ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CR-21-727-00
DATE: 2023 07 25
BETWEEN:
HIS MAJESTY THE KING
– and –
R.C.
T. Sarantis, for the Crown
A. Goldkind, for R.C.
HEARD: April 24-28, May 1, 2023
REASONS FOR JUDGMENT
L. Shaw J.
Introduction
[1] The accused, R.C., is charged with two offences relating to allegations that he sexually assaulted the complainant, D.V., approximately 20 to 22 years ago, between May 21, 2001 and May 21, 2003, when she was between the ages of four and six.
[2] The offences include one count of sexual assault contrary to s. 271 of the Criminal Code of Canada, R.S.C., 1985, c. C-46 (the “Code”) and one count of touching for a sexual purpose a person under the age of 14 years contrary to s. 151 of the Code. R.C. has pleaded not guilty to both counts.
[3] D.V. was born on May 21, 1997; she is now 26 years of age. She first disclosed the incidents to a friend’s mother in 2011, when she was 14 years of age. She went to the police later that year and gave a statement on November 26, 2011, (the “2011 statement”). R.C. was not charged until his return to Canada in 2019, as he had been deported in 2008 on unrelated matters. As a result of these unusual circumstances, there is close to a 12-year delay between the date of D.V.’s initial statement to the police and when she testified at this trial.
[4] Two witnesses testified at trial: D.V. and her brother M.V. R.C. did not testify. The sole issue is whether I find D.V. to be a credible and reliable witness, accept her evidence, and find, beyond a reasonable doubt, that R.C. committed the sexual acts she described.
[5] D.V. is the youngest of 4 siblings; she has two older brothers and an older sister. They lived together with their parents at a house that R.C. regularly visited with his partner, B., whom D.V. described as her aunt. Her brother, M.V. described B. as a close family friend.
[6] D.V. testified that when she was between the ages of 4 and 6, R.C. sexually assaulted her on several occasions. There were five incidents that she disclosed to the police and testified about at trial. These included R.C. touching her breasts in her bedroom, R.C. putting his tongue in her mouth while in the kitchen at a birthday party, R.C. digitally penetrating while they were passengers in a car, R.C. rubbing his penis against her in her brother’s bedroom, and R.C. exposing his penis to her in the bathroom in her house. While testifying at trial, she disclosed new incidents, for the first time, of which she had an incomplete memory, including touching R.C.’s penis and R.C.’s penis in her mouth.
Position of the Parties
[7] The Crown argues that D.V. is a credible, reliable witness who gave evidence that was detailed and compelling. When she testified, she was able to recall specific details of the sexual assaults. Any inconsistencies in her evidence are with respect to peripheral issues that do not go to the core of her allegations and the elements of the offences.
[8] The defence argues that D.V. is neither credible nor reliable. Given the number of inconsistencies on details that were not peripheral and her expanding disclosure, I should not believe D.V. and find R.C. not guilty of both counts.
Analytical Framework
[9] There are several relevant legal principles applicable to this case.
a) Presumption of Innocence and Reasonable Doubt
[10] R.C. is presumed innocent of these charges. This presumption remains throughout the whole of the trial, unless and until the Crown proves his guilt on both counts beyond a reasonable doubt. This is a heavy burden on the Crown and never shifts. R.C. is not required to prove anything or to testify.
[11] The Crown must prove each element of the offence beyond a reasonable doubt. A reasonable doubt is not an imaginary or frivolous doubt. It is based upon reason and common sense, and it logically derives from the evidence, or the lack of evidence, adduced during the trial. While likely or even probable guilt is not enough to meet the criminal standard, proof to an absolute certainty is inapplicable and unrealistic. As noted by the Supreme Court of Canada (“SCC”) in R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144, at para. 242, there is no mathematical precision to proof beyond a reasonable doubt, but it lies much closer to absolute certainty than to proof on a balance of probabilities. After considering all the admissible evidence, if I am sure that R.C. committed the alleged offences, then I must convict him because I am satisfied of his guilt beyond a reasonable doubt. Likewise, if I am not sure, or if I find that R.C. is likely or probably guilty, then I have a reasonable doubt and an acquittal must follow.
[12] Proof beyond a reasonable doubt is a high standard. As the SCC commented at para. 13 in R. v. Lifchus, [1997] 3 S.C.R. 320, this high standard is one of the principal safeguards to ensure that no innocent person is convicted.
b) Assessing Credibility and Reliability
[13] When assessing credibility, I can consider how reliably or accurately a witness recalls events and the way the witness presents his or her evidence. This includes whether they do so in a truthful and complete manner and whether they are being frank, biased, or careless with the truth.
[14] 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. Inconsistencies may arise not just from a witness’ evidence at trial, but from what that witness may have said differently in other instances. Some inconsistencies are minor or regard 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 ought to concern the trier of fact.
[15] Reliability is separate from credibility. Credibility focuses on a witness’ veracity. Reliability has more to do with accuracy – the ability to observe, recall, and recount events that are in issue: R. v. C. (H.), 2009 ONCA 56, 244 O.A.C. 288, at para. 41. 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.
[16] 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.
[17] Further, it is open to a trier of fact to believe all, none, or some of a witness’ evidence: R. v. M. (R.E.), 2008 SCC 51, [2008] 3 S.C.R. 3, at para. 65. The trier of fact may also accord different weight to different parts of the evidence that has been accepted: R. v. Howe (2005), 2005 CanLII 253 (ON CA), 192 C.C.C. (3d) 480 (Ont. C.A.), at para. 44; R. v. M.M., 2018 ONSC 1022, [2018] O.J. No. 781 (QL), at para. 143.
[18] Where there are significant inconsistencies or contradictions within a principal Crown witness’s 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. W. St. (1994), 1994 CanLII 7208 (ON CA), 18 O.R. (3d) 509 (C.A.), at para. 15, leave to appeal refused, [1994] S.C.C.A. No. 290.
c) Myths and Stereotypes in Sexual Offences
[19] When dealing with sexual offences, it is important to be mindful of myths and stereotypes about how someone should behave following a sexual assault or when they should report an assault. Myths and stereotypes about both have, at times, tainted sexual assault jurisprudence. The court must not draw an adverse inference regarding a complainant’s credibility based on assumptions of how people react to acts of sexual abuse: R. v. D. (D.), 2000 SCC 43, [2000] 2 S.C.R. 275, at para. 63.
[20] There is no inviolable rule with respect to how victims of sexual assault will behave: D. (D.) at para. 65. Some victims will make an immediate complaint, some will never disclose, and others will delay in disclosing the abuse. The reasons for delaying disclosure may include embarrassment, fear, guilt, or a lack of knowledge. In assessing credibility, the timing of the disclosure is just one factor to consider. A delay in disclosure on its own does not give rise to an adverse inference against the complainant’s credibility.
d) The Evidence of Adult Complainants Testifying about Childhood Events
[21] D.V. testified about incidents that occurred between 20 and 22 years ago, when she was between 4 and 6 years of age. When an adult testifies about what occurred as a child, their credibility is to be assessed according to the criteria applicable to adults. However, the presence of inconsistencies, particularly on peripheral matters such as time and location, should be considered in the context of the age of the witness at the time the events took place: R. v. W. (R.), 1992 CanLII 56 (SCC), [1992] 2 S.C.R. 122, at p. 134.
[22] That does not mean I accept the complainant’s evidence uncritically. I must assess the evidence on a common-sense basis, considering the strengths and weaknesses of the evidence presented.
Review of the Evidence
[23] The trial was to commence on April 24, 2023. On that date, after reviewing her 2011 statement, D.V. gave some information to the Crown to correct her statement and arrangements were made for her to provide a second recorded statement to the officer in charge (the “2023 statement”). This new disclosure was then given to R.C. The trial commenced the following day.
(a) D.V.’s evidence regarding the alleged sexual assaults
[24] Historical sexual assault cases pose challenges because witnesses are asked to testify about events that occurred many years ago. It is to be expected that memories fade over time, which can result in inconsistencies as witnesses attempt to recall distant events.
[25] In this matter, I must also consider the memories that D.V. recalled as she testified at trial. While she gave some new information in the 2023 statement, there were other incidents and new details provided for the first time when she testified the day after giving her second statement to the police. D.V. testified that that she had memories that she had blocked and were trigged by seeing R.C. at trial and looking at a photograph.
[26] In 2001, when D.V. was four years of age, her family lived in a home on M street. They moved to a new residence on G street when she was six years of age. D.V. continues to live at that house with her brother, M.V.
[27] D.V. testified that R.C., B., and B.’s two children, Bi and D., whom she referred to as her cousins, would come to their homes on M and G street almost every weekend. They also celebrated every holiday together. Pictures were introduced as evidence showing D.V., her parents and siblings, R.C., B., and B.’s children at their home on holidays.
[28] D.V. could not recall when she first met R.C. Her first memory of him is being in the backyard of her home on M street for a family barbecue. Her friend, E., was there as well. The backyard of E.’s house was adjacent to the backyard of D.V.’s home.
[29] While they were on the swings in the backyard, R.C. blew “kissy faces”, winked, and waved at her and E.
[30] The first incident of a sexual nature occurred when D.V. lived on M street. She and E. were in her bedroom playing with barbie dolls. There were two beds in the room; they were each sitting on a bed. R.C. entered the bedroom and sat on the left side of D.V.’s bed, facing E. who was on the other bed. D.V. was lying down. She recalled that R.C. leaned back and extended his right arm behind him and around D.V. He then reached over and touched E.’s chest, under her shirt. D.V. testified that she closed her eyes as she did not want to watch. R.C. then got up, sat on E.’s bed, and reached over and put his hand under D.V.’s shirt. She did not recall how long the touching lasted or if any words were spoken.
[31] D.V. has no other memory from that day. She did not know how old she was at the time but thought it was close in time to when R.C. blew kisses at her in the back yard.
[32] D.V. testified that E. used to come over to her house frequently but stopped coming as frequently after this incident. When she and E. were alone, they would talk about what happened and they would both cry.
[33] D.V. has no memory of anything else happening while she lived on M street.
[34] D.V. recalled being at a birthday party at B.’s home, which was a basement apartment in Toronto; it was either Bi’s or D.’s birthday. Her entire family and other people were at the party. She was in the kitchen, alone with R.C.; everyone else was in the living room. R.C. was drinking beer and she recalls that he put his tongue down her throat. She recalled tasting beer. She did not recall R.C. saying anything to her. She recalled giving her mother a kiss after this and her mother asked her why she smelled like beer. D.V. did not answer.
[35] D.V. testified about another occasion when she was in B.’s car. B. was driving and it was nighttime. R.C. was sitting in the front passenger seat. There were 5 people in the back seat. Her two cousins were sitting in the rear seat, behind R.C. D.V.’s mother was sitting in the rear seat behind B. D.V. was not sitting on a seat; she was sitting on the hump in the rear of the car, that would have been centered between the front passenger and driver seat. Her brother, C., was sitting behind her. She described them as being crammed in the back seat. She testified that everyone in the back seat was sleeping, as was she. She recalled feeling a sensation; she was drowsy and then woke up. She opened her eyes and R.C. had his fingers on the outside of her vagina, under her underwear. She then felt his fingers inside her vagina; it could have been one or two fingers. She recalled that he was tilted back a little in the front seat and then he turned his head and smiled at her, while his finger was in her vagina. She did not know how long it lasted. She did not understand what was going on; she was confused. She was shocked and scared. She then jumped into her mother’s lap; she was crying at that point. Her mother woke up, confused, and asked her what was wrong. D.V. did not say anything. She does not recall anything after that. She did not recall where she lived at the time. She did not recall where they were going to or coming from that evening.
[36] D.V. testified that while she could not recall what she was wearing in the car, as a child, she always wore a dress or skirt and so she was wearing either one or the other.
[37] D.V. testified about an incident that occurred in her brother C.’s bedroom when they lived on G street. He had a computer in his bedroom on which they would play video games. She recalled once R.C. came into the room and started to play fight with Bi, D. and C. He tried to play fight with D.V. but she did not want to engage. At some point, R.C. was lying on his back on C.’s bed. He was throwing the others on top of him. D.V. testified that she ended up sitting on R.C., straddling his torso. She did not recall how she ended up in this position. Bi, D. and C. were still in the bedroom. As she sat on R.C., he rocked her back and forth on top of him. She recalled feeling his hard penis under her vagina. His hands were on her hips. She did not recall how long that lasted. She recalled calling C. to help her but he was on the computer and did not respond to her. D.V. did not recall how the incident ended.
[38] She believed that on that the same day, while she, Bi, D. and C. were on the computer, she heard R.C. call her name. Out of curiosity, she walked out of the bedroom to the bathroom, about 15 feet away. R.C. was in the bathroom with the door open. He was standing in front of the sink, beside the toilet. His pants and underwear were around his ankles. He was looking at her and his penis was erect. She did not recall saying anything; they just looked at each other. She called for C. and ran back into his bedroom. She did not recall anything else from that day. She could not recall if this occurred before or after the incident in the bedroom.
[39] She agreed that her homes on M and G streets were small. Everyone used the upstairs washroom on G street where R.C. exposed himself to her. The bedrooms were also located on that floor. She agreed that if anyone had to use the washroom, they would have seen him.
[40] D.V. testified that she had a memory of being in her bedroom when she was around 7 or 8 years of age and asking R.C. “why me” and he told her that he likes girls. She had no other memories surrounding this.
(b) Disclosure
[41] D.V. testified that she had a bad year when she was in grade 8; her boyfriend tried to make her touch his penis. This brought back memories and she started to act out and self-harm by cutting her wrists. She felt ashamed, embarrassed, and not worthy. She was getting random flashbacks and panicking. She spoke to a guidance counsellor who helped her remember things. She then spoke to E., and they decided to talk to E.’s mother.
[42] D.V. testified that when she and E. spoke with E.’s mother, they told her about a friend going through something. E.’s mother asked if this was happening to them and D.V. said yes. She testified when cross-examined that she told E.’s mother that R.C. did something bad to “us” meaning her and E. She was not sure if she told E.’s mother any of the specifics or details of the touching incident in her bedroom involving E. She felt nervous and scared when she spoke to E.’s mother.
[43] D.V. testified that E.’s mother contacted D.V.’s brother M.V. about the disclosure. D.V. then spoke with M.V. She could not recall his reaction. D.V. testified that after she talked to M.V., they went to the hospital and told her parents; her mother was hospitalized at the time. She recalled feeling “broken” when she told her parents as her mother was ill, and she felt like a burden – like she was adding to her family’s problems.
[44] D.V testified that she also disclosed what happened to a close friend, Br., in 2008 when she was 11 years of age.
(c) M.V.’s Evidence
[45] M.V. is D.V.’s older brother. He is 37 years of age. He recalls first meeting R.C. in the early 2000’s when R.C. was dating B. He was not sure of B.’s connection to their family; he described her as a close family friend. B. and R.C. were close with his parents; they would see each other every second weekend. He recalls teaching R.C. how to use the computer.
[46] He recalled that in 2011, E.’s mother called him to say she learned things from D.V. and E. about R.C. He recalled that when D.V. came home from E.’s house that day, she looked upset; she was crying, and her eyes were red.
[47] A couple of days later, he had a discussion with his siblings including D.V. about R.C. He recalled that at some point after that discussion, he went to the police about what D.V. told him. He gave a statement to the police on November 6, 2011. He explained that he delayed going to the police as there was a lot going on with his family at the time as his mother was being treated for leukemia. He described the family as “drowning” during this time with all they were dealing with.
[48] His evidence was that after D.V. disclosed what happened with R.C., things that he noticed when he was younger began to make sense. For example, he recalled seeing R.C. in D.V.’s bedroom once when they lived on M street; the bedrooms were on the upper level. He thought that made no sense as there would be no reason for R.C. to be upstairs as there was a washroom for guests to use on the main level. He saw R.C. standing in D.V.’s bedroom talking to her when he walked by to use the washroom and he was still there when he walked back to his bedroom. He thought it felt wrong. She was 4 or 5 at the time. She was sitting on her bed. He did not hear what they were saying. He agreed that he did not know if B. told him to go upstairs or if D.V. asked him to come up. He said it was just gut instinct that he had in 2003 when he saw this. He agreed that R.C. could hear him walk by. He agreed that he thought of this after D.V. made disclosures to him.
[49] He recalled that when they lived on G street, R.C. would use the washroom on the top floor and on one occasion he took longer than usual. He also had a memory of B. looking up the stairs. R.C. and B. would use the washroom on the top floor when they visited at G street.
(d) The New Disclosure at Trial
[50] D.V. was shown a photograph from the kitchen in her home on G street that she said was taken during the Christmas holidays. She identified her mother, B., and R.C. in the photograph sitting at the kitchen table and she was standing in the background. She recalled that she used to play under the kitchen table. She then testified about an incident she recalled that was triggered from looking at this photograph. She recalled one time playing with a stuffed animal under the kitchen table. R.C. grabbed the stuffed animal from her hand and put it in his crotch area. D.V. took the stuffed animal from him and ran off.
[51] D.V. was asked by the Crown at one point if she had testified about all she remembered about R.C. She answered and said she had a memory coming to her of touching R.C.’s penis. She could not recall where she was or when or what happened, but it was a memory or feeling in her mind. She explained that her mind would go blank when she tried to remember as there was too much trauma. She then testified that she remembered one time when she had R.C.’s penis in her mouth. Her evidence was that this was something her mind was trying to block out. She remembered when she saw R.C.’s face on a monitor. R.C. and his counsel attended the trial via zoom.
[52] D.V. did not disclose these two incidents to the police in November 2011 or on April 24, 2023.
[53] D.V. also testified about a memory of once having a stinging and burning sensation when she urinated. She was not asked when this occurred. She went to her mother crying as she did not understand why she was feeling this burning sensation. Her mother asked her what was wrong and put Vaseline on her vagina. D.V. testified that she wanted to tell her mother about R.C. but was too afraid as she did not want herself or her brother to get in trouble. She was afraid that no one would believe her, and she thought R.C. would get angry.
[54] She testified about an incident in her bedroom on G street when R.C. threatened her brother C. and told him not to tell anyone and that he would hurt him. She recalled that R.C. told C. to leave the room and he did. She did not recall anything else. D.V. did not have a memory of talking to C. about R.C., but she said that he knew, and they chose not to speak about it.
[55] D.V. testified at trial that after the touching incident in her bedroom, she and E. started to touch each other when they were alone as they thought it was normal. She agreed that this touching was something impossible to forget.
(e) Memory Issues
[56] D.V. testified that she has blocked out most memories from the period of her life when R.C. was doing things to her. She said that trauma prevented her from remembering more. She also testified that she has a lot of blackouts.
[57] While testifying, D.V. said that seeing R.C.’s face was bringing back some memories. She explained that it was the first time seeing him since 2008, other than in pictures the Crown showed her the prior day. She said that memories she did not even know she had been coming into her head.
[58] She also testified that she had a blackout feeling, describing it as not really remembering but she did. Her evidence was that trauma prevented her from remembering more and she has had several blackouts.
ANALYSIS
[59] The central issue to determine is whether I accept D.V.’s evidence. This involves making credibility and reliability findings which requires a consideration of several factors. Some of those factors are a witness’ power of observation, 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 inconsistencies with prior statements, inconsistencies in evidence given during the trial, and if there is any independent confirming or contradictory evidence. No single factor is determinative.
[60] Assessing a witness’ reliability and credibility 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.
[61] Defence counsel suggested to D.V. more than once that she was anticipating his questions and crafting her answers accordingly. He used the term “hedging” with her. I do not agree with that assessment. D.V. was vigorously cross-examined for close to two days. At times she was asked lengthy questions that were difficult to follow. D.V. showed some frustration but I found that understandable given the rigour of the cross-examination.
[62] My overall impression was that while D.V. struggled in some respects to recall what occurred to her 22 to 24 years ago, she was not being deliberately untruthful or misleading in her answers.
(i) Inconsistencies
[63] Inconsistencies in a witness’ evidence is one means to assess credibility and reliability. We expect inconsistencies in a witness’ evidence; inconsistences are the norm and not the exception. The issue is typically not whether there are inconsistencies but the extent to which those inconsistencies impact on the reliability and credibility of the witness.
[64] Inconsistencies are not of equal significance as recognized by the Court of Appeal at para. 13 in R. v. A.M., 2014 ONCA, 769:
Inconsistencies vary in their nature and importance. Some are minor, others are not. Some concern material issues, others peripheral subjects. Where an inconsistency involves something material about which an honest witness is unlikely to be mistaken, the inconsistency may demonstrate a carelessness with the truth about with the trier of fact should be concerned: G.(M). at para. 354.
[65] There were several inconsistencies in D.V.’s evidence. The presence of inconsistencies, however, particularly on peripheral matters such as time and location, should be considered in the context of D.V.’s age at the time the events took place: W. (R.) at p. 134. Given her young age at the time of the alleged sexual assaults, I am not concerned with inconsistencies on peripheral details such as what she may have been wearing at the time of the alleged assaults.
[66] Reliability and/or credibility concern may prevent me from being satisfied beyond a reasonable doubt that one or more of the sexual assaults occurred. I must also determine whether concerns with D.V.’s reliability and/or credibility rise to a level that taints the entirety of her evidence such that I am left with a reasonable doubt about R.C.’s guilt.
[67] There were internal inconsistencies in D.V.’s evidence, meaning differences in her evidence when she testified. There were other inconsistencies between her viva voce evidence and her 2011 statement to the police. Some inconsistencies were on what I consider to be peripheral issues and others were on details close to the core dispute. I found some of the inconsistencies more troubling than others.
[68] There were inconsistencies in D.V.’s evidence in chief and cross about when she wore a dress or skirt as a child. I consider those inconsistencies to be on a peripheral issue, particularly when I consider D.V.’s age at the time. I find that inconsistencies about how often she wore a dress or skirt or how her mother liked to dress her were attributable to gaps in D.V.’s memory and not any attempt to be deliberately misleading.
[69] There was an inconsistency in D.V.’s evidence about which friend R.C. touched in her bedroom. While she testified that it was her friend E., in the 2011 statement she told the police that it was another friend, D. who was with her in her bedroom when R.C. touched them under their shirts.
[70] D.V. was cross-examined about the following passage from the 2011 statement:
D.V.: Um, when my friend was over he would like sit on me and he would touch her like everywhere and then, um, he would make me watch and then he would sit on her and then he will touch me and make me watch.
OFFICER: Okay. And, and what -, and what's the name of your friend?
D.V.: Um, one of them ...
OFFICER: Mm-hmm.
D.V.: ... sh -, I don't know her name is D(ph).
OFFICER: Okay.
D.V.: But I don't know her last name and I haven't talked to her since I moved out of my house.
OFFICER: Oh, okay. She would have been a neighbour back then or ...
D.V.: Yeah, she was a neighbour.
OFFICER: Okay.
D.V.: She, she was scared to like come over to my house.
OFFICER: Okay. Was she the one that was being touched too you say?
D.V.: Yeah. She was the one that like he sat on me, covered my eye ...
OFFICER: Okay.
[71] D.V. agreed that when she gave this statement to the police, she was describing the events in her bedroom and that she confused D. and E. when she spoke to the police. She explained that while she may have confused about which friend was with her, she had a clear recollection of the touching that occurred.
[72] D.V. identified this error when she reviewed her 2011 statement prior to trial. This was the reason she gave the 2023 statement; she wanted to clarify that it was E. who R.C. touched. In my view, pointing out an error prior to trial is a hallmark of credibility. D.V. saw an error in her statement prior to trial and informed the Crown who then disclosed it to defence counsel.
[73] While identifying this error does not detract from D.V.’s credibility, I am somewhat concerned that D.V. made this initial error when she spoke to the police in November 2011. It was only months earlier that she spoke to E. and together they spoke to E.’s mother about what occurred with R.C. She agreed she was close to E. when she gave her 2011 statement and while they have now grown apart, she spoke to E. about one month prior to trial.
[74] I have some concerns that D.V. would confuse E. with D. when she gave her 2011 statement, having just months before been speaking to E. about what occurred. If she had no contact with E. leading up to her statement to the police, it would be more understandable that she could have confused E. and D. This is an inconsistency that is closer to a peripheral detail as D.V. was not shaken about her recollection of R.C. touching her and her friend in the chest area, under their shirts, while they sat on the beds in her bedroom.
[75] This inconsistency, standing alone, does not cause me to doubt D.V.’s reliability.
[76] There was an inconsistency about whether R.C.’s penis was erect when he exposed himself to her while he stood in the bathroom. While she testified that his penis was erect, in her statement to the police in 2011, she said it was not erect.
[77] She was cross-examined about the following excerpt from the 2011 statement:
OFFICER: Okay. So you saw his penis?
D.V.: (Nods head yes.)
OFFICER: And how was it?
D.V.: I was terrified
OFFICER: Okay. Was his penis soft or ...
D.V: I didn't touch it or anything ...
OFFICER: ... do you know?
D.V.: ... I just saw it.
OFFICER: Okay.
D.V.: From like a distance.
OFFICER: Do you know -, when I, when I say an erection do you know what that means?
D.V.: (Nods head yes.)
OFFICER: Was, was his penis erect?
D.V.: No
[78] Her explanation about why she told the police R.C.’s penis was not erect was that she was young when she gave her statement and was very uncomfortable talking about these things to the male police officer. She also said she was nervous, embarrassed, ashamed, and shy. She agreed that at age 14, when she spoke to the police officer, she knew the difference between a soft and erect penis, but she explained that she did not fully understand the term “erect”. When the police officer asked her if her if she knew what an erection was and she nodded yes, while she was agreeing with him, she did not fully understand the term.
[79] D.V. was 14 years of age when she spoke to the police. It is quite plausible that at that age, she did not understand the term “erect”. I also accept that for any young teenage girl, discussing intimate details of being violated, such as being touched, kissed, and digitally penetrated as a young child would have been embarrassing for her. As a teenager, I accept that she would feel embarrassed, ashamed, shy, and uncomfortable discussing any of this with the police officer who was a stranger to her.
[80] While this was an inconsistency, D.V.’s explanation for the inconsistency when she spoke to the police in 2011 makes sense when I consider her age at which she gave her statement.
[81] I am concerned that D.V. did not correct this portion of her 2011 statement when she gave her 2023 statement which was for the purpose of correcting her 2011 statement. While her description of how she was feeling when she spoke to the police in 2011 and not understanding the term “erection” is understandable, no explanation was given for why D.V. did not correct this portion of her statement when given an opportunity to do so when she gave her second statement to the police. This is an example of the several concerns I have with her memory which will be discussed in more detail below when discussing her memory issues.
(ii) Implausibilities
[82] The defence argues that the sexual assaults described by D.V. all occurred in the presence of others, making it implausible or improbable that they occurred.
[83] The Crown argues that it is not uncommon in cases involving adults who prey on and sexually exploit young children for the assaults to take place in circumstances that may seem bold: in the presence of others. The Crown referred to R. v. Khan, 1990 CanLII 77 (SCC), [1990] 2 S.C.R. 531, as an example, where a doctor sexually assaulted a young child in a room adjacent to where their mother was waiting to be medically examined by the offender.
[84] While I agree in general with the Crown, the incident of digital penetration in a car with seven people is implausible.
[85] The defence argues that it is implausible that this sexual assault occurred. pointing out the number of people in the car and that it would have been extremely risky for R.C. to digitally penetrate D.V. while sitting in the passenger seat, beside his partner, and with a back seat of five passengers, including D.V.’s mother.
[86] Furthermore, while D.V. testified that everyone was sleeping in the back seat of the car, including herself, she agreed that she did not check but only assumed they were sleeping. It is not clear to me how she could have known that her mother, for example, was sleeping as D.V. herself was asleep. She agreed that when R.C. turned his head to look at her as he digitally penetrated her, he would have turned his head in the direction of both B. and her mother.
[87] It was extremely risky for R.C. to commit a sexual assault of this nature in a small and confined space in the presence of both his partner and D.V.’s mother. There have been many cases where individuals have been convicted of sexual offences occurring in very risky settings such as a doctor’s officer. As Presser J. noted at para. 71 in R. v. Tan, 2023 ONSC 3750, “Our criminal courts would not be as busy as they are if people were always deterred from criminal conduct by the risk of getting caught and the potential consequences.” The circumstances of this sexual assault, however, go beyond risky to implausibility.
[88] I agree that a sexual assault is not rendered implausible due to the riskiness of the situation. I struggle, however, with the plausibility of digital penetration occurring in a small car crammed with seven people in it at the time. I do not agree with defence counsel’s suggestion that it would not be possible for R.C. to put his left arm behind him and touch D.V. as she described. What I find implausible is that he did this while sitting beside his partner as she drove, and with D.V.’s mother sitting in the rear seat. While D.V. assumed everyone was asleep at the time; there was no evidence they were. Any of the passengers could have been awake. I find it implausible that R.C. could have reached behind him, rubbed D.V.’s vagina, digitally penetrated her, and turned his head to look at her without being detected by the driver of the car.
[89] People engage in risk-taking criminal behaviour. In my view, this incident as described by D.V. defies credulity. It is one thing to commit a sexual offence where there is a risk of exposure, such as in an examining room next to a waiting room, it is another to engage is an offence in the presence of five other persons in a moving vehicle. I am satisfied that it was not only improbable but implausible for this sexual assault to have occurred as D.V. described.
[90] While I also find the sexual assault in C.s bedroom to be highly risky as R.C. was allegedly rubbing his erect penis on D.V. in the presence of three other children, that is risky behaviour that I do not find rises to the level of implausibility as the car incident.
(iii) Memory Issues
[91] D.V. had a number or memory issues, some of which were not unexpected given her age at the time of the offences, and others that I consider to be more troubling and impact on her overall reliability.
[92] While D.V. could recall details of the sexual assaults, she could not recall what happened before or after the alleged assaults, exactly when they occurred or the order in which they occurred. She also could not recall details such as the type of car she was in when R.C. allegedly digitally penetrated her, or where they were coming from or going to that day.
[93] The inability to recall these details does not detract from or compromise her reliability or credibility, particularly given her age at the time of the alleged sexual assaults. I accept that there may be frailties in D.V.’s memory that may be attributable to difficulty in recalling childhood events: R. v. H.S.B., 2008 SCC 52, [2008] S.C.J. No. 53 (QL) at para. 14.
[94] Furthermore, when dealing with the impact of trauma on memory, it is accepted that peripheral details of a traumatic event can be difficult to recall and later accurately describe; R. v. A.A., 2023 ONCA 174 at para .17. I therefore do not consider it to be surprising that D.V. could not recall specific details of events before or after the sexual assaults as I accept that her memory was focused on the touching that violated her sexual integrity.
[95] With respect to two of the alleged sexual assaults, D.V. added new details at trial. She added a new detail that R.C.’s penis was erect and that he rubbed it against her vagina when they were play-fighting in C.’s bedroom. I do not consider this to be an added peripheral detail but a detail about the core of the allegation. While it is not uncommon that victims of sexual assault may provide incremental disclosure, this was not incremental, but a new detail added 12 years after her initial statement to the police.
[96] She also added the detail that R.C.’s penis was erect when he exposed himself to her in the bathroom.
[97] The Crown urged me to consider R. v. R.D., 2017 ONSC 1856, aff’d 2019 ONCA 132. In that case, the complainant was eight years of age at the time of the sexual assault. He repressed the memory. He reported it to the police when he was twenty.
[98] The trial judge found that while there were several instances where the complainant’s memory appeared to have “improved”, the improvements did not relate to significant or important details or the essential elements of the offence that would cause the court to doubt the central narrative of his evidence.
[99] Unlike in R.D., the new details that D.V. recalled at trial, were important details. They are also examples of D.V.’s memory appearing to improve while she testified. This evolving nature of her memory causes me concern with the overall reliability of her evidence.
[100] Her memory also improved when cross-examined about the incident when R.C. blew “kissy” faces at her as she was able to provide specific details of who was at the family BBQ and what they were doing. The improvement of her memory in that regard is of no consequence, being of peripheral issues.
[101] In addition to the alleged sexual assaults that D.V. disclosed to the police in 2011, D.V. testified about four others; touching R.C.’s penis, R.C.’s penis in her mouth, R.C. rubbing her stuffed animal on his crotch and a memory of once having a burning sensation when she urinated that she was not sure whether it connected to anything involving R.C.
[102] D.V. also testified about having other memories that she has blocked.
[103] D.V. agreed on cross-examination that she had flashbacks when she saw R.C. as she testified. Seeing him triggered her to remember touching R.C.’s penis and having it in her mouth. She initially agreed that she had not told anyone about these two incidents, but her evidence changed, and she testified that she may have spoken to someone, but she had not thought about it for a long time. Upon further questioning, D.V. testified that she told two specific friends about these two incidents about 10 years ago. She explained that she forgot she made this disclosure to these friends when asked about disclosure by the Crown.
[104] D.V. testified that these memories were not new to her but would come and go and she tried to block them out of her mind. She also said that she forgot about these two incidents after she told her two friends.
[105] I found her evidence confusing and it appeared to evolve as she testified. For example, her memory about who she told and when shifted as she testified as to when she first had the memories, whether the memories had been blocked, and if so for how long. My sense was not that D.V. was being deliberately misleading but trying to grapple with and explain memories coming to her as she testified.
[106] Furthermore, when she gave her statement to the police in 2011, in the excerpt put to her when she was cross-examined about the bathroom incident, when asked if his penis was soft, D.V. volunteered that she had not touched it. I agree with defence counsel that if she could volunteer about whether she touched his penis, and as she had not yet blocked that memory as she told her two friends the following year, this would have been the time for her to tell the officer about this memory.
[107] She also disclosed for the first time at trial the incident when she told her mother about having a burning sensation when she urinated. While she said she was not 100% sure if this latter memory had anything to do with R.C., she agreed it was possible that he could have had intercourse with her, but she had no memory of it. She explained that she testified about this incident as she wanted to “speak her truth”. From this, I infer that while she was not sure, she believed that there was some sexual activity with R.C. that was connected to this burning sensation and that I was being invited to make that inference.
[108] When she was cross-examined about her memory generally, D.V. insisted that her memory is better now than it was in 2011 for some things, and her memory has improved. Her evidence was that when she spoke to the police in 2011, she did not remember much.
[109] My impression was that D.V. was being defensive when questioned about these new disclosures and that was the reason why she would not agree with the reasonable proposition that memories fade with the passage of time. I also accept that she was explaining that her memory was better now for the memories she revealed for the first time at trial.
[110] Despite defence counsel’s submissions, I do not find that D.V. was being deliberately untruthful about her memories. My impression was that she believed her memories. That does not necessarily mean, however, that I can rely on those memories.
[111] Our courts have recognized that it is possible for a person to repress and recover memories: R. v. B.B., 2023 ONSC 396 at para. 93 and Tam at para. 115. D.V. testified that she had memories that she had blocked. It was also her evidence that in grade 8, her guidance counsellor was able to help her remember things from which I infer she had blocked memories for several years prior to that point. She also testified that she blocked her memory of touching R.C.’s penis and having it in her mouth after she told her friends about that 10 years ago.
[112] We must often rely on our common sense and human experience when we assess the credibility and reliability of a witness’ evidence. Based on that common sense and human experience, we know that memories fade with the passage of time. Witnesses are often challenged with this very proposition: that statements they gave closer to the events are more accurate than their recollection years later. In situations where a witness testifies about repressed or blocked memories, we are asked to find that those memories are reliable, despite the passage of time. This is counter to what we typically know of the frailties of memory and the passage of time.
[113] In this case, I must assess the reliability of D.V.’s evidence about the five incidents she disclosed to the police and testified about at trial in the broader context of having other memories that she blocked and the new disclosures she made at trial.
[114] When D. V. gave a second statement to the police on the first day the trial was to commence, she agreed that she was specifically asked if there was anything else she wanted to add. Despite this, memories only came to her as she testified. While I do not doubt that D.V. believed these memories to be true, I am troubled with the degree to which I can rely on any of her memories when I consider the Crown’s onus to prove guilt beyond a reasonable doubt.
[115] The Crown urged me to consider R. v. B.B., 2023 ONSC 396. In that case, Justice Dawe dealt with the issue of a complainant’s recovered memories that had been blocked for about 23 years when she had a sudden “flashback” of being touched by her father. She believed this memory to be genuine but had supressed it for most of her life.
[116] In his comprehensive reasons dealing with the issue of repressed memories, Justice Dawe referred to a 1995 article form Marc Rosenberg, prior to his appointment to the Court of Appeal, which described the challenges when dealing with repressed memories:
Repressed memory challenges the common sense notion that memories become less reliable over time. These memories come flooding back apparently intact accompanied by powerful emotions appropriate to the event and filled with vivid and realistic detail. The very richness of the detail seems to carry its own confirmation of reliability. And if the memories are untrue, where did they come from and why are they there? If the memory is not true what possible motive does the witness have for remembering? Common sense and experience do not easily inform these questions.
See M. Rosenberg, “Issues Arising in Criminal Prosecution for Distant Events”, available on QuickLaw as ADGN/RP-005, at para. 24.
[117] This passage aptly describes the struggle triers of fact face when dealing with repressed or blocked memories. In this case, D.V. testified that seeing the accused while she testified trigged some memories, which she said she had at one point but had blocked. I accept that that some recovered memories can be real; it is possible that D.V. now accurately remembers an event that happened to her as a child, though she testified that she repressed those memories for many years. I must also consider that it is possible that D.V.’s present memory may not be real.
[118] Thus, while accepting that recovered memories can be real, I most nonetheless approach D.V.’s memory of touching R.C.’s penis and having it in her mouth and the inference I find she was inviting me to make regarding the burning sensation, with caution. I am also mindful that a child who experiences and is victimized by repeated acts of sexual violence will suffer significant emotional trauma which can impact and causes frailties on their memory.
[119] The issue of repressed memories and trauma must be resolved without the assistance of expert evidence. There have been many decisions which have found that expert evidence about children and the frailties of memories is not necessary, including cases of repressed memory.
[120] I am left puzzled about why D.V. blocked certain memories but then had clarity of others. I do not agree with the Crown’s explanation that the blocked memories were of the worst events she experienced at the hands of R.C. While any sexual assault of a child is heinous and sexual assaults should not be rated on any kind of scale, D.V. was able to describe in vivid detail a terrifying act of digital penetration which she had not blocked.
[121] D.V. agreed that since 2019, she knew that R.C. was charged but she never went to the police to tell them about any of these additional incidents. I do not consider her failure to reach out to the police with any new disclosure to have any bearing on her credibility or reliability. I heard no evidence that D.V. had any other experience in the criminal justice system. She was likely unaware that she could reach out to the police. We must remain mindful of the trauma that can be inflicted on victims when they report sexual assaults and then enter the unknown, overwhelming and at times frightening criminal justice system.
(iv) Motive to Fabricate
[122] R.C. has no onus to prove D.V. had a motive to fabricate and make false allegations against him. 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
[123] There was an absence of evidence that D.V. had a motive to fabricate. This is a factor I have considered in assessing her reliability and credibility as a witness.
(v) Corroboration
[124] Section 274 of the Code is clear that corroboration of a complainant’s evidence is not required. In R. v. A.G., 2023 ONSC 1422, Justice Harris reviewed the law regarding confirmatory evidence and found that while corroboration is not required, such evidence, if it exists, can be invaluable as it can strengthen the complainant’s evidence, which can be particularly helpful in a trial such as this where there are only two witnesses to the alleged sexual assaults. Justice Harris noted, however, that a close and rigorous examination of this potential confirmatory evidence is required: at paras 3-4.
[125] Confirmatory evidence must be material and must be independent of the complainant: A.G., at para 61. As Justice Harris noted, it can be evidence that is on a scale ranging from peripheral confirmation to direct confirmation of the core of the allegations. In A.G., there were photographs of bruises on the complainant and a video of the complainant running away from the accused which Justice Harris found bolstered the core of the allegations.
[126] The Crown argues that the corroborative evidence I can consider is M.V.’s evidence of seeing R.C. standing in her bedroom once, which, based on his gut instinct, felt wrong, and the fact that R.C. once took a long time using the washroom. In my view, M.V.’s evidence added very little and would not rise to the level of material corroboration. M.V. agreed that everyone had to use the washroom on the bedroom level at the house on G street. There could be a myriad of reasons for why R.C. may have taken a long time to use the washroom on one occasion. Furthermore, there could have been many reasons for why R.C. was talking to D.V. in her bedroom on one occasion.
[127] This evidence, in my view, does not rise to the level of material corroboration as described in A.G.
SUMMARY
[128] There is no doubt that R.C. had the opportunity to commit the alleged sexual assaults. He was regularly at D.V.’s home and was considered part of their family.
[129] I want to be clear. I find D.V. to be sincere and credible. She has memories of R.C. sexually assaulting her. I cannot be confident, however, of the reliability of those memories. When I assess the evidence as a whole, I am left with a reasonable doubt that R.C. sexually assaulted D.V. This doubt arises from the cumulative concerns I have with inconsistencies in her evidence, and the evolving and changing nature of her memory. On her evidence alone, it would be dangerous to convict R.C. when I must be satisfied of his guilt beyond a reasonable doubt.
[130] R.C. is not guilty of both counts involving D.V.
L. Shaw J.
Released: July 25, 2023
COURT FILE NO.: CR-21-727-00
DATE: 2023 07 25
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HIS MAJESTY THE KING
- and -
R.C.
REASONS FOR JUDGMENT
L. Shaw J.
Released: July 25, 2023