Court File and Parties

Court File No.: CR-22-101507 Date: 2024/04/08 Superior Court of Justice – Ontario

Between: His Majesty The King, Applicant And: S.S., Accused

Counsel: Harmehak Somal, for the Crown Harval Bassi, for the Accused

Heard: September 5, 6, 7, 8, 11, 2023 and January 25, 2024

Before: M.J. Valente J.

Publication Restriction Notice

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of Canada, information that may identify the persons described in this judgment as the complainant and the accused may not be published, broadcasted, or transmitted in any manner.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

Reasons for Judgment

Introduction

[1] The accused is charged with one count of sexual interference contrary to s. 151 of the Criminal Code of Canada, R.S.C. 1985, c. C-46; one count of invitation to sexual touching contrary to s. 152 of the Criminal Code; and one count of sexual assault contrary to s. 271 of the Criminal Code. All three counts involve the same complainant: a young male person who is shielded from identification in these proceedings. For that reason, I refer to him as “the complainant” or by the initials “I.S.”

[2] All the alleged sexual offences are said to have occurred within the same time period, being from June 21, 2018, to September 22, 2018, when the complainant was 14 years of age. The charges in question involve incidents that are said to have occurred in the basement of the home of the complainant’s grandfather, R.L., where the accused had been living. The accused was 20 years old at the time of the alleged incidents.

[3] The Crown presented evidence from three witnesses: the complainant, the complainant’s grandfather, R.L., and the complainant’s mother, J.S. The defence called the accused, S.S.

[4] The evidence of each witness will be described and assessed further below. In short, the evidence of the complainant is that on a summer evening in 2018, while he was on the couch in his grandfather’s basement, the accused touched his leg, thigh, and hips over his clothes. The accused’s touching was immediately followed by the accused removing his clothes and ordering the complainant to do the same. While undressed, the accused took the complainant’s hand and forced the complainant to touch the accused’s penis, after which the accused performed oral sex on the complainant. The accused denies touching I.S. in the manner as alleged, or at all, and otherwise denies any interaction with the complainant in the basement of R.L.’s home.

[5] With the consent of the defence, and prior to the complainant’s testimony, I made orders permitting the complainant to testify with a support person outside the courtroom via close circuit T.V. pursuant to ss. 486.1(1) and 486.2(2) of the Criminal Code, respectively.

[6] On consent, I also made an order pursuant to s. 715.1 of the Criminal Code admitting into evidence the video recording of the complainant’s interview with the investigating officer, Detective McIntyre, conducted on October 9, 2020. The complainant adopted the contents of the video recording.

[7] The accused was assisted with a Hindi interpreter during this trial.

Undisputed Background Facts

[8] The accused arrived in Canada from India in December 2017 on a student visa to study business. To supplement his income, in February 2018, S.S. took a job as a general helper in the kitchen of a local Kitchener Indian restaurant owned and operated by R.L., the complainant’s grandfather. After taking the job at R. L.’s restaurant, the accused soon left school and quickly rose to the status of chef.

[9] The accused met the complainant at the restaurant where he also worked part-time as a 14-year-old teenager. Even as a young person, I.S. was very engaged in the business of the restaurant. He described himself as having a “passion” for the business and wanting to take it over from his grandfather when he was ready to retire.

[10] Although the complainant and the accused were cordial as work colleagues, they generally did not socialize outside of work and were not friends prior to the summer of 2018.

[11] On the other hand, the accused’s relationship with the complainant’s grandfather quickly progressed beyond that of employee and employer. From all accounts, they became very close. The accused referred to R.L. as “uncle”, a term of respect and endearment in Indian culture. For his part, R.L. treated and trusted S.S. as a “son”. Not only did R.L. offer the accused a bedroom in his finished basement to minimize his travel time to work, but R.L. also assisted with the processing of the accused’s immigration application, co-signed the accused’s car loan and was a witness at the accused’s wedding as well as a reference for the accused to lease an apartment in June 2020.

[12] The accused lived in R.L.’s basement from August 2018 to June 2020. Although there is a divergence in the evidence as to when S.S. temporarily moved out of R.L.’s basement only to return a short time later, all witnesses agree that the accused did leave for a short period of time on at least one occasion.

[13] Likewise, there is agreement in the evidence that in late summer 2020, the accused resigned from his role at the restaurant following a heated argument with the complainant about work related issues. The accused left to assume a chef’s position in Orangeville. After resigning from R.L.’s restaurant, the accused nonetheless returned to Kitchener approximately once a week for several weeks to assist in the kitchen of R. L.’s restaurant.

[14] Finally, the undisputed evidence is that R.L. lived with his elderly parents who required regular assistance. Each summer R.L. would rent a cottage for one to two weeks, sometimes to vacation with his parents, but always to spend holiday time with his grandchildren. The summer of 2018 was no exception to R.L.’s regular vacation schedule, save and except that the complainant did not join his grandfather and siblings because of sporting commitments.

The Evidence of the Witnesses

[15] I do not propose to recount the entirety of the evidence given by each of the witnesses who testified at trial in great detail. My review of the evidence is limited to those facts that are significant to the central issues or that provide context necessary to appreciate and determine the relevant issues. I will consider certain details of the relevant evidence in the course of my analysis below.

(a) The complainant, I.S.

[16] At the time of trial, the complainant was 19 years of age. He is currently a second-year university student. The complainant testified in an articulate and polite manner both at trial and in his October 2020 police interview. It is apparent that he is embarrassed about the incidents giving rise to the charges and had difficulty testifying about the allegations against the accused.

[17] In the summer of 2018, the complainant confirmed that he was 14 years old and lived with his parents and three siblings. At the time, he routinely visited his grandfather, R.L., and his great grandparents three to four times a month. He slept over at his grandfather’s house once per month. Whenever R.L. was away, the complainant also visited his great grandparents to ensure that their needs were addressed. I.S.’ great grandfather was blind and was suffering from the effects of a stroke. Although generally healthy, I.S. described his great grandmother as not being self sufficient.

[18] On the summer evening in question, I.S. was certain that his grandfather was not home but his evidence is inconsistent respecting the reason for R.L.’s absence. In cross-examination the complainant testified that his grandfather was on vacation but later stated he was not sure why R.L. was not at home.

[19] The complainant’s evidence is that he arrived at R.L.’s home at approximately 8:30 pm to check in on his great grandparents whom he believed were already asleep with their respective bedroom doors closed. The complainant arrived with the intention of spending the night to ensure that his great grandparents were looked after.

[20] Without confirming that his great grandparents were asleep, I.S. testified that he went to the basement so as not to disturb them. The complainant had thought that he was alone in the basement, but soon after sitting on the couch and scrolling on his phone, the accused came out from his room to greet I.S. Within two minutes the accused began touching the complainant’s leg and moved his hand up I.S.’s thigh to his hip. When the complainant moved away from the accused, S.S. became angry, raised his voice, and made “almost a fist motion with both hands” in the air. The complainant felt threatened.

[21] At this point, the accused started to take his clothes off and told I.S. to do the same or it “was not going to end well.” The complainant was frightened by the accused’s threat because he was much bigger than he, and I.S had previously observed the accused’s temper while working at the restaurant. The complainant felt that the accused was going to hurt him unless he complied.

[22] When the two of them were undressed, the complainant testified that he was “shocked”, “terrified”, and in a “frozen state”. The accused then took and guided the complainant’s hand so that it touched the accused’s penis. The complainant’s touching of the accused’s penis was followed by the accused performing oral sex on the complainant.

[23] At some point, for reasons that I.S. cannot explain, the accused stopped and turned around. When he did, the complainant gathered some of his clothes and ran upstairs to his grandfather’s bedroom where he spent the night without further incident.

[24] The complainant told no one about the incident until one year later. In the summer of 2019, the complainant advised his parents of the allegations against S.S. The complainant had no motivation in telling his parents other than he felt that “something should be done”. While I.S. was prepared to tell his parents what had happened on that summer evening a year earlier with S.S., he asked his parents not to go to the police. The matter was not reported to the police until October 2020.

[25] On the other hand, immediately upon advising his parents, the complainant’s mother, J.S., told her father, R.L., and on that same day, R.L., J.S. and the complainant confronted the accused in the basement of R.L.’s home where he was still living. It is the complainant’s evidence that S.S. admitted the alleged acts, apologized, and cried.

[26] Once R.L. knew of the incident between his grandson and S.S., he took no steps to terminate the accused’s employment. The complainant did not question the decision of his grandfather, a person for whom he had a great amount of respect and love. After the incident of the summer of 2018, the complainant too continued to work at the restaurant as he always had, although he was careful to have limited interaction with S.S.

[27] I.S. admitted without reservation that the accused was an integral part of the restaurant operation as “one of the lead chefs”. Likewise, he admitted that he and the accused argued over work issues. In the summer of 2020 one of these arguments resulted in the complainant calling S.S. a “drama queen”.

(b) The complainant’s mother, J.S.

[28] Like her son, J.S., was articulate. For the most part, she testified in a straightforward manner and without hesitation. She strikes me as a caring, responsible person.

[29] J.S. explained that the restaurant was originally owned by her and her now former husband. When they divorced, R.L. assumed ownership and control. The restaurant was very important to the family and even after R.L. took it over, the intention was that the business was to be passed on to her children at the appropriate time. Although in the early days of the restaurant, J.S. was actively involved in its operations, by the time her father purchased it, her role was limited to assisting R.L. with administrative tasks.

[30] J.S. testified that the complainant advised her and her former husband about the allegations giving rise to the charges against S.S. in July 2019. She also confirmed that immediately thereafter, she, R.L. and the complainant confronted the accused who reluctantly admitted each of the alleged acts, apologized and assured the family members that his conduct would not be repeated. According to J.S.’ testimony, in addition to the acts described by the complainant, the accused advised her that he and I.S. also watched pornographic videos.

[31] Prior to her learning of the 2018 incident between the complainant and the accused, J.S. described S.S. as a family friend. She also described him as an integral part of the restaurant business operation. In her opinion, however, R.L., considered S.S. much more than a family friend; R.L. “looked on him as a son” and when the accused resigned his position, R.L. was “upset”.

[32] After the disclosure of the incident, J.S., wanted the accused fired from the restaurant but R.L. refused to do so. Her father’s decision frustrated and angered J.S., but once R.L. made the decision to keep S.S. on, there was no further discussion.

[33] J.S. corroborated her son’s evidence that he and the accused would often argue in the restaurant over work related issues. In her opinion, I.S. found S.S. overbearing. On occasion the arguments became so heated, either she or her father were required to intervene to mediate.

(c) The complainant’s grandfather, R.L.

[34] The complainant’s grandfather, R.L., presented as a frail individual. He was frequently confused and his answers to questions were confusing and somewhat argumentative.

[35] R.L. explained that the family restaurant had been opened by his daughter and former son-in-law in 2018. He was involved in managing the business from day one and purchased it in 2019. Ultimately, R.L. closed the restaurant in June 2022.

[36] R.L. confirmed that during the summer of 2018, he rented a cottage for a two-week vacation with his grandchildren, with the exception of the complainant who stayed home. He recalled that on this summer vacation, his parents did not join him.

[37] R.L. also confirmed J.S.’ evidence respecting the way the accused responded to his alleged inappropriate sexual conduct with I.S.; specifically, the accused admitted the acts, including performing oral sex on the complainant, apologized and assured the family it would not happen again. R.L. believed the accused because by May 2019, he had married.

[38] Just as J.S. had described, R.L. verified that he saw the accused as a son. In R.L.’s own words, he “gave him everything” and he “had a special heart for him” even after learning of the alleged events of the summer of 2018.

[39] R.L.’s feelings for the accused do not, however, explain why R.L. chose not to terminate S.S.’ employment in July 2019. His rationale was far more matter of fact. Apart from wanting to avoid customers asking potentially embarrassing questions that may harm the restaurant’s reputation, R.L. testified that he had a business to run, and the accused contributed to its success. In other words, because the restaurant was of paramount importance to R.L., he was prepared to keep “business and personal issues separated” in favour of the success of the business. Likewise, when the accused resigned from the restaurant in the summer of 2020, R.L. admitted he was “upset”, not because of any emotional ties to the accused, but rather because he left without adequate notice.

[40] R.L. also corroborated the evidence of his daughter that the complainant and the accused were prone to argue about restaurant operational issues and that these disputes often required his intervention. The last argument he witnessed was in August 2020 when I.S. claimed that the accused failed to properly prepare certain menu items and “was going to fuck our restaurant.” It was during this disagreement that the complainant called the accused a drama queen.

(d) The accused, S.S.

[41] The accused originally presented as an overly nervous person, but as his testimony progressed, he was able to calm himself. The accused was eager to respond to questions both in chief and on cross-examination. On occasion it was a struggle to follow his evidence through an interpreter, and I remind myself that I must give the accused the benefit of any possible misstatements.

[42] The accused testified that after starting in the restaurant as a general helper in February 2018, he rose to position of trainee head chef by the fall of 2018 and eventually in the early summer of 2019, to head chef. The accused worked hard at the restaurant and liked his job. The accused resigned from the restaurant on August 18, 2020, after the argument with the complainant in which he was called a drama queen. This argument was the last straw in a string of arguments, but different from the others as the accused considered it a personal attack.

[43] S.S. recalls R.L., his parents and grandchildren, with the exception of I.S., going to a cottage for a few weeks in August 2018. The accused was certain that R.L.’s parents accompanied him to the cottage because whenever they were not at home, the kitchen door was closed, and it was closed for some time in August of that year.

[44] During the time that the accused lived in R.L.’s basement, he never saw the complainant in the basement. The accused denies that he had any contact with the complainant in the basement in August 2018 while R.L. was on vacation.

[45] In the fall of 2019, no one raised any concerns about his being alone with I.S. at work. In two separate videos taken in the fall of 2019, the accused identified the complainant enjoying himself at a shisha bar with S.S. and his wife. At this same time, the accused described his relationship with each of R.L. and J.S. as “good”. They were both supportive of his immigration application. Later in the spring of 2020, the accused celebrated his birthday in R.L.’s basement with R.L.’s family and R.L. acted as a reference for an apartment that S.S. and his wife wanted to lease.

[46] When the accused resigned from the restaurant in August 2020, R.L. was both angry and upset but nonetheless asked him “everyday to stay”. Although S.S. was not prepared to accede to R.L.’s plea, he did agree to assist R.L. by making the restaurant gravy. The accused returned to the restaurant once a week for this purpose for a period of five to six weeks.

The Governing Legal Principles

[47] Before I turn to my analysis of the evidence, I will address the fundamental legal principles that govern my decision.

(a) The presumption of innocence and the burden of proof

[48] The presumption of innocence is the most fundamental principle of our criminal justice system under Canadian criminal law. It is the right of every person accused of criminal misconduct to be presumed innocent until proven guilty by the evidence established by the Crown. For this reason, S.S., like every accused person charged with an offence, is presumed to be innocent unless and until the Crown proves his guilt beyond a reasonable doubt.

[49] An accused person does not have to prove that they are innocent. It is up to the Crown to prove its case on each essential element of the offence beyond a reasonable doubt. An accused person is presumed innocent until the trier of fact, weighing all the evidence, makes their determination at the end of the trial.

[50] The presumption of innocence is interwoven with the standard of proof required to displace that presumption: see R. v. Lifchus, [1997] 3 S.C.R 320, at paras. 27, 36. The standard of proof beyond a reasonable doubt does not apply to individual items of evidence that comprise the prosecution’s case but rather to the total body of evidence upon which the Crown relies to prove guilt. To secure a conviction, it is incumbent on the Crown to prove each essential element of the offence charged beyond a reasonable doubt. The burden of proving an accused’s guilt beyond a reasonable doubt rests with the prosecution and never shifts to the accused person: see Lifchus, at para. 36.

[51] The court must find the accused not guilty if it has a reasonable doubt about their guilt on the essential elements of the offence after having considered all the evidence.

[52] Reasonable doubt is not a far-fetched or frivolous doubt. It must not be based on sympathy or prejudice. It is doubt based on reason and common sense that logically arises from the evidence or the lack of evidence. To convict an accused person, it is not enough for the court to find that he or she probably or likely committed the offence charged. In that instance, the court must give the benefit of the doubt to the accused and acquit them because the prosecution has failed to establish guilt beyond a reasonable doubt. See Lifchus, at paras. 36, 39.

[53] In R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144, at para. 242, the Supreme Court of Canada stated that “an effective way to define the reasonable doubt standard for a jury is to explain that its falls much closer to absolute certainty than to proof on a balance of probabilities.”

[54] On the other hand, one must remember that it is nearly impossible to prove anything with absolute certainty and the Crown is not required to do so. Such a standard of proof is impossibly high: see Lifchus, at paras. 36, 39. The Crown has only the burden of proving guilt beyond a reasonable doubt. To put it in perspective, if the court is convinced that the accused is probably guilty or likely guilty, then the accused should be acquitted because proof of probable or likely guilt is not proof beyond a reasonable doubt.

(b) Credibility and reliability

[55] The second legal issue upon which I must instruct myself relates to the assessment of the testimony of witnesses. It is not unusual that some evidence presented to the court may be contradictory and often witnesses have different recollections of the same events. It rests with the court to determine what evidence it finds credible and reliable.

[56] Credibility is not synonymous with telling the truth, and the lack of credibility is not synonymous with lying. Many factors influence the court’s assessment of the credibility of a witness’ testimony. For example, a court will assess a witness’ opportunity to observe events as well as witness’ reasons to remember. In assessing the credibility of testimony, the court will ask questions, such as: were the events noteworthy, unusual and striking, or relatively unimportant, and therefore, understandably more difficult to recollect? Does the witness have a reason to favour the prosecution or the defence, or is the witness impartial?

[57] The demeanour of the witness while testifying is a factor that can be used in assessing credibility. An examination of the demeanour of a witness explores questions like: was the witness responsive to questions? Were they straightforward in responding to questions, or were they evasive, hesitant, or argumentative?

[58] Demeanour must, however, be assessed with caution. Demeanour should be assessed in conjunction with an assessment of whether the witness’ testimony was consistent with itself and externally consistent with the other uncontradicted facts in evidence. The Ontario Court of Appeal has cautioned against over-reliance on demeanour as a factor in assessing the credibility of witnesses and the reliability of their evidence: for example, see R. v. Hemsworth, 2016 ONCA 85, 334 C.C.C. (3d) 534, at para. 45.

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

[60] The court is not required to accept the testimony of any witness except to the extent that it has impressed the court as credible. The court may accept the evidence of a particular witness in total, in part, or not at all. The trier of fact is not required to choose between wholesale acceptance or rejection of the witness’ testimony: see R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at para. 65; R. v. Doell, 2016 ONCA 350, at para. 7.

[61] Credibility is not an all or nothing proposition. Nor does it follow from a finding that a witness is credible that his or her testimony is reliable. A finding that a witness is credible does not require a trier of fact to accept the witness’ testimony without qualification: see R. v. Morrissey (1995), 22 O.R. (3d) 514 (C.A.), at 526.

[62] The term “credibility assessment” is shorthand for the assessment of two qualities of a witness’ testimony: their credibility and their reliability. Credibility and reliability are two very different terms although they may be analyzed in tandem. Credibility has to do with a witness’ veracity or honesty. Reliability, on the other hand, has to do with accuracy of a witness’ evidence, or in other words, whether the witness has a good memory, whether the witness is able to recount details of the event; and whether the witness is an accurate historian. See Morrissey, at 526; R. v. H.C., 2009 ONCA 56, 244 O.A.C. 288, at para. 41.

[63] Any witness whose evidence on an issue is not credible cannot give reliable evidence on the same point. Credibility on the other hand, is not a proxy for reliability. A credible or honest witness may still give unreliable evidence. Such witnesses will appear to be telling the truth and will be convinced that they are right but may still be proven wrong by incontrovertible extrinsic evidence. At the end of the day, although honest, their evidence is not reliable. See Morrissey, at 526.

[64] In addition to considering the usual indicia of a witness’ incredibility or unreliability, such as evasiveness, internal contradictions in their testimony or prior inconsistent statements, the trier of fact should consider the inherent plausibility or implausibility of the witness’ evidence: see R. v. Williams, 2010 ONSC 184, at para. 58. In doing so, I remind myself that the court must be cautious not to rely on false or unfounded assumptions of behaviour.

[65] In its assessment of credibility and reliability, the court must be hyper-vigilant against the intrusion of unfounded assumptions, prevalent myths and stereotypes about sexual offences, sexual assailants, and survivors of sexual assault: see R. v. A.R.J.D., 2018 SCC 6, [2018] 1 S.C.R. 218, at para. 2; R. v. Lacombe, 2019 ONCA 938, 383 C.C.C. (3d) 114, at paras. 31-34. In particular, I am mindful that reliance upon stereotypical views about how victims of sexual assault should behave is an error of law: see R. v. A.B.A., 2019 ONCA 124, 145 O.R. (3d) 634, at paras. 5-7.

[66] Finally, to the extent that a credibility assessment demands a search for confirmatory evidence for the testimony of the principal Crown witness, such evidence need not directly implicate the accused or confirm the principal Crown witness’ evidence in every respect. The evidence should, however, be capable of restoring the trier’s faith in the complainant’s account. See R. v. Kehler, 2004 SCC 11, [2004] 1 S.C.R. 328, at paras 12-13.

(c) W. (D.) assessment

[67] The accused gave evidence at trial. S.S. denied the essential elements of the offences charged. In these circumstances, the court must focus its attention on the analytical process stipulated by the Supreme Court of Canada in it’s decision of R. v. W.(D.), [1991] 1 S.C.R. 742.

[68] The principles in W.(D.) apply in those cases where the accused testifies and denies one or more of the essential elements of the offence. The W.(D.) principles also apply, however, in any case where a crucial issue turns on credibility: see R. v. F.E.E., 2011 ONCA 783, 108 O.R. (3d) 337, at para. 104. Furthermore, the W.(D.) analysis not only applies to accused’s testimony, but also to other exculpatory evidence that emerges during a trial that relates to a vital issue: see R. v. B.D., 2011 ONCA 51, 266 C.C.C. (3d) 197, at para. 114; R. v. Cyr, 2012 ONCA 919, 294 C.C.C. (3d) 421, para. 50.

[69] The guidance that W.(D.) provides, at 757-758, is as follows:

(i) First, if I believe from the evidence favourable to the accused that the accused did not commit the offence charged, I must find the accused not guilty;

(ii) Second, even if I do not believe the evidence favourable to the accused, if it leaves me with a reasonable doubt about the accused’s guilt, or about an essential element of the offence with which he is charged, I must acquit; and

(iii) Third, even if the evidence favourable to the accused does not leave me with a reasonable doubt of accused’s guilt, or about an essential element of the offence with which he is charged, I may convict only if the rest of the evidence that I do accept proves his guilt beyond a reasonable doubt.

[70] The trial is not a credibility contest between the complainant and the accused where one simply chooses whose version one prefers. The lack of credibility on the part of the accused does not equate to proof of his guilt beyond a reasonable doubt. The persistence of a reasonable doubt is incompatible with a finding of guilt.

[71] The approach mandated by the Supreme Court of Canada in W.(D.), and specifically the question whether the court is left with reasonable doubt by the evidence of the accused, was never meant to apply to the evidence viewed in isolation from the rest of the trial evidence: see R. v. R.D. (2004), 186 C.C.C. (3d) 351 (Ont. C.A.), at para. 13.

[72] The determination of whether the accused’s evidence is believed or raises a reasonable doubt must only be made “after considering the accused’s evidence in the context of the evidence as a whole”: see W.(D.), at 757.

[73] I will now address certain issues that may arise in the trial of alleged sexual offences.

(d) Delay in disclosure

[74] The disclosure of the alleged offences in this case was delayed for some time after the date of the alleged sexual offences. In this context, it is important to consider the guidance that the Supreme Court of Canada has provided with respect to the issue of delayed disclosure: see, for example, R. v. D.D., 2000 SCC 43, [2000] 2 S.C.R. 275, at paras. 60-65. There is no inviolable rule on how people who are victims of trauma like a sexual assault will behave. Some will make immediate complaint, some will delay in disclosing the abuse, while others will never disclose the abuse. Reasons for the delay are many and at least potentially include embarrassment, fear, guilt or lack of understanding or knowledge. In assessing the credibility of a complainant, the timing of the complaint is merely one circumstance to consider in the factual mosaic of a particular case. A delay in disclosure, standing alone, will never give rise to an adverse inference against the credibility of the complainant.

(e) Incremental disclosure

[75] Similarly, it often happens that victims of sexual abuse will disclose the details of their abuse in a piecemeal or incremental fashion. It is not surprising that victims of sexual abuse will take more than one occasion to shed a burden that has been weighing on them for some time, where the event occurred years before. That disclosure occurred in an incremental fashion should not, standing alone, give rise to an adverse inference against the credibility of a complainant. What to make of any incremental disclosure will depend on the circumstances revealed by the evidence in each particular case. See R. v. D.P., 2017 ONCA 263, at paras. 28-31, leave to appeal refused, [2017] S.C.C.A. No. 261.

(f) Sexual offences myth-based reasoning

[76] It must be acknowledged that trials do not take place in a historical, cultural, or social vacuum. For that reason, one must adopt caution against approaching evidence with unwarranted or stereotypical assumptions that may be holdovers from a past era as to what is or is not sexual assault, what is or is not consent, what kind of person may or may not be the complainant of a sexual assault, what kind of person may or may not commit a sexual assault, or what a person who is being, or has been, sexually assaulted will or will not do or say. See R. v. M.D., 2023 ONSC 6472, at para. 17.

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

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

[79] Unfortunately, myths and stereotypes regarding complainants in sexual assault or other sexual offence cases still exist in society. Such myths and stereotypes are entirely unfounded and have no place in a court of law: see R. v. A.G., 2000 SCC 17, [2000] 1 S.C.R. 439, at para 2. Such myths and stereotypes should not be considered when deciding this case.

[80] In particular, the myth that complainants in sexual offence cases have a higher tendency than other complainants to fabricate allegations based on “ulterior motives” and are therefore less worthy of belief, is not supported by social science, the law, or judicial experience. It is a myth. There is no basis to believe that sexual offence complainants are more likely to fabricate allegations than complainants of any other type of crime. The Supreme Court of Canada has clearly stated that sexual assault complainants should not be treated as inherently suspect: see A.G., at para. 3.

[81] No inference should be drawn regarding a complainant’s credibility that is based on assumptions about how a victim of sexual offence is “supposed” to react to the assault: see A.R.J.D., at para. 2.

[82] It is a myth that failure to fight back means that no sexual assault occurred. Complainants know that there is no response on their part that will assure their safety: see M.D., at para. 17.

[83] It is also a myth that failure to scream or call out means that no sexual assault or other sexual offence occurred or that the complainant consented. There is no “right” way to respond during a sexual assault. It would be stereotypical to assume that sexual assault victims tend to scream for help. Some will, others will not. See R. v. Kiss, 2018 ONCA 184, at para. 101.

[84] It is also a myth to expect that a complainant will change their behaviour or take steps to avoid their abuser. The Supreme Court has clearly stated that the lack of avoidant behaviour on the part of a complainant is not relevant in a sexual assault trial: see A.R.J.D., at para. 2. It would be an error to conclude that a complainant is less worthy of belief because she or he failed to avoid having contact with the accused. To do so would be to rely on the myths that a complainant will take steps to avoid her or his abuser or immediately tell someone what had occurred. See R. v. A. R.D., 2017 ABCA 237, 422 D.L.R. (4th) 471, at para. 39, aff’d 2018 SCC 6, [2018] 1 S.C.R. 218.

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

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

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

[88] It remains impermissible, however, to reason that a complainant is telling the truth by the mere fact that they have pursued a complaint and shown willingness to undergo “the unpleasant rigours of a criminal trial.” To reason in this way would reverse the burden of proof and evince stereotype. See R. v. J.C., 2021 ONCA 131, 401 C.C.C. (3d) 433, at paras. 88-89.

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

(g) Motive of the accused

[90] Motive is a reason why somebody does something. It is not one of the essential elements that the Crown must prove. One does not need to find a motive for what S.S. is alleged to have done in order to find him guilty of one or all of the offences for which he is charged.

[91] A person may be found guilty of an offence whatever his or her motive, or even without a motive. Absence of proven motive, however, is a circumstance to be considered and is one which may tend to support the presumption of innocence. A person may also be found not guilty of an offence, even with a motive to commit it. See R. v. Lewis, [1979] 2 S.C.R. 821, at 831-838.

(h) Motive of the complainant to lie

[92] In this case, there is no onus on the accused to prove that the complainant, his mother, or his grandfather had a motive to lie.

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

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

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

[96] The application of these principles was addressed in R v. Ignacio, 2021 ONCA 69, 400 C.C.C. (3d) 343, where Pepall J.A. writing for the court stated, at paras. 29-30:

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

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

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

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

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

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

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

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

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

[98] In R. v. Gerrard, 2022 SCC 13, 413 C.C.C. (3d) 487, the Supreme Court of Canada succinctly summarized the relevant factors, at paras.4-5:

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

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

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

[99] At the time of trial, I.S. was 19 years old. The complainant testified about events that allegedly occurred when he was under the age of 16. At the time of the alleged commission of the offences against him, I.S. was 14 years old.

[100] Every person giving testimony in court, of whatever age, is an individual, whose credibility and evidence must be assessed by reference to criteria appropriate to their mental development, understanding and ability to communicate. When adult witnesses testify about events that occurred when they were a child, their evidence should be assessed by the criteria applicable to adult witnesses, not by the somewhat relaxed criteria applicable to child witnesses.

[101] However, when an adult witness gives evidence about events that took place in childhood, inconsistencies and lack of memory, particularly as to peripheral matters such as time and location, should be considered in the context of the age of the witness at the time of events about which the witness is testifying.

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

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

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

[6] However, “[in] general, where an adult is testifying as to events which occurred when she was a child, her credibility should be assessed according to criteria applicable to her as an adult witness”: R v. W. (R.), at para. 27. The trial judge cited this principle correctly but misapplied it.

[103] At para. 8, the court continued:

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

[104] At para. 9, the court concluded:

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

Essential Elements of the Offences Charged

(a) Essential Elements of Sexual Interference

[105] The essential elements of the offence of sexual interference per s. 151 of the Criminal Code are:

(i) that the complainant was under 16 years old at the time;

(ii) that accused touched the complainant; and

(iii) that the touching was for a sexual purpose.

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

[107] Further, as stipulated in s. 274 of the Criminal Code, if an accused is charged with an offence under the same ss. 151 or 152, no corroboration is required for a conviction.

(b) Essential Elements of Invitation to Sexual Touching

[108] The essential elements of the offence of invitation to sexual touching per s. 152 of the Criminal Code are:

(i) that the complainant was under 16 years of age at the time;

(ii) that S.S. invited the complainant to touch his body; and

(iii) that the touch S.S. invited was for a sexual purpose.

[109] Touching is done for a sexual purpose where it is done for the accused’s sexual gratification, or for the purpose of violating the complainant’s sexual integrity, including any act meant to degrade or demean the complainant in a sexual way: see R. v. Morrisey, 2011 ABCA 150, at para. 21.

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

(c) Essential Elements of Sexual Assault

[111] The essential elements of the offence of sexual assault per s. 271 of the Criminal Code are:

(i) there was touching;

(ii) the complainant did not consent to the touching;

(iii) S.S. knew the complainant did not consent to the touching; and

(iv) the touching was objectively sexual in nature.

[112] In its decision, R. v. G.F., 2021 SCC 20, the Supreme Court of Canada set out the essential elements of the offence of sexual assault contrary to s. 271 of the Criminal Code. At para. 25, the court states (citations omitted):

[25] The actus reus of sexual assault requires the Crown to establish three things: (i) touching; (ii) of an objectively sexual nature; (iii) to which the complainant did not consent. The first two elements are determined objectively, while the third element is subjective and determined by reference to the complainant’s internal state of mind towards the touching. At the mens rea stage, the Crown must show that (i) the accused intentionally touched the complainant; and (ii) the accused knew that the complainant was not consenting or was reckless or wilfully blind as to the absence of consent. The accused’s perception of consent is examined as part of the mens rea, including the defence of honest but mistaken belief in communicated consent.

Analysis

(a) The testimony of the accused, S.S.

[113] The accused denies that he had any contact with the complainant in the basement of R.L.’s home in August 2018 and denies any form of sexual activity with I.S. I do not believe the evidence of S.S. and it leaves me with no reasonable doubt about his guilt. I have reached this conclusion because there are a number of difficulties with the testimony of the accused. These difficulties include:

• In his examination in chief, the accused testified that he had never seen the complainant in the basement of R.L.’s home. He also stated in chief, however, that’s when R.L.’s grandchildren came over to visit, they would be upstairs and, in the basement, “but mostly upstairs”. It is incredulous to me that the accused observed the complainant’s three siblings in the basement, but never I.S., when they came to visit their grandfather.
• In contrast to his in chief testimony, S.S. testified on cross-examination that he never saw R.L.’s grandchildren in the basement. When the inconsistency in the accused’s testimony was challenged by Crown counsel, the accused became agitated and insisted that “I am not changing my story”.
• S.S. testified that tensions routinely run high in a busy restaurant kitchen and arguments between kitchen staff are the norm. S.S. admitted to having many disagreements with the complainant over operational issues. Notwithstanding this history of arguments, the accused testified that an argument in mid August 2020 in which the complainant called him a “drama queen” caused him to quit his job at R.L.’s restaurant. In the words of the accused, he could no longer work in an environment where he is “disrespected”. In these circumstances and given that S.S. did not impress me as a sensitive individual, I do not accept his reason for leaving the Kitchener restaurant. I also reject S.S.’ reason for his resignation given his close relationship with R.L., who treated the accused as a son and with whom there was no precipitating event to trigger the accused’s decision to find employment elsewhere. The accused’s stated reason for finding work elsewhere is flimsy at best.
• Notwithstanding that the accused was assisted with a Hindi interpreter at trial, he testified that in August 2020 his English “was good.”
• In an email exchange between the accused and R.L., sometime in August or September 2020, and after the accused resigned from R.L.’s restaurant, R.L. demanded the removal of his name from S.S.’ car loan and accused S.S. of sexually assaulting the complainant. R.L. also wrote “Bring the car or I’m going to police.” When the accused was asked to explain his understanding of R.L.’s threat to go to the police, S.S. avoided answering the question and simply read aloud the text exchange. In my view, the accused’s avoidance of the clear question put to him by his counsel, calls into question his credibility.

[114] For these reasons, I find that the evidence of the accused contains inconsistencies and is at times illogical. I also find that the accused is prepared to sidestep questions that are not favourable to his position. In short, I find the accused is prepared to mislead the court. For these reasons, I do not believe the evidence of S.S. and nor does it leave me with a reasonable doubt.

[115] This conclusion, however, does not satisfy the Crown’s burden of proof. Although I am left with no reasonable doubt by the evidence of the accused, I must still ask whether, after considering the accused’s evidence in the context of the evidence as a whole, I have reasonable doubt of the accused’s guilt.

(b) Motive of the Complainant and his Family to Lie

[116] The defence urges me to accept its position that the allegation of I.S, as supported by his mother and grandfather, are a vindictive and retaliatory response to the accused’s decision to leave his position at R.L.’s restaurant and take up employment at a restaurant in Orangeville. While I accept that the success of R.L.’s restaurant was of the utmost importance to the complainant and his family and that the accused played an important role in the business operations, I reject the argument that there is sufficient evidence to conclude that the complainant and his family were motivated to fabricate the allegations of sexual misconduct by S.S.’ departure.

[117] I accept that R.L. was upset with the resignation of S.S., asked the accused to stay on and asked the accused to continue to help with the restaurant operations by making the curry sauce after his departure. However, this evidence does not support a finding in favour of the defence theory.

[118] It was not R.L. who initiated the allegations of sexual misconduct against the accused. Additionally, there is no evidence to suggest that R.L. influenced his grandson to do so. On the contrary, there is unchallenged evidence that the complainant argued with the accused over restaurant operational issues because the complainant challenged and disagreed with the accused’s actions and decisions. In their last argument of August 2020, the complainant was concerned that the accused would cause the failure of the family business. Whereas R.L. may have been angered by S.S.’ departure, there is no evidence to suggest that the complainant shared his grandfather’s opinion and was therefore motivated to inflict harm on S.S. at any cost for his abandoning the family restaurant.

[119] Having found an absence of evidence of a motive to fabricate, I remind myself that it does not necessarily follow that the complainant must be telling the truth. The absence of evidence of a motive to fabricate is nonetheless a factor for assessment of a witness’ credibility and reliability.

(c) The complainant’s evidence

[120] Although I find I.S. to be generally credible, there are nonetheless difficulties with his evidence, including issues of reliability and some obvious inconsistencies.

[121] It is troublesome that when the complainant was asked on cross-examination if he was upset that his grandfather refused to terminate S.S’ employment after learning of his alleged sexual misconduct, the complainant evaded the question. Instead of answering it directly, he responded by saying that he respected his grandfather’s decision. The question was an important one and the complainant’s answer should not leave one confused as to his emotional reaction.

[122] Otherwise, certain answers of the complainant raise concerns with respect to the reliability of his evidence because of his inability to recall important details:

• In cross-examination, I.S. could not recall if he and the accused watched pornography together on the August 2018 evening. Although I accept that the complainant was traumatized by the alleged events, I would have expected him to have remembered this detail which I view as significant.
• Equally important, I.S. could not recall in cross-examination if he ejaculated after the accused performed oral sex on him. It is troubling that the complainant was not able to recollect this detail when he described with precision the accused’s actions and his own responses preceding the alleged fellatio.
• The complainant has no recollection of the specific manner in which the accused apologized in the summer of 2019. When pressed on cross-examination, his best recollection was that the accused stated, “I apologize for what I did.” To my mind, the complainant’s response was contrived in an effort to change the subject.
• Notwithstanding the complainant’s overriding concern that third parties outside of his family may find out about that the alleged events in his grandfather’s basement in August 2018, I.S. could not recall if the accused ever threatened to tell others of the alleged inappropriate sexual activity. Given the complainant’s preoccupation with public disclosure of the alleged events, one would have expected this issue to be well defined in I.S.’s mind.

[123] There are also inconsistencies in the testimony of the complainant. While I am mindful that not all inconsistencies are of equal importance, in my opinion the following inconsistencies in I.S.’ evidence undermine the reliability, and in certain instances, the credibility of his testimony and weaken his version of the events:

• In his October 10, 2020, police interview, where the complainant agreed to tell the truth to the investigating officer, he stated that the accused made him take his clothes off. However, in his examination in chief, the accused testified that S.S. undressed him.
• The complainant stated in his police interview that he went to the basement of his grandfather’s house on the evening in question because he did not want to be loud on his phone and wake his great grandparents who were asleep on the main floor. In cross-examination, however, I.S. explained that he went to the basement because it was cooler than the main level and he needed to ensure that “everything was off” downstairs.
• At trial, the complainant testified for the first time that when he was reluctant to participate in the accused’s proposed illicit sexual activity, the accused became angry and raised both hands in a fist like motion. I.S. testified that he felt threatened. The complainant went further by stating that “the anger [the accused] had with his fists” was traumatizing. If the accused’s anger and threatening conduct were so shocking to the complainant, I would have thought that he would have provided details of this core event at his police interview or the preliminary inquiry, or both. The complainant’s earlier omission of this fact is significant in my view. I also recognize that the disclosure of sexual abuses can be incremental in nature.
• In cross-examination, the complainant stated that he had no social interaction with the accused after the alleged August 2018 incident, the accused is not someone he would like to see outside of work, and he would not go out socially with the accused and his wife. I.S. also stated “I just stayed away from him other than when [he] needed to be in the kitchen”. However, when shown a video of himself in a shisha bar, the complainant admitted that after he disclosed the alleged events of August 2018 to his parents, he went to the bar with the accused and his wife. Later in cross-examination, he also conceded that he both helped prepare for and attended the accused’s birthday party where he was responsible for taking photographs of the accused and the guests.
• When the obvious significant inconsistency was pointed out to the complainant, he stated that he was confused by defence counsel’s otherwise very clear question: “Did you have any social interaction with the accused from the time of the incident to the time you went to the police?” In a further attempt to explain away at least certain of the conflicting statements, the complainant denied saying that he would not socialize with the accused and his wife but instead confirmed in evidence that he would not go out alone with S.S. In my view, the complainant’s efforts to reconcile his contradictory testimony failed.

(d) The complainant’s mother’s evidence

[124] There are also aspects of J.S.’ evidence that cause me to question if the alleged events of August 2018 unfolded as described by the complainant.

[125] J.S. testified that it was the complainant’s routine to check on his great grandparents and leave when her father was not at home. She also agreed with defence counsel’s suggestion that it did not make a lot of sense for the complainant to sleep overnight at his grandfather’s house if R.L. was not there. Furthermore, J.S. offered no explanation for the complainant’s decision to spend the night in August 2018 when R.L. was away at the cottage.

[126] While J.S. was outraged in July 2019 when she learned of the accused’s alleged illicit behaviour, only a few weeks later, on August 6, 2019, she signed a letter of recommendation in support of the accused’s immigration application. In her letter, she described the accused as “a person of good moral character”, and a “reliable, trustworthy and decent person”. She also stated that she was “honoured” to be a witness at his wedding and “would highly recommend [the accused] to anyone.”

[127] In response to defence counsel’s question if she was lying in the letter about the accused’s character, J.S. sidestepped the inquiry by responding that she promised to provide a letter of recommendation prior to learning of the alleged assaults. Later when pressed to explain why she described the accused as positively as she did, J.S. again avoided the question by stating that she did not recall writing the letter. For his part, however, R.L. confirmed that J.S. was the author of the letter that she signed as well as of a similar letter of recommendation drafted for his signature. In my opinion, J.S.’ outrage at the accused’s alleged sexual assaults on her son and her subsequent positive character description of the accused to the federal immigration authorities are irreconcilable.

[128] The Crown submits that the reference letter can be explained on the basis that J.S. was incorrect about when she learned of the alleged assaults. The Crown submits that it was likely not July 2019 but some time after August 6, 2019. While this submission would provide a logical explanation for the delivery of the letter, J.S.’s evidence is unequivocal regarding the July 2019 disclosure date, and I find as a fact that J.S. learned of the alleged incidents in July 2019.

[129] Equally inconsistent are J.S.’ statement that she would never knowingly permit her son to be alone in the accused’s presence outside of the restaurant and her text, which she admits sending after July 2019, in which she asks the accused to drop the complainant off at “McDonald’s” after work. In an attempt to minimize the inconsistencies between her testimony and the text, J.S. explained that when she sent the text message, she thought the accused’s wife would be with him as she always accompanied him. In my view, J.S.’s explanation does not resolve the significant differences between what she said in court and did outside of the court room.

[130] Lastly, it is incredulous that on the one hand, J.S. testified that she was both heartbroken and angered that her son was the victim of sexual assault at the hand of the accused, and on the other hand, she permitted her 14-year-old son to continue to work at her father’s restaurant with the accused because the complainant wanted to continue to work there. Even with the safeguards of “keeping an eye on him” by means of a video camera and texting and calling I.S., it is illogical that J.S. would subject her son to potential danger out of respect for “his feelings and wishes”, as she explained it. There is a disconnect between J.S.’ feelings as a responsible mother and her actions.

(e) The complainant’s grandfather’s evidence

[131] Certain aspects of R.L.’s evidence also cause me to pause and question whether the events of the August 2018 evening unfolded as alleged. There are also inconsistencies in R.L.’s evidence which undermine the reliability and credibility of his evidence.

[132] R.L. testified that prior to the alleged events of the summer of 2018, his grandson did not often visit him. His evidence conflicts with the testimony of the complainant who stated his visits to R.L.’s home occurred weekly. R.L. also testified that when I.S. did visit, he did not go to the basement because there was no reason for him to go there.

[133] Like his daughter, R.L. admitted to signing a letter, dated August 7, 2019, in support of the accused’s Canadian immigration application, after I.S.’ disclosure. Like his daughter, when R.L. was asked on cross examination if he was lying when he described the accused as “extremely trustworthy”, “genuine”, “caring”, and a “respectful person of good moral character”, he too avoided the question by suggesting that he did not read the letter drafted by his daughter before signing it and that the accused “changed after this letter”.

[134] In re-examination, R.L. gratuitously stated that the accused had betrayed him. When asked to explain how he had been betrayed by S.S., R.L. explained that his trust in the accused had been broken by his leaving the restaurant after having done “so many things” for S.S. Only after Crown counsel prompted R.L. to explain if the accused had betrayed him in any other way, and some thought, did R.L. refer to the alleged acts of sexual assault on his grandson. Even for a person like R.L., who separates his private life from his business affairs, R.L.’s primary focus of the accused’s betrayal is uncharacteristic for a grandfather whose young grandson was violated sexually.

[135] Finally, I find that the following inconsistencies in R.L.’s testimony call into question the reliability and credibility of his evidence:

• R.L. testified that the accused’s resignation from the restaurant was unsolicited following his argument with the complainant. Later in his examination in chief, however, R.L. stated that he asked S.S. to leave because of his “big fight” with the complainant.
• On the one hand, R.L. stated that he was upset with the accused’s departure from the restaurant because of his less than sufficient two weeks notice. On the other hand, R.L. testified that his experience is that restaurant staff come and go often and all he asks is that departing employees provide adequate notice of two weeks.
• R.L. testified that he never told any of his employees about the alleged incident giving rise to the accused’s charges because he did not want to ruin his reputation. However, in an acknowledged tape recording of a conversation between himself and an employee, R.L. referred to illicit sexual contact between his grandson and S.S. When defence counsel pressed R.L. to concede the contradiction, he attempted multiple times to avoid the question and ultimately suggested the recording was a “set up”.

Conclusion

[136] It is not the role of the court to resolve the factual question of what happened between the complainant and the accused. The court must determine whether the essential elements of the charges against S.S. have been proven beyond a reasonable doubt.

[137] Taken together, viewing the evidence as a whole, doubts and questions emerge. The complainant’s version of the alleged events is weakened to such a degree that I cannot find beyond a reasonable doubt that S.S. committed any of the three offences with which he is charged. I am not sure. The rigour of the standard of proof beyond a reasonable doubt is our society’s bulwark against the potential for wrongful conviction and must not be diluted. Given my doubt, founded in part due to the inconsistencies in the evidence, it would be unreasonable to convict S.S.

[138] Accordingly, I must, and do, acquit the accused of all charges against him.

M.J. Valente J. Released: April 8, 2024