SUPERIOR COURT OF JUSTICE
BARRIE COURT FILE NO.: CR-20-17
ONTARIO
BETWEEN:
HER MAJESTY THE QUEEN
– and –
A.H.
Defendant
K. Spensieri and M. Villamil-Pallister, for the Crown
W. Caven, for the Defendant
HEARD: March 7-11 and April 26 - 27, 2022
RESTRICTION ON PUBLICATION
Pursuant to s. 486.4(1) of the Criminal Code, information that may identify the person described in this judgment as the complainant may not be published, broadcast or transmitted in any manner. This judgment complies with this restriction so that it can be published.
REASONS FOR DECISION
1A.H. is charged with 9 counts of sexual assault related charges.
2Three counts relate to his niece, D.D.: sexual assault (s. 271), sexual interference (s. 151), and invitation to sexual touching (s. 152). These charges relate to three separate incidents alleged to have occurred between April 1, 2016 and September 30, 2016.
3The remaining 6 counts relate to two other complainants: T.B. and S.M. The same sections of the Criminal Code are alleged with respect to each of these complainants. These charges relate to a single incident that was alleged to have occurred between June 1, 2017 and September 30, 2017.
Facts
4The first witness to testify was D.D.
5D.D. testified that in 2016 she was approximately 9 years old. She lived in a house with her mother and brother. She testified about three separate incidents.
The Play-Doh Incident
6One day in 2016 D.D.’s grandmother, grandfather, and Uncle Tony (Mr. A.H.), came to visit her family. She was in the living room sitting on the couch with her brother watching T.V. Her mother, grandmother and grandfather were in the back room of the house.
7D.D. got up and started to play with some Play-Doh that was on a small table in the living room, adjacent to the kitchen. She recalled that Tony came up to her and asked her if she wanted to play a game with the Play-Doh, where they would each guess what the other had made. She agreed to play.
8The two of them went into the kitchen to play the game. The kitchen is separated from the living room by a half-wall, and separated from the back room by a door.
9Tony explained to her that they would each make a sculpture out of Play-Doh, and they would guess what the other had made. They each had some Play-Doh. She thought that they each had a little more Play-Doh than the size of her fist. D.D. sat on a chair in front of the refrigerator facing the door to the back room, which she thought was closed.
10D.D. stated that Tony gave her a sculpture “and the rest of that part is really blurry”. She then remembered that she went back to sit with her brother in the family room.
11D.D. explained that when Tony gave her the sculpture she was blindfolded, so she didn’t see anything. She thought that she was blindfolded with a bandana that she thought belonged to Tony. Tony put the blindfold on her while she was sitting at the chair.
12She remembered that Tony guided her hand toward the sculpture by holding her elbow. She thought that Tony was standing at the time. After putting on the blindfold but prior to his guiding her hand to the sculpture she heard a zipper sound that was “pretty close”. She thought that Tony was about two feet in front of her.
13D.D. could not remember what Tony was wearing at the time, but when taken to her statement to the police dated March 28, 2019, she recalled that he was wearing jeans and a brown t-shirt.
14D.D. recalled that Tony guided her hand to “a smooth surface”. She stated that her fingers touched the smooth surface. She thought that it was a long cylinder, not that big. She did not know what she was touching, but did not think that it was Play-Doh because it was smoother than Play-Doh. She also thought that it was warmer than Play-Doh. D.D. also stated that “it was pretty hard”, and harder than Play-Doh. She stated that she grabbed it like “how you would a piece of wood” and it touched her fingertips and the palm of her hand. She thought that it was longer than her hand.
15She testified that when she played with the Play-Doh “it was harder at first, and then when you knead it, it gets softer”.
16D.D. thought about what the object might be. She thought that it was harder than the Play-Doh that she was playing with, and that it got harder as she was touching it. On re-examination she explained that this meant that it was softer when she played with the Play-Doh because she was kneading it but felt harder when Tony put it in her hand. She touched the object for “not even ten seconds” and was trying to decide whether the sculpture “was good to touch” and what it might be. There was no conversation between her and Tony.
17She testified that she was feeling awkward and nervous because it was silent. When asked by the Crown what she thought she was touching, she answered: “I don’t remember”.
18The Crown took her to her March 2019 statement to the police to refresh her memory. After reading her statement, D.D. remembered that she thought she was touching a penis because it was “smooth and hard and warm”.
19She let go of the object, stood up and took off her blindfold. She immediately went back into the living room with her brother. She did not say anything to Tony, and never made a guess as to what the object was. When she took off the blindfold Tony was standing directly in front of her approximately 3 feet away.
20She made no observations about Tony’s clothing when she took off her blindfold.
21While she initially testified that her mother was in the back room with her grandmother and grandfather, D.D. later stated that she did not think that her mother was in the house while the Play-Doh game was being played.
22D.D. did not tell anyone about what happened that day. When asked by the Crown why not, she answered: “I didn’t know what happened.”
The First Swim Trunks Incident
23The second incident took place at her grandfather’s house in the summer of 2016.
24D.D. went to her grandfather’s house with her mother and brother to go swimming at her grandfather’s pool. Her Uncle Tony was living at the grandfather’s house that summer and was frequently there when they visited.
25D.D., her brother and Tony were all swimming. After an hour or two Tony got out of the pool. D.D. got out of the pool about 15 minutes later. D.D.’s brother remained in the pool. D.D. could not remember if her mother and grandfather were at the pool at the time. D.D. was standing by the pool, and Tony asked D.D. to help him untie a knot in the drawstring of his swim trunks.
26D.D. said that she told Tony that she would try. She tried to untie the drawstring around the front of the waistband with her nails, but that didn’t work, so she gave up. The drawstring was tied with a double knot. She was standing by the pool at the time. She tried for about 30 seconds. She did not touch Tony. She could not remember if anything was said, other than “I give up”. She went to find a towel, and nothing else was said. Her mom took them home about 45 minutes later.
27She did not tell anyone about the incident that day.
The Second Swim Trunks Incident
28The third incident also took place at her grandfather’s house in the summer of 2016, about a week or two after the second incident.
29As before, D.D. went to her grandfather’s house with her mother and brother to go swimming at her grandfather’s pool. Tony was also swimming. D.D. got out of the pool, and Tony asked her to follow him into the kitchen. No one else was in the kitchen, but she did not remember where her mother and grandfather were. He asked her to sit on a stool in the kitchen, and asked her to help him untie the drawstring of his swim trunks again.
30She tried to untie the swim trunks for about 30 seconds. Again they were tied with a double knot. When she could not untie the drawstring Tony asked her to use her teeth. She said she would not do that. After 30 seconds she said she could not do it, and went back to the pool. She did not see Tony again.
31She did not tell anyone about the incident that day, and it never happened again.
Reporting the Incidents
32D.D. did not tell anyone about any of these incidents until nearly three years later, when she told her friend, K. about the Play-Doh incident. K. told her to tell her mom, and a couple of months later she did tell her mom. She told her mom because they were going to her grandfather’s house, and her Uncle Tony would be there, and she did not want to see him.
33D.D. gave her statement to the police in March, 2019 when she was 12 years old, approximately 3 years after the incidents.
Cross-Examination
34D.D. agreed that she was not sure how long ago these events happened. She had difficulty remembering a lot of the details of these events and could only remember many of the details because she was taken to her statement to the police in 2019.
35She agreed that she really did not remember where her grandparents and her mother were when she was playing the Play-Doh game with Uncle Tony. She was “kind of guessing” that they were in the back room. Without looking at the transcript she could not remember that a bandana was used as a blindfold, or what Tony was wearing that day.
36She agreed that without looking at the transcript she would not have remembered that she thought that Tony had put his penis in her hand that day.
37She agreed that her Uncle Tony frequently visited her house, and that it was not unusual for him to be there.
38She did not know how old the Play-Doh was, or whether this was the first time she had played with it. She confirmed that she was playing with the Play-Doh before Tony came up to her.
39She agreed that when she was in the kitchen, she was not sure whether Tony was standing or sitting. She did not know where Tony got the blindfold from.
40At the preliminary inquiry in December 2019, D.D. testified that Tony was also wearing a hoodie that day, but she could no longer remember the hoodie when she testified at the trial. She said: “Ever since this happened, my memory is gone, I have not been able to remember stuff since then”. What Tony was wearing is blurry in her memory. D.D. agreed that the hoodie could have been the source of the zipper sound.
41She did remember that the object that was placed in her hand felt “pretty hard” and felt harder than Play-Doh. When she gave her statement to the police in March 2019, she stated that “I heard a zipper and then I felt something soft” and that it was “kind of squishy”.
42D.D. agreed that she described the object as “pretty hard” in court, and that her memory in 2019 was more accurate.
43D.D. agreed that at no point did she wrap her fingers around the object, but only held it in her palm. She did not know how she knew that it was shaped like a cylinder, and agreed that she was just guessing at the shape. She also agreed that Play-Doh becomes warm when you play with it.
44On re-examination she stated that she touched the object with her palm and her fingertips, and that it was definitely a cylinder.
45She agreed that the object was in her hand for only a few seconds, and that while it was in her hand she did not feel it move or change shape.
46She agreed that she did not hear another zipper sound before she took her blindfold off, and that when she took off her blindfold Tony was facing her. She did not see him adjusting any of his clothing or doing up his zipper.
47D.D. agreed that in her March 2019 statement to the police, she told the police that after she took off her blindfold, Tony showed her the object that he had made out of Play-Doh.
48On re-examination D.D. stated that Tony showed her the object made out of Play-Doh right when she was getting up, and at the time that was what she thought the object was. Now, however, she knows that the object that was put in her hand was not Play-Doh “because it was a different texture”.
49On cross-examination D.D. agreed that if, at the time that this incident occurred, she thought that Tony had put his penis in her hand, she would have told someone, but, at the time, she did not think that it was his penis. It was only after talking to her friend K. a few years later that K. convinced her that Tony put his penis in her hand.
50On re-examination D.D. stated that before she spoke to K. she did not know what the object was, only that it definitely was not Play-Doh.
51She agreed that before this incident occurred, she had never felt a penis and did not know what one felt like.
52With regard to the two incidents where her Uncle Tony asked her to help him untie the knot in his swim trunks, she was not sure which of the two incidents occurred first. She agreed that Tony did not ask her to do anything other than help him undo the knot. She agreed that at no time did Tony touch her, or try to guide her hands, and at no time did she touch anything other than the knot in the swim trunks drawstring.
Other Evidence
53D.D.’s mother and grandmother also gave evidence. Neither had any direct knowledge about the alleged incidents described above, and could not remember when they might have occurred. The grandmother was separated from the grandfather, and would not have been at the pool when the pool incidents were alleged to have occurred.
54Significantly, both the mother and the grandmother had lived in the house where the Play-Doh incident occurred (the house had belonged to the grandmother before it was purchased by the mother). They both stated that the kitchen was separated from the living room by a half-wall, which the mother estimated was 3.5 feet high. They both stated that the kitchen was visible from the living room, and that someone watching T.V. in the living room could see what was happening in the kitchen just by turning his or her head to the side. Someone standing in front of the refrigerator would be visible from the living room.
55The door between the back room and the kitchen was removed at some point, but they could not remember when this occurred.
56Neither could remember a time when the mother, grandmother and grandfather were together in the back room.
The Truth or Dare Incident
57The next witnesses were T.B. and S.M.
58T.B. was 11 years old in 2017, S.M. was 13 years old.
59In 2017 T.B. lived with her mother and father in an apartment that was connected to D.D.’s house. She and D.D. went to the same school, and often played together.
60S.M. is a couple of years older than T.B. and was T.B.’s best friend in the summer of 2017. T.B. and S.M. played together almost every day that summer.
T.B.’s Testimony
61T.B. did not know the accused very well but had sometimes seen him at D.D.’s house or in the backyard when he was visiting. The accused was also friends with T.B.’s parents and would sometimes be at their house.
62One day T.B and S.M. were playing outside of T.B.’s house. The accused came by at around 3:00 p.m. and told them that he had built a Minecraft game with D.D., and he invited them to come over to see it. T.B. believes that her mother was home, and that her father might also have been home. T.B. went inside and asked her mom if she could go, and her mother said yes, as long as D.D. was at home.
63A short time later T.B. and S.M walked over to D.D.’s house. The accused answered the door and let them in through the front door. When they came in they did not see D.D., and asked the accused where she was. T.B. could not remember his response. The accused told them to sit on the couch in the living room. She believes that the accused went to the bathroom on the main floor, and then came into the living room.
64The accused showed them the Minecraft game. T.B. did not remember whether either she or S.M. played the Minecraft game.
65After about 10 minutes they were about to leave, but the accused told them to sit down on the couch and started talking to them. He asked them to play “dirty truth or dare”. T.B. was not sure what that was, but said that she did not want to play, and asked if they could just play regular truth or dare. T.B. believes that the accused responded that dirty truth or dare was more fun.
66She remembers that the accused first asked S.M. to kiss him and then he asked S.M. to unclip her bra and take her bra off.
67Initially T.B. could not remember S.M.’s reaction, or whether S.M. kissed the accused. T.B. was taken to her March 2019 statement to the police. After reviewing that statement T.B. recalled that S.M. kissed the accused on the cheek.
68The accused then asked T.B. to kiss him, and she said no. She thought that he might have asked her twice but was not certain. She could not recall his specific words.
69She could not remember any other dares being made.
70T.B. wanted to leave at that point.
71She believes that the accused went to the bathroom at that point.
72While the accused was in the bathroom, she and S.M. left the house through the back door. As they were leaving the accused called out to them to meet him at the school across the road from the house that night at 8:00 p.m.
73T.B. explained that they left through the back door because the accused had locked the front door and was not letting them leave. Before they left through the back door, they tried to leave through the front door but could not get it unlocked.
74T.B. thought that they had been at the house for less than one hour.
75When they left, they went to T.B.’s house, T.B.’s mom and dad were home, but she did not tell them what had happened because she thought that they would be mad at her.
76A few weeks later, the accused was visiting her parents at her house. When he was leaving, he looked at T.B. and pointed to D.D.’s house, and then nodded his head as if to say “come over”. He did not say anything and left the house. This made T.B. uncomfortable, and she told her mom about what she saw but did not say anything about the truth or dare incident a few weeks earlier.
77T.B. gave her statement to the police on March 29, 2019, approximately 1.5 years after the event. T.B.’s mother contacted the police in response to a police press release relating to the accused. T.B.’s mother did not know about the truth or dare incident until T.B. spoke to the police.
78On cross-examination T.B. acknowledged that she did not know whether anyone else was in the house when she was there.
79She was adamant that when the accused went to the bathroom, she and S.M. tried to leave through the front door, but they could not unlock it. She explained that there was a latch or chain lock on the bottom of the door, and that the accused blocked the door when they came in so that they could not leave.
80She could not remember the exact words that he used when he asked S.M. to kiss him on the cheek and to unclip her bra. S.M. did kiss him on the cheek, but T.B. did not and she never touched the accused and he never touched her. Aside from the kiss on the cheek, the accused never touched S.M. T.B. thought that S.M. was more interested in playing the game than was T.B.
81She recalled that the accused used the bathroom on the main floor a few times. She did not remember whether the bathroom door was open or closed.
82Following this incident, she never discussed it with S.M.
S.M.’s Testimony
83S.M.’s testimony regarding the “truth or dare” incident differed from T.B.’s in several significant respects.
84First, she testified that she and T.B. were inside the house when the accused came to T.B.’s house and knocked on the door. S.M. did not know the accused and had never seen him before. The accused asked T.B.’s mother if T.B. and S.M. wanted to come over to D.D.’s house to play Minecraft. T.B.’s mother told them that they could go if they wanted to, as long as they were home for dinner.
85After about 30 minutes, T.B. and S.M. went next door. They thought that D.D. was at home. They knocked on the door, then ran and hid behind a bush (she called this “nicky nicky nine door”). They did this a second time, but the accused opened the door and invited them into the house to wait for D.D. and play Minecraft. He told them that D.D. would be back soon. They came in, sat on the couch in the living room and started to play Minecraft. S.M. took the controls first, and after about ½ hour T.B. took the controls. The accused stood behind the couch. S.M. remembered all of the details regarding the Minecraft game, what was on the screen and what she was doing in the game. After about ½ hour T.B. took over.
86After some time, the accused said that he was bored, and suggested that they play truth or dare. S.M. did not want to play – she wanted to continue to play Minecraft, but T.B. said she wanted to play and that it was a fun idea, so S.M. went along.
87The accused dared both S.M. and T.B. to kiss him on the cheek at the same time. S.M. felt uncomfortable, and she and T.B. looked at each other. T.B. gave the accused a kiss on the cheek, but S.M. said that she did not want to and did not kiss him.
88S.M. explained that T.B. just put her cheek against the accused’s cheek for a “millisecond” but did not give him a proper kiss.
89S.M. then dared T.B. to do a cartwheel, and T.B. dared S.M. to do a back handspring. The accused sat on the floor.
90The accused then dared them both to go to the bathroom together to do “stuff”, but he did not say what he wanted them to do. S.M. did not understand what he wanted them to do.
91T.B. and S.M. went to the main floor bathroom together and had a conversation about how they could leave as soon as possible without being seen.
92While they were in the bathroom, the accused went upstairs to use the upstairs bathroom.
93They remained in the bathroom for 5 – 15 minutes, and while the accused was upstairs, they grabbed their shoes and ran out of the front door of the house. They did not have time to put their shoes on. S.M. stated that they ran out the front door because the accused had left the front door open. They ran across the road to the side of the school so that the accused could not see them.
94S.M. did not recall the accused saying anything when they left the house.
95S.M. had left her phone at T.B.’s house, so she ran to the house to get her phone, then ran back to the school. After a few minutes they went back to T.B.’s house, but no one was at home, so they walked to the pet shop where T.B.’s mother worked. A few minutes later they returned to T.B.’s house, where they played video games for a couple of hours, until S.M. went home for dinner.
96She and T.B. remained friends for a few more months and frequently joked about what had happened, but never spoke about the details.
97On cross-examination S.M. stated that she had not wanted to go next door, but T.B. pressured her to go, so she went.
98At the preliminary inquiry S.M. testified that when she got to D.D.’s house, D.D.’s mom was in the living room. When she was asked about this at the trial, she stated that D.D.’s mom was in the house “off and on”.
99S.M. had no memory off the accused using the words “dirty truth or dare”, just “truth or dare”. S.M. confirmed that she did not want to play truth or dare, but T.B. persuaded her to. She could not remember the exact words that the accused used when he dared them to kiss him on the cheek. At no point did the accused touch S.M. or she touch him. Apart from T.B. putting her cheek against the accused, there was no physical contact. The accused did not ask S.M. to take off any of her clothing.
100S.M. agreed that her memory of the Minecraft game was very clear and detailed, but her memory of the truth or dare game was very fuzzy.
101S.M. confirmed that they left through the front door - she did not even know there was a back door. They did not have to unlock the front door to leave, and the accused never tried to stop them from leaving the house or ask them to meet him later.
Legal Principles
The Presumption of Innocence
102The accused is presumed to be innocent under our law unless Crown counsel proves his guilt of the offences for which he has been charged beyond a reasonable doubt. It is also important to remember that the accused did not have to present evidence or prove anything in this case. In particular, the accused did not have to prove that he is innocent of the offences charged or that these events never happened.
103Mr. A.H. did not testify. That is his right, and no inference may be drawn from his decision to exercise his right to remain silent.
104Mr. A.H. is not required to prove anything or to provide any explanation for the fact that these allegations were made against him. He is not required to demonstrate that the complainants had a motive to fabricate evidence. Nor does the absence of a motive to fabricate conclusively establish that a witness is telling the truth. “The presence or absence of a motive to fabricate evidence is only one factor to be considered in assessing credibility.” (R. v. Batte (2000), 2000 5751 (ON CA), 49 O.R. (3d) 321 (C.A.), at para. 121). The burden of proof is always on the Crown.
105I must find the accused not guilty if the evidence, taken as a whole, raises a reasonable doubt about his guilt. A reasonable doubt may be doubt based upon the evidence or lack of evidence (R. v. Lifchus, 1997 319 (SCC), [1997] 3 S.C.R. 320, at para. 30).
Assessment of Credibility
106It is important to note that in deciding a case, a judge is not comparing each account and deciding which account he or she believes: see R. v. Esquivel-Benitez, 2020 ONCA 160, 61 C.R. (7th) 326. A judge can believe or disbelieve a witness, but still be left with a reasonable doubt after considering all the evidence. Further, when considering the testimony of a witness, a court can accept all, some, or none of a witness’ testimony. Frailties and inconsistencies in a complainant’s evidence do not necessarily mean that his or her evidence should be rejected: see R. v. J.J.R.D. (2006), 2006 40088 (ON CA), 215 C.C.C. (3d) 252 (Ont. C.A.), at paras. 46-48, leave to appeal to SCC refused, [2007] S.C.C.A. No. 69.
107Contradictions within a witness’ testimony and those demonstrated through consideration of the witness’ prior accounts of events are important considerations. A meaningful tool in assessing the reliability of an individual’s testimony is to review the consistency of that person’s account, either over time or within the context of their evidence in chief and in cross-examination: R. v. A.M., 2014 ONCA 769, at para. 12.
108Inconsistencies vary in their nature and importance. Some are minor, others are not. Some concern material issues, others peripheral subjects. Where an inconsistency involves something material about which an honest witness is unlikely to be mistaken, the inconsistency may demonstrate a carelessness with the truth about which the trier of fact should be concerned: A.M., at para. 13.
109I must also be concerned if a witness embellishes their evidence or appears to fill in details that they do not remember. I recognize that the process of embellishing one’s evidence, or filling in details to compensate for memory lapses, might occur unconsciously. If this happens, an honest and sincere witness might be credible but still unreliable.
110While there is no lower standard of proof for cases involving the testimony of children, “a flaw, such as a contradiction, in a child’s evidence should not be given the same effect as a similar flaw in the testimony of an adult”: R. v. B.(G.), 1990 7308 (SCC), [1990] 2 S.C.R. 30, at pp. 54-55. The evidence of every witness must be assessed taking into account their mental development, understanding and ability to communicate: R. v. A.M., 2014 ONCA 769, at para. 9. “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”: R. v. W. (R.) 1992 56 (SCC), [1992] 2 SCR 122, at para. 25.
111While S.M. was not a child when she testified, she was a child when the alleged incident occurred. In R. v. W. (R.) the Supreme Court stated, at para. 27:
In general, where an adult is testifying as to events that 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 that 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.
112Another consideration in this case is that the incidents are alleged to have occurred in 2016 and 2017, but were not reported until three years and two years later. There is no presumption that victims of sexual abuse will disclose the abuse immediately or that a delay in disclosure necessarily makes it less reliable. (R. v. D.D., 2000 SCC 43, at paras. 59 and 63.) Delayed reporting, by itself, does not lead to an adverse inference against the complainant’s credibility.
Similar Fact Evidence Application
113At the conclusion of the Crown’s case, the Crown brought a cross-count similar fact evidence application, requesting that the evidence applicable to D.D. in counts 1-3 be applied to counts 4-9 (the charges relating to T.B. and S.M.) and vice versa.
114The Crown argued that the facts relating to the Play-Doh and Swim Trunks incidents was sufficiently similar to the Truth or Dare incident that the evidence should be applied across counts for two purposes:
a. Because of the similarities it is more likely that each complainant is telling the truth.
b. Evidence of a situation specific propensity to engage in sexualized behaviour with young girls.
115Similar act evidence is presumptively inadmissible, even across counts: R. v. Atwima, 2022 ONCA 268, at para. 36. The onus rests on the Crown to establish the admissibility of similar act evidence by satisfying the trial judge that its probative value outweighs its potential prejudicial effect in the context of the particular case: see R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908, at para. 55. The ultimate weighing of probative value and prejudicial effect requires an initial calibration of both.
116The Ontario Court of Appeal recently summarized the legal principles applicable to similar act evidence in Atwima, at para. 38:
The probative value of similar act evidence springs from the objective improbability of coincidence: Handy, at paras. 47-48. In contrast, the prejudicial effect of similar act evidence springs from the moral and reasoning prejudice that may result from the admission of the evidence. Moral prejudice is rooted in concerns over whether the trier of fact will decide the case based upon the perceived bad character of the accused. Reasoning prejudice is rooted in concerns over things like the potential injection of delay and complexity into a trial, as well as juror distraction and confusion: see R. v. Shearing, 2002 SCC 58, [2002] 3 S.C.R. 33, at para. 68. See also: Handy, at paras. 31, 36; R. v. Lo, 2020 ONCA 622, 152 O.R. (3d) 609, at paras. 110-11. Of course, many of these concerns for prejudice will be attenuated, like in this case, where the application to admit similar act evidence relates to the cross-count use of evidence already elicited at trial: see R. v. Norris, 2020 ONCA 847, 398 C.C.C. (3d) 1, at para. 24; R. v. J.M., 2010 ONCA 117, 251 C.C.C. (3d) 325, at para. 87. (Emphasis added.)
117The Court of Appeal noted in Atwima, at para. 39, that where the issue upon which the evidence is proffered is identity, the demand for similarity between acts increases, and the bar for similarity in the identity context is often referred to as a “high degree of similarity” or “strikingly similar”. In the present case, identity has been admitted, and the similar act evidence is not being proffered to prove identity.
118In Handy, the Supreme Court of Canada set out the following seven factors to be considered in assessing the cogency of the proffered similar fact evidence, at para. 82: (a) the “proximity in time of the similar acts”; (b) the “extent to which the acts are similar in detail”; (c) the number of occurrences involved; (d) the “circumstances surrounding or relating to the similar acts”; (e) the distinctive features involved in those acts; (f) whether there were any intervening events; and (g) “any other factor which would tend to support or rebut the underlying unity of the similar acts.” (see also Atwima at para. 41).
119The Courts have also held that concerns about prejudice are more attenuated in judge alone trials than in jury trials because “the risk of moral prejudice and reasoning prejudice are significantly diminished.”: R. v. Tsigirlash, 2019 ONCA 650, at para. 38.
120“Nonetheless, even in a judge alone, multi-count indictment case, the test applies and must be met. Even though some of the factors in the test may be attenuated, they are still to be considered”: Tsigirlash at para. 39.
121In the present case, the acts are approximately one year apart. They all involve young girls between the ages of 9 – 13. The Play-Doh incident and the Truth or Dare incident were both alleged to take place at D.D.’s house.
122Other than the age and sex of the complainants, there are no real similarities between the Swim Trunks incidents and the Truth or Dare incident. The nature of the alleged sexual activity and circumstances surrounding the acts were very different.
123There is a superficial and potentially significant similarity between the Play-Doh incident and the Truth or Dare incident: in both incidents the accused is alleged to have asked the complainants to play a game, and the game became the means by which the sexual assault was accomplished.
124When examined more carefully, however, the details and circumstances surrounding each incident are very different, and these significant differences render the cross-count admissibility of these incidents of very little probative value.
125In the Play-Doh incident, the complainant is the accused’s niece who he saw frequently at family gatherings. He was in a position of trust. The game involved a blindfold that was used to conceal the sexual nature of the interaction, and the alleged sexual assault was that he put his penis in her hand. She was not constrained in any way, and took off the blindfold and left the kitchen when she felt uncomfortable. The alleged assault took place with the complainant’s family in close proximity; her brother was in the living room separated from the kitchen by a half-wall and her mother and grandparents were in the back room separated from the kitchen by only a door.
126In the Truth or Dare incident, the complainants had no relationship to the accused. T.B. did not know the accused very well but had sometimes seen him at D.D.’s house or in the backyard when he was visiting, S.M. did not know the accused at all. The game did not involve a blindfold or any trickery to conceal its sexual nature, but a straight-out request for a kiss on the cheek. The nature of the alleged sexual assault was very different, there was no exposure or touching of genitals. T.B. believed that the accused locked them in the house to prevent them from leaving. This incident involved two complainants at the same time rather than just one.
127While the prejudice to the accused in a cross-count judge alone trial is very low, I must conclude that the differences between the similar acts are so many and significant that I find them of very limited probative value. I could not find, for example, that because the accused asked T.B. and S.M. to kiss him on the cheek, that it is more likely that the object he placed into D.D.’s hand when she was blindfolded was his penis. To do so, in my view, would be an error in reasoning prejudice.
Analysis
128The offences of sexual interference and invitation to sexual touching have three essential elements. The Crown must establish each of these essential elements beyond a reasonable doubt in order to secure a conviction against Mr. A.H. In this case the Crown must establish:
(1) That the complainants were under the age of 16 years at the time of the alleged offence.
(2) That Mr. A.H. touched the complainants or invited them to touch him; and,
(3) That the touching was for a sexual purpose.
129The first element is easily established. Each of the complainants were under the age of 16 when the alleged incidents occurred, and the accused has admitted that D.D. was between 9 and 10 years old, T.B. was approximately 11 years old, and S.M. was 13 years old at the relevant time.
130I will consider the second and third elements in the context of each of the alleged incidents.
The Play-Doh Incident
131The issue in the Play-Doh incident is whether the Crown has proven beyond a reasonable doubt that the object placed in D.D.’s hand was the accused’s penis.
132There are multiple inconsistencies and uncertainties in D.D.’s evidence about the alleged Play-Doh incident:
133When D.D. gave her statement to the police in March 2019, she stated that: “I heard a zipper and then I felt something soft” and that it was “kind of squishy”. At the trial she described the object as “pretty hard” and “harder than Play-Doh”. Clearly D.D.’s memory of how the object felt is unreliable.
134D.D. did not know what she was touching when this happened in 2016. She did not think that it was Play-Doh because it was smoother than Play-Doh.
135No Play-Doh experts testified at trial, and I do not think that I am pushing the bounds of judicial notice by recognizing that that Play-Doh is a malleable substance that can be smooth or rough, depending on the surface that it is molded on. If it is molded on a smooth table, Play-Doh will be smooth. There was no evidence that a penis is smoother than Play-Doh. The fact that the object was smooth does not mean that it was not Play-Doh, nor does it mean that it was a penis.
136When D.D. took off the blindfold, Tony was standing directly in front of her approximately 3 feet away. If Tony’s penis was in her hand, this distance would be unlikely. Moreover, D.D. agreed that she did not hear another zipper sound before she took her blindfold off, and that when she took off her blindfold Tony was facing her. She did not see him adjusting any of his clothing or doing up his zipper.
137D.D. touched the object for “not even ten seconds”.
138When asked by the Crown why she did not tell anyone about what happened that day, she answered: “I didn’t know what happened.”
139D.D. agreed that in her March 2019 statement to the police, she told the police that after she took off her blindfold, Tony showed her the object that he had made out of Play-Doh.
140On re-examination, D.D. stated that Tony showed her the object made out of Play-Doh as she was getting up, and at the time that is what she thought the object was.
141On cross-examination, D.D. agreed that at no point did she wrap her fingers around the object, but only held it in her palm. She did not know how she knew that it was shaped like a cylinder and agreed that she was just guessing at the shape. She also agreed that Play-Doh becomes warm when you play with it.
142In re-examination D.D. stated that she touched the object with the palm of her hand and her fingertips.
143Even if the object was shaped like a cylinder, that does not mean that it was not made out of Play-Doh, nor does it mean that it was a penis.
144She agreed that the object was in her hand for only a few seconds, and that, while it was in her hand, she did not feel it move or change shape.
145Whether she held the object in her palm or palm and fingertips, she touched the object for “not even ten seconds”, did not know what it was, and agreed that before this incident occurred, she had never felt a penis and did not know what one felt like.
146On cross-examination D.D. agreed that if she thought at the time that Tony had put his penis in her hand, she would have told someone, but when the incident occurred she did not think that it was his penis. It was only after talking to her friend K., a few years later, that K. convinced her that Tony put his penis in her hand.
147On re-examination D.D. stated that before she spoke to K., she did not know what the object was, only that it definitely was not Play-Doh.
148The bottom line is that, at the time of the incident, D.D. did not know what Tony put in her hand and cannot be certain today that it was a penis. It is likely that her perception of what happened was influenced by her friend K. years after the event.
149In addition to these multiple uncertainties, the evidence indicated that the kitchen was separated from the living room by a half-wall only 3.5 feet high, and that D.D.’s brother, who was in the living room, would have had an unobstructed view of the kitchen had he turned his head slightly. D.D. testified that her mother, grandmother and grandfather were in the room next to the kitchen, separated only by a closed door. In these circumstances, it seems unlikely that the accused would have exposed his genitals in the kitchen when other family members could have walked in from the next room or seen what was happening just by turning their head.
150When I consider all of the inconsistencies and D.D.’s own uncertainties about the event, the highest I can put the Crown’s case is that it might have happened.
151The Crown has not proven beyond a reasonable doubt that the accused touched D.D. with his penis, and the accused must therefore be found not guilty with respect to charges related to this incident.
The Swim Trunks Incidents
152I will deal with the two swim trunks incidents together. There is no dispute that these incidents occurred, and the issue is whether the Crown has proven the requisite mens rea.
153In both incidents the accused asked D.D. to help him untie the knot in his swim trunks drawstring. In both incidents D.D. tried to untie the knot for about thirty seconds but was unable to untie it. She did not touch the accused, and he did not ask her to touch his person. The accused did not touch D.D. In the second incident he also asked her to use her teeth to untie the knot, and she declined.
154In order to be convicted, the Crown must prove beyond a reasonable doubt that the accused asked D.D. to untie the knot in his swim trunks drawstring for a sexual purpose.
155There is no doubt that it was inappropriate for Mr. A.H. to ask his 9 year old niece to help him untie the knot in his bathing suit. I understand why D.D. would consider such a request to be creepy and cause her to be anxious. Her belated reaction to this incident is perfectly understandable.
156There was, however, no dispute that there was a knot in Mr. A.H.’s swim trunks drawstring, and the request, however inappropriate, is not obviously or necessarily for a sexual purpose. The other obvious, non-sexual explanation is that Mr. A.H. asked D.D. to untie the knot because he was not able to untie it himself. The fact that D.D. was unable to untie the knot supports the inference that the drawstring was difficult to untie. The accused did not ask D.D. to touch any part of his body, and she did not touch a part of his body.
157The Crown argues that the second swim trunks incident, where Mr. A.H. asked the complainant to try using her teeth to untie the knot, demonstrates that Mr. A.H.’s request could only have been for a sexual purpose because, if acted upon, it would have placed the complainant’s mouth nearer to the accused’s crotch.
158That is certainly one reasonable inference, but I cannot conclude that it is the only reasonable inference: R. v. Villaroman, 2016 SCC 33, at paras. 33-37. Defence argues that people do try to loosen stubborn knots with their teeth, and the suggestion is not inherently or obviously sexual. I agree that this is another reasonable inference that can be drawn from these facts, and I am not prepared to find that this request proves a sexual purpose beyond a reasonable doubt, particularly in the context of these facts, where the existence of the knot in the drawstring is not disputed.
159The Crown has not proven beyond a reasonable doubt that the accused made this request for a sexual purpose, and the accused must therefore be found not guilty with respect to charges related to this incident.
Truth or Dare Incident
160The final incident relates to counts 4 – 9.
161The Crown relies on the evidence of T.B. and S.M. Since counts 4 - 9 arise out of the same event, there is no dispute that the evidence against the accused in the counts as applied to T.B. may be used with respect to the counts as applied to S.M., and vice versa: R. v. Tsigirlash, 2019 ONCA 650, at para. 23.
162The evidence of T.B. and S.M. differed in very significant respects. These are not just peripheral differences; they are central to each witness’s recollection of critical aspects of the incident and goes to the reliably of their memories and evidence. The most significant discrepancies are:
163T.B. testified that the accused approached them outside the house and asked them to come to D.D.’s house to play Minecraft. S.M. testified that the accused knocked on T.B.’s door and asked T.B.’s mother if they could come to D.D.’s house to play Minecraft.
164T.B. testified that the accused asked them if they wanted to play “dirty truth or dare”. S.M. testified that the accused asked them if they wanted to play “truth or dare” and had no memory off the accused using the words “dirty truth or dare”.
165T.B. testified that the accused asked S.M. to kiss him and then he asked S.M. to unclip her bra and take her bra off. S.M. testified that the accused asked them both to kiss him on the cheek at the same time, and that he never asked her to take off any of her clothing.
166T.B. testified that she refused to kiss the accused, but that S.M. did kiss him. S.M. testified that she refused to kiss the accused, but that T.B. brushed her cheek against the accused’s cheek. The fact that both girls denied kissing the accused but claimed that the other one did is the most significant discrepancy, and seriously calls into question the reliability of both narratives.
167T.B. could not remember any other dares, but S.M. recalled that she dared T.B. to do a cartwheel, and T.B. dared her to do a back handspring.
168S.M. testified that the accused dared them to go to the bathroom together to do “stuff”, and that they went to the main floor bathroom to plan their escape. T.B. never mentioned this dare and testified that it was the accused who went to the main floor bathroom.
169T.B. testified that when the accused went to the bathroom, she and S.M. tried to leave through the front door, but could not get it unlocked, and so they ran out through the back door. S.M. testified that they left through the front door, which was not only unlocked, but left slightly open. This was also a significant discrepancy that seriously calls into question the reliability of both narratives.
170T.B. testified that when they left the house, the accused called after them to meet him at the school at 8:00 p.m., but they ran to her house and her mother was home. S.M. testified that the accused was upstairs when they left and did not say anything, and that they ran directly to the school so that the accused could not see them. She testified that T.B.’s mother was not home, and they had to go to the pet shop to find her.
171T.B. testified that she and S.M. never spoke about the incident, S.M. testified that they joked about it frequently.
172The discrepancies are so divergent and compounding that I must question the reliability of both witnesses’ evidence about this incident. Both versions include significant details that are inconsistent with each other. One or both of these witnesses must be embellishing or making up details. Both versions cannot be true, and it is possible, even likely, that neither version is reliable or particularly accurate.
173The Crown suggests that I can disregard the inconsistencies and accept the one point on which they are consistent: that the accused asked them to kiss him on the cheek. This is not, however, a mathematical equation where the inconsistencies cancel each other out and the consistent portions remain. It is not simply a matter of accepting the common elements as true. The number and significance of the discrepancies necessarily calls into question even those few parts where their narratives match.
174In the final analysis, when I consider the evidence of both complainants together, I must conclude that their evidence is so unreliable that it would be unsafe to ground a conviction on the basis of their stories. I am not persuaded, beyond a reasonable doubt, that Mr. A.H. is guilty of any of the charges under counts 4 to 9.
Justice R.E. Charney
Released: June 14, 2022
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
A.H.
Defendant
REASONS FOR DECISION
Justice R.E. Charney
Released: June 14, 2022