Court File and Parties
COURT FILE NO.: CR- 22-30000132 DATE: 20230606 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING – and – S. S.
Counsel: B. Olesko, for the Crown T. Khan and R. Tariq, for S. S.
HEARD: March 27-31, April 4, 2023
Reasons for Judgement
P.J. Monahan J.
1S.S. was tried before me, sitting without a jury, on one count of sexual assault and one count of inviting a person under the age of 14 to touch him for a sexual purpose. These offenses are alleged to have been committed between January 1, 2003 and January 1, 2008, in relation to a female complainant (the “Complainant”) who was between two and seven years old at the time.
2S.S. is the Complainant’s relative. Along with his parents and his sister, N.S., S.S. immigrated to Canada from Pakistan in December 2002 when he was 22 years old. After their arrival in Canada, S.S. and the other immigrating family members moved into the Scarborough townhouse where A.S., S.S.’s brother and the Complainant’s father, resided with his family, including the Complainant.
3S.S. lived in the Scarborough townhouse with A.S. and his family from December 2002 until October 2004, when he returned to Pakistan for a family wedding. S.S. returned to Canada in 2005 but began living in Alberta. It is alleged that during the time when he was living with A.S. and his family in the Scarborough townhouse, S.S. sexually assaulted the Complainant on a number of different occasions. The Crown further alleges that S.S. sexually assaulted the Complainant at other times and locations between 2005 and 2008.
4The sole issue at trial was whether the alleged incidents took place. S.S. argued that he had no opportunity to commit the offenses alleged by the Crown. He further argued that the Complainant, either on her own or at the urging of her parents, had concocted these allegations because S.S. had been seeking the return of some money he had loaned to A.S.
5The Complainant denied having fabricated her allegations, either on her own or at her parents’ urging. Although the Complainant was unable to remember many of the surrounding circumstances, she testified that she had a vivid memory of the actual incidents of sexual touching. The Complainant further said that she was unaware of the details of any financial dealings between her father and S.S.. She denied that these financial dealings had anything to do with her allegations against S.S..
6For the reasons that follow, I reject S.S.’s evidence and find that it does not leave me with a reasonable doubt as to his guilt of the offenses charged. I accept the evidence of the Complainant, as well as that of her parents, each of whom testified in a credible and consistent manner. I specifically reject the suggestion that the Complainant fabricated these allegations, either on her own or at the urging of her parents. On this basis, I find that the Crown has proven beyond a reasonable doubt that S.S. sexually touched the Complainant and invited her to sexually touch him on at least three separate occasions in the Scarborough townhouse. 1 I therefore find S.S. guilty of both counts in the indictment.
The Crown’s Case
7There were three witnesses for the Crown: (i) the Complainant; (ii) the Complainant’s father, A.S.; and (iii) the Complainant’s mother, A.A.
a. The Complainant’s Evidence in Chief
8The Complainant was born on September 4, 1999. She testified that up until the time she went to Junior Kindergarten in late 2004, she lived with her parents, A.S. and A.A., as well as her younger sister in the family’s townhouse in Scarborough.
9Sometime after moving into the townhouse, her father sponsored his parents, along with his sister, N.S., and his brother, S.S., to immigrate to Canada from Pakistan. After their arrival in Canada, the immigrating family members moved into the Scarborough townhouse with the Complainant’s family. 2
10There were three bedrooms on the upstairs floor of the townhouse. The Complainant said that prior to the arrival of her father’s family members, her parents slept in the master bedroom, the Complainant and her sister slept in the second bedroom, and the third bedroom was used as a computer room. The Complainant said that once her father’s family members moved in, she and her sister began sleeping in their parents’ bedroom with their parents, and their aunt, N.S., began occupying the sisters’ former bedroom. The Complainant also said that her paternal grandparents 3 began occupying the third upstairs bedroom that had formerly been used as a computer room, and that the other family members, A.S.’s two brothers including S.S., slept in the basement.
11The Complainant said that her parents both worked full-time from Monday to Friday. She said that while her parents were away at work, she and her sister were cared for either by their paternal grandparents in the Scarborough townhouse, or else her parents would take her sister and her to their maternal grandmother’s home in Markham.
12The Complainant also said that on days when she stayed with her paternal grandparents, they frequently went to a nearby mosque for daily prayers. While they were gone, she and her sister were left in the care of S.S., whom she said was generally home during the day.
13The Complainant testified that one day, while her parents were away at work and her paternal grandparents were not home, S.S. took her down into the basement. The basement was not finished but there was a bed in the corner of the room, right underneath a window. The Complainant recalls that it was a black frame bed, and the sheets had a red plaid pattern on them. There was also a desk with a computer near the bed.
14The Complainant said that S.S. laid down on the bed, unbuttoned his pants, and took out his penis. He also pulled down her pants and pushed her underwear to one side. He began stroking his penis and told her to begin stroking it, while he touched her vagina with his fingers. She did as she was instructed and began stroking his penis back and forth with her hand. The Complainant said that S.S. began moaning. He then told her to put her mouth on his penis, and she put the tip of his penis in her mouth. He reached around behind her head and began pushing her head towards his penis, which forced more of his penis into her mouth.
15The Complainant testified that at this point, the door leading down to the basement opened, and her aunt N.S. began coming downstairs. The Complainant said that S.S. immediately pulled his pants up, as did she. S.S. got up from the bed, took her over to the nearby desk and sat on the chair at the desk, while the Complainant stood beside him. The Complainant said that S.S. gave her a piece of paper and told her to draw what she had seen. She said that she drew a stick figure. S.S. asked her to draw his penis on the stick figure, which she did.
16The Complainant does not think that her aunt N.S. saw her or S.S. in the basement. Her aunt did not come over to them, nor did she speak to S.S. before she went back upstairs. The Complainant has no further recollection regarding this particular incident.
17The Complainant also testified about a second incident of sexual touching which she says occurred in the living room of the townhouse. The Complainant said that there were couches with a teal blue coloured pattern in the living room and that the cushions from the couches were on the living room floor. The Complainant said she was alone in the living room with S.S..
18As they sat on these cushions, S.S. turned on the television and she saw pictures of naked people on the screen. The Complainant said that S.S. removed his pants and underwear and began stroking his penis. He instructed her to stroke his penis and began touching her chest and vagina. She touched his penis with her hand and was stroking it back and forth.
19At this point, her paternal grandfather came into the house through the front door. S.S. immediately stopped touching her and pulled his pants and underwear back on. The Complainant said you could not see into the living room from the front door. She also said that her paternal grandfather did not come into the living room and walked straight upstairs to his bedroom on the second floor.
20The Complainant also testified that S.S. had touched her sexually on a number of other occasions in her parents’ bedroom on the second floor of the townhouse. The Complainant said that S.S. took her upstairs because he told her he wanted to teach her the Qur’an. S.S. would put a book on a pillow on the floor. The Complainant said she did not want to be there. However, she said that if she refused to look at the book, S.S. would slap her on the head.
21On one occasion when she and S.S. were in her parents’ bedroom, he told her to go to the washroom and clean her vagina. She went into the bathroom and washed herself while sitting on the toilet. After she came back, S.S. began touching her chest area as well as her vagina. He reached underneath her top to touch her chest and touched her vagina by pulling down her pants and pushing her underwear to the side.
22The Complainant said that when she was in Junior Kindergarten, her family sold the townhouse in Scarborough and moved into her maternal grandmother’s house in Markham for a couple of years. By this time, S.S., her aunt N.S. and her paternal grandparents had moved away.
23The Complainant also testified about a further incident of sexual touching by S.S. which she said occurred during a visit to Alberta when she was seven or eight years old. The Complainant said that her father took her on an airplane to Alberta to visit one of his brothers and the brother’s family, who lived in an apartment there. This was the first time she had ever been on an airplane. She remembers celebrating either her seventh or her eighth birthday during this visit. She also remembers that S.S. was at the apartment during their visit.
24The Complainant said that one time during this visit, S.S. was sitting at a desk in a bedroom of the apartment. He told the Complainant that he wanted to show her a video. She stood beside him and, as she watched the video, S.S. was touching her vagina. That is all she remembers about this particular incident.
25The Complainant also testified about an incident involving S.S. that she said occurred when they were living in a house in Stouffville. She is not sure whether this incident took place before or after the trip to Alberta. At this time, S.S. was once again living with them. He asked her and her sister to come into his room to watch a video on his laptop. While he was playing the video, the Complainant and her sister sat on either side of S.S., covered by a blanket. The Complainant says that S.S. reached under the blanket and touched her vagina over her clothing. The Complainant said that she told S.S. she wanted to go downstairs, and she and her sister left the room.
26The Complainant said that she never told anyone about these incidents of sexual touching when they were occurring. When asked to explain why not, she said that at the time she had a limited understanding of what had happened to her. She also said that in her culture there is a taboo over reporting allegations of sexual abuse. A girl who reported such abuse would be regarded as tainted and as having ruined her own reputation as well as that of the family.
27The Complainant said that as she was growing up, she had vivid memories of these incidents involving S.S., which would frequently pop up in her head. By the time she was in high school, she began to understand what sexual assault was and was better able to process what had happened. When she was in grade 10 or grade 11, she told her best friend about the incidents of sexual touching involving S.S.. Her friend encouraged her to tell her parents. Eventually in 2015 or 2016 she told her mother about these incidents, who then told her father.
b. The Complainant’s Evidence on Cross-Examination
28On cross-examination, the Complainant acknowledged that she has a limited recollection of her daily routines while she was living in the townhouse in Scarborough. She does recall that during the week while her parents were working, she spent two or three days at her maternal grandmother’s house in Markham, and on the other days she remained at home with her paternal grandparents.
29On the days when she was going to her maternal grandmother’s house, her parents would give her and her sister breakfast at home before driving them to Markham and dropping them off. She does not know how long it took to drive to her maternal grandmother’s house.
30On days when she and her sister were staying home, she did not recall who would be in the house when she woke up, nor whether her paternal grandparents would prepare food for her. She also does not remember spending a lot of time with her paternal grandparents. The Complainant said that her paternal grandparents would leave during the day to go to the mosque, but she does not know for how long, as she was too young to be able to tell time.
31The Complainant said that after her parents sold the townhouse in Scarborough, they moved in with her maternal grandmother’s family in Markham, while a new house was being built for them in Stouffville. The Complainant started school while she was living with her maternal grandmother in Markham. She is not sure how long they stayed there, but she said that they moved into the house in Stouffville when she was in grade two and lived there until she was in grade eight. It was a big house with four bedrooms upstairs, and she and her sister each had their own bedroom, as did a younger brother who was born in 2003 or 2004.
32The Complainant was questioned about the incident of sexual touching that she said occurred in Stouffville. She remembers that her parents were home at the time, but they were elsewhere in the house. The Complainant said that she and her sister were sitting on either side of S.S.. S.S. put his laptop on his lap and was playing a video. The Complainant was on S.S.’s left side, closer to the bedroom door. S.S. used his left hand to reach under a blanket that was covering them and touched her vagina over her clothing.
33The Complainant was questioned about the incident of sexual touching which she said occurred in the basement of the townhouse in Scarborough. She said the only time she went down into the basement was with S.S. She said she was afraid of the basement since it was dark and cold. The basement floor was concrete. However, there was a bed and a desk under a window, and it was possible for someone to sleep there.
34The Complainant said that when her aunt N.S. came downstairs and interrupted S.S., N.S. came all the way down to the bottom of the stairs. The Complainant said that she did not know what N.S. did when she came down the stairs into the basement. The Complainant said A. might have been coming downstairs to get some cleaning products. She does not know where the cleaning products were kept, although she believes they were near the bottom of the stairs.
35The Complainant further acknowledged that she also does not know what city her and her father visited in Alberta during their visit there. She cannot remember how long the visit to Alberta lasted. She also does not know how many people were staying in the apartment while she was there, nor whether she had her own bedroom. However, she remembers that S.S. was there.
36The Complainant was asked whether she was aware that when she was seven or eight years old, there was another occasion on which her father had gone on his own to visit S.S. in Alberta, in order to ask him for money. She said that at the time she did not know why her father went to Alberta. She later learned from her parents that they were experiencing financial difficulties, and she understood that when she was in grade eight they were forced to sell their home in Stouffville on account of these difficulties. However, the Complainant said that she did not know whether her father had asked S.S. for money or whether S.S. had given money to her father. Nor is she aware of any other details of any financial dealings between S.S. and her father, including whether S.S. ever asked her father to repay money that he might have loaned.
37The Complainant was asked about the incidents of sexual touching that she said occurred in her parents’ bedroom in the townhouse in Scarborough. She stated that S.S. would take her to this bedroom in order to teach her how to read the Qur’an, and that she also learned the Arabic alphabet from him. She was asked why he took her to the bedroom for this instruction. She said she was not sure, but she believes he wanted to take her to a more private area of the house. The Complainant said that S.S. would close the bedroom door, although she does not believe that the door was locked. She does not know what time of day these incidents occurred or who else was home at the time.
38The Complainant was questioned about the incident of sexual touching that she said took place in Alberta. The Complainant said she was not sure why they went to Alberta, other than to visit one of her father’s brothers and his family. She is not sure how large the apartment they stayed at was, but she thinks it had two bedrooms. She does not remember if her paternal grandparents were there at the time. The desk where S.S. was sitting was facing a wall in one of the bedrooms. She does not know if her father was in the apartment at the time. The Complainant said that while she stood next to S.S. looking at the computer on the desk, he was touching her vagina.
39The Complainant was also asked about the incident that she said occurred in the living room of the townhouse in Scarborough. The Complainant said there were two couches in the living room and that some cushions from one of the couches were on the floor. The Complainant said she does not know how S.S. put the images of naked people on the television. S.S. was wearing blue jeans, but he had taken his pants and underwear off. When she and S.S. heard the front door opening, S.S. quickly pulled his pants back on.
40The Complainant remembers that on the right side of the front hall in the townhouse there was a washroom, and stairs leading up to the second floor. The living room was on the left-hand side of the front hall. The Complainant said that when her paternal grandfather came in through the front door, he went straight up the stairs and did not come into the living room.
41The Complainant was asked what she had told her mother about the incidents of sexual touching involving S.S.. She said that she told her mother that S.S. had touched her inappropriately but did not go into any details, nor did her mother ask her to provide any such details. The Complainant denied having been influenced by her mother to fabricate her allegations against S.S.. She said that the incidents she described had in fact taken place.
42The Complainant said that her mother had described to her conflicts that she had had with the paternal grandparents while they had stayed with the family in the Scarborough townhouse. Her mother told her that the paternal grandparents had never paid rent, had expected her mother to cook and clean the house, had ruined her mother’s pots and pans, and did not want to take care of the Complainant and her sister.
43The Complainant also said that her mother had told her that her father had borrowed money from S.S.. The Complainant thinks this was around the time when her father purchased a camera business, when they were living in Stouffville. However, she said that she did not know what the amount was, or whether S.S. had asked for his money back. The Complainant said she did not know whether her parents had been in contact with S.S. in 2018 or 2019 about this money.
c. Evidence of A.S. (the Complainant’s Father) on Examination
44A.S testified that he is 52 years old and immigrated to Canada in 1995. In 2000 or 2001, he purchased a townhouse in Scarborough.
45Shortly after he purchased the townhouse, A.S. sponsored his parents, as well as his brother, S.S., and his sister N.S., as immigrants to Canada from Pakistan. When they arrived in Canada in late 2002, his family members moved in with him and his wife and daughters in their Scarborough townhouse. A.S. also said that another of his brothers, K.S., had previously come to Canada and was also living with them at that time.
46A.S. said that once his family members arrived, his two daughters moved out of their bedroom on the second floor and began sleeping with him and his wife in the master bedroom. His sister N.S. took over the daughters’ bedroom, while his father slept in the third bedroom that had previously been used as a computer room. A.S. relocated the computer and a small desk that had been in the upstairs computer room turned bedroom down to the basement.
47A.S. said his mother had trouble getting up the stairs and also liked to sleep on a hard surface, and so she slept in the living room. His brothers, S.S. and K.S., slept in the basement on two beds that he had put there. A.S. said that although the basement was not finished, there was a furnace downstairs which provided heat, and the walls were insulated. A.S. also said that because the basement was dark, he had installed some white tube lights so as to provide sufficient lighting.
48A.S. said that both he and his wife worked full-time outside the home. Prior to the arrival of his family members from Pakistan, his daughters were cared for during the week by their maternal grandmother in Markham. However, after his parents moved in, his daughters would stay with his parents at the townhouse for two days of the week and go to the maternal grandmother’s house on the other three days.
49A.S. said that his sister N.S. got a job at Tim Horton’s shortly after arriving in Canada, and she would leave for work early in the morning. His brother S.S. got a job teaching the Qur’an to children at a nearby mosque. However, S.S. told him that within a few months he was fired because he had hit one of the children in the class. After that, S.S. would be home during the day and would go out between 5 and 7 p.m. to teach the Qur’an to children at private homes.
50A.S. said that his brother K.S. had trouble getting work in Toronto and moved to Alberta within 12 to 18 months after arriving in Canada. The other members of his family who had been living with them in the townhouse in Scarborough followed K.S. to Alberta in late 2004. A.S. then sold the Scarborough townhouse and moved in with his wife’s mother and her family in Markham, while waiting for a house that was being constructed for his family in Stouffville to be completed. A.S. and his family moved into their new home in Stouffville sometime in 2005 or 2006.
51A.S. said that in September 2006, he and his family went to Alberta to visit his brother K.S., who was living in a three-bedroom apartment in Red Deer. He and his older daughter (i.e., the Complainant) went first, and his wife and their other two children joined them a few days later. They stayed for about a week and visited Banff and Jasper during that time. While in Red Deer, his parents, his brother S.S., and his sister N.S. were also staying at K.S.’s apartment.
52A.S. said that in 2010, S.S. and his parents moved back to Toronto and lived with him and his family in their house in Stouffville for about a year. In 2011, S.S. bought a house in Brampton and moved there with the paternal grandparents. Later, S.S. and the paternal grandparents moved back to Alberta.
53In 2018, the paternal grandparents moved back to Toronto and moved back in with A.S. and his family for about a year. However, S.S. continued living in Alberta.
54A.S. said that he first learned from his wife in 2015 or 2016 about the alleged incidents involving S.S. and the Complainant. A.S. said that at that time he convinced the Complainant not to take any further action because of the conflict it would cause within his family. A.S. said that because he wanted to keep the matter quiet, there was friction between him and the Complainant, who was upset with him for not pursuing the matter.
55A.S. said that after his parents moved back in with them in 2018, there was a lot of conflict in the home. Eventually, his wife disclosed the allegations regarding the incidents of sexual touching between S.S. and the Complainant to A.S.’s parents. Neither of his parents believed the allegations and called the Complainant a liar. Within a few weeks, his parents moved out of the house.
56A.S. was very upset at his parents’ reaction. He changed his mind about whether to report these incidents and agreed that the Complainant should file a complaint with the police.
d. A.S.’s Evidence on Cross-Examination
57On cross-examination, A.S. agreed that there was conflict between his wife and his mother shortly after his parents moved into the townhouse in Scarborough. His wife complained to him about the fact that his mother was rude to her and did not want to help take care of their daughters. His wife further complained about the fact that his mother did not want to change diapers and generally would not help with chores around the house. His wife was also concerned over the fact that his other family members did not contribute to groceries for the household.
58A.S. agreed with many of the criticisms raised by his wife. He himself recognized that his mother did not want to take care of their daughters and noticed that his younger daughter developed a diaper rash because her diaper was not being changed regularly while she was in the care of his mother. A.S. suggested to his wife that it might be better if their daughters were cared for throughout the work week by the maternal grandmother in Markham, but the maternal grandmother had too many other responsibilities at that time. He decided not to take these concerns up with his family in the hopes that the conflicts would diminish over time.
59It was suggested to A.S. that his brothers S.S. and K.S. slept in the living room with their mother rather than in the basement. A.S. agreed that his mother slept in the living room but said that S.S. and K.S. slept in the basement on beds that he had purchased for them. A.S. said that there was sufficient room in the basement for his brothers to sleep. Although there were some suitcases in the basement, there were not a lot of other items down there because they had only recently moved into the townhouse.
60A.S. was asked how he knew what his brother S.S. did during the day if A.S. was out of the house at work. A.S. said that he knew that S.S. was home during the day because S.S. had told him that he was fired from his job at the mosque after about six months and was no longer working during the day. After losing his job at the mosque, S.S. would go out in the evenings between 5 and 7 p.m. to teach the Qur’an to children in their homes.
61A.S. said that in September 2006 he and his family went out to Red Deer, Alberta, to visit his brother K.S., as well as his parents, who were living with K.S. at the time. K.S. and his wife had a two or three-bedroom apartment, and A.S. and his family stayed with them during their weeklong visit. Although S.S. was living in Lethbridge, Alberta at the time, he came to Red Deer during their visit. It was suggested to A.S that S.S. did not in fact come to Red Deer while he and his family were there. A.S insisted that S.S. had come to Red Deer that week and offered to produce a photograph that was taken at the time showing that S.S. was present (A.S. was later recalled by the Crown and this photograph was admitted as an exhibit).
62A.S. agreed that in 2006 he obtained a real estate license, and he began working as a realtor. He said that he was working with a well-known agent who would direct business his way and that he had some success in the real estate business between 2006 and 2008.
63In 2008 A.S. purchased a Japan Camera store. He denied that he had borrowed any money from his brother S.S. in order to purchase Japan Camera. However, A.S. agreed that sometime after 2008 he began encountering financial difficulties with the Japan Camera business and he borrowed money from S.S. in an effort to keep the business afloat. S.S. would provide these loans through a credit card that he used in connection with a gas station business that he was managing in Alberta. A.S. agreed that he may also have charged his license fees as a real estate agent to S.S.’s credit card in 2008 or 2009, but believed that the amounts charged for that purpose would have been less than $2000.
64Despite the financial support that he received from S.S., A.S. said that by 2010 the Japan Camera business was no longer sustainable and A.S. closed it. A.S. also had to sell the family home in Stouffville in 2012 as a result of his financial difficulties.
65A.S. agreed that he had acted as a real estate agent on S.S.’s purchase of a house in Brampton in 2010 and had received a commission of 2.5% on the transaction. However, A.S. said that this commission had been agreed to by S.S.. A.S. denied having written a fraudulent cheque for $17,000 on S.S.’s line of credit in 2011.
66A.S. agreed that in 2013, he moved to Alberta and lived with his brother S.S. for a year. He further agreed that S.S. helped him get a job with Petro Canada in Alberta that year.
67A.S. agreed that sometime in 2014 or 2015, after S.S. had gotten married, S.S. asked A.S. to return the money that he had loaned to him. A.S. was unable to repay the loan at that time but promised to do so when he was more financially stable. A.S. denied that S.S. had ever threatened to sue him to get the money back.
e. Evidence in Chief of A.A. (the Complainant’s Mother)
68A.A. testified that she is 51 years old and that she and A.S. have four children, with the Complainant being the eldest. When her in-laws (i.e., A.S.’s parents) arrived from Pakistan in late 2002, only the two older daughters had been born.
69A.A. said that prior to the arrival of the paternal grandparents, she and her husband both worked outside the home, and her mother provided childcare for the two daughters at her home in Markham. However, her mother said that she needed a break from these childcare responsibilities. Thus, after the paternal grandparents moved in with the family in their townhouse in Scarborough, it was agreed that their two daughters would stay at home in the care of the paternal grandparents two days a week. On the other three days, the daughters would continue to go to her mother’s home in Markham.
70A.A. said that on days when their two daughters were taken to her mother’s home in Markham, they would leave the house at about 7 a.m. However, A.A. also said that the paternal grandparents would attend morning prayers at a nearby mosque and she and her husband would sometimes have to wait until the paternal grandparents had returned from the mosque before leaving for her mother’s house in Markham.
71A.A. said that she had a lot of conflict with her mother-in-law while the paternal grandparents were living with them at the townhouse in Scarborough. A.A. said that she was expected to cook for the entire family and clean the house, even though she was working full-time outside the home. A.A. also said that none of A.S.’s family members contributed to expenses such as groceries, even though some of them were earning income. A.A. was also concerned over the fact that her younger daughter developed a diaper rash because her paternal grandmother did not change her diaper during the days when the younger daughter was in the paternal grandmother’s care.
72A.A. was asked when she first learned about the allegations that S.S. had sexually touched the Complainant. A.A. said that the Complainant told her about the incidents around 2016. However, the Complainant did not provide her with any details regarding these incidents. A.A. told A.S. about the incidents but did not disclose them to anyone else at that time.
73A.A. was asked whether there was any discussion in 2016 about the possibility of reporting these allegations to the police. A.A. said that she was willing to support the Complainant in going to the police but that A.S. was opposed to going to the police because of the conflict that it would cause in the family.
74In 2019, when the paternal grandparents moved back in with them in Markham, the same kinds of conflicts that they had experienced earlier resurfaced once again. A.A. said that she and her husband decided to tell the paternal grandparents about the incidents of sexual touching involving the Complainant and S.S.. When they did so, the paternal grandparents said that the Complainant was a liar.
75A few months later, the Complainant reported the incidents to the police. A.A. does not know the details of what the Complainant told the police. The paternal grandparents then decided to move back to Alberta and live with their daughter N.S. in Edmonton.
f. A.A.’s Evidence on Cross-Examination
76On cross-examination, A.A. was asked about the conflicts that she experienced with A.S.’s family while they were living in their townhouse in Scarborough. A.A. agreed that she had complained frequently to her husband A.S. about the fact that she was expected to do all the chores for the entire family, including cooking and cleaning. A.A. also complained about the fact that none of A.S.’s family members contributed financially to household expenses, including groceries. A.A. thought it was only fair that if members of A.S.’s family were working and earning incomes they should contribute to these expenses.
77A.A. was asked whether A.S. ever took up any of these complaints with his family. A.A. said that A.S. told her that he could not say anything to his family because if he did, he would be criticized for being a “wife slave.” A.S. also told A.A. that if he raised these concerns with his family, it would only make things worse for A.A.
78A.A. said that although the basement in the townhouse in Scarborough was not finished, there were mattresses and lights that made it possible to sleep there. A.A. agreed that there was no washroom in the basement.
79A.A. said that as far she knew the only work that S.S. had at that time he lived with the family in the Scarborough townhouse was teaching in the evenings between 5 and 7 p.m. A.A. said that whenever she was home, S.S. was sitting in the living room watching TV.
80A.A. maintained that both of the paternal grandparents would regularly go to a nearby mosque for daily prayers.
81A.A. agreed that sometime in 2006 or 2007, her family went out to Alberta to visit some of A.S.’s family members for about a week. They stayed with A.S.’s brother K.S. in his apartment. A.A. said that while they were there, S.S. was present.
82A.A. was asked whether she was aware of the fact that her husband A.S. had borrowed money from S.S.. A.A. said that A.S. deals with finances for the family, and all she knew was that S.S. had paid for the installation of hardwood flooring at their house in Stouffville. However, A.A. said that she was unaware of any other financial dealings between A.S and S.S.. A.A. also did not know if S.S. had asked A.S. to return money that he had loaned him. A.A. said that she had no knowledge of any such discussions.
83A.A. was shown parts of a video statement that she had made to police in 2022 regarding these allegations. A.A. was asked whether she appeared lighthearted in the video.
84A.A. said that counsel had shown her only brief parts of the video. In other parts of her statement, she had been very emotional and was crying.
85A.A. said that she has blamed herself for these incidents, due to the fact that she was working outside the home and left the Complainant in a situation which led to these incidents of sexual touching. A.A. said that when she first learned of these incidents, she could not look at herself in the mirror.
86It was suggested to A.A. that she had concocted these allegations of sexual touching in order to prevent S.S. from recovering the money that he had loaned to A.S. A.A. denied that this was so. A.A. said that no mother would want to put her daughter through the experience of a case like this for money. A.A. said that after the Complainant reported her allegations to the police, one of A.S.’s brothers threatened to sue the Complainant. These threats caused the Complainant to have nightmares, and she would wake up at night saying that she was not lying. A.A. said that no child should be put through this kind of experience.
87A.A. also said that after the Complainant reported these allegations to the police, she and her husband began receiving numerous calls each day from A.S.’s family asking them to drop the case. A.A. said that A.S.’s family even offered to pay money if the Complainant would drop the case. A.A. said that they were being harassed to such an extent that she called the York Region Police to report what was going on. The police said that they would speak to A.S.’s family and tell them to stop making these calls.
88A.A. also said that S.S. called her husband and said, “please forgive me” and that S.S. asked A.S. to “be the bigger person” and not pursue the matter. A.A. said that she heard this conversation and recorded it on her phone.
89She said that she supports her daughter because she wants to see justice done. A.A. also said that she wants to ensure that S.S. cannot do the same thing to any other victims.
The Defence’s Case
a. S.S.’s Evidence in Chief
90S.S. was born in June 1980 in Pakistan. He testified that he immigrated to Canada on December 17, 2002 along with his parents and his sister N.S., and that they all lived with his younger brother, A.S., and A.S.’s family in Toronto. His brother, K.S., was also living with A.S.
91S.S. said that within a month of arriving in Canada he was hired to teach the Qur’an to children at a nearby mosque. He would leave the townhouse each morning at 7 a.m. and teach until 1:30 p.m., when he would return home for lunch. After taking half an hour for lunch he would return for the afternoon session at the mosque. When he was finished teaching at the mosque at about 5:00 p.m., he would come back home to have tea. He would then travel by bus to an apartment to teach children the Qur’an in the evening. After finishing his evening teaching, he would leave at 8:45 p.m. to return home.
92On weekends, S.S. said that he would teach the Qur’an privately to children in their homes, leaving A.S.’s house at around 11 a.m. and returning home at 4:30 or 5 p.m. Everyone would be at home on weekends including his parents, his sister N.S., and K.S. His parents never left the house on the weekends. Sometimes A.S. and his family would be there as well.
93S.S. said that he doesn’t think his mother ever visited the mosque. She was always home whenever he came home.
94S.S. went back to Pakistan in October 2004 for a family wedding, and returned to Canada in May 2005, at which time he went to live with his brother K.S. in Calgary.
95S.S. said that in 2006 he was living in Lethbridge, Alberta on his own and was a student at the university there. He doesn’t recall whether A.S. and his family came to Alberta to visit K.S. in 2006.
96S.S. said that in 2008 or 2009 A.S. came to visit him in Fort McLeod, Alberta, where S.S. had obtained a job managing a gas station. A.S. was having financial difficulties and he asked S.S. if he would loan him some money. S.S. agreed to loan A.S. $10,000. A.S. promised to pay it back when he could afford to.
97S.S. said that in 2010 he decided to return to Ontario and buy a gas station. A.S. had suggested that S.S. needed to buy a house so that he would have an asset that would assist him in obtaining a loan for the purchase of the gas station. S.S. looked at pictures online and discussed the arrangements for the house purchase with A.S. S.S. came back to Ontario and lived with A.S. in his house in Stouffville for four or five days. He then bought a house in Brampton and moved there.
98S.S.’s parents also moved back from Alberta at that time and lived with him in Brampton. However, after a while they moved back to Alberta. S.S. then rented out the upstairs of his house and moved into the basement.
99S.S. lived in the house in Brampton for seven or eight months. He said he noticed during that time on one of his line of credit statements that a cheque for $17,000 had gone missing. S.S. asked A.S. about this cheque and A.S. admitted that he had forged S.S.’s signature and taken the money without telling S.S.. A.S. said that he had used the money for some renovations on his house in Stouffville. A.S. had also use one of S.S.’s credit cards to pay for his real estate license fees. S.S. said that he has never received back any of the money that he lent to A.S., which he said totaled $32,000.
100S.S. was married in Pakistan in 2012 and his wife joined him in Canada in 2015. She had been trained as a doctor in Pakistan and wanted to obtain the necessary qualifications to practice medicine in Canada, but there were a lot of expenses associated with obtaining these qualifications. Once his wife arrived in Canada, S.S. asked A.S. to repay the money that S.S. had given him. A.S. said he would pay the money whenever he had it.
101Eventually, A.S. started avoiding S.S.’s phone calls. S.S. told A.S. that since the money had not been repaid, S.S.’s last option was to sue A.S. for the money. S.S. told A.S. that he needed the money so that his wife could become a doctor in Canada. S.S. said that the money belonged to him, and that he was the one who worked hard.
102S.S. said that after he was arrested, he was very upset since the only thing he had done was ask A.S. to repay the money that he had given him. He spoke to A.S. and asked him to “please forgive me”. He did not say the reason why he wanted to be forgiven, but what he meant was that he wanted A.S. to forgive him for asking for his money back. S.S. said the only reason these accusations have been made against him is because he asked A.S. for his money back.
103S.S. denied having sexually assaulted the Complainant in the townhouse in Scarborough. He said that he never went into the basement alone because it was dark down there and he is afraid of the dark. If he wanted to go down in the basement, he would ask his mother or his sister N.S. to go with him. When he did go into the basement, he never saw any beds down there. No one slept in the basement.
104S.S. also denied having sexually assaulted the Complainant in Red Deer in 2006, or in the house in Stouffville in 2010.
b. S.S.’s Evidence on Cross-Examination
105On cross-examination, S.S. was asked about the $17,000 cheque that he says A.S. stole from him in 2011. S.S. said that the cheque was written on one of his lines of credit. S.S. said that A.S. admitted to him that he had taken the cheque, but S.S. cannot remember whether that conversation was in person or over the phone. However, S.S. did remember that no one else was present during the conversation about the cheque.
106S.S. said that he was forced to give up his gas station business in Toronto because the $17,000 cheque that had been written on his line of credit had caused him to exceed his credit limit. He sold the Ontario business and returned to Alberta, where he got a job working for Petro Canada.
107In 2013, A.S. came out to Alberta looking for work. S.S. said that A.S. told him that he had come a long way from Ontario, that S.S. had a good job, and so S.S. should look for a job for A.S. in Alberta. S.S. said that naturally, he helped A.S. by getting him a job with Petro Canada. He also reminded A.S. that A.S. had his money and that he felt sad about the whole thing. A.S. said that whenever he had money, he would repay the money he owes S.S.. A.S. worked for Petro Canada for a few months and then returned to Ontario.
108S.S. said that when his wife came to Canada in 2015, he began asking A.S. for the $32,000 that A.S. owes him. A.S. promised to return the money when he had it. In early 2019, S.S. said that he threatened to take A.S. to court over the money. He still intends to sue A.S. for the money once this criminal proceeding is resolved. S.S. said that he is waiting until then because of the stress and trauma he is experiencing from these allegations.
109S.S. was asked about his claim that he could not sleep in the basement in the townhouse in Scarborough because he was afraid of the dark. S.S. said that he could not remember whether A.S. had installed extra lighting in the basement, because in Pakistan they do not have the concept of a basement. He then said that there might have been lights down in the basement, but that you had to go to the bottom of the stairs to turn them on. S.S. was asked whether, when the door to the basement was opened, the light from the upstairs would shine down into the basement. S.S. said yes, a little bit, but when you go further down the stairs, then it gets dark.
110S.S. said that he slept on the floor of the living room with his brother and his mother, and he kept his belongings in a handbag in the living room. He also had some belongings downstairs in the basement. Sometimes he might need something from the basement. Because he was afraid of the dark he could not get it himself and he would instead ask his sister N.S. to get it for him. N.S. would joke with him and say she was not going to get it, but eventually she would.
111S.S. was asked to describe the sleeping arrangements in the living room. He said that he slept next to the interior wall, his mother slept beside him, and his brother K.S. slept on the other side of his mother, near the entrance to the living room. The three of them took up the entire carpet area in the living room. There was no room for any furniture in the living room, just some cushions against one wall.
112S.S. said that his mother and K.S. would go to bed before him. He was asked why he slept next to the interior wall, since he would be required to step over top of his sleeping brother and mother in order to get to that area. S.S. said he wanted to sleep next to his mother because if he woke up at night and it was dark, he would get scared, and wanted to be beside his mother. S.S. was asked why his fear of the dark could not have been addressed by turning a light on somewhere on the main floor. S.S. said that he did not think there were any electrical outlets nearby. He also said that it never occurred to him to turn a light on because in Pakistan they do not have the concept of a nightlight.
113S.S. also said that his mother would wake up at about 11 p.m., step over his brother K.S., and go into the dining area on the main floor to do her final prayers, and then go back to sleep in the living room. However, his mother never woke him or his brother when she got up to do her prayers.
114Later in his evidence, S.S. said that it might have not been really dark in the living room, but he felt secure because there was someone sleeping on either side of him. When it was pointed out to him that there was only his mother sleeping on one side of him, he said that he would feel that there was somebody there and a wall behind him.
115In re-examination, S.S. was asked why he said that he would feel more comfortable sleeping with someone on either side of him in the living room of the townhouse in Scarborough. S.S. said that once you are asleep you do not really know if someone is beside you, but if you have a wall on one side you know that nobody can come from that side.
116It was pointed out to S.S. that about a year prior to trial, his counsel had provided a notice of alibi to the Crown which stated that he would leave the townhouse in Scarborough early in the morning to teach children the Qur’an in private houses. The notice of alibi did not mention anything about S.S. working at the mosque. S.S. said just because it was not mentioned in his notice of alibi does not mean that he did not work at the mosque. It was suggested to S.S. that the reason there was no mention of him working at the mosque was because he was fired from that job after a few months. S.S. said that was absolutely wrong.
117S.S. said that after he finished working at the mosque, he would come back to the townhouse for tea, but only if his mother was there. If his mother was not there, he would catch a bus right outside the mosque and go to the apartments where he taught children in the evening. He said that he could have made himself some tea at the townhouse, but there was no point for him to come home, make tea, and then leave again for his evening teachings.
118S.S. said he could not remember whether he went to Red Deer in 2006 when his brother A.S. and his family came to visit. S.S. was shown the photograph that was taken by A.S. during that visit, which includes S.S.. S.S. said he did not recognize the photo because he cannot recall the couch or some paintings on the wall that can be seen in the photo.
119S.S. was asked whether he had ever discussed the Complainant’s allegations with his parents or his brothers and sister. He said he has never discussed the allegations with any of them.
120S.S. said that he is unaware of whether any of his family members asked A.S. to drop the case, or whether anyone offered a bribe to A.S. so that he would drop the case. Nor is he aware of whether any of his family members threatened to sue the Complainant because of her allegations.
121S.S. was asked whether in his culture it is shameful for a girl or a woman to say that they have been sexually assaulted. S.S. said that he is the person who has experienced the shame, rather than the Complainant.
122S.S. was asked about his evidence that after he had been arrested, he asked A.S. to forgive him. It was suggested to him that there is no reason to ask for forgiveness for asking for the return of money that belongs to you, and that he was actually asking for forgiveness for having sexually assaulted the Complainant. S.S. said that he was in jail and really upset and he asked for forgiveness in that context. He was asking for forgiveness for asking about the money because this was why he had been arrested. However, in response to a later question from the court, S.S. said that he was not actually sorry for asking for his money, because it was his own money, and he intends to sue A.S. once this trial has been resolved.
c. Evidence of Z.S.H. (the Complainant’s Paternal Grandfather) on Examination
123Z.S.H. is the father of both S.S. and A.S., and the Complainant’s paternal grandfather. He was born in Pakistan in 1939.
124Z.S.H. immigrated to Canada on December 17, 2002, along with his wife (i.e., the paternal grandmother), his son S.S., and his daughter N.S. He and his other family members were sponsored by his son A.S. After arriving in Canada, they lived with A.S. and his family in Scarborough. One of his other sons, K.S., had previously immigrated to Canada and was also living in the Scarborough townhouse with them.
125Z.S.H. was asked to describe his daily routine while living with A.S. and his family. Z.S.H. said that he slept in an upstairs bedroom in the house. When he woke in the morning, he would recite his first prayers in the bedroom. He would then go downstairs and his wife, who slept on the floor in the living room, would prepare his breakfast.
126Z.S.H. was asked whether he and his wife went to the mosque for their daily prayers. Z.S.H. said that he prayed at home in his room upstairs, although occasionally he would go to the mosque for Friday afternoon prayers. Z.S.H. said that his wife never prayed at the mosque, although there was one Friday prayer that she did attend.
127Z.S.H. said that during weekdays, A.S. and his wife would take their two daughters to the maternal grandmother’s home. Z.S.H. was asked whether the daughters were ever left in the care of he and his wife, and he said that this never happened, not even once.
128Z.S.H. said that S.S. worked every day in the mosque teaching the Qur’an. S.S. would leave the house at about 7 a.m. to go do this. S.S. would come back home for lunch before returning to the mosque in the afternoon. After he finished teaching at the mosque, S.S. would go to private homes to teach children the Qur’an. S.S. would return home at about 8:30 or 9 p.m. and have a meal.
129Z.S.H. said that S.S. slept on a carpet on the floor in the living room, along with his wife and his son K.S. He said that he knew this because when he went downstairs in the evening for his meal, he would see his wife, S.S. and K.S. asleep on the floor in the living room.
130Z.S.H. said that he and his wife went back to Pakistan in November 2003. They then returned to Canada in 2005 and moved in with his son K.S., who by that time was living in Alberta.
131Z.S.H. said that in 2006, A.S. and his family came out to Alberta for a visit. They stayed in an apartment that K.S. had rented in Red Deer. Z.S.H. said that he does not think that S.S. was there during that visit, but he was not sure.
132Z.S.H. said that S.S. told him that in 2008 that he had loaned his brother A.S. $10,000 because A.S. was in bad financial condition.
133Z.S.H. said that in 2019, he and his wife returned to Toronto and lived with A.S. and his family in Markham. Z.S.H. said that while they were there, A.S. told him about the allegations involving S.S. and the Complainant. He said he just froze and could not say anything. He did not believe that the allegations were true because he had been living in the house at the time. He does not know much about the allegations other than that they took place between 2002 and 2003.
d. Z.S.H.’s Evidence on Cross-Examination
134On cross-examination, Z.S.H. was asked whether A.S. and his wife ever left their daughters in the care of him and his wife. He said that this never happened, not even a single day.
135Z.S.H. was asked why he did not go to the mosque more often if it was so close to the townhouse. Z.S.H. said that the mosque was not that close because you had to cross a road to get there.
136Z.S.H. was asked whether his wife went to the mosque frequently to have social contact with other Muslim women living nearby. Z.S.H. said that his wife could not go to the mosque because they did not have keys to the house and so they could not both go to the mosque at the same time. Z.S.H. was asked whether they could go to the mosque during the day when S.S. was at home. Z.S.H. said that was not possible because S.S. only came home for lunch and then went right back to the mosque.
137Z.S.H. was asked whether S.S. was fired from his job at the mosque after working there for a few months. Z.S.H. said that S.S. was not fired and that he left voluntarily. However, it was possible that he only worked there for a few months. Z.S.H. also agreed that once S.S. stopped working at the mosque, he was home during the day.
138Z.S.H. said that his sons S.S. and K.S. slept on the floor in the living room with his wife. Z.S.H. said that he himself never went to the basement, but his wife went there and told him that the basement was very small.
139Z.S.H. said that when A.S. told him about the allegations, he did not believe that they were true. However, neither he nor his wife called the Complainant a liar. They did not say anything and A.S. just left the room. A few days later, A.S. asked them to leave the house and they went to stay with their daughter N.S. in Edmonton. Z.S.H. said that he did not discuss the allegations with A.S. before leaving the house.
140Sometime later Z.S.H. and his wife returned to Pakistan, where they are currently living. He has not spoken with A.S. since returning to Pakistan. Z.S.H. said he is not aware of anyone asking A.S. to drop the charges against S.S.. Nor is he aware of anyone threatening to sue the Complainant as a result of her allegations.
141Z.S.H. was asked whether in his culture girls who make allegations of sexual assault suffer negative consequences. Z.S.H. said a girl who makes such allegations can still be married. Allegations are just allegations, those who want to talk can talk, but nothing happens just because people talk.
e. Evidence of M.S. (A Past Employer of S.S.) on Examination
142M.S. testified that in early 2003, he was living in Scarborough and was looking for someone to teach his children the Qur’an. He saw that S.S. had posted a notice in the local mosque, advertising his services as a teacher of the Qur’an.
143M.S. hired S.S. to teach his children at their home in the evening. M.S. said that during the day, S.S. would teach children the Qur’an at the local mosque. S.S. would then come over to M.S.’s house after 6 p.m. to teach his children, as well as some other children living in the same apartment building. M.S. said that S.S. continued teaching his children in this manner until September or October 2004, when S.S. returned to Pakistan.
f. M.S.’s Evidence on Cross-Examination
144On cross-examination, M.S. was asked how he knew that S.S. taught during the day at the mosque. M.S. said that he saw S.S. at the mosque from time to time.
145M.S. was asked whether he was aware that S.S. had been fired from his job at the mosque. M.S. said that he was not aware of that. M.S. thought that S.S. had stopped teaching at the mosque voluntarily. M.S. also said that he thought S.S. taught at the mosque until he left Ontario in 2004.
Applicable Legal Principles
a. The Presumption of Innocence and Proof Beyond a Reasonable Doubt
146The presumption of innocence is a cornerstone of our criminal justice system, guaranteed by s. 11(d) of the Canadian Charter of Rights and Freedoms. The presumption of innocence, and, along with it, the standard of proof beyond a reasonable doubt, are important and necessary safeguards to ensure that no innocent person is convicted of an offence and wrongfully deprived of their liberty.
147Thus, S.S. is presumed innocent of the charges brought against him and this presumption remains with him unless and until the Crown proves his guilt beyond a reasonable doubt. This is a heavy burden that remains on the Crown and never shifts.
148A reasonable doubt is not an imaginary or frivolous doubt. It is not a doubt based on sympathy for or prejudice against anyone involved in this trial. It is a doubt based on reason and common sense, one that arises logically from the evidence or absence of evidence. It is not enough for me to believe that S.S. is probably or likely guilty. In that circumstance, I am required to give him the benefit of the doubt and acquit him because the Crown would have failed to satisfy me of his guilt beyond a reasonable doubt.
149I also recognize that proof beyond a reasonable doubt is not proof to an absolute certainty. However, the standard of proof beyond a reasonable doubt falls much closer to absolute certainty than to probable guilt. I must consider all the evidence and be sure that S.S. committed the offences with which he is charged before I can be satisfied beyond a reasonable doubt of his guilt.
b. Determining Reasonable Doubt in Accordance with R. v. W.(D.) 4
150Since S.S. testified and denied the Crown’s allegations, it is necessary to determine whether the Crown has proven his guilt beyond a reasonable doubt in accordance with the framework set out by the Supreme Court of Canada in R. v. W.(D.). This means that if I believe S.S.’s evidence to the effect that he did not sexually assault the Complainant, I must find him not guilty. Second, even if I do not believe S.S.’s evidence, but it leaves me with a reasonable doubt as to whether or not he committed these offences, I must find him not guilty. Third, even if S.S.’s evidence does not leave me with any reasonable doubt as to his guilt, I must still consider whether the evidence I do accept satisfies me beyond a reasonable doubt that he sexually assaulted the Complainant.
151The W.(D.) framework applies not only to the testimony of an accused, but also to “any exculpatory evidence on vital issues that arises in the case and that turns on the credibility or reliability of a witness”. 5 Therefore, Z.S.H.’s evidence must be assessed in accordance with the W.(D.) principles set out above.
152I must assess S.S. and Z.S.H.’s evidence in the context of the evidence as a whole, as opposed to considering their evidence in isolation. 6 For that reason, a trial judge is entitled to reject a witness’ evidence based on a reasoned and considered acceptance of the truth of conflicting evidence. Such a finding is as much of an explanation as when a trial judge identifies credibility concerns in a witness’ testimony itself. Provided that the principle of reasonable doubt remains paramount, there is no error in a trial judge articulating that they reject the evidence of the accused based on credible and reliable evidence to the contrary. 7
c. Assessing Credibility
153There is no singularly correct or scientific method for assessing credibility. However, it is important to avoid credibility assessments based on what Paciocco J. (as he then was) has described as “impressions [that are] the product of stereotype, emotional evaluation, or ill-found confidence in what is no more than guesswork.” 8 In particular, it is now increasingly recognized by both trial and appellate judges that a witness’ demeanour when testifying has limited value in assessing credibility. 9
154Furthermore, judges must avoid speculative reasoning that invokes “common-sense” assumptions that are not grounded in the evidence or appropriately supported by judicial notice. 10 This does not prevent judges from using human experience which informs their knowledge of human behaviour to draw inferences that arise from the evidence. It merely prohibits judges from using common sense or human experience to introduce new considerations, not arising from evidence, into the decision-making process. 11
155As the Court of Appeal for Ontario noted in R. v. A.M., “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 [he or] she has said on other occasions, whether or not under oath.” 12 Inconsistencies may emerge not just from a witness’ testimony at trial, but also from things said differently at different times, or from omitting to refer to certain events at one time while referring to them on other occasions. That said, inconsistencies vary in their nature and importance. Some inconsistencies may not, upon closer examination, materially impair a witness’ credibility or reliability. In other cases, however, an inconsistency on a matter central to events or circumstances that form the basis of a charge may call into serious question the credibility or reliability of a witness’ testimony. 13
d. Avoiding Myths and Stereotypes in Sexual Assault Cases
156As the Supreme Court of Canada noted in R. v. J.J., the criminal trial process can be “invasive, humiliating, and degrading for victims of sexual offences, in part because myths and stereotypes continue to haunt the criminal justice system.” 14 Both Parliament and the courts have come to recognize that, in the past, victims of sexual offenses have often been subjected to unjustifiable scrutiny into the minutiae of their lives, thereby undermining the “dignity, equality, and privacy of those who had the courage to lay a complaint and undergo the rigours of a public trial.” 15
157Thus, it is an error of law to assess a sexual assault complainant’s credibility based on stereotypical assumptions about how a victim of sexual assault is expected or supposed to react to the assault. 16 As the Supreme Court of Canada noted in R. v. D.D., those who are victims of a trauma like a sexual assault may delay in disclosing the abuse, while others may never disclose it. 17 “Reasons for delay are many”, and include embarrassment, fear, or guilt. 18 For this reason, “[a] delay in disclosure, standing alone, will never give rise to an adverse inference against the credibility of the complainant.” 19 Nor is it appropriate to assume that a victim of sexual assault will subsequently avoid their abuser. The mere absence of avoidant behavior by a complainant cannot form the basis of a credibility assessment leading to reasonable doubt. 20
Analysis
a. Credibility Assessments
158Since the evidence of the Crown and defence witnesses is diametrically opposed, I begin my analysis by assessing the witnesses’ credibility. These credibility assessments will then form the basis for my findings and conclusions set out in the next section of my analysis.
i. S.S. was not a credible witness and I reject his evidence
159S.S.’s testimony was evasive, inconsistent, and self-serving. When confronted with inconsistencies or contradictions in his evidence, he either avoided answering the question or offered further explanations that were equally if not more implausible. Considered in its totality, his evidence was simply not believable.
160Some of the examples which lead me to this conclusion are as follows.
1. S.S.’s explanation for asking A.S. for forgiveness
161S.S.’s explanation for having asked A.S. to “please forgive me” following his arrest in the fall of 2019 is implausible and contradictory. S.S. claimed that he was asking A.S. to forgive him for threatening to take A.S. to court to obtain the return of the money S.S. had loaned him. S.S. said that this was “the context” in which he was asking A.S. to forgive him as he had threatened court action over the money since early 2019.
162There are a number of obvious difficulties with S.S.’s explanation for his plea for forgiveness. S.S. acknowledges that when he asked for forgiveness, he made no reference to any dispute over money. Moreover, the context for the conversation was not the money that S.S. had loaned A.S. a decade earlier but, rather, the fact that S.S. was calling A.S. from jail shortly after his arrest for sexual assault. By his own admission, S.S. was extremely distraught by the charges. The obvious inference from these circumstances is that S.S. was pleading for forgiveness for having sexually assaulted the Complainant, in an effort to persuade A.S. to drop the charges.
163This conclusion is reinforced by S.S. acknowledging in his evidence that he was not in fact sorry for having asked for the return of his money, either in 2019 or today. S.S. spoke repeatedly and at great length about the injustice he has suffered because of the money that A.S. had taken from him. S.S. further stated that he still intends to sue A.S. for the money he is owed once this criminal proceeding has been resolved. His admission that he was not actually sorry for having asked for his money back contradicts his claim that this was the reason he was asking for forgiveness during his conversation with A.S. after he was arrested in 2019.
164In short, it simply makes no sense to interpret S.S.’s statement “please forgive me” as referring to his threat to sue A.S. to recover the money he was owed. I find, instead, that he was seeking forgiveness for having sexually assaulted the Complainant.
2. S.S.’s theory that the complainant was induced to fabricate
165Equally implausible is S.S.’s underlying theory that A.S. and A.A. induced the Complainant to fabricate her allegations of sexual abuse because they were worried that S.S. would take A.S. to court over the money owed.
166First, the uncontradicted evidence is that the Complainant told her parents about the incidents of sexual touching with S.S. in 2015 or 2016, years before S.S. claims to have threatened to sue A.S. over the money.
167Second, the uncontradicted evidence is also that neither A.A. nor the Complainant was aware of the details of any money that A.S. might have owed S.S..
168Third, A.S. was not trying to avoid having to repay money he owed S.S.. A.S. agrees that he borrowed money from S.S. and is willing to repay it whenever he can afford to do so. Even if this were not the case, making false claims of sexual abuse against S.S. would not have affected A.S.’s liability for the money he might have borrowed or taken.
169More fundamentally, as the Supreme Court noted in R. v. J.J., the criminal trial process can be invasive, humiliating, and degrading for victims of sexual offences. 21 Thus, if S.S.’s theory is correct, A.S. and A.A. were prepared to put their daughter’s emotional and psychological well-being at risk so that they could avoid having to repay what is, in the grand scheme of things, a relatively modest amount of money.
170Both A.S. and A.A. made it clear that they were (and are) very concerned over the potential toll that pursuing these allegations of abuse could have on their daughter. In fact, A.A.’s evidence was that she specifically cautioned the Complainant regarding the challenges that she would face if she decided to pursue these allegations. Thus, far from treating their daughter as a mere pawn in a scheme designed to avoid having to repay money, A.S. and A.A. demonstrated a deep concern for their daughter’s welfare. I accept their evidence in this regard and reject S.S.’s suggestion that the Complainant’s allegations of sexual assault were fabricated for her parents’ monetary gain.
3. S.S.’s claim that he was never alone with the Complainant
171S.S. further claimed that he was never at home alone with the Complainant and thus had no opportunity to sexually assault her. In that regard, S.S. claimed that throughout the time he was living with A.S. in Scarborough, he was working during the day at the mosque.
172S.S.’s evidence in this regard is inconsistent with his own notice of alibi that his counsel delivered to the Crown in advance of trial. That notice of alibi made no reference to S.S. working at the mosque and claimed, instead, that during the day he was teaching children in their homes. S.S. was unable to provide any plausible explanation for the inconsistency between his notice of alibi and his evidence at trial.
4. S.S.’s evidence about his fear of the dark
173S.S.’s evidence regarding his fear of the dark, and how this fear led to his sleeping on the living room floor of the Scarborough townhouse with his mother and brother K.S., was confused and contradictory.
174As described above, S.S. claimed that he did not want to sleep in the basement of the townhouse because he was afraid of the dark. In fact, S.S. claimed that his fear of the dark was so extreme that he had to sleep beside his mother in the living room in case he woke up during the night. S.S. said that he would find comfort in the fact that he was beside his mother, even though it might have been dark in the living room.
175S.S. was asked to describe the sleeping arrangements in the living room. He said that his mother slept in the middle of the living room floor, he slept on one side of her, next to an interior wall in the living room, while his brother K.S. slept on his mother’s other side (it was not clear why K.S. was sleeping in the living room, as there was no suggestion that he was afraid of the dark). S.S. drew a diagram showing these arrangements, and further explained that there was no room for any furniture in the living room because the three people sleeping on the floor took up almost the entire floor space. His diagram showed a television on one wall and some cushions along another wall.
176As S.S. was questioned further about these sleeping arrangements, he changed his evidence. For example, it was suggested to S.S. that the location where he said he was sleeping was in fact the darkest part of the living room. S.S. said that it might not have been that dark in the living room, in effect contradicting his earlier claim that he needed to sleep beside his mother because of the darkness. S.S. then contradicted himself, saying that it could have been dark, and for that reason he wanted to have people sleeping on either side of him. This statement about his sleeping arrangements also contradicted S.S.’s earlier evidence stating that he slept beside his mother but not his brother K.S. When this was pointed out to him, he altered his position yet again, saying that he felt secure because his mother was on one side and there was a wall behind him.
177S.S. also began making changes to the diagram that he had drawn earlier showing the sleeping arrangements. For example, when asked where he, his mother and K.S. kept their clothing, he said that he had neglected to include the fact that they each had bags with their clothing nearby, and he amended the diagram accordingly.
178S.S. was asked why his fear of the dark could not have been addressed by simply turning a light on somewhere on the main floor. S.S. gave a rambling and confused answer, claiming that there might not have been any electrical outlets nearby, but even if there were he did not think about plugging a light in there because there are no nightlights in Pakistan.
179S.S. also claimed that he could not remember whether A.S. had installed additional lighting in the basement. Given S.S.’s alleged extreme fear of the dark, it is implausible that he would not have taken note of whether additional lighting had been installed there.
180In short, S.S.’s evidence regarding his fear of the dark and the sleeping arrangements in the living room was confused, contradictory and entirely implausible. I reject his evidence on this issue.
5. S.S.’s lack of memory of the family visit in Red Deer
181S.S. said that he could not remember whether he had been in Red Deer in September 2006 when A.S. and his family had come to visit. S.S. was shown a photograph that A.S. said he had taken during this trip, which showed S.S. as having been present. S.S. acknowledged that he was in the photograph, but he could not remember when or where the photograph was taken.
182I reject S.S.’s evidence that he could not remember when or where the photograph was taken. The uncontradicted evidence is that the only time S.S. visited K.S. and his other family members in Alberta was in September 2006. As such, there is no other time at which this photograph could have been taken. Indeed, S.S. did not suggest any other time when such a photograph might have been taken. I find that S.S. was falsely claiming that he could not recognize when or where the photograph had been taken to avoid having to admit that he had been present during the September 2006 visit of K.S. in Red Deer by A.S. and his wife and children.
6. S.S.’s evidence regarding the fraudulent cheque
183S.S.’s evidence regarding the $17,000 fraudulent cheque which he claimed A.S. had written using S.S.’s line of credit in 2010 or 2011 was confused and implausible. Although not entirely clear, S.S. seemed to be claiming that A.S. had taken a cheque that could be used to draw funds from S.S.’s line of credit, made it payable to a construction company that had installed some flooring in A.S.’s house in Stouffville, and fraudulently signed S.S.’s signature. S.S. said he only found out about the fraud when he received a statement from the bank showing a debit for $17,000. Even though A.S. had stolen this money, S.S. acknowledged that in 2013 A.S. came to live with him in Alberta and he helped A.S. get a job there. It was not until his wife arrived in 2015, that S.S. began asking for his money to be returned.
184This sequence of events is implausible for a number of reasons. First, S.S. said that he had never turned down a request from A.S. to borrow money. Nor had A.S. ever asked S.S. for money to install flooring in his house. Given S.S.’s generosity in the past, it made no sense that A.S. would have suddenly decided to steal money from S.S. without ever asking for a further loan. It also makes no sense that, rather than immediately demanding the return of the money that had in effect been stolen from him, S.S. helped A.S. obtain work in Alberta in 2013 and waited until 2015 to ask for the money to be returned.
185Whether A.S. actually stole $17,000 from S.S. is a collateral issue in this proceeding. Nevertheless, S.S.’s implausible and confusing evidence on the issue is a relevant consideration in assessing his overall credibility.
186A more general concern with S.S.’s evidence is that he was evasive and self-serving throughout his testimony. When asked a difficult question, he would often attempt to change the subject by detailing at great length the many financial difficulties he and his wife had experienced since her arrival in Canada, and/or by complaining of the injustice he had suffered from A.S. having taken money from him. At other times, he appeared not to understand the meaning of a question that was obvious and straightforward. He also attempted to portray himself, rather than the Complainant, as having suffered as a result in this proceeding.
187The above examples are merely illustrative of the pervasive inconsistency and implausibility of S.S.’s evidence. I find that his evidence was simply not credible, and I reject it.
ii. Although the Complainant’s evidence was not without its flaws, she was a credible witness and I accept her evidence
188The Complainant testified in a straightforward and genuine manner. Her evidence was internally consistent and her account of the various incidents of sexual touching was plausible and believable. Nor was her evidence challenged in any significant way on cross-examination.
189I acknowledge that the Complainant was unable to recall certain details regarding the alleged incidents of sexual touching. For example, she could not remember the exact year in which a particular incident had taken place, how long the various incidents had lasted, the precise time of day, or the order in which they had occurred. Nor could she remember many of the surrounding circumstances, such as what time of day she woke up in the morning, what she ate for breakfast, or how long it took to drive from her home in Scarborough to her maternal grandmother’s home in Markham.
190I see nothing surprising or troubling in the Complainant’s inability to recall these kinds of details, given her young age at the time. For example, the Complainant was between two and four years old during the time S.S. was living in the Scarborough townhouse. As the Complainant candidly acknowledged, she was not even able to tell time at that age. It is therefore to be expected that she could not recall details such as how long a particular incident might have lasted, or the time of day when it occurred. Nor was their any reason why the Complainant would have remembered minor details such as what time she awoke in the morning or what she ate for breakfast. In fact, I regard the fact that the Complainant acknowledged these gaps in her memory as evidence of her candour that enhanced rather than detracted from her overall credibility.
191Although the Complainant was unable to recall these collateral details, she had a vivid recollection of most of the actual incidents of sexual touching. This was particularly the case in relation to the incidents that she said had taken place in the Scarborough townhouse. For example, the Complainant described being led downstairs into the basement by S.S. and him asking her to stroke his penis and put it in her mouth. She recalled details such as the colour of the bedding and the fact that there was a computer desk nearby. She also recalled her aunt interrupting S.S. by coming downstairs during this incident, prompting him to lead her to the computer desk and asking her to draw what she had seen.
192The Complainant’s description of the alleged incident of sexual touching in the living room of the Scarborough townhouse was equally vivid and detailed, including her recollection of the colour of the cushions on the sofa and of her paternal grandfather coming home unexpectedly. So too with her description of the alleged incident that she said took place in her parents’ master bedroom in the Scarborough townhouse, including the fact that S.S. asked her to go into the washroom and clean her vagina.
193I note that the Complainant’s evidence regarding certain other alleged incidents was less detailed and clear. For example, the Complainant acknowledged that when she and her family went to Alberta in 2006 there were numerous family members staying in a small apartment, and the Complainant and her family were there for only about a week. Given the circumstances, it was not entirely clear how S.S. would have had an opportunity to sexually touch the Complainant in the manner she described.
194The Complainant’s evidence regarding the timing of the alleged incident of sexual touching in the Stouffville home was also unclear. A.S. and A.A. testified that the only time S.S. visited them in their Stouffville home was in 2010 or 2011. The Complainant would have been 10 or 11 years old at that time, and thus significantly older than during the other incidents she described. Yet she did not indicate that there was a significant gap in time between the earlier incidents and the incident in the Stouffville home.
195As noted above, I do not regard these flaws in the Complainant’s evidence as detracting from her overall credibility. Given that she was a young child at the time, I do not find it surprising that her recollection of certain aspects of these events was unclear or uncertain.
196Nor do any shortcomings in her evidence lead me to conclude that she has fabricated these allegations to assist her father in avoiding the repayment of money that he borrowed from S.S. The Complainant’s evidence that she was unaware of any details of financial dealings between her father and S.S. was uncontradicted. I accept the Complainant’s evidence that she had no knowledge of the details of these financial matters. I further find that the Complainant mentioned these incidents to her parents in 2015 or 2016, well before S.S. says he threatened to take A.S. to court over the money owed, which supposedly triggered these allegations.
197Although not raised by the defence, nor put to the Complainant, I have considered the possibility that she was simply too young to have remembered the incidents of sexual touching that she says occurred in the Scarborough townhouse. Yet her description of these incidents was detailed, vivid and credible, and was never meaningfully challenged on cross-examination. Moreover, she described various surrounding circumstances, including the main floor entrance of the Scarborough townhouse in relation to the living room, which were later confirmed by other witnesses. I therefore find that despite her young age at the time, she does in fact have an independent recollection of the incidents of sexual touching in the Scarborough townhouse.
198In short, the Complainant testified in a straightforward manner and never wavered in her description of the incidents involving S.S. Her evidence was consistent and credible, and I accept it.
iii. Both A.S. and A.A. were credible witnesses and I accept their evidence
199Both A.S. and A.A. testified in a straightforward manner. Their evidence was internally consistent, consistent with each other and with that of the Complainant, and made sense in light of the surrounding circumstances. I find that they were both credible and reliable witnesses.
200Dealing first with the evidence of A.S., it is agreed that he sponsored his parents, his brother S.S., and his sister N.S. as immigrants to Canada in 2002 and, further, that they then moved in with him in the family’s Scarborough townhouse. A.S.’s description of the living and sleeping arrangements in the house after the arrival of his family members was consistent and clear. A.S. said that because all the bedrooms upstairs were occupied, he purchased beds for his brothers S.S. and K.S. and installed those beds in the basement. He also said he installed additional lighting in the basement and relocated a computer that had been in an upstairs bedroom to the basement so that it could be used by his brothers. These living arrangements made sense given the small size of the townhouse (less than 1,500 square feet) and the fact that there was simply no room on either the main or second floors to accommodate a sleeping space for his brothers. A.S.’s evidence regarding these living and sleeping arrangements was not materially challenged in cross-examination.
201A.S.’s evidence regarding the childcare arrangements for his daughters after the arrival of his family members was also plausible. A.S. said that before his parents arrived, their two daughters were cared for by their maternal grandmother five days a week. However, their maternal grandmother had a number of other family responsibilities, while A.S.’s own parents were not employed outside the home and had no other responsibilities in the household. It therefore made sense for his parents to assume some childcare responsibilities for their daughters. On this basis, A.S. said that it was agreed within the family that their two daughters would continue to be cared for by their maternal grandmother three days a week, while A.S.’s parents would provide childcare on the other two days. These arrangements seemed consistent with the surrounding circumstances and therefore plausible, in contrast to Z.S.H.’s categorical claim (as discussed below) that he and his wife never provided childcare for their two granddaughters for even a single day while living in the Scarborough townhouse.
202A.S. also acknowledged that there had been a great deal of conflict in the home between his wife A.A. and his parents. He said that he had tried to smooth over these conflicts in the hopes of maintaining the relationships in the family. This conflict avoidance was consistent with his evidence that when he learned in 2015 of the allegations of sexual touching involving S.S. and the Complainant, he initially urged his daughter not to pursue the matter with the police.
203A.S. also acknowledged having borrowed money from his brother S.S. to support the Japan Camera business and to pay his real estate license fees, and that this money had not been repaid. He also agreed that S.S. helped him to get a job in Alberta in 2013. These acknowledgements made his denial of having fraudulently written a cheque to steal money from S.S.’s line of credit plausible and believable.
204In cross-examination, it was suggested to A.S. that S.S. had not been present during his family’s visit to Alberta in 2006. A.S. said he had taken photographs at the time which showed that S.S. had been present. He subsequently produced a photograph confirming that S.S. had in fact been present, and the accuracy and authenticity of this photograph was not challenged or contradicted. Indeed, in his evidence, S.S. did not deny having been present during A.S. and his wife and daughters’ visit to Alberta in 2006. He merely claimed that he did not remember whether he had been present or not.
205In short, A.S.’s evidence was consistent, plausible, and not seriously challenged in cross-examination, and I accept it.
206Turning to the testimony of A.A., she was similarly straightforward and genuine in her evidence. A.A. provided further context regarding her own mother’s family responsibilities, while also recalling that her younger daughter developed a diaper rash because A.S.’s mother did not change her diaper often enough on the days when the two girls were being cared for by A.S.’s parents. These additional contextual details reinforced the plausibility of her evidence that their daughters were left in the care of A.S.’s parents two days a week. A.A. also freely acknowledged that she had considerable conflict with A.S.’s parents while they were living in their home, and that she was happy when they moved out.
207In cross-examination, A.A. was shown extracts from a video statement she had made to the police in 2022. It was suggested to A.A. that she appeared lighthearted during this statement, which counsel claimed was consistent with her having fabricated these allegations of sexual abuse against S.S.
208A.A. pointed out that defence counsel had played only a few small snippets from her video statement and that over the course of the interview she had broken down in tears in discussing these allegations. Defence counsel did not dispute her assertions in this regard. A.A. went on to express her extreme anguish over the sexual abuse she believes her daughter has suffered, as well as her worry over the emotional toll that this criminal proceeding has had on the Complainant. In A.A.’s words, no mother would want to put the mental health of their child at risk to avoid having to repay a loan from a family member.
209The net effect of this cross-examination was to enhance rather than detract from A.A.’s credibility. I find her evidence to be credible and, indeed, compelling. I accept her evidence and I specifically reject the suggestion that she has conspired with the Complainant and/or A.S. to fabricate these allegations.
iv. Certain key elements of Z.S.H.’s evidence were tailored to assist S.S., and to that extent his evidence was not credible
210Certain aspects of Z.S.H.’s evidence dealt with matters that were uncontroversial, such as when he and his family members arrived in Canada or where they lived. However, Z.S.H. took a number of positions which, while supporting the evidence of S.S., contradicted the evidence of other witnesses, particularly A.S and A.A. In my view, Z.S.H.’s evidence on these matters was not credible.
211This included his evidence that while they were living in the Scarborough townhouse, their two granddaughters were never left in his and his wife’s care. Yet Z.S.H. also insisted that his wife stayed home every day, and he specifically claimed that she never went to the nearby mosque to pray. Nor did his wife have any other household responsibilities (apart from making meals for Z.S.H.) which would have prevented her from providing childcare for their two granddaughters. Z.S.H. did not suggest that he and his wife had any other physical or other impediment which prevented them from providing childcare. Nor did he suggest that they were asked to care for their granddaughters but refused to do so. Thus, while he and his wife rarely left the townhouse and were perfectly capable of caring for their two granddaughters, Z.S.H. maintained that A.S and A.A. packed their daughters up every day without fail and took them to their maternal grandmother’s home in Markham.
212Z.S.H.’s evidence in this regard simply made no sense. At the most basic level, there must have been at least certain occasions on which the maternal grandmother would not have been available to care for her two granddaughters. Yet Z.S.H. maintained that he and his wife had never taken care of their granddaughters, “not even on a single day”. More broadly, Z.S.H. could offer no explanation for why A.S. and A.A. would choose to transport their daughters to and from the maternal grandmother’s house every day when they could have simply remained with Z.S.H. and his wife, who were home and available every day.
213Equally implausible was Z.S.H.’s evidence that S.S. and his brother, K.S. slept on the living room floor with their mother (i.e., Z.S.H.’s wife). When asked why three adults were sleeping in the living room, Z.S.H. explained that S.S. and K.S. had to sleep there because there was not enough room for them in the basement. Z.S.H. acknowledged that he himself had not gone down to the basement, but said that his wife told him that the basement was too small to accommodate S.S. and K.S.
214Z.S.H.’s evidence in this regard is inconsistent with that of S.S. in two important respects. First, S.S. claimed that he slept in the living room because he was afraid of the dark, not because the basement was too small. Z.S.H. made no mention of the basement being dark. Second, S.S. said that the living room furniture had to be removed to accommodate the three adults sleeping on the living room floor. This indicated that, far from offering more sleeping room than the basement, the living room did not offer sufficient space to accommodate three adults sleeping there and still function as the living room.
215Z.S.H.’s account of his reaction upon learning of the Complainant’s allegations is also not credible. Z.S.H. said he did not believe the allegations, but neither he nor his wife said anything to A.S. or A.A. about them and he and his wife simply moved out a few days later. Z.S.H. further claimed that he has never discussed the allegations with any other members of his family, including S.S., over the past three years. Although Z.S.H. is convinced that the allegations are false, when asked on cross-examination whether he hoped that S.S. would be found not guilty, he expressed no opinion. Z.S.H. was asked whether there was any stigma within his culture experienced by women or girls who have been sexually assaulted. Z.S.H. denied that women who had been sexually assaulted would experience stigma, or have any difficulty in getting married, since “an allegation is just and allegation” and nothing happens when people talk.
216These assertions on the part of Z.S.H. are simply not credible. Given the seriousness of the allegations brought against S.S., it makes no sense that Z.S.H. would never have discussed these matters with him at some point in the last three years. Otherwise, on what basis would S.S. have asked Z.S.H. to testify on his behalf at trial? Moreover, if Z.S.H. believes that S.S. is innocent and that the Complainant has fabricated these allegations, then surely, he must be hoping that the Complainant’s falsehoods will be exposed, and S.S. will be acquitted at this trial. Z.S.H.’s denial of the obvious only served to further undermine the credibility of his evidence as a whole.
217I note that Z.S.H. initially claimed that S.S. worked at the mosque during the day for the entire time that the family was living with A.S. in Scarborough. However, on cross-examination he altered his position and agreed that S.S. may have stopped working at the mosque after a few months.
218Apart from this latter acknowledgement, Z.S.H.’s evidence on these key issues appeared to be tailored to support S.S.’s claim that the Complainant’s allegations are mere fabrications. I find his evidence on these matters is not credible and I reject it.
v. M.S. was a credible witness, but his evidence is of limited assistance in determining the matters in dispute
219Although certain aspects of M.S.’s evidence were difficult to understand, he appeared to be making a genuine effort to testify in a truthful manner. M.S. testified that he believed S.S. worked at the mosque for the entire time he was living with A.S. Yet M.S. had no direct involvement in S.S.’s teaching arrangements at the mosque; he merely saw S.S. at the mosque from time to time. M.S.’s direct dealings with S.S. were focused on S.S. teaching his children the Qur’an at M.S.’s apartment in the evening.
220There is no dispute over S.S.’s work in the evenings; what is at issue is the length of time that S.S. worked at the mosque, and whether his employment was terminated at some point. Given that M.S. had no direct knowledge of S.S.’s teaching arrangements at the mosque, he would not have known, for example, whether S.S. was fired from his employment there. Given his limited and indirect knowledge on the matter, I find M.S.’s evidence to be of limited assistance in determining the length of time that S.S. worked at the mosque, as well as the reason why his employment might have been terminated.
b. Findings and Conclusions
221For the reasons explained above, S.S. was not a credible witness and I reject his evidence. Nor does his evidence leave me with any reasonable doubt as to whether he is guilty of the offenses charged, particularly given the fact that he asked A.S. to “please forgive me” immediately following his arrest. As discussed earlier, this plea for forgiveness was in substance an admission by A.S. that he had sexually touched the complainant, thereby contradicting S.S.’s claim that the Complainant’s allegations had been fabricated.
222I have further explained above why I find that Z.S.H. was not a credible witness. On the key issues in dispute his evidence was implausible and tailored to discredit the Complainant and support S.S. I specifically reject Z.S.H.’s evidence that the Complainant and her sister were never left in the care of Z.S.H. and his wife, as well as his evidence that S.S. slept on the living room floor rather than in the basement of the townhouse in Scarborough. I also note that Z.S.H. acknowledged that S.S. likely stopped working at the mosque after a few months. Considered in its totality, Z.S.H.’s evidence does not give rise to any reasonable doubt as to whether S.S. sexually touched the Complainant.
223It remains to consider whether the evidence which I do accept establishes beyond a reasonable doubt that S.S. committed the offenses alleged.
224I have found that the Complainant was a credible witness who was honestly attempting to tell the truth. Although she was unable to recall certain collateral details, this was not surprising or concerning given her youth at the relevant time. Of far greater significance is the fact that her recollection of the incidents of sexual touching was vivid and clear, and her account of these incidents was never meaningfully challenged in cross-examination. I find that there is simply no air of reality to the claim that she fabricated these allegations. Accordingly, I accept her evidence.
225I also accept the evidence of A.S. and A.A., both of whom testified in a credible and consistent manner. In particular, I accept their evidence that they left the Complainant and her younger sister in the care of A.S.’s parents two days a week while they were living in the Scarborough townhouse. I further accept A.S.’s evidence that S.S. and K.B. slept in the basement, rather than in the living room as S.S. had implausibly claimed. I also accept A.S.’s evidence that S.S. told him that he had been fired from his employment at the mosque and that, thereafter, S.S. was not working during the day.
226I further reject the suggestion that either or both A.S. and A.A. concocted the allegations of sexual abuse to avoid repaying money to S.S. I find that A.S. and A.A. correctly understood S.S.’s plea for forgiveness following his arrest as an admission that he had sexually touched the Complainant.
227Based on these findings, I conclude that the Crown has proven beyond a reasonable doubt that S.S. sexually touched the Complainant, and invited her to sexually touch him, on at least three separate occasions between December 2002 and November 2004. These incidents took place in the basement, the living room, and the upstairs master bedroom of the family home in Scarborough, in the manner described by the Complainant. The Complainant’s description of these incidents was clear and compelling. Further, given the fact that S.S. lived in the house for approximately two years, coupled with my finding that he was often home during the day, he had ample opportunity to have sexually assaulted the Complainant in the manner she described.
228Even though I have accepted the evidence of the Complainant, I am left with a reasonable doubt with respect to whether the Crown has established the guilt of S.S. in relation to the other alleged incidents. With respect to the alleged incident in Red Deer, it is unclear to me how S.S. would have had an opportunity to commit the assault in the manner described by the Complainant. I am concerned by the fact that the Complainant and her family visited Red Deer for only about a week and, during that time, were staying in a small apartment with numerous other adults.
229As for the alleged incident in the family home in Stouffville, on the record before me, that incident could only have occurred sometime in 2010 or 2011. As such, this incident falls outside the date range specified in the indictment, and the Crown expressly declined to seek an amendment when invited by the court to do so at trial. On this basis, I conclude that the Crown has failed to prove beyond a reasonable doubt that this incident occurred in the manner alleged. 22
Disposition
230The Crown has proven beyond a reasonable doubt that the incidents in the Scarborough townhouse occurred in the manner described by the Complainant, and that these incidents involved S.S. sexually touching the Complainant as well as inviting her to sexually touch him, between January 1, 2003 and January 1, 2008. The Complainant was obviously under 14 years old at the time. I therefore find S.S. guilty of both counts in the indictment.
P. J. Monahan J.
Released: June 6, 2023
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: HIS MAJESTY THE KING – and – S. S.
REASONS FOR JUDGMENT P.J. Monahan J. Released: June 6, 2023
Footnotes
Footnotes
- As described in the analysis section of this judgment, I am not satisfied that the Crown has proven beyond a reasonable doubt that certain other incidents alleged by the Complainant to have occurred between 2005 and 2008 actually occurred in the manner described. However, since the indictment alleges a single count of sexual assault and a single count of invitation to sexual touching, my findings in relation to the incidents in the Scarborough townhouse are sufficient to establish S.S.’s guilt on both counts in the indictment.
- As will be explained below, another of A.S.’s adult brothers, K.S., who had immigrated to Canada previously, was also living with the family in the Scarborough townhouse at the time.
- I will refer to A.S.’s parents together as the “paternal grandparents” and individually as the “paternal grandmother” and “paternal grandfather” to distinguish them from A.A.’s mother, (i.e., the “maternal grandmother”) who lived in Markham at the time and provided childcare on certain days for the Complainant and her younger sister. In addition, the Complainant's paternal grandfather testified as a witness for the defence and will, as appropriate from time to time, be referred to by his initials, Z.S.H.
- , [1991] 1 S.C.R. 742 .
- R. v. D.M . , 2022 ONCA 429 , at para. 58 .
- See R. v. Hull , at para. 5 .
- See R. v. J.J.R.D. (2006) , 215 C.C.C. (3d) 252 (C.A.) , at para. 53 , leave to appeal dismissed, [2007] S.C.C.A. No. 69; R. v. R.E.M. , 2008 SCC 51 , [2008] 3 S.C.R. 3 , at paras. 51 , 56 and 66.
- David M. Paciocco, “Doubt about Doubt: Coping with R. v. W. (D.) and Credibility Assessment” (2017) 22 Can. Crim. L. Rev. 31, at p. 57.
- See e.g. R. v. N.S. , 2012 SCC 72 , [2012] 3 S.C.R. 726 , at paras. 27-28 ; R. v. Hemsworth , 2016 ONCA 85 , 334 C.C.C. (3d) 534 , at paras. 44-45 ; R. v. Rhayel , 2015 ONCA 377 , 324 C.C.C. (3d) 362 , at paras. 85-89 ; Law Society of Upper Canada v. Neinstein , 2010 ONCA 193 , 99 O.R. (3d) 1 , at para. 66 ; R. v. G.G. (1997) , 115 C.C.C. (3d) 1 (Ont. C.A.) , at paras. 14-19 ; R. v. Stewart (1994) , 18 O.R. (3d) 509 (C.A.) , at paras. 19-22 , leave to appeal refused, [1994] S.C.C.A. No. 290; R. v. Norman (1993) , 16 O.R. (3d) 295 (C.A.) , at paras. 45-47 ; R. v. C.C . , 2018 ONSC 1262 , at paras. 61-62 .
- R. v. J.C ., 2021 ONCA 131 , 401 C.C.C. (3d) 433 , at para. 58 .
- Ibid , at paras. 59-61.
- R. v. A.M. , 2014 ONCA 769 , 123 O.R. (3d) 536 , at para. 12 (citation omitted) .
- Ibid , at paras. 12-14.
- R. v. J.J. , 2022 SCC 28 , 471 D.L.R. (4th) 577 , at para. 1 .
- Ibid .
- See R. v. J.C . , at para 66 .
- See R. v. D.D . , 2000 SCC 43 , [2000] 2 S.C.R. 275 , at para. 65 .
- Ibid .
- Ibid .
- See R. v. A.R.D . , 2017 ABCA 237 , 55 Alta. L.R. (6th) 213 , at para. 58 , aff’d 2018 SCC 6 , [2018] 1 S.C.R. 218 , at para. 2 .
- See R. v. J.J. , at para. 1 .
- For clarity, I am not finding that these latter incidents in Red Deer and Stouffville did not actually occur in the manner described by the Complainant, but merely that the Crown has failed to prove beyond a reasonable doubt that they did.