ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR-20-535-00

DATE: 2022 11 09

BETWEEN:

HIS MAJESTY THE KING

– and –

J.T.

A. Mountjoy, for the Crown

D. Tse, for J.T.

HEARD: November 15-18, 2021 and September 6, 2022

REASONS FOR JUDGMENT

RESTRICTION ON PUBLICATION

By court order made under subsection 486.4(1) of the Criminal Code, information that may identify the person described in this judgment as the complainant may not be published, broadcasted or transmitted in any manner. This judgment complies with this restriction so that it can be published.

Shaw J.

Introduction

[1] The accused, J.T., has pleaded not guilty to one count of sexual assault, contrary to s. 271 of the Criminal Code, R.S.C. 1985, c. C-46 and one count of touching the body of a person under the age of 16 years for a sexual purpose, contrary to s. 151 of the Criminal Code. Both charges relate to a single alleged sexual assault that occurred between November 1 and December 31, 2017. The accused was tried by me, sitting without a jury.

[2] The Crown called five witnesses including the complainant, his sister, mother, father, and a teacher. The accused testified on his own behalf.

[3] Only the complainant, S.K., and the accused were able to testify about what is alleged to have occurred in 2017 that forms the subject of the charges before the court. At that time, the complainant alleges that the accused, his uncle, sexually assaulted him while he was lying on a couch in the dining room area of his uncle’s home.

[4] The accused, J.T., does not deny that on the day in question, his nephew, S.K., was visiting his home but denies sexually assaulting him. It is not in dispute that at the time, J.T. was showing S.K. how a hand-held massager worked. J.T. testified that he used the massager only on S.K.’s lower leg whereas S.K. testified that J.T. moved the massager towards his groin area and then put his hand inside his pants and squeezed his penis several times. J.T. denies touching S.K.’s penis.

[5] Given this conflicting evidence, as is often the case in sexual assault trials, the credibility and reliability of J.T. and S.K. is central to this case.

[6] As a result of that conflicting evidence, I have made credibility and reliability assessments of S.K. and J.T. I found them to be both credible and reliable and, as a result, conclude that the Crown has not discharged its onus to establish the guilt of J.T. beyond a reasonable doubt. I have reached this conclusion based on the principles established in R. v. W.(D.), 1991 93 (SCC), [1991] 1 S.C.R. 742 which governs how the court must approach this type of conflicting evidence to ensure that the burden of proof never shifts from the Crown to the defence.

Analytical Framework

Reasonable Doubt

[7] At all times, the onus to prove guilt of an accused beyond a reasonable doubt remains with the Crown. Each person charged with a criminal offence is presumed innocent and this presumption remains throughout the whole of the trial, unless and until the court is satisfied that the charge has been proven beyond a reasonable doubt. At the end of hearing the evidence and submissions, if I am not satisfied that the Crown has proven any element of the offence charged beyond a reasonable doubt, the accused will be acquitted of the charge.

W.(D.) Analysis

[8] Given the conflicting evidence of S.K. and J.T., credibility assessments are key to the determination of guilt or innocence in this case. Therefore, the three-step analysis set out at paras. 27-28 of R. v. W.(D.), 1991 93 (SCC), [1991] 1 S.C.R. 742 must be followed to prevent the burden of proof shifting to the accused. The three steps are as follows:

I. If I believe the evidence of the accused, I must acquit him.

II. If I do not believe the accused’s testimony but I am left in a reasonable doubt by it, I must acquit him.

III. Even if I am not left in doubt by the evidence of the accused, I must ask myself whether, on the basis of the evidence which I do accept, I am convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

[9] At all times, it is important to keep in mind that the accused’s credibility should not be assessed solely in relation to the credibility of the complainant. This is not a credibility contest between S.K. and JT. The burden remains on the Crown to prove J.T.’s guilt beyond a reasonable doubt.

[10] In a case such as this, when dealing with two witnesses whose evidence is completely contradictory, an accused is not to be disbelieved simply because the complainant is believed: R. v. V.Y., 2010 ONCA 544, 258 C.C.C. (3d) 281, at paras. 19 and 26. An accused is not to be found guilty, after accepting the evidence of the complainant, without properly assessing whether the accused’s evidence, or the evidence as a whole, raises a reasonable doubt: R. v. J.H., 2018 ONCA 245, at para. 37.

[11] The mere disbelief of the accused’s evidence will not satisfy the burden of proof upon the Crown: W.(D.), at paras. 26-27. If, after considering all the evidence, the court is unable to decide whom to believe, then the court must acquit. The court must be satisfied, on the totality of the evidence that there is no reasonable doubt as to the accused’s guilt.

[12] There is a line of cases that deals with the rejection of an accused’s denial of any wrongdoing. In R. v. D.(J.J.R.) (2006), 2006 40088 (ON CA), 215 C.C.C. (3d) 252 (Ont. C.A.), leave to appeal refused [2007] S.C.C.A No. 69, at para. 53, Doherty J.A. found that the trial judge rejected the accused’s denial because when the accused’s evidence was stacked up against the complainant’s evidence and other evidence, despite the absence of any obvious flaws, it did not leave the trial judge with a reasonable doubt. The court found:

An outright rejection of an accused’s evidence based on a considered and reasoned acceptance beyond a reasonable doubt of the truth of conflicting credible evidence is as much an explanation for the rejection of an accused’s evidence as is a rejection based on a problem identified with the way the accused testified or the substance of the accused’s evidence.

[13] This reasoning was followed in R. v. D.(R.), 2016 ONCA 574, 342 C.C.C. (3d) 236, at para. 18. where the court found that the bare acceptance of a complainant’s evidence and the bare denial of an accused’s evidence are not sufficient reasons. If a trial judge is to rely on D.(J.J.R.), the court must set out the grounds for accepting a complainant’s evidence.

Assessing Credibility and Reliability

[14] Assessing what reliance and weight to place on a witness’ evidence is determined by addressing both credibility and reliability. Trial judges rely on several factors to assess the weight to be given to a witness’ evidence. Some of those factors are set out in Darkins v. Jones, 2020 ONSC 1299, at para. 11:

1. Does the evidence make sense?

2. Does the evidence have an internal consistency and logical flow?

3. Are there any prior inconsistencies, and if there are, how significant are they and are they adequately explained?

4. Is there independent confirming or contradicting evidence?

5. Is there an interest in the outcome or motivation to lie?

[15] None of these factors are alone determinative and I have considered each of these factors in assessing the credibility and reliability of the witnesses.

[16] Myths and stereotypes about how someone should behave following a sexual assault have, at times, tainted sexual assault jurisprudence. The court must not draw an adverse inference regarding a complainant’s credibility based on assumptions of how people react to acts of sexual abuse: R. v. D.(D.), 2000 SCC 43, [2000] 2 S.C.R. 275, at para. 63.

[17] Further, it is open to a trier of fact to believe all, none, or some of a witness’ evidence: R. v. M.(R.E.), 2008 SCC 51, [2008] 3 S.C.R. 3, at para. 65. The trier of fact may also accord different weight to different parts of the evidence that has been accepted: R. v. J.H. (2005), 2005 253 (ON CA), 192 C.C.C. (3d) 480 (Ont. C.A.), at para. 44; R. v. M.M., 2018 ONSC 1022, at para. 143.

[18] In assessing J.T.’s evidence, the court must consider his evidence in the context of all the evidence: R. v. J.H.S., 2008 SCC 30, [2008] 2 S.C.R. 152, at para. 15.

[19] Where there are significant inconsistencies or contradictions within a principal Crown witness’ testimony, or when considered against conflicting evidence in the case, the trier of fact must carefully assess the evidence before concluding that guilt has been established: R. v. S.(W.) (1994), 1994 7208 (ON CA), 18 O.R. (3d) 509 (C.A.), at para. 15, leave to appeal refused, [1994] S.C.C.A. No. 290.

[20] In R. v. M.(A.), 2014 ONCA 769, 123 O.R. (3d) 536, at paras. 12-13, the Court of Appeal noted that one of the most valuable means of assessing witness credibility is to examine the consistency between what the witness said in the witness box and what he or she has said on other occasions, whether or not under oath. Inconsistences may arise not just from a witnesses’ evidence at trial, but from what witnesses may have said differently in other instances. Some inconsistences are minor or deal with more peripheral issues. Some are material. Material inconsistencies, about which an honest witness is unlikely to be mistaken, may demonstrate a carelessness with the truth that should concern the trier of fact.

[21] Reliability is separate from credibility. Credibility focuses on a witness’ veracity. Reliability has more to do with accuracy – the witness’ ability to observe, recall and recount events that are in issue. A witness may be credible but give unreliable evidence. A witness whose evidence is not credible on a certain issue cannot be reliable on that same issue: R. v. C.(H.), 2009 ONCA 56, 244 O.A.C. 288, at para. 41

Videotaped Statements under s. 715.1

[22] J.T. was 12 at the time of the alleged assault. On consent, his out-of-court statement given to the police was admitted for the truth of its contents pursuant to s. 715.1 of the Criminal Code. Provided certain conditions are met, that provision provides for a statutory exception to the rule that hearsay is inadmissible.

[23] It is generally accepted that children will have a better recollection of events shortly after they occur. A videotaped statement made within a reasonable period after the alleged offence will reflect a more accurate recollection of events than will testimony given later at trial. Section 715.1 of the Criminal Code enhances the ability of the court to find the truth by preserving a very recent recollection of the event in question: R. v. C.C.F., 1997 306 (SCC), [1997] 3 S.C.R. 1183, at paras. 17-19.

Motive

[24] There is no evidence that J.T. had any motive to fabricate the allegations against his uncle. However, the absence of evidence of motive to fabricate is not the same as absence of motive to fabricate: R v. L. L., 2009 ONCA 413, at para. 44. The former is an element that may be considered in assessing the credibility of a witness, but it is only one element whereas the latter may be a compelling reason to conclude that the witness is telling the truth: R. v. W.R., 2020 ONCA 813 at para. 18.

Assessing a Child’s Evidence

[25] Adult standards should not be applied when assessing the credibility of a child witness. Children may experience the world differently form adults, and, as such, important details like time and place may be missing from their recollection: R. v. W.(R.) 2 S.C.R. 122 at para. 25. A common sense approach must be used when assessing the testimony of young children rather than the same exacting standard as applied for adults. They may not be able to recount precise details and communicate the when and where of an event with precision, but that does not mean they have misconstrued what happened to them and who did it: R. v. B.(G.). 1990 7308 (SCC), [1990] 2 S.C.R. 30 at para 44.

[26] In R. v. M. (A.), the Court of Appeal considered principles that apply when assessing evidence of a child and noted that “no inflexible rules mandate when a witness’ evidence should be evaluated according to “adult” or “child” standards”: at para. 10. In this case, S.K. was 12 years of age at the time. At trial, he was 16. While he presented as an articulate and well-spoken person, he was nonetheless considered a child at the time of the alleged occurrence, and I have considered that when assessing his evidence.

Review of the Evidence

[27] With this analytical framework, I will now review the evidence.

[28] S.K., his mother, and two sisters were at J.T.’s home for a family gathering the day of the alleged sexual assault which S.K. testified occurred in either November or December 2017. J.T, his wife, adult son, and daughter-in-law, who both lived with J.T., were also present. Their families were close and saw each other often. At some point, S.K.’s mother, sisters, and aunt decided to leave to go to another relative’s home. S.K., J.T. and J.T.’s son did not go with them.

[29] After his family left the home, S.K. was lying on a couch, located in the dining room, watching a movie. He had to turn his head to the right to watch the TV. J.T. was sitting on a chair beside the couch but there is conflicting evidence about the exact location of the chair. There is no dispute that at some point, S.K. picked up a hand-held massager. S.K. and J.T. gave conflicting evidence about what happened next.

[30] SuK, S.K.’s sister, was at her uncle’s home with her family the day of the alleged sexual assault. She testified about leaving the home to visit another family member and then arriving back at her uncle’s home later in the evening. When they arrived home, S.K. was lying on a couch in the dining room.

[31] When they were driving home that evening, S.K, told SuK what happened at their uncle’s home. She testified that S.K. appeared quiet and nervous when he told her. When they got home, SuK told her parents who were both very upset. She said that S.K. was close to his uncle.

[32] Both of S.K.’s parents testified that they were told about what happened by S.K.’s sister when they arrived home but decided not to go to the police or confront J.T. They both testified about being upset by what SuK told them.

[33] I heard evidence about the importance of dignity in the Tamil culture as an explanation about why S.K.’s family decided not to report this incident to the police or confront J.T. about what happened.

[34] In 2019, when S.K. was in grade 8, his teacher, S.H., testified that S.K. did not seem to be acting like himself. She testified that she asked S.K. about this, and he told her that he was not getting along with his classmates. He then told her that it could have something to do with his uncle.

[35] She reported what S.K. told her about his uncle to the principal and then she called the Children’s Aid Society (“CAS”) herself. She assumes that the CAS contacted the police.

S.K.’s Evidence

[36] S.K. was 12 and in grade 7, at the time of the alleged assault. He was 16 and in grade 11 when he testified at trial.

[37] According to S.K., after his mother and sister’s left his uncle’s home, his cousin, J.T.’s son, who was in his 30s, went downstairs to sleep, leaving S.K. and J.T. alone in the dining room area where the TV was located. S.K. was lying on the couch and J.T. was sitting on a chair that was located to the right of S.K. S.K.’s evidence was that the chair was located near his legs, closer to his feet. S.K. picked up and was holding a hand-held vibrating massager that had four legs extending from it. The massager belonged to J.T. His uncle asked him if he wanted a massage. S.K. testified that he felt confused but said okay. His uncle began to massage him with the device, starting first on his head and then moving to his feet and up his leg. As he moved up his leg to his “private area”, J.T. told him to stay calm. J.T. then put his hand inside S.K.’s pants and squeezed his penis more than once, but he could not recall how many times. J.T. told him it was good for him as he squeezed his penis. J.T. then stopped and told S.K. not to tell his parents. J.T. described feeling scared, uncomfortable, and confused. He testified that this lasted a few minutes. S.K. did not say anything.

[38] When J.T. stopped squeezing his penis, S.K. remained on the couch and kept watching TV. His father arrived approximately 30 minutes later followed by his sisters and mother. On the way home in the car, S.K. told his sister that J.T. touched his “private area” and squeezed it. When they arrived home, his sister told his mother and father. They were all very upset but decided not to tell anyone or confront J.T. They continued to see J.T. and his family but less frequently. S.K. was told to avoid J.T.

[39] S.K. also testified that J.T.’s hand was bandaged as a result of recent surgery. At one point his uncle showed him how to re-apply the bandage. S.K. could not recall if it was J.T.’s right or left hand. He agreed during cross-examination that his uncle, who is 71, had limited mobility as he had back problems and could not lift heavy things or bend over.

J.T.’s Evidence

[40] J.T. is the older brother of S.K.’s father. He described a close relationship between the families. He testified that he and S.K. also had a good relationship.

[41] J.T. testified that in the latter part of November 2017, he had surgery on his right hand that had not healed when this incident with his nephew occurred. He did not know exactly when the surgery occurred, but he believed it was two to three weeks earlier. His evidence was that the wound on his hand was painful, and he could not hold or pick up anything with that hand but could use his fingers to hold things like a sandwich or a spoon. He said that S.K. knew of his hand injury and saw J.T. re-bandaging it.

[42] J.T. testified that he had pinched nerves in his back that caused pain in his left leg making it difficult to walk, bend over and stand. He also testified about being hospitalized for mental health issues in late 2015 or early 2016. He was using medication for his mental health condition, which he said was Bi-polar Disorder, at the time of this incident. His evidence was that the medication made him forgetful. On cross-examination, he said he had difficulty remembering things that happened in the morning but could recall things from the past. From this, I infer it was his short-term memory that was impacted.

[43] He testified about the family gathering at his home and then some family members leaving so that he, his son, and S.K. were the only ones in the home. S.K. was lying on the couch in the dining room. To the right of the couch was a TV. J.T. was sitting on a chair to the right of and near the end of the couch. He was not facing the couch; the couch was to his right.

[44] He saw that S.K. had the massager in his hands. S.K. asked him what it was for. In response, J.T. asked S.K. if he could show him how to use it and S.K. said yes. J.T. testified that he had shown both his wife and daughter how to use the massager in the past. He pushed the button on the top of the massager to make it vibrate and then, holding it with his right fingers, moved it up and down on S.K.’s lower leg three or four times. His evidence was that he only went to up S.K.’s knee as that was as far as he could reach from where he was sitting. He denied ever using his hands to massage S.K. He denied touching or squeezing S.K.’s penis. He said that S.K. was looking straight up while he was doing this.

[45] J.T.’s evidence was that he used the massager on the top of S.K.’s leg, meaning the shin bone area. S.K. did not say anything to him. After doing this for a few seconds, S.K. asked J.T. the purpose of the massager and J.T. told him that the vibrations were good if there was pain in your body. He had no other interaction with S.K. before the rest of the family returned home.

Position of the Parties

[46] It is the Crown’s position that the complainant’s evidence of J.T. sexually assaulting him is reliable, credible, and should be believed. The Crown argues that any inconsistencies with S.K.’s evidence are with respect to peripheral matters and are to be expected given his age at the time of the assault.

[47] The defence argues that J.T. was unshaken in his evidence, which was presented in a coherent and consistent manner. Defence counsel says his evidence should be accepted or, at minimum, raise a reasonable doubt.

[48] If I do not accept J.T.’s evidence that he did not sexually assault S.K., or if I am not left with a doubt, defence counsel contends that the totality of evidence presented by the Crown that I do accept is insufficient to establish J.T.’s guilt beyond a reasonable doubt.

Analysis and Findings

J.T.’s Evidence and Credibility Findings

[49] I will first consider J.T.’s evidence. Based on the W.(D.) analysis, if I believe his evidence that he did not sexually assault S.K., or if I do not believe him but am left with a reasonable doubt, I must acquit.

[50] J.T. denies sexually assaulting S.K. That denial was not shaken when he was cross-examined.

[51] I found J.T. testified in a manner that was logical. Despite the Crown’s submission to the contrary, I found that J.T. testified in a straight-forward manner. He was not evasive or defensive. His memory of the events was not impaired.

[52] The Crown argued that J.T. appeared to struggle to answer and would close his eyes as if looking for answers. I do not agree with that assessment. When assessing a witness’ credibility and reliability, while I can consider the way a witness testifies, I cannot overly rely on demeanour: R. v. D.P., 2017 ONCA 263, at para. 26, leave to appeal refused, [2017] S.C.C.A. No. 261. It appeared to me that J.T., who was testifying through an interpreter, was closing his eyes to focus and concentrate. I did not infer from that behaviour that he was trying to be evasive or change the narrative of his evidence as the Crown suggested.

[53] While there were some internal inconsistencies, those inconsistencies did not rise to the level to cause me to disbelieve his evidence in its entirety nor did the inconsistencies impair my assessment of his credibility and reliability as a witness.

[54] I will now address the Crown’s submissions regarding J.T.’s inconsistences.

[55] First, the Crown argued that during cross-examination, J.T. appeared to resile from his evidence in chief that he offered to show S.K. how the massager worked after S.K. asked him what it was for. In cross-examination, he initially agreed that he offered to demonstrate to S.K. how the massager worked. He was then asked if he agreed that he could have just told S.K. how it worked and not show him. His answer was that he did not offer to do it but that S.K. asked him what it was for, and he thought a demonstration was best. He then repeated his answer that S.K. asked him, so he showed S.K. how to use it. He testified that when S.K. asked him what it was for, he thought S.K. wanted a demonstration.

[56] In my view, all of J.T.’s answers at the core were consistent. S.K. asked him what the massager was for, and J.T. thought the best way was to show him. He asked S.K. if he could show him how it worked, and S.K. said yes. This is also consistent with S.K.’s evidence in cross-examination as he testified that when his uncle saw him playing with it, J.T. asked him if he wanted to know how to use it and S.K. answered yes.

[57] J.T. was cross-examined about how many times he moved the massager up and down S.K.s leg. In chief, he testified that he moved the massager up and down S.K.’s legs about three or four times. He was not asked anything further about that. On cross-examination he was asked if he used the massager on both of S.K.’s legs and J.T. testified that he did and he alternated on both legs. He could not specify in cross-examination if it was three to four times in total or three to four times on each leg as he was not counting.

[58] I do not consider this to be a significant inconsistency that would lead me to not accept all of J.T.’s evidence.

[59] During cross-examination, J.T. initially testified that his son went downstairs or somewhere else in the house when the other family members left that day. He agreed that his son was not in the area of the dining room or kitchen when he showed S.K. the massager. In response to a question about whether his son would have a reason to be in one of the bedroom’s located on the main floor of the house, J.T. testified that sometimes during the day his son would sleep in one of the bedrooms on the main floor as it was cold downstairs. The Crown argued that this was an example of how J.T.’s evidence and narrative evolved and argued that J.T. was deliberately trying to suggest that his son may have been on the same floor as J.T. and S.K. making it less likely this sexual assault could have occurred.

[60] I do not agree with the Crown’s position. J.T. was asked a question by the Crown about whether or not his son ever used a bedroom on the main floor. He did not testify that his son was in the bedroom on the main level when he was sitting beside S.K. in the dining room but only that there were times his son did nap in the bedroom upstairs. I did not find his answer to be an attempt to change or evolve his evidence to make his version of events more believable. Rather, he gave a responsive answer to a specific question asked by the Crown.

[61] J.T. was cross-examined about evidence he gave during cross-examination that S.K. was sitting up and not lying down on the couch. During submissions, the Crown indicated that there was an issue with the interpretation and that J.T. did not testify that S.K. was sitting up. Nonetheless, it was initially put to J.T. that his evidence was inconsistent.

[62] This issue with the interpretation only came to light after all the evidence was heard. At that point, defence counsel indicated that J.T. may be seeking a mistrial. As a result, an audit of the interpretation was conducted. After receiving the audit report and consulting another interpreter, the defence chose to proceed with closing submissions rather than seek a mistrial.

[63] Nonetheless, before this came to light, J.T. was cross-examined about an inconsistency that did not exist. He was not shaken by this and simply repeated that S.K. was lying down on the couch and not sitting.

[64] During cross-examination, J.T. was asked if he ever went above S.K.’s knee with the massager. In chief, he testified that he extended his right arm as far as he could with the massager, and it only went to S.K.’s knee. In cross-examination, he was asked if his hand ever went above S.K.’ s knee and he answered that his hand may have gone a little bit past S.K.’s knee, but he did not know. The Crown argues that this is another inconsistency with his evidence. I do not agree. J.T. agreed with a reasonable suggestion put to him by the Crown. Given the passage of time, in my view, it was reasonable for J.T. to concede that his hand may have gone a bit above S.K..’s knee. He did not state that it did or did not but that he did not know.

[65] He was also questioned about the timing of the surgery on his right hand. I do not find that his evidence in cross-examination was inconsistent with his evidence in chief. He testified that the surgery was about two to three weeks earlier, but he could not recall the exact date.

[66] The Crown also argued that J.T.’s evidence about the use of his right hand and whether it was bandaged or not was inconsistent. Both J.T. and S.K. testified that one of J.T.’s hands were bandaged. S.K. could not recall which one, whereas J.T. testified it was his right hand - the same one he used to hold the massager. S.K. testified that J.T. showed him how to put the bandage on his hand. From that, I infer that at some point J.T.’s hand was not bandaged. Thus, when J.T. testified in cross-examination that his hand may or may not have been bandaged at the time, it was not an inconsistency as his hand was, at some point, unbandaged.

[67] J.T. testified that due to the surgery, his hand was painful, and he could only pick up small things like a sandwich or spoon using the fingers on his right hand. He did not agree with the suggestion that given the wound on his hand he could not hold the massager with his right hand as he testified, he held it with his fingers. He agreed with the reasonable suggestion put to him that it would have been painful if he had to push his hand on the massager, but this was not a problem as he was holding it with his fingers at the time. I do not find that evidence to be troubling or illogical.

[68] J.T. was not asked about the size of the massager in chief. When he was cross-examined, he described the top part of the massager being the shape of a ball, cut in half. When asked how big it was, he testified it was smaller than a tennis ball. S.K. was not asked about the size of the massager. Given J.T.’s uncontroverted evidence about its size, his description of holding it with his fingers, with a painful right hand, is not illogical nor do I find that he was trying to distance himself from using his left hand to massage and touch S.K. When he was cross-examined about the specifics of the shape and size of the massager, J.T. was being responsive to specific questions asked of him by the Crown. This was not another example of his evolving narrative as suggested by the Crown. He did not change his evidence to suggest the massager was smaller than he originally described. Rather, he testified about its size when asked during cross-examination.

[69] J.T.’s evidence about using his right hand is logical given his evidence about where he was sitting at the time, and his other physical limitations. S.K. was never asked what hand J.T. used to massage him or to squeeze his penis. He was not asked specifically about where S.K. was facing when he was sitting in the chair beside the couch. J.T.’s uncontroverted evidence is that when he was sitting on the chair, he was sitting to the right of S.K.; he was not facing S.K. He specifically denied, when asked during cross-examination, that he was sitting with his back to the TV. If he was, then he would have been sitting perpendicular to where S.K. was lying making his left hand closer to S.K.’s legs and groin. That would make the use of his left hand more logical.

[70] J.T. testified S.K. was to his right. S.K. was never asked if J.T.’s back was to the TV. J.T.’s evidence is therefore not contradicted. Based on his evidence, which I accept, his right hand was closer to S.K.’s legs which makes it logical that he would have used that hand to hold the massager and rub it on S.K.’s legs.

[71] Given J.T.’s other physical limitations with standing, bending, and walking, it is also logically consistent that J.T. would have used his right hand to hold the massager as his right hand was closer to S.K. and that would involve less movement of his body.

[72] S.K testified that J.T. remained seated as he massaged and touched him. He also testified that J.T first used the massager on S.K’s head. It is not clear to me how J.T could have reached S.K’s head from a seated position given S.K.’s evidence about where J,T. was seated.

[73] J.T.’s denial of sexually assaulting S.K. was unshaken in cross-examination. I found his evidence to be reliable and credible. He did not display a selective memory for facts supporting his defence. I find that he did not touch S.K.’s penis but that he only rubbed the massager on S.K.’s legs, below his knees.

[74] While that would end the W.(D.) analysis, I will go further and review the evidence presented by the Crown to assess whether the evidence that I do accept would be sufficient to establish the guilt of J.T. beyond a reasonable doubt.

S.K.’s Evidence and Credibility Findings

[75] Corroboration of S.K.’s evidence that he was sexually assaulted is not necessary to accept his evidence: R. v. A.G., 2000 SCC 17, [2000] 1 S.C.R. 439, at para. 30. The Crown argues that I should, however, consider as corroboration, the evidence of S.K.’s sister and parents who testified about S.K. disclosing to them what happened when they arrived home. I do not agree. The evidence of S.K.’s disclosure to his family and then to his teacher is relevant with respect to the narrative of why this incident was not reported to the police sooner and why it was that S.K. did not give his police statement until approximately 1.5 years later.

[76] When victims report being sexually assaulted is not a significant factor in assessing their credibility or reliability. It is now understood that there is no universal or typical way victims of sexual assault react after being assaulted or when, if ever, they report the assault. Some victims may conceal their emotions and others may not. Some may immediately report the assault and others may delay for months or years. Thus, a victim who shows no emotion or does not report is not less credible than someone who reacts with more emotion and immediately reports or discloses the sexual assault.

[77] S.K.’s mother testified that she did not observe any change in her son’s behaviour in the home after he disclosed the assault. That is not evidence that I consider relevant in assessing S.K.’s credibility or reliability as there is no universal basis on how a victim of sexual assault will behave.

[78] Furthermore, what S.K. told his family is an out-of-court prior consistent statement. Prior consistent statements are not admissible for their truth unless there is a suggestion of a recent fabrication. That is not the case regarding S.K.’s disclosure. Just because S.K. said something in the past consistent with his testimony at trial does not make his evidence more credible or reliable.

[79] SuK’s evidence of her observations of S.K.’s behaviour or demeanour in the car ride home, namely that he was quiet and nervous, is evidence I can consider. It is consistent with S.K.’s evidence that he felt nervous, scared, and confused after his uncle touched him.

[80] S.K.’s evidence about what occurred was not challenged on cross-examination. The only inconsistency in his evidence was whether he looked down and saw J.T. touch his penis or whether he watched TV the entire time. This inconsistency does not lead me to conclude that he was not a credible or reliable witness.

[81] S.K. testified in a straight-forward manner. He displayed no animus towards J.T. There was no evidence of any possible motive to fabricate what occurred. He was not defensive, evasive, or argumentative. His evidence was consistent. I have no reason not to accept his evidence.

Conclusion

[82] Having found both J.T. and S.K. to be credible and reliable witnesses, based on the W.(D.) analysis and considering J.T.s evidence in the context of all of the evidence, I must acquit J.T. on both counts as the Crown has not proven, beyond a reasonable doubt, that he sexually assaulted S.K. or touched him, a person under the age of 16 years, for a sexual purpose.

L. Shaw J.

Released: November 9, 2022

COURT FILE NO.: CR-20-535-00

DATE: 2022 11 09

ONTARIO

SUPERIOR COURT OF JUSTICE

HIS MAJESTY THE KING

– and –

J.T.

Reasons for judgment

L. Shaw J.

Released: November 9, 2022