COURT FILE NO.: CR-20-10000383

DATE: 20231221

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

– and –

L. T.

Defendant

M. Brown, for the Crown

S. Nicolakakos, for the Defendant

HEARD: October 31, November 1, 2, 3, 4, 2022; Aug 8, 9, 10, 11, October 27, 2023.

reasons for judgment

J. R. Presser J.

I. OVERVIEW

[1] E.T. came to Canada with her mother from Greece on Christmas Eve 2016. They joined her biological father, the defendant L.T., who had already been living and working here for several months. E.T. was nine years old at the time.

[2] E.T. says that within a short time of her arrival in Canada, her father sexually assaulted her in her bed when her mother was out. She felt wetness on her backside. She says that she reported this first incident of sexual touching to her mother the next morning; that her mother examined her and found that her vagina was red; that she saw a small puddle of yellowish liquid next to her bed that morning; and that her mother confronted her father, who denied any sexual touching of E.T. The matter was never spoken of again. All members of this family of three carried on as if nothing had happened.

[3] But, according to E.T., something did happen again. She says that over the ensuing period of approximately 26 months, L.T. sexually assaulted her three further times. E.T. described that on each occasion, her father came into bed with her when she had gone to bed for the night, pulled down her pyjama pants, touched her breasts, licked his fingers and touched her vagina, and tried to insert his penis into her vagina. She resisted and asked him to stop. He succeeded in putting his penis partway in, which she found very painful. On the first two of these three sexual assaults, E.T. said her mother was out. On the last occasion, E.T. said she was sleeping over at her father’s; his roommate was in the house; and L.T. tried to touch her breasts and vagina and penetrate her vagina with his penis, and succeeded in doing so partway, several times over the course of one night. E.T. also says that her father physically assaulted her on two occasions, once by grabbing her throat, and once by slapping her across the face.

[4] E.T. did not disclose any of these further incidents to her mother or anyone else at the time they happened. She explained that her mother did not believe her when she reported the first sexual assault, so she had no reason to expect that she would be believed if she reported the further sexual assaults.

[5] This was a family living in circumstances that were challenging and stressful in the extreme. They had recently come to Canada. None of them spoke English. None of them were here legally. As a result, to support the family, L.T. had to work illegally. He worked long hours, but there never seemed to be enough money. There was financial stress and housing insecurity. L.T. and his wife, E.T.’s mother, fought incessantly about money and about how much L.T. was away from the family for work. The wife also worked illegally, but had to be off work for a time as a result of a debilitating injury. There is some suggestion of physical violence between L.T. and his wife.

[6] When both parents were working, there was no one to care for E.T. She was left in makeshift care arrangements, or alone. She was lonely. For a period of months, E.T. was sent to live with another family, and was only brought home for short visits to bathe and change her clothes. E.T. did not attend school for an extended period after her arrival in Canada. E.T. and her mother argued frequently. She was physically violently assaulted by her mother on multiple occasions. E.T. says she was also physically assaulted by her father.

[7] In late 2018, L.T. and his wife separated, and later divorced. The final alleged sexual assault and one of the alleged physical assaults occurred after the separation, when E.T. was living with her mother and had gone to visit L.T. in the house he lived in with a roommate.

[8] After her parents separated, E.T. frequently spoke with her father on the telephone or on videocalls, sometimes for hours on end. She also saw him for visits. He would pick her up and take her to visit a cousin, to the park, or to a local bakery for treats. This occurred even after and between the alleged assaults.

[9] E.T.’s mother had a lot of animus toward L.T. at the end of their marriage and after they separated. At some times, she did not want E.T. to see L.T. or speak with him on the phone. E.T. would speak with her father on the phone, or have videocalls with him when her mother was out. She would hang up quickly if her mother came home. At other times, when the mother was working or had other commitments, she wanted L.T. to care for E.T. At some point, the mother told E.T. that L.T. wanted to kill them or hurt them. This caused E.T. to be afraid of L.T.

[10] In or around April 2019, E.T. disclosed that her father had sexually assaulted her to a close family friend she called “Yaya” or grandmother. Yaya insisted that E.T. tell her mother what had happened to her. E.T. did so. The mother did not immediately believe E.T. She questioned E.T. closely about the allegations on multiple occasions. She enlisted some friends to question E.T. too. Approximately two weeks after the alleged sexual and physical assaults were disclosed, E.T.’s mother took her to the police to report the allegations. L.T. was criminally charged.

[11] E.T. gave her first videotaped statement to police on April 29, 2019. She was 11 years old. She was not fluent in English at the time. She spoke to police in a combination of broken English and Greek, with the assistance of a Greek and English-speaking police officer who was not an interpreter.

[12] In January 2020, E.T. went to school with visible bruises. She was apprehended from her mother’s care by the Children’s Aid Society, and was taken into foster care. She was still in foster care at the time of trial.

[13] In September 2020, E.T. testified in the preliminary inquiry in this matter. At the end of the preliminary, L.T. was committed to trial on all counts in the information, as well as on one count of incest.

[14] On October 21, 2021, E.T. gave a second videotaped police statement in fluent English. She was 14 years old at the time.

[15] L.T. was tried before me, sitting as a judge alone, on a nine-count indictment charging him with:

• three counts of sexually interfering with E.T. between January 1, 2017 and March 1, 2019, contrary to s. 151 of the Criminal Code [1] (counts 1, 3, 5);

• three counts of sexually assaulting E.T. between January 1, 2017 and March 1, 2019, contrary to s. 271 of the Criminal Code (counts 2, 4, 6);

• two counts of assaulting E.T. between January 1, 2017 and March 1, 2019, contrary to s. 266 of the Criminal Code (counts 7, 8); and

• one count of incest between January 1, 2017 and March 1, 2019, contrary to s. 155 of the Criminal Code (count 9).

[16] On October 31, 2022, L.T. was arraigned before me on one count of sexual interference (count 1), one count of sexual assault (count 2), one count of assault (count 8), and one count of incest (count 9). He pleaded not guilty to all charges. His trial proceeded before me on October 31, November 1, 2, 3, 4, 2022; Aug 8, 9, 10, 11, and October 27, 2023.

[17] E.T. was the only witness to testify for the prosecution. With the consent of the defence, she testified remotely with the aid of a support person and a support dog. Also, with the consent of the defence, E.T.’s two videotaped police statements were admitted in evidence under s. 715.1 of the Criminal Code. E.T. was 15 years old when she gave her evidence at trial. She testified in fluent English.

[18] There were a number of inconsistencies and discrepancies in E.T.’s various statements and between her earlier statements and her testimony. She did not disclose all of her story right away. She appears to have made some incremental disclosure over time.

[19] L.T. testified at trial with the assistance of a Greek interpreter. He denied all of the allegations. He testified that he worked very long hours and was never alone with L.T. He maintained that he never had the opportunity to sexually assault E.T. He maintained that he cared for E.T. and it never entered his mind to harm her in any way.

[20] L.T.’s roommate testified for the defence with the assistance of a Greek interpreter. He lived with L.T. after E.T.’s mother moved out, at the time of the final alleged sexual assault and the second alleged physical assault. The roommate testified that E.T. never slept over with her father when he was there; that he was present for the argument that E.T. said culminated in L.T. slapping her; that L.T. did not slap her but that in the course of an argument with L.T., her fingers accidentally connected with L.T.’s arm causing her pain.

[21] The position of the Crown was that the inconsistencies and discrepancies in E.T.’s evidence were in relation to peripheral matters that did not touch on her core allegations of sexual assault and assault by L.T. She was a child when she gave all statements and when she testified. Her evidence had to be assessed against criteria appropriate for the evidence of a child established in R. v. B. (G.), 1990 CanLII 7308 (SCC), [1990] 2 S.C.R. 30 and R. v. W. (R.), 1992 CanLII 56 (SCC), [1992] 2 S.C.R. 122. A proper assessment of E.T.’s evidence in this way, in the Crown’s submission, leads to a conclusion that she was credible and reliable because her core allegations were consistent throughout. The Crown further submitted that no inference can be drawn from the fact that E.T. spoke on the phone and had visits with her father after and between the alleged assaults. It was not implausible that E.T. would have agreed, and even wanted, to have contact with her father, even if he had sexually and physically assaulted her. This is because there is no inviolable rule on how people who are victims of trauma, like a sexual assault, will behave: R. v. D.D., 2000 SCC 43, [2000] 2 S.C.R. 275; R. v. A.R.J.D., 2017 ABCA 237, 422 D.L.R. (4th) 471, aff’d 2018 SCC 6, [2018] 1 S.C.R. 218. For the same reason, according to the Crown, no inference adverse to E.T.’s credibility could be drawn from her selective and incremental disclosure: R. v. D.P., 2017 ONCA 263. E.T. explained that her early non-disclosures were driven by fear of her mother, who had instructed her not to reveal some things to the police. She was afraid of being beaten by her mother if she did not comply with these instructions. By the time E.T. testified at trial, she was no longer under her mother’s influence and control. She strongly asserted that she was testifying to the truth, and had rejected her mother’s efforts to control what she said. According to the Crown, on all the evidence in this case, E.T.’s evidence was credible and reliable. It was sufficient to ground a finding that the offences had occurred beyond a reasonable doubt.

[22] The Crown argued that the defence evidence should not be believed and was not sufficient to raise a reasonable doubt. L.T.’s evidence was full of inconsistencies. He was an evasive and non-responsive witness. He gave evidence that defied common sense and experience to underscore that he could not ever have been alone with E.T., such that he never had the opportunity to sexually assault her. He testified to being absolutely certain of dates and times, when these served his position, but gave contradictory and inconsistent evidence about the same dates and times when this new evidence would suit his position better. In the Crown’s submission, L.T. was not a credible or reliable witness. The Crown further argued that there was reason to conclude that L.T. had spoken to his roommate about the events the roommate testified about, thereby tainting his evidence. The roommate testified to help L.T. His evidence was not credible or reliable.

[23] The defence argued that its evidence raised a reasonable doubt. In particular, L.T.’s evidence that he worked extremely long hours and would not have had much opportunity to sexually assault E.T., alongside the roommate’s evidence that E.T. did not ever sleep over and that L.T. did not intentionally assault E.T. raised a reasonable doubt.

[24] The position of the defence was that the alleged sexual and physical assaults did not occur. The defence highlighted what it said were significant discrepancies and inconsistencies in E.T.’s evidence and her selective and incremental disclosure, submitting that in light of them, E.T. was not a credible or reliable witness. Defence counsel acknowledged that there are no inviolable rules about how victims of sexual assault will behave. However, in the defence submission, the court is required to consider all of the evidence in the case, including the Complainant’s post-offence conduct, in assessing her credibility and reliability. In this case, according to the defence, E.T.’s willing contact with her father told against her credibility and reliability: she would not have sought out so much contact with L.T. if she had been sexually and physically assaulted by him. The defence further argued that E.T. was poisoned against her father by her mother, in the context of very acrimonious family dissolution; that the mother was controlling and manipulative; that the mother and her friends influenced E.T., told her what to tell the police, and tainted her evidence; and that the mother was continuing to control and influence E.T.’s evidence even at the time of trial. For these reasons, the defence argued, E.T.’s evidence could not be believed and could not ground a finding that the offences had occurred beyond a reasonable doubt.

[25] On all of the evidence, the defence submitted, the Crown did not establish L.T.’s guilt beyond a reasonable doubt.

[26] The issue for my determination is whether I am satisfied that the alleged offences occurred. In other words, I must determine whether, on all the evidence, I am satisfied of L.T.’s guilt beyond a reasonable doubt.

[27] On November 16, 2023, I gave a brief oral judgment convicting L.T. of all counts on which he was arraigned, with written Reasons to follow. These are those Reasons. They set out why, on all of the evidence, I am satisfied beyond a reasonable doubt that the alleged offences occurred and that L.T. is guilty of all charges on which he was arraigned.

II. THE EVIDENCE

A. Overview of the Evidence

[28] E.T. testified that she was sexually assaulted by L.T. on four occasions in three different homes, and that she was physically assaulted by him on two occasions.

[29] The defence admitted that L.T. is E.T.’s biological father, and that her date of birth is June 28, 2007. The alleged assaults occurred when she was nine to 11 years of age.

[30] L.T. denied that he ever sexually assaulted E.T. He testified that he was away from the family home from 4:30 or 5:00 a.m. until 10:00 or 11:00 p.m. every day, including most weekends and even on holidays, for work. He rarely or never had a day off. He maintained that he was never alone with E.T., and never had an opportunity to sexually assault her. He testified that he never physically assaulted E.T. He maintained that E.T.’s mother assaulted her numerous times. He suggested that in describing the first alleged assault, E.T. had transposed an assault by the mother onto him. L.T. testified that he did not commit the second assault by slapping E.T., rather he said he yelled and pushed her hand. L.T. also acknowledged that he had pushed E.T. on a number of occasions when she and her mother were arguing.

[31] L.T.’s roommate testified that E.T. never slept over at the house he shared with L.T. when he was there. He said he was present when E.T. came to visit on two occasions during the day. He recalled the argument between L.T. and E.T. that gave rise to the second allegation of assault, and maintained that L.T. did not hit his daughter. Instead, according to the roommate, in trying to grab her phone back from L.T., as L.T. was trying to keep it away from her, E.T. hit her fingers on her father’s arm. This was an accident, according to the roommate, not an assault.

B. The First House and the First Alleged Sexual Assault

[32] When E.T. and her mother joined L.T. in Canada on December 24, 2016, the family lived in a basement apartment in Toronto. The house was owned by Maria T., who lived upstairs with her family. The Ts’ basement apartment had a living room, one bedroom, and a bathroom. E.T. slept in the bedroom. Her parents slept in the living room. They did not have a separate bedroom. The Ts shared the upstairs kitchen with Maria T.’s family. The basement apartment had no door.

[33] L.T. was working in roofing. He said he worked very long hours, from 4:30 or 5:00 am until 10:00 or 11:00 p.m. every day, and was never at home. L.T. said that he even worked on Christmas Day until 9:00 p.m. E.T.’s mother did not immediately start working after arriving in Canada. She got a job working in a Greek restaurant two or three weeks later.

[34] E.T. testified that the first sexual assault occurred 20 days after she and her mother arrived in Canada. She agreed that on January 2, 2017, some ten days after she arrived, L.T. left Toronto for St. Mary’s, Ontario. He had been hired by Maria T. to renovate a home there. This was a job of more than two months’ duration. L.T. did not return to Toronto at any point until March 15, 2017 when the renovation job in St. Mary’s was complete. E.T. and her mother visited L.T. in St. Mary’s. She did not allege that L.T. sexually or physically assaulted her in St. Mary’s.

[35] E.T. explained that the first incident took place when her mother was out at the supermarket or at work. No one else was home. It was around 10:00 p.m., which she knew because that was her usual bedtime. She was in her bed, lying on her side, going to sleep. She felt her father’s hands touching her “private parts.” She grabbed his hand and pushed him, and he stopped touching her. When L.T. stopped touching her, he rolled onto his side and said “haaaa,” which E.T. demonstrated by sighing. She said she felt something wet, like water, on her “bum.”

[36] In her first statement to police, E.T. said that her father put his fingers a little bit inside her vagina on this first occasion. At trial, she testified that he did not touch her vagina on this occasion. She explained that she was rushing when she gave her first statement to police. She said this was because she wanted to get it over with.

[37] E.T. testified that she found a small amount of yellowish liquid on the floor in her bedroom, next to her bed, the morning after the first incident. It smelled a little bit bad. She took a towel and cleaned it up. In her first police statement, E.T. said she didn’t know what this liquid was, or where it came from. At trial she testified that she thought it was “come.”

[38] E.T. said she told her mother about this first incident right away the next morning. Her mother took her into the bathroom and examined her private parts. Her mother saw that E.T.’s vagina was red. She went out, leaving E.T. in the bathroom, and confronted L.T. The mother asked L.T. if he had ever touched E.T. on her private parts. E.T. could hear that L.T. got mad and denied having done so.

[39] The family then had a normal breakfast. E.T. said her mother got ready and left for work or wherever she was going. E.T. remained at home with L.T. They sat on the couch and watched a movie together. Things were normal. E.T. said she did not think L.T. would touch her sexually again.

[40] L.T. denied that he touched E.T. in a sexual manner in the first house. He maintained that he worked such long hours that he did not see much of his daughter. She was usually still asleep when he left for work, and was already asleep when he returned home from work. He said he occasionally got to spend an hour with E.T. when he came home. But he said he was never alone with her. His wife was always at home when he was there. She was not working at first, and when she did get a job, she initially only worked two days a week. L.T. said that his wife never went to the supermarket because she didn’t speak English and because Maria T. did their grocery shopping for them, and he reimbursed her. Moreover, L.T. explained that there were no supermarkets in the neighbourhood that were open at night. L.T. maintained that he never put E.T. to sleep. In fact, he said he never entered E.T.’s room. His wife told him not to. He got home late and did not want to wake E.T.

[41] L.T. said that his wife never asked him if he touched E.T. in a sexual manner. He denied that his wife left after such a conversation, leaving him with E.T. He said that he worked every day, so he was never able to be at home with E.T. when his wife was out.

[42] The T. family moved out of the basement of the first house because E.T.’s mother had an argument with Maria T. Maria T. threatened to call immigration on the Ts if they did not move out of her house. They moved out urgently.

C. The Second House and the Second and Third Sexual Assaults

[43] The Ts moved into the ground floor of a house. Joanna D. and George D. lived on the upper floor of the house with their two adult children who had significant health issues. The T. family all slept in one big room together. E.T. had her own single bed next to her mother’s side of the double bed shared by her parents. They had their own bathroom, and shared the kitchen with the D. family. Joanna D. worked outside of the home. George D. stayed home to care for the unwell children, garden, and dog. Toward the end of their time in the D. home, the T. family moved into the basement where there was more room.

[44] E.T. agreed that her family would socialize with Joanna D.’s family. If both of her parents were working late, sometimes E.T. would spend the evening with the Ds. Sometimes she would be alone in her family’s room. When E.T. spent the evening with the Ds, sometimes she would fall asleep on their couch in their part of the house, and one of her parents would come and put her to bed. Sometimes L.T. came and watched TV with her when her mother wasn’t home.

[45] The T. family stayed in this second home almost exactly one year. L.T. testified that they moved in on April 15, 2017, and moved out on April 15, 2018. E.T. agreed that they had lived in this house almost exactly one year, but did not know the dates.

[46] E.T. alleged that the second and third sexual offences by L.T. occurred in the D. home.

[47] The second incident occurred a short time after E.T. and her family moved in. Her mother was out at work at a restaurant. E.T. said she was in bed. L.T. came into her bed. He was pulling down her pyjama pants and her underpants, and she was pulling them back up. He pulled them down again. E.T. said L.T. told her never to wear pyjama pants with a drawstring that ties. She asked why and he said so she could be more comfortable. He ultimately got her pants down. He was wearing pyjamas. He got on top of her and pulled down his pants. E.T. said L.T. licked his fingers. She pushed his hand, but he held her down with one hand, and with the other he touched her vagina. He also touched her breasts. E.T. said L.T. was on top of her, not wearing pants or underwear, moving. She said he put his penis a little bit into her vagina and it hurt. She said she was tightening up to try to keep him out.

[48] E.T.’s mother fell and broke her shoulder shortly after the move into the D. house. L.T. said this happened on the second day after the move. He testified that E.T.’s mother was severely injured and did not work from the time of her accident in mid-April 2017 until October or November of 2018. L.T. said that E.T.’s mother was so debilitated from her accident that he had to do everything for her, including bathing her and preparing meals. He maintained that he was still working from 4:30am until 11:00pm every day, and that he cared for his wife when he got home late at night.

[49] The third alleged incident, according to E.T., occurred on the night of the “Danforth shooting.” She testified that her mother was working at Christina’s restaurant that night. E.T. was in her single bed in the family’s shared room. She said her father was naked and got on top of her. He touched her breasts and penetrated her vagina with his penis partway, and this caused her pain. While this was happening, E.T. said, L.T.’s phone rang. He answered and put the call on speaker. It was E.T.’s mother, calling to tell them not to go out because there had been a shooting on the Danforth right at the restaurant where she was working. E.T. said L.T. did not continue sexually assaulting her after this call because he was afraid that E.T.’s mother would arrive home and catch him in the act.

[50] L.T. denied both the second and third sexual assaults. He testified that he was working such long hours that he was never home. He maintained that his wife was injured on the second day they lived at the D. residence and did not return to work until October 2018. As a result, L.T. said, his wife was always at home. She never left. He was never alone with E.T. and did not have any opportunity to sexually assault her. According to L.T., George D. was always in the house. When L.T. did have free time, he assisted George D. with the garden and smoked in the garden with him, walked the Ds’ dog, took E.T. to the park, and was never alone with E.T. in the D. house.

[51] L.T. testified that he googled the date of the Danforth shooting. He learned that it took place on July 22, 2018, by which time he and his family lived in the third house, not the second. He testified that he could not have sexually assaulted E.T. in the second house on the day of the Danforth shooting, because on the date of that shooting, they lived in a different house. The Crown agreed that there was a shooting on the Danforth on July 22, 2018, but took the position that that was not the only shooting on the Danforth in the period covered by the indictment. Later in his testimony, L.T. admitted that there was another, earlier, shooting on the Danforth when he and his family lived in the second house. He said he was in the living room with Joanna and George D. and the kids, including E.T., at the time of this earlier Danforth shooting.

[52] The T. family had to leave the second house because L.T.’s wife had an argument with Joanna D. Joanna D. told L.T. that he and his family had to move from her home within five to six days, or she would call immigration authorities to report them. They left the D. home urgently.

D. The Third House, the Fourth Sexual Assault, and the Two Physical Assaults

[53] The third house the T. family moved into was on Pape Avenue. They lived there by themselves. This house had a living room, a kitchen, a bathroom, and one bedroom. L.T. and his wife slept in the bedroom. E.T. slept in the living room.

(1) The First Alleged Physical Assault

[54] E.T. testified that on one occasion in the Pape house, she was sitting on the couch talking with a friend in Greece on WhatsApp. She said that L.T., who was drunk, got mad and grabbed her by the throat. E.T. said her mother pulled L.T. off her, took her to the bathroom, lay her on the floor, and put water on her face. E.T. testified that her mother did this to revive her because she knew a bit of emergency care. E.T. agreed that her mother frequently assaulted her. She agreed that after punching her in the stomach on one occasion, her mother took her to the bathroom, put water on her face, and did similar medical things to revive her.

[55] L.T. denied having ever grabbed E.T. by the throat. He said there was no logic in this allegation, and asked rhetorically how anyone could grab a child by the throat. L.T. said that he had never done this and would never do it. He also maintained that he never got drunk once he had a family. His roommate testified that he and L.T. were not drinkers. They were people who smoked cigarettes and drank coffee. They would very occasionally have an alcoholic beverage, but did not drink to get drunk.

(2) The Fourth Alleged Sexual Assault

[56] Not long after they moved into the third house, L.T. and his wife became estranged. He testified that his wife returned to work in a restaurant and had an affair with a chef. She was rarely home, staying out late at night going to clubs, drinking, and partying. After her parents’ estrangement, E.T. slept in the bedroom with her mother when her mother was home. L.T. slept in E.T.’s bed in the living room. When her mother was out, E.T. said she was home alone with L.T.

[57] In or around May 2018, E.T.’s mother arranged for E.T. to live with a woman named Mira and her family. She stayed with Mira until late December 2018. In this period, E.T. only ever came home for a bath and a change of clothes. L.T. would occasionally pick E.T. up at Mira’s and bring her home, or take her out to her cousin’s, to the park, or to Serrano’s bakery.

[58] E.T.’s mother moved out of the Pape house in early December, 2018. She stayed with friends until she found an apartment for herself and E.T. in early January, 2019. L.T. could not afford the rent for the Pape house on his own. He found a roommate, Nantas R., who moved in with him on December 15, 2018. L.T. slept in the bedroom. The roommate slept in the living room.

[59] Shortly after Christmas 2018, on a Saturday evening, E.T. went over to L.T.’s house on Pape. She said she slept overnight there. E.T. said that she slept in L.T.’s bedroom, in his bed with him. She testified that at 10pm, and 1:00, 2:00, and 3:00 a.m., L.T. got on top of her naked, touched her breasts and vagina, tried to put his penis into her vagina, and succeeded in getting it part of the way in.

[60] L.T. denied committing this fourth sexual assault. L.T. testified that E.T. never slept at the Pape house once Nantas moved in. L.T. said that this was because there was no place for her to sleep. Nantas slept in the single bed in the living room, and L.T. slept in the bedroom.

[61] Nantas testified that the door to L.T.’s bedroom was in his bedroom. He said it was not possible that E.T. was there without him knowing. He maintained that E.T. never slept over at the Pape house when he was there. He agreed that it was possible that E.T. slept over if he was away overnight. Nantas said he visited his brother whenever he wanted to, and could stay overnight at his brother’s home anytime. He had spent Christmas with his brother. He agreed that there were times when he would get up, L.T.’s door was closed, he did not know whether L.T. was home, and he did not see L.T. until the next day; times when he was sleeping and L.T. had gotten up for work without waking him; and times when he would be sleeping and didn’t know whether L.T. was awake. He testified that he had seen E.T. arrive and depart on the occasion at issue.

(3) The Second Alleged Physical Assault

[62] The morning after the fourth alleged sexual assault, a Sunday morning, E.T. testified that she was showing L.T. Christmas photos on her phone. She realized that what she was showing him included photos of her mother. She said L.T. was very interested in seeing those photos, and grabbed her phone. E.T. tried to get her phone back from him. He would not return it. E.T. said that L.T. slapped her across the face. She was very upset and crying and ran and locked herself in the bathroom. She telephoned her mother. Very shortly after, E.T.’s mother or a friend of her mother’s came to pick her up. She left L.T.’s house.

[63] L.T. denied assaulting E.T. by slapping her face. He testified that he yelled and pushed E.T.’s hand when she tried to get her phone from him. He was trying to see the photos, and did not want to return the phone to E.T. He explained that he never assaulted E.T. – that he only ever pushed E.T. to separate her from her mother when they were arguing.

[64] Nantas testified that L.T. did not slap E.T. Rather, he said, L.T. was trying to hold onto E.T.’s phone to continue to look at photos of his ex-wife on it. Nantas said that E.T. tried to grab her phone back from L.T., and that L.T. swung with his left hand across his chest to the right to prevent E.T. from getting the phone. E.T.’s fingers connected with L.T.’s elbow or forearm as he moved the phone away, and she was hurt and upset as a result. Nantas said he would have intervened to stop L.T. if he saw L.T. raise a hand. He agreed that the incident occurred very quickly.

[65] Nantas recalled another visit from E.T. in addition to the one shortly after Christmas 2018, in which these allegations arose. He said that on this other occasion, E.T. came over in the afternoon. She and L.T. had a disagreement over her use of Facebook and she called her mother to ask for someone to pick her up and take her home. Neither E.T. nor L.T. testified to this visit.

E. Contact Between E.T. and L.T. After the Last Alleged Offences

[66] Both E.T. and L.T. testified that after their fight over the phone at the Pape house, there was a cooling off period of about five or six days when they did not have any contact. When they did finally speak, there was an acknowledgement between them that they had fought. E.T. said her father apologized to her when they spoke. She understood that he was apologizing for the physical assault, not the sexual assault. L.T. said that E.T. phoned him and asked whether his nerves had calmed down. He said he asked her whether she had gotten rid of her anger. After this, the two resumed contact.

[67] E.T. said she stayed over at L.T.’s Pape home on one further occasion, the night before he moved to Niagara Falls. E.T. testified that she slept deeply that night, and when she awoke, she had gotten her period for the first time. She testified that she thought maybe L.T. had sexually assaulted her that night as she slept, and that this was what had caused her to get her period for the first time. E.T. did not recall any details of sexual touching or activity by her father on this occasion, but she did not think she could have just gotten her period “out of nowhere.” E.T.’s belief that she must have been sexually assaulted on this occasion did not form the basis of any criminal charges.

[68] L.T. and Nantas testified that they moved to Niagara Falls together for work on March 1, 2019. L.T. maintained that E.T. did not sleep over at his house on Pape the night before his move. Both L.T. and Nantas testified that E.T. had never slept overnight there.

[69] L.T. recalled the first time E.T. got her period. He said he had picked her up at Mira’s house with her mother’s permission and brought her to his house to get a change of clothing. This was before the phone argument. When she was changing, according to L.T., E.T. saw blood. She called to him. He called E.T.’s mother, who asked him to go to the store to get her some pads. He said he refused because he was too embarrassed. The mother left work to take care of this errand.

[70] L.T. and E.T. spoke on the phone a few times between January 2019 and when he left for Niagara Falls. When he was in Niagara Falls, they spoke daily after he finished work at 8:00 pm, for as many as three to five hours a day. Both E.T. and L.T. called each other. E.T.’s mother would not allow E.T. to speak with him after January 14, 2019. She spoke to him on the phone surreptitiously when her mother was out, and would hang up suddenly if the mother came home. If L.T. ran into E.T. and her mother on the street, they would not speak with him. L.T. said that he and E.T. continued talking on the phone until April 23, 2019, when he and E.T.’s mother signed their final divorce papers. At that point, all contact stopped. E.T. blocked him everywhere, on the phone and on Messenger.

[71] E.T. agreed that she spoke to her father on the phone frequently and for extended periods of time. She said she missed him as her father. She described feelings of love and hate for him. She loved him as her father, and hated him for what he had done to her.

[72] E.T. agreed that her mother was trying to keep her from her father, in part because she was telling her mother that she did not want to see him. E.T. testified that her mother told her terrible things about her father, that he would harm them. She said he did harm them, he hit them.

F. Disclosure of the Alleged Offences

[73] In or around early to mid-April 2019, E.T. disclosed her allegations of sexual offending against her by her father. She was with Maria T.’s mother, whom she called “Yaya” or grandmother as a sign of respect. E.T. testified that Yaya was talking about how girls in her village had gotten pregnant by their fathers. E.T. became afraid that she might have gotten pregnant from her father’s sexual assaults. She disclosed them to Yaya, who insisted that she call her mother to share this information. E.T. did so.

[74] E.T. discussed the allegations with her mother, who asked why she had not disclosed them earlier. E.T. testified that she did not answer that she had earlier disclosed the first incident. She explained that when she had disclosed the first incident, her mother did not believe her or do anything about it. As a result, she felt there would be no point in disclosing the further incidents. She testified that she did not say this to her mother when she did disclose all of the incidents because she felt her mother would beat her if she did.

[75] E.T.’s mother questioned her about the allegations. Two or three friends of the mother’s came and questioned E.T. at various times as well. E.T. broke down in tears as she answered their questions. They asked her if this is how she would talk to police, whether she would cry when she spoke to police. At one point in what she termed this ‘investigation,’ E.T. said she tried to leave. Her mother grabbed her arm, squeezed her by the stomach and sat her back down to continue questioning her.

[76] E.T. said that her mother told her not to tell the police certain things, for example that the mother had been working illegally in Canada, and that E.T. had contemporaneously disclosed the first incident to the mother. She maintained that her mother and friends did not influence her. E.T. insisted that she told police what she told these women, which she maintained was the truth.

[77] On April 28, 2019, the matter was first brought to police attention. E.T. said that this was about two weeks after she first disclosed the allegations to Yaya and her mother. According to E.T., her mother only took her to the police at that point because E.T.’s uncle George T. had said that if the mother didn’t take her to police, he would. On April 29, 2019, E.T. made her first videotaped police statement. The rest of the timeline and history of this case is as outlined above.

G. Medical Evidence

[78] The Crown filed a medical report from the Child Abuse Unit of the Hospital for Sick Children, dated June 19, 2019. E.T. was examined there in relation to her allegations of sexual touching and vaginal-penile penetration. The results of the examination were normal. The conclusion of the report writer was that the genital findings neither confirmed nor ruled out (excluded) the possibility of sexual assault or abuse. This, the report writer explained, is because recent literature indicates that the majority of adolescent females where sexual abuse/assault concerns have arisen have no findings of anal or genital injury on physical examination.

III. ANALYSIS

A. Applicable Legal Principles

(1) The Burden and Standard of proof

[79] L.T. is presumed innocent. He may only be convicted of an offence if the Crown proves all essential elements of that offence beyond a reasonable doubt. The burden of proving the essential elements of the offences rests with the Crown and never shifts. L.T. does not have a burden of proving or disproving anything. The standard of proof beyond a reasonable doubt does not require me to be absolutely certain, but it is a significant and high standard of proof for the Crown to meet. It “falls much closer to absolute certainty than to proof on a balance of probabilities”: R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144, at para. 242.

[80] My job, as trier of fact, is to determine whether the evidence presented at trial establishes L.T.’s guilt of for sexual interference, sexual assault, assault, or incest, beyond a reasonable doubt. In other words, to find L.T. guilty, “I must be sure, based on all of the evidence before me . . . that he committed all of the essential elements” of the offences before the court: R. v. B.B., 2023 ONSC 396, at para. 61 [emphasis in original].

(2) Credibility and the Burden of Proof

[81] The law around how triers of fact should assess the credibility of the defendant and other defence evidence and its relationship to the burden of proof is well-settled. It derives from the Supreme Court of Canada’s holding in R. v. W. (D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742, directing that defence evidence must be assessed in the context of the evidence as a whole, not in isolation, as follows: (i) if the trier of fact believes the defence evidence, they must acquit; (ii) if the trier of fact does not believe the defence evidence but is left in reasonable doubt by it, they must acquit; and (iii) even if not left in reasonable doubt by defence evidence, the trier must determine whether, on the whole of the evidence they do accept, they are convinced of the guilt of the defendant beyond a reasonable doubt.

(3) The Elements of Sexual Assault

[82] A conviction for sexual assault requires proof beyond a reasonable doubt that the defendant committed the actus reus with the necessary mens rea: “The actus reus . . . is unwanted sexual touching. The mens rea is the intention to touch, knowing of, or being reckless of or wilfully blind to, a lack of consent, either by words or actions, from the person being touched”: R. v. Ewanchuk, 1999 CanLII 711 (SCC), [1999] 1 S.C.R 330, at para. 23.

[83] Consent is no defence to a charge of sexual assault contrary to s. 271 of the Criminal Code, where the complainant is under 16 years of age (subject to exceptions that do not apply to this case): s. 150.1(1) of the Criminal Code.

[84] The sexual nature of the actus reus of sexual assault is determined objectively. The Crown must prove beyond a reasonable doubt that the touching, viewed through the eyes of a reasonable observer, violated the complainant’s sexual integrity: R. v. Litchfield, 1993 CanLII 44 (SCC), [1993] 4 S.C.R. 333, at p. 345; R. v. Chase, 1987 CanLII 23 (SCC), [1987] 2 S.C.R. 293, at p. 302.

(4) The Elements of Sexual Interference

[85] A conviction for sexual interference requires proof beyond a reasonable doubt that the defendant committed the actus reus with the necessary mens rea. The actus reus, as set out in s. 151 of the Criminal Code, is directly or indirectly touching for a sexual purpose with a part of the body or an object, any part of the body of a person who is under the age of 16 years. The mens rea is the specific intent to touch “for a sexual purpose”: R. v. Bone, (1993), 1993 CanLII 14711 (MB CA), 81 C.C.C. (3d) 389 (Man. CA).

[86] Consent is no defence to a charge of sexual interference contrary to s. 151 of the Criminal Code, where the complainant is under 16 years of age (subject to exceptions that do not apply to this case): s. 150.1(1) of the Criminal Code.

(5) The Elements of Assault

[87] A conviction for assault requires proof beyond a reasonable doubt that the defendant committed the actus reus with the necessary mens rea. The actus reus of assault, as set out in s. 265 of the Criminal Code, is the voluntary direct or indirect application of intentional force to another person without consent. Even relatively minor force, without the consent of the victim, is an assault unless some defence applies: R. v. Palombi, 2007 ONCA 486, 225 O.A.C. 264, at para. 28. Involuntarily accidental touching or reflex actions will not satisfy the actus reus requirement for assault: Palombi at para. 34. The mens rea for assault is that the application of force must be intentional. An unintentionally accidental touching will not satisfy the mens rea requirement for assault: Palombi, at para. 35.

(6) The Elements of Incest

[88] A conviction for incest requires proof beyond a reasonable doubt that the defendant committed the actus reus with the necessary mens rea. The actus reus of incest, as set out in s. 155 of the Criminal Code, is having sexual intercourse with a person who is one of a listed group of relatives, which includes one’s child, to the defendant. Section 4(5) of the Code defines “sexual intercourse” as “complete on penetration to even the slightest degree, notwithstanding that seed is not emitted.” There is no requirement that the Crown prove an absence of consent: R. v. S. (M.) (1996), 1996 CanLII 17945 (BC CA), 111 C.C.C.(3d) 467 (B.C.C.A.). The mens rea of incest is that the defendant must know that the person with whom they are having sexual intercourse is in one of the enumerated blood relationships to them.

[89] I now proceed to assess the evidence, applying these legal principles, to determine whether the Crown has established the elements of the offences charged beyond a reasonable doubt.

B. Assessment of Defence Evidence

(1) Assessment of L.T.’s Evidence

[90] L.T. testified and unequivocally denied any sexual contact of any kind with his daughter. He equally unequivocally denied that he physically assaulted her. If I accept his evidence or am left in a state of reasonable doubt by it, I must acquit L.T. If I do not believe his evidence, and am not left in state of reasonable doubt by it, I must still ask myself whether, on the whole of the evidence I do accept, the Crown has proven L.T.’s guilt beyond a reasonable doubt.

[91] There were many reasons for concern with L.T.’s evidence. In addition to a number of specific concerns, which I will address further below, L.T. was an evasive and non-responsive witness. On numerous occasions, he did not answer the questions that were asked of him, particularly when he was challenged in cross-examination. Instead, he talked expansively but evasively around what was asked. On a number of occasions, I had to direct or exhort L.T. to answer what was actually asked of him. In some cases, I had to direct L.T. to answer the same question more than once, because he remained non-responsive and evasive even after my first direction to answer what was asked. I had to direct L.T. to listen to the questions that were being asked of him and answer them. Even with my direction and re-direction, L.T.’s answers often did not respond to the questions, and included irrelevant, unrelated, and self-serving details.

[92] I recognize that L.T. is likely not an experienced witness. He is likely unaccustomed to testifying in court. He had meaningful jeopardy when he testified. He would likely have been very nervous. He is an immigrant to this country, without status. Testifying in a formal court proceeding - his own criminal trial - in these circumstances would almost certainly have been at least daunting, if not outright frightening, for L.T.

[93] I also recognize that L.T. was testifying in Greek, through an interpreter. Language interpretation is necessarily an imperfect process. The Supreme Court recognized this in R. v. Tran, 1994 CanLII 56 (SCC), [1994] 2 S.C.R. 951, at p. 987, citing G.J. Steele, “Court Interpreters in Canadian Criminal Law” (1992), 34 C.L.Q. 218 at 242: “[e]ven the best interpretation is not “perfect,” in that the interpreter can never convey the evidence with a sense and nuance identical to the original speech. . . . The benefit of a doubt should be given to the witness.”

[94] I allow for how challenging it must have been for L.T. to testify, and I give him the benefit of the doubt arising from any failings of nuance in interpretation. But even with these considerations, I conclude that L.T.’s lack of responsiveness and evasions evidenced a lack of honesty. This was not an honest but nervous witness doing his best to provide forthright and truthful answers. It was clear to me, both in L.T.’s manner of testifying and in the content of his testimony, that he was a witness who was doing his best to hide, avoid, obfuscate, and try to get away with it.

[95] There were meaningful inconsistencies in L.T.’s testimony. Some of his evidence was fluid and self-serving. He overstated and exaggerated to achieve his objective of exculpating himself. What follows are some examples of this, how I have analyzed them, and why on the whole of the evidence I do not accept L.T.’s evidence and am not left in a state of reasonable doubt by it.

[96] L.T. repeatedly testified that he worked very long hours, seven days a week, and on holidays. He testified that he was out of the house every day for work between 4:30am and 11:00pm. He maintained that E.T.’s mother didn’t immediately start working when she arrived in Canada; that she initially only worked two days a week; that she injured her shoulder and was not working from mid-April 2017 until October 2018 and never once left the house during this period; and that when E.T.’s mother did start working and going out of the house, E.T. was taken to live with Mira. As a result, he said, between when E.T. came to Canada on December 24, 2016 and when the family stopped living together sometime before December 2018, he was never once alone with E.T. His point was that he never once had the opportunity to sexually assault her.

[97] This was an absolute position, which L.T. did not allow had any exceptions. In my view, L.T.’s evidence that he was never once alone with his young daughter over the course of almost two years did not accord with common sense or the experience of family life.

[98] I accept that L.T. worked long hours, and would have been away from his daughter much of the time. E.T. agreed that her father worked long hours. But E.T.’s mother also worked, at least some days and for some periods of time in the window covered by the indictment. The mother worked in Greek restaurants, and the evidence was that when she was working, it was often in the evening and at night. Even if E.T. was sometimes alone at night when both parents were working, or spending time with Maria T. and her family or Joanna D. and her family, it is inconceivable that E.T. and L.T. were never once alone together at home at night in almost two years. Indeed, E.T. testified that when her mother was working, her father watched her. She said her parents took turns caring for her. E.T.’s evidence on point made sense. Her father’s did not.

[99] There would have been nothing wrong with a father and his nine to 11 year old daughter passing an evening alone together when the child’s mother was out at work or otherwise occupied. It would have been normal for a father to watch television with his child and put her to bed. But L.T. maintained that he had never, not even once, done these things with E.T.

[100] When assessed alongside the inconsistencies and discrepancies in L.T.’s evidence in relation to his work schedule, his wife’s work, and his time with E.T., I find L.T.’s insistence that he was never alone with E.T. not to be credible. The firm, unyielding manner in which L.T. maintained that he was never ever alone with his daughter smacked of an exaggerated exculpatory position to be defended of all costs, not a recounting of the truth. In the context of a family with two working parents and a school-aged child, the truth on this point would have admitted of exceptions.

[101] The inconsistencies and discrepancies in L.T.’s evidence in relation to this evidence are significant in my assessment of his credibility. Here are some of them. L.T. testified:

• that he worked every single day, without exception, from about 4:30 a.m. until variously 10:00 or 11:00 p.m. or midnight or 1:00 a.m. He later testified that on the day Maria T. told his family that they had to move, he happened to come home from work at 8:00 p.m. At another point, L.T. testified that when he lived in the D. house, he would occasionally come home early enough to eat dinner with that family; and that sometimes he would come home to the D. residence at 6:00 or 7:00 or 8:00 p.m., take their dog out for a walk, and take E.T. to the supermarket to buy sweets. At yet another point, L.T. testified that when he lived at the third house, he would periodically pick E.T. up at Mira’s in the afternoons and take her to the park or to Serrano’s bakery; and also that at the second and third houses, he would take E.T. out when he came home at 8:00 or 9:00 p.m. L.T. also testified that when he was home in the morning, he would help George D. in the garden and then take E.T. out.

• that he worked every day without a break or holiday for three months. He later testified that he took December 24, 2016 off work to pick E.T. and her mother up at the airport. L.T. initially testified that he even worked on Christmas Day until 9:00 p.m. Later in his testimony, L.T. testified that he came home at 4:30 or 5:00 p.m. on Christmas Day and went out shopping for Christmas presents at that time.

• that he worked on weekends. He later testified that he was occasionally home on weekends. At yet another point, L.T. testified that every other weekend he came home early and would then help George D. in the garden.

• that after his wife’s injury, she was not able to care for herself. L.T. said he had to care for her, including bathing her. L.T. maintained that his long work hours did not change when his wife was debilitated. He maintained that he came home at midnight and then proceeded to bathe and care for his wife, and prepare the family’s meals. This was not an inconsistency in L.T.’s evidence, unlike the foregoing. While it is possibly true, it seems unlikely. It is implausible or improbable evidence, which I find difficult to credit.

• that from the time she arrived in Canada until she returned to work and started partying (likely in the fall of 2018), his wife never went out, and especially not at night. Not for groceries, not to see friends, not for any reason, ever, except for work in the limited windows in which she was working. Again, this was not an inconsistency in L.T.’s evidence. While it is possibly true, it seems unlikely. It is implausible or improbable evidence, which I find difficult to credit.

[102] When confronted with the inconsistency in his evidence about how late he worked on Christmas Day 2016, L.T. explained that many years had passed since the events at issue, and he had had many arguments with his wife over how much he was working. As a result, he said he did not remember exact times. I recognize that memory is fallible, and that the passage of time may erode memory for all witnesses, including sincere ones. However, in this instance, L.T.’s acknowledgement that he could not remember exact times stood in sharp contrast to his otherwise firm and unwavering assertions that he remembered dates and times with precision, and that he remembered working long hours every single day without exception.

[103] It is trite law that inconsistencies in a witness’ evidence may be relevant to their credibility: R. v. A.M., 2014 ONCA 769, 123 O.R. 536, at para. 12; R. v. G. (M.) (1994), 1994 CanLII 8733 (ON CA), 93 C.C.C. (3d) 347 (Ont. C.A.) at p. 354, leave to appeal ref’d, [1994] S.C.C.A. No. 390. But not all inconsistencies are of equal significance, as recognized in A.M. at para. 13:

Inconsistencies vary in their nature and importance. Some are minor, others are not. Some concern material issues, others peripheral subjects. Where an inconsistency involves something material about which an honest witness is unlikely to be mistaken, the inconsistency may demonstrate a carelessness with the truth about which the trier of fact should be concerned: G. (M.), at p. 354.

[104] The above inconsistencies in L.T.’s evidence about his hours and days of work, in and of themselves, would not be significant. Particularly not when considered against the backdrop of the memory lapses that are a natural product of the passage of time. On their own, inconsistencies in relation to the vagaries of L.T.’s work schedule would not be the kind of material issue about which an honest witness is unlikely to be mistaken years later. However, in the particular context of L.T.’s testimony, these inconsistencies are not so benign. They are significant because they put the lie to L.T.’s unwavering fixed position that he was never not working. He was, according to his own evidence, sometimes not working. He would therefore almost certainly have had opportunities to sexually assault E.T. The acknowledged presence of such opportunities might have had no, little, or some inculpatory evidentiary value. But in my view, L.T.’s steadfast determination to deny that he had ever had such opportunities when he certainly had, was significant. It meaningfully detracted from his credibility and reliability overall. That he refused to acknowledge this true state of affairs suggests a self-serving determination to advance an exculpatory position that is inconsistent with the truth.

[105] There were other concerning inconsistencies in L.T.’s evidence. One of them was in relation to the date of his wife’s return to work after she injured her shoulder. L.T. testified that his wife fell and broke her shoulder the day after they moved into the second house, on April 16 or 17, 2017. He initially said she did not return to work or leave the house at all until October or November 2018.

[106] Later in his testimony, L.T. explained that he had researched the date of the Danforth shooting online and learned that it had taken place on July 22, 2018. He testified that his wife was working at Christina’s restaurant on the date of the shooting, and had been working there for about a month at the time. He now testified that his wife had returned to work after her injury in or around May 2018.

[107] Later still in his testimony, L.T. again testified that his wife returned to work in October 2018. When challenged on the inconsistency in cross-examination, L.T. testified that his wife returned to work in August or September 2018.

[108] The first date for his wife’s return to work was given by L.T. in service of his point that she was always home over an extended period, such that he was never alone with E.T.

[109] The second date L.T. gave for his wife’s return to work was in service of his point that he could not have sexually assaulted E.T. on the date of the Danforth shooting at the second house. This is because, according to L.T., the Danforth shooting actually occurred when the family lived in the third house. But because the date of that shooting was July 22, 2018, and because his wife was working at Christina’s restaurant on that date and had been for a month, L.T. now had to change his story about when she returned to work.

[110] In my view, this was a demonstration of L.T. giving precise evidence with great confidence and certainty, in service of a position he wanted to advance, only to then subsequently give conflicting evidence, in service of a different position he wanted to advance. He testified to dates not because they were when he truly remembered events having happened, but because they happened to work in the narrative he was advancing. When a different date would better serve the narrative, L.T. changed his testimony. In this way, L.T.’s evidence was highly fluid, self-serving, and constantly changing in support of whatever exculpatory point he was making in the moment. There seemed to be little relationship between what L.T. said in evidence and the truth.

[111] Notwithstanding L.T.’s changing evidence about when many of the events at issue took place, he presented as very firm and certain of each date and time when he gave it in evidence. When challenged in cross-examination about his certainty, L.T. maintained that he did not keep records or notes of when things happened. He insisted that he did not research when things happened in preparation for trial (with the exception of researching the date of the Danforth shooting online). L.T.’s position was that, unaided, he simply remembered when the relevant events had happened with clarity.

[112] In my view, L.T.’s claimed certainty as to dates, with no notes or research to support it, strained credulity. By way of example, L.T. testified that he knew that he had moved out of the second house on April 15, 2018 because the move was one week after Greek Easter. L.T. claimed to recall at trial that Greek Easter in 2018 fell on April 9th. There was no reason for L.T. to have such a precise and specific memory that that was the date of Greek Easter in 2018. L.T. didn’t testify that he had any special reason for remembering it, other than that the subsequent allegations were a reason to remember. But the allegations were not made until the end of April, 2019, more than a year later. L.T. had no reason to remember the precise date of Greek Easter in 2018 more than a year later.

[113] I do not believe that L.T. would truly have had such an accurate memory of the date of Greek Easter in 2018 a year later when the allegations arose, without the benefit of notes, records, or resort to a calendar, and without any particular reason for remembering that precise date more than a year later. Equally, I do not believe that he would have had such an accurate memory at trial, more than four years later. Especially in light of L.T.’s many inconsistencies as to dates and times of which he had previously said he was certain. After the allegations arose, and/or in preparation for trial, L.T. must have looked at a calendar to figure out when Greek Easter fell in 2018. He lied when he said he did not research the date.

[114] There would have been nothing wrong with L.T. looking at a calendar, trying to piece together the timeline of relevant events after he learned of the allegations, and/or in preparation for trial. What was wrong was his clearly untruthful insistence that he had not done this. It spoke to an unsuccessful attempt by L.T. to curate his evidence to make himself appear to have a reliable and infallible memory. This, in turn, showed him to be an untruthful witness.

[115] This was but one example of a number of instances where L.T. was not truthful when he maintained that he had a clear memory unaided by notes, resort to a calendar, or other assistance.

[116] In fact, in cross-examination, L.T. ultimately admitted that he had had some other assistance in trying to remember the dates of living with Joanna D. L.T. initially maintained that he just remembered those dates. In cross-examination, he initially testified that he had not spoken to Joanna D. since he was criminally charged. When pressed further, he acknowledged that he had spoken to Joanna D. at her mother’s funeral. He then acknowledged that he spoke to Joanna D. after her mother’s funeral, and started to communicate with her more often at that point. L.T. finally admitted that he had spoken with Joanna D. about the sexual assault allegations, although not in detail, and about the dates of his residence in her family’s home. In my view, this put the lie to L.T.’s insistence that he simply remembered the dates. It was also an example of how L.T. was evasive and not forthcoming in his testimony.

[117] Another example of L.T. not being forthcoming appeared in his evidence about the Danforth shooting. As noted, L.T.’s evidence in-chief was that he could not have sexually assaulted E.T. in the second house on the night of the Danforth shooting. He maintained that neither he nor E.T. lived in that house at that time. However, in cross-examination for the first time, L.T. acknowledged that there was another, earlier, shooting on the Danforth. This earlier shooting did take place when the T. family lived in the second house.

[118] In other words, in service of his point that the third sexual assault could not have happened as described by E.T., L.T.’s evidence in-chief was partial, and potentially misleading. He clearly knew, as revealed in cross-examination, that there had been a shooting on the Danforth when he and E.T. lived in the second house. Yet he did not provide any evidence in-chief about that earlier shooting. His story for the court was only about one Danforth shooting, the later one. L.T. provided this partial evidence because he wanted the court to conclude that E.T.’s evidence about the third sexual assault must have been wrong. An honest and forthright witness committed to telling the truth would not have omitted such important information, and would have told the court about both shootings. This was no harmless omission, brought on by forgetfulness in the moment or the contours of the questions asked or not asked in-chief. The point of L.T.’s evidence in-chief was that he could not have sexually assaulted E.T. on the night of the Danforth shooting in the second house. But the true state of affairs was that he could have sexually assaulted E.T. on the night of a Danforth shooting in the second house. I conclude in these circumstances that L.T. chose not to give evidence of the first shooting because he did not want the court to be aware of it. This further grounded my conclusion that L.T. was an evasive witness who was not forthcoming, and that he was not a credible or reliable witness.

[119] For the foregoing reasons, I do not believe L.T.’s evidence, and am not left in reasonable doubt by it.

(2) Assessment of the Roommate’s Evidence

[120] L.T.’s former roommate, Nantas, testified for the defence. His evidence, if accepted, is exculpatory.

[121] L.T. testified that he ran into Nantas once on the street shortly after he was charged, and then met with him again the day before Nantas testified at trial. He said he wanted to reach out to his former roommate after E.T. mentioned the man’s name in court. L.T. maintained that he did not ever discuss the details of the allegations or the case with Nantas, that he merely asked Nantas to testify, and had Nantas meet with his lawyer.

[122] Nantas also testified that he had run into L.T. on the street about a month after L.T. was released on bail. He said L.T. told him at that time that he was on bail and that the case was going to proceed. L.T. told him that E.T. said that Nantas was there when one of the alleged incidents occurred, and that E.T. said his name in court. Nantas maintained that he had not had any other conversations with L.T. since, and that there was no other discussion of the details of this case. In cross-examination, the Crown questioned Nantas as to whether he had had a conversation with L.T. after the November 2022 trial dates when the complainant testified. He maintained that he had not.

[123] It is clear to me that L.T. and Nantas discussed this case closer in time to the trial than the meeting one month after bail to which Nantas testified. Both men referred to E.T. having raised Nantas’ name in court. This could only have happened when E.T. testified at trial or when she testified at the preliminary hearing in this matter. The former took place in November 2022, the latter in September 2020. Either way, this was much later than one month after L.T. was released on bail in the spring of 2019. Both men said they had met on the street not long after L.T. was charged. I am confident that they did. But I am equally confident that they met or at least talked again, either after E.T. testified at the preliminary hearing or after she testified at trial. Indeed, L.T. said that they spoke the day before Nantas testified at trial. Nantas, however, steadfastly denied that he had ever spoken with L.T. after that initial meeting in the spring of 2019.

[124] The evidence that the two men discussed E.T. mentioning Nantas’ name in court supports a finding that they spoke about the case after their initial run-in on the street in the spring or summer of 2019. I find that they did so shortly before Nantas testified at trial. Nantas’ denial that this conversation took place leads me to conclude that he was not being truthful. He could not have forgotten that he had spoken to L.T. so recently. I find that Nantas denied that a recent conversation with L.T. took place because he did not want me to conclude that his testimony had been influenced by such a discussion.

[125] Nantas was trying to help L.T., who was his friend, when he testified. He maintained that they were roommates but not friends. By contrast, L.T. explained that Nantas was a good friend. E.T. also testified that her father’s roommate was his friend. The evidence revealed that two men lived together, drank coffee and smoked cigarettes together, cooked together, occasionally went for a drink at a café or bar together, moved to Niagara Falls together and continued to live together there. By all accounts, Nantas and L.T. were spending time together, drinking coffee and talking in the kitchen when E.T. was in their home and the second alleged physical assault occurred. These were not strangers cohabiting in the same dwelling, who kept to themselves. L.T. and Nantas were, by any conventional measure, friends. L.T. testified that this was so, but Nantas maintained that it was not. In my view, Nantas did not want me to conclude that his testimony was influenced by his friendship with L.T., so he denied that they were friends.

[126] I further find that L.T. and Nantas discussed E.T.’s allegations that involved Nantas. L.T. did not testify that he had told Nantas that E.T. mentioned his name in court, but he must have done so. Nantas knew that she had. Nantas testified that L.T. told him that E.T. said he was present when one of the incidents occurred. L.T. did not testify to having shared this detail with Nantas, but he must have done so. Nantas knew that she had. In these circumstances, it is clear that the two men discussed at least some of the details of the allegations. It would have been natural for L.T., in sharing the above-noted details, to have asked his friend what he remembered from the times E.T. visited their home. It would have been natural for the two men to have tried to recall or reconstruct what had transpired from what they both remembered. Their denial of having done so does not accord with common sense or experience. In these circumstances, I do not accept that the two men did not discuss any details of the complainant’s allegations. I find that they did.

[127] Nantas’ denial of a recent conversation with L.T., his denial that he and L.T. were friends, and his denial that he and L.T. discussed any details of the allegations revealed that Nantas was a cagey witness attempting to hide the truth to convey that he was objective and uninfluenced. He was not truthful on these points. This led me to the opposite conclusion from what he intended: Nantas’ deceptive evidence led me to conclude that his evidence was neither objective nor uninfluenced by L.T. As a result, Nantas was not a credible or reliable witness. I do not accept his evidence and am not left in a reasonable doubt by it.

[128] I do not accept that E.T. never slept over at the Pape house when Nantas lived there. I find that Nantas was lying when he gave this evidence, to help his friend. And even if I were to accept that Nantas sincerely believe that E.T. never slept over, which I do not, his testimony admitted of the possibility that he was mistaken. He testified that E.T. could have stayed overnight at the Pape house when he slept over at his brother’s, which he acknowledged he did at times. It also admitted of the possibility that E.T. could have been in L.T.’s room at the Pape house without him knowing.

[129] To be clear, I not reversing the burden of proof in considering that Nantas’ evidence allowed for the possibility that E.T. did sleep over. I am very mindful that it is the Crown’s burden to prove that the alleged offences occurred beyond a reasonable doubt. That E.T. might have been able to sleep over without Nantas knowing, on its own, would not be adequate to prove beyond a reasonable doubt that she did. Especially in light of his evidence that she did not. But in this case, I also have E.T.’s evidence on point, which as I will explain further below, I accept. In any event, I do not believe Nantas’ evidence that E.T. never slept over, and I am not left in reasonable doubt by it.

[130] I also do not accept Nantas’ evidence that L.T.’s contact with E.T. in the second alleged physical assault was accidental. L.T.’s own evidence on this point was at odds with that given by Nantas. Nantas testified that L.T. swung his left hand across his chest to the right to prevent E.T. from taking her phone back. He said that E.T.’s fingers connected with L.T.’s elbow or forearm accidentally, and she got hurt. By contrast, L.T. testified that he yelled and pushed E.T.’s hand when she tried to get her phone back from him. In other words, while Nantas said E.T. was hurt accidentally, L.T. described a push – an intentional touching. On L.T.’s own evidence, this was no accident. In my view, Nantas’ styling of the phone incident as an accident was an untruth, designed to help his friend. I do not accept his evidence on point and am not left in reasonable doubt by it.

(3) Summary of Assessment of Defence Evidence

[131] For the foregoing reasons, I do not believe the defence evidence, and am not left in reasonable doubt by it. But that does not end the inquiry. I must now turn to determine whether, on the whole of the evidence I do accept, the Crown has proven L.T.’s guilt beyond a reasonable doubt.

C. Assessment of Prosecution Evidence

[132] E.T. was the only witness for the prosecution. Since I have rejected the defence evidence and am not left in reasonable doubt by it, the Crown’s case stands or falls on E.T.’s evidence.

[133] The defence asked me to find that E.T. was not credible or reliable because of what it said were significant discrepancies and inconsistencies in her evidence; her selective and incremental disclosure; her ongoing contact with L.T.; and the manipulative and tainting influence of E.T.’s mother who wanted to poison her against L.T.

(1) Inconsistencies, Discrepancies, Incremental Disclosures

[134] There were a number of inconsistencies and discrepancies in E.T.’s evidence. She made some incremental disclosures. Her inconsistencies, discrepancies, and incremental disclosures included the following:

• E.T. only disclosed three incidents of sexual assault in her first and second police statements and at the preliminary hearing. It was only at trial that she gave evidence of four sexual assaults. When confronted at trial with the fact that she had never before spoken of four sexual assaults, E.T. acknowledged that she had not previously disclosed the second incident at the second house (which was the third sexual assault, the one she said occurred on the night of the Danforth shooting). E.T. explained that she was scared when she talked to police. She said her English was not good, and that she was confused as to how to explain things. She said memories were continuing to come back to her.

• In a similar vein, E.T. did not mention the Danforth shooting as the time when a sexual assault occurred in her first police statement or at the preliminary hearing. The first time she situated a sexual assault in time with reference to the Danforth shooting was in her second police statement on October 21, 2021. When confronted with this omission, E.T. explained that she did not want her mother to find out about some things. She was afraid of being beaten by her mother. E.T. said she was afraid of being abused by her mother even after she went to the police.

• In her first statement to police, E.T. did not say that she had disclosed the first sexual assault to her mother the morning after it happened, or that her mother then checked her, saw redness in her vagina, and confronted her father. E.T. testified to this early contemporaneous disclosure to the mother at the preliminary hearing, and spoke of it in her second police statement and at trial. She was confronted at trial with her failure to mention it in her first police statement. E.T. explained that her mother had told her not to tell police. She said she was afraid of being beaten if she told police about things her mother had warned her not to disclose. She said her mother was all she had. She was afraid. So she followed her mother’s instruction not to speak of the early disclosure to police in her first statement.

• In her first police statement, E.T. did not mention her mother working. She did not say that any of the alleged sexual assaults occurred when her mother was out of the house for work. At trial, E.T. explained this omission by saying that her mother had told her not to tell police that she was working. E.T. said that they were new to Canada. Her mother was not supposed to work in this country, and was concerned that she could get into trouble for working here. E.T. said her mom was abusing her. She was afraid that if she told police her mother was working, she would be beaten.

• E.T. was not certain as to whether her mother was out of the house at the time of the first sexual assault because she was working or because she was at the supermarket.

• In her first police statement, E.T. said that L.T. touched her vagina in the first sexual assault. At trial, E.T. testified that he did not. When confronted with this inconsistency, E.T. explained that in the first police statement when she said L.T. touched her vagina, she was actually talking about the second sexual assault. She said she was going too fast when she spoke to police the first time. She was trying to make her statement and get out of there.

• E.T. testified at trial that L.T. sexually assaulted her several times over the course of the night on the fourth occasion, when she slept over at his house on Pape. In her police statements, she said she looked at her phone to see the time contemporaneously during that night. At trial, E.T. testified that she was not sure of whether she picked up her phone various times between the incidents. She also testified that she did not pick up her phone to see the time until the sexual assaults stopped, which was at 3am. E.T. said that she messed up when she told police she had picked up her phone earlier than 3am that night. She explained the discrepancy by saying that her English was terrible when she first spoke to police.

• At the preliminary hearing, E.T. testified that on the night of the fourth sexual assault she had gotten up to go to the bathroom. By contrast, at trial, E.T. testified that she did not leave L.T.’s room during the night or between incidents of sexual assault. She said she did not leave the room until the morning. She explained this discrepancy by saying that when she said testified at the preliminary hearing that she got up to go to the bathroom, she meant she got up in the morning. E.T. explained that she could not recall whether her father had had a roommate at the time, but if he did, she would not have wanted to go to the bathroom in the night and risk waking the roommate.

• E.T. testified that the first sexual assault happened 20 days after she arrived in Canada. The defence argued that, on all of the evidence, this could not have been so. By all accounts, E.T. and her mother arrived in Canada on December 24, 2016. L.T. left Toronto for St. Mary’s on January 2, 2017, ten days after their arrival. He did not return to Toronto until around March 15, 2017. There were no allegations of sexual assault in St. Mary’s. E.T. maintained that she thought the first incident occurred 20 days after her arrival, but said that was more or less when it happened.

[135] I have carefully considered the inconsistences and discrepancies in E.T.’s evidence, and her incremental disclosure. My consideration was informed by the Supreme Court’s guidance in relation to the assessment of the evidence of children in B.(G.) and W.(R.). These cases stand for the following important propositions:

• “[i]t may be wrong to apply adult tests for credibility to the evidence of children”: W.(R.) at p. 133. Judges “should take a common sense approach when dealing with the testimony of young children and not impose the same exacting standard on them as it does on adults”: B. (G.) at pp. 54-55;

• “details important to adults, like time and place, may be missing from . . . [children’s] recollection” without adversely reflecting on their credibility: W. (R.) at pp. 133-134; “a flaw, such as a contradiction in a child’s testimony should not be given the same effect as a similar flaw in the testimony of an adult. . . . 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”: B. (G.) at pp. 54-55; W.(R.) at p. 134; with respect to testimony about “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”: W.(R.) at p. 134;

• “this is not to say that the courts should not carefully assess the credibility of child witnesses” or “lower the standard of proof . . . when dealing with children.” Rather, “[t]he 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”: B. (G.) at p. 54 – 55.

[136] I have come to the conclusion that E.T.’s evidence was consistent across all accounts in relation to her core allegations of sexual and physical assault. She consistently said that on the first occasion, L.T. had come into bed with her at night when her mother was out, touched her sexually, that she then felt wetness, and that she found a small puddle next to her bed the following morning. She consistently said that on the following occasions, L.T. had come into bed with her at night when her mother wasn’t there; that he had pulled down her pyjamas although she tried to resist his attempts to do so; and that he had sexually assaulted her by touching her vagina and breasts, by licking his fingers before touching her vagina, and by inserting his penis partway into her vagina, which was painful for her. She consistently said that on the final occasion, L.T. had sexually assaulted her in this way multiple times in the same night. E.T. also consistently said that L.T. had choked her one on occasion and that he had slapped her across the face on another.

[137] The inconsistencies, discrepancies, and incremental disclosures that presented in E.T.’s accounts were all in relation to peripheral issues that did not undermine her core evidence. They were in relation to the kinds of precise details that a child might not notice, remember, or consider important, without indicating that she “misconceived what happened to . . . [her] and who did it”: B. (G.) at pp. 54-55. E.T.’s explanations for them made sense in the particular circumstances of her life, without compelling a conclusion that she was not credible or reliable. Some of the inconsistencies and discrepancies would also have been a normal product of the passage of time and the natural process of forgetting, without adversely impacting on E.T.’s credibility or reliability.

[138] E.T. was a child at all times relevant to the allegations before the court. She was between nine and 11 years of age when the incidents giving rise to the charges were said to have taken place. She was also a child both times she made statements to the police, and when she testified at the preliminary hearing and at trial.

[139] As a child, E.T. would not necessarily have noted or remembered if her mother was out of the house at the time of the first incident because the mother was working or because she was at the supermarket. For her young self, what would have mattered was that her father touched her sexually when her mother was out. And that’s what she noted and remembered. As a child, E.T. would not necessarily have noted or remembered whether she looked at her phone multiple times over the course of the night of the fourth sexual assault or just once. She would not necessarily have noted or remembered whether she went to the bathroom during that night, or only the following morning. What would have mattered to her as a child was that her father sexually assaulted her when she was sleeping over at his house. And that’s what she noted and remembered. As a child, E.T. would not necessarily have had a firm enough sense of chronological time to accurately gage whether the first incident happened 20 days after she arrived in Canada, or more like ten days after her arrival. These are the kinds of details that might be important to an adult, but that may be missing from the notice or recollection of a child: W. (R.) at p. 133. They are not material inconsistencies about which an honest witness is unlikely to be mistaken, or which demonstrate a carelessness with the truth: A.M., at para. 13. Particularly not when that witness is a child.

[140] Moreover, when E.T. gave her first police statement, she did not speak much English. By all accounts, she was regularly physically assaulted by her mother until she was removed by CAS and placed into foster care. No one took issue with E.T.’s evidence that her mother had questioned her about her allegations before she spoke to police, or that the mother had told her not to say certain things to the police. On numerous occasions, across all of her accounts, E.T. said that she was “a little bit confused,” and “a little bit scared.”

[141] Against this backdrop, E.T.’s failure to mention some details in early accounts, and her explanations for these omissions, made sense. E.T. acknowledged that she did not disclose that there were four occasions on which she was sexually assaulted until trial. Before trial, she had only ever spoken of three sexual assaults. E.T. explained that she had earlier failed to refer to one of the incidents because she was scared when she talked to police, because her English was not good, because she was confused as to how to explain things, and because memories continued to return to her over time. E.T. also acknowledged that she did not mention the night of the Danforth shooting as the time when a sexual assault occurred in her first police statement or at the preliminary hearing. She explained this omission by saying that she was afraid of her mother and did not want her mother to find out about some things. In her second police statement,[2] E.T. indicated that once she was removed from her mother to foster care, she felt she could open up more and tell her whole story.

[142] Applying a common sense approach to the evidence of this child, as directed by B.(G.) and W.(R.), in the circumstances of this case, E.T.’s earlier failure to mention one of the incidents and to peg one of the incidents to the same night as the Danforth shooting did not detract from her credibility or reliability overall. As a matter of common sense, a child who did not have a good command of English, whose mother had questioned her extensively and told her what to say and not to say before taking her to police, and who was afraid of being beaten by her mother if she said the wrong things to police, might well be scared and confused when making a police statement. She might well have difficulty fully expressing herself. She might well omit mention of an incident, or a detail that would help locate an incident in time. Not because she was lying or because she was unreliable. But because she was scared she might say the wrong thing, get her mother into trouble, and get beaten by her mother. Her subsequent incremental disclosures also made sense: she was older, more fluent in English, and no longer subject to abuse by her mother. In such circumstances, these omissions and subsequent disclosures did not make E.T. unworthy of belief, or an unreliable historian or witness.

[143] I understand other omissions and subsequent disclosures by E.T. in a similar light. In her first police statement, E.T. did not mention that she had disclosed the first incident to her mother contemporaneously, or that her mother was working. Her explanations for why she excluded this information made sense. Her mother, afraid of getting into trouble with the law for working illegally and for failing to protect E.T., told her not to mention these things. E.T. was afraid of being beaten by her mother, the only parent she had in her life at the time, if she did not comply. So she complied. These concerns no longer existed after E.T. was removed from her mother’s care. In this context, omissions and incremental disclosures did not make E.T.’s testimony unbelievable or unreliable.

[144] I accept E.T.’s explanation for the inconsistency between her first police statement and her evidence at trial in relation to whether L.T. touched her vagina during the first sexual assault. In the police statement, E.T. said he did, whereas at trial she said he did not. She explained that when she told police that L.T. had touched her vagina in the first incident, she was actually talking about the second incident. She said she was rushing to give her statement because she wanted to get out of the police station.

[145] In reviewing the first police statement, it is clear to me that E.T. was trying to tell her story quickly. She endeavoured to give a brief outline of what had happened on each occasion and then move on to the next. The interviewing officers were attempting to elicit more information about each incident by asking questions. This had the effect of slowing E.T. down and taking her back to parts of her story that she had already spoken about and was trying to move on from. In the part of this first police statement where E.T. agreed that L.T. had touched her vagina on the first occasion, she had already very briefly spoken about the first sexual assault and moved on to speak about a subsequent allegation. Police questioning took her back to the first sexual assault.

[146] A misunderstanding as to which incident she was being asked about was perfectly understandable given the way this interview unfolded. E.T. was a child, a newcomer to Canada, who repeatedly told police she was scared and confused. E.T.’s limited English language skills and interpretation by a Greek and English-speaking officer served to exacerbate the potential for confusion.

[147] In these circumstances, the apparent inconsistency about whether L.T. touched E.T.’s vagina in the first incident was not an inconsistency. It was an understandable misunderstanding on E.T.’s part about which incident she was being asked about. It did not detract from her credibility or reliability.

(2) E.T.’s Ongoing Contact with L.T.

[148] The defence submitted that I am required to consider all of the evidence in this case, including E.T.’s post-offence conduct, in assessing her credibility and reliability. In particular, defence counsel argued that E.T.’s participation in ongoing contact with L.T. after and between the alleged physical and sexual assaults was relevant to her credibility and reliability.

[149] Our courts have “rejected stereotypical assumptions of how persons (particularly children) react to acts of sexual abuse”; and held as a result that “there is no inviolable rule on how people who are the victims of trauma like a sexual assault will behave”: D.D., at p. 305. Because no assumptions can be made about how a victim of sexual assault will behave, no inferences adverse to a complainant’s credibility can be drawn from a perceived lack of avoidance of the perpetrator, or from a perceived lack of change in the complainant’s behaviour: A.R.J.D. (ABCA), at para. 64. It is a legal error, dependent on impermissible myth or stereotype, to conclude that “avoidant behaviour was ‘expected’ . . . and . . . [that] the absence of such behaviour negatively impacted the complainant’s credibility”: A.R. J.D. (ABCA), at para. 69.

[150] Defence counsel acknowledged that, as a matter of law, there are no inviolable rules about how victims of sexual assault will behave. Defence counsel acknowledged that, as a matter of law, I may not rely on myths or stereotypes in assessing credibility. However, the defence maintained that I must consider all of the evidence in the case in making credibility assessments, including evidence of E.T.’s willing contact with L.T. after and between the alleged offences. In support of this position, defence counsel relied on the summary conviction appeal decision of Copeland J. (as she then was) in R. v. Solomon, 2020 ONSC 2640 at paras. 42 – 44 and 54:

…As with any witness in any type of case, the evidence of a complainant in a sexual assault trial must be assessed rationally and objectively in the context of all the evidence at trial, and with regard to the burden of proof.

The recognition that not all complainants will fight back or cry out in response to a sexual assault, and that complainants may react in different ways to a sexual assault, and that assuming either of those things is a rape myth, does not have the effect of prohibiting a trial judge from assessing, based on the evidence before them, whether or not they accept as credible a complainant’s assertion that they complied with a request for sex out of fear, and whether that assertion is consistent with the whole of the evidence, or not. In assessing credibility of the evidence of a complainant (or of any witness), a trial judge must consider the totality of the evidence, “including any ambiguous or contradictory conduct by the complainant”: R. v. Ewanchuk, 1999 CanLII 711 (SCC), [1999] 1 S.C.R. 330, at paras. 29-30; D.D., at paras. 60 – 65; R. v. Holland, 2020 ONSC 846, at para. 89.

The effect of this is that sometimes evidence may be properly relevant to an issue at trial, or to credibility, despite the fact that if used in a different way, it might be said to involve engaging in prohibited use of rape myths. To assess whether a trial judge has engaged in impermissible reasoning, one must consider the particular evidence, and the particular use of it by the trial judge, in the context of the evidence and issues at trial.

As I have noted, the recognition that complainants are not required to raise a hue and cry, and that complainants may react in different ways to a sexual assault requires that trial judges employ care in the inferences they draw in relation to whether a complainant’s actions or inactions are consistent or inconsistent with their evidence. But it does not render a complainant’s actions or inactions irrelevant for the purposes of assessing credibility.

[151] I accept that a sexual assault complainant’s conduct may be relevant to her credibility in the particular context of the evidence and issues at trial. But that relevance may not be through reasoning from impermissible myth or stereotype. If a trial judge is to properly consider a complainant’s conduct in relation to their credibility, it must be because that conduct is relevant to some issue that does not require the drawing of inferences from myths or stereotypes. By way of example, in Solomon, the trial judge considered that the complainant’s conduct was relevant to her credibility in ways the summary conviction appeal judge held were relevant and responsive to the live issues at trial before him, and that did not depend on stereotypes or rape myths: Solomon, at para. 45. Justice Copeland explained why the trial judge’s reliance on the complainant’s conduct was properly relevant to her credibility in Solomon at para. 49 thus:

It is clear from the trial judge’s reasons . . . that he is not relying on any stereotypes about what women who invite men up to their apartments want (which would be impermissible reasoning). Rather, he is assessing that he has some concern about the credibility of the complainant’s evidence that she invited the respondent up in order for him to wait for his cab, since it would take some time to take the elevator up to the 43rd floor, and if the purpose was waiting for a cab or an Uber to arrive, it would appear to make more sense to wait in the lobby.

[152] In other words, in Solomon, the trial judge found the complainant’s evidence that she invited the defendant up to her apartment to wait for an Uber to be unbelievable in the circumstances of that case. He was entitled, with the appropriate self-direction not to reason from myth or stereotype - which he gave himself - to consider whether her actions in inviting the defendant up to her apartment were consistent with her evidence that she consented out of fear in the context of all of the evidence: Solomon, at para. 55.

[153] I asked defence counsel how E.T.’s post-offence conduct in having continued contact with L.T. was relevant to her credibility in ways that did not depend on impermissible myths and stereotypes. He urged me to consider E.T.’s ongoing contact with her father alongside all of the other evidence in the case, as relevant to her credibility. Defence counsel maintained that E.T.’s evidence in relation to her ongoing contact with her father, and her desire for it, was inconsistent. This, he argued, was relevant to her credibility. He noted that E.T. had said she never saw her father again after the final physical and sexual assaults, and then contradicted herself by saying that she subsequently went with him to Serrano’s Bakery and slept over at his house again the night before he left for Niagara Falls. He further noted that E.T. testified that she both wanted and did not want to have continued contact with L.T.; that she both loved him and hated him. In making this submission, defence counsel maintained that E.T. was lacking in credibility and reliability because she was inconsistent and changed her story, not because she did not avoid contact with L.T.

[154] I do not consider E.T.’s evidence about whether she did or did not see L.T. again after the final assaults to be a material inconsistency about which an honest witness is unlikely to be mistaken. Again, applying criteria appropriate for the evidence of a child established in B.(G.) and W.(R.), the precise timeline of when E.T. did or did not see L.T. did not adversely impact on her credibility. Whether her Serrano’s visits with L.T. and her other sleepover at his home happened after the last of the assaults or before them is a detail that a child may not note or remember with precision. This did not adversely impact on E.T.’s credibility. Her core allegations of sexual and physical assault were consistent throughout.

[155] Nor do I consider L.T.’s evidence that she both wanted and didn’t want to have contact with her father, and that she both loved and hated her father, to be inconsistent. She was a child, and it was natural for her to love her father and want contact with him, even if he had harmed her. She loved him and wanted contact with him as her father, and hated him and did not want contact with him for what he had done to her. There is no credibility-harming inconsistency in the expression of these conflicting feelings in the context of this complicated father-child relationship. In fact, that E.T. could experience and communicate these complex and seemingly incompatible feelings spoke to her credibility and reliability.

[156] I do not agree that there were material inconsistencies in E.T.’s evidence about her post-offence contact with L.T. I cannot draw any inferences against her credibility from it.

[157] What remains is the defence request that I consider the impact of E.T.’s ongoing contact with L.T. on her credibility in the context of the evidence as a whole. With respect, the defence was not able to articulate any specific mechanism of relevance for E.T.’s conduct after and between the offences in having contact with her father that did not depend on impermissible myths and stereotypes. This case is not like Solomon, where the complainant’s conduct in inviting the defendant into her apartment spoke to a specific live issue in the case that did not depend on a myth or stereotype: whether the complainant was telling the truth when she said she consented out of fear. Here, there is no such specific live issue to which E.T.’s post-offence contact is relevant that does not depend on a myth or stereotype. Defence counsel could not articulate one. Here, the only way in which this evidence could be relevant to E.T.’s credibility would be through an inference that she would not have had ongoing contact with L.T. if he had sexually and physically assaulted her. This is not an inference I am prepared, or permitted, to make. There are no inviolable rules about how a victim of sexual assault will behave. For this reason, it is an error of law to conclude that the absence of avoidant behaviour negatively impacted on the complainant’s credibility: A.R.J.D., at para. 69. I cannot and do not conclude that E.T.’s post-offence contact with L.T. has any bearing on her credibility here.

[158] Earlier in these reasons, I found that E.T.’s explanations for her incremental disclosures were plausible, and that her incremental disclosures did not adversely impact on her credibility. I hasten to add that because there is no inviolable rule about how a sexual assault victim will react, it cannot be assumed that delayed disclosure or selective or incremental disclosure negatively impact on a complainant’s credibility: D.D. at p. 304; R. v. D.P., 2017 ONCA 263, at para. 31.

(3) Influence and Tainting by E.T.’s Mother

[159] In the context of an acrimonious separation and divorce and the stresses of immigrating to Canada, the evidence suggested that E.T.’s mother hated L.T. and attempted to poison E.T. against him. The mother attempted to be a controlling force in E.T.’s life, and even to influence the content of her statements to police and her evidence at trial. E.T. acknowledged that her mother and her mother’s friends had questioned her closely, and attempted to influence what she would tell police, before she made her first statement. E.T. acknowledged that she omitted certain details from her early accounts because her mother had told her to, and because there were things she did not want her abusive mother to know. She was afraid of being beaten by her mother.

[160] The defence asked me to find that E.T. had been poisoned against L.T. by her mother’s vitriol; that her evidence was influenced and tainted accordingly; and that this raised a reasonable doubt as to whether the offences occurred.

[161] By the time E.T. testified at trial, she had been in foster care for more than three and a half years. She was no longer under her mother’s influence and control. She was in therapy, and had a positive and supportive relationship with her foster mother. E.T. forcefully asserted that her allegations were true. She maintained that what she told police in her first statement was what she had told her mother and her mother’s friends when they subjected her to questioning, which was the truth. She strongly asserted that she had testified to the truth at trial, and that she had rejected her mother’s efforts to control what she said. E.T. presented at trial as an older child, a teenager, who had overcome much hardship and developed insight and awareness. She was proud of the hard-won gains she had made. She was highly emotional at times when she testified, but she insisted that she was in court to tell the truth about what happened to her. She was unshaken in cross-examination.

[162] E.T. was credible and reliable. I believe her evidence. I find, despite her mother’s efforts to poison her against L.T. and to manipulate and control her story, that E.T. told the truth as she lived it and remembered it.

(4) Summary of Assessment of Prosecution Evidence

[163] For the foregoing reasons, I accept E.T.’s evidence. I am satisfied, on the basis of the evidence I accept, that the Crown has proven L.T.’s guilt of the offences on which he was arraigned beyond a reasonable doubt.

D. Assessing Whether All Elements of the Offences Have Been Proven Beyond a Reasonable Doubt

(1) Sexual Assault

[164] L.T. touched ET’s breasts and vagina and penetrated her vagina with his penis. The actus reus of sexual assault is made out because this was unwanted, intentional, physical contact that was objectively sexual in nature. Consent is not available as a defence because E.T. was under 16 years of age at the time of the sexual assaults: s. 150.1(1) of the Criminal Code. In any event, E.T.’s evidence made clear that she did not consent.

[165] The elements of the offence of sexual assault have been proven beyond a reasonable doubt.

(2) Sexual Interference

[166] L.T. directly touched E.T.’s body with his hands and his penis for a sexual purpose when she was under 16 years of age. Consent is not available as a defence because E.T. was under 16 years of age at the time of the sexual interference: s. 150.1(1) of the Criminal Code. In any event, E.T.’s evidence made clear that she did not consent.

[167] The elements of the offence of sexual interference have been proven beyond a reasonable doubt.

(3) Assault

[168] L.T. assaulted E.T. by choking her and by slapping her across the face. These were both voluntary direct applications of intentional force to E.T. by L.T., without her consent.

[169] I do not accept that E.T. confused the assault by her mother when she punched E.T. in the stomach with an assault by L.T. where he grabbed her by the throat. I do not accept L.T.’s evidence that he did not grab ET by the throat, and am not left in reasonable doubt by it. I accept E.T.’s evidence that L.T. grabbed her by the throat. This is sufficient to satisfy me beyond a reasonable doubt that L.T. assaulted E.T.

[170] I reject and am not left in reasonable doubt by L.T.’s evidence in relation to the second assault, which occurred after the argument over E.T.’s phone, that he did not slap E.T. but only yelled at her and pushed her hand. I also reject and am not left in reasonable doubt by Nantas’ evidence that E.T.’s fingers accidentally connected with L.T.’s arm. These two exculpatory versions of what transpired were inconsistent with each other and I do not accept either of them. In any event, even if L.T. only pushed E.T.’s arm as he testified, this would still constitute an assault. Even non-consensual relatively minor force is an assault unless some defence applies: Palombi, at para. 34. It is not a defence to assault that L.T. did not consider a push of E.T.’s hand to be an assault. No other defence was advanced.

[171] I accept E.T.’s evidence that L.T. slapped her face. This is sufficient to satisfy me beyond a reasonable doubt that L.T. assaulted E.T.

(4) Incest

[172] L.T. committed incest by having sexual intercourse with his biological daughter, E.T. The actus reus of incest is made out because, as admitted by the defence, E.T. is L.T.’s biological daughter. Section 4(5) of the Criminal Code defines sexual intercourse as “complete on penetration to even the slightest degree, notwithstanding that seed is not emitted.” L.T. partially penetrated E.T.’s vagina with his penis. This satisfied the statutory definition of sexual intercourse. The mens rea of incest is made out because L.T. knew that the person he was having sexual intercourse with was his daughter.

[173] I reject and am not left in reasonable doubt by L.T.’s evidence that he did not commit any sexual offences against L.T. I accept E.T.’s evidence that her father penetrated her vagina with his penis. This is sufficient to satisfy me that the offence of incest has been proven beyond a reasonable doubt.

IV. DISPOSITION

[174] For the foregoing reasons, on the basis of all of the evidence that I do accept, I find that the Crown has proven beyond a reasonable doubt that L.T. is guilty of one count of sexual assault, one count of sexual interference, one count of assault, and one count of incest.

[175] Convictions will be entered on counts one, two, eight, and nine on the indictment.

J. R. Presser J.

Released: December 21, 2023

COURT FILE NO.: CR-20-10000383

DATE: 20231221

ONTARIO

SUPERIOR COURT OF JUSTICE

HIS MAJESTY THE KING

– and –

L. T.

Defendant

REASONS FOR JUDGMENT

J. R. Presser J.

Released: December 21, 2023

[1] R.S.C. 1985, c. C-46.

[2] Recall that both police statements were admitted in evidence at trial for the truth of their contents under s. 715.1 of the Criminal Code.