COURT FILE NO.: CR-22-50000266

DATE: 20240110

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

– and –

I.C.

Defendant

Simran Dosanjh and Robert Kennedy, for the Crown

Brian Brody, for the Defendant

HEARD: December 1, 2023

SPIES J. (Orally)

RESTRICTION ON PUBLICATION: Subject to any further Order by a court of competent jurisdiction, an Order has been made in this proceeding directing that the identity of the complainant and any information that could disclose such identity shall not be published in any document or broadcast in any way PURSUANT TO S. 486.4(2) OF THE CRIMINAL CODE.

REASONS FOR SENTENCE

Overview

[1] On September 28, 2023, following a trial by judge and jury, I.C. was found guilty of one count of sexual interference contrary to s. 151(a) of the Criminal Code and one count of sexual assault contrary to s. 271(a) of the Criminal Code, both against his stepdaughter, A.W. He is now before me for sentencing.

[2] At the outset of the sentencing hearing, Ms. Dosanjh for the Crown agreed that one of the convictions should be conditionally stayed pursuant to the principles in R. v. Kienapple, [1974] S.C.J. No. 76 (S.C.C.), because both convictions arose out of the same circumstances. As she requested, a conviction on count # 1, the charge of sexual interference was entered and count # 2, the charge of sexual assault, was conditionally stayed.

[3] As I will come to, after making my findings of fact for the purpose of sentencing, I was not able to decide what an appropriate sentence for I.C. is, based on the original submissions of counsel, and so I asked that counsel reattend to provide further submissions on sentence. These reasons therefore only deal with the first part of my reasons for sentencing I.C.

The Facts

Circumstances of the Offences

[4] At trial the Crown called the complainant, A.W. Mr. Brody called her mother, T.S. and I.C.

[5] The Crown relied on A.W.’s evidence with respect to two incidents of sexual touching by I.C. that were alleged to have occurred between January 1, 2008, and December 31, 2010, when the complainant was between eight and 10 years old. I.C. is her stepfather, and the incidents were alleged to have occurred in the home where the family was living.

[6] A.W. testified at trial that on one occasion while I.C. was lying on the bed in the master bedroom, he pulled her up onto his pelvis, and started moving up and down. She testified that he would not stop, and she felt his penis becoming erect. Before the jury this incident was called the “Horsey Incident,” as A.W. testified that I.C. had told her he wanted to “play horsey.” A.W. alleged that on a second occasion while she was lying on the bed in the master bedroom, I.C. came into the room, pulled her pants down and put his mouth on her vagina. This incident was referred to as the “Oral Incident” at trial.

[7] Ms. Dosanjh submits that both incidents ought to be considered as aggravating factors for the purpose of sentencing and that I ought to accept all the evidence of the complainant at its highest. With respect to the Horsey Incident, she submitted that I should accept A.W.’s evidence at trial that she felt I.C.’s erection. As for the Oral Incident her position is that I should find that I.C. pulled A.W.’s pants down and actually put his mouth to her vagina. Mr. Brody based his sentencing submissions on the factual basis argued by Ms. Dosanjh and did not submit that I should find that any of these aggravating factors were not proven beyond a reasonable doubt for the purpose of sentencing.

[8] Although I accept that the jury may have accepted all of A.W.’s evidence at its highest and rejected all of I.C.’s, given the ambiguity of the jury verdict that is not necessarily the conclusion I must come to. Given that the jury could have come to its decisions in a number of ways, I must make my own findings of what I am satisfied the Crown has proven occurred before I can proceed to sentence I.C. I will come to that analysis.

Circumstances of I.C.

[9] Neither counsel requested a pre-sentence report. I have, however, I.C.’s evidence at trial about his background and Mr. Brody provided additional information that is relevant to sentencing, which I have considered.

[10] I.C. is 45 years old. He has no criminal record and no outstanding charges. He was born in Jamaica and after he turned 13, with only a Grade eight education, he started to work full time as his family was not able to afford to send him to high school. I.C. came to Canada on his own in 2007. At that time, he was not married and had no children. He only has cousins in Canada, one of whom was in court at the time of the sentencing hearing. I.C. has been a Canadian citizen since 2011. He met T.S. in mid-July 2007, and they were married in early 2008. They have three daughters together who are under the age of 16. They separated in April 2016 when I.C. left the matrimonial home. I.C. had various jobs in Jamaica and has been employed since he came to Canada, in various capacities until he suffered a serious injury to his foot in September 2010.

[11] I.C. spent two days in custody following his arrest on July 26, 2021, and has been on bail since his release. For the past two-and-one-half years he has not been able to see his biological children although according to Mr. Brody, I.C. has been paying support. There is no evidence that I.C. has acted inappropriately with respect to any of his children or with any other person apart from the offences concerning A.W.

[12] As is his right, I.C. chose not to address this court at the end of his sentencing hearing.

Circumstances of the Complainant

[13] A.W. was 23 at the time of the trial. She described, in her evidence in-chief, how, because of these incidents, she did not feel safe at home, she struggled with internal battles about whether she could tell her mother about what had happened to her, she developed self-destructive coping mechanisms and internalized blame, and became an angry person. In cross-examination A.W. described the trauma she experiences and how she has difficulty trusting men because of what I.C. did to her when she was a child.

[14] I received a Victim Impact Statement (“VIS”) from A.W. She reports a number of adverse impacts. She feels “traumatized” every day and states that she is “broken” in many pieces that no one can understand. A.W. reports that she has bad dreams and is not herself more often. She drinks but that makes her angry and affects her family and relationships. She is sexually detached from feelings during intimacy and cannot enjoy sex with a man. A.W. states that she is scared of men because of I.C. and is at the point where she feels like she would raise children without any male figure around. She is afraid of older men around children, especially her family members, as she does not want anyone to go through what she went through. A.W. also states that she missed time from work and cannot pay for “school (OSAP),” which I presume refers to her student loans. A.W. prays that she will take the experiences from the past and become a stronger woman in the future.

[15] A.W.’s mother also testified at trial about the impact these offences had on her. Hearing what her daughter alleged I.C. did to her traumatized her as well, particularly given that she was abused as a child. There were also resulting issues in her relationship with her daughter.

Positions of Counsel

[16] The Crown seeks a five-year penitentiary sentence, less pre-sentence custody of three days, along with the following ancillary orders:

a) a DNA order, pursuant to section 487.051(1) of the Criminal Code,

b) a mandatory weapons prohibition order for a period of 10 years, pursuant to s. 109(1) and (2) of the Criminal Code,

c) an order that I.C. comply with the provisions of the Sex Offender Information Registration Act, pursuant to s. 490.012 of the Criminal Code,

d) an order pursuant to s. 743.21 of the Criminal Code, prohibiting I.C. from communicating with A.W. during the custodial period imposed; and

e) an order, pursuant to s. 161 of the Criminal Code, prohibiting I.C. for a 10-year period from:

i) attending a public park or public swimming area where persons under the age of 16 years are present or can reasonably be expected to be present, or a daycare centre, schoolground, playground or community centre; from being within two kilometers of any place where A.W. ordinarily resides, attends school, or is known by I.C. to be,

ii) seeking, obtaining or continuing any employment, whether or not such employment is renumerated, or being a volunteer in a capacity that involves being in a position of trust or authority towards persons under the age of 16 years, and;

iii) having any contact with a person who is under the age of 16 years old, pursuant to s. 161(1)(b) of the Criminal Code.

[17] Ms. Dosanjh submitted that this order should include I.C.’s biological daughters.

[18] Mr. Brody submitted that a fit sentence in all the circumstances would be between two-and-one-half and three years in custody if this court accepts the complainant’s evidence at its highest. With respect to the ancillary orders requested, the only issue Mr. Brody raised was the ability of I.C. to see his biological daughters.

Findings of Fact after a Jury Verdict

The Law

[19] In R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96, the Supreme Court considered the findings of fact open to a judge after a jury’s verdict and provided guidance as follows commencing at para. 15:

15 The appropriateness of a sentence is a function of the purpose and principles of sentencing set out in ss. 718 to 718.2 of the Criminal Code as applied to the facts that led to the conviction. …

16 This poses a difficulty in a case such as this, since, unlike a judge sitting alone, who has a duty to give reasons, the jury gives only its ultimate verdict. The sentencing judge therefore must do his or her best to determine the facts necessary for sentencing from the issues before the jury and from the jury's verdict. This may not require the sentencing judge to arrive at a complete theory of the facts; the sentencing judge is required to make only those factual determinations necessary for deciding the appropriate sentence in the case at hand.

17 Two principles govern the sentencing judge in this endeavour. First, the sentencing judge "is bound by the express and implied factual implications of the jury's verdict" …. The sentencing judge "shall accept as proven all facts, express or implied, that are essential to the jury's verdict of guilty" (Criminal Code, s. 724(2)(a)), and must not accept as fact any evidence consistent only with a verdict rejected by the jury …

18 Second, when the factual implications of the jury's verdict are ambiguous, the sentencing judge should not attempt to follow the logical process of the jury, but should come to his or her own independent determination of the relevant facts ... In so doing, the sentencing judge "may find any other relevant fact that was disclosed by evidence at the trial to be proven" (s. 724(2)(b)). To rely upon an aggravating fact or previous conviction, the sentencing judge must be convinced of the existence of that fact or conviction beyond a reasonable doubt; to rely upon any other relevant fact, the sentencing judge must be persuaded on a balance of probabilities: ss. 724(3)(d) and 724(3)(e). It follows from the purpose of the exercise that the sentencing judge should find only those facts necessary to permit the proper sentence to be imposed in the case at hand. The judge should first ask what the issues on sentencing are, and then find such facts as are necessary to deal with those issues.

19 Following these principles, the trial judge in this case was required to find facts, consistent with the jury's manslaughter verdict, to the extent that this was necessary to enable him to sentence Constable Ferguson… [Citations omitted, emphasis added]

[20] I was also referred to a decision of Allen J. of this court; R. v. J.P., 2019 ONSC 6298, where the defendant was found guilty of sexual interference and sexual assault. Hundreds of incidents were alleged, including touching of the complainant’s buttocks as well as several instances of sexual intercourse. The offender was the complainant’s stepfather, and the assaults took place over the course of six years. Justice Allen found serious credibility issues in the complainant's testimony, particularly inconsistencies in her statements as well as credibility, reliability, and plausibility problems in the allegations.

[21] At para. 10 Justice Allen stated as follows:

The following considerations assist the sentencing judge in arriving at factual findings:

(a) The sentencing judge must not attempt to reconstruct the jury's logical reasoning which recognizes that jurors arrive at a unanimous verdict for different reasons and on different theories of the case.

(b) It is speculative and artificial to attribute a single set of factual findings to the jury unless it is clear that the jury must have unanimously … found those facts.

(c) Where any ambiguity on this exists the trial judge should consider the evidence and arrive at his or her own findings of fact consistent with the evidence and the jury's findings.

(d) The jury must be given the benefit of the doubt regarding the basis on which an accused was convicted by the jury.

(e) For the purpose of sentencing, in cases involving significant credibility and reliability issues, it is open to the sentencing judge to find the minimum consistent facts consistent with the jury verdict.

(f) The offender is not entitled to the most lenient interpretation of the jury's verdict. …

[22] At para. 51, Justice Allen concluded:

This is clearly a case with substantial credibility and reliability problems for NP. It is therefore, for the purpose of sentencing, open to me to find the minimum consistent facts consistent with the jury verdict. NP testified that some incidents involved JP touching her buttocks. I accept the defence's submission that there is the factual basis to find that one incident of JP touching her buttocks has been proven beyond a reasonable doubt and that those facts can support the charge of sexual interference and sexual assault.

[23] In the subsequent decision on sentence, Justice Allen sentenced J.P. to 60 days in custody with two years’ probation: R. v. J.P., 2019 ONSC 7047. The conviction was upheld on appeal: R. v. J.P., 2023 ONCA 570. Justice George endorsed Justice Allen’s decision to make "minimum findings of fact consistent with the jury’s verdict": at para. 52 and rejected the submission that the findings of fact for the purposes of sentencing made the decision unreasonable.

[24] The other decision of assistance on this point that Justice Allen referred to is R. v. M. (L.) 2017 ONCA 33, [2017] O.J. No. 211, where the Court acknowledged the trial judge’s advantage of observing the complainant testifying in court. The Court upheld the trial judge’s decision to reject some of the complainant’s evidence about incidents of sexual abuse by the offender because of obvious credibility and reliability issues with the complainant’s evidence that arose in the facts before the jury.

The Evidence

[25] With these legal principles in mind, I turn to the evidence heard by the jury.

[26] With respect to the Horsey Incident, A.W. testified that I.C. pulled her on top of his pelvis, while he was lying on the bed in the master bedroom, and that he then began to move her up and down for about 20-30 seconds. In cross-examination A.W. testified that this was how long she felt the erection. There was an inconsistency in her evidence as to how long the incident itself lasted. She testified that I.C. held her by the arms and refused to stop when she asked him to. He got “more aggressive” and told her that “horsey doesn’t want to stop”. A.W. also testified that she felt something that she now knows was an erection – in other words, an erect penis. After she asked him to stop a number of times, I.C. let go of her arms and she got off the bed. I.C. denied what A.W. alleged, and in particular that she was ever in his lap when he was pretending to be a horse or that he ever had an erection in these circumstances. I.C. testified that they did innocently play “horsey” at times, with A.W. on his back but she denied that.

[27] With respect to the Oral Incident, A.W. testified that on one occasion while she was relaxing on the bed in the master bedroom, I.C. came into the room, pulled her pajama bottoms and underwear down and he put his mouth on her vagina for about 20 seconds. She started squirming away, but I.C. held down her thighs. She was able to get away and pull her pants up. A.W. testified in chief that she told I.C. that she was going to tell her mother and he screamed at her that her mother would not believe her. She also testified in chief that this was the only time she threated to tell her mother. I.C. testified that this never occurred and that he found this type of conduct with a child to be disgusting.

[28] In cross-examination A.W. admitted that I.C. did not act inappropriately towards her after 2010.

[29] With respect to the essential elements of the offences, and with respect to the requirement to find that I.C. “touched” A.W., I advised the jury that the physical contact could be direct, for example, touching A.W.’s body with a hand or some other part of I.C.’s body or that it might be indirect, for example, by I.C. touching A.W. through clothing. I also instructed the jury that force was not required.

[30] There was no suggestion from the evidence that the touching alleged in either of these incidents could have been accidental, and so in the case of the charge of sexual interference the issue was whether or not the Crown had proven beyond a reasonable doubt that the touching was for a sexual purpose, namely that the touching was done for I.C.’s sexual gratification or for the purpose of violating A.W.’s sexual integrity, including any act meant to degrade or demean A.W. in a sexual way. In the case of the charge of sexual assault, the issue was whether the Crown had proven beyond a reasonable doubt that the touching was of a sexual nature, namely that the intentional touching violated the sexual integrity of A.W. and included any act that was meant to degrade A.W. for sexual pleasure.

[31] With respect to the jury’s finding of guilt on the charge of sexual interference, the jury must have found beyond a reasonable doubt that I.C. intentionally touched A.W. for a sexual purpose. With respect to the finding of guilt on the charge of sexual assault, the jury must have found beyond a reasonable doubt that I.C. not only intentionally touched A.W. but that the touching was in circumstances of a sexual nature.

[32] As I have said, the Crown relied upon both incidents at trial in support of each of the charges. Ms. Dosanjh submitted that for the purpose of sentence this court should consider both incidents. However, I instructed the jury that they were entitled to reach their verdicts by different routes and that they were not required to be unanimous as to their views of the evidence. I also instructed the jury that even if they found that the Crown had only proven that one of the incidents occurred, that would be enough and that they did not have to find that the Crown had proven both incidents occurred in order to convict I.C. of one or both of the charges. Given the findings of guilt made by the jury on both counts, I do not know if the jury found that the Crown had proven that both incidents had occurred or not. I also do not know if the jury only found one of the incidents to be proven, which incident that was. As a result, before I can proceed to sentence I.C., I must make my own findings of what I am satisfied the Crown has proven occurred, provided my findings comply with the principles set out in Ferguson, supra.

My Findings

[33] I turn first to the credibility of the witnesses. With respect to the credibility of I.C., the jury must have rejected at least some of his evidence and in particular they must have rejected his denial that he had never touched A.W. in the manner that she described. However, as already stated, given my instructions to the jury, they may only have found that the Crown had proven beyond a reasonable doubt that one of the incidents occurred. That would have been enough to convict I.C. of both of the charges. It is therefore unclear whether the jury accepted some, none, or all of I.C.’s evidence with respect to one of the incidents.

[34] Since I.C. testified, and called defence evidence, the principles set out in R. v. W.(D.), [1991] 1 S.C.R. 742 apply. Further, in assessing the evidence of I.C., I am entitled to consider it in the context of all of the other evidence. This is not a credibility contest and W.(D.) prohibits me from concluding that the Crown has met its burden simply because I might decide to prefer the evidence of the complainant to that of I.C. As I am faced with contradictory versions of what happened in this case, I would add that if, after considering all of the evidence, I am unable to decide whom to believe with respect to one of the alleged incidents, then I am not able to find that the Crown has proven that incident beyond a reasonable doubt.

[35] Although demeanour of a witness when giving evidence is not considered that important in assessing credibility, I do find that I.C. was responsive to the questions asked by Ms. Dosanjh, and he did not seem hostile to the Crown. His evidence was internally consistent and, in some respects, did not favour his interests. The position of the Crown was essentially that his evidence that he did not assault the complainant as she alleged should not be accepted.

[36] The defence also called T.S., A.W.’s mother, as a witness. She testified that her daughter told her about these incidents in July 2021 and that she brought her to the police where both she and her daughter gave video statements to Det. Hyatt. I had no difficulty with most of her evidence save for one issue I will come to.

[37] As for the credibility and the reliability of the evidence of A.W., her credibility was the central issue at trial, and I gave the jury lengthy instructions in that regard. I will apply those instructions in my assessment of her credibility. I begin by rejecting the Crown’s submission that I should accept all of A.W.’s evidence just because the jury must have accepted at least some of it. As I instructed the jury in considering the evidence, I am entitled to believe all, some, or none of each witness’s evidence.

[38] In addition to the usual tools, we have to assess credibility. There is the fact that A.W. testified about events that occurred when she was a child, between the ages of eight and 10. She was 21 when she reported the allegations to her mother and Det. Hyatt and 23 when she testified at trial. I instructed the jury as to the proper approach in these circumstances as set out in R. v. R.W., [1992] 2 S.C.R. 122 at paras. 24-25. As a result, I will consider A.W.’s age at the time of the incidents she alleged as relevant when considering inconsistencies in her evidence, particularly with respect to peripheral matters. I accept that this could explain, for example, why A.W. could not be more precise as to when she alleged the events occurred or details as to the number of children in the house during the Horsey Incident or whether the door to the master bedroom was open or closed.

[39] I.C. and A.W.’s mother separated in April 2016. Mr. Brody argued that A.W. had a motive to falsely accuse I.C. because after he left, she testified that she felt like a second parent to her four siblings, and she had a lot more responsibilities. She also admitted that once I.C. left the family home her attitude towards him changed and she was angrier towards him. Mr. Brody also argued that A.W. saw and heard I.C. and her mother fighting after the separation when he came to the family home to see his daughters, but T.S. and I.C. denied this. Furthermore, it was not until July 2021 that A.W. told her mother about the incidents, and they went to police. That was over five years after I.C. left. I.C. also described an incident in the spring of 2021 regarding a laptop computer that he gave to one of his biological daughters, but in my view that was not serious enough to give A.W. a motive to lie. However, I must remember that there is no onus on I.C. to satisfy me that the complainant had a reason to lie.

[40] There is also the fact that A.W. did not tell her mother what happened until some 11 to 13 years after the incidents. Mr. Brody argued that what A.W. alleged I.C. did to her between the time when she was eight to 10 years old would likely have changed her in a way that would be obvious to others. With respect to both of these submissions, the significance of A.W.’s failure to make a timely complaint about these allegations or how she behaved afterwards must not be the subject of any presumptive adverse inference based upon now rejected stereotypical assumptions of how persons react to acts of sexual abuse. There is no inviolable rule on how people, who are the victims of trauma like a sexual assault, will behave. Reasons for delay are many: see R. v. D.D. (2002), 2000 SCC 43, 148 C.C.C. (3d) 41 at paras. 59, 63 and 65. As McLachlin J. stated in W. (R.) at para. 31: “victims of abuse often in fact do not disclose it, and if they do, it may not be until a substantial length of time has passed.”

[41] However, I do have a concern about A.W.’s evidence that after the Oral Incident she kept her distance from I.C. and that she became an angry person but that it was a mask and outwardly she seemed like a happy, bubbly person. This evidence seemed contrived to explain the fact that A.W.’s mother testified that her daughter continued to talk to I.C. even after the separation and that her daughter never gave her any indication that she was angry with him and that to her knowledge they had a good relationship. This was consistent with I.C.’s evidence that he did not notice any change in his relationship with A.W. and that their relationship remained pleasant after he left the home in April 2016.

[42] Although Mr. Brody did not argue that I.C. was never alone with the children, it is puzzling that A.W. appears to have exaggerated the amount of time that I.C. was home alone with her and her siblings during the period in issue, as her mother testified that she did not work on the weekends. I accept that this could be a result of how young she was at the time of the alleged incidents.

[43] There was also an inconsistency in A.W.’s evidence about when and how often she told I.C. that she was going to tell her mother about one of the incidents. When Mr. Brody put to A.W. that when she spoke to Det. Hyatt, she told him that after the Horsey Incident she told I.C. she was going to tell her mother what he did, and he then slapped her, she adopted this evidence as true. She had not mentioned the slap in her first statement to Det. Hyatt. Furthermore, as already stated, A.W. testified at trial in her evidence in chief that she only told I.C. that she would tell her mother once, after the Oral Incident. This discrepancy could be because A.W. was remembering what happened when she was between the ages of eight and 10 although I would have expected that the one time I.C. was alleged to have slapped her to be memorable.

[44] What gives me serious concerns about the credibility of A.W. are the significant inconsistencies in her evidence as compared to her statements she made before trial when she first disclosed these allegations to Det. Hyatt. In July 2021 A.W. told her mother, T.S., something about what she alleges I.C. did to her and she testified that contrary to her fears, her mother believed her. Her mother took her to the police department where she gave a videotaped statement under oath to Det. Hyatt. A.W. then gave more information to Det. Hyatt a week before the trial when they met to prepare for the trial. A.W.’s mother also gave a recorded statement under oath to Det. Hyatt in July 2021, that included evidence as to what she recalled her daughter told her about these allegations.

[45] When A.W. was first interviewed by Det. Hyatt in July 2021, with respect to the Horsey Incident she did not tell Det. Hyatt that I.C. held her arms, but in cross-examination she testified that is what she meant by “aggressive”. More significantly, she did not tell him that she felt an erection although he gave her a lot of openings in his questions to do so, especially as a reason for explaining why it did not feel like a game to her. It was only when A.W. spoke to Det. Hyatt a week before trial that she told him about feeling an erection.

[46] Mr. Brody submitted to the jury that this should give them doubt as to A.W.’s evidence about the Horsey Incident. I share that concern because at the time A.W. spoke to Det. Hyatt, she felt comfortable with him and certainly was old enough to know what an erection was. However, when A.W. spoke to Det. Hyatt in July 2021, she did tell him that at one point it no longer felt like a game and that I.C. was acting “more aggressively”. Although A.W. used the word “tried”, which as I will come to, I find significant when I consider the Oral Incident, she did tell Det. Hyatt that I.C. “tried” to rub himself onto her. Both this and the use of the word “aggressive” are reasonably consistent with her evidence that she felt an erection.

[47] However, I find the external inconsistencies in the evidence of A.W. with respect to the Oral Incident to be more serious. With respect to this incident, there were inconsistencies in A.W.’s evidence in terms of how she was positioned on the bed. Furthermore, A.W. did not tell Det. Hyatt that I.C. held her arms down. This in and of itself is not that concerning. However, what is of concern to me is that when A.W. was interviewed by Det. Hyatt in July 2021, she used the word “trying” on multiple occasions in connection with this incident when she gave her statement to him. A.W. told Det. Hyatt that I.C. tried to take her pants off and tried to put his face down to her vagina. Elsewhere in her statement A.W. told Det. Hyatt that I.C. pulled her pants down but then she said that he used his hands to “try to put his face down there”. She did not tell Det. Hyatt that I.C. brought his mouth to her vagina or touched her vagina with his mouth. It was only at trial that A.W. gave this evidence.

[48] A.W.’s mother, T.S., told Det. Hyatt and testified at trial, that A.W. told her that there were two incidents. She did not testify that her daughter told her about the Horsey Incident. T.S. testified that one of the incidents A.W. told her about was an incident when I.C. tried to put his hands down her pants. As this evidence was led by Mr. Brody despite conversations I had with A.W. and counsel in the absence of the jury, as I told the jury, I will only consider the two incidents A.W. testified to. What I do find significant is that the evidence of what A.W. testified to as to what she told her mother as opposed to what her mother said she was told is materially inconsistent. A.W. testified that she did not give her mother much detail, only that I.C. molested her.

[49] T.S. testified that her daughter used the word “touched” not molested, but she did tell Det. Hyatt that her daughter told her that I.C. “tried” to pull down her pants and “tried” to put his mouth on her vagina. However, she then told Det. Hyatt that her daughter’s exact words were that I.C. “was putting his mouth” on her vagina. When Mr. Brody put to T.S. that she did not know if I.C. actually did it or attempted it, she stated that her daughter said that he pulled her pants down and then was “going towards with his mouth to her vagina”. When asked by Mr. Brody about the fact that she used the word “tried”, several times in explaining what her daughter told her, when she spoke to Det. Hyatt, T.S. testified that that was the language she used, not because this is the language that her daughter used, but that she used this language because she did not want to believe that I.C. would do this to her daughter, particularly as he knew that she had been sexually abused as a child. T.S. denied talking to her daughter in advance of the trial about her use of the word “tried”.

[50] I have difficulty with T.S.’s evidence in this regard, as I believe it more likely that A.W. used the word “tried” when she spoke to her mother just as T.S. told Det. Hyatt, particularly as A.W. herself used it multiple times when she spoke to Det. Hyatt in July 2021. Although I do not find there was in fact collusion, T.S.’s explanation at trial of why she used the word “tried” when she spoke to Det. Hyatt was certainly intended to increase the probative value of what she alleges A.W. told her. There is as well a significant inconsistency between what T.S. testified to that her daughter told her and what A.W. said she told her mother. On this point I prefer the evidence of T.S.

[51] Turning to my findings of what the Crown has proven, this was a case that pitted the credibility of A.W. against the credibility of I.C. but in the context of R. v. W.D., supra.

[52] With respect to the Horsey Incident although A.W. did not say she felt an erection until shortly before trial, her earlier statement to Det. Hyatt was not inconsistent with this evidence. The fact that A.W. did not tell her mother about the Horsey Incident may simply reflect the fact that she was more troubled by what she alleged with respect to the Oral Incident. I am therefore prepared to find that what was alleged by A.W. with respect to the Horsey Incident occurred as she testified to at trial. This in and of itself supports the finding of guilt by the jury of both charges.

[53] However, with respect to the Oral Incident, I am not satisfied beyond a reasonable doubt that I.C. actually touched A.W.’s vagina with his mouth. I have set out my concerns with her credibility. I do not accept A.W.’s evidence as to why she used the word “tried” multiple times when she spoke to Det. Hyatt. When A.W. met with Det. Hyatt on July 20, 2021, she testified that she no longer feared that she would not be believed because she knew that her mother believed her and so she believed the police would believe her too. She admitted that she felt comfortable and safe with Det. Hyatt in telling her version of events and he got her to open up, so she was not trying to minimize what happened. Ms. Dosanjh relies on later evidence A.W. gave that when she used the word “tried” in speaking to Det. Hyatt, she was very nervous and scared about telling the details to a stranger and that this was the first time she heard herself talking about the details of what I.C. did to her. When Mr. Brody put to A.W. that she used the word “trying” in her statement to Det. Hyatt multiple times and that she did not use this word at all in her evidence at trial, she denied that she was being inconsistent and changing her answer to strengthen her allegations. That, however, is consistent with the fact her mother also had an explanation for using the word “tried” when she reported what her daughter told her to Det. Hyatt and did not used the word “tried” at trial.

[54] I appreciate that sometimes complainants in these types of cases make incremental disclosure but in my view this is different. The evidence that I.C. tried to bring his face to her vagina as opposed to actually touched her vagina with his mouth, particularly given the complainant’s age at the time she spoke to Det. Hyatt and the comfort she said she felt in speaking to him at least raises a reasonable doubt in my mind about that aggravating fact.

[55] I have considered whether I can find beyond a reasonable doubt that at least I.C. tried to pull A.W.’s pants down and bring his face towards her crotch. This in itself would amount to sexual interference but of course not nearly as serious as alleged by the Crown. I find however that given my concerns already set out, I am unable to decide whom to believe with respect to this incident.

[56] For these reasons, I find that the sentencing of I.C. will be based only on the Horsey Incident as described by A.W. at trial.

[57] As I have found the facts for the purpose of sentencing to be quite different than the facts relied upon by counsel in their sentencing submissions, before I proceed to sentence I.C., I will give counsel an opportunity to make further submissions as to what an appropriate sentence is based on my factual findings.

“Spies J.”

Spies J.

Released: January 10, 2024

Edited Reasons Released: January 17, 2024

COURT FILE NO.: CR-22-50000266

DATE: 20240110

ONTARIO

SUPERIOR COURT OF JUSTICE

HIS MAJESTY THE KING

– and –

I.C.

Defendant

REASONS FOR sentence

Spies J.

Released: January 10, 2024