Court File and Parties

COURT FILE NO.: CR-21-0918 DATE: 2023 05 23

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING M. Bayat, for the Crown

• and -

D.C. Self-represented Accused

HEARD: April 11-14, 17 and 18, 2023

REASONS FOR JUDGMENT

LEMAY J

[1] The accused, D.C., is facing one charge relating to the sexual assault of his step-daughter. That charge reads as follows:

That he, between the 1st day of September 2015 and the 28th day of March 2018, at the City of Brampton, in the Central West Region, did for a sexual purpose touch A. D-H., a person under the age of sixteen years, contrary to section 151 of the Criminal Code.

[2] At the time that the charges were laid, the accused lived with his wife, T.H., and two children. The youngest child, L.C. is the biological daughter of both T.H. and the accused. The other child that lived with them was a boy, who was T.H.’s child from a previous relationship. The complainant, A. D-H. had moved out to live with her grandparents at the end of March, 2018.

[3] The accused was self-represented at trial. However, for the cross-examination of the complainant, her grandmother D.H. and her aunt C.H, the accused was assisted by counsel appointed under section 486 of the Criminal Code. That counsel assisted in conducting the cross-examinations as well as in providing some submissions on some related applications.

Procedural History and Preliminary Motions

[4] There was a preliminary inquiry that was originally scheduled in this matter. I am given to understand that it had to be adjourned as a result of the illness of the Complainant. Shortly thereafter, the Crown preferred a direct indictment in this case.

[5] There was a section 278 application in which Dennison J. was asked to consider the admissibility of some records. That application was dismissed at the first stage on March 29th, 2023. In that application, Dennison J. noted that there might be an issue in respect of a “demand letter” that had apparently been written by the complainant and had come into the possession of the accused. Dennison J. did not address the admissibility of the demand letter.

[6] The first day and a portion of the second day of trial were devoted to addressing a series of motions. These were addressed mostly on consent, as follows:

a) A motion under section 715.1 of the Criminal Code, permitting the Crown to tender two statements given by the Complainant to the Peel Regional Police as part of her evidence. This was consented to and I granted the relief the Crown sought.

b) A motion under section 486.1 for testimonial aids. Originally, this motion sought permission for the Complainant to testify outside of court by closed circuit television. However, when the motion was actually heard, the Complainant was simply seeking to have a support person (her biological father) sit near her in the Courtroom. This motion was granted after some discussion and a caution to the support person that the case could not be discussed with the Complainant while she was testifying.

[7] There was also a motion brought by the Crown for permission to cross-examine the accused on the statement that he had given to Peel Police. The accused conceded both that this statement was voluntary and that he was given his rights to counsel under the Charter. However, given that the accused was self-represented, I determined that I would not grant this motion until I had an opportunity to both read the transcript of the statement and view the videotape. They were both marked as lettered exhibits.

[8] On the second day of the trial, before any evidence had been heard, I advised the parties that I had determined that the statement was voluntary, and that the accused had been provided with his right to counsel. I advised the parties that I would briefly explain my reasons for those conclusions, which I will do now.

[9] R. v. Oickle, 2000 SCC 38, [2000] 2 S.C.R. 3 sets out the four stage test to determine whether a statement is voluntary. I have considered these four criteria and have satisfied myself beyond a reasonable doubt that the statement was voluntary. In this regard, I note as follows:

a) There was no evidence of any threats or inducements offered to the accused. He was simply told what the charges were and that the officer was going to give him some information about those charges.

b) The circumstances in which the statement were made were not oppressive and the accused’s will was not overborne. The environment in which the statement was given was a police interview room, but there were no indications of any problems with the environment, and certainly nothing like what was described in R. v. Hoillet.

c) The accused had an operating mind throughout the statement, as is evidenced from his decision to get legal advice after the fact.

d) There was no evidence of any police trickery in the statement.

[10] In terms of the right to counsel, I note that the accused was offered his right to counsel and given the appropriate caution at the outset of the interview. In addition, the accused was offered another opportunity to consult counsel during the interview. I have no concerns about the accused being provided his rights to counsel.

[11] The final issue that was addressed on the second day of the trial was the “demand letter” that had been identified by Dennison J. Section 486 counsel was present for these discussions, as I determined that the admissibility of this demand letter might affect the course of the cross examination. I asked counsel to consider what would happen if we assumed but did not conclude that the letter was a record. Crown counsel advised that he would concede the step 1 hearing if I determined that the “demand letter” was a record.

[12] As a result, the Crown had arranged for counsel for the Complainant, who had also been counsel on the application before Dennison J., to appear and advise us of the Complainant’s position on whether the demand letter was caught by a privacy interest. Counsel for the Complainant originally advised that the Complainant was asserting a privacy right over the letter.

[13] Based on that position, I advised the parties that we would need to address this issue by way of a motion. Given the availability issue of section 486 counsel (who was only recently retained) and of the Complainant’s counsel, it was clear an adjournment was going to be necessary if the admissibility of the letter was going to be contested. After a break, however, I was advised that the Complainant had waived her privacy right in the demand letter. As a result, cross-examination on the document was permitted.

[14] I now turn to the merits of the case.

The Evidence - Background

[15] As part of the Crown’s case, I heard testimony from the complainant, A. D-H., her grandmother D. H. and her aunt C.H. I also received some exhibits that I will discuss as I analyze the evidence. The defence did not present a case. I will briefly summarize the undisputed facts and then review the evidence of each of the witnesses.

a) Undisputed Facts

[16] I understand that, at all material times, the accused was a crane operator who worked night shifts. His spouse, T.C., has at all material times worked in a daycare.

[17] The Complainant, A. D-H. is T.C.’s daughter and was born in 2004. The Complainant was between twelve and fourteen when these incidents allegedly happened. At the time of trial, she was nineteen years old. She has two younger siblings, both of whom have different fathers. She has a younger brother, B.H., who is currently approximately fifteen years old and a younger sister, L.C., who is currently twelve years old.

[18] The complainant first became acquainted with the accused when T.C. and the accused began a relationship back in 2009. The accused and T.C. met in February of 2009 and were married in August of 2009. The relationship between the accused and his mother-in-law, D.H., began to deteriorate shortly after the relationship began.

[19] The accused, T.C. and the children moved residences on a number of occasions over the course of their time together. When T.C.’s relationship with the accused started, the Complainant and B.H. would regularly spend Tuesdays with D.H. and her husband. As time went on, the Tuesday visits became less frequent, to the point where they stopped altogether. The other occasions when the Complainant would get to see her grandparents also dwindled to the point that, in the year before the Complainant went to the police, she was only seeing her grandparents a few times a year at family events.

[20] In the summer of 2017, the Complainant ran away from home in the middle of the night while her mother was sleeping and the accused was at work. She went to her grandparents’ house, but they were on vacation. Her aunt, C.H., found her curled up in a chair outside. The police were called and the Complainant was taken back home.

[21] The Complainant remained unhappy and testified about significant restrictions that were imposed on her, including what she could and could not watch on TV, what she could wear in terms of clothes and what friends she could have. I do not need to resolve those issues, only note that they continued to exist from the Complainant’s perspective between the first time that she ran away and the second time that she ran away and that they continued to affect her relationship with her mother and the accused.

[22] In any event, the Complainant finally decided that she could not longer live in the home environment. On March 28th, 2018, the Complainant was at her mother’s daycare when she decided that she would go to her grandparents. She did so on her own.

[23] The accused and T.C. decided that the Complainant could stay at her grandparents’ house over the Easter weekend. After further discussion, it was ultimately determined that the Complainant would live with her grandparents for a period of time.

[24] In the summer of 2018, the Complainant’s grandparents began a Court proceeding to obtain formal custody of the Complainant. It was an agreed fact that this transfer of custody was proceeding on consent and was consented to sometime in July of 2018. However, the transfer of the custody of the Complainant was not finalized until October of 2018.

[25] Sometime in late September of 2018, the Complainant disclosed to her aunt, C.H., that she had been sexually abused by the accused. This disclosure was done by way of a series of notes written back and forth between the Complainant and C.H. The Complainant gave a statement to the police on September 25th, 2018. The charge was laid shortly thereafter.

[26] The Complainant gave a further statement to the police on April 7th, 2022 after remembering additional details about the allegations.

b) The Complainant’s Evidence

[27] In addition to providing much of the background evidence I have set out in the previous section, the Complainant adopted her two police statements under section 715.1 of the Criminal Code. Those were both entered as evidence. I should note that there were redactions to the statement that had been agreed upon. The redacted transcript was filed with the Court. However, there were problems with the video/audio timing on the redacted videotape. As a result, the full recording was played in Court and we skipped the redacted sections. It is the full video recordings that were marked as exhibits. However, I have not listened to the redacted sections of those video recordings.

[28] The Complainant testified that the sexual assaults were all very similar in nature and timing. They all took place on the weekends (Friday, Saturday or Sunday nights) when the accused would get her out of bed and bring her into the living room to watch TV with him. The Complainant testified that, when she was younger, the accused would get her up when he came home from work at 2:00 a.m. and watch TV with her.

[29] However, when she was twelve, the Complainant testified that the accused continued to pull her out of bed to watch TV, but would then touch her on the breasts and on her vagina, generally with his hands under her clothes. She testified that this began sometime in 2017, took place most weekends, and continued until she ran away to her grandparents the second time.

[30] In the Complainant’s original police statement, she identified two specific incidents that she recalled, as follows:

a) An incident where she and the accused were sitting on the couch while everyone else was asleep. On that occasion, the Complainant testified that the accused pulled out his penis and tried to get the Complainant to touch it. She kept her hand clenched on her knee during this incident and did not touch it.

b) An incident where the accused climbed into her bed, threw his arm over her and put his hand down her pants and left it there for a while.

[31] In her second police statement, the Complainant identified a further incident that had taken place in Ottawa at New Year’s. The Complainant was originally not sure whether it was 2016 going into 2017 or 2017 going into 2018. However, she later confirmed that it was 2017 going into 2018.

[32] In her second police statement, the Complainant also added details to the incident where the accused tried to get her to touch his penis. In her second police statement, the Complainant stated that this incident took place late one evening while she, the accused and her brother B.H. were all watching Seinfeld. B.H. was put in bed, and it was after B.H. was put in bed that the accused attempted to have her touch his penis.

[33] The Complainant further clarified the penis touching incident in her examination in chief at trial. At that point, she advised that that B.H. had been on the couch for the whole incident, but that he had been mostly asleep when the incident happened.

[34] The Complainant testified that she was a “visual learner” and that she had been diagnosed with ADHD sometime in 2019 and that her doctor had very recently diagnosed her with autism. I presume that this was a diagnosis of an Autism Spectrum Disorder. No medical documentation was entered into evidence.

[35] The Complainant also testified about the events that caused her to run away to her grandparents’ house and how they ended up having sole custody of her. Most of that evidence conformed with the evidence given by the other witnesses. There were some differences that I will address in my analysis of the evidence as a whole.

[36] One of the places where the Complainant’s testimony diverged was in respect of the “demand letter”. The Complainant testified about it in cross-examination. Her original testimony was that she had written it when she was twelve and that it had been hidden in her room between then and when she moved to her grandparents.

[37] She also originally testified that the next time she heard about the letter was in the week before trial when it was raised as an issue by her counsel. However, in cross-examination she was confronted with the fact that the letter was reviewed by her mother and the accused on the Easter weekend when she had run away. After being confronted, the Complainant recalled this conversation and recalled that the letter had been discussed in March of 2018.

c) C.H.’s Testimony

[38] C.H. testified that she is the sister of T.C. and, therefore, the sister-in-law of the accused. She testified about the two occasions when the Complainant had run away from home as described above. On the first occasion, C.H. confirmed that she found the Complainant on a chair outside the grandparents’ house in the middle of the night.

[39] On the second occasion, C.H. provided detailed testimony about the events around the Easter weekend in 2018 when the Complainant ended up living with her grandparents. She confirmed that the complainant arrived at her grandmother’s house, and that T.C. and the accused arrived shortly thereafter.

[40] C.H. testified that it was originally decided that the Complainant could remain at her grandparents’ house for the Easter weekend and that the Complainant would go back to school on the Tuesday after Easter.

[41] C.H. testified that, on the Tuesday after Easter, the Complainant was taken to school by C.H and her husband. However, the Complainant was feeling nervous about going home. C.H. did not feel comfortable with the idea of leaving the Complainant at school. As a result, C.H. got her father (the Complainant’s grandfather), who was on the permission forms at school, to give permission to have the Complainant brought back to her grandparents’ house.

[42] At this point, the police came to the grandparents’ residence. However, the police advised T.C. and the accused that the Complainant was safe and that they were not going to force her to go home.

[43] C.H. confirmed that, after this weekend, neither the accused nor T.C. visited the grandparents’ house again and that she was not aware of any contact that they had with the Complainant. C.H. understood that the Complainant’s grandparents got formal custody of her in October, but she was not significantly involved in the conversations about custody either at Easter or subsequently.

[44] C.H. testified that, after the Complainant moved into her grandparents’ house, she had access to social media. The social media accounts were monitored. C.H. testified that there were some concerning social media posts that led to her and her mother, D.H., having a conversation with the Complainant.

[45] C.H. testified that there were three social media posts that were of concern. One was a discussion with a boy that was inappropriate. The other two were conversations about being forced to do something. The first was vague, while the second clearly suggested the possibility of a sexual assault. None of the social media posts were screenshotted or otherwise preserved.

[46] During the course of that conversation, C.H. was able to get the Complainant to verbally confirm that she had been sexually assaulted. However, the Complainant was not able to verbally outline what had happened and she proceeded to write notes back and forth as described at paragraph 25. Once this disclosure had been made by the Complainant, the police were contacted, and the Complainant and other family members were interviewed.

d) The Testimony of the Complainant’s Grandmother, D.H.

[47] D.H. testified that she had memory difficulties, and that on a scale of 1-10, she would rate them as between 8 and 9. She confirmed that her doctor knows about these memory issues. D.H. used her police statement to refresh her memory on several occasions, and it was clear to me that she did have memory difficulties.

[48] D.H. confirmed that she used to see the Complainant and her brother on Tuesdays when she and her husband would take them out for food and then bring them back to their house to play. These visits were reduced over time to pretty well nothing after the accused came into the picture.

[49] D.H. confirmed that she was not at home when the Complainant ran away from home the first time in 2017. She was in Niagara Falls with her husband, and was told about what happened by one of her daughters.

[50] D.H. confirmed the arrival of the Complainant on her doorstep on March 28th, 2018, after the Complainant had run away from the daycare where her mother worked. D.H. recalls the Complainant’s mother and stepfather arriving shortly thereafter and then the police arrived. The police confirmed that they were not going to make the Complainant go home. D.H. also testified that the Complainant was hysterical and was screaming and shouting that she did not want to go home.

[51] In her testimony, D.H. originally did not recall any discussions about custody. However, her memory was refreshed with her police statement, and she confirmed that the discussion about custody took place on one evening during the Easter weekend when T.C. spoke to the Complainant downstairs and then went outside and spoke to the accused. After those two conversations, D.H. recalls that the accused and T.C said that you (meaning D.H.) could have the Complainant. D.H. recalls the Complainant being in the room when this information was shared.

[52] D.H. was asked in cross-examination about the “demand letter” but did not recall it ever being discussed. D.H. also does not recall any further discussions with either T.C. or the accused about the custody of the Complainant. D.H. also confirmed that neither the accused nor T.C. made any effort to contact the Complainant or see her after the Easter weekend.

[53] D.H. confirmed that she and her husband commenced a custody application in June of 2018. She also confirmed that she had conversations with the Complainant about custody between March and October of 2018, but that she could not remember the content of those conversations.

[54] D.H. also confirmed that she and C.H. had a conversation with the Complainant that led to the Complainant disclosing the alleged assaults. D.H. testified that this conversation came about because they had been monitoring the Complainant’s social media posts and had found some “inappropriate” conversations between the Complainant and a boy. D.H could not remember any other events that led to the conversation between C.H. and the Complainant about the alleged assaults.

The Law

[55] The accused did not testify, and I draw no conclusions from his decision to continue to exercise his right to silence. In considering the charge on the indictment, I must be satisfied beyond a reasonable doubt that the Crown has proven each element of the offence.

[56] The offence charged is sexual interference. The elements of the offence are:

a) That the Complainant was under the age of 16 when the incident took place;

b) That the accused touched the Complainant’s breast and vaginal areas; and

c) That the touching was for a sexual purpose.

[57] Although there are three essential elements to the offence, my focus is on whether the incidents happened or not. If the incidents happened, then given the location and manner of the alleged touching, it is clear that they were for a sexual purpose. It is also clear that the Complainant was under the age of 16 when the incidents allegedly took place.

[58] In considering these essential elements, corroborating or confirmatory evidence is not required. I can be satisfied beyond a reasonable doubt based on the evidence of the Complainant alone. R. v. A.G., 2000 SCC 17 at para. 30.

[59] My determination of this case turns, in large part, on my assessment of the Complainant’s credibility. However, my assessment must be more complete than merely determining whether the Complainant is credible. I must be satisfied that the evidence, taken together, proves the Crown’s case beyond a reasonable doubt: R. v. J.J.R.D., (2006) 215 C.C.C. (3d) 252.

[60] In considering the Complainant’s evidence, I do not have to resolve every inconsistency. I should consider whether, and to what extent, the core of the Complainant’s allegations was affected by the inconsistency. R. v. R.A., 2017 ONCA 714 at para. 53, aff’d 2018 SCC 13, [2018] 1 S.C.R. 307. I must also remember that the peripheral details of a traumatic event can be difficult to accurately recall and describe. R. v. A.A. 2023 ONCA 174 at para. 17 and R. v. G.M.C. 2022 ONCA 2 at para. 38.

[61] In considering the evidence of the witnesses, I must consider the difference between credibility and reliability. As the Court of Appeal explained in R. v. H.C., 2009 ONCA 56 (at para. 41):

[41] Credibility and reliability are different. Credibility has to do with a witness’s veracity, reliability with the accuracy of the witness’s testimony. Accuracy engages consideration of the witness’s ability to accurately

i. observe; ii. recall; and iii. recount

events in issue. Any witness whose evidence on an issue is not credible cannot give reliable evidence on the same point. Credibility, on the other hand, is not a proxy for reliability: a credible witness may give unreliable evidence: R. v. Morrissey (1995), 22 O.R. (3d) 514, at 526 (C.A.).

[62] I must also remember that there is an increased difficulty in assessing the credibility of children as opposed to adults. Although a child’s testimony is not subject to a lower standard of proof, there is an understanding that a flaw, such as a contradiction should not be given the same effect in a child’s evidence as it would be in an adult’s evidence. R. v. J.J.B., 2013 ONCA 268, adopting principles from R. v. B.(G.), [1990] 2 S.C.R. 30.

[63] The Supreme Court expanded on these principles in R. v. W.(R.), [1992] 2 S.C.R. 122 at para. 26, where McLachlin J. (as she then was) stated:

It is neither desirable nor possible to state hard and fast rules as to when a witness's evidence should be assessed by reference to "adult" or "child" standards -- to do so would be to create anew stereotypes potentially as rigid and unjust as those which the recent developments in the law's approach to children's evidence have been designed to dispel. Every person giving testimony in court, of whatever age, is an individual, whose credibility and evidence must be assessed by reference to criteria appropriate to her mental development, understanding and ability to communicate. But I would add this. In general, where an adult is testifying as to events which occurred when she was a child, her credibility should be assessed according to criteria applicable to her as an adult witness. Yet with regard to her evidence pertaining to events which occurred in childhood, the presence of inconsistencies, particularly as to peripheral matters such as time and location, should be considered in the context of the age of the witness at the time of the events to which she is testifying.

[64] Finally, there is the question of the timing of the disclosure. It is clear that a delay in disclosure, standing alone, will never give rise to an adverse inference against the Complainant’s credibility. R. v. D.D., 2000 SCC 43, [2000] 2 S.C.R. 275 at para. 65. The law on delayed disclosure can also be applied to piecemeal disclosure, depending on the facts of the case: R. v. D.P., 2017 ONCA 263 at 29-31.

Analysis

[65] I start with the evidence of D.H. While I am of the view that she was credible in that she was trying to tell me the truth, her evidence is not particularly reliable. I reach that conclusion based on her self-identified memory problems. These problems were evident when she testified. On even significant evidentiary points, D.H. had to have her memory refreshed from her police statement. As a result, I have generally preferred the evidence of other witnesses when there is a conflict between it and the evidence of D.H.

[66] I now turn to the Complainant’s evidence. The Crown Attorney asserts that the Complainant was believable, candid and forthright and that she made a compelling witness. The Complainant certainly came across as all of these things. However, her evidence has left me with a reasonable doubt, both because of changes in her version of events and because of inconsistencies with the evidence of other witnesses.

[67] I start with her version of events. In particular, the manner in which the incident where the accused allegedly tried to get the Complainant to touch his penis is of concern. This incident was described by the Complainant in her first police statement as having taken place when she was alone with the accused. In her second police statement, she testified that it happened when she, the accused and her brother B.H. had been watching Seinfeld, but after B.H. had been put to bed. At trial, the story changed again and the Complainant identified the incident as having taken place when B.H. was present, but when he was mostly asleep.

[68] Crown counsel argued that these differences were not significant and could be explained by the fact that the Complainant was a child witness. In support of that argument, counsel directed my attention to the decision in R. v. S.J.K., 2016 ONCA 928. In that decision the Court of Appeal accepted the trial Judge’s conclusion that the inconsistencies could be explained by the fact that the Complainant was “shy and afraid” when giving her original police statement, but that she had matured at the time of trial. Counsel suggests that I should accept the same type of explanation in this case.

[69] That argument would have merit if there had only been differences between the first police statement and the trial. However, in this case, the Complainant gave three different versions of this incident. Two of those versions (the second police statement and her trial testimony) were given when the Complainant was an adult.

[70] I also note that the Complainant was not just adding details to her testimony. Merely adding details would not have raised a reasonable doubt for me, because Complainants regularly do that for, inter alia, the reasons described in S.J.K. There may be maturation on the part of the witness or more comfort with the court system. In this case, it is an actual change to the story that makes the various versions inconsistent with each other. It is a central part of the story and, as a result, it raises a reasonable doubt as to whether these incidents took place.

[71] It is not the only frailty in the Complainant’s evidence, however. There are a couple others and I turn to those now. First, there was the Complainant’s testimony on the “demand letter”. There were two problems with this evidence. First, when originally asked about the “demand letter”, the Complainant testified that she wrote it when she was twelve years old and that she had not seen it again until she was told about it by her counsel the week before trial. This evidence was given firmly and appeared to be both candid and forthright.

[72] However, when confronted with the possibility that she might have discussed this letter with T.C. and the accused on the Easter weekend in 2018, the Complainant changed her testimony and accepted that the letter had been discussed that weekend.

[73] Crown counsel argued that this “demand letter” was peripheral to the allegations before the Court. I accept that it is peripheral to the sexual interference allegations. However, it is a central feature of the events in this case, as it concerns the very weekend where the Complainant was moving from the house where she lived with the accused and T.C. to her grandparents’ house. Those events were significant.

[74] The second problem with the Complainant’s evidence on the demand letter was her claim that it was written when she was twelve years old and in Grade 6. The problem with this evidence is that the letter suggests it was written when she was in Grade 8. There are several items (such as the Complainant’s desire to wear makeup, have a cell phone and be on social media) that are suggestive of someone in Grade 8 rather than Grade 6. However, the most significant item is the insistence (Item 16) that “I can go to any high school I want.” I find it unlikely that a child in Grade 6 would be attempting to negotiate which high school they are going to attend.

[75] The Complainant’s evidence about the “demand letter” raises questions about the credibility and reliability of her evidence when considered as a whole. It is another factor that raises a reasonable doubt about the guilt of the accused. When taken together with the issues I have outlined about the Seinfeld incident, I am not satisfied of the accused’s guilt beyond a reasonable doubt, and I must therefore acquit him. I will now address some other facets of the Complainant’s evidence that support my conclusion.

[76] The third issue with the Complainant’s evidence is the Ottawa incident. This incident was only disclosed in the second police statement in 2022. On its own, the late disclosure of this incident (which could also be considered as a form of piecemeal disclosure) would not raise concerns for me. However, this incident is different from the others in that it took place on vacation and might therefore stand out in the Complainant’s memory. In addition, during the course of her first police statement, the Complainant was asked on two separate occasions whether she remembered anything else. Finally, this piecemeal disclosure must be considered against the backdrop of the issues with both the Seinfeld incident and the “demand letter”.

[77] This brings me to two other issues that arose. First, there was the Complainant’s explanation as to why she waited until September of 2018 to disclose these incidents. She testified that she had discovered that her grandparents were going to have custody of her and that she, therefore, felt safe in disclosing the alleged abuse.

[78] On its own, this is a compelling explanation. The problem is that I also have the evidence of D.H., which was that the decision about custody was made in March, when T.C. told D.H in the Complainant’s presence “you can have her”. There is also the evidence that the custody application, which proceeded on consent, started in June of 2018 but was not resolved until October. D.H. also testified that they told the Complainant about the custody change when it happened.

[79] I also have evidence that the entire conversation leading to the Complainant’s disclosure was precipitated by social media posts. That explanation, which was consistent in both C.H. and D.H.’s testimony, also does not quite fit with the explanation the Complainant gave for why she came forward when she did.

[80] Finally, there is the issue of a motive to fabricate. I am alive to the difference between finding an absence of evidence of a motive to fabricate and making a positive finding that there was no evidence of a motive to fabricate. R. v. P.S., 2019 ONCA 637 at para. 55.

[81] In this case, there is a very limited amount of evidence that the Complainant had a motive to fabricate. It comes from two sources. First, there was her obvious and long-standing dislike of the manner in which the accused and T.C. ran their household and the rules that she was subjected to. Second, there was her statement to police that “I have siblings still in the house, so, yeah, we’re gonna [sic] see how this could try to help us get them outta there too, because it’s really not a good place for them to be in.” Neither of these concerns, taken on their own, would raise a reasonable doubt. However, they are both concerns that support my conclusion that I have a reasonable doubt.

[82] In the end, while I accept that the Complainant was a generally credible witness, there are facets of her testimony that leave me with a reasonable doubt.

Disposition

[83] For the foregoing reasons, I find the accused not guilty.

LEMAY J Released: May 23, 2023

COURT FILE NO.: CR-21-0918 DATE: 2023 05 23 ONTARIO SUPERIOR COURT OF JUSTICE BETWEE N: HIS MAJESTY THE KING - and - D.C. Accused REASONS FOR JUDGMENT LEMAY J Released: May 23, 2023