COURT FILE NO.: CR-22-112-00 DATE: 2023 07 10
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING – and – S.D.C.
Counsel: G. Gill, for the Crown A. Sobcuff, for S.D.C.
HEARD: April 17, 18, 19, and 20, 2023
REASONS FOR JUDGMENT
L. Shaw J.
Introduction
[1] The accused, S.D.C., has pleaded not guilty to one count of sexual assault, contrary to s. 271 of the Criminal Code, R.S.C., 1985, c. C-46 (the “Code”) and one count of touching the body of a person under the age of 16 years for a sexual purpose, contrary to s. 151 of the Code. Both charges relate to a single alleged sexual assault that occurred on January 1, 2020. I tried the accused without a jury.
[2] The Crown called two witnesses: the complainant and her mother. The accused testified on his own behalf and called one other witness: his former girlfriend.
[3] Only the accused and the complainant, S., who is the accused’s daughter, can testify about what allegedly occurred on January 1, 2020. On that date, S. alleges that S.D.C. sexually assaulted her while the two of them laid in bed.
[4] S.D.C. does not deny that on the day in question, his daughter was with him in his bed, but denies having sexually assaulted her. S. alleges that while lying in bed, she felt S.D.C. pull the bottom of her pyjamas down and then felt his penis near the top of her buttocks and then between her legs. S.D.C. denies any of this occurred.
[5] Given the conflicting evidence, the credibility and reliability of the witnesses who testified are central to this case and in determining if the Crown has proven S.D.C.’s guilt beyond a reasonable doubt.
Analytical Framework
Reasonable Doubt
[6] At all times, the Crown bears the onus for proving that an accused is guilty beyond a reasonable doubt. Each person charged with a criminal offence is presumed innocent and this presumption remains throughout the whole trial, unless and until the court is satisfied that the charge has been proven beyond a reasonable doubt. At the end of hearing the evidence and submissions, if I am not satisfied that the Crown has proven all elements of the offence charged beyond a reasonable doubt, the accused will be acquitted of the charge.
W. (D.) Analysis
[7] Given the conflicting evidence of S. and S.D.C., credibility assessments are key to the determination of guilt or innocence in this case. Therefore, the three-step analysis set out at paras. 27-28 of R. v. W. (D.), [1991] 1 S.C.R. 742 must be followed to prevent the burden of proof from shifting to the accused. The three steps are as follows:
I. If I believe S.D.C.’s evidence, I must acquit him. II. If I do not believe S.D.C.’s testimony but am left in a reasonable doubt by it, I must acquit him. III. Even if S.D.C.’s evidence does not leave me in doubt, I must ask myself whether, based on the evidence which I do accept, I am convinced beyond a reasonable doubt by that evidence of S.D.C.’s guilt.
[8] At all times, it is important to keep in mind that the accused’s credibility should not be assessed solely in relation to the complainant’s credibility. This is not a credibility contest between S. and S.D.C. The burden remains on the Crown to prove S.D.C.’s guilt beyond a reasonable doubt.
[9] In a case such as this, when dealing with two witnesses whose evidence is completely contradictory, an accused is not to be disbelieved simply because the complainant is believed: R. v. V.Y., 2010 ONCA 544, 258 C.C.C. (3d) 281, at paras. 19 and 26. An accused is not to be found guilty after accepting the evidence of the complainant without properly assessing whether the accused’s evidence, or the evidence as a whole, raises a reasonable doubt: R. v. J.H., 2018 ONCA 245, at para. 37.
[10] The mere disbelief of the accused’s evidence will not discharge the Crown’s burden of proof: W. (D.), at paras. 26-27. If, after considering all the evidence, the court is unable to decide whom to believe, then the court must acquit. The court must be satisfied on the totality of the evidence that there is no reasonable doubt as to the accused’s guilt.
[11] There is a line of cases that deals with the rejection of an accused’s denial of any wrongdoing. In R. v. J.J.R.D. (2006), 215 C.C.C. (3d) 252 (Ont. C.A.), leave to appeal refused [2007] S.C.C.A. No. 69, at para. 53, Doherty J.A. found that the trial judge rejected the accused’s denial because when the accused’s evidence was stacked up against the complainant’s evidence and other evidence, despite the absence of any obvious flaws, it did not leave the trial judge with a reasonable doubt. The court found:
An outright rejection of an accused’s evidence based on a considered and reasoned acceptance beyond a reasonable doubt of the truth of conflicting credible evidence is as much an explanation for the rejection of an accused’s evidence as is a rejection based on a problem identified with the way the accused testified or the substance of the accused’s evidence.
[12] This reasoning was followed in R. v. D. (R.), 2016 ONCA 574, 342 C.C.C. (3d) 236, at para. 18, where the court found that the bare acceptance of a complainant’s evidence and the bare denial of an accused’s evidence are insufficient reasons. If a trial judge is to rely on J.J.R.D., the court must set out the grounds for accepting a complainant’s evidence.
Assessing Credibility and Reliability
[13] When making credibility and reliability findings, I must consider several factors to assess the weight to give a witness’ evidence. No single factor is determinative: each must be considered where applicable. Some of those factors are a witness’ power of observation, the accuracy of his or her memory, his or her age at the time of events, the passage of time, any bias or partiality or interest in the outcome, any inconsistences with prior statements or with other witnesses or documentary evidence, inconsistencies in evidence given during the trial, and if there is any independent confirming or contradictory evidence.
[14] Assessing the reliability and credibility of a witness is not a science. As we instruct juries, there is no magic formula in deciding how much or little to believe of a witness’ evidence. We are to be guided by our common sense and experience in human affairs.
[15] While I can consider the way a witness testifies in assessing that witness’ credibility and reliability, I cannot overly rely on demeanour: R. v. D.P., 2017 ONCA 263, [2017] O.J. No. 1593 (QL), at para. 26, leave to appeal refused, [2017] S.C.C.A. No. 261. We now understand that witnesses react and behave differently when testifying at trial. As we instruct juries, there are too many variables to make the way a witness testifies serve as the only or most important factor in assessing the witness’ credibility and reliability.
[16] In R. v. M. (A.), 2014 ONCA 769, 123 O.R. (3d) 536, at paras. 12-13, the Court of Appeal noted that one of the most valuable means of assessing witness credibility is to examine the consistency between what the witness said in the witness box and what he or she has said on other occasions, whether under oath or not. Inconsistences may arise not just from a witness’ evidence at trial, but from what witnesses may have said differently in other instances. Some inconsistences are minor or deal with more peripheral issues. Some are material. Material inconsistencies about which an honest witness is unlikely to be mistaken may demonstrate a carelessness with the truth that should concern the trier of fact.
[17] Reliability is separate from credibility. Credibility focuses on a witness’ veracity. Reliability has more to do with accuracy – the witness’ ability to observe, recall and recount events that are at issue. A witness may be credible but give unreliable evidence. A witness whose evidence is not credible on a certain issue cannot be reliable on that same issue: R. v. C. (H.), 2009 ONCA 56, 244 O.A.C. 288, at para. 41.
[18] It is open to a trier of fact to believe all, none, or some of a witness’ evidence: R. v. M. (R.E.), 2008 SCC 51, [2008] 3 S.C.R. 3, at para. 65. The trier of fact may also accord different weight to different parts of the evidence that has been accepted: R. v. Howe (2005), 192 C.C.C. (3d) 480 (Ont. C.A.), at para. 44; R. v. M.M., 2018 ONSC 1022, at para. 143.
[19] In assessing S.D.C.’s evidence, the court must consider his evidence in the context of all the evidence when determining reasonable doubt: R. v. J.H. S., 2008 SCC 30, [2008] 2 S.C.R. 152, at para. 15.
[20] Where there are significant inconsistencies or contradictions within a principal Crown witness’ testimony, or when considered against conflicting evidence in the case, the trier of fact must carefully assess the evidence before concluding that guilt has been established: R. v. S. (W.) (1994), 18 O.R. (3d) 509 (C.A.), at para. 15, leave to appeal refused, [1994] S.C.C.A. No. 290.
[21] Witnesses are not “presumed to tell the truth”: R. v. Thain, 2009 ONCA 223 at para. 32. Rather, the totality of the evidence must be considered when assessing each witness’ evidence. The only presumption that applies is the presumption of innocence: Thain at para. 32.
Videotaped Statements under s. 715.1
[22] S. was 7 at the time of the alleged assault. On consent, her out-of-court statement given to the police was admitted for the truth of its contents pursuant to s. 715.1 of the Code. Provided certain conditions are met, that provision provides for a statutory exception to the rule that hearsay is inadmissible.
[23] It is generally accepted that children will have a better recollection of events shortly after they occur. A videotaped statement made within a reasonable period after the alleged offence will reflect a more accurate recollection of events than would testimony given later at trial. S. 715.1 of the Code enhances the court’s ability to find the truth by preserving a very recent recollection of the event in question: R. v. C.C.F., [1997] 3 S.C.R. 1183, at paras. 17-19.
Motive
[24] The accused argues that S.’s mother, M.D., had a motive to fabricate and encourage S. to make a false report to the police. When dealing with allegations of motive, it is important to be mindful that the absence of evidence of motive to fabricate is not the same as proven absence of motive to fabricate: R. v. L. L., 2009 ONCA 413, at para. 44. The former is an element that may be considered in assessing the credibility of a witness, but it is only one element, whereas the latter may be a compelling reason to conclude that the witness is telling the truth: R. v. W.R., 2020 ONCA 813 at para. 18.
Assessing a Child’s Evidence
[25] Adult standards should not be applied when assessing the credibility of a child witness. Children may experience the world differently from adults, and, as such, important details like time and place may be missing from their recollection: R. v. W. (R.), [1992] 2 S.C.R. 122, at para. 25. A common sense approach must be used when assessing the testimony of young children rather than the same exacting standard as applied for adults. They may not be able to recount precise details and communicate the when and where of an event with precision, but that does not mean they have misconceived what happened to them and who did it: R. v. B. (G.), [1990] 2 S.C.R. 30, at para. 44.
[26] In R. v. M. (A.), the Court of Appeal considered principles that apply when assessing evidence of a child and noted that “no inflexible rules mandate when a witness’ evidence should be evaluated according to ‘adult’ or ‘child’ standards”: at para. 10. In this case, S. was 7 years of age at the time of the alleged sexual assault and 10 years of age when she testified at this trial. While she presented as an articulate and well-spoken person, she was nonetheless considered a child at the time of the alleged occurrence, and I have considered that when assessing his evidence.
Review of the Evidence
[27] With this analytical framework, I will now review the evidence.
[28] S.D.C. and M.D. were in a relationship and lived together before they separated in 2013. They have one child, S., born in 2012, who was 7 at the time of the alleged assault. S. has lived primarily with M.D. since they separated. At the time of the alleged sexual assault, S.D.C. had access with S. (now called parenting time) every second weekend; some weekends, it was for one day, and other times, it was for the full weekend.
[29] In January 2020, S.D.C. was living in a basement apartment. The alleged sexual assault took place in his bedroom in that apartment during his parenting time with S.
S.’s Evidence
i) Police Statement
[30] S. gave a statement to the police on January 5, 2020. Her statement was played during the trial. S. confirmed that she recalled speaking to the police and asserted that what she said was true.
[31] In that statement, S. described, in detail, S.D.C.’s bedroom in his basement apartment. There was a bed in S.D.C.’s bedroom, a television, and a table with pictures on it that she gave him. She said the television was on a glass table. She said there was a foam baseball bat and ball in the bedroom. There was no window.
[32] S. talked to the officer about her family, her pets, and school. She described what she did when she spent time with S.D.C., including going swimming with him at Century Gardens. She talked about V.G., who was S.D.C.’s girlfriend at the time. She said that V.G. was at his apartment sometimes, but she did not sleep over. She knew that V.G. had children and she said that V.G. was nice to her.
[33] She told the officer that on the first night that she was sleeping over at S.D.C.’s apartment on Wednesday (which was January 1, 2020), he put his penis on the top part of her “bum” while they were sleeping in his bed. She said that S.D.C. also put his penis between her legs, close to her “peepee,” which was the word she used for vagina, but not inside. In these reasons, I will refer to S.’s buttock as her “bum” as that was the term used throughout this trial.
[34] She told the officer she was wearing her pyjamas. She said S.D.C. pulled them down and she did not know why. She did not see S.D.C.’s penis; he was lying behind her and they were both under the covers. She told the officer she asked S.D.C. “why are you pulling my pants down” and he said, “I’m not.” She said S.D.C. was lying when he said that. She told the officer S.D.C.’s pants were off when she felt his penis on her bum.
[35] She said that she felt embarrassed, not good, weird, and sad when his penis was on her bum.
[36] She denied that S.D.C. asked her to do anything.
[37] She told the officer that she didn’t want to tell S.D.C. as she felt like she was going to get in trouble with him.
i) Viva Voce Evidence
[38] At the commencement of trial, orders were made pursuant to s. 486.2(1) of the Code, that S. testify outside the courtroom, with the assistance of close circuit television, and that a support person be present pursuant to s. 486.1(2) of the Code.
[39] S. was 10 years of age and in grade 5 when she testified. She lives with her mother, stepfather, stepsister, and stepbrother.
[40] S. testified that she was spending the night with her father, S.D.C., on January 1, 2020. She recalled that he lived in a basement apartment in a house. There was another bedroom in the apartment. S.D.C. used to have a roommate but not at that time. She recalled that she went bowling earlier in the day with S.D.C. and his girlfriend V.G., but that V.G.’s children were not with them. She recalled throwing up in the bathroom at the bowling alley. When she returned to S.D.C.’s home after bowling, she felt “kind of sick,” so she went to bed but did not know at what time.
[41] When she was cross-examined, S. denied ever meeting V.G.’s children. She denied that V.G. was at S.D.C.’s apartment when she arrived that day but came over just before they left to go bowling. She did not recall eating anything before they left to go bowling. She agreed that she threw up in the taxi and S.D.C. and the taxi driver had to clean the taxi. She agreed that she went to V.G.’s house but did not recall what they did. She agreed that they walked to the bowling alley from her house. She did not recall getting clean clothes at V.G.’s house. V.G.’s children were there; it was the first time she met them. She, S.D.C. and V.G. walked together to the bowling alley; she could not remember if V.G.’s children were with them but agreed they could have been.
[42] She recalled feeling weird at the bowling alley and knew that something was wrong. She agreed that she went into the washroom with V.G. and threw up again. She did not remember that S.D.C. left the bowling alley to get her some medication. She did not recall throwing up when they left the bowling alley. She agreed that she walked with S.D.C back to his apartment. She did not recall S.D.C. giving her any medication but agreed that he may have given her Advil.
[43] S. testified that when she went to bed, she laid on her side on the left side of the bed, closest to the wall; she was facing the wall. She and S.D.C. were under the covers. Her evidence was that she felt, but did not see, S.D.C. pull her pyjamas down.
[44] When asked how she knew it was his penis on her bum, S. testified that he was facing her, so she did not think it was anything else. She described it as feeling kind of slimy. She did not know where his hands were. When he pulled her pyjamas down, she kind of swatted him away and tried to turn to face him but he turned her over again. She did not recall saying anything to him. She testified that she felt his penis between her legs and thought that was after he put his penis on her bum, not near her vagina. When asked if she could tell the difference between his hands and penis, she said that his hands were dirty and smooth, and his penis was slimy and gross.
[45] When S.D.C. pulled her pyjamas down she was still kind of falling asleep but was awake. When she felt his penis on her bum and between her legs, she was half asleep. She described this to mean that she could feel, hear, and see what was going on but she could not move.
[46] When she was cross-examined, she agreed she went to bed first. She felt bad from throwing up when she went to bed. She agreed she felt weak and tired. She did not recall S.D.C. reading her a book when she went to bed.
[47] She agreed that when she slept in S.D.C.’s bed, he slept beside her. She did not agree that she sometimes slept on her “tummy.” She could not recall if she ever slept on her back or facing S.D.C. She did not agree that she was sleeping on her “tummy” when S.D.C. came to bed.
[48] She was not wearing underwear under her pyjamas. She agreed that S.D.C. was also wearing pyjamas.
[49] She did not know if she fell asleep before he came to bed. She agreed that she was more asleep than awake when this happened.
[50] She agreed that she did not see S.D.C. pull her pyjamas down, but she could hear him. She said he slowly pulled them down to her knees. She felt it but thought she was imagining it, not knowing if she was dreaming. She did not see or feel his hands when he pulled her pyjamas down.
[51] She did not know where S.D.C.’s hands were when she felt something on the top of her bum. She did not recall his hands on her waist or stomach. She could not recall if what she felt on her bum was hard or soft. She did not remember how long it was on her bum but then adopted her evidence from the Preliminary Hearing that it was 2 to 3 seconds.
[52] She did not see his penis. She did not know where his body was in relation to hers when she felt his penis on her bum.
[53] She did not recall saying anything to S.D.C. when she felt his penis on her bum.
[54] She recalled hearing him pull up his pyjamas.
[55] She agreed that before she spoke to the police, she referred to penis as “peepee” and that her mother told her the word to use.
[56] She initially did not agree that S.D.C.’s stomach was not against her back. Her evidence was it was facing into her back. She then adopted as true her evidence from the Preliminary Hearing held on February 28, 2022, that his stomach was not against her back. She agreed that his chest was not touching her body.
[57] She did not know if it was possible that she felt S.D.C.’s penis through his underwear. She testified that she could not recall if he wore underwear but then adopted her evidence from the Preliminary Hearing that he does sleep in his underwear. She testified that she could not recall if she saw him pull his underwear down but then adopted her evidence from the Preliminary Hearing that she did not.
[58] She agreed that she recalled saying to S.D.C., “dad don’t pull my pyjamas down.”
[59] When cross-examined, she testified that his legs were wrapped around hers, kind of holding her back, when she felt his penis on her bum. She agreed that his legs were on top of her legs.
[60] She was asked on cross-examination what she meant by the word “slimy,” and she said “sticky, kind of weird.”
[61] She did not agree with the suggestion that what happened was a dream or part of a dream.
[62] On re-examination, she testified that she was not imagining or dreaming when S.D.C. put his penis on her bum. She never had a dream before like this.
[63] S. explained that when she heard S.D.C. pull his pants down, the sound she heard was hard to explain but it was like a “rustling of clothes” – “like clothes being crumpled.”
[64] She agreed that her mother told her that she sometimes talked in her sleep. She agreed that she thought that she said to S.D.C., “why are you pulling down my pyjamas” but she could not remember. She did not remember S.D.C. saying to her that he was not touching her pyjamas.
[65] In chief, she testified that she could not recall if she stayed with S.D.C. the following day; she did not want to stay with him after this happened. She described feeling awkward.
[66] When cross-examined, she testified that she recalled spending most of the next day with S.D.C. but went home at the end of the day; her mother picked her up. She did not agree that she spent the night of January 2, 2020 with S.D.C. and did not remember what she did with S.D.C. that day. Her evidence was that she only planned on spending one night with S.D.C.
[67] She recalled that she and S.D.C would go swimming at a recreational facility called Century Gardens near S.D.C.’s home. She did not remember going there or to any park with S.D.C. on January 2, 2020.
[68] She was shown photographs of herself that S.D.C. testified were taken on January 3, 2020, at Century Gardens. She testified that she had no clue where the photographs were taken; it did not look familiar to her. She agreed that S.D.C. most likely took the photographs. She testified that while she remembered going to Century Gardens, she did not remember what it looked like. She would not agree with the suggestion the photographs were taken there; she said she did not know.
[69] In chief, she testified that she told her mother what happened but could not recall when. Her evidence was that she told her as she was the first person she thought of telling.
[70] When she was cross-examined, her evidence was that she told her mother the night she got home when she was in her bed. She said she and her mother went to the police on January 5, 2020. She did not agree with the suggestion that her mother told her what to say to the police. She testified that it was not her decision to talk to the police; it was probably her mother’s decision. She knew she was going to be telling the police what happened. She agreed that her mother told her the word “penis.”
M.D.’s Evidence
[71] M.D. is S.’s mother. S. has lived with her since she and S.D.C. separated. They shared decision-making about S., who would spend every second weekend with S.D.C.
[72] Initially after they separated, there was a restraining order against S.D.C., and S. did not spend nights with S.D.C. She could not recall for how long his parenting time was limited. She knew that in 2019 and 2020, S. spent overnights with S.D.C. and she had no concerns with that in 2020.
[73] She testified in chief about alcohol issues involving S.D.C. When she was cross-examined, she agreed that in January 2020, there was a court order that S.D.C. was not to consume alcohol for the 12 hours before he saw S. She was unaware of any alcohol issues on January 1 when she dropped off S. She agreed that on prior occasions, if he had consumed alcohol, S.D.C. would call her to cancel his parenting time with S.
[74] M.D. testified that she dropped S. off at S.D.C.’s home on January 1; he lived in a basement apartment. She said S. was fine when she dropped her off.
[75] She recalled that S.D.C. called her later that day and said S. was not feeling well. She knew they had been to a bowling alley. S.D.C. told her S. was throwing up and asked what she ate earlier that day. He mentioned to her that he was going to give S. some medicine. She texted S.D.C. the next day to see how S. was feeling.
[76] When she was cross-examined, she agreed that she received texts from S.D.C. and a phone call about S. She testified that he was upset that S. was not feeling well. She agreed that there was a flurry of communication about S.’s health and S.D.C. was very concerned. She agreed that he was trying to figure out why S. was ill. She did not recall if she was getting frustrated with his communication about S.’s health. She recalled that S.D.C. told her that S. threw up in a taxi and at the bowling alley.
[77] She agreed that S.D.C. was also upset that her current spouse bought the same toy for S. that S.D.C. bought for her for Christmas. She did not recall if she expressed any anger in a text or phone call that S.D.C. was angry about S. being ill or about the discussion regarding the gift. She did not recall texting him saying she would do something towards him as she was so offended by his texts, but she did not believe she would have done so.
[78] She recalled picking up S. from S.D.C.’s home on January 3, 2020, which was a Friday. She testified that S. seemed a little quiet. She described her as normally chatty, happy, loved to smile, and expressive. That evening, while lying with her in bed, S. said that “when daddy thinks I am asleep he pulls down my pants.” She was a little shy and embarrassed when she said this.
[79] M.D. testified that she was shocked but tried to remain calm when S. told her this. She called her spouse at work. She called the police the next day, a Saturday, and was told to book an appointment to come in the following day, a Sunday. She told S. on the Saturday that she was going to talk to the police to get some extra support. She took S. to the police station on January 5, 2020.
[80] She was aware that S. talked in her sleep but did not know how often. In the past three years, she heard S. talk in her sleep two to three times; she described it as more of a mumble. She testified that she mentioned it to S. once or twice and to the family doctor. Her evidence was that she was not concerned about it.
[81] She did not recall S.D.C. telling her, when she picked up S., that a couple of nights earlier, she was talking in her sleep and asked him why he was taking off her pyjamas. She testified that she would have been very concerned if he told her that. On re-examination, she explained that she would have asked S.D.C. more questions if he told her that. She did not recall S.D.C. saying when she picked up S., that he wanted to get her some counselling because she talked in her sleep. She recalled one prior time he mentioned counselling.
[82] She testified that S. used the word “peepee” to refer to male genitalia.
[83] On January 4, she recalls telling S. that they needed to have someone help them as S. said she did not want to sleep at her Dad’s again.
[84] She did not recall going over any details of what S. told her. Her evidence was she would not want S. to talk about it again. She recalls that she told S. on January 4 that they would be going to the police the next day. She told S. to tell the truth when she spoke to the police. She denied the suggestion that she did a rehearsal with S. about what she was going to say to the police. She denied that she could see herself preparing S. with phrases or sentences to use when she spoke to the police. Her evidence was that she would have listened to S. She testified that she would have asked her if she wanted to tell her story again but did not coach her.
[85] When she was cross-examined, M.D. agreed that over the years, she had conflict with S.D.C. in relation to family law matters. She testified that they went to court after they separated and in 2015 and that she was granted fully custody. She did not agree with the suggestion that she hoped to have more time with her daughter and to make all decisions for her. She testified that she drove S. to and from S.D.C.’s home every second weekend for his access. She also arranged for S. to have piano lessons and play soccer near where S.D.C. lived so he could attend.
[86] She did not agree with the suggestion that she wanted S.D.C. to have less access with S. due to his alcohol. She agreed that in 2015, there was an incident when she called the police to have S.D.C. charged with break and enter, but he was not charged. She did not agree that she did such a thing so that S.D.C. would see S. less often.
[87] She did not agree with the suggestion that she directed or influenced S. about what to say to the police hoping S.D.C. would be charged and to keep him out of S.’s life. She thought that he might be charged with sexual assault but did not know what would happen after that.
[88] She agreed that he has not seen S. since January 3, 2020. Her evidence was that she was relieved that S. was not seeing S.D.C. as she said what S. told her was the worst thing for a mother to hear.
[89] She testified that S. saw a counsellor after the preliminary hearing and still does periodically if she wants to talk to someone. She has seen the counsellor, a social worker, about five or six times.
[90] On re-examination, she testified that she recalled talking to her partner on January 4 about what happened. She recalled telling S. that she was proud of her and would support her.
[91] She did not recall if S. ever used the word penis but she would have used that word in the past when speaking to S. and describing a boy’s private parts.
S.D.C.’s Evidence
[92] S.D.C. graduated from Sheridan College with a telecommunications diploma in 1997. He worked between 2002 and 2018 in sales for various companies. He moved to Brampton in 2018 and worked for landscaping companies. He has not worked since January 2020.
[93] He testified about his relationship with M.D. They began living together in 2010. S. was born in August 2012. They separated when M.D. left with S. in May 2013, without telling S.D.C. He testified that they then had a verbal agreement and S. lived with him 50% of the time. They also had an agreement for child support. That changed in March 2015, when M.D. tried to have him charged with break and enter the week after she started proceedings in family court. He testified that M.D. went to court and his access time with S. was terminated on a temporary basis. His evidence was that M.D. was upset with him in February 2015 as he cancelled two or three access visits and that was the reason M.D. started the family law proceedings. He did not see S. again until September 2015, when he was granted supervised access at his parents’ home. His evidence was that he and M.D. were in court until October 2019 when there was a final arrangement that he have parenting time every second weekend.
[94] His evidence was that this parenting dispute caused him a great deal of stress. He was unable to work, and from 2015 to 2017, he lived with his parents.
[95] On cross-examination, he testified that his access was supervised for about one year and then starting in 2017, he had weekend access and sometimes they would agree on more time. He agreed that he and M.D. had a good relationship and would communicate about all aspects of S., including her health and education. He agreed that S.’s soccer and music lessons were near his home in Brampton. He agreed that prior to January 2020, he had no serious issues with M.D.
[96] He agreed that M.D. moved at some point, and as he does not drive, it was agreed that M.D. would drop off and pick up S. for his access.
[97] S.D.C. admitted to struggling with alcohol. He has had counselling to help deal with it and he continues to work on it. His evidence was that there was a verbal agreement with M.D. stipulating that he would call her and tell her that he could not see S. if he had been drinking. There is a final court order that states he is not to consume alcohol for 12 hours prior to picking up S.
[98] In 2019 and 2020, he was living in the basement of a house in Brampton. He had a roommate who moved out in the fall of 2019. When S. came to his apartment, they would sleep in the same bed.
[99] On January 1, 2020, the agreement was that he would see S. for three days. M.D. dropped her off at 4 pm. His girlfriend at the time, V.G. was at his apartment that day as they had been out for New Years the night before. They planned to go bowling with V.G.’s children that day. He said she had five children. After S. arrived, he made her some clam chowder soup. They were going to pick up V.G.’s children at 6:30 pm. He said that S. was a happy child; he described her as very outgoing, vibrant, and laughed a lot. When she arrived, she seemed a little down. They left at 6:30 pm in a taxi towards V.G.’s home. Two minutes into the drive, S. threw up. She threw up three times in the 5-minute taxi ride. He said he never saw her throw up like that.
[100] Whey they arrived at V.G.’s house, V.G. brought her in and he helped the taxi driver clean his taxi. V.G. gave S. some clothes. One hour later, S. said she was feeling better and wanted to go bowling. S.D.C., his girlfriend and her children, and S. walked to the bowling alley.
[101] He testified during cross-examination that S. met her children maybe once or twice prior to this day.
[102] After 30 minutes of bowling, S. said her “tummy” was sore. She went to the bathroom and was dry heaving. She came back and they continued to bowl for about one hour. He then decided to go to the pharmacy to get her some Advil and Pepto Bismol to coat her stomach; he left S. with V.G. at the bowling alley. He called M.D. and told her about S. and asked M.D. what she ate at home that day. He said that M.D. would not tell him. When he was cross-examined, he testified that M.D. is normally open with him about S.’s health but he was frustrated with her as she would not tell him what S. ate.
[103] When he was cross-examined, he agreed that he was concerned as this was the sickest he ever saw S., but she still wanted to bowl.
[104] When he returned to the bowling alley, he gave S. some Pepto Bismol. They left the bowling alley at 9:30 pm and while waiting for a taxi, S. threw up again. V.G. and her children went home.
[105] When he and S. arrived back at his apartment at around 9:50 pm, she said she was feeling better; he gave her Advil. His evidence was that the bedtime routine is for S. to have a bath and read books but because it was late and she did not feel well, she went right to bed.
[106] She put on her two-piece pyjamas; she was wearing underwear. He sat in bed with her and read her a book for 10 minutes.
[107] Once S. fell asleep at around 10:30 pm, he texted M.D. to get more information. He then called M.D., but she did not want to talk. His main issue was asking why S. was so sick. He testified that he called her three to four times: from the bowling alley, the pharmacy, and then later that night when S. was in bed.
[108] His evidence was that he also told M.D. that he was upset with her about a Christmas gift he bought for S. She wanted a toy and he got it for her; she loved it. M.D. knew he was getting her that toy. He then found out that M.D.’s partner got her the same toy. S.D.C. was upset and asked her why she did that. His evidence was that M.D. was very upset with him. His evidence was that he was upset as M.D. went against what they talked about regarding the gift, she did not give any information about S’s health, and because she dropped S. off when she was sick. His evidence was that M.D. then threatened him in a text saying that if he didn’t stop, “you will get something – you will have something happen to you that you don’t want.” He said she did not normally do that, but it was a threatening message.
[109] He was asked when cross-examined about why he would bring up the Christmas gift situation when he was trying to get information about S.’s health. He explained that he was upset as he only found out a day or two earlier that M.D.’s boyfriend got her the same gift. He explained he was frustrated as he and M.D. had an agreement about the gift he was to get for S., and she went against that and ruined the spirit of Christmas for S.
[110] He agreed that he was upset with M.D. for dropping off S. when she was not her normally bubbly self and did not have the same energy. He thought that maybe M.D. should have kept S. at home if she was tired and lacked the same energy because if someone is under the weather, they should be kept at home.
[111] During cross-examination, he indicated that he did not have copies of the texts M.D. sent as he went kayaking and his phone fell in the water.
[112] He also testified when cross-examined that M.D. has threatened him before when she was upset. He said there were many such texts between 2015 and 2017 dealing with S. When asked if he could recall one event when such a threatening text was sent, he referred to the day in March 2015 when M.D. left the home with S. and purposely withheld her. He said her threat that time was that she was taking him to family court. He could not recall the specifics of any other threatening texts she sent to him but then reiterated that if she gets mad, she will threaten him.
[113] He went to bed between 12:00 and 12:30 am. His bedroom has a double mattress that is on the floor against a wall. S. was sleeping close to the wall on her stomach. He was wearing pyjamas and underwear. He lay down on his right side; his back was towards S. He said she was asleep. The bedroom light was off, but he kept a light on in the bathroom, so the bedroom was not completely dark,
[114] His evidence was that his mind was racing from his discussions with M.D.; he lay there for 15 minutes. S. did not wake up. She then blurted something out that really upset him as he never heard her say anything like that. She said, “daddy, why are you taking my pyjamas down.” When he was cross-examined, he testified that she said “daddy, why are my pyjamas down.” He was still on his right side, facing away from her when she said this. He turned the light on to see if she was awake. He asked her if she was awake; she did not respond. He touched/rubbed her head and shoulder to see if she was awake. She was still sleeping. He heard her talk in her sleep before. His mind was racing; he thought to himself, “where is this coming from”. He thought there was a sexual connotation to what she said. He testified that he said to her “your pyjamas are not down” and he lifted the comforter to look, and her pyjamas were on. She did not respond to him. He turned off the light and, 15 to 20 minutes later, fell asleep. Neither his nor S.’s pyjamas came off during the night.
[115] When he was cross-examined, he agreed that he thought there were sexual connotations to what S. blurted out in her sleep. He explained it was because she never said that before, she was sleeping, and she was suggesting he pulled her pyjamas down with that remark.
[116] He testified when cross-examined that he heard S. talk in her sleep in the past, he heard her laugh once, cry out once as if scared, and once said some words he could not understand. He spoke to M.D. about it at that time, but they did not think it was a big deal. He repeated that the comment S. made that night was concerning to him as he wondered where she was getting it from, if she was staying at someone else’s home, and if someone else was pulling her pyjamas down.
[117] When asked to explain what was negative about “daddy why are my pyjamas down,” he answered that he viewed it as potentially having sexual connotations to it. It was a cause for concern and that is why he told M.D. about it when she picked up S. on January 3. He did not tell M.D. about the comment on January 2 as they fought the night before, so he decided to wait to tell M.D. about it when she picked up S.
[118] S. woke up the next morning at 8 am. He did not say anything to her about it, as he wanted to first speak with M.D.
[119] His denied putting his legs over S.’s legs as well as putting his penis through her legs or on any part of her body.
[120] On January 2, he and S. went for a walk after breakfast. Because she had been unwell the day before, they stayed home and played games. He texted M.D. to let her know that S. was better. S. stayed with him that night. She slept fine and the next day they had plans to go swimming at Century Gardens, but they ended up going tubing at a park. He testified that S. was feeling 100% better that day. She was excited and laughing. He let M.D. know what they were doing, and that S. was feeling fine. M.D. picked up S. between 4 and 5 pm.
[121] Photographs of S. were introduced as evidence that S.D.C. said were taken on January 3, 2020, at Century Gardens.
[122] S.D.C. testified that S. was happy and excited when M.D. picked her up. When S. went into the car, he told M.D. what S. said in her sleep. He told her that S. blurted out in her sleep that her pyjamas were down. He checked, and they were on. He said it was the first time he heard her blurt out any kind of sexual comment.
[123] S.D.C.’s evidence was that he had never heard S. say the word “penis” or anything sexual before and wondered what would cause her to connect her father to taking her pyjamas off. He therefore asked M.D. if she had ever done this before or if anything else was going on. He told M.D. that he was concerned about S. talking in her sleep and they would have to talk about it. She said they could talk about it later and left.
[124] When he was cross-examined, his evidence was that M.D. “fluffed it off” when he told her what S. said in her sleep – like it was normal and there was no cause for concern. He agreed that he told M.D. that he was concerned that it could be something sexual in nature. He then testified that the possibility that it had a sexual connotation was not the first thing in his head and he wanted to talk to M.D., as perhaps it was just a random dream comment, but maybe they needed to have her see a counsellor.
[125] His evidence was that he was shocked when he was charged by the police. He said he fought for years for S. and would never do anything to her. He said that M.D. took his daughter away from him in 2015 and then tried to have him charged. He said that there was an endless barrage of court battles. His evidence was that he thinks that something happened to S. where she lives or at a friend’s home and that is why she said what she did in her sleep.
V.G.’s Evidence
[126] V.G. testified that she has six children between the ages of 6 to 18; they all live with her. S.D.C. was her boyfriend until November 2022. She was at his home on January 1, 2020, when S. arrived. The plan was to go to her home to pick up her kids to go bowling. They left by taxi at around 6:00 pm and, on the way, S. began to vomit. When they got to her residence, she gave S. some clean clothes. They were at her apartment for about an hour; S. was quiet. They then left with four of her children to walk to the bowling alley; it was a 10-minute walk. At the bowling alley, S. started to vomit and S.D.C. took her to the washroom. He then asked her if she could watch S. while he went to the pharmacy to get S. some medicine. S. was sick several times at the bowling alley.
[127] They were at the bowling alley for 2.5 hours and left just before 10:00. While waiting for a taxi, S. threw up again. V.G. then left and went home with her children.
[128] She sent a text message to S.D.C. when she got home. She asked about S., and he replied that S. fell asleep.
[129] S.D.C. texted and telephoned her the following day. He said that S. was feeling 100%. He sent her screen shots of text messages from M.D. She recalled the tone of the texts was that M.D. was going to hurt him and he would regret it. Her evidence was that S.D.C. wanted her opinion about what M.D. meant. She also recalls seeing texts from S.D.C. to M.D. talking about how S. was feeling and something about a Christmas present. On cross-examination, she recalled that the issue was that M.D.’s partner bought S. the same gift.
[130] She did not have copies of these messages. She initially testified that she lost her phone, then she said it was broken and she no longer has the same SIM card.
Position of the Parties
[131] It is the Crown’s position that S.’s evidence of S.D.C. sexually assaulting her is reliable, credible, and should be believed. The Crown argues that any inconsistencies with S.’s evidence are with respect to peripheral matters and are to be expected given her age at the time of the alleged sexual assault.
[132] The defence argues that S.D.C. was unshaken in his evidence, which was presented in a coherent and consistent manner. Defence counsel says his evidence should be accepted or, at minimum, raise a reasonable doubt.
[133] If I do not accept S.D.C.’s evidence that he did not sexually assault S. or if I am not left with a doubt, the defence contends that the totality of evidence presented by the Crown that I do accept is insufficient to establish S.D.C.’s guilt beyond a reasonable doubt. The defence argues firstly that given S.’s evidence that she was half asleep, may have been dreaming and had been very ill that evening, her ability to accurately recall what occurred is unreliable and that I should therefore be left with a doubt. The defence also argues that given the underlying animus between M.D. and S.D.C. and her desire to limit his contact with S., she coached S. to make false allegations to the police.
Analysis and Findings
Do I believe S.D.C.’s Evidence or if not, am I left in a reasonable doubt?
[134] I will first consider S.D.C.’s evidence. Based on the W. (D.) analysis, if I believe his evidence that he did not sexually assault S., or if I do not believe him but am left with a reasonable doubt, I must acquit. This requires me to make credibility and reliability assessments regarding his evidence.
[135] S.D.C. makes two submissions in support of his position that the Crown has not discharged its burden of proving his guilt beyond a reasonable doubt. I will start first with S.D.C.’s submission that M.D. coached or encouraged S. to make a false accusation against him out of anger and a feeling of animus towards him to limit his contact with S. The alleged motive to fabricate in this case is not of the complainant but of her mother.
[136] To be clear, S.D.C. has no onus to prove any witness has a motive to fabricate. Furthermore, even if I find that there was an absence of evidence of motive to fabricate, that does not mean that a witness does not have a motive to fabricate. Furthermore, just because a witness has no apparent reason to lie, does not mean that the witness must be telling the truth: R. v. Ignacio, 2021 ONCA 69, leave to appeal refused, [2021] S.C.C.A. No. 127 at para. 2.
[137] From the outset of his evidence, S.D.C. went out of his way to portray M.D. in a negative light and himself in a positive way when discussing their separation and parenting issues. He gave lengthy answers going into detail about their separation and how M.D.’s actions caused him stress, resulted in him losing his job, and how he fought years to regain full access to S. For example, in response to a question about meeting M.D. in 2009 or 2010, he gave a lengthy and detailed response about how she moved into a townhouse he owned in Pickering and that he decided to sell it when she was pregnant to move to a condominium in Etobicoke that had more amenities for M.D. to use when she was not working. He also pointed out that it was closer to where she worked. He testified that he paid more for the downpayment than she did, and he paid the bulk of the expenses when she did not work.
[138] When asked how long they lived in the condominium, S.D.C. responded by saying that M.D. left unannounced with S. and never returned and that he stayed in the condominium with all of S.’s “stuff” and that he paid child support and day care.
[139] He testified that they had an agreed-upon shared parenting arrangement that changed in March 2015 when M.D. started a family law proceeding which he said was because he missed a few access visits. He testified that shortly thereafter, she tried to have him charged with break and enter; he was not charged. He testified that she used that to restrict his access to S. and he had to fight to get access restored.
[140] When he was asked about his struggles with alcohol, he gave a long answer, by first stating that M.D. had an issue as her father was an alcoholic. He said that M.D. had issues when he was going through a stressful time due to his financial circumstances and he was drinking more.
[141] My impression from the totality of his evidence about M.D. was that S.D.C.’s intention was to depict her in a negative light and blame her for the conflict after they separated. He wanted to be seen as a victim.
[142] In my view, S.D.C.’s evidence was to lay the groundwork for what he testified was M.D.’s long-standing animus towards him. The inference he was inviting me to make was that M.D. tried to have him charged in 2015 to restrict his access and that she was doing that again with these charges.
[143] His intention to demonstrate M.D.’s anger and animus towards him was also evident when he testified on cross-examination that when M.D. was angry, she would threaten him and had done so in the past. When pressed, the only example he could provide when she did this in the past was when she commenced family court proceedings in 2015. In my view, S.D.C. exaggerated and embellished his evidence about M.D.’s alleged threatening past behaviour to support his theory that she encouraged and coached S. to fabricate these allegations against him.
[144] S.D.C. contradicted himself and agreed when cross-examined that prior to January 1, 2020, he and M.D. were not having issues. He also agreed that M.D. drove S. to and from her access with him and that M.D. had scheduled S.’s extra-curricular activities near where he lived so that he could attend. He also testified that in addition to having access to S., he shared decision-making for her with M.D.
[145] This evidence does not support S.D.C.’s submission that M.D. had underlying animus towards him that motivated her to coach S. to make false accusations against him.
[146] From this evidence, I find that there was no ongoing conflict between S.D.C and M.D. to support the theory that M.D.’s goal was to limit his involvement in S.’s life, and that these charges are her latest ploy to do that.
[147] When M.D. testified about her relationship with S.D.C., she was measured; she did not speak in negative terms about S.D.C. when they separated or blame him for the conflict. When asked to describe their relationship in January 2020, she said they tried to be as civil as possible. She did not overstate or understate any conflict. She was not critical of him, even when discussing his struggles with alcohol. She agreed that he would contact her if he had been drinking to cancel his access; she spoke about it directly and fairly. She did not demonstrate any animus towards S.D.C. when she testified.
[148] When cross-examined, M.D. agreed with several suggestions put to her. For example, she agreed that S.D.C. was upset when she spoke with him on January 1, 2020, about S. being unwell. She agreed that he was also upset about a toy he bought S. for Christmas. She was not critical of S.D.C. for being upset but testified in a measured fashion.
[149] I also found that her responses to questions asked about whether she coached S. reflected a thoughtful, concerned parent. Her answer that what S. told her is the worst thing a mother could hear accords with human experience when a parent is faced with this type of disclosure. She also testified that she would not want S. to talk about the disclosure again but would listen if she wanted to talk. In my view, this is consistent with the approach a concerned parent would take when faced with this type of disclosure.
[150] In general, M.D. answered questions in a manner that was not evasive or defensive even when it was suggested to her that she coached her daughter. Furthermore, in many respects, her evidence was consistent with S.D.C.’s evidence about their parenting arrangement, their contact on January 1, 2020, and the extent to which S. spoke in her sleep on prior occasions.
[151] M.D. presented as a thoughtful, caring parent. I found her to be a credible and reliable witness.
[152] While I accept that there was parenting conflict after they separated, as there often can be, there was no evidence of any ongoing ill-will, animus, or ongoing conflict which supports M.D. having a motive to coach or use S. to have S.D.C. charged so that he could not have an ongoing relationship with S.
[153] V.G.’s evidence corroborated S.D.C.’s evidence regarding the events after S. was dropped off at S.D.C.’s home, including the degree to which S. was unwell at the bowling alley. While those were all peripheral issues, I found V.G. to be forthright in her responses.
[154] I was, however, concerned with her evidence regarding the text messages that she said S.D.C. sent her on January 2, 2020. Both S.D.C. and V.G. testified about a text from M.D. that S.D.C. described as threatening. V.G. was vague when she testified about what she recalled saying it had the “tone” that M.D. was going to hurt S.D.C. It was unclear to me what she meant by the word “tone”.
[155] I also find it coincidental that neither S.D.C. nor V.G. could produce a copy of the text, as neither had the same phone from January 1, 2020. S.D.C. said his phone fell in the water while kayaking. V.G. changed her explanation from saying she lost her phone, to her phone being broken, to no longer having the same SIM card. Her explanation seemed contrived in that regard.
[156] M.D testified that she did not recall sending such a text. While it is certainly plausible that she and S.D.C exchanged heated texts given S.D.C.’s evidence that he was angry and irate towards M.D. on January 1, 2020, I do not find that her anger would have compelled her to coach her daughter to make a false accusation to eliminate any contact between S. and S.D.C. because of their discussions on January 1, 2020. Other than the argument on January 1, there was no evidence of any ongoing animus between them. I reject S.D.C’s theory that M.D. would have used her daughter and put her through the trauma of testifying more than once as suggested by S.D.C.
[157] While I do not accept that M.D. had a motive to fabricate to coach her daughter because of animus towards S.D.C., there may be other reasons why she would have a motive. In my view, there is an absence of evidence that M.D. had a motive to fabricate which is only a factor I have considered in concluding that she was a credible and reliable witness.
[158] There were two key areas where S.D.C.’s evidence was illogical and lacked plausibility. The first was his response to hearing S. make a comment about her pyjamas being down and the second is his failure to address that with M.D. the following morning.
[159] S.D.C.’s evidence that he became really upset as he thought there was a sexual connotation when he heard S. say “daddy why are my pyjamas down” is, in my view, troubling, puzzling, and perplexing. As a matter of common sense and human experience, I am troubled that his first reaction to this comment was to think it had sexual implications to it, particularly as he never heard S. make any comment of a sexual nature. He went further and testified that his mind began to race, and he thought that something may have happened to S. in her home or somewhere else to cause her to make this comment. The inference he was inviting me to make was that if S. had been touched in an inappropriate manner, someone else did it, but not him.
[160] It defies common sense that a father’s initial reaction would be to think that there was a sexual connotation to a comment that I consider to be quite innocuous, particularly when he believed the comment was made while S. was sleeping. There could have been many reasons why S. said that. For example, she may have been dreaming.
[161] When he was cross-examined, and it was suggested to him the comment S. made was an innocent comment, he appeared to resile and backtrack from his evidence and suggested his concern initially was that S. could be having a random dream. This was not his evidence in chief as he testified several times that his immediate concern was the sexual connotation to the comment. He modified his evidence when confronted with his puzzling reaction to a rather innocuous comment.
[162] Even if I accept that S.D.C. was a protective parent who was simply concerned about the comment S. made, it is, in my view, illogical that he would not contact M.D. the next morning and demand to speak to her about this, just as he insisted on contacting her numerous times the day before about S.’s illness. His apparent decision to wait for two days and discuss it with M.D. when she picked up S. is inconsistent with his reaction to S.’s illness, his repeated texts to M.D. about that, his anger about the Christmas gift, and need to also discuss that with her on January 1. Surely, if he believed there was a possibility that his daughter was inappropriately touched by someone, he would have immediately contacted M.D., just as he contacted her the day before when S. was unwell and then had to discuss his anger with the Christmas gift issue.
[163] Given his level of concern about S. being unwell and the Christmas gift, it is illogical and not credible that when his daughter said something in her sleep that he thought had sexual connotations to it and he wondered if something may have happened to her in her home or elsewhere, he would not immediately or the next morning call or text M.D. just as he did when he was upset about S. being ill, instead of incomprehensibly using his argument with M.D. on January 1 as the reason to justify the delay.
[164] I agree with the defence submission that S.D.C. takes tremendous interest in his daughter. His evidence was that he and M.D. discussed issues about S., including her health. His decision to delay discussing an extremely serious concern with M.D. is not in keeping with this tremendous interest.
[165] I reject S.D.C.’s evidence that S. was asleep when she made the comment to him and remained asleep, as he testified. The basis is that S. herself testified about making this comment when she spoke to the police a few days later. She would have been unable to recall making a comment that her pyjamas were down and hearing S.D.C. respond had she been sleeping as S.D.C. testified.
[166] Having considered all his evidence, I am left to conclude that S.D.C. is not a credible witness. I therefore reject his denial that he pulled S.’s pyjamas down and touched her with his penis. Furthermore, when I consider the totality of the evidence, I do not believe him, and I am not left with a reasonable doubt.
S.’s Evidence
[167] Although I rejected S.D.C.’s denial of touching S. with his penis, I must still determine, based on the evidence that I do accept, whether the Crown has proven his guilt beyond a reasonable doubt. This requires me to consider the reliability and credibility of S.’s evidence.
[168] When S. testified, I was struck by her level of maturity. She was very articulate for a 10-year-old girl. I also observed her on the video when she gave her statement to the police. She was animated and very bright. She was engaged with the police officer and appeared at ease while speaking with him.
[169] There were some inconsistencies with S.’s evidence which were on peripheral issues. For example, while she testified that she went home on January 2, both M.D. and S.D.C. testified that she stayed with him for a second night and went home on January 3, 2020. I was concerned with how combative she became with defence counsel about this issue rather than agreeing that it was possible that she stayed a second night. She was quite insistent that she did not. This did not, however, detract from her overall credibility and reliability.
[170] For the most part, S. answered questions put to her in a direct, succinct fashion. She readily agreed with various suggestions put to her in cross-examination. She disagreed with some suggestions and replied she did not know to others. For example, she agreed with several suggestions put to her, such as how sick she was on January 1, 2020, and that she was told in the past that she talked in her sleep. She also readily adopted as true her prior evidence given at the Preliminary Hearing when confronted with inconsistencies. She agreed with the suggestion that she was half-asleep when she felt S.D.C. pull her pyjamas down and felt his penis on her bum and between her legs. She agreed that she did not feel his hands when he pulled her pyjamas down and that she never saw his penis. She answered when she did not know, such as if what she felt on her bum or between her legs was hard or soft, or if she ever slept facing S.D.C.
[171] Other than her insistence that she was not with S.D.C. the night of January 2 or during the day on January 3, I found her answers to be appropriately responsive and direct. I also found that the details that she could not recall, such as who was at the bowling alley, if V.G. gave her clean clothes at her home, if she was given medicine at the bowling alley or at S.D.C.’s home, and how many times she threw up, to be peripheral issues and details that a young child might understandably not recall.
[172] Her refusal to agree that she stayed a second night with S.D.C. or that she went to Century Gardens with him and had her photograph taken does not detract from my assessment of her overall reliability and credibility. Furthermore, given her age at the time of the alleged sexual offence and when she testified, it is not unexpected that she may not have the same recall for such details. My sense was she became frustrated and combative with counsel when being asked questions that she considered to be repetitive. That did not detract from her credibility.
[173] At the core of her evidence, she was not shaken when cross-examined. She testified about the specific details of what occurred, having to rely on her sense of touch and sound to do so. She testified about being half asleep, feeling her pyjamas being pulled down, hearing S.D.C.’s pyjamas being pulled down, and then feeling his penis on her bum and then between her legs.
[174] She also used words to describe the experience that I consider to be age-appropriate, and not the result of coaching from M.D. as was suggested to her. For example, she used the words “gross” and “slimy” to describe the feeling of S.D.C.’s penis on her buttock. She was also able to give more specifics about what she meant by “slimy”, and she used the word “sticky”. I also note that she was being asked to describe something she never felt before.
[175] She described feeling embarrassed and of not wanting to sleep over at her father’s home again. She told the police officer she did not want her father to do this. She used the word “creepy” to describe what happened. She was also able to describe what she meant by hearing S.D.C. pulling his pyjamas up by describing it as a “crumble” or “rustling” sound. She said this was the same sound she heard when he pulled them down. In my view, those are good words to use to describe a sound, which S. admitted was difficult to do.
[176] She was inconsistent about whether she said anything to S.D.C when she testified that she felt him pull her pyjamas down. She told the police officer on January 5, just days after it occurred, what she said and what S.D.C responded to her. When she was cross-examined, she initially agreed that she recalled saying to S.D.C. “don’t pull my pyjama’s down” and later testified that she did not recall. In all other details, she was consistent and not shaken about what she recalls occurring.
[177] Given S.’s age, I am satisfied that her videotaped statement was a more accurate reflection of events. Her inability to recall when she testified does not detract from her reliability.
[178] Furthermore, S.D.C.’s evidence corroborates her statement to the police that she said something to him about her pyjamas being pulled down and S.D.C. responding. The issue is not whether she said anything but whether she was awake when she said it.
[179] S.D.C. argues that S.’s evidence is not reliable given her evidence that she was half asleep and thought she was dreaming or imagining it combined with the likelihood that she was weak given the extent of her illness in the hours before. I would agree that there are reliability concerns, but those concerns are addressed by S.D.C.’s corroboration of what S. said in the bed.
[180] S. was asked on re-examination whether it was a dream or if she imagined what occurred as she lay beside her father and she answered very clearly that she was not. She also described in chief that she felt half asleep as she could feel, hear, and see what was going on but could not move. This description or explanation of why she felt it was a dream is consistent with a young child who is frightened and confused by the acts of her father while she laid in bed next to him.
[181] More importantly, any reliability concerns that I might have of S.’s evidence are addressed by S.D.C.’s own corroborative evidence which leads me to find that S. was awake and not sleeping when S.D.C. pulled her pyjamas down and put his penis on her buttocks and between her legs.
[182] While there were several questions asked of both M.D. and S.D.C. about how often S. talked in her sleep, she was not talking in her sleep on January 1, 2020. She told the police officer on January 5, 2020, that she asked S.D.C. why he was pulling her pants down. At other times, she and S.D.C. testified that it was something slightly different that she said, but it was always about her pyjamas being pulled down. S.D.C. corroborated that she said this; he heard it as well. She also told the police officer that S.D.C. responded and said, “I’m not”. S.D.C. testified in chief that he responded and said, “your pyjamas are not down”.
[183] While suggestions were put to S. that what occurred was a dream or perhaps was not accurate as she admitted to being half asleep at that time, she told the police officer what she said and S.D.C.’s response; S.D.C. corroborated this. S. was therefore not sleeping when she said this.
[184] I accept M.D.’s evidence that S.D.C. did not tell her about this when she picked up S. on January 3.
[185] The defence also argued that the mechanics of how this alleged sexual assault occurred did not make sense, as S. testified that S.D.C.’s hands were not on her nor was his back touching her. I do not agree. S. testified that S.D.C.’s legs were on her legs “kind of holding me back.” I find that there was no reason for S.D.C.’s body to be touching hers, other than his legs, for this touching to have occurred.
Conclusion
[186] After considering inconsistencies in her evidence, I find that S. was a credible and reliable witness on the evidence which makes out the elements of the offences before the court. Furthermore, her evidence that she was awake and commented to S.D.C. when he pulled her pants down is corroborated by S.D.C.’s own evidence. She was not sleeping as S.D.C. alleges.
[187] I find that the Crown has proven the elements of both offences beyond a reasonable doubt. This finding is not based simply on an acceptance of S.’s evidence and a denial of S.D.C.’s evidence but on S.’s credible and reliable evidence that was corroborated by S.D.C. that leads me to find that S. was awake when these events occurred in S.D.C.’s bed and that S.D.C. touched her with his penis as she described.
[188] With respect to the first count, I find that S.D.C. intentionally applied force in a sexual nature on S., that she did not consent to the force, and that S.D.C. knew she did not consent, contrary to s. 271 of the Code.
[189] With respect to the second count, I find that S.D.C. knew S. was under 16 years of age and that he touched her on January 1, 2020, and that the touching was for a sexual purpose, contrary to s. 151 of the Code.
L. Shaw J. Released: July 10, 2023