SUPERIOR COURT OF JUSTICE - ONTARIO
COURT FILE NO.: CR-125/23
DATE: 2023 12 21
RE: His Majesty the King
AND:
D.R.
BEFORE: M.T. Doi J.
COUNSEL: S. Burton, for the Crown
E. Ulhmann, for the Defendant
HEARD: November 27-30, 2023
By order made under ss. 486.4(1) of the Criminal Code, information that may identify the person described in these reasons as the complainant or as a witness may not be published, broadcasted or transmitted in any manner. This judgment complies with the restriction and may be published.
REASONS FOR JUDGMENT
Overview
[1] The accused, DR, stands charged with one count of sexual interference and one count of sexual assault, contrary to ss. 151 (Sexual interference) and 271 (Sexual assault) of the Criminal Code, RSC 1985, c. C-46, in respect of incidents that allegedly occurred between January 1, 2019 and February 28, 2021. The complainant, AT, is DR’s step-daughter. AT claims that she was about 11 years old when the incidents first began.
Background
[2] DR previously shared a relationship with MT, who is AT’s mother. After the relationship ended around 2016, MT regularly brought AT and her younger step-brother, DVR, to visit DR at his mother’s home in Malton. AT and DVR regularly stayed over at the paternal grandmother’s home on alternating weekends. Around 2019, DR met DE and re-partnered. Afterwards, AT and
DVR regularly went to DE’s home in Cambridge to share weekend parenting visits with DR who was residing there. To facilitate the visits, MT regularly drove AT and DVR to the grandmother’s home on alternating Fridays. On Sundays, DR would return the children to MT’s home.
[3] Periodically, DR would leave DE’s home after an argument. DR would then stay at his mother’s home before returning to DE’s home to resume their relationship. This occurred on several occasions during their relationship which was somewhat turbulent.
[4] On March 22, 2023, a preliminary inquiry was held. DR was committed to stand trial on both counts.
[5] At trial, AT testified by video from outside the courtroom with the assistance of a support worker. During her evidence in chief, AT adopted a videotaped statement that she gave to police on May 27, 2021 pursuant to ss. 715.1(1) of the Criminal Code. AT was 13 years old when she gave her statement to police. She is now 15 years old.
[6] AT claims that DR kissed her on the lips with his tongue and touched her breasts with his hand in four (4) separate incidents. She also claims that DR inserted his finger into her vagina in the third and last incidents. According to AT, the first two incidents took place at DE’s home while the last two were at the paternal grandmother’s home.
[7] MT testified that AT and DVR shared parenting visits with DR at the grandmother’s home. Among other things, MT claimed that AT and DVR last visited DR during Christmas of 2020.
[8] IW, who is now 15 years of age, testified by video from a remote location with the help of a support worker. As part of her evidence in chief, IW adopted a videotaped statement she gave to police on December 1, 2022 when she was about 14 years old. In that videotaped statement, IW alleged that an incident had occurred in the basement of DE’s home. During this alleged incident, IW claims that DR came down to the basement, laid her and AT on their backs, and then touched and kissed their breasts. However, in a prior statement made on March 19, 2020 when she was about 11 years old, IW told police that she had been lying when she had raised these sexual abuse allegations against DR.
[9] DR elected to call no evidence at trial.
Legal Principles
[10] DR is presumed to be innocent. This important and long-standing principle of criminal law is constitutionally entrenched in s.11(d) of the Charter, and continues unless or until the Crown proves his guilt beyond a reasonable doubt. The burden of proof on the Crown is a heavy one that never shifts: R v. Lifchus, 1997 319 (SCC), [1997] 3 SCR 320 at para 27. DR was not required to testify or to call any evidence, and had no onus to prove or disprove anything at trial.
[11] A reasonable doubt is one based on reason and common sense that logically arises from the evidence, or the absence of evidence. Although the Crown is not obliged to establish guilt to an absolute certainty, proof beyond a reasonable doubt is much closer to proof of absolute certainty than to proof of probable or likely guilt: Lifchus at paras 13-41; R. v. Starr, 2000 SCC 40 at para
- To convict, I must be satisfied that the relevant evidence, taken together, proves the Crown’s case beyond a reasonable doubt: R. v. N.T., 2021 ONCA 754 at para 10; R. v. J.J.R.D., 2006 40088 (ONCA) at paras 53-55, leave to appeal refused [2007] SCCA No 69.
[12] To prove an offence of sexual interference, the Crown must prove the following essential elements beyond a reasonable doubt: 1) the complainant was under 16 years of age; 2) the accused intentionally touched the complainant; and 3) the touching was for a sexual purpose: R. v. W.G., 2021 ONCA 578 at paras 51-53; R. v. B.J.T, 2019 ONCA 694 at para 37; M.W. at para 411.
[13] To prove an accused guilty of sexual assault, the Crown must prove each of the following essential elements beyond a reasonable doubt: 1) the accused touched the complainant directly or indirectly; 2) the touching was intentional; 3) the touching took place in circumstances of a sexual nature; 4) the complainant did not consent to the sexual touching; and 5) the accused knew or was wilfully blind or reckless to the fact that the complainant was not consenting to the touching: R. v. Ewanchuk, 1999 711 (SCC), [1999] 1 SCR 330 at paras 24-31, 42-52; R. v. M.W., 2023 ONSC 4913 at para 425.
[14] In assessing the evidence of a young complainant, the court need not resolve every inconsistency but should consider whether, and to what extent, the core of the complainant’s allegations was affected by an inconsistency: R. v. R.A. 2017 ONCA 714 at para 53, aff’d 2018 SCC 13. It is well-accepted that peripheral details of a traumatic event can be difficult for a witness accurately recall and accurately describe at a later date: R. v. A.A., 2023 ONCA 174 at para 17; R.
v. G.M.C., 2022 ONCA 2 at para 38; R. v. D.C., 2023 ONSC 2489 at para 60.
[15] The court is not required to believe or disbelieve the testimony of a witness in its entirety, and may believe all, some or none of their testimony: R. v. R.(D.), 1996 207 (SCC), [1996] 2 SCR 291 at para 93.
[16] In weighing a witness’ evidence, I must consider the difference between credibility and reliability. Credibility relates to a witness’ veracity, while reliability goes to the accuracy of the witness’ testimony. Accuracy turns on the ability of the witness to accurately observe, recall and recount events in issue. A witness who is not credible cannot give reliable evidence, but credibility is not a proxy for reliability as a credible witness may give unreliable evidence: R. v. H.C., 2009 ONCA 56 at para 41, citing R. v. Morrissey (1995), 1995 3498 (ON CA), 22 OR (3d) 514 (CA) at 526; D.C. at para 61.
[17] Every person of whatever age who testifies in court is assessed on their credibility and reliability by reference to criteria appropriate for their mental development, understanding and ability to communicate. A contradiction in testimony is not given the same effect in a child’s evidence as would be the case for an adult’s testimony: R. v. J.J.B., 2013 ONCA 268 at para 70, citing R. v. B.(G.), 1990 7308 (SCC), [1990] 2 SCR 30 at 54. The presence of inconsistencies in a child’s testimony, particularly on peripheral matters such as time and location, are considered in the context of the age of the witness at the time of the events to which they are testifying: R. v. W.(R.), 1992 56 (SCC), [1992] 2 SCR 122 at para 26.
[18] There is no inviolable rule on how victims of trauma, like a sexual assault, will behave. Some will make an immediate complaint, others will delay in disclosing the abuse, and some will never disclose the abuse: R. v. D.D., 2000 SCC 43 at para 65. A delay in disclosure, standing alone, will not give rise to an adverse inference against the complainant’s credibility: Ibid. Depending on the circumstances of a particular case, piecemeal or incremental disclosure of prior sexual abuse is not treated any differently than delayed disclosure: R. v. D.P., 2017 ONCA 263 at paras 29-31, leave to appeal refused [2017] SCCA No. 261.
[19] The Crown may prove the essential elements of the offences as charged beyond a reasonable doubt based solely on the evidence of a complainant without any corroborating or confirmatory evidence: s. 274 of the Criminal Code; R. v. S.R., 2023 ONCA 671 at para 8; R. v. H.P., 2022 ONCA 419 at para 68.
Analysis
[20] I shall draw no conclusions from DR’s decision at trial to not testify or call any evidence. It was entirely open for DR to exercise his right to silence.
[21] I am mindful that AT was a child of about 11 years of age when DR allegedly touched and kissed her. When AT gave her statement to police, she was 13 years old. When she testified at trial, AT was 15 years of age and still a child. Children often see the world differently and may not remember details in the same way as adults; R. v. W.R., 1992 56 (SCC), [1992] 2 SCR 122 at 133; B.(G.) at 54- 55; R. v. D.C., 2023 ONSC 1738 at para 7. In deciding this matter, I shall consider AT’s evidence as a whole through the lens of a child in an age-appropriate manner: Ibid. Even if AT does not recall details of where, when or how events unfolded, that does not necessarily mean that DR did not touch her as AT has described.
[22] AT testified in a straightforward manner, conceded the limits of her memory or recollection of events, and appeared to be trying not to overstate her evidence. That said, her testimony left me with reasonable doubt given the inconsistencies in her evidence. Although I accept that AT was trying to tell the truth, I find that her evidence was not reliable due to various problems with her memory which she self-identified. AT’s memory was generally poor. She could not remember meaningful details of events and often took lengthy pauses as she tried to recall things before answering questions during her examination in chief and cross-examination. When Crown counsel asked about the pauses, AT denied that anything was going on. However, AT continued to take long pauses before answering questions as she struggled with her memory. Even after her memory was refreshed, her recollection remained rather limited. Given her suggestible nature, it was often hard to tell what she truly recalled and what she accepted as true without actually remembering. Under cross-examination, she candidly conceded that she did not recall certain answers that she had given at the preliminary inquiry. Ultimately, her memory remained limited and incomplete.
[23] AT claims that there were four incidents when DR allegedly touched her inappropriately. During the preliminary inquiry, AT did not remember which incidents took place at DE’s home and which occurred at the paternal grandmother’s home. At trial, AT claimed that the first two incidents occurred at DE’s home and the last two were at the grandmother’s home. But in cross-
examination, AT testified that she could not remember how many incidents took place at DE’s home and how many had occurred at the grandmother’s home.
[24] During her initial statement to police on May 27, 2021, AT claimed that DR had touched her “private parts” on four occasions but had difficulty remembering when those other incidents, apart from the February 2021 incident, had taken place. AT later told police that DR would mostly kiss her and touch her breasts, which she earlier had disclosed to her older step-brother, TH, who later told AH, his father, about it. AH then shared AT’s disclosure with her mother, MT, who called police around May 25, 2021. At trial, AT initially said that DR kissed her and touched her breasts on the first occasion, touched her breasts on the second occasion, kissed her and touched her breasts on the third occasion, and kissed her and touched her breasts and vagina on the fourth occasion.
[25] The first incident allegedly occurred at DE’s home over a long weekend when AT was about 11 years old. On this occasion, AT claims that DR kissed her on the lips and touched her breasts. Beyond this, however, AT did not remember anything else from that weekend. AT gave changing evidence as to where the incident had occurred. At the preliminary inquiry on March 22, 2023, AT initially said that, “these things would happen in the basement”. She later testified at the preliminary inquiry that she was not in a room when the first incident took place. She then explained at the preliminary inquiry that she was unsure of where she had been when this alleged first incident took place and, therefore, was unsure of whether she had been in a room when it happened. At trial, AT could not recall where the alleged incident occurred or otherwise explain why her evidence on this point had changed at the preliminary inquiry. Although the location of the alleged incident is a peripheral fact, AT could not recall how the incident started, the sequence of events leading up to the alleged incident, or even how the incident itself unfolded apart from asserting that DR had kissed and touched her. Her inability to recall anything meaningful from that weekend and her changing evidence give rise to concerns about the reliability of her evidence.
[26] AT’s statement to police describing how DR allegedly kissed her during the incidents is inconsistent with her evidence at trial. AT told police that DR would “ask” or “tell” her to kiss him on the lips. At trial, however, AT testified that she did not recall DR saying anything during any of the incidents. She then testified that DR had “gestured” or motioned for her to kiss him without saying anything. This inconsistency goes to a matter that is central to the interference and
sexual assault charges against DR. It is neither insignificant nor easily explained by the fact that AT is a young witness. In my view, this inconsistency raises serious concerns with the reliability of her evidence.
[27] The second incident, which AT and IW claim took place in the basement of DE’s home, allegedly involved DR touching AT and IW while the incident unfolded. Notably, during her May 27, 2021 statement to police, AT never disclosed that IW had been present on this occasion. At trial, AT testified that she withheld this detail to preserve IW’s privacy. However, AT testified at the preliminary inquiry that DR would engage in touching her when no one else was around.
[28] AT recalled only minimal details of the second incident. During the preliminary inquiry, she first mentioned IW only as she was describing how DR kissed them and touched their breasts, and claimed that her memory “got better” as she recounted the incident. At trial, however, AT did not recall that DR had kissed her and IW until the Crown refreshed her memory with her evidence from the preliminary inquiry. AT did not remember who DR had touched first, whether he had said anything, or how long the incident took. She remembered speaking with IW just after the incident but not what they discussed. She did not recall what happened after the incident was over or anything else about her visit to DE’s home on that occasion.
[29] For her part, IW claims that she and AT were sitting on the carpet in the basement and watching a movie when DR came down, said “Oh, here’s my two favourite daughters”, laid them on their backs, lifted up their shirts, and pulled down their training bras. IW claims that DR then began to touch and kiss their breasts back and forth with his hands and his mouth. As this was occurring, IW says that she mainly looked up at the ceiling but briefly looked over at to see DR’s mouth on AT’s breasts. Eventually, DR stopped interacting with the girls and went upstairs. After DR left the basement, IW claims that she remarked to AT that DR was touching them both.[^1] Thereafter, IW claims that she and AT grew closer and mutually supported each other when AT visited DE’s home and they saw each other. IW said that AT’s last visit to DE’s home may have been around Christmas of 2020, although she was not entirely sure.
[30] I have serious concerns with IW’s credibility and reliability. After IW had disclosed DR’s alleged sexual activity with AT and herself, her mother DE asked IW to tell police what had happened. Before IW went to police, DE found something on her sister’s phone that apparently
led DE to believe that IW was lying and falsely accusing DR. Accordingly, before they went to the police station, IW claims that DE told her not to disclose her allegations against DR and to shut down her interview by just telling police “I don’t want to talk about it” when questioned at the station.
[31] During her examination in chief, IW initially could not recall her first statement to police on March 19, 2020 until the Crown refreshed her memory using a reference to her first statement in her second statement to police on December 1, 2022. Under cross-examination, the Defence asked IW about her first statement to police, and referred to the following exchange between IW and the investigating officer during her first police interview on March 29, 2020:
Constable: And my last rule is the absolute most important one [that] you tell me the truth today. Are you going to tell me the truth today?
IW: Mm-hmm.
Constable: You don’t seem super convinced about that. Are you going to tell me any lies today?
IW: Before we get on with the question … Constable: Mm-hmm.
IW: … I’d just like to say one thing. And this is, it’s very true, and when I say this I mean it.
Constable: Okay.
IW: I lied to get my mother’s attention … Constable: Okay.
IW: … because she’s busy with her school work, she’s busy with my other siblings and she doesn’t pay any attention to me. So, now I do have my mother’s attention and I’m just a child so I wouldn’t really know what – like what was going to happen but the fact is one thing I will say she’s busy with her school work, she’s busy [with] my other siblings, she’s busy with everything else and now the focus is on me. So, that is everything that I will say and that is everything.
Constable: Okay. So, when you say you lied about things, what did you lie about? IW: I lied about the situation that happened.
Constable: Okay. So, tell me about that. What did you – what did you tell your mother to get her attention?
IW: I don’t feel comfortable saying it.
[32] Although her mother, DE, had told IW before going to the police station to shut down her interview by telling police “I don’t want to talk about it”, IW volunteered to police that she had lied about what DR allegedly did to get her mother’s attention. The investigating officer pressed IW to explain what she had disclosed to her mother, and indicated that the allegations were serious. IW responded by refusing to explain and repeatedly claimed to not feel comfortable talking about the matter. In addition, IW repeatedly stated that she was safe.
[33] By the time of IW’s second statement to police, DR was no longer residing with DE after an argument over cheating caused him to leave DE’s home. When asked at trial why she went to police for a second time on December 1, 2022, IW said that her mother had encouraged her to report what had happened as it should not have occurred.
[34] At trial, IW claimed that she lied during her first interview with police on March 19, 2020 as DE had been distressed by her disclosure and told IW to not discuss it with police. As a result, IW claims that she told police that she fabricated the allegations against DR to get DE’s attention and then declined to further discuss the matter by claiming to feel uncomfortable talking about it when police pressed her to explain herself during the interview. IW now claims that her second statement to police on December 1, 2022 gives a true account of what DR actually did to AT and herself in the basement during the so-called second incident. But during her first interview with police on March 19, 2020, IW clearly recanted her earlier allegations against DR as fabrications, stated that her recantation was “very true”, and reassured the investigating officer that she was being honest and truthful by saying “when I say this I mean it.” At trial, IW testified that DE saw something on her sister’s phone which led DE to feel that IW initially had lied by making the allegations against DR. This apparently led DE to tell IW not to discuss the allegations during her first police interview. At trial, IW sought to resile from her prior recantation by claiming that her initial allegations against DR were actually true. To some extent, what IW is now saying seems to be motivated, influenced, or encouraged by DE who ended her relationship with DR after a falling-out over cheating allegations. In light of all this, I have serious concerns with IW’s credibility and reliability.
[35] Although there is no clear motive to show why IW would fabricate her allegations against DR, it would be improper to equate an apparent lack of motive to fabricate with a proven absence of a motive to fabricate: R. v. Gerrard, 2022 SCC 13 at paras 4-5; R. v. B.T.D., 2022 ONCA 732 at para 82. In this particular case, there is some evidence to suggest that IW and her sister may have harboured a motive to fabricate the allegations against DR based on the digital content which their mother, DE, previously saw on the sister’s phone. Given IW’s explanation that she and AT had “strategized” on how to disclose their allegations against DR, the Defence argued that IW and AT had plotted to unfairly malign DR. However, IW said that she and AT were afraid of getting into trouble for disclosing DR’s conduct, which led them to contemplate whether to disclose the allegations. In any event, motive is at best a secondary consideration that offers just limited assistance where sexual offences are at issue, in which case the key consideration remains whether the Crown has met its burden beyond a reasonable doubt: R. v. M.S., 2019 ONCA 869 at para 16.
[36] According to AT, the third incident occurred at the paternal grandmother’s house in Malton when she and DVR were visiting DR. According to AT, she was in DR’s bedroom watching Netflix on her phone while DVR was downstairs in the living room. The paternal grandmother was not home at this time. AT claims that DR joined her in the bedroom, started kissing AT with his tongue, and began to touch one of her breasts with his hand under her clothing while standing over her. Beyond this, AT’s core recollection of the incident was limited. AT could not recall how long the incident went on for, whether DR said anything, or what happened immediately after the incident. Initially, AT testified in chief that DR had only kissed her and touched her breasts. When asked whether DR had engaged in any other physical contact with her, AT initially answered by saying “no” before claiming to not remember. After the Crown refreshed AT’s memory using her evidence from the preliminary inquiry, AT recalled that DR had touched her vagina. But when the Crown asked AT whether DR touched her vagina under or over her clothes, AT initially could not remember. She then claimed to not know how to answer the question. In my view, AT was unsure of how to answer due to her inability to remember the incident with a sufficient degree of clarity, despite trying to be truthful. Later in her evidence in chief, AT claimed that DR had touched the inside of her vagina with his fingers.
[37] I have serious concerns with the reliability of AT’s evidence for this third alleged incident, particularly in respect of her claim that DR touched her vagina which is an important aspect of this
case. She clearly had difficulty recalling what happened and had only an incomplete memory of what DR allegedly did. She expressed uncertainty with how to answer fairly basic questions about the alleged incident which I attribute to her poor memory. While I accept that AT was a sincere witness, I am not confident in the accuracy or reliability of her recollection.
[38] AT alleges that the last incident occurred at the paternal grandmother’s house while she and DVR were visiting DR over a long weekend in February 2021. Although AT did not remember with precision when the other alleged incidents with DR occurred, she said that this last incident occurred in February 2021, about 3 months before she gave her statement to police. On this occasion, DR was getting DVR ready for a bath or shower when AT went to DR’s bedroom to charge her phone. AT said that DR then entered the bedroom and started kissing her and touching one of her breasts under her clothing before stopping when DVR got out of the bath. DVR then joined DR and AT in DR’s bed. AT said that DVR initially lay in the middle of the bed before switching spots with AT who then lay between DVR and DR. After DVR fell asleep, AT claimed that DR put his hand in her tights and touched her vagina with his fingers as she watched Tik Tok on her phone. AT claims that she tried but could not move DR’s hand. After about five minutes, she said that DR stopped touching her. The grandmother came home a few minutes later. DR left the bedroom to get some water, and AT went to greet the grandmother.
[39] AT’s evidence about when this last alleged incident took place is clearly contradicted by her mother’s evidence. MT testified that AT last visited DR over the Christmas 2020 holiday period at DE’s house. MT vividly recalled this as the last time when AT visited DR. Around November 2020, MT had just broken up with her then-boyfriend and had moved with her children to a new apartment which did not have a Christmas tree or other festive decorations. As a result, AT and DVR both wanted to visit DR and enjoy his holiday tree and decorations. When MT was asked how she knew that AT did not visit DR in 2021, MT said that AT never visited DR after that holiday season as she and the children ended up constantly moving or relocating. MT was certain and firm about this and gave this evidence in a candid and forthright manner. Taking this into account, I am satisfied that AT did not visit DR after the Christmas 2020 holiday period, which casts doubt on AT’s account of when this alleged fourth incident took place. Since the last visit would have occurred at DE’s home during that holiday season, MT’s evidence also casts some doubt on AT’s account that the last incident occurred at the grandmother’s home. Moreover, at
trial, AT was confused about which or how many incidents took place at DE’s home or at the grandmother’s house, respectively, and when they would have taken place.
[40] Taking everything into account as a whole, I am not satisfied of DR’s guilt beyond a reasonable doubt. Given the inconsistencies in AT’s evidence, which I attribute to her inability to recall events clearly, I find that her evidence lacks reliability and raises a reasonable doubt as to DR’s guilt in respect of the charges against him. In addition, I find that the inconsistencies in IW’s evidence arising from her multiple recantations raise serious concerns with her credibility and reliability. Based on this, and given that DE apparently found a motive for IW to falsely accuse DR of wrongdoing, I find that it would be dangerous to rely on IW’s evidence in this case.
[41] Proof beyond a reasonable doubt is a high standard. AT’s core account gave only minimal details, and the inconsistencies in her evidence included material issues going beyond peripheral matters. Although I accept that AT was an honest and credible witness, I find that her evidence has left me with a reasonable doubt.
Outcome
[42] Based on all of the foregoing, I find DR not guilty on both counts.
Date: December 21, 2023 M.T. Doi J.
COURT FILE NO.: CR-125/23
DATE: 2023 12 21
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: His Majesty the King
AND:
D.R.
BEFORE: M.T. Doi J.
COUNSEL: S. Burton, for the Crown
E. Ulhmann, for the Accused
REASONS FOR JUDGMENT
M.T. Doi J.
DATE: December 21, 2023
[^1]: As the Crown did not bring a similar fact or discreditable conduct application, it acknowledged at trial that no inference should be drawn from the fact that IW had alluded to other incidents of sexual activity between DR and AT and herself in her evidence, that simply formed part of the narrative. Specifically, the Crown advised that it was not seeking to raise any predisposition or bad character inferences, or otherwise asking the court to find that DR had engaged in any prior sexual conduct or activity. For clarity, the Crown conceded that it was open for the Defence to argue that AT and IW had colluded in disclosing the second alleged incident with DR. The Defence agreed with the Crown’s position on the impermissible inferences of prior activity or behavior and accepted the characterization by
the Crown of the Defence’s ability to argue the collusion point in defending the case.