CITATION
CITATION: R. v. C.P., 2023 ONSC 4817
NEWMARKET COURT FILE NO.: CR-19-7809
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
– and –
C. P.
Defendant
K. Batorska, for the Crown
J. Griffiths, for the Defendant
HEARD: May 16, 17 and 19, 2023
REASONS FOR JUDGMENT
Introduction
1The defendant, C.P., is charged with sexual assault, sexual interference, invitation to sexual touching and incest.
2The time period covered by the indictment is June 12, 2015 to August 31, 2016, the former date corresponding to C.P.’s eighteenth birthday. The complainant is I.M., his half-brother. There is a five-an-a-half year age difference between them. I.M. was 12 and 13 years old between the dates in the indictment.
3The court also heard evidence about an alleged history of prior sexual abuse perpetrated against I.M. by C.P. as they were growing up. This evidence was ruled admissible following a pretrial application made pursuant to s. 276. The purpose of such evidence from the Crown’s perspective was to assist in explaining the unfolding of events before June 2015, particularly to provide a picture of the alleged grooming and conditioning that occurred from the time I.M. was approximately 5 years old.
4The complainant was the only witness to testify. No evidence was called by C.P.
5I.M. was born in December 2002 and was 20 years old at the time of trial. His exact date of birth has been omitted to protect his identity and privacy.
Agreed Facts
6Counsel filed an agreed statement of facts, some of which were sourced from records obtained through an earlier third-party records application. Those facts include:
C.P.’s date of birth is June 12, 1997.
C.P. and I.M. are related by blood; they are half brothers who share a mother.
In 2008, I.M. disclosed to his therapist that his brother C.P. hurt him by hitting, pushing or when they wrestled.
In December 2008, the Children’s Aid Society (“CAS”) investigated allegations of sexual abuse by C.P. towards I.M.. The investigation began after I.M. disclosed to another student that he and his brother "suck each other's dicks". The allegations were not verified by CAS and the investigation was closed in January 2009.
In January 2009, I.M. began to display behavioural issues at school, including an incident where he allegedly exposed his penis to another student in the washroom.
In 2009, I.M. was assessed through the Thistletown Regional Centre. A Sexualized Behaviour Assessment Report dated July 31, 2009, noted the following:
(i) During the assessment I.M. expressed significant distress towards the repeated physical assaults he reported had been perpetrated against him by C.P. Throughout the clinical interview I.M. disclosed that C.P. often argues and physically fights with I.M. (i.e., pushing, hitting) and that he wishes it would stop; adding that if he could change one thing about his family it would be for C.P. to stop hitting him.
(ii) I.M. indicated that he often feels worried at (his mother’s) home due to his fear that C.P. will hurt him, and that he is often scared of C.P. when he is at his mother's home.
(iii) I.M.’s father reported to the assessors that I.M. touches his private parts in public places, draws sex parts when drawing pictures, masturbates with toys or objects, rubs his body against people, tries to look at people when they are nude or undressing, shows his private parts to other children and knows more about sex than other children his age.
(iv) I.M.’s mother reported to the assessors all the sexual behaviours that his father described in addition to the following: being interested in the opposite sex, wanting to watch media with sexual content, making penises out of play-doh, pretending to perform fellatio on hot dogs, making sexual sounds, rubs his body against people and furniture and touching women's breasts (his paternal grandmother’s in particular).
7Although nothing turns on it, counsel agreed that the reference to paternal grandmother is likely incorrect and should have been recorded as “maternal grandmother”.
General Principles
8C.P. has the presumption of innocence, and the onus of proof never shifts from the Crown. The Crown must establish and prove each of the essential elements of the offences charged beyond a reasonable doubt. The doubt must be based on reason and common sense, and not on sympathy or prejudice. It must be a doubt that arises logically from the evidence, or lack of evidence.
9It is necessary to consider whether the absence of evidence in material areas could be the basis for a reasonable doubt, and whether the various factors that could favour the defence, when taken together, could give rise to a reasonable doubt: R. v. H.P.S, 2012 ONCA 117, [2012] O.J. No. 748, at para. 47.
10I must consider the evidence as a whole to decide whether or not guilt is established by the evidence beyond a reasonable doubt, and I am entitled to accept some, all or none of I.M.’s evidence.
The Complainant’s Evidence
Family History
11I.M.’s parents separated when he was three years old, and he lived primarily with his father from that time on.
12His mother had three older children from a previous relationship, including C.P. There is a brother older than C.P., named S., who is 8 ½ years older than I.M. The eldest sibling is a sister named J., who is 12 years older than I.M. Following his parent’s separation, his mother went to live with her parents, moving her older three children with her. All three of those children resided with their mother full time; their father was not involved.
13I.M. could not recall the parenting arrangements that were in place when he was young and knew nothing about the details of his parents’ separation or of their family court proceeding. By the time he was 16, regular arrangements had been in place for years, although could not remember when this regular schedule started. The arrangement was that he would go to his mother’s home from Wednesday after school until Sunday evening, every second week. During the school summer break, he lived with his mother for a week at a time on an alternating weekly schedule.
Living Arrangements
14I.M.’s maternal grandparents’ house was located in Scarborough, the address being omitted to preserve privacy. I.M.’s mother remained living there throughout his childhood, except for two stints when she rented properties in Richmond Hill. They first moved to a property on Paliser Crescent, but he could not recall his age or grade when that occurred. Shortly thereafter, they moved to Valleyford Road, leaving that property when he was still in grade 6. He thought they lived on Valleyford Road for less than a year. To the best of I.M.’s recollection, these rentals were consecutive, and neither lasted particularly long. His memory was not intact about the length of these living arrangements. For much longer periods, I.M.’s mother was living with her parents in Scarborough and that was where I.M. went to spend time with this part of his family.
15While not entirely clear, I infer that each of his grandparents occupied separate bedrooms, and that the I.M.’s mother had her own bedroom. Initially the children shared one bedroom, with bunk beds, with even J. sleeping on a mattress in the same room. All bedrooms were on the second storey. Sometime later, I.M.’s grandmother began to sleep on the main floor when her mobility deteriorated.
16By the time they lived at Valleyford, Road, if not earlier, J. was living independently. Sometime after moving back to Scarborough, I.M.’s grandfather passed away, but he could not recall the year. At some point S. moved into one of the bedrooms on his own, and later I.M. moved in to share the room with him. The timing of these transitions was never clarified.
17I.M.’s mother’s extended family is large, and its members saw one another frequently. He agreed that it was a fairly busy family life, involving significant socializing with family on weekends.
18When he was there, his mother made an effort to spend time with him, although not individually. Sometimes they had movie nights or other family events, but he described that his mother and grandmother were busy on the weekends. They were often entertaining guests, going out shopping, or doing household tasks. His mother did the shopping for the family and his grandmother often went with her.
19I.M.’s grandmother was not working and was home most of the time except for when she was out with family or doing something such as shopping with I.M.’s mother. She also liked to watch television or just relax. He described that is grandmother, like his mother, worked very hard around the house. His grandfather liked to be out of the home socializing with his friends.
20Despite time spent with the adults, there was still a lot of time when the children were left to their own devices. I.M. testified that he spent most of his time in the company or care of his siblings. While uncommon for C.P. to be put in charge of caring for I.M., it did occur multiple times when C.P. was older, more frequently when they were living in the rental properties in Richmond Hill.
21The oldest two siblings were teenagers who liked spending time with their friends and were frequently away from the house. S. worked at various jobs from a young age. But despite the age difference, the three boys played together from time to time. C.P. and I.M. also played alone as younger children and continued to spend time alone as they got older, doing things like skateboarding or playing video games.
Mother’s Employment
22I.M. believes that his mother was working full time by the time he was 12 or 13 and recalled the name of her employer. Her work schedule was Monday to Friday, 8:00 to 4:30, with a 40-minute commute. Her work schedule before that age was never explored.
Relationship between complainant and family members
23It was I.M.’s experience that his parents made an effort to keep him out of the middle of any conflict following their separation.
24I.M. stated that he and his father have been very close throughout his life, and is someone he trusts and can talk to about issues.
25I.M. testified that he has also always had a good relationship with his mother. After he went to the police to disclose these allegations, the relationship has remained relatively unaffected, although he has not been able to go to her home. As I understand the evidence, C.P. continues to live with his mother and I.M. has not been there since going to the police. He has not seen his grandmother in four years. He described that his family has been impacted, as everyone’s relationship with C.P. has changed. I.M. avoids speaking about the allegations before the court with family members “at all costs”.
26I.M. described that he has always been very close to his brother S., and that he trusts and looks up to S.
27With respect to C.P., I.M. testified that when he was young he really wanted a relationship with his older brother and wanted to enjoy his time with him. Sometimes he would even look forward to spending time with him. He denied that he has always disliked C.P. It was his testimony that for quite a long time he admired C.P., looked up to him and tried to emulate his behaviour. Even when I.M. was between 11 and 13 years old, he was still wanting a normal, healthy relationship with his brother.
28He described that C.P. was generally difficult to get along with, being very easily upset and irritable. I.M. said that family was always “walking on eggshells” around C.P, and if someone did not say or do the right thing, C.P. would react over-emotionally. All family members tried hard to have a good relationship with C.P. but C.P.’s behavior made that problematic.
29By age 16, I.M. realized that C.P. was not someone that he wanted to spend time with or have in his life. Shortly before he spoke to S. about these allegations, he openly expressed to his mother that he wanted to distance himself from C.P. and “seriously did not like him”. At the time this conversation occurred, his mother was questioning him about why the boys’ relationship was so strained and was encouraging him to spend more time with C.P. He testified that his words upset his mother to the point of tears. The change in his feelings toward C.P. occurred in the last year before he disclosed these allegations. During that time it had been more of a performative relationship for him, one that he felt a pressure to maintain because they were still living together.
30I.M. testified that S. did his best to have a strong relationship with C.P. and had admirable patience for C.P.’s behaviour. Before hearing about these allegations, S. had tried to establish a better relationship with C.P. for years.
31I.M. has known that his father developed a dislike of C.P. at the time that he made his initial disclosure at age 5 or 6. Such sentiments have been expressed by his father over the years. When asked whether he had communicated negative feelings about C.P. to his father in return, his response was that he thought that he defended C.P. at some point. Primarily, he and his father have not spoken about any feelings that I.M. had toward C.P. over the years. He and his father generally did not talk about anything related to his mother’s household. He did not feel a need to talk to his father about the general conflicts with C.P.
32I.M. had not been speaking to C.P. for a while before going to the police. C.P. and S. had also not been on speaking terms for about a month or two before, having had a verbal confrontation over something. I.M. took that as his opportunity to cut himself off from interacting with C.P. also. In the year leading up to this standoff, there were frequent confrontations or tension between C.P. and both of his brothers. These were mainly verbal confrontations involving yelling and profanity.
33He denied that S. expressed that he also did not want to live with C.P. or be around him anymore. When asked whether S. had hit his limit on attempting to foster that relationship with his brother, I.M’s response was that he thought that S. had still been willing to try even when the brothers had not been speaking. However, S. hit the limit when I.M. made his disclosure about C.P.’s sexual misconduct.
34I.M. did not want to live under the same roof with C.P. anymore, but it was not because of their verbal confrontations. It was because of the past instances of sexual abuse.
The Allegations
35I.M. gave two statements to the police, both on August 30, 2019, when he was 16 years old. Pursuant to an application made under s. 715.1 of the Code, the videotaped statements were entered as substantive evidence.
36He was first interviewed in the afternoon by Det. Cst. Mark Van Wolde, lasting an hour and eight minutes. After a 50-minute break, I.M. re-entered the interview room with Det. Cst. Debbie McLean, who had been monitoring the first interview, and provided more information for another 20 minutes. He explained during his testimony that the reason for this was that further memories arose for him during the break, which he had been briefly discussing with Det. McLean outside of the interview room. The taping was re-initiated so that this additional information could be captured.
37From the outset of his first interview, Det. Van Wolde ensured that the complainant was reminded about the importance of telling the truth and that speaking to the police was voluntary. The officer invited the complainant to begin discussing what happened wherever he wanted to, and thereafter asked only non-leading questions in response to the information conveyed by the complainant.
38During his interview with Det. Van Wolde, I.M. provided the following information:
When he was about five years old his half brother, C.P., would abuse him physically and sexually. He could not recall what time of year this began to happen.
When it initially started, C.P. would take him to the basement and make I.M. “give him oral” by putting his penis in his mouth.
His first memories of this are from when he was in grade one.
C.P. would take him to the basement, pull down his pants and “make me do it”.
He would put his hands on I.M.’s head and force him or tell him to do it.
C.P. never took his pants off completely so that he could pull them up quickly. He usually wore loose pants or shorts.
As I.M. got older, C.P. had to do less to make him comply because he knew that if he did not comply, C.P. would hurt him. So C.P. would then just have to tell him what to do and he would do it.
When he was younger, C.P. would punch and hit him anywhere on his body when he initially resisted.
C.P. would tell him to follow him to the locations where he wanted to do these acts, or guide him.
Later he would just pull down his pants and that would be enough to signal to I.M. that he wanted him to engage.
Once C.P. was able to produce semen he would make I.M. swallow it.
As he got older it persisted and progressed to anal sex.
Initially C.P. would hold him down during anal sex until he finished.
C.P. would use saliva or oil and started using protection sometimes when carrying out anal sex.
C.P. would sometimes require oral and anal sex during the same occasion.
Initially they used to go right upstairs after C.P. finished but later C.P. would make I.M. go upstairs first to avoid suspicion.
There was an occasion when S. came downstairs when C.P. was performing anal sex on him, but by the time S. entered the room they were seated in two chairs.
He does not like going into the basement as it brings up memories of what happened and makes him uncomfortable.
The basement was finished and he recalled that the floor had a brown carpet with a white/beige octagon pattern. He described the wall covering and described it as an old, outdated look.
The main room in the basement had an arched entrance and a bar. When he was younger there was a large junk pile of belongings in the centre of the room; by the time he was eight or nine the junk pile was gone.
When C.P. took him to the basement initially he would take him behind the junk pile and would make I.M. go on his knees to fellate him so that he could have a line of sight over the pile to see if anyone was coming.
Later C.P. would take him behind the bar to carry out these acts.
When he was five he would sleep in the same bed as C.P., in the top of a bunkbed, and S. was in the bottom bunk. S. also had his own room at some point. Later the sleeping arrangements changed again and I.M. began to share a room with S only. This occurred because both S. and I.M. wanted to distance themselves from C.P.
I.M. also used to sleep with his mother beyond the age when he felt he should because he was uncomfortable in the room with C.P.
He can recall an incident happening in almost every room of the house except for his grandmother’s bedroom, which later became his grandfather’s bedroom, although the basement was where it started and was the main location where the incidents occurred.
These incidents occurred when I.M. was between ages 5 and 13.
These incidents would sometimes happen at night if most people were sleeping, or if someone was at work or elsewhere. C.P. would take advantage of opportunities when most people were out of the house or otherwise preoccupied.
C.P. carried out oral sex on I.M. a couple of times. C.P. expressed that it was disgusting and never did it again. I.M. was about eight or nine when that started happening, and it first occurred in the basement behind the bar.
Eventually it got to the point where the abuse occurred so often that C.P. just expected I.M. to participate, and I.M. complied since he knew that he would otherwise be forced
He told his brother S. about the abuse about three weeks before speaking to the police.
The topic arose because he and S. were talking about C.P. during a phone call. S. and C.P. had had an argument and were not speaking to one another, and S. was complaining about C.P. I.M. then told him that C.P. had done things to him.
He initially told his father when he was between the ages of five and six, had spoken to some therapists about it at the time, and he received counselling. He recalled speaking to people at an organization called Thistletown.
He was also aware that CAS was contacted, and that his father did not want him going to his mother’s because of what I.M. had confided in him, and the CAS did not do anything about it.
He recalled that someone from CAS came to his house and interviewed him. He thinks that they did not believe him because they did not take any action.
C.P. stopped the behaviour for a while because of all the attention directed toward him at that time, and then started up again. That is when it progressed to anal sex.
He has been told that when he was younger he was very sad and displayed sexualized behaviour, such as exposing himself to other kids at school.
The last time a sexual act was committed by C.P. was a Sunday night around 5:00 pm., just before he was getting ready to leave his mother’s house. He was 13 years old. C.P. had not touched him that weekend but came into the bathroom as he was showering. After I.M. got out of the shower, C.P. required that he lean over the side of the tub and had anal sex with him.
This is the incident that he recalls the most clearly because it was the last time and the most recent.
It has not occurred since then because I.M. became old enough to defend himself and to say no. C.P. continued to try to engage but I.M. kept refusing and became stronger than C.P.
Other than S., his father and the police, I.M. had not discussed this matter with anyone else.
He decided to tell the police because he did not want to see C.P. ever again. Now that he is older he understands how bad C.P.’s behaviour was and it makes him feel sick. He knew that eventually he had to tell someone if he never wanted to see C.P. again.
He recounted a specific incident when he was a bit older and C.P. came into his room and it looked like he was “on” something because his eyes and behaviour were weird. He put his penis in I.M.’s face and made him suck it.
He told the officer that C.P. is generally “an asshole”, no one wants to spend time with him.
He had not wanted anything to do with C.P. for a couple of years, but still tried to maintain a relationship and have interactions because none of his mother’s side of the family knew what happened, and would question him about why he was not spending time with C.P.
He had no reason to spend time with him after S. stopped speaking with C.P., and so had not interacted with C.P. for a month or two before talking to the police.
C.P’s treatment of him makes him feel disgusted and angry because he feels that C.P. ruined his childhood.
39During his interview with Det. McLean, I.M. provided the following information:
C.P. babysat him, and there were times that these things happened while C.P. was in charge of looking after him, before I.M. was 13 years old.
He assumed that C.P. was not put in charge of him until a couple of years after the CAS attention was over, so guessed that he was around 7 when C.P. was first left in charge of him.
The last incident occurred in August before high school started, when he was 13 years old.
C.P. anally assaulted him on a bed at the Paliser Drive property. He recalled looking at the clock and noting that it was after 10 p.m.. He remembered that the clock was black with red numbers and was on top of a dresser. He remembered asking C.P. if he was almost done because it had gone on for 15 minutes.
He also had anal sex with I.M. at the Valleyford Drive house. No one else was at home. C.P. was supervising him at the time.
I.M. could not remember other incidents occurring in the Richmond Hill homes, and did not recall them until Det. McLean spoke to him about the issue of jurisdiction prior to the second interview beginning.
He could remember two more specific incidents of oral sex that occurred at his grandparents’ house. One occurred at the side of the house, very late at night when everyone else may have been sleeping. He remembered that incident rather vividly, so believed that he would have been 12 or 13 years old.
The other time was late at night in the kitchen. It also occurred more recently; he believed that he may have been around 12 years old.
He recalled that during these incidents C.P. would express pleasure and say things like “Oh my God” and “it feels so good”. He would always tell I.M. to be quiet. I.M. would express that he was in pain.
Whenever C.P. would make him have anal sex he would kiss the back of his head and “stuff”.
At one point, C.P. used a code word, which sounded like it was from a video game. I.M. recalled that it was something like “are you done stage 7?”.
When he was younger and it first started he knew nothing about what to do, and C.P. would direct him with positioning, and sometimes would tell him where to sit or kneel.
He also remembered an incident when C.P. urinated in his mouth, which happened in the basement by the bar around the time the abuse first started. He recalled that S. heard about this, and that one of his cousins may or may not have witnessed it, although was unsure about both of these details.
There were a couple of close calls where C.P. was almost caught. I.M. could not recall the specifics but remembered C.P. pushing himself off and pulling up his pants quickly and instructing I.M. to do the same.
40At trial, I.M. gave more evidence about many of these topics.
41With respect to the physical abuse that preceded the sexual abuse, I.M. acknowledged that there was regular “horseplay” between the brothers, but the hitting and punching that he was referring to occurred with a closed fist and when no one else was around. C.P. would hit him on the thighs, torso and arms. He expected that he would have bruises because C.P. used quite a bit of force and it was painful. The physical violence was initially a prevalent part of their interactions. I.M. said that he was 5 or 6 when that was occurring, and felt frightened, unsafe, and without options. Eventually he felt that the sexual events were inevitable. C.P. also threatened to continue to hurt him after the sexual abuse began, and also suggested that he would hurt I.M.’s father in some way. I.M. understood that if he did not do what was asked of him with respect to engaging in sexual activities, he would be struck. The physical abuse did not go on for long, because he quickly learned to comply.
42Most of these assaults initially occurred in the basement. The basement was also an area where the brothers and their cousins would play together. Later, chairs and a T.V. were placed there, which the boys used for playing video games.
43With respect to the incident discussed in his statement when S. came downstairs and almost caught C.P., I.M, thought that this occurred when he was in the range of 12 or 13. I.M. could not provide the timing but thought that it might have been during summer months. He recalled that there were Freezies in a freezer in the basement and that this was the excuse they gave for going down to the basement.
44He also recalled incidents where his grandmother would be looking for them and start coming down the stairs, but she was not quick and would make noise coming down the steps. C.P. would ensure that clothing was put back on quickly in those instances.
45His recollection was that these incidents began to occur frequently almost right from the start, even happening multiple times per weekend. As time progressed the incidents would get longer. He agreed that when this was initially starting there would usually be other people at home. However, they usually did not get interrupted in the basement because C.P. would pick times when people were preoccupied. C.P. was always listening and doing his best to look out for people coming. His grandparents’ house was old and made noise wherever anyone walked.
46At trial, I.M. testified that before anything else began, C.P. first began to hump him over his clothes. He agreed that he had never mentioned the humping behaviour before trial. When challenged on whether this was one of his own memories or something that someone else told him, he testified that he has a distinct memory of being in the basement on his stomach and playing with a toy car, which he remembered was a Mazda 787B. While that was happening C.P. was laying on top of him and humping him over his clothes. He thought that he was five years old or even younger when this was occurring, before he spoke out initially when he was very young and before receiving therapy. I.M. also believed that he spoke to the counsellors at Thistletown about the humping at some point, although does not have any specific recollection of what he talked to them about.
47The humping is his first memory of something strange happening to him. He believes that it happened a few more times before C.P.’s behaviour progressed to fellatio. He also stated that he could recall it progressing to C.P. removing his pants; he believes that this was C.P.’s first attempt at anal sex. When that was unsuccessful C.P. started the oral activity. The anal sex began within ten months to one year later and kept increasing in frequency.
48He believes that he was not particularly bothered by the humping and does not recall resisting. It was only when it progressed to oral and eventually anal sex, that he initially resisted and C.P. needed to enforce it with physical punishment or physical force.
49He could not recall whether anal intercourse had occurred before the reporting to CAS, or just the one incident where C.P. had attempted it.
50Both the physical and sexual abuse stopped while CAS was investigating, and for a time after. He was unable to give an estimate of the length of time but felt that it was no longer than a year. There were less opportunities for C.P. because people made an effort to reduce the time that he and C.P. were able to spend alone. He believed that it must have started up again when he was between 6 and 7.
51I.M. testified that he would always feel a great deal of pain during these anal assaults. He never yelled or screamed, but there were instances where he cried or where he expressed to C.P. quietly that he was in pain. One of those times was during the incident on Paliser Crescent that he described to Det. McLean, when he was looking at the clock and no one was at home. I.M. recalled crying and asking C.P. to stop. He was looking at the clock because he wanted it to be over. He was never loud enough that someone else could hear. C.P. instructed him to be quiet, and I.M. remained quiet because he did not want others to know that it was happening. He does not recall any injuries to his rectal area.
52As time progressed, C.P. would sometimes make him engage in oral and anal sex in the same occurrence, and these incidents could take 20 to 30 minutes or potentially even longer.
53With respect to the incident when C.P. came into his bedroom and appeared to be under the influence of a substance, he was unable to say when the incident occurred. He thought that he was likely 12 or 13 because he was sharing a bedroom with S. at that time, and because it was only as C.P. got older that he started using drugs.
54With respect to the code phrase that he relayed to Det. McLean, he could not recall what age he was when C.P. was using it as a signal. He could only recall the video game that they were playing at that time and that the TV was in the basement. He believed that this was occurring when he was younger, as the game was an older version. C.P. did not use the phrase frequently, or for long.
55The incident when he thought that C.P. urinated in his mouth occurred when he was very young, at the outset of these allegations. He described his memory of it as brief and vague. He remembers there being fluid in his mouth but in hindsight he does not know if it was urine. He only knows that it came from C.P.’s penis. He agreed that this was a particularly disgusting occurrence that would stand out in his mind yet did not mention it initially to Det. Van Wolde.
56On cross-examination, he recalled an incident where C.P. assaulted him in the top bunk bed with S. on the bottom bunk. He does not know what age he was at the time. This incident was mentioned for the first time during trial.
57With respect to the incident that he described to Det. McLean occurring at the side of the house, he thought that he was either 12 or 13. He remembered that it happened on a cool night, without snow, possibly the fall before his thirteenth birthday in 2015. On cross-examination he was challenged as to whether this could have occurred in the spring when he was 12. He agreed that it was possible, but still thought that it was the fall before turning 13. C.P. would go outside to smoke at night, as would S., and I.M. would accompany them to that area or the garage. On this occasion it was just C.P. who was present. I.M. recalled going out the side door of the house with him, thinking that C.P. was intending to just smoke a cigarette or a joint. C.P. looked around, then lowered his pants. I.M.’s testimony included the layout of the area and what was there, such as the air conditioning unit. He recalled that it was pitch black and very late at night. He remembered that C.P. ejaculated in his mouth, and that he was kneeling or squatting.
58With respect to the incident in the kitchen that he recounted to Det. McLean, he corrected himself about his age, stating that he does not now know why he initially reported that it took place when he was 12. He could not pinpoint when it happened, other than that he believed that it happened after the event at the side of the house. He agreed that it could have happened any time throughout the year of 2015 when he was 12. It was very late at night and others in the house were asleep. It began with C.P. rubbing I.M.’s penis outside of his clothes. He recalled that C.P. ejaculated in his mouth on that occasion also.
59Both oral and anal sex happened anywhere in the house, even open areas like the living room and kitchen, and at any time of the day when C.P. could do it and not get caught. For the most part it was spontaneous, but there were a few instances where I.M. was told to go somewhere at a certain time. C.P. would try to find objects that would block immediate sight lines.
60Before turning 13, particularly when I.M. was in grade 7 and 8, the assaults occurred frequently, up to multiple times per visit. The incidents could take up to 15 minutes or longer. But there were some times when it would start and someone would come home or C.P. would be otherwise interrupted. These events could happen more than one time during the same day or on different days. There was no real schedule to it, it was more a question of opportunity. If there was a free bedroom it would occur there, or anywhere else in the house that was far away from others.
61There were times when their paths would cross late at night and C.P. would take advantage, or times when he would deliberately bring I.M. downstairs to the kitchen.
62I.M. tried to discourage C.P. by not showering, describing C.P. as a “germaphobe”.
63The final incident in the bathroom occurred in August before he was to enter grade 9. On this occasion C.P. was pleading with him and I.M. was resisting, saying that he had to leave. C.P. spun I.M. around to position his body over the tub. He recalled that C.P. used Moroccan hair oil that was in the bathroom as a lubricant. After it ended, I.M. sat on the toilet and recalled that fluids and ejaculate were coming out of him. He was adamant that this could not have occurred during the previous summer, when he was entering grade 8, because he knows that the abuse did not stop at age 12. Because the abuse was still occurring to him when he was 13 and because it was the last incident, he was 99% sure that he was not mistaken that it occurred in the summer of 2016. He confirmed that his mother was home, because he believed that she was driving him back to his father’s house. This occurred in the family bathroom. It was not typical for them to be in the bathroom together but did happen a handful of times. There was another bathroom on the main floor of the house. He estimated that this event lasted for the typical length of 10 to 15 minutes.
64When challenged about whether this act could have been overheard, I.M. disagreed. He testified that C.P. would position his body in such a way that there was no tapping or thumping sounds. C.P. also made an effort to be as silent as possible and encouraged I.M. to do the same.
65From the time that he turned 13 in December 2015 until this final event in August 2016, the sexual events would occur fairly often but had decreased, comparatively, from the previous seven years. The assaults occurred only once per visit during this time frame. The frequency was decreasing because he was expressing more opposition, and his ability to communicate his resistance improved as he got older. He did not attempt this before turning 13 because he thought that C.P. would not respect his wishes. By the time I.M. was 13, if he resisted at all C.P. would plead with him to engage in sexual behaviour and would promise him that this would be the last time.
66Even after the final incident in the bathroom, C.P. continued to ask or try to physically initiate. He testified that there was no major incident between C.P. and himself that provoked him to start showing resistance, only that he was ready for it to stop.
67Part way through his examination-in-chief, I.M. testified that he had been able to remember and make notes of additional incidents, when reviewing his police statements in preparation for the preliminary inquiry. The preliminary inquiry was held on November 29, 2021. However, he was unable to remember those additional incidents until prompted by Crown counsel. He explained that his memory had to be prompted because he could not recall what incidents he had made a note of, although did remember the incidents once his mind was focused on them.
68One of these memories involved simultaneous fellatio, which C.P. suggested that they try. He thought that this took place not long before the final incident, as C.P. was only doing things to I.M.’s body toward the end, once I.M. began expressing his opposition. He placed it to when he was older, around 13, and near the time the assaults were coming to an end. It was during this latter period that C.P. was attempting to offer some incentive to I.M. to have the sexual interactions continue. He recalled that C.P. put a condom on his penis and performed fellatio on him for about 10 seconds. He remembered that C.P. ended the interaction, that C.P. was “grossed out” by it, recalling that C.P. was touching his jaw and moving it around as though he had a pain in his jaw. I.M. was unable to recall what happened after that, other than that the interaction stopped and C.P. was frustrated.
69As indicated, I.M. recalled this incident when he was making notes in preparation for the preliminary inquiry. He acknowledged that he had never discussed that memory before then. I.M. stated that there were a few bathroom incidents, which is partially why he did not initially recall this one when speaking to the police.
70During cross-examination, I.M. denied telling the police that after C.P. had tried fellatio on I.M. a couple of times when he was 8 or 9, that he never did it again. He said that he was unlikely to have said this, because he knew that it did happen again.
71Additionally, while preparing for the preliminary inquiry he recalled that some incidents took place in C.P.’s bedroom, on the far side of the dresser. He recalled that one such incident was during the summer; the window was open and it was a warm day. He believed that he was 13 because it was not long before the final incident. He recalled that this one ended with anal sex being performed on him, as he recalled that he was standing with his hands on the dresser and C.P. behind him with a view of the door. He does not recall how long it lasted. He could not recall that this was another one of the incidents that had occurred to him during his preparation for the preliminary inquiry until prompted by counsel.
72At trial, I.M. was questioned for the first time about whether C.P. ever requested that I.M. perform anal intercourse on him. He answered affirmatively, stating that he had a vague memory described as “very fuzzy”, of performing anal sex on C.P. It happened when he was 12 or 13. He recalled that C.P. was leaning over the edge of the bed. He thought that this occurred only once, and agreed that it was different from any of the other situations that he described. He had never mentioned this incident before trial because no one had ever asked him that question before.
Complainant’s Memory
73I.M. testified that it is hard to remember all the incidents because they were so numerous, and he has tried to block them from his mind.
74He agreed that his memory is most vivid for the things that happened to him more recently. He also said that over time all these events have started to blend into one another. Because of that, it was sometimes difficult for him to pinpoint when some of these occurrences happened, depending on the incident.
75He confirmed that his memories seem to begin at around the age of 5. He assessed his memory as being generally pretty good, depending on what he is being asked to recollect. He said that some instances are easier for him to remember because they are more unique, such as the one in the kitchen and the one that occurred outside of the house. Sexual events did not take place in those locations very often or at all, so they were more significant, and less frequent, than the incidents in the basement.
76I.M. testified that he could remember the specifics of events from a young age but the timing is sometimes hard for him to place. He stated that he often gets vivid flashes of what happened between the two of them, but frequently the setting is very hard to place. There are a few instances where he knows no one was at home, like the one at Paliser Crescent. But he cannot provide details about where other family members were at the time of most of these incidents.
77With respect to his counselling at Thistletown, he could only recall themes being discussed, but no specifics. He remembered that his parents were there for some of the appointments. He was informed of his overly sexual childhood behaviour by his father, but stated that he does have some of his own memories about the sexualized behaviour that he engaged in when he was young, such as exposing himself to a classmate. He could not recall when his father told him about it and believed that his father was not the only person who relayed that to him. He agreed that some of the sexualized behaviour that he was acting out was humping.
78At the time that he was 5 or 6 and the allegations of abuse arose, he has no recollection of speaking to his father about those allegations directly. He has some recollection of having a talk with the student and with the principal concerning his behaviour, and the school called his father and made him aware. He does not remember exactly what he said to the student. He knows that the school also contacted the CAS.
79Following that day there were a few meetings with members of the CAS, as well as his counselling at Thistletown. He does not remember what was discussed during the conversations with CAS but does remember being with a woman in his bedroom when he was about 6 years old. He does not remember whether he disclosed to her what was happening between himself and C.P. He has no specific memory of the words that he used when speaking with the CAS representative. I.M. agreed that he likely disclosed that sexual abuse was happening, although does not remember the specifics of what he said. It is his recollection that these occurrences were already happening quite a bit by the point that he spoke to someone from the CAS.
80He believes that he disclosed to CAS everything that was happening with C.P. at the time, and nothing occurred thereafter.
81It was his father who told him that there were difficulties with the CAS. He also has a memory of his father appearing to be frustrated when they were in the kitchen and speaking with the CAS representative, but he does not remember the extent of what happened or why his father was frustrated.
82His father was also the person who told him that he was sad as a child, and resistant to physical affection, reacting as though scared or threatened.
83With respect to why he was recalling memories in a piecemeal fashion, even during the trial, his explanation was that there were a lot of memories that had come up as he has talked about this, even during the two days during which he had been testifying. Memories resurfaced that he had tried to forget. The direct questions prompted those memories and made it easier to communicate them.
Complainant’s Disclosure of the Allegations
84I.M. testified that he was very ashamed of what was happening and did not want it to be disclosed. When he was younger, C.P. encouraged him not to tell people, and he did not feel safe communicating that to anyone.
85After first disclosing to S., S. did not push him to tell either his father or the police. I.M. does not think that he was ready to speak out when he began talking to S., but he described it as an unplanned opportunity that he decided to take.
86It was his decision to tell his father next. His impression was that his father was appalled to hear that the abuse had continued beyond his younger years. He denied that his father became focused on feelings of anger or dislike toward C.P.; rather, his father was more focused on supporting what he needed.
87He spoke to the police the same day that he told his father. He made the decision to report C.P. because of his initial disclosure to S. He felt that he could not “go back” after the secret was out, so had to go through with it. He also saw it as his opportunity to get away from C.P.
88When asked why he did not go to the police earlier, he provided three reasons. He did not feel safe, he did not realize that it was an option, and last, he had already spoken with the CAS, nothing resulted from having done that, and it seemed pointless.
89At the end of his interview with Det. Van Wolde, he asked this of the detective:
Is there any chance that you could kinda, like, leave out details of some of the stuff that happened when you’re talking to my dad.
90When asked why he made this request, I.M. answered that his father was struggling, and I.M. thought that his father blames himself. He has never told his father the specifics of the assaults.
91Defence counsel questioned him about fabricating these allegations for the purpose of aligning himself with S. in their mutual dislike of C.P. The exchange finished this way:
Q: You wanted to find a way to essentially get rid of C.P. You didn’t want him living in the house with you and your brother, upsetting the peace anymore. And so you told your brother this to, you know extend that hatred for your brother C.P., right?
A: There would’ve been significantly easier and significantly less traumatic ways to go about that.
THE APPLICABLE LAW
The Treatment of Evidence of Historic Allegations
92I.M. was 20 years old at the time of trial and testifying to events that occurred to him between the ages of 5 to 13, from 7 to 15 years before the trial. The evidence contained in his police statements was provided when he was 16.
93The Court underscored in R. v. W.(R.), 1992 CanLII 56 (SCC), [1992] 2 S.C.R. 122, at para. 26, that the court must take an individualized approach to each witness, irrespective of age, and assess their evidence by criteria appropriate to the witness’ mental development, understanding and ability to communicate. As the same court has stated more recently in R. v. R.P., 2012 SCC 22, [2012] 1 S.C.R. 746, at para. 17, “it is up to the judge who sees and hears a witness to determine what effect the passage of time might have had and how vulnerable the witness was in light of his or her age and the factual context.” Thus, a flexible approach is mandated, one that does not categorize I.M. as a “child witness” even when first speaking to the police.
94At para. 26 of W.(R), McLachlin, J. observed that,
In general, where an adult is testifying as to events which occurred when she was a child, her credibility should be assessed according to criteria applicable to her as an adult witness. Yet with regard to her evidence pertaining to events which occurred in childhood, the presence of inconsistencies, particularly as to peripheral matters such as time and location, should be considered in the context of the age of the witness at the time of the events to which she is testifying.
95The Court in W.(R.) also referenced R. v. B. (G.), 1990 CanLII 7308 (SCC), [1990] 2 S.C.R. 30, at para. 48, where Wilson, J. stated,
While children may not be able to recount precise details and communicate the when and where of an event with exactitude, this does not mean that they have misconceived what happened to them and who did it ... The credibility of every witness who testifies before the courts must, of course, be carefully assessed but the standard of the “reasonable adult” is not necessarily appropriate in assessing the credibility of young children.
Assessing Credibility and Reliability
96The outcome of this case rests entirely on my assessment of the credibility of I.M. and the reliability of his evidence. Several principles inform this assessment.
97First, one of the most valuable means of assessing witness credibility is to examine the consistency between what a witness said in the witness box and what that witness has said on earlier occasions. Inconsistencies may emerge from that witness saying something different, or from omitting to refer to certain events at one time while referring to them at another time: R. v. A.M., 2014 ONCA 769, 123 O.R. (3d) 536, at para. 12.
98Second, the nature of the inconsistency must be examined, to decide its nature and importance. Concern should exist for the trial judge where the inconsistency involves something material about which an honest witness is unlikely to be mistaken: A.M., at para. 13.
99Third, where there are serious inconsistencies, the reliability of the evidence becomes paramount. As stated in R. v. H.P.S., at para. 34, a positive credibility assessment is insufficient where an accused is facing charges based entirely on allegations of historic sexual abuse and where there are also serious reliability issues.
100Fourth, it is necessary to consider the inherent frailties of evidence where that evidence deals with events of an historic nature.
101The majority of the Court of Appeal in H.P.S. stated, at para. 41:
Where, however — as here, and in this type of case generally — there are objective reasons to scrutinize carefully the reliability of a witness whose testimony is central to the proof of guilt, the trial judge's reasons should demonstrate that he or she is alert to the frailties of, and the risks associated with, such evidence, and to the need to address it with that careful scrutiny.
102At para. 38 of H.P.S. Blair, J.A. stated “[m]emories become increasingly frail over time. Evidence that might have existed had the matter been dealt with earlier may have disappeared. Or it may become contaminated. Life experiences can colour and distort the memory of what occurred.” In his dissenting judgment, Laskin J.A. appears to have agreed that the passage of time may affect the accuracy of a witness’ ability to recall and recount the events at issue: para. 70. The dissent was upheld by the Supreme Court of Canada in restoring the conviction in R. v. Sanichar, 2013 SCC 4, [2013] S.C.J. No. 4.
103Fifth, testimonial demeanor is a valid consideration in assessing credibility, but should be used with caution and not overemphasized: R. v. D.P., 2017 ONCA 263, [2017] O.J. No. 1593, application to appeal dismissed [2017] S.C.C.A. No. 261. In White v. R., 1947 CanLII 1 (SCC), [1947] S.C.R. 268, at p. 272, Estey, J. discussed the issue of credibility as follows:
It is a matter in which so many human characteristics, both the strong and the weak, must be taken into consideration. The general integrity and intelligence of the witness, his powers to observe, his capacity to remember and his accuracy in statement are important. It is also important to determine whether he is honestly endeavouring to tell the truth, whether he is sincere and frank or whether he is biased, reticent and evasive. All these questions and others may be answered from the observation of the witness’ general conduct and demeanour in determining the question of credibility.
104Finally, as directed in R. v. C.R., 2010 ONCA 176, [2010] O.J. No. 911 at para. 72, the assessment of a witness’ testimony is a cumulative process. It is only when the total strengths and weaknesses of a witness’ testimony have been evaluated that a final credibility assessment can be reached.
Delayed and Piecemeal Disclosure
105The guidance on delayed disclosure in the context of sexual assault comes from R. v. D.D., 2000 SCC 43, [2000] 2 S.C.R. 275 at paras. 59, 63 and 65. No adverse inference about a complainant’s credibility may be presumed from the failure to report sexual abuse at an earlier time. There is no fixed rule about how people who are the victims of a trauma like sexual assault will behave and there are many reasons for a delay in disclosing. In assessing the credibility of a complainant, the timing of the complaint is simply one circumstance for the trier of fact to consider within all the facts of a case. The timing of the disclosure, on its own, signifies nothing.
106Years earlier, in W.(R.), at para. 30, the Supreme Court discounted the notion that victims of sexual violence are likely to report those acts, commenting that the literature suggests that victims of abuse often do not disclose it, and if they do, it may not be until a substantial length of time has passed.
107Similarly, any assumption that a child victim of sexual abuse would take steps to avoid his abuser is misplaced, as it fails to recognize that sexual assault victims behave differently and may attempt to normalize relationships for a number of reasons: R. v. A.R.J.D., 2017 ABCA 237, [2017] A.J. No. 746, at paras. 56-66.
108The Crown also relies on D.P. In D.P. the complainant revealed two assaults to the police, and then a few months later revealed a third. At para. 30, the court quoted the trial judge’s observation:
The decision to disclose is a difficult one that can be very painful for victims. It cannot be surprising that it would take [J.E.] more than one occasion to shed a burden that had been weighing on him for years.
109In D.P., the Court of Appeal found no error in the trial judge’s assessment of the impact of J.E.’s delayed and bifurcated disclosure on his credibility and confirmed that there is not a fundamental difference between delayed disclosure and piecemeal disclosure of prior sexual abuse. The comments in R. v. D.D. are potentially applicable to both, depending on the circumstances revealed by the evidence in any particular case.
Prior Consistent Statements
110Those agreed facts involving prior comments made by I.M. give rise to the issue of the proper use of prior consistent statements. Specifically, counsel have agreed that the CAS investigation was prompted by I.M.’s comment to another student at school, and the records from Thistletown disclose comments by I.M. about his brother’s physical abuse and his fear of being hurt by C.P.
111R. v. Khan, 2017 ONCA 114, 136 O.R. (3d) 520 at paras. 25 to 40, summarizes the permissible and impermissible uses of such prior consistent statements. Such statements are not to be used to bolster or corroborate a witness’ testimony. They are presumptively inadmissible for this purpose because they have no evidentiary value; the fact that a witness said the same thing on an earlier occasion is not helpful for evaluating their evidence. The witness may be mistaken or lying every time such a statement is uttered.
112However, there are a number of common law exceptions to the basic rule that prior consistent statements are inadmissible.
113The first exception discussed in Khan is the use of the prior statement to rebut an allegation of recent fabrication, where it may be admitted solely for the purpose of responding to the defence allegation that the witness concocted allegations after a triggering event: para. 28.
114The second exception is the admission of the prior statement purely for narrative, to give chronological cohesion and to put the rest of the testimony in context: paras. 29-30.
115Neither of these exceptions allows the statement to be used to prove the truth of its contents.
116The last exception discussed in Khan is to admit the prior consistent statement as “narrative as circumstantial evidence”: para. 31. This exception allows the statement to be used substantively to assist in the assessment of the truthfulness or reliability of the witness. For example, the prior consistent statement may be used to show the fact and timing of a complaint, which may then assist with the assessment of a witness’ credibility: paras. 33-35.
Position of the Crown
117The position put forward by Ms. Batorska is that it makes sense that I.M. would not remember everything at once when he was speaking to the police because of the length of time that these events occurred over, his young age during some of the events, and the fact that he was reporting events that had stopped three years earlier. They would naturally blend together. Any frailties in his evidence can be explained by his vulnerability due to his age, the time span, the troubling nature of the events and the fact that they were being imposed by a member of his own family. Each individual reacts differently to the trauma of sexual assault, and I.M. made clear that he wanted these events to remain a secret during his childhood and tried to bury the memories.
118Ms. Batorska submitted that I.M.’s testimony makes sense in the context of a familial relationship. He initially looked up to C.P. and wanted a normal relationship with him. It took time for him to mature and to come to understand the severity of the behaviour, and to understand how the behaviour had become normalized for him. He tried to keep peace in the household until the relationship between S. and C.P. was on the rocks, at which time he said that his disclosure to S. slipped out and he knew that there would be no going back. He decided at that time that he was ready to tell his father and to go to the police.
119His reaction at the station was telling; he was most concerned, as he told Det. Van Wolde, that people in his family would see him differently and that it would change their relationships with C.P. Up until then he had been trying to protect those relationships despite having his own rift with C.P.
120There is no doubt that I.M.’s disclosure was incremental, all the way through to trial. His explanation for this makes sense, which is that the memories surface as these events are discussed, memories that he had tried to forget. Further, there are so many incidents that they blend together and cannot always be placed in time or location.
121The omission of the humping behaviour can be explained by the fact that it was unimportant to I.M. at the time. The omission of an event involving I.M. being required to perform anal sex on C.P. can be explained by the fact that I.M. had never been asked the question before and may have varied reasons for never offering it up before being asked directly.
122Ms. Batorska also referenced I.M.’s testimonial demeanor, remarking that there were times during both the police statements and during the trial that I.M. had obvious difficulties with the topics that he was being asked to discuss.
123I.M’s testimony was also internally logical. Ms. Batorska pointed to his testimony about the pause in C.P.’s conduct after the disclosure to CAS, when his behaviour was being watched more closely, that C.P.’s behaviour changed to include begging and incentivizing once I.M. began to show resistance, that it stopped once I.M. grew stronger than C.P, and that before he was 13, he did not feel that his much older and larger brother would listen to him.
124I.M.’s testimony with respect to the precursor conduct also made logical sense, describing that it began with hitting and threats. He did not exaggerate and conceded that there was some normal wrestling that C.P. would sometimes engage in as they were playing, but it makes sense that the physical violence would install fear and compliance. Once I.M. came to know what was expected of him, it became a way of life and he became resigned.
125There are points of evidence that are compelling in their detail, which are persuasive of the truth of I.M.’s testimony. This includes:
C.P. would kiss the back of his head when having anal sex.
C.P. would use saliva or oil.
C.P. required that he swallow the ejaculate after he could produce semen.
His recollection of sitting on the toilet after the last occasion and having oil and semen come out of him.
C.P. positioning their bodies so that no noise would be made.
C.P. taking advantage of surroundings such as the junk pile or dresser so lines of sight would be blocked.
C.P. taking him behind the bar once the junk pile was removed.
Their clothing not coming fully off, with pants taken part way down to allow them to be pulled up quickly.
I.M.’s evidence that there were times when C.P. would be interrupted and have to stop, and once when they were almost caught by S.
I.M’s attempt to dissuade C.P.by not showering.
126The prior statements that he made to counsellors at Thistletown provide background and context and rebut the allegation of recent fabrication.
127The Crown asserts that there is no logical basis to advance a motive to fabricate such allegations.
128With respect to opportunity, over eight years there was ample opportunity for the commission of these offences, when the other family members were preoccupied or out of the house, or at night.
129Within the time frame set out in the indictment, Ms. Batorska submits that there are four incidents for which the court should reach a finding of guilt. One is the final incident in the bathroom, when I.M. is positive that he was 13 years old and going into high school that fall. The second is the incident beside the house in Scarborough, which I.M. thought occurred in the fall before his 13th birthday. The third is the incident in the kitchen, which he believed occurred when he was 12 years old and after the incident outside the house. Last is the incident of simultaneous oral sex in the bathroom, which he believed was closer to when these assaults stopped, because the incentivizing did not begin until he began resisting at 13 years of age.
Position of the Defence
130Defence counsel Ms. Griffiths presented a carefully crafted argument in her closing submissions. I will attempt to do justice to it while summarizing its major points.
131Her overarching submission is that the complainant has fabricated these allegations.
132In suggesting that the court should find that I.M. is not credible, the defence did not focus on uncertainties or inconsistencies in I.M.’s memory from when he was a younger child. It was conceded that an inability to recall some events with certainty from as long as 15 years ago could be expected, and was of no importance to the defence’s case given that the sexual allegations are untrue.
133The main focus was on major inconsistencies, particularly major omissions. Neither the process of incremental disclosure nor the fact that he was young at the time of the occurrence or reporting to the police can explain these inconsistencies and omissions.
134The defence places I.M.’s problems with recounting the allegations against a backdrop of his otherwise excellent memory, and high levels of intelligence, comprehension and ability to communicate. This context makes the problems in his evidence even more difficult to reconcile, and erodes his credibility and the reliability of his evidence.
135I.M. has a relatively strong memory for some of those facts in the agreed statement of facts. Some of his testimony was supported by those records, such as speaking with the CAS and seeing a counsellor at Thistletown. It was submitted that his memory is generally stronger than those of other witnesses who are recounting events that occurred at age 5 or 6.
136Ms. Griffiths also stressed that although these are historic assaults, the Crown is relying on events that I.M. said happened when he was 12 to 13 years old, and reporting them to police only 3 to 4 years later at the age 16. In that regard, this case can be distinguished from cases such as R.P. and H.P.S., in which the trial was held decades after the acts giving rise to the charges. I.M.’s situation can further be distinguished from cases in which the child victim was quite young, as the indictment deals only with those allegations that occurred when I.M. was 12 and 13.
137For both reasons, Ms. Griffith argued, it should be difficult for the court to not have concerns when the complainant’s over-arching explanation for the problems in his testimony is that the memory sometimes had to be revived prior to it being relayed. His memories were revived either by Det. McLean asking about jurisdiction, or by thinking about the past as he was preparing for the preliminary inquiry, or because the questions asked at the trial made buried memories surface and easier to talk about, or finally, because Crown counsel had pointedly directed his mind back to those events that he had recalled before the preliminary inquiry.
138It was submitted that some of the events for which I.M. needed prompting to recall should have stood out vividly and distinctly in his mind, because they were either close in time to his reporting to police or because they contained unique features. The court should conclude that these recovered memories are due to fabrication.
139Further, it appeared that I.M.’s memory for some events improved over time, in that he added some details at trial. This is contrary to the fact that memory diminishes over time and suggests that some of his memories are not truthful.
140Ms. Griffiths first pointed to several inconsistencies between I.M.’s trial testimony compared to testimony from his video statements. Even though it is clear from the statement that when he was at the police station he was attempting to remember everything so that he would not have to repeat the experience, significant details or events were left out.
141First, was his evidence about how the occurrences began. He told Det. Van Wolde that he would start at the beginning. He gave a great deal of detail about the physical hitting and punching that starting from when he was in grade 1, and relayed detailed memories of going to the basement and being required to provide oral sex. Then for the first time at trial he described that the humping was the precipitating behaviour. He said that his memory of this is very clear and distinct, and he remembered details of it even down to the toy that he was playing with. He said that he could remember exhibiting that humping behaviour himself when he began to act out as a child and believed that this behaviour had been discussed when he was attending Thistletown. The fact that he had never told anyone before trial, but that it was now a vivid memory for him, calls into question his credibility.
142Second, his disclosure up to the point of trial involved a description of a progression to anal sexual assault over time. In his statement he appears to relate that timing to the CAS investigation and C.P. having stopped for a while to get the focus off him, and that he progressed to anal intercourse upon resuming. But at trial I.M. said that the anal sex could have happened before CAS’s involvement. He also provided a new version of C.P. trying the anal sex as a progression from the humping, resorting to oral sex when that did not work out.
143Third, his trial testimony revealed that some of his recollections arose from things that his father had told him were occurring around the time of the CAS investigation. His memory may have been influenced by those conversations, with memories implanted by what he had been told. The veracity of some of his testimony should be questioned given the indications that his father would speak to him about things that are not actually in his memory.
144Defence counsel next pointed out more significant inconsistencies and omissions, as they relate to events allegedly occurring when I.M. was older.
145Det. Van Wolde asked I.M. directly whether C.P. had ever performed oral sex on him, and his response was that C.P. did it a couple of times, but then he said “and he never did it again”. He spoke about this occurring when he was 8 or 9. This is in contradiction to his evidence in chief when he discussed the incident in the bathroom at age 12 or 13 where C.P. performed oral sex on him, indicating that C.P. offered that as an incentive.
146That this more recent event was omitted from his initial statements to the police should be highly concerning, defence counsel submits, because of its recency to the reporting and because it was described by I.M. as a unique circumstance. The idea that it was an innocent omission because of a lapse in memory is unconvincing, since he was directly asked in his initial statement whether C.P. had ever done it to him.
147Even more concerning, the defence submits, is that at trial I.M. had to be led by Crown counsel about whether he remembered something else happening in the bathroom other than the final incident. This was something that he had remembered for the first time while preparing for the preliminary hearing, yet he could not remember what he said at the preliminary hearing only 18 months before trial. This incident, if it happened, should stand out in his memory such that he would not need to be led and prompted to this degree.
148Further, once I.M. had his memory jogged by Crown counsel, he then said that it stands out in his mind vividly because it is more recent and unique. The only explanation for why such an event would have been forgotten by this witness was because it was fabricated. The inconsistency presented by his explanation of having forgotten what additional events he recounted for the preliminary hearing, then vividly recalling the event itself, is not something that the court should accept as truthful.
149I.M. testified that some of the incidents stood out in his memory because they were unique. The examples he gave were the more recent incidents in the kitchen or at the side of the house. It is then notable that these unique memories were entirely omitted right at the first time that he was relaying his memories to Det. Van Wolde.
150When speaking with Det. McLean about the incident outside of the house late at night, he said that he remembered it quite vividly, which was what made him think he was 12 or 13. When asked why he remembered that, he said that it was because they were outside, which was unique. Although I.M. explained that the reason why he did not remember this during his first interview was just a matter of how his memory works, that explanation should cause concern with respect to his credibility and reliability.
151With respect to the kitchen incident that was added during the second interview, Det. McLean asked him why that came to his mind and whether something different happened. I.M.’s answer was that it was the same oral sex, and he does not know why he remembered it, adding that it was more recent. He did not mention, as he did at trial when asked why that would stand out in his memory, additional details such as C.P. rubbing him over the top of his pants as incentive. At trial he stated that this detail made the memory stand out for him and explained why he thought it was more recent. He also added that it stood out because it happened in the kitchen, not a typical location. These additional details were not included until trial. It is not plausible that his memory would be better at trial than when speaking to the officer at age 16, when it happened only 3 years before.
152Accordingly, Ms. Griffiths submitted that this is not the typical piecemeal disclosure caused by reluctance, embarrassment or shame. I.M. attributed his incremental disclosure to memory issues, and he seemed to remember better over time as he reflected. This is contrary to the explanation that memory tends to fade over time. The way that this incremental disclosure came out, with this particular complainant, is significant because it relates to both the reliability of his memory and his own testimony about the veracity of his memory, which would relate to his credibility.
153Additional evidence that illustrates inherent weakness in I.M.’s testimony was submitted to be as follows:
When asked by Det. Van Wolde whether there was any specific moment where he remembered how the incident started, he relayed the time when he was older, he came into I.M.’s room, his eyes and behaviour were “weird’ and he made I.M. perform fellatio. Ms. Griffiths argued that there was nothing unique about this event, as it appeared to be a typical incident according to I.M.’s allegations, but yet this is the one that he supposedly remembered and recounted.
When the detective asked I.M. to tell him what other kind of information I.M. thought that he should know, I.M. did not take the opportunity to talk about other incidents that were fresh in his mind. Instead, he took the opportunity to criticize CAS’s involvement.
When Det. Van Wolde again asked I.M. what else he thought the detective might need to know, he again did not take the opportunity to mention the incidents that according to him were more recent and fresher in his mind. Instead, he made denigrating comments about C.P., telling the officer that C.P. has “clearly got something wrong upstairs” and that he had “never been assessed”.
With respect to the urination incident that he said occurred when he was very young, it is unexplainable that he would not recall such a unique and degrading event during his first interview, especially since he was able to recall other incidents from when he was very young.
In the interview with Det. McLean, I.M. was again prompted whether there is anything else that he could remember, and he repeated the sentiment that he wanted to tell them everything so that he did not ever have to talk about this again. Then two years later at the preliminary hearing, 18 months after he gave his initial statements to the police, he remembered other incidents as he was preparing. He said that it was memories resurfacing over time, but he needed pushing from the Crown to remember those, even in the short time since the preliminary hearing.
Details were added at trial, including that the complainant said that he had performed anal sex on C.P., which he agreed he had never mentioned before. Although very confident that it happened when he was 12 or 13, but also said that his memory about it was very fuzzy. He testified that he did not share that incident until asked directly because he had forgotten. He said a lot of memories are hard to recall given the length of time over which these events occurred, but this cannot explain the lack of memory during the interview for something that significant. Nor can it be explained by having never been directly asked that question before. It would be an extremely significant event for C.P. to have asked him to perform anal sex on him only one time, and it is hard to understand how he would not mention or remember it before trial. He did not say that he never mentioned it before due to shame or embarrassment; instead, he said that he needed the prompting of the question to remember. This explanation of requiring prompting for this specific memory is not logical, given his good memory, especially when I.M. maintains that his memory is best for things that are unique, recent, and that stand out as different situations. This event falls into all of those categories.
154The next aspect of the defence argument is that I.M.’s testimony in relation to opportunity was exaggerated and objectively unbelievable.
155The first is with respect to the idea that C.P. babysat I.M., which would afford the opportunity to commit these assaults. It was submitted that he exaggerated the information in his initial statement to make it seem like C.P. had more of an opportunity than he did. He told the police that he was babysat up to high school, but it is unrealistic that he would be babysat at age 12 or 13. These were exaggerations to make it appear that there was more opportunity. Then at trial his evidence diminished, when he explained that his grandmother was always home and the main adult in charge. This also calls into question his credibility.
156Next is his evidence about frequency. According to him it was ongoing, repetitive, consistent sexual activity beginning when C.P. was 11. The behaviour is highly organized and manipulative for an 11-year-old child. And for it to continue for years at the level of frequency described by I.M. is not believable, as the necessary circumstances of privacy would be unlikely to all come together in this busy household with such frequency.
157Her next point was about the riskiness of the behaviour and the likelihood that it would be carried out as described. The court should also consider the positioning required for anal sex, and whether it is believable that they could extricate themselves as quickly as described by I.M. It also defies common sense that in this busy household, C.P. was never once caught. And it does not jive that he would talk about C.P. going to some lengths to be quiet and not make noise, and yet still be doing this with some openness. Also, the complainant contradicted himself by saying that the accused would sometimes verbalize his pleasure.
158Ms. Griffiths also suggested that the fact that the complainant could carry on conducting himself without anyone suspecting anything other than a normal sibling relationship speaks to his ability to be deceptive and to lie. This should raise a concern about credibility.
159She also argued that given his description of pain, it is very difficult to believe that he would never be vocal during anal sex, or that he never had any injuries, which should cause further concern about his credibility.
160The final area covered by Ms. Griffiths was I.M.’s reasons to make a false report.
161She submitted that he feels an animus toward C.P. that is apparent at the time that he is disclosing, revealed by his descriptions of C.P. to the police. The disclosure lines up with the dynamics that were happening in the family at the time. I.M.’s evidence was clear that in the last year before he disclosed that neither he nor S. had a positive relationship with C.P.. He said that by the time he was 16 he did not want to live with him anymore. She submitted that when S. bolstered those feelings, I.M. was emboldened to fabricate these allegations to finally get C.P. out of his life.
162Additionally, I.M.’s father seems to have felt that the CAS did not handle his earlier complaint appropriately. I.M.’s evidence establishes that his father bore some animus toward C.P. throughout the years. I.M.’s father also appears to have communicated to I.M. his frustration that nothing had been done about C.P. in the past. It is argued that this added to I.M.’s motivation to fabricate.
163The defence stated that none of these points, taken alone, might be sufficient to raise a reasonable doubt. However, all of them taken together amount to enough problems with I.M.’s credibility and reliability to raise a reasonable doubt.
Analysis
Motive to Fabricate
164I will begin with an assessment of whether the evidence reveals that I.M. has a motive to fabricate his evidence.
165The feelings that I.M.’s father had toward C.P. do appear to have been communicated to I.M., but I.M. does not seem to have discussed C.P. at any length with his father over the years. Even after the CAS investigation, which is what prompted his father’s viewpoint, I.M. testified that he had many positive feelings toward C.P. and at some point even looked up to him as an older brother.
166In my assessment, I.M. is not a person easily influenced by others. His evidence was notable in distinguishing his brother S.’s endless patience with C.P., in comparison with his own. I.M. was candid that by age 16, his ability to tolerate C.P. had run its course and, in his words, it was a performative relationship only to keep peace in the family. He also spoke of defending C.P. to his father at some point.
167His evidence was that he was not influenced by S., and that S. did not encourage him to go to the police. It was I.M. who decided that there was “no going back” once he had told S., and who decided to take it the further step of telling his father and then the police. There is no evidence to contradict I.M.’s evidence that by the age of 16, his brother S. had not yet given up on a relationship with C.P.
168I.M. was a witness who appeared to think for himself, who was not quick to agree with counsel’s suggestions and who gave reflective responses. I.M. was also quite emotionally flat during his trial testimony. He was polite and attentive, but I observed that he exerted no effort to make his testimony anything other straightforward and dispassionate.
169During his discussions with the police at age 16, there is no suggestion that his father influenced what he said. Rather than dwelling on his long-standing feelings toward C.P., I.M.’s evidence was that his father was focused on providing him with support following his disclosure to him. I.M.’s request to the officer that he hold some details back from his father suggests that these were not details that I.M. had ever talked about with his father.
170I was also struck by the regret conveyed by I.M. when talking about how much it hurt his mother to learn that he had very negative feelings toward his brother. He spoke of his good relationship with his mother throughout his life. It is inconsistent that he would risk harming that relationship and no doubt cause his mother real grief just for the object of making false allegations against C.P.
171I.M. did testify about C.P.’s difficult personality characteristics and did convey his negative assessment of C.P. to the police. There appears to be some support for this in the evidence, as S. also had had enough conflict with C.P. to be on non-speaking terms. But for I.M. to concoct such serious and elaborate allegations just to sever his relationship with C.P. is too extreme to be plausible. As he said, there would have been significantly easier and less traumatic ways to have gone about that.
172There was also a suggestion by the defence that I.M.’s fabrication was for the purpose of vindicating the earlier CAS investigation that had caused his father some disappointment. Again, the evidence does not support such a conclusion. While I.M. has some memories about the investigation from the 2009 era, as a six-year-old he could hardly have placed his father’s reaction in its proper context. His evidence was only that he recalls his father being frustrated during a single conversation in the kitchen but had no recollection or understanding of the reason other than connecting it to the investigation. According to I.M., he was shielded from any litigation involving his parents, and denied that his father did not want him to go to his mother’s house around that time. This evidence does not form a convincing argument that I.M. would be motivated to fabricate these stories to somehow make his father feel vindicated, years after the fact.
173I find as a fact that the evidence does not permit the conclusion that a motive to fabricate was raised by the dynamics between the people in I.M.’s life at the time.
174The defence made a further suggestion that memories may have been implanted through things told to him by his father over the years. To accept such an argument, I would have to believe that comments made by his father about being sad, his reluctance to be touched, and overly sexualized behaviour as a child caused I.M. to construct an elaborate story in his mind about eight years of invasive sexual assaults from his brother.
175My assessment of the complainant is that this is unlikely. I.M. is employed as a teacher and approached his evidence with care. I.M. frequently clarified which things he could or could not remember and was careful in his delineation of what he believed were his personal memories. Although he offered some conjecture about the timing of events or his age during the event, he gave sensible responses about why he had reached his conclusions. His testimony was notable in its understatement and lack of exaggeration. By that, I mean that he provided succinct, seemingly unrehearsed responses that were direct and on point.
Opportunity
176I am not convinced that I.M. ever exaggerated the issue of supervision by C.P. While he did use the term “babysit” when speaking to Det. McLean and indicated that this went on until he began high school, it would be unfair to fault him for using a term that he was never asked to define. For example, for reasons explained below I do accept his evidence that he was left alone with C.P. from the time that C.P. was old enough to babysit, and that he was also left alone with C.P. for other reasons throughout I.M.’s childhood and adolescence because of the family dynamics. It does not trouble me that even in later years, such as grade 7 and 8, I.M. still referred to being left alone with C.P. as “babysitting” even when he was past the age to require it.
177What is compelling is that he noted being looked after most often by C.P. when they were in the rental homes in Richmond Hill. According to his recollection, this occurred sometime between perhaps grades 4 and 6, at which time C.P. would have been in his mid-teens. The eldest, J. may not have been living at home, and S. was an older teen by then. I.M.’s mother was running a single parent household; it makes sense that she would leave C.P. in charge of I.M. most often at that time in their lives.
178I.M. described a household at his grandparents’ home that is not difficult to picture. As he testified, although his grandmother was present much of the time, the children were left to their devices and spent most of their time in one another’s company while the female adults worked hard at running that household, performing daily chores and hosting or participating in extended family gatherings. The family’s living situation was spread over a three storey home, including the basement.
179I have little evidence about the oversight provided by the adults in the household except in relation to the CAS investigation. As the agreed facts indicate, at age 5 and 6 I.M. reported disturbing allegations about interactions between himself and C.P. ,and his mother reported being aware of his unnaturally sexualized behaviour for his age. Despite that understanding, C.P. was eventually left to supervise I.M. From these facts I infer that I.M.’s mother was not as preoccupied or concerned with the boys’ behaviour as some parents might be, and it is not difficult to then accept I.M.’s evidence that he spent a good deal of time with his siblings while the adults were distracted by other things.
180When speaking to Det. McLean, he said that he assumed that I.M. was not left in charge of him for a couple of years after the CAS investigaton concluded. At trial he said the physical and sexual abuse stopped for a time after this investigation, which he estimated was no longer than a year. This is an area on which I find that I.M. was uncertain, for good reason, and his evidence unreliable. He was being asked to give time estimates from a very long time ago. I.M. had just turned 6 at the time that he was speaking to the CAS. On balance I find it unlikely that C.P. would have been left in charge of him only a year later, when C.P. would have been 12 ½. But they certainly could have been left to play alone together by that stage. Still, where I.M. gave estimates of when the sexual abuse began again and when it progressed to include anal sex, I find that the evidence of what he remembers about timing from those earlier years of his life is not to be given much weight.
181This is in keeping with his memory overall following the age of five, while still a preteen. He has a reasonably good memory for some things, as he noted, but there are many things that elude him, as would be expected. For example, Ms. Griffiths noted that he recalled speaking to someone from CAS in his bedroom and that he recalls some of the involvement with Thistletown, but his memory stops short of what he spoke to them about. I find that it is normal that he would not recall the nature of the discussions that were held when asked to give an account 15 years later at trial.
182I.M.’s evidence was that the assaults were occurring most frequently when he was in grade 7 and 8. At that point the family was back living at his grandparents’ house. He also provided evidence that his mother worked full time by that stage in his life and had a 40-minute commute at the end of the day. J. was no longer living there, and S. would have been an adult with his own pursuits. I.M. was typically there for 8 days a month plus full, alternating weeks in the summer. He also testified that his grandmother had some mobility issues, causing her to sleep on the main floor as he got older. The evidence about his grandfather is scant. Given that I.M. could not even recall his own age when his grandfather died, he does not seem to have played a significant role in I.M.’s life. The only evidence about him is that he had his own bedroom and liked to be out of the house with his friends.
183In the younger years, the basement appears to have been used frequently by the children as a play space. I.M. had good recollection of its layout and appearance, which tells me that he was often down there.
184All of these factors coming together present more than ample opportunity for C.P. to be alone with I.M. from a young age.
185As an adjunct issue, Ms. Griffiths has argued that there is an objective impossibility to both the frequency reported and the riskiness of the behaviour.
186I agree with her that I.M.’s testimony about frequency may be unreliable, even as it relates to any events that occurred right up to the end. I.M. did not give an indication of frequency during his police statements; this evidence came from him as a twenty-year-old. If these events are true, one could understand them taking a central importance in the life of a young person, such that the perception developed that they occurred every time he went to his mother’s, or even more than once on the same day. Given the disturbing nature of such memories and their significance, I am prepared to accept that I.M.’s recollection of frequency may be distorted by the erosive impact of time and what would be the distressing nature of these experiences. This unreliability does not lead to the automatic conclusion that he is lying.
187I.M. gave a sizeable amount of compelling evidence about how C.P. might have concealed this behaviour. This includes: hiding behind the junk pile or bar, requiring I.M. to leave the basement first, pretending to go downstairs to get Freezies, having a “code” phrase, looking around outside in the dark before lowering his pants, waiting until others were asleep at night, approaching I.M. when he was alone in his bed, waiting for others to be out of the house or occupied, ending the interaction when a chance arose of being caught, being vigilant about listening and watching for others approaching, ensuring he was hidden from sight lines, positioning himself so as not to make noise, telling I.M. not to make noise, telling I.M. to go somewhere at a set time, and never being completely nude. These are all believable indicators of a determined individual who, although engaged in risky behaviour, takes steps to minimize the risk of being caught doing something that he wants to be kept from others.
188Another aspect of the objective impossibility of these events discussed by Ms. Griffiths was related to the allegations of anal sex. I reject the argument that it is impossible that I.M. never expressed pain loudly if the allegations are true, as he testified, that he had been groomed to keep these events a secret and wanted no one to know. Similarly, the suggestion that they could not move quickly enough to extricate from that position, pull up their pants and be seated in the chairs by the time S. came down the basement stairs and entered the room is not unbelievable behaviour for two individuals with a strong motivation not to be discovered.
189It was argued that the final incident in the bathroom is implausible given that I.M.’s mother was home and this was the family bathroom. No evidence was received about whether there was a lock on the door, but there was evidence that there was another bathroom on the main floor. By this stage they were 13 and 18 years old, well beyond the age when I.M.’s mother would be keeping a close eye on what her teenage sons were doing. The evidence supports that S. may have been working or otherwise away from the house, J. almost certainly lived elsewhere, the grandfather was deceased and the grandmother unlikely to come upstairs. To the contrary, the event is entirely plausible.
Disclosure
190I.M. provided believable evidence about why he waited until age 16 to tell anyone about these allegations. During some of this he would have been too young to know that he could report to the police, as he testified, and he spoke of being ashamed and embarrassed. This was underscored, I find, when he requested that Officer Van Wolde not give the details of the allegations to his father.
191His evidence about a reluctance stemming from a belief that CAS had not believed him is also compelling. Regardless of what he may have told the CAS representative, of which we have no evidence, his own perception is that he told them everything, and nothing was done to help him. In this context, a delay in disclosing is even more understandable.
192I.M. was persuasive when relaying his initial reticence to talk to S. about these allegations, stating that he is not even sure now that he was ready to disclose these allegations when he did, explaining how the conversation somehow gave him a chance to broach the subject. He described his relationship with S. as a very close one, and so there is some basis for why S. was the person first entrusted with this information.
193From the time of his initial disclosure, I.M. has never recanted any of these allegations. He has remained consistent that the abuse began when he was 5 and continued until age 13.
The Credibility and Reliability of the Complainant
194I will now deal with the various points made by the defence about I.M.’s memory.
195First, there are significant aspects of his evidence, overall, that are internally consistent. The first is his evidence that he initially experienced physical violence and threats, which he said led to his compliance. He recalls that this began when he was in grade 1 and 5 years old. This accords with the information in the agreed statement of facts; part of what was addressed during the counselling at Thistletown was I.M.’s fears about C.P. hitting him.
196The CAS involvement that he recalls from that time, as well as his recollection that he said something to a student that sparked the involvement of the school principal and his father, is supported by the agreed facts.
197I.M.’s perception that he was powerless to prevent the behaviour before age 13 is consistent with the difference in age and physical development of the two individuals involved. His account that he ended the conduct four months before his 14th birthday and before entering high school, when he was continuing to mature and become stronger, also makes sense.
198Another compelling aspect of I.M.’s testimony is the experimental nature of C.P.’s alleged conduct: that he recalled it beginning with humping over top of his clothes, that there was an occasion when C.P. tried this humping without pants on, that the first regular interactions was C.P. requiring that he perform fellatio, later expanded to include anal sex, that C.P. required that he swallow the ejaculate once he could produce semen, that C.P. experimented with performing oral sex on him a couple of times when C.P. would have been 13 or 14, C.P.’s use of condoms and lubricant or saliva, and C.P. directing I.M. to perform anal sex on him.
199Additional details that take I.M.’s descriptions beyond bald allegations are his memories of C.P. kissing the back of his head during anal sex, sitting on the toilet with ejaculate and oil coming out of him, watching the clock and noting the time, and that it made him uncomfortable in later years to go down to the basement.
200Finally, I.M.’s evidence that C.P. was attempting to offer incentives to I.M. once he turned 13 and was beginning to vocalize his resistance is compelling, as it comes at a time when the dynamics between the two were shifting, commensurate with the physical changes in I.M..
201But there are reasons to further closely scrutinize I.M.’s testimony, as discussed by Ms. Griffiths, arising from inconsistencies in his evidence due to earlier omissions, added to his testimony later.
202The first issue is I.M.’s addition at trial that this all began with humping by C.P., that C.P. may have attempted anal sex before the oral sex began, and that the anal sex may have begun before the CAS investigation. As previously concluded, I.M.’s reconstructions of the timelines from when he was a younger child are not reliable given his age and level of comprehension.
203His omission of the humping behaviour is not a concern for the court; as he testified, this was behaviour that did not particularly trouble him. It is understandable that he characterized the “beginning” to Det. Van Wolde as the beginning of invasive, overtly sexual behaviour.
204It may also be that his recollection of C.P. humping him without pants on is quite accurate, since he appears to recall some detail from that time including the car that he was playing with on one occasion. But his interpretation that C.P. was trying to initiate anal sex is one that he would have reached much later in his maturity, reconstructed with hindsight, and I do not give much credence to it. Similarly, I approach I.M.’s ambiguity about whether anal sex had occurred before or after the CAS investigation the same way. His recollection of the timing is just too unreliable to conclude that it had, and is objectively unlikely given their ages. I.M. is understandably confused, I find, about the timing of the progression of these acts. But that does not mean that they did not occur. And importantly, he never professed to have any certainty around his recollection of the order of things from that period, and so his portrayal to the police of the oral sex preceding the anal sex is not overtly inconsistent with his trial testimony.
205The second issue is I.M.’s failure to remember and tell Det. Van Wolde about two incidents that he recounted to Det. McLean 50 minutes later, which were the incident outside the house and the one in the kitchen. Once remembered, he was able to recount them in detail. I have no problem with this latter concept, which applies to other parts of his evidence. It is a common human experience to forget an event, and then once our memory is revived, to recall it vividly. One might be asked, for example, how their summer holidays were spent and list off a series of events but through lapse of memory forget a significant one. Once reminded, we can recall the event in detail.
206I.M.’s failure to recall these two events even though he was trying to relay everything when he was speaking to both officers, is not a hallmark of dishonesty. Given the context – speaking to an adult stranger about 8 years of incidents for the first time – could easily account for this omission. As previously stated, I find that he had not reviewed these events and details with his father. Further, I.M. had just had his memory jogged about two incidents that stood out in his mind from the Richmond Hill properties, and that seems to have prompted these other two memories. He was also somehow reminded of the incident where C.P. allegedly urinated in his mouth during his first interview. As his trial testimony revealed, his recall of this incident was vague at best, and he was uncertain whether it was even urine. This evidence falls into the same category as much of the other of his testimony from that earlier era. Its accuracy and timing is not reliable, but there is nothing of great concern arising from the fact that he did not mention it until the second interview.
207Similarly, the defence attacks I.M.’s credibility because of his failure to recall two more incidents until preparing for the preliminary hearing, both of which are alleged to be unique and to have occurred closer to the end – the incident behind the dresser in the bedroom and the incident involving simultaneous oral sex in the bathroom. He then had to be prompted by Crown counsel, who had to reference their location, before he could remember the events.
208For the same reason, his credibility is called into question because he never mentioned being asked to perform anal sex on C.P. until asked, and his memory about this was described as “fuzzy” even though it was a more recent event.
209These are significant frailties in I.M.’s evidence. I.M. did not try to defend or be evasive about these frailties. Each time that he was confronted by defence counsel with a problematic part of his memory or recollection, he did not attempt to make excuses for it. He acknowledged that his disclosure had been piecemeal and seemed to accept that there was often limited explanation that he could offer for how his memories unfolded.
210What he did offer by way of explanation was that he has tried to bury these disturbing memories, does not want to remember or discuss them, and they resurface as opposed to being in the forefront of his mind. This re-emergence of the memories has happened when he has been forced to direct his mind to the topic, at the preliminary hearing and at trial, or when asked the question directly. This makes sense. Regardless of the uniqueness of the event, its recency, or where it may have occurred, these characteristics may not always guarantee ease of recollection where one has attempted to keep them buried for a significant number of years. His discomfort with the topics that he had to discuss was readily observable at trial. Despite I.M. appearing to have high intelligence and good recall of some things from his past does not mean that he should be capable of performing perfectly when being asked to recollect troubling and embarrassing memories.
211Contrary to the defence submission, I.M.’s memory does not seem to get better over time. He was not always able to remember what he said in his statement to the police, and he could not remember what he testified about at the preliminary inquiry until his memory was refreshed. This could be indicative of fabrication, or it could be indicative of a mind that does not want to remember. I accept I.M.’s explanation that it is the latter.
212Another serious inconsistency is the information given to the police that after I.M. was 8 or 9, C.P. never tried to perform oral sex on him again, yet he later recounted the incident of simultaneous oral sex when he believes that he was 13. When confronted with this inconsistency at trial, I.M. expressed surprise that he would have said such a thing to the police, as it was not accurate. I observed that he appeared to be genuinely surprised to learn that he had told the police that C.P. had never done so again.
213I.M.’s inconsistency may disclose fabrication, or it may be a product of speaking carelessly, or a statement being taken out of context. I find that it is the latter. I.M.’s police statement indicates that he was referring to C.P. trying this in the basement behind the bar when I.M. was 8 or 9 as an experiment, and that similar incidents were never repeated. The later incident in the bathroom occurs in an entirely different context involving simultaneous oral sex introduced at a time when C.P. was introducing incentives. At that point in the interview the officer did not explore the topic further, but rather asked the complainant a general question about what other information he thought the officer needed to know. I.M. pivoted to talk about the CAS being contacted, and his attention was never brought back to this topic.
214Further, the later event was described by I.M. in some detail rather than vague and generic terms. There was no suggestion that he added further specificity at trial from what he had relayed at the preliminary hearing.
215As the law instructs, one of the best ways to measure the reliability of evidence is by its consistency, and serious inconsistencies should be a cause for concern. However, it is not an inviolable rule that an inconsistency, even a serious one, should lead to a witness being discredited. Where an otherwise honest witness has memory problems, it is still necessary to assess his credibility and the reliability of his evidence in the context of all of the other evidence. And where that honest witness’ memory problems are related to traumatic events that unfolded over a significant period of years, in my view such a comprehensive lens is particularly important.
216As previously indicated, there are many observations that I made of I.M. throughout the trial that convinced me that he was endeavouring to give as accurate and honest an account as he was able. When there were aspects of his memories that evaded him, he did not try to enhance or embellish to fill in the gaps. And more importantly, as previously discussed, there are many reasons for finding parts of his evidence to be reliable. Those parts that are not reliable are related to his age at the time of the events in question, and the time lapse since they occurred.
217To reach the conclusion that I.M. is deliberately lying would require that I set aside all of my contrary assessments of his evidence. I would have to ignore those parts of his testimony that have led me to believe that he was providing as accurate an account as possible. These include but are not limited to the description of his brother’s progression of behavior, starting from when he was a young child that required force for cooperation through to an older adolescent who needed to be given encouragement when he showed resistance. Those details which gave substance to his testimony, such as the junk pile being moved and the location changing to behind the bar, C.P.’s utterances during acts, being told to keep the acts secret, his reasons for not disclosing earlier, and conversely, his reasons for disclosing when he did, are all convincing, along with his general demeanor as a witness.
218After considering all aspects of the evidence, I am satisfied beyond a reasonable doubt that C.P. has a history of sexual misconduct with I.M.
219With respect to specific incidents that may be covered in the indictment, there are only two about which I am satisfied fall within the relevant time period.
220The first is the last incident of anal sex occurring in the bathroom, which I.M. was certain occurred in August before he went into high school, which was August 2016.
221The second is the incident of simultaneous oral sex in the bathroom, which occurred sometime after C.P. began to offer to do things to I.M.’s body. I.M. was clear that he was not protesting before age 13, and that the incentives were not offered until then. Accordingly, I find that this incident occurred after December 2015.
222I.M.’s evidence about the timing of the other two occasions was too uncertain to reliably position within the time frame in the indictment. He agreed that both the incident at the side of the house and the one in the kitchen could have happened any time throughout 2015, which would include the first half of 2015 before C.P.’s 18th birthday. Even though he believed that there was no snow on the ground and it was cool out when he was outside the house, and said that the kitchen incident occurred later in time, neither of these things eliminate the possibility that they took place before June 2015. Even though the kitchen incident involved C.P. touching him, his uncertainty about the timing still leaves me with a reasonable doubt that they occurred after June.
223Crown counsel conceded that there is insufficient evidence to secure a conviction for the count of invitation to sexual touching after the age of 18. I agree. An acquittal will be entered on count 3. Count 4 has been previously dismissed.
224C.P. please stand. I find you guilty as charged on counts 1, 2 and 5.
225I thank both counsel for the professional way in which they have managed this difficult matter. Both parties have been well served by the legal representation provided by them.
Madam Justice S.E. Healey
Released: August 23, 2023
NOTE: Although this ruling was delivered orally, the written version takes precedence over the oral reasons read into the record. If there are any discrepancies between the oral version and this written version, it is the written version that is the official record to be relied upon.