COURT FILE NO.: CJ 9609

DATE: 2023/01/17

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

• and -

G.B.

Defendant

David Russell and Alanna Fedak-Tarnopolsky, Counsel for the Crown

Rupinjit Singh Bal and Calvin Barry, Counsel for the Defendant.

HEARD: August 8, 9,10,11,12,14,15 and 16, October 3 and 4, and November 2,3 and 4, 2022

PUBLICATION RESTRICTION NOTICE

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Code, information that may identify the persons described in this judgment as the complainant and the accused may not be published, broadcasted or transmitted in any manner.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

REASONS FOR JUDGMENT

GIBSON J.:

Overview

[1] G.B. is charged on a direct Indictment dated December 2, 2021 with: one count of sexual interference contrary to s.151 of the Criminal Code against H.B.; one count of invitation to sexual touching contrary to s.152 of the Criminal Code against H.B.; one count of sexual interference contrary to s.151 of the Criminal Code against E.S.; and one count of sexual interference contrary to s. 151 of the Criminal Code against A.H.

[2] H.B. is the daughter of G.B.. A.H. is the niece by marriage of G.B.. E.S. is the daughter of family friends of G.B..

[3] This is the second trial in this matter. A mistrial in the previous trial was declared on February 27, 2020, on the basis of ineffective assistance of defence counsel (not, it should be noted, defence counsel at the present trial).

[4] The trial has been proceeding as a judge-alone trial on August 8,9,10,11,12,14,15 and 16, October 3 and 4, and November 2,3 and 4, 2022.

[5] The Crown presented evidence from eight witnesses: the three complainants, H.B., A.H. and E.S.; K.M., the mother of A.H.; K.L., the mother of H.B.; A.S., the mother of E.S.; K.S., the father of E.S.; and Detective Constable Julie Stahlbaum, the investigating police officer from the Waterloo Region Police Service (“WRPS”). The Defence called the accused person G.B.

[6] The evidence of each witness will be described and assessed in further detail below, but the evidence of the three complainants may be succinctly summarized as follows. The evidence of H.B. is that G.B. touched her vagina, and forced her to touch his penis, on multiple occasions from when she was 7 or 8 years old, until she was 13 or 14. The evidence of A.H. is that G.B. touched her breasts over clothing when she was in a bunk bed in a trailer while visiting G.B. and his son I.B., her cousin. The evidence of E.S. was that G.B. touched her side and her breasts, and her vaginal area, while she was babysitting at the house of family friends on the evening of the friends’ stag and doe party associated with their forthcoming wedding.

[7] G.B. denies that he touched H.B. or E.S. in the manner alleged, and insists that there was no sexual purpose in his touching of A.H.

[8] At the time of trial, H.B. is now 25 years old. A.H. is 19. E.S. is now 20. Each of the complainants testified about events that allegedly occurred when she was under the age of 16.

[9] In my decision dated June 24, 2022, I granted the Crown’s application to allow H.B., E.S. and A.H. to testify from outside the courtroom by CCTV and in the presence of a support person, pursuant to s.486.1 and s.486.2 of the Criminal Code, as well as with a Facility Dog present. I also granted the Crown’s application pursuant to s.715.1 for the video recording of the statement A.H. made to police on September 1, 2018, to be admitted as part of her testimony at trial, provided that she adopted the contents of the statement, which she did.

[10] In my decision dated June 24, 2022 on the voluntariness voir dire, I found that the statement made by G.B. to Detective Constable Stahlbaum of the WRPS on September 13, 2018, was made voluntarily and might be used for cross-examination if G.B. chose to testify at trial, which he ultimately did.

[11] Mid-trial, the Defence applied for a stay of proceedings or a mistrial on the basis of what it submitted was a breach of G.B.’s ss. 7 and 11(d) Charter rights due to prosecutorial misconduct and non-disclosure by the Crown of relevant materials to the Defence. In my decision dated November 2, 2022, I dismissed this application.

[12] In my decision dated August 22, 2022, I allowed the Crown’s application to admit the evidence of H.B., A.H. and E.S. across counts in the Indictment as similar fact evidence. For convenience I repeat the concluding paragraphs of that decision here:

[39] I find that the Crown has met its burden in satisfying me as the trial judge that the probative value of the cross-count application of the evidence outweighs its potential prejudicial effect in the context of this particular case. There is a persuasive degree of connection between the similar fact evidence and the offences charged, in order to be capable of raising the necessary inferences.

[40] I find the similar fact evidence relevant and probative to prove the actus reus, to support the credibility of the complainants, to demonstrate a pattern of behaviour, to negate a defence that the complainants were fabricating, and to defy coincidence with respect to the offences alleged.

[41] The evidence is not admitted cross-count to show bad character.

[42] As the cited cases have noted, concerns about prejudice are attenuated in this case because the application relates to cross-count use of evidence already elicited at trial, and because this is a judge-alone trial. I am not complacent about the potential perils inherent in allowing cross-count consideration of the evidence concerning using it for impermissible purposes, and will instruct myself to be vigilant about the dangers of moral and reasoning prejudice in this case.

Law

[13] The first legal issue upon which I must instruct myself relates to the presumption of innocence and the legal standard of proof beyond a reasonable doubt.

[14] It is fair to say that the presumption of innocence is perhaps the most fundamental principle in Canadian criminal law, and the standard of proof beyond a reasonable doubt in order to displace the presumption of innocence is an essential part of the law that governs criminal trials in this country. Under Canadian criminal law, every person charged with an offence is presumed to be innocent until the prosecution proves his or her guilt beyond a reasonable doubt. An accused person does not have to prove that he or she is innocent. It is up to the prosecution to prove its case on each essential element of the offence beyond a reasonable doubt. An accused person is presumed innocent throughout his or her trial until the trier of fact, weighing all of the evidence, makes their determination at the end of the trial.

[15] The standard of proof beyond a reasonable doubt does not apply to the individual items of evidence or to separate pieces of evidence that make up the prosecution’s case, but to the total body of evidence upon which the prosecution relies to prove guilt. In order to secure a conviction, it is incumbent on the prosecution to prove each essential element of the offence charged to the standard of proof beyond a reasonable doubt. The burden or onus of proving the guilt of an accused person beyond a reasonable doubt rests upon the prosecution and it never shifts to the accused person.

[16] The Court must find an accused person not guilty if it has a reasonable doubt about his or her guilt on all the essential elements of the offence after having considered all of the evidence.

[17] The term “beyond a reasonable doubt” has been used for a very long time. It is part of our history and tradition of justice.

[18] In R v Lifchus, 1997 319 (SCC), [1997] 3 S.C.R. 320, the Supreme Court of Canada proposed a model jury charge on reasonable doubt. The principles laid out in Lifchus have been applied in a number of Supreme Court and appellate court decisions. In substance, a reasonable doubt is not a far-fetched or frivolous doubt. It is not a doubt based on sympathy or prejudice; rather, it is a doubt based on reason and common sense. It is a doubt that arrives at the end of the case, based not only on what the evidence tells the court, but also on what that evidence does not tell the court. The fact that the person has been charged is no way indicative of his or her guilt.

[19] In R v Starr, 2000 SCC 40, [2000] 2 S.C.R. 144, at para. 242, the Supreme Court of Canada declared that:

... an effective way to define the reasonable doubt standard for a jury is to explain that it falls much closer to absolute certainty than to proof on a balance of probabilities....

[20] On the other hand, it should be remembered that it is nearly impossible to prove anything with absolute certainty. The prosecution is not required to do so. Absolute certainty is a standard of proof that does not exist in law. The prosecution only has the burden of proving the guilt of an accused person beyond a reasonable doubt. To put it in perspective, if the court is convinced, or would have been convinced, that the accused is probably or likely guilty, then the accused would be acquitted since proof of probable or likely guilt is not proof of guilt beyond a reasonable doubt.

[21] The second legal issue is the assessment of the testimony of witnesses. Evidence may include testimony under oath or solemn affirmation before the court by witnesses about what they observed or what they did. It could be documents, photographs, videos, maps or other items introduced by witnesses, the testimony of expert witnesses, formal admissions of facts by either the Crown or the Defence, and matters of which the court takes judicial notice.

[22] It is not unusual that some evidence presented before the court may be contradictory. Often, witnesses may have different recollections of events. The court has to determine what evidence it finds credible and reliable.

Credibility and Reliability

[23] Credibility is not synonymous with telling the truth, and the lack of credibility is not synonymous with lying. Many factors influence the court’s assessment of the credibility of the testimony of a witness. For example, a court will assess a witness’ opportunity to observe events, as well as a witness’ reasons to remember. Was there something specific that helped the witness remember the details of the event that he or she described? Were the events noteworthy, unusual and striking, or relatively unimportant and, therefore, understandably more difficult to recollect? Does a witness have any interest in the outcome of the trial; that is, a reason to favour the prosecution or the defence, or is the witness impartial?

[24] The demeanour of the witness while testifying is a factor which can be used in assessing credibility; that is, was the witness responsive to questions, straightforward in his or her answers, or evasive, hesitant or argumentative? However, demeanour must be assessed with caution, and should be assessed in conjunction with an assessment of whether the witness’ testimony was internally consistent, that is, consistent with itself, and externally consistent with the other uncontradicted or accepted facts in the evidence.

[25] The Court of Appeal for Ontario has repeatedly cautioned against over-reliance on demeanour as a factor in assessing the credibility of witnesses and the reliability of their evidence.

[26] Minor discrepancies, which can and do innocently occur, do not necessarily mean that the testimony should be disregarded. However, a deliberate falsehood is an entirely different matter. It is always serious, and it may well taint a witness’ entire testimony.

[27] The Court is not required to accept the testimony of any witness except to the extent that it has impressed the court as credible. The Court may accept the evidence of a particular witness in total, in part, or not at all. In Clark v. The Queen, 2012 CMAC 3, Watt J.A. gave very clear guidance as to the governing principles in the assessment of credibility of witnesses:

First, witnesses are not “presumed to tell the truth.” A trier of fact must assess the evidence of each witness, in light of the totality of the evidence adduced at the proceedings, unaided by any presumption, except the presumption of innocence [of the accused person.]

Second, a trier of fact is under no obligation to accept the evidence of any witness simply because it is not contradicted by the testimony of another witness or other evidence. The trier of fact may rely on reason, common sense, and rationality to reject uncontradicted evidence. [A trier of fact may accept or reject, some, none or all of the evidence of any witness who testifies in the proceedings.]

[28] Credibility is not an all or nothing proposition. Nor does it follow from a finding that a witness is credible that his or her testimony is reliable. A finding that a witness is credible does not require a trier of fact to accept the witness’ testimony without qualification. Credibility is not co-extensive with proof.

[29] As Justice Watt indicated at para. 48 of Clark:

Testimony can raise veracity and accuracy concerns. Veracity concerns relate to a witness’ sincerity, his or her willingness to speak the truth as a witness believes it to be. In a word, credibility. Accuracy concerns have to do with the actual accuracy of the witness’ account. This is reliability. The testimony of a credible, in other words an honest witness, may nonetheless be unreliable.

[30] The concept of reasonable doubt applies to credibility.

[31] The term “credibility assessment” is a shorthand for the assessment of two qualities of a witness’s testimony: their credibility, and their reliability. It is helpful to distinguish the concepts from one another even though they are analyzed in tandem.

[32] Credibility and reliability are different. Credibility has to do with a witness’s veracity or honesty. Reliability has to do with the accuracy of a witness’s testimony.

[33] Accuracy engages consideration of the witness’s ability to accurately observe, recall and recount events in issue.

[34] 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 or honest witness may still give unreliable evidence.

W.(D). Assessment

[35] The accused person G.B. gave evidence at the trial, and that evidence was a denial of most of the essential elements of the offences charged on the Indictment.

[36] Given this, the Court must focus its attention on the analytical process specified in the reasons for decision of Justice Cory in the Supreme Court of Canada case of R v W.(D.), 1991 93 (SCC), [1991] 1 S.C.R. 742, for cases such as this where the accused has testified and that evidence essentially constitutes a denial of one or more of the essential elements of the offence.

[37] The principles in W.(D.) apply in cases where the accused gives evidence. However, the principles of W.(D.) will also apply in any case where a crucial issue turns on credibility: R. v. F.E.E., 2011 ONCA 783, per Watt J.A. at para. 104. The W.(D.) analysis applies not only to an accused’s testimony, but also to other exculpatory evidence that emerges during a trial that relates to a vital issue: R. v. B.D., 2011 ONCA 51, per Blair J.A. at paras. 113-114, and R. v. Cyr, 2012 ONCA 919, per Watt J.A. at para. 50.

[38] The guidance in W.(D.)provides as follows:

a. first, if I believe the evidence of the accused, then I must acquit;

b. second, if I do not believe the testimony of the accused but am left in reasonable doubt by it, I must acquit; and

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

[39] In R v J.H.S., 2008 SCC 30 at paragraph 12, the Supreme Court of Canada quoted approvingly the following passage from R v H.(C.W.) (1991) 1991 3956 (BC CA), 68 C.C.C. (3d) 146 (BCCA) where Wood J.A. suggested the additional instruction:

I would add one more instruction in such cases, which logically ought to be second in the order, namely: “If, after a careful consideration of all the evidence, you are unable to decide whom to believe, you must acquit.”

[40] Helpful guidance on the application of these principles has been given by Justice David Paciacco, writing extra-judicially, in ‘Doubt About Doubt: Coping with R. v. W(D) and Credibility Assessment’, (2017) 22:1 Crim L Rev 31.

[41] In popular parlance, one often hears trials such as this described as “he said/she said” matters. One must be careful not to unreflectively adopt this notion, as framing it this way is too simplistic and may lead one into error in understanding the task of the trier of fact. This trial is not a credibility contest between the complainants and the accused, in which one simply chooses whose version one prefers. The lack of credibility on the part of the accused does not equate to proof of his guilt beyond a reasonable doubt. The persistence of a reasonable doubt is incompatible with a finding of guilty.

[42] I will now address several issues that may potentially arise in the trial of alleged sexual offences.

Delay in Disclosure

[43] As is not uncommon in historical sexual offence cases, the disclosure of some of the alleged offences in this case was delayed for some time after the date of the alleged sexual offences. In this connection, it is important to bear in mind what the Supreme Court of Canada has said about delayed disclosure. There is no inviolable rule on how people who are the victims of trauma like a sexual assault will behave. Some will make an immediate complaint, some will delay in disclosing the abuse, while some will never disclose the abuse. Reasons for delay are many and at least potentially include embarrassment, fear, guilt, or a lack of understanding and knowledge. In assessing the credibility of a complainant, the timing of the complaint is simply one circumstance to consider in the factual mosaic of a particular case. A delay in disclosure, standing alone, will never give rise to an adverse inference against the credibility of the complainant.

Incremental Disclosure

[44] Similarly, it often happens that victims of sexual abuse will disclose the details in piecemeal or incremental fashion. It is not surprising that victims of sexual abuse will take more than one occasion to shed a burden that has been weighing on them for some time, where the event occurred years before. That disclosure occurred in an incremental fashion should not, standing alone, give rise to an adverse inference against the credibility of a complainant. What to make of this will depend of course on the circumstances revealed by the evidence in any particular case.

Sexual Offences Myth-Based Reasoning

[45] It must be acknowledged that trials do not take place in a historical, cultural or social vacuum. Before turning to a discussion of the specific elements of the offences with which G.B. is charged and the evidence that relates to those elements, one must adopt caution against approaching the evidence with unwarranted or stereotypical assumptions that may be holdovers from a past era, as to what is or is not sexual assault, what is or is not consent, what kind of person may or may not be the complainant of a sexual assault, what kind of person may or may not commit a sexual assault, or what a person who is being, or has been, sexually assaulted will or will not do or say.

[46] My purpose in doing so is to ensure trial fairness. It is not to privilege the rights of the complainant over the accused. The objective rather is to identify specific biases, prejudices, and stereotypes that may reasonably be expected to arise in a particular case and attempt to remove them from the deliberative process in a fair and balanced way, so that they do not distort the fact-finding process.

[47] There is no typical victim or typical assailant or typical situation or typical reaction.

[48] Unfortunately, myths and stereotypes regarding complainants in sexual assault or other sexual offence cases still exist in society. Such myths and stereotypes are entirely unfounded and have no place in a court of law. Such myths and stereotypes should not be considered when deciding this case.

[49] In particular, the myth that complainants in sexual offence cases have a higher tendency than other complainants to fabricate allegations based on “ulterior motives” and are therefore less worthy of belief, is not supported by social science, the law, or judicial experience. It is a myth. There is no basis to believe that sexual offence complainants are more likely to fabricate allegations than complainants of any other type of crime. The Supreme Court of Canada has clearly stated that sexual assault complainants should not be treated as inherently suspect.

[50] No inference should be drawn regarding a complainant’s credibility that is based on assumptions about how a victim of a sexual offence is “supposed” to react to the assault.

[51] It is a myth that failure to fight back means that no sexual assault occurred. Complainants know that there is no response on their part that will assure their safety.

[52] It is also a myth that failure to scream or call out means that no sexual assault or other sexual offence occurred or that the complainant consented. There is no “right” way to respond during a sexual assault. It would be stereotypical to assume that sexual assault victims tend to scream for help. Some will, others will not.

[53] It is also a myth to expect that a complainant will change her or his behaviour or take steps to avoid her or his abuser. The Supreme Court has clearly stated that the lack of avoidant behaviour on the part of a complainant is not relevant in a sexual assault trial. It would be an error to conclude that a complainant is less worthy of belief because she failed to avoid having contact with the accused. To do so would be to rely on the myths that a complainant will take steps to avoid her or his abuser or immediately tell someone what had occurred.

[54] As I have stated, there is no inflexible rule on how people who are the victims of trauma, like sexual assault, will behave. Some will make an immediate complaint, some will delay making disclosure of what happened to them, while some will never make disclosure. Some victims may disclose details incrementally, at different times. Some details may never be disclosed. Reasons for delay or incremental disclosure are many and may include embarrassment, fear, guilt or a lack of understanding and knowledge.

[55] In assessing the credibility of a complainant, the timing and fullness of the disclosure is simply one circumstance to consider in the factual mosaic of a particular case. Delayed or incremental disclosure, standing alone, should not give rise to an adverse inference against the credibility of the complainant.

[56] Just as there is no “right” way for a victim to behave during or after a sexual violation, there is no “right” way that a sexual offence occurs nor a “special” location in which it occurs.

[57] It remains impermissible, however, to reason that a complainant is telling the truth by the mere fact that she has pursued a complaint and shown willingness to undergo “the unpleasant rigours of a criminal trial.” To reason in this way would reverse the burden of proof and evince stereotype: R. v. JC, 2021 ONCA 131, at paras. 88-89.

[58] My purpose in articulating these concepts is not to support a particular conclusion but to caution myself against reaching conclusions based on common misconceptions. One must approach the evidence with an open mind and without preconceived ideas.

Essential elements of the offence of sexual interference (s.151)

[59] The essential elements of the offence of sexual interference are:

1. That the complainant was under 16 years old at the time;

2. That G.B. touched the complainant; and

3. That the touching was for a sexual purpose.

[60] As specified at s.150.1(1) of the Criminal Code, when an accused is charged with an offence under s. 151 or s.152 in respect of a complainant under the age of 16, it is not a defence that the complainant consented to the activity that forms the subject matter of the charge.

[61] As specified at s. 274 of the Criminal Code, if an accused is charged with an offence under s.151 or s.152, no corroboration is required for a conviction.

Essential elements of the offence of Invitation to Sexual Touching (s. 152)

[62] The essential elements of the offence of invitation to sexual touching are:

1. That the complainant was under 16 years old at the time;

2. That G.B. invited the complainant to touch his body; and

3. That the touching G.B. invited was for a sexual purpose.

[63] Touching is done for a sexual purpose where it was done for G.B.’s sexual gratification, or for the purpose of violating the complainant’s sexual integrity, including any act meant to degrade or demean the complainant in a sexual way.

[64] To determine the purpose of the invitation to touch, one should consider all the circumstances that surround it, including what was said and what was done. One should take into account the part of the body that G.B. invited H.B. to touch, and the nature of the contact that G.B. invited H.B. to participate in. Any words or gestures that accompanied G.B.’s invitation should also be considered.

Motive of accused

[65] Motive is a reason why somebody does something. It is not one of the essential elements that Crown counsel must prove. One does not need to find a motive for what G.B. did in order to find him guilty of the offence.

[66] A person may be found guilty of an offence whatever his or her motive, or even without a motive. Absence of proven motive, however, is a circumstance to be considered – one which may tend to support the presumption of innocence. A person may also be found not guilty of an offence, even with a motive to commit it.

Motive of complainants to lie

[67] In this case, there is no onus on G.B. to prove that the complainants, or their parents, had a motive to lie.

[68] It would be a reasoning error in assessing the credibility of an accused to consider his inability to explain why a complainant would lie.

[69] There is a distinction between the absence of evidence of a demonstrated motive to fabricate and affirmative proof of no motive to fabricate. The absence of evidence of a motive to fabricate must not be confused with the absence of such a motive. One must not conclude that complainants must be telling the truth because no motive to fabricate had been demonstrated. The absence of an established motive to fabricate is only one factor among many in assessing the complainant’s credibility.

[70] It is dangerous and impermissible to move from an apparent lack of motive to lie, to the conclusion that the complainant must be telling the truth. People may accuse others of committing a crime for reasons that may never be known, or for no reason at all.

[71] The application of these principles was addressed in R. v. Ignacio, 2021 ONCA 69, where Pepall J.A. for the Court stated at paras. 29-30:

[29] “The distinction between absence of evidence of a motive to fabricate and absence of a motive to fabricate is not easily digestible”: R. v. John, 2017 ONCA 622, 350 C.C.C. (3d) 397, at para. 97, per Watt J.A. As Watt J.A. explained in John, at para. 93:

The former is not the equivalent of the latter, nor is the latter the same as the former: R. v. L. (L.), 2009 ONCA 413, 244 C.C.C. (3d) 149, at para. 44. Said in another way, it does not logically follow that, because a witness has no apparent reason to lie, the witness must be telling the truth: R. v B. (R.W.) (1993), 24 B.C.A.C. 1, at para. 28. The fact that a witness has no apparent motive to fabricate does not mean that the witness has no motive to fabricate: R. v. L. (L.), at para. 44. [Emphasis added.]

[30] In addressing this appeal, there are in essence two questions that require a response:

(i) Did the trial judge find that the Crown had proven that the complainant had no motive to fabricate or that there was, as the Crown asserts, simply an absence of evidence of any motive to fabricate?

(ii) If the evidence fell short of establishing that the complainant had no motive to fabricate and the trial judge was simply adverting to an absence of evidence of any motive to fabricate, was he entitled to consider that absence in his analysis of the complainant’s credibility?

[72] Following a discussion of relevant cases, Justice Peppall concluded at paras. 58-60:

[58] In other words, even though on its face, the trial judge appeared to have made a positive finding that the Crown had proven the absence of a motive to fabricate, this did not warrant allowing the appeal because of how the trial judge treated this conclusion. He did not treat it as dispositive, but only as a factor to consider.

[59] In this case, the trial judge’s treatment of the motive issue was consistent with the cases discussed. He specifically cautioned himself against placing any obligation on the accused to demonstrate why the complainant would fabricate her evidence. Nothing suggests that he leapt to the conclusion that the complainant must be telling the truth. He considered the complainant’s credibility independent from his conclusion that there was an absence of evidence of a motive to fabricate. As mentioned, the issue of motive to fabricate had been raised by the defence and the trial judge felt obliged to address it. Lastly, he did not place excessive weight on the absence of evidence of motive. Indeed, the trial judge identified the issue as an observation and acknowledged that it was just one factor to consider. As in W.R., the trial judge’s comment about motive did not “drive the trial judge’s credibility findings”, nor did he suggest that his findings on motive led him to conclude that the complainant must be telling the truth.

[60] Credibility findings are the province of the trier of fact. In this case, the trial judge clearly had no reasonable doubt that the appellant was guilty of sexual assault. His treatment of motive to fabricate did not infect that conclusion. In these circumstances, there is no need to rely on the curative proviso.

[73] In R. v Gerrard, 2022 SCC 13, the Supreme Court of Canada has succinctly summarized the relevant factors:

Two of these factors warrant a few additional comments. Lack of evidence of a complainant’s motive to lie may be relevant in assessing credibility, particularly where the suggestion is raised by the defence (R. v. Stirling, 2008 SCC 10, [2008] 1 S.C.R. 272, at paras. 10-11; R. v. Ignacio, 2021 ONCA 69, 400 C.C.C. (3d) 343, at paras. 38 and 52). Absence of evidence of motive to lie, or the existence of evidence disproving a particular motive to lie, is a common-sense factor that suggests a witness may be more truthful because they do not have a reason to lie. That said, when considering this factor, trial judges must be alive to two risks: (1) the absence of evidence that a complainant has a motive to lie (i.e. there is no evidence either way) cannot be equated with evidence disproving a particular motive to lie (i.e. evidence establishing that the motive does not exist), as the latter requires evidence and is therefore a stronger indication of credibility — neither is conclusive in a credibility analysis; and (2) the burden of proof cannot be reversed by requiring the accused to demonstrate that the complainant has a motive to lie or explain why a complainant has made the allegations (R. v. Swain, 2021 BCCA 207, 406 C.C.C. (3d) 39, at paras. 31-33).

Lack of embellishment may also be relevant in assessing a complainant’s credibility and often arises in response to suggestions that the complainant has a motive to lie. But, unlike absence of evidence of motive to lie, or the existence of evidence disproving a particular motive to lie, lack of embellishment is not an indicator that a witness is more likely telling the truth because both truthful and dishonest accounts can be free of exaggeration or embellishment. Lack of embellishment cannot be used to bolster the complainant’s credibility — it simply does not weigh against it. It may, however, be considered as a factor in assessing whether or not the witness had a motive to lie.

Testimony of adult witness giving evidence about events that allegedly occurred when they were a child

[74] At the time of trial, H.B. is now 25 years old. A.H. is 19. E.S. is now 20. Each of the complainants testified about events that allegedly occurred when she was under the age of 16.

[75] At the time of the alleged commission of the offences against them, A.H. was 15, E.S. was 13, and H.B. was 7-8 at the commencement of the alleged sexual abuse, but 13-14 and entering Grade 9 at the time the alleged sexual touching stopped.

[76] 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. When adult witnesses testify about events that occurred when they were a child, their evidence should be assessed by the criteria applicable to adult witnesses, not by the somewhat relaxed criteria applicable to child witnesses.

[77] However, when an adult witness gives evidence about events that took place in childhood, inconsistencies and lack of memory, 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 about which she is testifying.

[78] The Court of Appeal for Ontario has recently given further guidance in this regard at paras. 4-6 in R. v. D.D., 2022 ONCA 786, in which the Court found that the trial judge erred by assessing the complainant’s credibility as if she were a child at the time that she testified:

[4] In R. v. W. (R.), 1992 56 (SCC), [1992] 2 S.C.R. 122, it was affirmed that the evidence of children must be approached on a common-sense basis bearing in mind their mental development, understanding and ability to communicate. “Since children may experience the world differently from adults, it is hardly surprising that details important to adults, like time and place, may be missing from their recollection”: R. v. W. (R)., at para. 25. By way of illustration, the inability of the child complainant in R. v. W. (R.) to accurately describe the location of bedrooms in a house, a peripheral matter, was not significant to her credibility or reliability, since a child may not attend to such details: R. v. W. (R.), at para. 30.

[5] Even when adults testify about events that allegedly occurred when they were children, such considerations remain relevant. This is logical. If a witness would not likely have noted the thing as a child, their failure to relate that thing years later while testifying as an adult cannot meaningfully unsettle the credibility or reliability of their evidence. Therefore, “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” (emphasis added): R. v. W. (R.), at para. 27.

[6] However, “[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”: R. v. W. (R.), at para. 27. The trial judge cited this principle correctly but misapplied it.

[79] At para. 8, the Court continued:

[8] To be clear, there can be no issue taken with a trial judge finding that details provided by an adult witness about a childhood experience are the kinds of things a child would remember, or that details recounted by the adult witness provide plausibility or coherence to the account. But what a trial judge cannot do is infer that such details, being provided by an adult witness, must be true because a child would not have the intelligence or experience to concoct those details.

[80] At para. 9, the Court concluded:

[9] The trial judge did not simply rely on the witness’s immaturity at the time of the event to put flaws in the witness’s evidence into perspective, an entirely appropriate mode of reasoning. He went further and evaluated the credibility of the adult complainant as if she were a child at the time she testified. This was not a secondary feature of the decision. Reading the credibility analysis undertaken by the trial judge, one would be hard pressed to appreciate that the complainant was 18 years of age when she testified, and not a young child. This was a serious error that was central to the trial judge’s decision to accept the testimony of the complainant.

Analysis

[81] I will begin my analysis with Count 4.

Count 4 (Sexual Interference s.151) re A.H.

[82] The fourth count on the Indictment charges that on or about August 4, 2018, at the Pinehurst Lake Conservation Area in North Dumfries Township, G.B. did for a sexual purpose touch A.H, a person under the age of 16 years, with his hand.

[83] There is no dispute regarding the first two essential elements of the s.151 offence. A.H. was under the age of 16 years on that date, and G.B. touched her with his hands at the Pinehurst campground while she was laying in the bunk of a trailer owned by his friends where G.B., A.H. and his son I.B. were staying that night. The dispute is with regard to the third essential element, whether the touching was done for a sexual purpose.

[84] A.H. testified that while she was laying in an upper bunk, he touched her right side, and eventually touched her breast.

[85] G.B. admitted that he gave A.H. a portion of marijuana gummie, after she had previously taken one from a cooler where he kept them at the campsite. His evidence was that he consumed five beers over the course of nine hours (a dog had knocked over the sixth beer that he had brought). He acknowledged that he had gone into the trailer to check on A.H., and shook her. He indicated that he did not know what he grabbed, and had no idea what part of her body he touched. He acknowledged that it could have been her breast. He said that he shook her to get her to answer him. He says that he called out to her by name, asking if she was ok. He could not see up into the top bunk, could not see her eyes, and could not see if she had vomited. Once she answered that she was fine, he left. He did not turn on the light. He denied climbing up on the bunk. He said that the whole interaction lasted perhaps a minute, a minute and a half at best.

[86] G.B. testified that, until interviewed by police on September 18, 2018, he had no idea that A.H. was accusing him of sexual touching.

[87] He denied kissing A.H. on the forehead on a subsequent occasion, and did not recall a specific incident where he touched her leg.

[88] I do not believe the evidence of G.B., nor does it leave me with a reasonable doubt.

[89] I find that he provided A.H. with a second portion of edible marijuana gummie after she had already consumed a first, and that she felt the effects of that. I find that G.B. himself had consumed beer and marijuana gummies before entering the trailer. I find that G.B. did physically touch A.H. with his hand while standing next to her while she lay in the bunk, and that he did climb the ladder and lay down next to A.H. on the bunk.

[90] Even on his own account, G.B. engaged in conduct at the trailer park in giving A.H. and his son I.B. marijuana gummies that is not conduct expected of a responsible parent. However, G.B. is not on trial for being a bad parent. On this Count, he is being tried for the offence of sexual interference. I am conscious of the perils of propensity reasoning arising from evidence of prior discreditable conduct, such as giving drugs to a child, and moral and reasoning prejudice in this regard, and instruct myself accordingly.

[91] A.H. was a credible witness. She gave her evidence in a straightforward manner. But there are concerns with the reliability of her evidence.

[92] She had consumed edible marijuana gummies. She was feeling “giggly.”

[93] She went to lie down on the bunk in the trailer, and was sleepy.

[94] A light was on in the trailer, but not in the bedroom sleeping area. The level of illumination was low, and it would be hard for her and for him to visually distinguish what part of her body G.B. was touching.

[95] Having regard to these and to the following factors, I have a reasonable doubt regarding the third essential element, that touching was done for a sexual purpose:

• She expressed uncertainty that in his asking, “are you ok?”, whether he was asking for consent for sexual touching, or to check if she was doing ok after consuming drugs.

• She said “I couldn’t completely tell.”

• In her statement to police made on September 1, 2018, which she adopted as part of her evidence at trial, she expressed initial uncertainty as to what had happened in the trailer. She said, “It didn’t really hit with me because I was like, well maybe I’m reading into something…and then I find out it happened to my her, too [her cousin H.B.], and I was like, what would’ve happened if my cousin [I.B.] wouldn’t have come in…”

• This raises a real concern that she came to a post facto conclusion about what had happened, on the basis of the suggestion or inference that, because she heard that something similar had allegedly happened to someone else, this must have been what had happened to her. Her reaction, while understandable, exemplifies propensity reasoning.

• She was wearing a loose-fitting baggy hoodie which would have made it difficult both for G.B. to immediately ascertain what part of her body he was touching, and for her to distinguish this as well.

• G.B. had consumed alcohol and marijuana - he could have been engaged in drunken and impaired fumbling, shaking her to attempt to confirm that she was ok after having consumed the drugs, rather than trying to touch her for a sexual purpose.

• The interpretation of his subsequent statement to her, paraphrasing a popular saying adverting to Las Vegas, that “what happens at trailer, stays at the trailer” is ambiguous. It is unclear whether it related to touching A.H., or to providing her with a marijuana gummie. G.B.’s testimony was that it related to what had happened with the marijuana edibles. It is possible that his exhortation to her not to disclose the incidents of the evening related to his apprehension concerning the consequences for him if her parents learned that he had given her marijuana edible gummies, rather than to attempted touching for a sexual purpose.

• She testified that G.B. lay in the bunk with her for approximately two minutes after he had climbed the ladder, but that he did not further touch her while he was laying in the bunk. If his purpose was touching for his own sexual gratification, it seems likely that it would have escalated while he was lying close to her in the bunk

• There is no evidence that G.B. said anything on this occasion that would expressly manifest a desire for sexual gratification. His statements, both in the trailer and subsequently, were ambiguous.

• The subsequent incidents that she testified to, of G.B. touching her leg on one occasion, and hugging her or kissing her on the forehead, are not unambiguously for a sexual purpose, and are potentially susceptible to an innocent explanation. They do not establish a pattern of consistent conduct over time.

[96] Taken altogether, viewing the evidence as a whole, I cannot find beyond a reasonable doubt that the touching of A.H. by G.B. in the bunk in the trailer at the Pinehurst campground on August 4, 2018, was done for a sexual purpose. It would be unsafe to convict on this evidence.

[97] Consequently, there will be an acquittal on the fourth count.

Count 3 (Sexual Interference s.151) re E.S.

[98] E.S. is the daughter of K.S. and A.S. Her parents were friends with G.B. They knew G.B. through the cheerleading group that she had participated in between the ages of 3-14. They had visited each others’ homes, and shared hotel rooms with connecting doors when they went away to cheerleading competitions in other cities. H.B. had babysat her when she was younger. E.S. testified that she saw G.B. as a father figure.

[99] E.S. testified that in the summer before she went into Grade 9, (she initially testified that this was 2014, then later during cross-examination said 2015) she babysat frequently. She was 13. On one occasion, she babysat at the home of John and Mandy Jo McMurray in Kitchener. They had five children between them. The children ranged in age from 3-10. She called them “the A-team,” because all of the children had first names that started with the letter “A”.

[100] On this occasion, John and Mandy were having a stag and doe celebration evening at various bars in advance of their forthcoming wedding. Members of families from the Cheer club were attending, including G.B. and K.L.

[101] E.S. testified that, around 1:00 a.m., possibly later than that, John McMurray and G.B. came back to the McMurray’s house. They were visibly very drunk. After checking on the children, John went to bed and did not re-emerge.

[102] E.S. testified that she and G.B. sat in the living room on a three-seater couch. G.B. joined her on the couch. He told her that she could lean on him because she was tired, and she did so, as she did with her dad. She leaned onto his shoulder. He put his arm around her. He then started slowly rubbing her with his left hand, from her pants line to her bra line. He then went lower, closer to her vagina. She tensed up and held his hands, to stop him going that low. He started moving her hands away. No one said anything. She started getting very uncomfortable, and got up to go to the kitchen after one or two minutes. She was not able to find water. She was trying to calm herself down.

[103] E.S. testified that G.B. followed her into the kitchen and put his arm around her again. He asked if she was ok. He started rubbing her side again. He went lower, and grabbed her “butt” using his left hand. She said she felt it was not accidental contact, he was clearly rubbing her side, lifting her shirt, with skin-on-skin contact. She was uncomfortable and went back to the couch. She got to the couch first. He sat down on the left. He said “come here,” grabbed her, and put her between his legs. She was on her back, with her head on his chest, sitting between his legs. He was leaning back on the arm of the couch. He started trying to touch her vagina again, using both hands this time. She locked her hands over herself, over top of her vagina. This continued for a while, possibly ten minutes, possibly a shorter time, until her phone went off, to inform her that her parents had arrived to take her home. She was 13 at the time. He was much larger, but was not able to pry her hands open.

[104] E.S. testified that the day after, G.B. started texting her on Facebook Messenger. He texted her a couple of times throughout that day.

[105] She said that she did not know any details about the complaints made by A.H. and H.B.

[106] E.S. acknowledged that she had had four diagnosed concussions from playing rugby, which had fuzzy memory as a side effect.

[107] A.S., the mother of E.S. testified that she did not see the text message herself. She told E.S. to ignore the messages and to delete them.

[108] A.S. testified that, three years later in 2018, she told E.S. that it was her choice to report the alleged incident of sexual touching.

[109] K.S., the father of E.S., testified that E.S. showed him her cellphone. There was a message to her from G.B. asking her how she was doing. There was nothing else. He told her to ignore G.B. and to block him. He thought it weird for an older man to be texting a young woman. After the text message, he kept E.S. away from G.B.

[110] K.S. did not find out until 2018 from his wife that his daughter E.S. was saying that something had occurred between her and G.B. on the night of the McMurray celebrations.

[111] G.B. testified that he attended a celebratory evening in August the weekend prior to John and Mandy Jo McMurray getting married. The men had a pub crawl in Waterloo. A.S. was a designated driver for the evening and drove him to the McMurray residence. From there, the men went to several pubs, including Beertown, Abe Erb and the Duke in Uptown Waterloo. From there they went to the Flying Dog, the last establishment attended during the evening. They were there for three hours, consuming alcohol. He shared a cab with John back to the McMurray residence, where he waited for his wife.

[112] G.B. testified that he did not see E.S. on that evening, and did not know where she was. He said that he never had occasion to meet her at the McMurray residence. He testified that the only person he saw at the McMurray residence was John. He just sat in a chair and waited for his wife to arrive to drive him home.

[113] G.B. testified that he did not have the cellphone number of E.S., and that he never messaged her on social media.

[114] I do not believe the evidence of G.B. regarding this evening, and I am not left in a reasonable doubt by it.

[115] I find E.S. to be a generally credible witness. But, there are concerns with the reliability of her evidence.

[116] There were obvious inconsistencies in the evidence of E.S. regarding dates. She acknowledged that she initially stated the wrong year, 2014 instead of 2015. There was also uncertainty regarding whether on the evening at issue she had earlier babysat at the Robb residence, before her mother drove her to the McMurray residence. She acknowledged that she might have babysat at the Robb residence a different night.

[117] Her evidence about the text messages allegedly sent her by G.B. subsequent to the evening at issue was problematic. She said that she left her phone where her parents could find it, rather than telling them about it. This was not the evidence of her parents. A.S. said she never saw the message. K.S.’s evidence was inconsistent with the evidence of E.S. about the phone.

[118] E.S. also acknowledged that she has had four concussions from playing rugby, and that this has had an effect on her memory.

[119] I assess that something akin to the account of E.S. likely happened, at some time. It is evident that her family has experienced trauma in going through the trial process, and have not lightly embarked on it. But there are material inconsistencies in her evidence which must give one pause.

[120] Taken altogether, viewing the evidence as a whole, I cannot find beyond a reasonable doubt that G.B. touched E.S. for a sexual purpose at the McMurray residence. I am not sure. The rigour of the standard of proof beyond a reasonable doubt is our society’s bulwark against the potential for wrongful convictions, and must not be diluted. Given the inconsistencies, it would be unsafe to convict on this evidence.

[121] Accordingly, there will be an acquittal on the third Count.

Counts 1 and 2 (Sexual Interference s.151 and Invitation to Sexual Touching s.152) re H.B.

[122] H.B. testified that, when she was around the age of 7 - 8, G.B. touched her vagina, and made her place her hand on his penis. He would take her hand, she said, and place it on his penis. It was not over clothing, but rather touching skin. She did not believe that he ejaculated, but could not be certain. These incidents occurred in their house at 20 Jordan Drive in Kitchener, in her room, and also in the play fort located in the basement, where she would sometimes sleep in the summertime because it was cooler.

[123] She indicated that she could not say with confidence what age she was when the incidents first started. It could have been as early as 5, or as late as 8 or 9.

[124] She said that this could have been a couple of times per year.

[125] There were two kinds of touching: G.B. touching her vagina, and him getting her to touch his penis with her hand. She did not believe that he penetrated her, and can’t remember any ejaculation. She did not think that his penis was hard when she touched it. She could not recall whether he was circumcised or not. At the time, she knew the meaning of the words penis and vagina.

[126] H.B. testified that, although the basement was not fully finished until some years later, there were stairs up to the play fort (or “treehouse”) area, and it was fully finished inside. The stairs were carpeted. She recalled incidents where some of her friends fell down the stairs.

[127] She did not resist her father when she was younger, as at that age she really did not know that something was wrong in this behaviour. When she was in Grade 6 or 7, she began to resist more, as she realized that something was wrong. The last incident was the year she started high school. It happened before she started high school, possibly in the summer of 2011. She was 14 at that time.

[128] After the allegation of A.H. emerged about sexual touching in the trailer at the campground, H.B. was taken by her mother to a police station, where she provided a statement to D.C. Stahlbaum. H.B. testified that her mother did not influence what she said to police.

[129] At the time that she gave her statement to Detective Constable Stahlbaum, H.B. knew that A.H. had made an allegation about her father G.B., but did not know the details of the allegations. She was not aware of the allegations of E.S. at that time. She was later informed of them by K.L.

[130] I found H.B. to be a credible witness. She was forthright, composed, calm and succinct. Her evidence was internally consistent. Her evidence was not seriously challenged on cross-examination.

[131] She did not demonstrate an animus towards G.B. I accept that she was motivated in giving her evidence by a desire to avoid harm to others, particularly as G.B. was involved, along with H.B. and K.L., in a group that included young female cheerleaders.

[132] There was no evidence of an apparent motive for H.B. to lie. As discussed in detail earlier, lack of evidence of a complainant’s motive to lie may be relevant in assessing credibility, particularly where the suggestion is raised by the defence. Absence of evidence of motive to lie, or the existence of evidence disproving a particular motive to lie, is a common-sense factor that suggests a witness may be more truthful because they do not have a reason to lie. That said, when considering this factor, I am alive to the risk that the absence of evidence that a complainant has a motive to lie (i.e. there is no evidence either way) cannot be equated with evidence disproving a particular motive to lie (i.e. evidence establishing that the motive does not exist), as the latter requires evidence and is therefore a stronger indication of credibility — neither is conclusive in a credibility analysis. I therefore do not find that the absence of evidence of an apparent motive for H.B. to lie enhances her credibility. I simply note that there is not evidence that detracts from it in this regard. I have considered the complainant’s credibility independent from my conclusion that there was an absence of evidence of a motive to fabricate.

[133] H.B. did not embellish her evidence. As noted earlier, lack of embellishment is not an indicator that a witness is more likely telling the truth because both truthful and dishonest accounts can be free of exaggeration or embellishment. Lack of embellishment cannot be used to bolster the complainant’s credibility — it simply does not weigh against it. It may, however, be considered as a factor in assessing whether or not the witness had a motive to lie.

[134] G.B. testified that although there were instances where he was alone with H.B. in her bedroom when she was a child to get her ready for bed and tuck her in, he was never alone with H.B. in the basement play fort. He was occasionally in the loft to simply play with his daughter. He reiterated that he was never alone with her there, and never touched her sexually there.

[135] G.B. testified that he never touched H.B.’s vagina in her bedroom, and that he never asked her to touch his penis. He said that she never had occasion to touch his penis. She never had occasion to see him naked and aroused. G.B. denied that he ever touched H.B. for a sexual purpose.

[136] G.B. testified that the basement in the 20 Jordan Drive house was only finished in 2015, and that the play loft only had 5 feet of headroom. There were no stairs. It was only accessed by a ladder. Later in his testimony he said that there were stairs, but that they were steeper than normal, and that some children had fallen down them.

[137] G.B. testified that he was not circumcised.

[138] The evidence of G.B. on these two counts amounts to a bare denial. I do not believe the evidence of G.B. concerning whether he ever touched H.B. sexually, and I am not left in a reasonable doubt by it.

[139] In this regard, I note that it is possible for a trier of fact to reject the accused’s evidence because they accept the evidence of the complainant beyond a reasonable doubt: R. v. J.J.R.D. 2006 40088 (ON CA), [2006] OJ No. 4749 (C.A.).

[140] But I do not reject the accused’s evidence solely for this reason. There are also inconsistencies in his evidence regarding the stairs in the play fort. His evidence that he was never alone with the complainant H.B. in the play fort is also implausible.

[141] I must then consider whether, on the basis of the evidence that I do accept, I am persuaded beyond a reasonable doubt by that evidence.

[142] There is no dispute regarding the first essential element, that at the relevant time H.B. was under the age of 16. What is contested is the second element of the alleged offences, that is, whether G.B. touched her vagina in her bedroom and in the play fort, and that he made her touch his penis with his hand.

[143] If I find that the second essential elements are satisfied, there can in the circumstances be no realistic argument that the touching did not occur for a sexual purpose, given the parts of the body touched (her vagina and his penis), and the recurring nature of the touching.

[144] The Defence has raised several issues upon which I must focus particular consideration in making my assessment.

Collusion

[145] As I found at paras. 29-34 of my decision regarding similar fact evidence between Counts, in this case, there is no evidence that anyone discussed the complaints in significant detail before their police interviews. I find that in this instance there is no evidence of actual collusion, or attempt to shape or distort the evidence. I further find that potential inadvertent tainting did not significantly impact the reliability of H.B.’s evidence.

[146] The evidence of H.B. was that her mother did not influence her statement to police about what happened to her. I accept her evidence in that regard.

Appearance of Penis

[147] G.B. testified that his penis is not circumcised. The evidence of H.B. was that she was not sure whether he was circumcised or not. She also could not recall whether his penis was erect.

[148] As discussed above, when adult witnesses testify about events that occurred when they were a child, their evidence should be assessed by the criteria applicable to adult witnesses, not by the somewhat relaxed criteria applicable to child witnesses. However, when an adult witness gives evidence about events that took place in childhood, inconsistencies and lack of memory, 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 about which she is testifying.

[149] H.B. testified that she was between the ages of approximately 7 to 14 at the time the sexual touching occurred.

[150] The evidence of children must be approached on a common-sense basis bearing in mind their mental development, life experience, understanding and ability to communicate. Even when adults testify about events that allegedly occurred when they were children, such considerations remain relevant. If a witness would not likely have noted the thing as a child, their failure to relate that thing years later while testifying as an adult cannot meaningfully unsettle the credibility or reliability of their evidence.

[151] H.B. testified that she knew at that time what a vagina and a penis were. But it would not be a reasonable or realistic expectation to presume that a young girl would be familiar with the distinction in appearance between a circumcised and uncircumcised penis. Similarly, to expect a young girl to be able to observe and comment on whether a penis was erect or not would not be reasonable. Moreover, H.B. should not be expected, as an adult witness now, to retroactively apply what may be her current understanding (about which she was not asked, and there is no evidence before the Court) regarding the differences in appearance of a circumcised or uncircumcised penis, or an erect penis, to her memory of what she observed as a young child. Such an expectation would be improper. She was a young child when she made the observations, and her memory would reflect her observation and understanding, or lack of it, at that time. Her current inability to definitively indicate whether G.B. was circumcised or his penis was erect during the sexual touching when she was a child does not detract from the credibility or reliability of her evidence.

Vagueness about dates

[152] The Defence raised a concern about H.B.’s vagueness about dates. Children remember what happened to them. Their memory of time and place is frequently less precise. The lack of precision in the evidence of H.B. regarding exactly what age the sexual touching started is not surprising, especially given her young age, and does not detract from her credibility.

Delayed Disclosure

[153] The Defence raised a concern about delayed disclosure, and that H.B.’s revelation that she had been touched by, and made to touch, G.B. did not occur until some years after the events, and was triggered by an allegation of A.H. that led H.B.’s mother K.L. to take her to a police station. As discussed above, a delay in disclosure, standing alone, will not detract from the credibility of a complainant. It is simply one factor in the factual mosaic of a case, to be considered by the trier of fact.

Application of similar fact evidence across counts

[154] Although I granted the Crown’s application that similar fact evidence from A.H., E.S. and H.B. could be applied across counts in this case, that ruling was with respect to the admissibility of such evidence. As I indicated in my decision, in the main trial it remains for me as the trier of fact as trial judge to determine what weight I should ascribe to it. Given my findings with regard to the third and fourth counts, I have not found it necessary to have regard to the evidence of E.S. and A.H. in order to make the findings that I have made in respect of the allegations of H.B. on the first and second Counts. My credibility findings regarding the evidence of H.B. do not involve recourse to consideration of the similar fact evidence of A.H. and E.S..

[155] Considering the evidence as a whole, I am satisfied beyond a reasonable doubt that G.B. touched H.B.’s vagina, and made her touch his penis with his hand, when she was a child under the age of 16, and that this was done for a sexual purpose.

[156] Accordingly, there will be convictions on Counts 1 and 2.

Conclusion

[157] The Court finds G.B. guilty of Counts 1 and 2 on the Indictment.

[158] The Court finds G.B. not guilty of Counts 3 and 4 on the Indictment.

M. Gibson. J.

Dated: January 17, 2023

COURT FILE NO.: CJ 9609

DATE: 2023/01/17

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

– and –

G.B.

REASONS FOR JUDGMENT

M.R. Gibson, J.

Released: January 17, 2022