.
Defendant
Matthew McLean for
the Crown
Janelle Belton, Counsel for the Defendant
HEARD: May 9, 10, 11 and 12, 2022
Justice Mossip
Reasons for Judgment
RESTRICTION ON PUBLICATION
A Permanent Restriction preventing the identification of a complainant under s. 486.4 (1) of the Criminal Code.
By court order made under subsection 486.4(1) of the Criminal Code, information that may identify the person described in this decision as the complainant may not be published, broadcasted or transmitted in any manner.
Contents
Reasons for Judgment 1
Issue. 3
Evidence at Trial 3
S.M. 3
Examination-in-Chief 3
Cross-Examination. 10
Re-Examination of S.M. 13
Melanie Clarke. 14
Ms. Diane Lyons. 15
H.K. 15
Examination-in-Chief 15
Cross-Examination. 16
Legal Principles. 18
Section 715.1 (1) of the Code – Videotaped Statement 18
Motive to Lie or Otherwise Fabricate. 19
Evidence of Children. 20
Delayed Disclosure/Incremental Disclosure. 22
The Presumption of Innocence and Burden of Proof 23
Reliability and Credibility of Witnesses. 27
Position of the Parties. 31
Crown. 31
Defence. 35
Analysis. 38
H.K. 39
Crown. 42
S.M. 42
Final Decision. 50
JUDGMENT. 1
Issue
1S.M. is the daughter of H.K.
2S.M. is 12 years old today. She told the police in 2020 that when she was between eight and ten, H.K. performed several acts of sexual misconduct on her.
3H.K. is charged with one count of sexual assault on S.M. and one count of touching for a sexual purpose, a person under the age of 16, directly with a part of his body, namely his penis and hand. These offences are alleged to have occurred in the City of Guelph, between the 1st day of January, 2018 and the 5th day of March, 2020.
4Counsel agreed that this case is about whether the acts alleged occurred, and not whether the legal elements of either of the offences have been satisfied beyond a reasonable doubt.
Evidence at Trial
S.M.
Examination-in-Chief
5At the outset of the trial, Crown and defence counsel agreed to a blended voir dire and trial hearing of S.M.’s evidence-in-chief. That evidence-in-chief consisted in part of her videotaped statement to the police given on March 6, 2020. The videotape was played in court, while S.M. watched the videotape outside of the courtroom.
6If the defence challenged the admissibility of the statement on the basis that the statutory criteria in s. 715.1 (1) of the Criminal Code, R.S.C., 1985, c. C-46, (“Code”) had not been met, those submissions could be made at the same time as the submissions on the substantive charges.
7Following brief questions in cross-examination, the issue was addressed in court. Prior to continuing her cross-examination, defence counsel submitted that she did not have any issue at that time with respect to the statutory criteria in s. 715.1 (1) being met. Her submissions were as to the weight to be given to the videotaped statement testimony.
8At the end of the trial, and during closing submissions, defence counsel again indicated that she did not have any submissions to make opposing the admissibility of the videotaped statement based on the statutory criteria set out in s. 715.1 (1).
9In addition to adopting the contents of her videotaped statement, S.M. testified in person from outside the courtroom. She testified about the circumstances of giving her statement to the police, and the misconduct she alleges her father did to her.
10A summary of S.M.’s evidence, in the videotaped interview, was as follows.
11S.M. testified that she knows the difference between the truth and a lie.
12She is presently 12 years old and in grade 6.
13She lives with her mother and two brothers, ages four and two, in Guelph.
14She was born in Eritrea and came to Canada with her mother when she was 6 years old. Her father already lived here.
15S.M. described something she says happened to her a month before her interview with the police, in February, 2020. It happened in her bed; her father was in her room with her. S.M. described laying on her side. Her father asked to sleep with her when she said she was cold, and she said no; then he climbed in her bed.
16S.M. stated that she said “stop” and told him to “go away”. Her father went to the bathroom and when he came back he said “sorry”. She said, “if you know that’s wrong, why did you do it?”
17Sergeant Clarke who was conducting the interview asked her what S.M.’s father did to her in the bed. At that point S.M. asked if Ms. Lyons could come into the interview room.
18S.M. described her father touching her private area with his private part, which she called his “long thing”. She was facing away from her father. She was asked what she felt. She said that the “long thing” touched her buttocks. She said she did not feel anything inside of her. She said he touched her buttocks over her clothes and then on her bare skin. She remembers she was wearing pajama top and bottoms.
19S.M. was asked if anything came out of her father’s “long thing”. She said she did not feel anything, but that after he left she felt her pants were wet. She said he did this one time.
20S.M. described another time when she was in grade three when her father came home late and was drunk. She was playing with her brother on his bed. When her father came home, she went straight to her bed.
21The time he came home drunk he did not touch her with his “long thing”. He touched her private area with his hands over her clothes, and underneath her clothes. She said it hurt when he touched her. She said he rubbed her privates. She said she thought he said something, but she forgot what he said.
22S.M. described misconduct by her father when her mother was not home, and she was in the kitchen. She said her father touched her buttocks with his “long thing”, over her clothes. He stood behind her when he did this. She could not remember if he said anything while he did this. He had clothes on when he did this.
23S.M. said that he always did that touching of her buttocks that she described when she was washing the dishes or making her lunch to go to school.
24S.M. testified that her father only touched her buttocks, as she described in her bed on one occasion, and he rubbed her private with his hand only one time. Her father always touched her buttocks with his “long thing” in the kitchen.
25S.M. testified that she was worried to tell her mother because “she’s going to ‘react’”.
26S.M. said her father told her not to tell anyone or she would never see him again, but she did not care. She said he said that to make her scared so she would not tell other people.
27S.M. said that her father thought she was “just little not to know that, and then when he came back and said, sorry, I don’t know, I just had enough”.
28S.M. stated that she did not want to have a father at home. She thought when she came to Canada that her life would be normal at first, like other fathers, but it was never normal.
29S.M. said she did not tell her mother what her father did. She said she tried but did not have the courage.
30S.M. added the following as her in-chief testimony at the trial.
31S.M. confirmed she was doing her best to tell the truth. She said she was smiling and laughing on the tape because it was an awkward situation. When she’s in an awkward situation, she mostly laughs and does not say anything. It was normal for her to laugh and not say anything.
32S.M. wrote some notes when she reviewed the videotaped statement the week before the trial. These notes provided the following details to what S.M. described happened to her.
(i) Note One
33In reference to testimony set out on page 14 of transcript of her videotaped statement:
S.M. wrote that she remembered the incident she described that happened in her bed, happened on a Friday night. On the Saturday her father told her not to tell for the second time.
(ii) Note Two
34In reference to the testimony set out on page 16 of the transcript:
When her father jumped on the bed and got into the bed with her she said “what are you doing?” and he said something but she can’t remember. Then her body didn’t move because she didn’t know what was happening. He went to his room after he went to the bathroom and after he went I started crying, then after a few minutes he came back and said sorry and I said “why did you do that bad stuff?” he said that he was my father and stuff.
He also said won’t you care if I was gone or something. But I was mad, so I didn’t really make sense of what he was saying. Then I said no, he said something in my language, so I don’t know. He made an expression which means somewhat offended or surprised.
(iii) Note Three
35In reference to when he came home drunk; the second time he did something to her:
When he came drunk, and I walked out of the room. He kind of gave me a hug and rubbed my vagina for a while then I went to my room, then after a while he came and started to rub my, in my room, vagina again and then he started kissing me then he finished or whatever, he went to the bathroom, and I think he was washing his hands.
36S.M. said that she remembered these things when she watched the videotape. No one told her to write these notes. These were things she remembered and wanted to tell the court.
37S.M. also identified two notes she made when she was first interviewed by Sergeant Clarke. They were marked as exhibits. One note said, “the long thing touched my butt”. And “he rubbed my P”. In court, S.M. said that “P” means private. She now knows a private part is her vagina. She learned that this year at school. She also now knows that when she referred to her father’s “long thing”, it is his penis.
38The other note was a scale with the numbers 1,5 and 10. S.M. put an “x” under the 10 to indicate that when her father touched her bare buttocks in her bed with his penis it hurt on the scale 10 out of 10. She did not know why it hurt her so much. She did not see what was happening. She felt her father’s penis but does not know exactly where she felt it. She was unable to say where the pain was coming from, or how long she felt the pain.
39When she was in the bed with her father, her pyjama pants were down by her knees; her father pulled her pants down. She felt something wet on her pants and her bed, but she does not know where the wetness came from. Her pants and bed were not wet before her father came into the room; she noticed the wetness when her father went to the bathroom.
40With respect to the incident when her father came home drunk and was wobbling and smelled like beer, that incident happened in the hallway. She was in her parent’s bed when her father first came home. Her father touched her vagina over her clothes first, then under her clothes. She said it was not painful.
41With respect to the incidents in the kitchen, these happened more than three times. She does not know how many times they happened. These incidents did not physically hurt her. She thinks they lasted a short period each time.
Cross-Examination
42In cross-examination, S.M. testified that her parents argued a lot. She said she felt sad when they argued; she was angry with her father for arguing. She wanted him to stop saying mean things to her mother. She didn’t like her father. Her mother would talk to her about her father. She did not want to live with her father.
43S.M. said she did chores and homework when she lived with her mother and father; she did not do fun things in the house. She said her mother did the cooking and dishes; she did not do those things.
44S.M. was questioned about the fact that she said her father would “always” rub his “long thing” against her buttocks in the kitchen, but at the preliminary hearing, she said he did it four times. She also said at the preliminary hearing that her father did these things when she was packing lunch and eating breakfast at the table, but she did not tell the police that.
45S.M. was also questioned about her evidence at trial that she did not help with the cooking or doing dishes. She said that in her culture a girl does the chores, and she basically did all the chores.
46S.M. then said that her mother did the dishes and prepared food, but that they take turns.
47S.M. was questioned about the incident that occurred when her father came home drunk, and she was in her parent’s bedroom. She told the police that she went straight from her parent’s room to her bedroom.
48At the trial, she said that her father rubbed her privates over and under her clothes in the hallway.
49S.M. said when she told the police she went straight to her bedroom, she did not remember at that time that the touching happened in the hallway.
50S.M. was questioned about the notes she wrote when she reviewed her videotape statement. In one of those notes she said her father gave her a hug and rubbed her vagina in the hallway. She did not tell the police that when she spoke to them. She remembered this touching last week.
51S.M. agreed that she did not tell the police about her father kissing her in the bedroom. She did not mention her father kissing her in the bedroom at the preliminary hearing. She did not talk about her father going to the bathroom to wash his hands before. She remembered that evidence last week.
52With respect to the incident in her bed, after her father went to the washroom to wash, S.M. said it was a few minutes later that he came from his bedroom to say he was “sorry”.
53Last week, in the note she agreed she wrote that the event happened on a Friday. She agreed it could have happened on a Saturday. She knows there was no school the next day. She was just “guessing” that it happened on a Friday.
54S.M. testified she forgot that her father told her twice not to tell anyone. She remembered that last week. She agreed she remembered more conversation with her father last week than at the time of the police statement. She wrote on the note what she remembered. She did not remember these conversations in the two years since the police statement.
55S.M. testified that on March 6, 2020 she gave a note to her classroom teacher, saying that someone did something bad to her.
56S.M.’s teacher advised the acting principal of the school. The school principal was contacted and told the teacher to contact Child and Family Services. Ultimately the police were called to the school. The Guelph Police Services took S.M. to the police station where she gave her videotaped statement.
57The acting principal at the school, Ms. Lyons, accompanied S.M. to the police station.
Re-Examination of S.M.
58In re-examination, the Crown asked S.M. about her evidence as to the number of times her father did inappropriate things to her in the kitchen. She said she did not know the exact number of times; she is not sure but thinks it is more than four times.
59She did not tell the police about hugging her father, or the kissing in the bedroom because she did not remember at the time.
Melanie Clarke
60Sergeant Clarke is a member of the Guelph Police Service and was the detective in charge of this matter. She conducted the videotaped interview of S.M.
61Sergeant Clarke testified as to how she became involved in this matter, and how she approached the interview of S.M..
62Sergeant Clarke testified that initially she interviewed S.M. alone, but then S.M. requested a support person and she accommodated that request. She testified it was not ideal to have another person sit in on the interview, but it happens sometimes with a young and vulnerable witness.
63Sergeant Clarke testified that her style of interviewing children is to “start big” and try to get details from the child. She testified that sometimes she uses leading questions to get more details from the child.
64In cross-examination, she testified that she sometimes uses the information she has to elicit more information from a witness.
65The only information she had before she started her interview with S.M. was that S.M. had given a note to her teacher and had given some additional information to her teacher as to who she said had done something bad to her.
Ms. Diane Lyons
66Ms. Lyons was the teacher in charge at S.M.’s school at the time of the disclosure made by S.M. Her role was that of the acting principal when the principal was out of the school.
67Ms. Lyons testified as to the circumstances of receiving the note on March 6, 2020, written by S.M., from S.M.’s teacher. She testified as to her professional involvement with S.M. prior to March 6, 2020.
68Ms. Lyons testified that she asked a few clarifying questions of S.M. to determine if she was safe to go home.
69Based on the answer to these questions, she contacted the Guelph Police Service.
70Ms. Lyons accompanied S.M. to the police station. She testified that initially she did not go into the interview room with S.M., but ultimately Sergeant Clarke asked her to come into the interview room. Her involvement , while in the interview room was observed by me on the videotape.
H.K.
Examination-in-Chief
71H.K. testified at the trial. He denied that he had ever touched S.M. inappropriately. He denied that he touched S.M. for a sexual purpose, or that he sexually assaulted his daughter.
72H.K. denied each of the specific allegations of sexual misconduct that defence counsel put to him.
73H.K. described the problems he had in his marriage with S.M.’s mother.
74H.K. testified that he never saw S.M. in the kitchen washing dishes or making food. He said S.M.’s mother did those tasks.
75H.K. denied he had ever rubbed his penis over S.M.’s buttocks in the kitchen. He denied an occasion when he came home after having a drink and seeing S.M. on her way to her bedroom. He testified that S.M.’s bedtime was between 8:30 to 9:00 p.m. and he came home later than that.
76H.K. denied he ever touched S.M.’s vagina with his hand over her clothes in the hallway. He denied touching S.M.’s vagina with his hands in her bedroom.
77H.K. testified that he has never lay in S.M.’s bed with her pants pulled down while in bed with her. He denied ever rubbing his penis against S.M.’s buttocks while in bed with her.
Cross-Examination
78H.K. testified that in his home country household “chores” were done by the women. Things were different in Canada, and everyone participates in chores, including himself.
79He testified that S.M. was not expected to help at home. He said that not once did he see S.M. wash the dishes or cook. He agreed it was possible she did those things when he was not around.
80H.K. testified that in his opinion S.M. did not do any of the house chores or pack her lunch. Her mother did those chores.
81H.K. testified that his relationship with S.M. was good before his arrest. He loved her like his other children. He was not close to her, but he was there for her if she needed help. He did not spend a lot of time with her. He never spent one-on-one time with her.
82H.K. testified that the only time he was alone with S.M. was when he took her to school or picked her up from school. Any other time he was with S.M., the rest of the family was there as well.
83H.K. agreed that S.M. was a very quiet girl; that she was shy. He agreed that S.M. tried to avoid hearing her parents argue.
84H.K. testified that he drank on occasion; usually one or two beers. He never drank more than two beers. He drank with his friends from Eritrea. He said he would not become drunk after two beers.
85When he is with his friends drinking he usually arrived home between 11:00 p.m. and 11:30 p.m..
86H.K. stated that it would not be wrong or abnormal for him to be in the kitchen alone with S.M., but he said he never was alone in the kitchen with his daughter.
87H.K. testified that he never came home drunk or “wobbled” when he walked. He said he never got drunk on one or two beers. S.M. was always in bed when he got home. He agreed that she might go to bed later than 8:30 – 9:00 p.m. on a holiday. If he did come home and S.M. was awake, she would be with her mother watching T.V..
88H.K. testified that S.M. never asked him to lie in bed with her; she has never told him she was cold.
Legal Principles
Section 715.1 (1) of the Code – Videotaped Statement
89Section 715.1 (1) of the Code is a statutory exception to the hearsay rule. This section permits an out-of-court statement to be admitted at the trial of certain enumerated offences provided the following criteria are met:
The complainant is under 18 years of age;
The video was made within a reasonable time following the alleged offence;
The complainant describes the acts complained of, and while testifying, adopts the contents of the video; and
The admission of the statement would not interfere with the proper administration of justice.
90The purpose of the section is to:
Create a record of what is likely the best recollection of the events; and
To prevent or reduce the likelihood of re-traumatizing young complainants when they testify in court.
91Defence counsel took no issue with the admissibly of the videotape statement pursuant to this section. Her submissions went to the weight to be given to the testimony of S.M. contained in the statement.
92I am satisfied that the statutory criteria set out in s. 715.1 (1) have been met. The video tape of S.M.’s statement to the police is admissible as part of S.M.’s evidence at this trial.
Motive to Lie or Otherwise Fabricate
93There is extensive jurisprudence on the issue of a complainant having a motive to lie, or fabricate, sexual assault allegations. Trial judges frequently get this issue wrong. The Ontario Court of Appeal has opined on this topic many times. The majority of the jurisprudence on this topic is related to situations where there is an absence of evidence of a motive to lie. A trial judge then misuses that absence of evidence one way or another, in the assessment of the credibility of the complainant, and commits a reversible error when doing so.
94The issue in the case before me is not whether or not there was some evidence that could be relied on by the defence to submit that S.M. had a motive to fabricate the allegations against her father. The Crown conceded that the evidence of S.M. that she did not like her father, and that if she made the allegations against her father, she would not have to live with him, could be such evidence. The Crown further submitted there was evidence at the trial which rebutted the inference that the defence asked me to draw from this evidence, namely that S.M. fabricated the allegations.
Evidence of Children
95The Supreme Court of Canada has written decades ago on how trial judges should approach the evidence of children.
96In R. v. B.(G.), 1990 CanLII 7308 (SCC), [1990] 2 S.C.R. 30 at para. 48, Wilson, J. wrote:
Dealing first with Wakeling J.A.'s comments regarding the credibility of child witnesses it seems to me that he was simply suggesting that the judiciary should take a common sense approach when dealing with the testimony of young children and not impose the same exacting standard on them as it does on adults. However, this is not to say that the courts should not carefully assess the credibility of child witnesses and I do not read his reasons as suggesting that the standard of proof must be lowered when dealing with children as the appellants submit. Rather, he was expressing concern that a flaw, such as a contradiction, in a child's testimony should not be given the same effect as a similar flaw in the testimony of an adult. I think his
concern is well founded and his comments entirely appropriate. While children may not be able to recount precise details and communicate the when and where of an event with exactitude, this does not mean that they have misconceived what happened to them and who did it. In recent years we have adopted a much more benign attitude to children's evidence, lessening the strict standards of oath taking and corroboration, and I believe that this is a desirable development.
The credibility of every witness who testifies before the courts must, of course, be carefully assessed but the standard of the "reasonable adult" is not necessarily appropriate in assessing the credibility of young children.
97Two years later in R. v. W. (R.), 1992 CanLII 56 (SCC), [1992] 2 S.C.R. 122, McLachlin, J. set out how the law affecting the evidence of children has changed. One was the removal from those sections of the Code, and the Canada Evidence Act, that a child’s evidence must be independently corroborated by other evidence before the court can rely on such evidence to find an accused guilty of sexual assault of that child.
98McLauchin, J. went on to write in paras. 24-26:
The second change in the attitude of the law toward the evidence of children in recent years is a new appreciation that it may be wrong to apply adult tests for credibility to the evidence of children. One finds emerging a new sensitivity to the peculiar perspectives of children. 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.
As Wilson J. emphasized in B. (G.), these changes in the way the courts look at the evidence of children do not mean that the evidence of children should not be subject to the same standard of proof as the evidence of adult witnesses in criminal cases. Protecting the liberty of the accused and guarding against the injustice of the conviction of an innocent person require a solid foundation for a verdict of guilt, whether the complainant be an adult or a child. What the changes do mean is that we approach the evidence of children not from the perspective of rigid stereotypes, but on what Wilson J. called a "common sense" basis, taking into account the strengths and weaknesses which characterize the evidence offered in the particular case.
It is neither desirable nor possible to state hard and fast rules as to when a witness's evidence should be assessed by reference to "adult" or "child" standards -- to do so would be to create anew stereotypes potentially as rigid and unjust as those which the recent developments in the law's approach to children's evidence have been designed to dispel. Every person giving testimony in court, of whatever age, is an individual, whose credibility and evidence must be assessed by reference to criteria appropriate to her mental development, understanding and ability to communicate. But I would add this. In general, where an adult is testifying as to events which occurred when she was a child, her credibility should be assessed according to criteria applicable to her as an adult witness. Yet with regard to her evidence pertaining to events which occurred in childhood, the presence of inconsistencies, particularly as to peripheral matters such as time and location, should be considered in the context of the age of the witness at the time of the events to which she is testifying.
99The consideration of the evidence of a child witness, as both Justices made clear in their decisions, must never weaken the burden on the Crown to prove the guilt of an accused beyond a reasonable doubt.
Delayed Disclosure/Incremental Disclosure
100The relevance of the impact of delay in disclosure of sexual abuse, which also includes the issue of incremental disclosure of sexual abuse allegations, has, since at least the year 2000, been held not to need an expert to explain to a trier of fact. The majority in the often quoted Supreme Court of Canada decision of R. v. D.(D.), 2000 SCC 43, [2000] 2 S.C.R. 275, at para. 65, wrote:
65 A trial judge should recognize and so instruct a jury that there is no inviolable rule how people who are the victims of trauma like a sexual assault will behave. Some will make an immediate complaint, some will delay in disclosing the abuse, while some will never disclose the abuse. Reasons for delay are many and at least include embarrassment, fear, guilt, or a lack of understanding and knowledge. In assessing the credibility of a complainant, the timing of the complaint is simply one circumstance to consider in the factual mosaic of a particular case. A delay in disclosure, standing alone, will never give rise to an adverse inference against the credibility of the complainant.
101This statement on the relevance of delayed disclosure of sexual assault allegations, has been found to apply to piecemeal or incremental disclosure, depending on the circumstances of a particular case.
102In R. v. D.P., 2017, ONCA 263 at para 31, the court wrote:
31We see no error in the trial judge’s assessment of the impact of J.E.’s delayed and bifurcated disclosure on his credibility. Nor do we accept the argument that there is a fundamental difference between delayed disclosure and piecemeal disclosure of prior sexual abuse. The comments in R. v. D.D. are potentially applicable to both, depending of course on the circumstances revealed by the evidence in any particular case.
103The issue of disclosure, how it was made, when, and the content of disclosure is but one factor I must consider in the assessment of the complainant’s credibility. What I cannot do is draw an adverse inference against the credibility of the complainant based on a delay in disclosure or based on incremental disclosure, standing alone.
The Presumption of Innocence and Burden of Proof
104The presumption of innocence is the cornerstone of our criminal justice system. In the other corner is the principle that the onus is on the Crown to prove the charges beyond a reasonable doubt.
105As trial judges tell juries, a reasonable doubt is not an imaginary, far-fetched or frivolous doubt, or one based on sympathy, fear, or prejudice against, anyone in the trial. It is a doubt based on reason and common sense. It is a doubt that logically arises from the evidence or the absence of evidence. Likely or probable guilt is not enough.
106As trial judges also tell juries, it is nearly impossible to prove something to an absolute certainty, a standard of proof that is impossibly high. If, after considering all of the evidence, I am sure that H.K. committed an offence, then I am satisfied of his guilt beyond a reasonable doubt. If after considering all of the evidence or the absence of evidence, I am not sure that H.K. committed an offence, then I must find him not guilty, as I would not be satisfied of his guilt beyond a reasonable doubt.
107The case of R. v. W. (D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742, applies to the credibility assessment of witnesses, in particular, as here where H.K. testified.
108In determining whether the Crown has proven beyond a reasonable doubt that H.K. committed the offences he is charged with, I must apply the principles in W. (D.). If I believe H.K. that he did not perform any sexual misconduct on S.M., then I must find him not guilty. Even if I do not believe his evidence about the sexual misconduct, but his evidence leaves me in a state of reasonable doubt as to his guilt, then I must find him not guilty. Even if H.K.’s evidence does not leave me with a reasonable doubt regarding his guilt, I may only find him guilty of the offences charged if, based on the evidence that I do accept, I am satisfied beyond a reasonable doubt that he committed the offences.
109There is a further line of cases which deal with the rejection of an accused outright denial of any wrongdoing.
110In R. v. D. (J.J.R.), (2006), 2006 CanLII 40088 (ON CA), 215 C.C.C. (3d) 252 (Ont. C.A), at para. 53, Doherty J.A. wrote:
53 The trial judge's analysis of the evidence demonstrates the route he took to his verdict and permits effective appellate review. The trial judge rejected totally the appellant's denial because stacked beside A.D.'s evidence and the evidence concerning the diary, the appellant's evidence, despite the absence of any obvious flaws in it, did not leave the trial judge with a reasonable doubt. An outright rejection of an accused's evidence based on a considered and reasoned acceptance beyond a reasonable doubt of the truth of conflicting credible evidence is as much an explanation for the rejection of an accused's evidence as is a rejection based on a problem identified with the way the accused testified or the substance of the accused's evidence.
111This principle of a “considered and reasoned acceptance beyond a reasonable doubt of the truth of conflicting credible evidence is as much an explanation for the rejection of accused’s evidence…”, has been followed in several subsequent trial decisions. Application of this principle has also been the subject of appellate review on several occasions.
112A subsequent consideration of this principle was undertaken by Laskin, J.A. in R. v. R.D., 2016 ONCA 574, at paras. 18 and 20:
18 The sufficiency point: the bare rejection of an accused's evidence will meet the two important purposes for giving sufficient reasons — explaining why the accused was convicted, and permitting effective appellate review — provided that the bare rejection is based on a "considered and reasoned acceptance" of a complainant's evidence. Implicitly, the bare acceptance of a complainant's evidence and the bare denial of an accused's evidence ("I accept the complainant's evidence; therefore I reject the accused's evidence") are unlikely to amount to sufficient reasons. A trial judge who relies on the formulation in D. (J.J.R.) should at least give grounds for accepting a complainant's evidence.
20 The burden of proof point: a trial judge who says only "I reject the accused's evidence because I accept the complainant's evidence" risks being held by an appellate court to have chosen which of the two parties to believe and failed to determine whether, on all the evidence, the accused's guilt had been proved beyond a reasonable doubt. That risk is what Cronk J.A. cautioned about in M. (O.) But, as M. (O.) also shows, a trial judge can still reject an accused's evidence because either the complainant's evidence or other evidence establishes the accused's guilt beyond a reasonable doubt. Thus, D. (J.J.R.) and M. (O.) are entirely consistent. [Citations omitted].
113In the very recent decision of R. v. Vigon-Campuzano, 2022 ONCA 234, this principle in J.J.R.D. was again addressed. At para. 38 the court wrote:
38J.J.R.D. deals with challenges to the sufficiency of reasons for conviction and an argument on appeal that the trial judge did not explain why he rejected the evidence of an accused. Despite the trial judge’s reference to J.J.R.D. it is apparent from his reasons that he did not apply that authority in such a fashion as to dilute the burden of proof. He rejected the appellant’s evidence because of the formidable evidence “stacked beside” it in this case, especially the reliable accounts of the incidents by credible complainants. The trial judge’s rejection of the appellant’s evidence was based on a considered and reasoned acceptance beyond a reasonable doubt of the truth of the complainants’ evidence, enhanced with the similar fact circumstantial inference. His reasons were sufficient...
114I must set out why I have rejected H.K.’s denials, even when relying on the ratio of J.R.R.D. and the cases that follow it.
115I must explain why the considered and reasoned acceptance of the testimony of S.M. leads to the rejection of H.K.’s denials.
Reliability and Credibility of Witnesses
116There is probably no criminal trial which requires the assessment of the credibility and reliability of witnesses’ testimony more than in a sexual assault case. It is incorrect to simply label such cases as a “he said/she said”, situation. Of course the analysis undertaken by the trial judge is not a credibility contest between the two main witnesses, that is, the complainant and the accused. The outcome of this case does not depend on my decision as to who is more likely to be telling the truth. This case, like all criminal trials, depends on whether, after considering all of the evidence at the trial, the Crown has proven the guilt of H.K. beyond a reasonable doubt based on the whole of the evidence.
117That must involve an assessment of the credibility and reliability of the witnesses who testified at this trial. What does that mean?
118The distinction between “credibility” and “reliability” has been discussed in evidence texts and jurisprudence for decades. The following definition of those two determinations was set out clearly by Blair, J.A. in R. v. Sanichar, 2012 ONCA 117:
36 Here, a regular theme in the trial judge's acceptance of the complainant's testimony was that she was "sincere," she was "honest," she was "doing her best to be truthful." But he does not appear to have focussed on whether her testimony was reliable or accurate. David M. Paciocco and Lee Stuesser describe the distinction between "credibility" and "reliability" in this context as follows in their text, The Law of Evidence, rev. 5th ed. (Toronto: Irwin Law, 2010), at p. 29:
"Credibility" is often used to describe the honesty of a witness. "Reliability" is frequently used to describe the other factors that can influence the accuracy of testimony, such as the ability of the witness to make the relevant observation, to recall what was observed, and to communicate those observations accurately.
119The court in Sanichar, stressed that it was crucial for a trial judge to assess both these attributes of a witness’ testimony. As we tell juries, an otherwise credible witness may give unreliable testimony for one reason or another. Of course, the application of those definitions to the testimony I heard at trial is at the heart of assessing whether I can rely on that testimony.
120Appeal courts have provided guidance on what can and cannot enhance a witness’ credibility and/or reliability. I will set out a few examples here.
121On the issue of lack of embellishment, when a complainant testifies, the court in R. v. Kiss, 2018 ONCA 184, wrote:
52 The trial judge would have erred if he treated the absence of embellishment as adding to the credibility of K.S.'s testimony. It is wrong to reason that because an allegation could have been worse, it is more likely to be true. While identified exaggeration or embellishment is evidence of incredibility, the apparent absence of exaggeration or embellishment is not proof of credibility. This is because both truthful and dishonest accounts can appear to be without exaggeration or embellishment.
53 On the other hand, in my view, there is nothing wrong with a trial judge noting that things that might have diminished credibility are absent. As long as it is not being used as a makeweight in favour of credibility, it is no more inappropriate to note that a witness has not embellished their evidence than it is to observe that there have been no material inconsistencies in a witness' evidence, or that the evidence stood up to cross-examination. These are not factors that show credibility. They are, however, explanations for why a witness has not been found to be incredible. [Citations omitted].
122Importantly, trial judges must not ignore “troubling aspects” of a witness’ evidence; they must address them and make a finding about that evidence (see R. v. R. (D.), 1996 CanLII 207 (SCC), [1996] 2 S.C.R. 291).
123A trial judge must consider the following, among other questions when assessing a witnesses’ testimony.
- Consistency of the witnesses’ evidence:
Internally;
Between examination-in-chief and cross-examination;
With other witnesses/documentary or physical evidence;
Is there a prior inconsistent statement;
Is there an explanation for any inconsistency?
Is the witnesses’ evidence inherently plausible?
Did the witness answer the questions asked or was the witness evasive, unresponsive, or argumentative?
124Lastly, on this issue, the Court of Appeal for Ontario brings home the fatal error in reasoning a trial judge makes when that judge bases findings of credibility on assumptions that are unsupported by the evidence. The court in R. v. Cepic, 2019 ONCA 541, set out the difference between that chain of reasoning and when a trial judge draws conclusions based on the evidence.
125In Cepic, at paras. 22 and 23, Benotto, J.A. sets out this difference as follows:
22Likewise, in G.H., the trial judge considered evidence from the appellant about how he and the complainant behaved and measured that evidence against common sense and human behaviour. The trial judge did not reach outside the evidence to make credibility findings based on generalizations about the sexual behaviour of men and women. Finally, in F.B.P., the trial judge’s inference that it would be implausible for the complainant to have had sex with the appellant on a public balcony was not central to the rejection of the appellant’s evidence but in any event was based on the evidence.
23Here, the trial judge’s repeated use of words like “implausible” and “nonsensical” to characterize various aspects of the appellant’s testimony is untethered to an evidentiary base. It reflects a conclusion based almost entirely on an assumption about what a young woman would do in this context. And the context was significant: a women’s only party in a highly sexualized environment involving alcohol and male dancers. [Citations omitted].
126Impermissible stereotyping about how witnesses should behave, or give evidence, with no evidentiary foundation, is always a problem. Making findings of credibility and reliability on such stereotypes in most cases is a reversible error.
Position of the Parties
Crown
127The Crown relied on the following evidence of H.K. to support his position that H.K. was not believable, and that his testimony should not leave me with a reasonable doubt about his guilt.
128The Crown submitted that H.K. not only denied the allegations, but he also gave evidence that it was not possible that any of the alleged incidents could have occurred.
129The Crown set out the following examples of what it submitted were “absolutist” and contradictory statements that H.K. made during his cross-examination.
i. He initially testified that he was never alone with the complainant, though he eventually contradicted himself by admitting he would sometimes take her to school;
ii. He said that the complainant never helped do the dishes or prepare food. When asked if it was possible she did these things while he was at work, he said that it was his opinion that she would not have done them;
iii. He initially testified that he was never alone in the kitchen with the complainant despite the two living together, though he eventually admitted that it would happen on occasion;
iv. He initially testified that the complainant was never awake when he returned home from drinking, though he eventually admitted that on religious holidays, she would sometimes be awake with her mother;
v. He testified that the maximum amount of alcohol he drinks is two beers and that he has never been drunk;
vi. He testified that S.M. never complained of being cold. When the Crown sought to clarify what he meant by this statement, he immediately referenced the heater and blanket in the complainant’s bedroom; and
vii. He testified that S.M. has never been sick since she immigrated to Canada in 2017.
130The position of the Crown was that I should believe the testimony of S.M.
131The Crown submitted that Sergeant Clarke had to use leading questions on occasion, to get the story from S.M. The evidence of all of the witnesses, including H.K. was that S.M. was very shy. The Crown submitted that she was also not eager to tell the details of what she said happened to her.
132The Crown submitted that the leading questions employed by Sergeant Clarke had little to no affect on the quality of S.M.’s testimony as to what she said her father did to her.
133The Crown relied on the jurisprudence with respect to the testimony of children and submitted that I cannot apply the same standard that is used when an adult testifies in court.
134The Crown submitted that I should consider that S.M. was ten when she gave her video, and eight to ten when the events occurred.
135The Crown agreed that there were inconsistencies in S.M.’s testimony as to the number of times her father touched her inappropriately in the kitchen. The Crown submitted that it is understandable that a child of 10 could not remember the exact number of times she was touched inappropriately by her father.
136The thrust of S.M.’s testimony was that she was touched in this way, by her father, multiple times in the kitchen.
137The Crown conceded that there was evidence the defence could rely on to ask the court to find that S.M. had a motive to lie about the allegations. The Crown agreed that S.M. said she did not like her father and her preference was not to live with him.
138The Crown submitted that the submission as to S.M. having a motive to lie is largely a distraction. The Crown submitted that there was no evidence that S.M. was motivated to make up the allegations because of her dislike of her father.
139The Crown submitted there was some evidence which rebutted the suggestion that S.M.’s allegations were as a result of her feelings toward her father. She did say in her videotaped statement and at the trial that she was concerned about the impact her coming forward would have on her family. In her police statement when she was asked why she had not told anyone about what happened before today, she said that if she told her mother she was worried she would react. She also said she did not have the courage.
140With respect to the issue of delay and incremental disclosure, the Crown set out that there were several factors that made it understandable why S.M. delayed telling anyone what she says happened, and then why she added to her disclosure over time. S.M. was very young, eight to ten years old, she was concerned about the impact of her disclosure on her family, and the allegations were about her father, who was in a position of trust and authority.
141The allegation of inappropriate touching which occurred when she was eight, happened approximately a year before she went to the police. It is entirely possible that she forgot details when she first went to the police and remembered details later.
142The Crown submitted that I should draw no adverse inference as to the credibility or reliability of S.M. as a witness because of the breaks she asked for while testifying. The Crown submitted that S.M. is a vulnerable, young child, and the subject matter was difficult.
143The Crown submitted that I should have no concerns with respect to the manner in which Sergeant Clarke questioned S.M., nor to the presence of Ms. Lyons in the interview room. Neither of these circumstances impacted adversely on the reliability of the evidence in the statement as to what S.M. said her father did to her.
Defence
144Defence counsel submitted that H.K. was candid about his marital challenges and that he frequently argued with his wife; he agreed that the arguments sometimes occurred in front of S.M., and that S.M. could overhear the arguments in the house.
145Defence counsel submitted that H.K. denied any inappropriate touching of S.M. He specifically denied the allegations of sexual misconduct S.M. described to the police and in court.
146The defence position was that there is no reason for me to reject H.K.’s evidence wherein he adamantly denied the allegations. His denial was unwavering during cross-examination.
147The defence position was that I should accept H.K.’s denials, or his denials of misconduct should raise a reasonable doubt of his guilt. Therefore, the defence submitted that I should find H.K. not guilty of the two counts in the indictment.
148The position of the defence was that S.M. had a proven motive to lie, because of her animus toward her father. The position of the defence was that S.M. made up what she said her father did to her.
149The defence relied on S.M.’s testimony that she did not like her father and did not do fun things with him. She was also angry and saddened by her father’s behaviour toward her mother.
150S.M. said that she did not want to live with her father. The defence submitted this evidence provided the motive for her to fabricate the allegations; she would not have to live with her father anymore.
151The defence further submitted that S.M.’s evidence was untruthful and unreliable. The defence gave the example of the kitchen incidents to support this submission.
152S.M. alleged that H.K. “always” rubbed his penis over her buttocks while she was clothed and while she was washing dishes or making food.
153In cross-examination, S.M. agreed that she did not prepare food or wash dishes. She agreed that her mother did all the cooking and washed the dishes. When defence counsel challenged S.M. on this contradiction, S.M. asked for a break. After the break S.M. said that she took turns with her mother doing these chores.
154Defence counsel submitted that this was an example of S.M. being willing to change her evidence to maintain her allegations.
155Further, S.M. agreed that at the preliminary hearing she said that H.K. did this to her four times, while she was packing lunch and eating breakfast at the table. Defence counsel submitted that this is not incremental disclosure; it is an inconsistent statement.
156Defence submitted that it is troubling that she would “make up” the number of times these events occurred, when she knew it was not true.
157Defence took issue with the leading questions that were put to S.M. at the time of the police interview. The defence submitted that as a result of the leading questions, the reliability and credibility of S.M.’s videotaped statement is affected.
158Defence counsel further made submissions that the additional information that S.M. provided about the alleged offences, in notes, which is set out above, that were made after the original police statement, were not incremental disclosure but were inconsistent statements.
Analysis
159There is but one issue for me to decide. Am I satisfied beyond a reasonable doubt that the sexual misconduct described by S.M. occurred and that H.K. was the perpetrator?
160I will commence the analysis with my assessment of H.K.’s evidence.
161I begin by noting that although H.K.’s trial was conducted entirely by consecutive interpretation into his language, Tigrinya, there were no issues taken by defence, with respect to the interpretation services that were provided. There were no problems raised during the trial or relied on during submissions.
162A separate written ruling, finding both interpreters qualified and competent to deliver interpretation services for this trial, is released with this judgment.
163Further, H.K. appeared throughout the trial to be fully engaged with the proceedings. He did not demonstrate any difficulties understanding the trial testimony or process, either when witnesses testified, or when he testified himself. Indeed, H.K. asked several times for questions to be repeated or rephrased if he did not understand what the Crown had asked him.
164As set out in detail above defence counsel submitted that, applying the principles from W. (D.), I should believe H.K., or his evidence should leave me with a reasonable doubt of his guilt of the offences.
165The Crown, on the other hand, submitted that H.K. was not a credible witness and I should reject his denials of wrong-doing. Counsel relied on examples from the trial to support his position.
H.K.
166The testimony of H.K. amounted to an outright denial of any wrongdoing.
167The question I must consider is do I believe that denial or does it leave me with a reasonable doubt of his guilt?
168The assessment of H.K.’s testimony relies not on a parsing of a word here or there, or how he answered this question or that. I must fairly evaluate his evidence as a whole, in the context of the rest of the evidence at the trial, not in isolation. Other than the direction given by appeal courts with respect to the consideration of the testimony of children, I must scrutinize H.K.’s evidence in the same manner and with the same insight that I use for the testimony of the other witnesses at the trial, particularly S.M. I must deal with the evidence of H.K. with an open mind.
169As I have said, H.K.’s evidence constituted a straight denial of the conduct in question. In the end, after considering these denials in the context of the whole of the evidence at the trial, I do not believe H.K.’s evidence that he did not commit the offences. Nor does H.K.’s evidence leave me with a reasonable doubt.
170I found H.K.’s testimony to be incredible. H.K. testified in a manner that was intended to put distance between himself and his daughter. He testified that he never had the opportunity to do the things that S.M. said he did.
171For example, H.K. maintained in his cross-examination that he was never alone with S.M. He then admitted that he was alone with her when he took her to school and picked her up. H.K. insisted there were no other times that he was alone with S.M. If they were together at any other time, the rest of the family was there as well.
172Further, H.K. testified that he never came home from drinking with his friends when S.M. was awake; she was always in bed when he came home. He then agreed that on holidays or non-school nights, S.M. might be awake when he came home, but if awake, she was with his wife watching T.V. He said that if she was awake when he came home, she was never alone.
173H.K. testified he has never lay in bed with S.M., even if she was sick. He then said that since she came to Canada when she was six years old, she has never been sick. He also said S.M. has never had trouble sleeping and asked him to lie down with him. He agreed it would not be unusual for a child to ask her father to lie with him, but S.M. has never asked him to do so.
174With respect to the incident in her bedroom, H.K. testified that S.M. has never told him she was cold, despite leaving Eritrea for Canada. Then he added that she has a heater and heavy blankets in her room, which would suggest she might have been cold since coming to Canada.
175As to whether he got into S.M.’s bed, H.K. testified that he never went into her bedroom.
176I find that the testimony of H.K. was unbelievable. The admission of obvious facts is one of the hallmarks of telling the truth. The denial of the obvious, such as never being alone with S.M., never being in her bedroom, or S.M. never being cold in Canada, is an indication that H.K. was more concerned with distancing himself from the suggestion that he had any opportunity to carry out the conduct alleged, than he was of telling the truth. His testimony seems to be contrived to convince me that he was never alone with S.M., and therefore could never have done what S.M. said he did.
177H.K.’s testimony, which as I said, was intended to distance himself from any opportunity to carry out the allegations made by S.M., was at variance with aspects of everyday experience.
178This conclusion is not based on a stereotype “untethered” to the evidence. His testimony made no sense, based on H.K.’s own testimony. H.K. acknowledged that there was nothing unusual for a parent to be alone with his child in their bedroom, or in the kitchen. His testimony remained, it never happened. That testimony made no sense and demonstrated H.K. had an agenda when he testified before me.
179I find H.K. was not a credible witness. I reject his evidence of having committed no wrongdoing. I do not believe H.K., nor does his evidence leave me with a reasonable doubt of his guilt.
180The rejection of H.K.’s testimony is not enough. I must go on to consider all of the evidence at the trial and decide if I am satisfied beyond a reasonable doubt of the guilt of H.K..
Crown
181The Crown called Sergeant Clarke and Diane Lyons to tell me about the circumstances under which S.M. made her disclosure to her teacher and then gave her statement to the police.
182Their evidence did not assist in the proof of the substantive charges. The defence comments on Sergeant Clarke’s style of questioning with some leading questions, and the presence of Ms. Lyons in the interview room for part of Sergeant Clarke’s interview with S.M. will be discussed below.
S.M.
183The misconduct that S.M. alleged her father committed was described as three specific occasions, and which is summarized as follows:
(i) Kitchen
184S.M. described incidents when her father would come up behind her and rub his penis against her buttocks. This would be done over her clothes; she did not describe any physical pain when these incidents happened.
(ii) Grade Three Incident
185S.M. described an occasion when she says her father came home drunk. He touched her in the hallway. He touched her vagina over top and underneath her clothing. S.M. testified that her father hugged and kissed her. She said this incident caused her pain.
(iii) In Her Bed
186S.M. described an occasion in February, 2020, a month before she gave her police statement, when her father got into bed with her even though she told him not to. She said she felt his penis on her bare buttocks. S.M. said what her father did caused her pain that was a 10 out of 10. After he stopped she found a wet spot on her clothing and her bed.
187I found S.M. to be a compelling witness. Despite her incredible shyness, I find that she testified in a straightforward manner and did not embellish or exaggerate the misconduct she said her father did to her. I do not use that fact to enhance the credibility of S.M., but as an example of a factor which did not diminish her credibility.
188S.M. described clearly when something her father did hurt her physically, and when it did not. She said when he only touched her over her clothes, and when he touched her under her clothes.
189S.M. said when she was not sure, or did not know something when pressed, such as what her or her father’s privates were called.
190Defence counsel took issue with several parts of S.M.’s testimony. I will address a couple of them here.
191With respect to the incidents in the kitchen, defence counsel submits that the credibility of S.M. was seriously undermined because she changed her testimony as to the number of times her father touched her buttocks over her clothes with his penis. She was also inconsistent with respect to what she was doing in the kitchen at the time he did this misconduct.
192With respect to the incident of her father rubbing her vagina the night he came home drunk, she told the police, and said at the preliminary hearing, that this misconduct happened after she went straight to her bedroom. At the trial she said it happened in the hallway between the bedrooms.
193With respect to the misconduct in the bedroom, when she was eight years old, she did not mention that her father kissed her. She wrote that happened, onto a note, when she reviewed her videotaped statement. She also could not remember if the misconduct happened on a Friday or Saturday night. Lastly, she forgot when she spoke to the police that her father told her twice (that night and the next day) not to tell anyone what he had done. She also remembered more conversation with her father when she wrote the note than when she talked to the police.
194With respect to the above evidence, I disagree with the defence that such evidence undermines the credibility of S.M. These differences as to place, and the number of times, and what she was doing at the time, I find are collateral details that a young child might forget or be confused about.
195Defence counsel was able to demonstrate that S.M. was inconsistent with respect to some of these details, but on the allegation as to what she said her father did to her, she never wavered. This misconduct is not something an eight or ten year old should know anything about, but she did. S.M. did not even know what a penis and vagina were called, when she first spoke to the police.
196S.M. was not challenged on the specific allegations; she remained steadfast in her description of what she said her father did to her even if she got some of the surrounding details wrong.
197I have considered the alleged inconsistencies put forward by the defence, and they do not affect my overall assessment of the credibility and reliability of S.M. as to what she says her father did to her.
198As to the incremental disclosure issue, it would be wrong for me to accept the submission of defence that if S.M. was telling the truth, she would have said it all at the time she spoke to the police. That is not the law.
199There may be many reasons why S.M. did not remember all the details that she wrote on notes the week before trial, and even when she watched the videotape at the trial. What she remembered did not change at all the main allegations of misconduct she told the police about on March 6, 2020. They were details that added to, but did not distract from, her original allegations.
200I have considered the additional allegations that S.M. set out in her notes and asked myself if they distract from the credibility of her testimony as to the misconduct she says her father did to her? This additional detail does not.
201With respect to the evidence that could demonstrate S.M. had a motive to fabricate the allegations, I have considered that evidence, along with the rest of the evidence, and it does not lead me to conclude that S.M. fabricated the allegations against her father.
202There was other evidence that S.M. had “had enough” after the incident in February, 2020, and that is why she went to the police. She said she thought when she came to Canada, her life would be normal, “like other dad’s”. She thought coming forward would “ruin her family”.
203There was no direct evidence that S.M. fabricated the allegations to get her father out of the house because she did not like him. It is just as possible to draw the inference from this evidence that she wanted her father out of the house so he would stop touching her inappropriately. I do not accept that S.M. fabricated the allegations to get her father out of the house.
204Even though I find S.M. to be credible and compelling, I must also scrutinize her evidence to ensure it is reliable before I act on it.
205There were details in the testimony of S.M. which I found enhanced the reliability of her evidence. There were details in the misconduct which she said happened to her that assisted with my reliability on her testimony. A few examples are as follows:
i. S.M. remembered her pyjama pants were down by her knees in her bedroom. Although she knew nothing about her or her father’s private parts, that fact would be necessary if her father touched her bare buttocks with his penis.
ii. S.M. remembered that her pyjama pants and her bed were wet after her father rubbed his penis on her bare buttocks. That is a very powerful memory of a specific detail, even though S.M. had no idea where the wetness came from. She was very clear that her pants and bed were not wet before her father did what he did to her.
iii. She remembered her father saying at least once, that he was “sorry”. She remembered saying to him words to the effect of, “if you know its wrong, why do you do it?” That is also a very specific memory, and makes sense as something she would say to her father for touching her inappropriately. She knew that such touching was “wrong” or “bad”.
206I do not consider anything S.M. said to the police or Ms. Lyons in the note or verbally as any corroboration of the allegations. I have disregarded this evidence for any such purpose, in arriving at my decision.
207I do not consider any of the evidence of Ms. Lyons, about her description of S.M.’s demeanour the week following the disclosure to be of any assistance in establishing the guilt of H.K. I have disregarded this evidence in arriving at my decision. I watched the videotaped statement. I have considered the limited involvement Ms. Lyons had with S.M. during the interview. Nothing she said or did distracts from the very compelling evidence set out in the interview of what S.M. said her father did to her.
208S.M. said that she did not remember some of the details at the time of her police interview that she remembered later. In that further disclosure, she did not change the substance of what she said her father did to her; she added some details to her earlier disclosure. That additional evidence makes sense and does not undermine my trust in her evidence as to what she said her father did to her.
209S.M. described herself as being uncomfortable, and that the situation was “awkward”. S.M. was painfully shy and was clearly uncomfortable talking about the events. Some of the lack of detail can no doubt be attributed to her shyness, her young age, and the vulnerability of speaking about her father’s misconduct. The law is well established that because a child cannot recount precise details and communicate the when and where of an event with exactitude, does not mean that they have misconceived what happened to them and who did it.
210I have considered the defence submission with respect to the impact of Sergeant Clarke’s leading questions during the interview and how that undermined the reliability of her testimony in the videotaped statement.
211I disagree. The leading questions were used to get S.M. to open up; then S.M. told her story in her own words, not those of Sergeant Clarke. Upon a review of the statement and the evidence of S.M. in that statement, I am satisfied as to the reliability of her evidence in that statement, and that any leading questions did not undermine that finding.
212I find S.M. for the above reasons to be a credible and compelling witness. I further found her evidence reliable and I am able to act upon it.
Final Decision
213I find, for the reasons set out above, that there were significant problems with H.K.'s testimony, which lead me to disbelieve his denial of wrong-doing. Further, his testimony did not leave me with a reasonable doubt of his guilt.
214Further, in my assessment of the credibility and reliability of the main Crown witness, S.M., when considered in the context of the rest of the evidence at this trial, I am satisfied that the Crown has proven the guilt of H.K. beyond a reasonable doubt.
215This is one of those cases discussed by Doherty J.A. in J.J.R.D., where the denial of wrongdoing by an accused can be rejected based on a considered and reasoned acceptance beyond a reasonable doubt, of a complainant's evidence.
216I have set out above why I found S.M.'s evidence to be credible and compelling, as well as reliable. I have addressed the only real challenges there were to her evidence by the defence. None of those challenges shake my confidence in this very compelling witness.
217There were no submissions by defence counsel that H.K. touched S.M. as described, but not for a sexual purpose. The defence was solely directed at the issue that H.K. did not do the alleged acts.
218The facts, as found by the court, satisfy the required legal elements of both offences beyond a reasonable doubt.
219On all of the evidence I am satisfied of the guilt of H.K. beyond a reasonable doubt of the two counts in the indictment.
Justice Mossip
Released: May 27, 2022
COURT FILE NO.: CR-21-00000655-0000
DATE: 2022 05 27
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
H.K.
JUDGMENT
A Permanent Restriction preventing the identification of a complainant under s. 486.4 (1) of the Criminal Code.
By court order made under subsection 486.4(1) of the Criminal Code, information that may identify the person described in this decision as the complainant may not be published, broadcasted, or transmitted in any manner.
Justice Mossip
Released: May 27, 2022