Her Majesty the Queen v. K.Q.-S., 2022 ONSC 4174

WARNING

The Court hearing this matter directs that the following should be attached to the file:

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

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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences;

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

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

(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

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

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

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

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

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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

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

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

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

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

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

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

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

COURT FILE NO.: 19-98

DATE: 2022/07/20

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

K.Q.-S.

Defendant

Elaine Evans, for the Crown

Ian Paul, for the Defendant

HEARD:

November 16,17,18,19, 2022 and

July 11, 2022

ORAL DECISION:

July 15, 2022

lacelle, j.

1The accused K.Q.-S. is charged with a number of offences following two incidents when he is alleged to have had intercourse with the complainant. At the time, the accused was 22-23 years old while the complainant was 14. The two knew each other only because the accused had been friends with, and briefly dated, the complainant’s older sister.

2The Crown has elected to proceed on the following charges, which tie the conduct alleged to specific time frames as follows:

a. Between the 1st day of August and the 16th day of August 2018:

i. Sexual assault;

ii. Sexual interference by touching the complainant with his penis (s. 151);

iii. Assault;

iv. Choking (s. 246(a)).

b. Between the 16th and 17th of August 2018:

i. Sexual assault;

ii. Sexual interference by touching the complainant with his penis (s 151).

Overview of the evidence

3In general, the narrative given by the Crown’s witnesses is that on a day in August, the complainant G. and her sister E. were at home alone. Their parents were at work. While they had been told not to open the door for anyone while their parents were at work, they let the accused in to their home when he appeared at about 6:30-7 pm asking for a glass of water.

4The witnesses indicate that E. went to get the accused a glass of water and G. went upstairs to the room she shared with E. E. says that while downstairs, the accused asked if he could use the family’s washroom and E. agreed he could. The accused then proceeded upstairs, where a washroom was located.

5G. testified that she was on her bed and using her phone when the accused entered the room without knocking. He sat on her bed and started kissing her, and then touching her. Eventually he took off her pants and had intercourse with her. He used a condom. In her videotaped interview on August 23rd, she said the condom broke, and “he still did it”.

6G. recalled trying to push him off and make him stop. Intercourse went on about 5 minutes and then stopped. The accused got off her and went downstairs. G. didn’t know what to do. She thinks she sat there for about 25 minutes, and then went and had a shower. She watched TV with E. after that but did not tell her what happened because she was scared.

7Another day within the same week (G. could not say how many days later), E. and G. were again home alone while their parents were at work. The accused returned to their door. This time, G. recalls that she was upstairs and did not answer the door. She says she did not hear what was going on downstairs.

8E. testified she answered the door and let the accused in to get a drink of water. E.’s evidence about what happened downstairs will be discussed further in a moment.

9In terms of G.’s recollections, she says that while she was in her room the accused once again entered without knocking. She was terrified. She was on her bed and he started kissing her, then touching her. He removed her clothes. The accused put his penis in her vagina. G. testified that the accused used a condom on this occasion as well. In her videotaped interview on August 23rd, she also said he took it off.

10As I will address in further detail later, G. remembers other things happening when the accused was sexually assaulting her. Her recollections of when certain things happened were not clear and she could not say if it was the first time the accused came into her room or the second. However, she indicates that at some point the accused had anal sex with her after positioning her on her knees. He ejaculated during anal sex. He also choked her – she said she was able to breathe a bit as he did so but not speak. She recalled that the accused was kissing her and was inside her while he choked her. She also recalled that at some point, he slapped her on the bum with enough force that it left a red mark for 4-5 days.

11In any event, G. recalls that during the second incident, her sister E. came into the room. She said E. looked speechless at what she saw. She told the accused to get out of the house and to get off G. G. at this point was on the bed crying. The accused did what E. told him, got off, and left. E. locked the door behind him.

12G. told E. not to tell anyone what happened. She didn’t want anyone to know because she was “terrified” and “scared”.

13Ultimately, E. did tell their older sister H. about what had happened with the accused. G. remembers being there when E. did that. At the time E. told H., H. had been supposed to meet the accused at the Canadian Tire which was near their house. H. reacted to what she was told by E. by running to the Canadian Tire. Her sisters ran after her.

14G. recalled that when they got to the Canadian Tire, H. was yelling at the accused – she said H. was “confessing” him, which I took to mean confronting him with the allegations. Thereafter, all witnesses testified that attempts were made to reach their mother. A call was placed to their brother when they could not reach their mother. Eventually their mother attended and after a brief confrontation with the accused, she took her daughters to the hospital where G. was examined by a nurse who administered a Sexual Assault Evidence Kit. During her exam, the nurse noted that the assaults had included anal penetration. G.’s sister H. was with her and the nurse for that exam.

15Police were called at the hospital and attended there just after midnight on August 23, 2018. A few hours later, police attended G. and E.’s room and seized various pieces of bedding from G.’s bed.

G.’s account to police

16G. was interviewed by police the day after the confrontation at the Canadian Tire, August 23rd, 2018. During that interview, she did not describe any slapping or choking or anal sex.

17By way of explanation for why she hadn’t mentioned these, G. said during her evidence at trial that it was because she didn’t really like talking to people and she felt more comfortable talking to family about it. She said it wasn’t that she forgot it, it was that she didn’t really want to talk about it. She said her answer about this at the prelim, that she had totally forgotten about the choking, was not accurate. She said that she did remember it but was uncomfortable talking about it.

18Because the police became aware of other information, including the disclosure of anal penetration to the nurse at the hospital, and an allegation of choking that police received through the complainant’s mother, another interview was scheduled for the complainant 5 days later on August 28, 2018. In that second interview, the complainant provided additional information about what occurred, including that she was slapped on the butt, that the accused penetrated her anally, and that he had choked her. She said that the slap occurred when he was behind her and she was on her knees and he was behind her on his knees. She also said that during this time he “analled” her, which she explained to mean that he put his penis “in her butthole”. Before this she had been laying down on her back and then he flipped her over. She couldn’t remember what happened after. She said the anal penetration happened just once, and that when the accused was penetrating her this way, he ejaculated. He was not wearing a condom at this time. She could not remember if the anal penetration occurred in the first or second incident. She confirmed that during the incidents the accused had penetrated her both vaginally and anally with his penis and with his fingers.

19As for the choking, the officer interviewing G. told her that her mother had asked if the accused was being charged with choking and where her mother got that from. G. replied “he was on top of me and he, like, choked me”. She said she thought that occurred in the first incident, and that he was penetrating her vaginally at the time. She said it was a lot of pressure and she could breathe just a little bit. She couldn’t really speak.

20During this interview, G. was also asked about her bedding and whether she was on the sheet or the blanket. She said she was on the sheet. She explained: “There was blankets on top of the sheet, and the blankets went on the floor after and we were on the sheet”. It was the fitted sheet around the mattress. She said the accused took the blankets off the bed. She said this occurred for both incidents.

21She also said that she had been mistaken when she had said in her first interview that the second incident had been the Thursday before, and that it had happened on Friday (e.g. August 17th, and not August 16th). She said that on the 16th they had been gone to her grandfather’s the whole day. She confirmed there were just a few days between the first and second incidents. She said they were “in the exact same week”.

22The complainant has adopted both of her videotaped statements and they are in evidence in this trial.

23With respect to her recollections of when the second incident occurred, the complainant testified that she had “messed up the dates”. She said she realized this because her mom and dad had reminded her that the Thursday before the interview, August 16th, was her grandfather’s birthday. She said it definitely didn’t occur on Thursday, August 16th. She also testified that her sister H. had not told her that August 16th was also the accused’s birthday and said she was not aware then what his birthday was. She said the second incident was Friday, August 17, 2018.

24As for what conduct happened when, at trial, G. said she thought the slapping was more likely in the same incident as the anal sex. She was not sure if the anal sex was in the first or second incident but was “more under the impression it was the first time”. She agreed that at the preliminary inquiry, she suggested that the anal sex was during the second incident and not the first. She testified she was not sure when the choking occurred and said it could have been either the first or second incident. She said it did not leave marks, but the kissing did. She testified about having a hickey.

E.’s account

25E.’s evidence was generally consistent with this narrative. She testified that on the second occasion the accused came to the house, she answered the door and got a drink for him. She thinks it was a day or two after the first time he came to the house. They went to the kitchen where the accused had some water. She says her older sister called him that night. The accused told her to shut up and went outside where he spoke with her sister H.

26The accused then asked to use the bathroom. She said he was upstairs “longer” and she heard banging. This is why she went upstairs. She said that at first, she thought it was the neighbours, but it wouldn’t stop. When she went upstairs, no one was in the bathroom. The lights were off and the door was open. She then went in her room. And she could “see it, see what’s going on”. She said she couldn’t believe it, that she was disgusted, and it didn’t seem real. The light was on. She could see the accused on top of her sister, who was on her back. There were no covers on them. She could see the accused’s “whole back end, his back, his butt”. She said he had his shirt on and his pants were all the way down “but not off him, you know”. The accused said something like “don’t mind” and seemed angry. She said “what are you doing” and told him to get out. She was in shock. She didn’t know what to do.

27At this point, she said G. was scared and teary. She recalled that G. had no pants on and no underwear but that she had a shirt on. Once the accused left, E. locked the door behind him. Unlike G., she said G. had not been with her when she locked the door. E. said after locking the door, she went to check on G. who was bawling her eyes out. G. told her she didn’t want E. to tell anyone because she was scared. E. said when she told G. that she was scared too, that she had never experienced this in her life. She told G. she wouldn’t tell because she didn’t know what to do.

28As the days went on, however, E. said it was like a weight on her shoulder she wanted to get off. She testified she knew she should have told someone sooner, but said she wanted to keep her word to G. and not tell anyone.

29E. told their older sister H. on August 23rd because H. was at the house and was supposed to go meet up with the accused. E. said she couldn’t hold it in and she just told her. She recalled that G. was at the house at the time, but she did not think she was with her when she told H. She recalled that it was because H. was freaking out that G. found out E. had told her.

30As for her grandfather’s birthday and her memory about whether there had been a family get together close to these events, E. said she had “no clue”.

31E. was asked if H. was upset by the break up with the accused, and she said she didn’t know, and she didn’t know when they broke up. She was then asked if she was upset by the break up she said no because she didn’t know the accused.

32E. confirmed that before she spoke with the police, she had spoken with G. about what happened.

H.’s evidence

33G.’s sister H. was 19 years old in August 2018. She testified that she and the accused had been friends for about a year and dated for about two weeks of that time. Her recollection was that they had broken up about 2-3 weeks before police involvement in the case, although she also placed the break-up a bit before that in late July. It was H.’s recollection that the accused ended the relationship. She said that not long after their break up the accused told her he was with someone else. She said she was not upset or angry with him and they continued to be friends and still talked after the break up.

34At the time of these events, H. said she was staying with her family and would sleep on an air mattress on the floor in G. and E.’s bedroom. The air mattress would be deflated during the day.

35H. testified that about two days before E. told her what had happened to G. she noticed two hickeys on G.’s neck. She said they were not visible when G.’s hair was down, which is how she wore her hair most of the time. H. asked G. where she got them. She said G. “kind of brushed it off”.

36H. said that E. told her she believed the second incident was on August 16th. She said she just talked to E. about it and that G. didn’t really tell her much. She believed that on one of the days he was there, she thought on August 16th, she called him from work when she was on a break at about 10:45 pm. She asked the accused if he was at her house because she thought she heard her sisters. She later specified that it was E.’s voice that she could hear. The accused said no, it was the TV, put her on mute, and then went outside. She said she brought this up with E. when she got home from work and E. denied the accused had been there. She said that the day E. told her what had happened to G., E. told her that she had lied about that because she didn’t want her to get upset that he was there without her.

37H. testified that the accused knew how old E. and G. were because she had told him.

38H. was asked if there was an occasion in the middle of August when she had sex with the accused in G. and E.’s bedroom. She denied that. She also denied that she had attended at his residence between August 16-23rd and had sex with him there.

39H. also testified about the confrontation with the accused at the Canadian Tire on August 23rd. She testified that she already had plans to meet the accused at Canadian Tire when E. told her she had something to share with her and told her what happened. G. was there when E. told her and she started to cry. She said G. was asking E. not to say anything because she wasn’t ready for people to know, but E. kept telling her. H. said she broke down. It was hard to hear what had happened to her little sister.

40After that H. went to the Canadian Tire. While she told her sisters to stay home, they ran after her. She thinks she arrived at about the same time as the accused and they started a conversation. She asked him about the allegations and he denied everything. She reported that over the conversation, after a while denying it, the accused did say a number of things, including that: when they broke up and he said he was seeing someone else, that it was her sister; that he and G. had a relationship that was consensual and they cuddled; and he asked what could he do to make her not tell people. H. agreed that she had not mentioned the dating relationship when she gave her police statement and told police only the accused said they had cuddled. She said she remembered the events pretty clearly then but just told police what came to her mind.

41H. testified that she did not talk to G. about the incident in the time frame before G. gave her second statement to police.

The accused’s account

42The accused testified that in 2018, he had known the complainant’s sister H. for about a year. They had dated for a few months after having been friends for awhile. He said the dating part of their relationship ended some time after his birthday on August 16th. He explained that he had commitment issues and didn’t want to be in a relationship.

43The accused said the last time he was at H.’s family’s house was roughly a few days before his birthday. While there they watched TV. They eventually decided to have sex, which they did upstairs on a mattress on the floor. He recalled there were blankets and a comforter on the bed. He thought one might have had a floral pattern.

44The accused said that on his birthday, he went to his grandmother’s. His dad, aunt and sister all came over too. At one point he left his grandmother’s to go to his sister’s to take out her dogs, and then they went back to his grandmother’s. Afterwards he went home. He didn’t go anywhere else that night.

45The accused said that at about 10:45, on his birthday, H. called him. There was noise in the background because his dad had a computer sound system. He said he was at his grandmother’s when he got the phone call. He said his dad’s speakers, in the house next door, were so loud they could be heard through the wall at his grandmother’s house. He testified that his sister was still with him at his grandmother’s when he got this call from H. He denied that he was at H.’s family’s house as E. described and that he put the phone on mute and then walked out onto their porch.

46The accused denied that he had any sexual contact with the complainant on his birthday, or any other time. He denied he had attended at the house and gained entry by asking for water.

47The accused recalled there was an incident at Canadian Tire where H. accused him. He said that in response he was getting angry and told H. he didn’t do what she was talking about. He denied saying he had cuddled with the complainant. He denied making any comment about asking H. her price to not proceed on the matter. He recalled that the complainant’s mother eventually arrived. He said she pulled up very fast in a car and took a swing at him. He left after that.

The evidence of the accused’s sister and father

48Both the accused’s sister and father also testified. They both testified that there was a gathering on the accused’s birthday at his grandmother’s house. While their recollections of times of certain events was sometimes different, they both gave a similar account of getting together in the afternoon and staying into the evening, with a brief exception when the accused and his sister went to his sister’s house to look after her animals.

The DNA evidence

49The bedding seized by police from G.’s bed and bedroom was submitted to the Centre of Forensic Sciences for analysis.

50Blood and semen were detected near the centre of a bed sheet. A cut out of the semen-stained area yielded evidence of DNA from two people. G. could not be excluded as one source of the DNA. The accused could not be excluded as the other.

51The parties sought supplemental information from the CFS biology department, which confirmed that DNA deposited on a bed sheet can be retained for an indefinite amount of time and a DNA profile can be generated from it. A standard wash cycle in a commercial/residential washing machine will remove the majority or all of the DNA present on a bed sheet. Further, dating of DNA deposition is generally not possible. Based on the body fluid results reported, the expectation of the scientist providing the supplemental information was that the semen was deposited since the bed sheet was most recently washed. The scientist also noted that semen detected may be the subject of transfer from one location/article of clothing/bedding/skin to another, however it most readily does so while still a wet fluid. The scientist continued: “Semen transfer as a dried stain is typically a more granular/dust-like transfer and is not expected to coalesce as a continuous stained area. The DNA from the other individual, to which the complainant cannot be excluded may be directly deposited or transferred as well, however finding her DNA on her own bedsheets is not an unexpected occurrence”.

The positions of the parties

52The defence submits that the court should find the accused not guilty.

53The defence submits that the alibi evidence and the evidence of the accused should give rise to a reasonable doubt, at least in regard to the second incident. The DNA evidence can be explained by the accused’s account of having had sex with H. in E. and G.’s room, and this diminishes its significance. Counsel further argues that to the extent there is supporting evidence for the complainant’s account from E. and H., the number of issues on which they are inconsistent with each other should cause the court concern and contribute to raising a reasonable doubt that the accused committed the offences alleged.

54The defence emphasizes the law that holds that there is not a lower standard for the assessment of the credibility of child witnesses. Counsel highlights the following areas of evidence where there were inconsistencies between the accounts given by the Crown witnesses in their own previous accounts, or when considered against the evidence of another witness:

a. The different details in G. and E.’s accounts of what is happening when E. walks into the bedroom during the second incident are significant. The defence says the accounts don’t add up very well given differences in the accounts about issues such as: what G. was wearing and whether she was covered by a blanket or pillow; the number of noises that occurred which attracted E.’s attention; whether sexual activity continued after E. walked in; the accused’s state of undress; whether the accused said anything;

b. Within that argument, the defence suggests that G. was backtracking during her evidence about whether she was wearing a bra when E. came in, which is important because her reaction to being confronted about this suggests she is tailoring her evidence and it is not trustworthy;

c. The differences in G. and E.’s accounts of who went to the door on the second occasion;

d. The difference in G.’s account about what day the second incident took place;

e. The differences in G.’s first two statements to police about what acts occurred during the incidents, and the absence of allegations of anal sex, choking and slapping which were added in her second statement. The omission of these significant things should cause the court concern and raise a doubt as to whether they occurred;

f. The vagueness in G.’s account, the issues with sequencing the events, and G.’s confusion about what events occurred during the first and second occasions, particularly regarding the anal sex allegation;

g. The explanation for this change in evidence is such that it should not be considered “incremental disclosure” – at the preliminary hearing, the complainant said she forgot parts of it, whereas at trial she said she had not forgotten but rather, she didn’t want to say these things the first time she was interviewed. The defence says this is an evolving explanation that is not credible because these are opposite accounts of why she didn’t tell the police everything the first time. Counsel emphasizes that G. had also spoken to H. between the statements as a reason for concern (and also points out that H. denies that which goes against her credibility);

h. The absence of confirmatory evidence from other witnesses that there was an event for G.’s grandfather on August 16th;

i. The time for the second incident – on H.’s evidence, her phone call to the accused that day was at 10:45 pm, whereas both G. and E. say the incident occurred earlier in the evening closer to 7 pm;

j. The inconsistencies between the accounts of H., E. and G. about whether G. was present when E. told H. what happened;

k. The fact that the utterances H. said the accused made at Canadian Tire were not heard by anyone else.

55Finally, the defence suggests that there could be an issue here regarding the motivation of the witnesses. There is a potential issue relating to the break-up between H. and the accused, which the defence says is “there in the background of the case”.

56The Crown argues that the accused’s evidence should be rejected outright because it was incredible, illogical, internally inconsistent, and inconsistent with other evidence in the trial. Further, the accused was sarcastic and hostile in giving his self-serving account. The accused’s claimed lack of memories and the suggestion he was in what the Crown called a “fugue state” for weeks between August and November is manifestly incredible, and an example of the accused sparring with counsel rather than answering truthfully.

57The Crown submits that many aspects of the evidence of the Crown witnesses had the ring of truth, such as the evidence from G. that in the aftermath of the assault she was frozen and not sure what to do, and E.’s evidence about going to check the bathroom first (where she believed the accused to be) when she heard a noise upstairs on the second occasion. Counsel points out these events are alleged to have occurred in the summer time, when each of G. and E. would have had less reason to be focused on days and times given the lesser structure to their days when they were out of school. Whatever confusion there is in the evidence about whether there was a family get together for G.’s grandfather on August 16th, the Crown argues that it doesn’t change G.’s credible account of what took place and what happened to her.

58With respect to the details that were given in the second statement and not the first, the Crown says this is a prime example of incremental disclosure by a child witness and notes that it is the most painful things in G.’s account which are not in the first statement – anal sex, choking, and slapping. Further, G. detailed two sexual assaults that occurred in close proximity and she no doubt was dealing with the impact of that when she was interviewed.

59The Crown submits that the totality of the evidence supports the narrative provided by G., including the DNA evidence. Counsel submits the accused should be found guilty.

The legal principles

The fundamental principles of criminal law

60In our law, an accused person is presumed innocent until proven guilty. It is the Crown who bears the burden of proving any criminal offence charged beyond a reasonable doubt. That burden never shifts. An accused person is not required to prove his or her innocence. Our law requires that if a judge has a reasonable doubt about whether the accused committed a criminal offence the accused must be acquitted.

61In a case like this, where the accused has testified and presented evidence, the case of R. v. W.D., 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742 directs the court in its approach to the evidence. The W.D. test applies not just to an accused person’s testimony, but to any defence evidence and to any potentially exculpatory evidence whether led by the defence or the Crown: R. v. Smith, 2020 ONCA 782 at para. 11. In summary, it tells me that if I believe the accused’s evidence, or it leaves me with a reasonable doubt after I have considered it in the context of all the evidence, he must be acquitted. In a case like this, my assessments of the credibility and reliability of a witness’s evidence are particularly important.

62It is important to note, however, that in deciding a case, a judge is not simply comparing each account and deciding which account to believe. Trials are not credibility contests where the more credible witness’s account necessarily carries the day. It is also important to note that a judge can believe a witness but still be left with a reasonable doubt about what happened after considering all of the evidence. As has been noted by our Court of Appeal, “a reasonable doubt can survive a finding that [a] complainant is credible”: R. v. T.A., 2020 ONCA 783 at para. 29.

63Further, even if a judge disbelieves the evidence given by an accused person, or is not left with a reasonable doubt based on the accused’s evidence, this does not mean that the Crown has proved its case. A judge must always determine whether the Crown has proved each element of every offence charged beyond a reasonable doubt. This will only happen when there is evidence that the judge accepts that supports each element the Crown is required to prove.

64As for what is meant by “reasonable doubt”, it is not an imaginary, far-fetched or frivolous doubt, and it must not be based upon sympathy or prejudice. It is based on reason and common sense. It is logically derived from the evidence or absence of evidence: R. v. Bryce, 2001 CanLII 24103 (ON CA) at paras. 13-20. Probable or likely guilt is not sufficient to meet the standard in a criminal trial. But the burden of proof is also not impossibly high. The Crown is not required to prove its case to an absolute certainty.

65If at the end of the case a judge concludes only that the accused is likely or probably guilty, the accused must be acquitted. Before an accused may be found guilty, and face the consequences of a conviction, a judge must be sure that he or she committed the offence charged (see D. Watt, Watt’s Manual of Jury Instructions, 2nd Ed., Thomson Reuters Canada Ltd., 2015, Final 13, “Reasonable Doubt”; and R. v. Lifchus, 1997 CanLII 319 (SCC), [1997] 3 S.C.R. 320 at paras. 36-40).

The approach to the evidence of children

66In considering the evidence in this case, I also consider the law that addresses the correct approach to assessing the evidence of children.

67The case of R. v. R.W., 1992 CanLII 56 (SCC), [1992] S.C.J. No. 56 at para. 23 confirms that there is no assumption that the evidence of children is always less reliable than the evidence of adults. Of course, a court may approach a child’s evidence with caution, if that caution is merited in the circumstances of the case.

68The court in R.W. further expanded on the correct approach to children’s evidence and evidence given by adults about events when they were children at paragraphs 24 and 26. The court recognized that 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. It recognized 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. The court explained that “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.”

69This sensitivity to the experience of children does not mean that the court should use a lesser standard in assessing the evidence of a child or of an adult testifying about events as a child. The credibility of every witness who testifies before the courts must be carefully assessed “by reference to criteria appropriate to her mental development, understanding and ability to communicate.” However, a court must be mindful that the standard of the “reasonable adult” is not necessarily appropriate in assessing the credibility of young children.

70The court further directed that where an adult is testifying about events which occurred when he or she was a child, credibility should be assessed according to criteria applicable to him or her as an adult witness. Yet with regard to the 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.

Demeanour evidence

71The court is mindful of the reasons for caution in considering demeanour evidence. As summarized by Fairburn J. in R. v. M.M., [2016] O.J. No. 4243 at para. 59, “[w]hether demeanour is related to in-court or out-of-court behaviour, it can be easily misinterpreted. As noted by Rosenberg J.A. in R. v. Levert, 2001 CanLII 8606 (ON CA), [2001] O.J. No. 3907 (C.A.), at para. 27, demeanour evidence (as opposed to a witness’ demeanour when testifying) has been known to play a role in wrongful convictions.”

72Demeanour evidence is not irrelevant, however, and trial judges are not required to ignore it in the assessment of witnesses. Trial judges may use demeanour evidence in conjunction with their assessment of all the evidence and in the full context of the trial: R. v. Hull, 2006 CanLII 26572 (ON CA), [2006] O.J. No. 3177 (C.A.) at para. 8, citing R. v. Boyce, 2005 CanLII 36440 (ON CA), [2005] O.J. No. 4313 (C.A.) at para. 3.

73As was noted by Laskin J.A. writing for the Court of Appeal for Ontario in R. v. R.D., [2016] O.J. No. 3903 at para. 25, “[d]espite academic and judicial commentary suggesting that demeanour evidence is unreliable, under Canadian jurisprudence it remains relevant to the assessment of a witness’s credibility”: R. v. N.S., 2012 SCC 72 and R. v. O.M., 2014 ONCA 503. Regardless, it is clear that trial judge ought not to unduly rely on demeanour to make a credibility finding. Reliance on demeanour must be approached cautiously: R. v. S. (N.), 2012, SCC 72. A witness’s demeanour cannot become the exclusive determinant of his or her credibility or of the reliability of his or her evidence: R. v. Hemsworth, 2016 ONCA 85.

74Insofar as a complainant’s post-event emotional state is concerned, evidence of a complainant’s emotional upset may be used to support a complainant’s evidence of a sexual assault: R. v. Varcoe, 2007 ONCA 194, 222 O.A.C. 197 at para. 33, citing R. v. Boss (1988), 1988 CanLII 190 (ON CA), 46 C.C.C. (3d) 523 (Ont. C.A.). See also R. v. J.A., 2010 ONCA 491, [2010] O.J. No. 2902 at paras. 16-18, reversed on other grounds, 2011 SCC 17. The weight to be given this evidence is a matter for the trial judge’s discretion. Again here, a trial judge must be cautious about undue reliance on such evidence to resolve a credibility issue: see A.J., 2011 SCC 17 at para. 14.

Analysis

75There is no formula to how evidence is assessed by a trial judge. I start with my comments about the evidence of the accused, however, since if I believe his account, or it raises a reasonable doubt when considered in the context of the whole of the evidence, he is entitled to an acquittal.

76I do not believe the central features of the accused’s evidence. Mainly, this is because there is other evidence which I do accept which contradicts his account.

77When I consider the totality of the evidence on the issue, I do not believe that his DNA came to be on G.’s bedsheet because he was in her room having sex with H. H credibly denied that occurred. G. says he had sex with her and ejaculated when not wearing a condom, on the sheet that went around her mattress. E. says she walked in to see the accused on top of G., with his pants down and his backside exposed. She said the accused and G. were on a sheet and had no covers on them.

78The DNA evidence accords with this account. The semen stain located near the centre of the sheet contained two profiles which could not be excluded as having come from G. and the accused. The prospect that the semen was deposited during an encounter with H. and that this explains the DNA evidence is remote. Even if possible, this scenario does not accord with the compelling evidence given by G., E. and H., and I reject it.

79Given the totality of this evidence, notwithstanding the discrepancies between the witnesses on some issues, I reject the accused’s denial that he had sex with G. I am satisfied beyond a reasonable doubt that the accused had sex with G., on her bed.

80With respect to other aspects of the accused’s evidence, there are also reasons to reject it. It was a peculiar feature of the accused’s evidence that he claimed to have no memory of things that happened in the days after the confrontation at Canadian Tire. He testified that he did not recall being arrested on August 24th or being released with conditions. He said his memory problems started on that day. He said they went on for some time and ended in November. He said had no memory of attending at the police station a second time when additional charges were laid.

81I do not believe that the accused had no memory of anything at all between August 24th and November. While his memory of events during that timeframe is largely irrelevant, since nothing that occurred in this timeframe goes to the issues to be decided in this case, I didn’t have confidence that the accused was trying to remember the things he was asked about and I do not believe he was trying to testify honestly and openly.

82I reach this conclusion also considering the evidence the accused gave about his phone call with H. I do not believe that a call he received at his grandmothers’ house could have been interfered with by the speakers in his father’s home because they could be heard through the wall at his grandmother’s house.

83The Crown has emphasized the accused’s demeanour when testifying as a reason to reject his evidence. As I have outlined, demeanour evidence may be considered in the assessment of credibility, but I must do so with the utmost caution. I accept that for any witness, testifying is a stressful event and in any case, it can be dangerous to read too much into a person’s demeanour while testifying when so many factors may contribute to it which have nothing to do with a person’s guilt or innocence or whether they are trying to tell the truth.

84All the same, the accused’s demeanour while testifying is worthy of some comment in this trial. The accused seemed agitated and angry at various times during his evidence. He sometimes raised his voice in response to questions from the Crown. This was particularly so when he was answering questions about the days after the incident at Canadian Tire. He testified that the allegations were all over Facebook and he could not leave his house. There was a pronounced hostility in his tone as he answered questions in cross-examination. While this manner of testifying does not sway the needle so much that it would have made a difference in the analysis if the remaining evidence were not so strong, at the very least, it can be said that the manner in which the accused testified did not assist him.

The “alibi”

85The defence has presented compelling evidence that the accused was with his family celebrating his birthday on August 16th, and I do accept the accused’s evidence that this is what he was doing on the afternoon and evening of August 16th. Accordingly, the evidence given by the complainant fixing the second incident on that date becomes important.

86The complainant said in her first statement to police on August 23rd that the second incident had occurred the previous Thursday. On August 28th, she said that had been a mistake and that the incident was on Friday. She explained that it was her grandfather’s birthday on the previous Thursday (which was August 16th). In her trial evidence, she said she had remembered that as a result of discussions with her parents.

87The complainant also testified that she did not know when the accused’s birthday was. The same evidence was given by H. and E. – they didn’t know when it was either. I believe the complainant’s evidence. There is nothing in the evidence that contradicts it or causes me to have a reasonable doubt about that issue. I accept that when the complainant gave her second police statement on August 28th, she was correcting an error she had made earlier. There was no reason for the complainant to think at that time that doing so would somehow make her account more plausible. I accept that she was doing what we expect of a good witness – that is, she corrected an error in her recollection when she became aware she had made it. She did so in a timely way and long before any question of an alibi defence could possibly have become known to her.

88The defence points to the evidence of other witnesses who do not recall celebrating G.’s grandfather’s birthday during that time and says this undermines G.’s account to the point that it should not be accepted. A careful review of their evidence is clearly required.

89E.’s evidence was that she had “no clue” whether there had been a birthday celebration for her grandfather when she testified over 3 years later during the trial.

90H. did not share the same grandfather with E. and G. She did not recall when their grandfather’s birthday was. She said she didn’t go to birthday celebrations for the grandparents of E. and G. When she was asked if there was a family event on August 16th for the grandfather’s birthday, she said “I’m not too sure”. She said she didn’t remember anything about a birthday party around that time. She also said she had been told by E. that the second incident was on August 16th, and she thought this was the day of her phone call with the accused when she thought she heard E. in the background.

91G.’s mother testified that her father-in-law had a birthday on August 16th. She said she “honestly can’t remember if there was a get together for that”. When asked if there would normally be a get together, she said “sometimes, usually”. She said if the birthday fell on a weekday, they would normally celebrate it on the weekend. She noted that her husband worked shifts on a 2 days on/off and 3 days on/off schedule, and she would have been working on a Thursday.

92G.’s family members were all asked about this issue over three years after the day they were asked to recall. None had a recollection of whether there had been a celebration on Thursday, August 16th, 2018 although the fact that this day was G.’s grandfather’s birthday was confirmed by G.’s mother.

93I don’t find it surprising that the recollections of whether there was a celebration of the birthday on the actual date of the birthday, or not, are not clear. E., H., and their mother all said they could not recall – this is different than saying it did not happen. While I consider the evidence of G.’s mother about what would usually happen, given that G. provided her recollections on this issue within days of the events, I prefer her evidence over the vague suggestion that things might have occurred differently that may be inferred from her mother’s evidence. I see nothing wrong with the fact that 14-year-old G. would have discussed these events with her parents after she had given her first police statement and as a result of that corrected something she said earlier. That there would be discussion between parents and their child in these circumstances is not at all surprising.

94My view of G.’s change in her account might be different if it had come months later, or after she might have learned about the potential for an alibi defence in this case. But on the facts, that is not what occurred. I accept that G.’s change in her statement was the product of her own recollections, triggered by a discussion with her parents, and that she brought the error to the attention of the police in good faith. I also accept her very firm evidence in that second statement and at trial that the second incident occurred on Friday, August 17th.

95In the end, the accused’s evidence and the remaining evidence called by the defence does not leave me with a reasonable doubt about what occurred when I consider it in the context of the all the evidence.

The complainant’s evidence and that of other Crown witnesses

96I turn now to my findings about the evidence of the complainant and other Crown witnesses, beginning with G.

97I found G. to be a very credible witness. I believe she was doing her best to tell the truth. She was not confrontational with counsel. She did not seem prone to embellishment and readily acknowledged when she was uncertain about a detail she was asked about. Everything about her conduct is consistent with her account that she did not want anyone else to know what had happened to her, and I accept that for G., talking about what happened to her has been difficult. In the opening of her first interview, she talked about being nervous. The evidence of other witnesses, including H. and E., was consistent that G. did not want to talk about this.

98In all the circumstances, I do not find the difference in accounts given over a span of five days to be a concern that causes me to doubt either the credibility or reliability of G.’s account. I consider her explanations for why she didn’t disclose everything in the first incident during her first statement to police given her age and maturity both at the time she gave her police statements and when she testified. It can be difficult for a witness of this age to articulate why they have done or said something. Even given the difference in her accounts at the preliminary hearing and at trial, I do not doubt that these things happened to her given the totality of the evidence.

99I note as well that even if G. did not tell the police about the anal sex in her first statement, she had already told the sexual assault nurse about that part of the assaults. The anal sex allegation was not made for the first time days later – she made it before speaking with police at all. Similarly, the complainant had also clearly told her mother about the choking, since her mother asked the police about it. Police properly reinterviewed G. when they became aware of these details and G. then provided additional information to them. Whether or not G. spoke with H. outside of what conversation may have occurred with the sexual assault nurse during her exam I do not find any of the circumstances leading to this second statement cause me to doubt that account or the complainant’s evidence about these types of assault occurring when she testified at trial.

100Given the proximity of the assaults in time to one another, and the age of the complainant and her clear distress following these events, I am also not concerned that the complainant could not sequence the events more clearly or confirm on which occasion the choking, anal sex and slapping occurred.

101With respect to the differences in the accounts given by E. and G. about what occurred when E. came into the bedroom and interrupted the second assault, I take a different view of the evidence than the defence. I find their accounts are consistent on the material points that: a) there was a sound of some kind that preceded E. coming upstairs; b) when E. opened the door there was an assault taking place on G.’s bed; c) the accused and G. were on the bed sheet; d) the accused was on top of G. and exposed; e) the assault came to an end after this interruption. Any differences in their accounts I find to be the product of human memory, their different perspectives and ability to recall what happened given what they were each experiencing, and the passage of time. I believe both witnesses were endeavouring to tell me their best recollections of what occurred and I am not troubled by the differences between them. I accept the material points in their accounts which I have just outlined.

102On this issue, I also do not agree with the defence’s characterization of how G. testified about what she was wearing when E. came into the room. While there was some shifting in her account about this, I do not believe she was tailoring her evidence. And in the end, the material point is that the accused was on top of her when E. came in. I am not troubled by discrepancies in G.’s evidence about precisely how she was dressed at this point, which is a detail that I would not expect her to be clear about given what she was experiencing.

103Nor would I characterize G.’s account as so vague as to undermine its reliability. To be sure, G. could not sequence the events, and she was not sure about whether certain acts occurred in the first or second incident. But she gave some detail about what acts were performed, her position during them, how she came to be in that position, the accused’s use of a condom, what had happened to the bed covers, and other matters. G.’s evidence, including her videotaped interviews, provide a sufficiently detailed account of what happened to her that I do not doubt it because it is baldly stated, conclusory, and lacking in detail.

104I also found H. to be a very credible witness. She was measured in her evidence. There was no hint of an agenda as she testified. I believe her when she says that she had not been upset following the break-up with the accused and that they remained friends. The accused does not contradict this in any of his evidence. To the extent that they have a different account of when the dating part of their relationship ended, I prefer H.’s account. I believe H. when she says that she did not have sex with the accused in G. and E.’s room.

105I also believe H. that she did not know when the accused’s birthday was, and that he said the things she reports when she confronted him in the Canadian Tire parking lot. Given that for at least part of her exchange with him, E. and G. remained at a distance from them, I do not discount what she says because no one else testified they heard the same thing.

106As for the time of her phone call to the accused on the day of the second incident, what is material about that evidence is that both H. and E. say she called and the accused took the call and went outside. It may be that H. is mistaken in her recollection of the time of the call, or that G. and E. are mistaken in their recollections of the timing of events. In the context of this case, where there is so much compelling evidence that these offences occurred, this is not an important issue to resolve and I am not troubled by the difference in accounts about this peripheral issue.

107E. was also a generally credible witness. I got the sense as she testified that she was now very disengaged with what had happened, although she started to cry when talking about making the decision to disclose what happened to G. to H. even though G. didn’t want her to. All the same, E. was responsive to questioning by both counsel and my sense was that she was trying to tell the court the truth. There was nothing about her evidence that was internally or externally inconsistent in any significant way. I believe her account of having let in the accused on the second occasion, of what led her upstairs to the bedroom, and about having seen the accused on top of her sister, with his pants down, when she entered. I believe her too when she says she wasn’t upset about the break-up between her sister and the accused.

108I have given consideration to all the arguments made by the defence about the aspects of the evidence that should cause the court concern. I have addressed the most significant arguments. With respect to the remainder, I do not find that any inconsistencies in the accounts of the witnesses or between them to be of such significance that they undermine the evidence I do accept going to each element of the offences the Crown is required to prove. Any differences in their accounts I find to be the product of human memory, their different perspectives and ability to recall what happened given what they were each experiencing, and the passage of time

109In the end, I am satisfied beyond a reasonable doubt that:

a. The accused came to the house on two occasions asking for water, and then once in the house, asked to use the washroom;

b. This was a ruse to permit him to go upstairs where G. was in her room;

c. The accused entered her room and forced intercourse;

d. He did that twice within a period of days in August 2018, with the second occasion being on August 17, 2018;

e. At some point during those two incidents, the accused also forced anal sex without a condom, penetrated G. with his fingers both anally and vaginally, slapped her as she described, and choked her while having vaginal intercourse with her. He also kissed her and left a hickey on her neck. While I cannot conclude beyond a reasonable doubt whether these events occurred on the first or second occasion, I am satisfied beyond a reasonable doubt that they did occur at some point in one or the other;

f. The second occasion came to an end when the accused was interrupted by E.;

g. The accused knew how old G. was because H. had told him.

110Given these findings of fact, the accused is found guilty of the counts of sexual assault and sexual interference.

111I will hear from counsel as to what other convictions should register given that the indictment has been drafted in a way that ties the choking and assault counts to the first incident alone.

The Honourable Justice Laurie Lacelle

Released: July 15, 2022

COURT FILE NO.: 19-98