Court File and Parties

COURT FILE NO.: CR-20-40000023 DATE: 20240108 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING – and – LB Accused

Counsel: Andrew Weafer, for the Crown Zaire Puil, for the Accused

HEARD: September 11- 15, 2023

B.A. ALLEN J.

REASONS FOR JUDGMENT

PUBLICATION RESTRICTION NOTICE

THE CHARGES

[1] The accused, LB, is charged with sexual assault and sexual interference of his step-granddaughter AD on many occasions between March 3, 2013 and February 1, 2018 when AD was age 10 to 15 years old. LB was the domestic partner of AD’s biological grandmother at the time of the alleged offences. LB and the grandmother were in a relationship for 16 years before it ended in 2023.

[2] AD, her mother LA, and Officer Julie Brown, who interviewed AD, testified for the Crown. AD’s brother LD testified for the defence and LB testified on his own behalf.

[3] Sexual assault as provided under s. 271 of the Criminal Code provides that it is an offence for a person to apply force to another person for a sexual purpose without the consent of the other person. Section 151 of the Criminal Code applies to offences against a child under 16 years of age and provides that it is an offence for a person who touches the child’s body for a sexual purpose with a part of their body or an object.

BACKGROUND

[4] AD made two statements to the police, one on November 26, 2018, and the other on December 16, 2019. Section 715.1 of the Criminal Code provides that a video statement by a witness under 18 years of age made within a reasonable time after the offence may be admitted in evidence if the witness adopts the contents of the video recording. The two statements were played in court and AD adopted them as part of her evidence.

[5] At the time of the alleged offences, AD resided with her mother LA and her younger brother LD. AD was 20 years of age at trial. LB has known AD since she was 3 or 4 years of age. AD and her brother would spend weekends at the grandmother’s apartment at 000 Kenwood Ave.

[6] 000 Kenwood is a triplex. LB and the grandmother moved to the main floor apartment of 000 Kenwood in 2008. In 2011 they briefly moved out to other apartments. They then moved back to the top floor apartment of 000 Kenwood in 2014. The layouts of the two Kenwood apartments are identical. They moved from 000 Kenwood in 2018. The alleged incidents of sexual abuse all occurred at 000 Kenwood.

[7] The Kenwood apartments had three bedrooms and a bathroom down a hallway leading from the entrance to the apartment unit. There was a living room and kitchen along the hallway before reaching the locations of the bedrooms. The grandmother and LB stayed in the master bedroom. LB’s son JB spent some weekends with his father at the apartment. JB slept in another bedroom and there was a spare bedroom. AD slept in the spare room at times and slept in JB’s bedroom when JB was not there on weekends. AD’s evidence was that the majority of the sexual incidents occurred in JB’s room when he was not there.

[8] Later in the trial, LB contradicted that evidence saying he had no memory of AD sleeping in JB’s room alone. His memory was that AD would insist on sleeping in the spare room, not JB’s room. LB’s memory was that she slept in the spare room with her brother and AD’s brother would sleep in JB’s room when JB was not there because that was where the toys were.

[9] AD’s brother gave evidence that to some extent supported AD’s evidence about the sleeping arrangements. The brother testified he slept in the spare room with AD and indicated AD would sometimes stay in JB’s room when he was not there on the weekend.

[10] AD estimated she stopped sleeping over at 000 Kenwood in about February 2018 at age 15 when she was in grade 10. She indicated she left school before completing grade 10.

THE INCIDENTS

[11] On no occasion was anyone else present in the room besides LB when these incidents occurred. AD testified LB engaged in improper sexual activity with her every time she stayed at her grandmother’s home. She estimated that she stayed there about one weekend out of every month until February 2018, or 12 times a year for approximately three years. After age 12, AD stayed there fewer times on weekends.

[12] The mother’s evidence is that AD indicated in around 2016 that she wanted to stop staying over because she was a teenager and did not need a babysitter. AD told her mother that it was boring at the grandmother’s and she preferred to be with her friends on weekends. The mother testified she was agreeable to AD no longer wanting to go on sleepovers.

[13] The first incident occurred in the morning when she was about age 11 or 12. AD recalls LB tried to touch her between her legs when she was lying down in her grandmother’s room watching television. LB entered and changed the channel. She was lying on her grandmother’s bed on her stomach. She said LB laid down beside her shirtless on his back. He touched her thigh and tried to move his hand upwards but AD moved away. AD said this had never happened to her before so she thought at first he was being friendly. But then she thought he was being “weird” and “creepy”.

[14] It was a brief incident. LB just walked away without saying anything. There was no one nearby when this occurred. She told the police her grandmother was in the apartment. At the preliminary inquiry, she said she thought her grandmother was out doing laundry. AD stated that her heart was racing and she did not know whether she should tell anyone. So she did not disclose it and hoped it would not happen again.

[15] AD’s evidence is that the touching incidents occurred every time she slept over at her grandmother’s on weekends. Later in her evidence under cross-examination, she reduced that to it occurring about 20 times.

[16] The next incident AD recalled happened in the living room on the couch. She did not recall precisely when this occurred but believed it was in the winter because she was wearing a scarf. She said she had been in her grandmother’s room when LB entered. So she “casually” left the bedroom and went to the living room to watch television.

[17] AD said LB came to the living room, took her socks off, and pretended to massage her feet. He then tried to use her feet to touch his penis while she was sitting on the couch watching television. AD tried to pull her feet away but LB aggressively gripped her ankles so she could not pull away. He pulled her feet toward him and rubbed them on his erect penis. LB then ejaculated on her feet. He watched the television and would not look at her during the incident. He said nothing to her. AD stated that LB used the scarf he retrieved from the couch to wipe up the ejaculate, washed the scarf, and hung the wet scarf on a kitchen chair.

[18] AD tried to tell her grandmother about the scarf incident but she did not know what to say. The grandmother asked LB what happened to the scarf and he told her AD spilled something on it. Nothing more was said about this.

[19] The grandmother was at the back of the apartment in her bedroom at the time of the scarf incident. But she had gone back and forth from her bedroom to the kitchen twice. AD explained there is a wall blocking a full view from the kitchen into the living room depending on where one was standing in the kitchen. LB would stop when the grandmother was in the kitchen and start up again when she left.

[20] AD added at trial that during the scarf incident, LB tried to touch the area of her vagina. She pulled away. He only grazed her vagina over her clothes. This incident lasted about 10 to 15 minutes. The defence challenged AD that she did not mention at the preliminary inquiry that LB grazed her vagina.

[21] AD indicated she knew her grandmother and brother were in the apartment at the time of the alleged scarf incident. In her police statement, she said she did not know whether JB was there. At the preliminary inquiry, she testified that JB was not there because she had slept in his bedroom that weekend.

[22] Defence counsel challenged AD that she made up the evidence that JB was not present at the apartment on the weekend of the scarf incident. Defence counsel suggested AD’s memory did not get better with time. AD disagreed. She explained that she was nervous at the preliminary inquiry and embarrassed to speak in front of so many people in the courtroom. She said she just forgot to say it.

[23] There was a third type of incident. In her second police statement, AD described situations where she would be asleep in her bed at night and would wake up and LB would be in the bedroom. AD said this occurred each time she slept over. He would be staring at her, standing close to her, and putting his hand on her calf or feet. LB would say nothing. She said that “really freaked her out”. AD’s evidence is that her grandmother walked by a few times when LB was standing in the bedroom.

[24] In her second statement to the police, AD spoke of her grandmother walking into the bedroom a few times when LB was standing there. At trial for the first time, AD gave evidence that her grandmother called LB out of the bedroom, asked him why he was there, and told him to go to bed. But he continued to stand there. AD testified at trial that her grandmother walked into the bedroom a few times and saw LB sitting on the edge of the bed.

[25] Defence counsel challenged AD about not previously speaking of the grandmother calling LB out of the bedroom. AD responded that she did not mention that because the grandmother only did that once. AD stated further that she had not previously been asked whether her grandmother ever said anything when she saw LB standing in AD’s bedroom.

[26] Defence counsel raised another area of AD’s evidence that she mentioned for the first time in her second statement to the police. AD told the police that on all occasions when LB climbed into bed with her he “fingered” her or digitally penetrated her vagina. LB would try and not succeed at times. This occurred when AD was sleeping in JB’s bedroom. This occurred about one year after the first incident. She stated that the only place where fingering took place was in JB’s bedroom. AD believed everyone was asleep when this would happen.

[27] AD’s evidence was that LB would get into the bed with her and spoon her from behind leaning forward and putting his weight on her preventing her from moving her hands. He would use force to pry her clenched legs apart and finger her from that position. She kept quiet so she would not draw the attention of others in the apartment. LB would get up and say nothing to her.

[28] Defence counsel challenged AD that at the preliminary inquiry AD’s evidence changed, that she reduced the number of times of fingering from every time she slept over to almost every time, and that she seriously exaggerated her evidence. Defence counsel suggested that she reduced the number of times to make her evidence more believable. AD acknowledged her evidence changed and that she should have said almost every time. She also explained that there were times he attempted to finger her but did not succeed. She estimated that this type of incident occurred more than 20 times.

[29] There were other incidents, apart from the scarf incident of LB touching AD’s body and exposing his penis when they were sitting on the couch. AD estimated that this occurred about 20 times. AD testified that sometimes when they were sitting on the couch when LB was abusing her sexually and her younger brother or one of her young cousins came around, LB would tell the children to leave the room.

[30] Defence counsel questioned AD about why, when asked several times during her police statements, whether she had any further evidence to offer, she would often say “no”. Then she would provide more information in a subsequent statement or at the preliminary inquiry. AD explained that her memory was very foggy when speaking to the police and she was very nervous. AD denied the defence’s suggestion that she did not forget the fingering, that it just did not happen.

[31] AD testified LB never kissed her, fondled her, or initiated sexual intercourse with her during any of the incidents. AD said LB never asked her not to tell anyone about the sexual abuse.

DISCLOSURE

[32] AD told her mother about the abuse by LB on November 13, 2018, when she was age 15, two days before they went to the police. She made her first video statement to the police on November 26, 2018, and her second statement on December 16, 2019, days before the preliminary inquiry which took place on December 18, 2019.

[33] AD explained the circumstances around her telling her mother. She said she and her mother were arguing that day. The mother described AD’s behaviour as being “a little off.” The mother was concerned that AD had anger issues. The mother complained that AD had been acting angrily and asked AD if she had something she wanted to talk about. AD said she felt guilty for not telling her mother about what LB was doing to her. Her mother called her brother Joseph and told him and also told the grandmother about the allegations. AD and her parents went to the police station two days later on November 15th.

[34] The mother testified her daughter provided little detail initially. She indicated that AD said LB would pull her onto his lap and expose himself to her.

[35] AD testified that in February 2018 she also told her boyfriend at the time who tried to convince her to tell someone, to go to the police right away. She refused and told him not to tell anyone.

LB’S RELATIONSHIP WITH AD’S MOTHER

[36] AD and her mother testified about their impressions of LB’s behaviour around the time of the alleged abuse. It appeared implicit in their description that LB displayed unusual behaviour, perhaps, in the Crown’s witnesses’s view, connected to the allegations against LB.

[37] AD’s evidence was that, at first before the sexual incidents, LB was “very friendly” with her mother and uncle when they would go to the grandmother’s. But during the year before February 2018, he stopped talking to them.

[38] AD said that beginning in about February 2018, when she, her mother, and her brother would be at her grandmother’s home, LB started to hide at the back of the apartment. He would say nothing to anyone. AD did not have an explanation for his behaviour and to her knowledge, no one confronted him about this.

[39] The mother testified that LB behaved politely when she first started dropping AD over for weekends. Then his behaviour changed. LB began to not acknowledge her. He would go into the bedroom, close the door and hide. LB would leave the room immediately when the mother arrived and not communicate with her while she was there. The mother agreed that LB expressed that he did not like to hear her swearing and cursing during conversations.

[40] LB explained his relationship with AD and her mother. He confirmed that he was more sociable with the mother in the beginning exchanging brief pleasantries with her when she would bring AD and her brother to the apartment. However, as LB got to know the mother he found he did not approve of the vulgarities she used when she was speaking. So, he would leave the room and go to the back of the apartment to his bedroom to avoid being around her. As well, if LB went with the grandmother to the mother’s apartment, he would do the same. He would leave the room where the mother was having a foul-mouthed conversation.

LB’S EVIDENCE

[41] LB is 57 years of age. He is Indigenous of Ojibway background. As noted earlier, he moved in to live with the grandmother in the main floor apartment of 000 Kenwood in 2008. In 2011 they briefly moved out to other apartments and moved back to the top floor of 000 Kenwood in 2014 moving from there in 2018. LB and the grandmother continued their relationship for 16 years breaking up in early 2023.

[42] LB worked as a cook. When residing in the main floor apartment from 2008 – 2011, LB had a consistent schedule where he would get up at 6:00 a.m. and begin work at 7:00 a.m. He finished work at 3:00 p.m. His work days were Tuesday to Sunday with Mondays off. The grandmother and LB had similar schedules but she had weekends off. From 2014, when residing in the top apartment at 000 Kenwood, LB changed jobs and his hours changed to 10:00 a.m. to 6 p.m. with Mondays off.

[43] LB testified that he had a similar relationship with AD as he had with his son, JB. He would give them the same guidance about their behaviour. He described AD as a normal kid when she was young, funny, and a prankster. LB stated that as she reached her teens she was also a normal teenager, always on her cellphone, not much of a conversationalist. She had something of a brother/sister relationship with JB. LB described AD’s relationship with her grandmother as a normal granddaughter/grandmother relationship. He said he would sometimes see AD argue with her mother.

[44] LB stated that he was rarely alone with the children on weekends. By the time he got home, it was dinnertime. He would help the grandmother with household chores like laundry. He testified he would at times be with AD on the couch but most often there would be others there as well. However, he indicated there were times he would be alone on the couch with AD.

[45] LB answered questions about him sending children out of the living room when he was on the couch watching television. He explained for instance that if there was a violent or verbally vulgar movie playing, he did not think it appropriate for AD’s brother or any small children to see and hear this type of content so he would send them to the kitchen to avoid their exposure to this.

[46] About his and the grandmother’s bedroom, LB stated that he would often see AD go there out of curiosity to see if anyone was back there. He denied ever climbing into bed with her. He denied touching her on her thigh and trying to touch her between her legs and denied touching her vagina. He denied ever being in the same bed with AD.

[47] LB was asked about touching AD’s feet. He testified that he recalled twice sitting on the couch watching television with the grandmother and AD plopped her feet down on his leg and he knocked them off. She tried it again and he told her to stop putting her feet on him. LB also denied massaging AD’s feet, ejaculating on her and cleaning it up with a scarf, and denied knowing anything about a wet scarf. He denied exposing his penis and using his penis to touch her body.

[48] LB answered the allegation about him going into JB’s bedroom when AD was sleeping there. He testified that in the summer he went into the spare room when AD was sleeping and did so to adjust the setting on the air conditioner so that it would not come on all night. That was the only bedroom with an air conditioner. This was to save on the hydro bill.

[49] LB denied ever looking at her, in the sense of staring at her, when he entered the bedroom when she was sleeping. But he did say he would look at her in the sense of seeing her in passing by her. He denied sitting on the edge of her bed or putting his hands on her leg. He said he would have touched the bed because the air conditioner was above the head of the bed. LB denied digitally penetrating her vagina with his fingers.

THE LAW

Sexual Offences Against Children

[50] AD’s evidence is that the sexual abuse by LB spanned the period from when she was age 10 to 15 years old. The courts recognize that frequently there are delays in the disclosure of sexual offences. This is especially the case with young victims. This is amplified if the accused is a member of the victim’s family. AD’s allegations are against her grandmother’s partner. She had known LB from the time she was three years of age. LB was therefore a longstanding member of AD’s family. For several years, AD would stay for weekends at her grandmother’s and LB’s home. Courts have opined on delay in disclosure.

It surely would not surprise the jury to hear, for example, that some children who are sexually abused by a parent are so humiliated that they do not want to tell anybody, but want instead to take the secret to their graves. This jury must decide whether, on the basis of their experience in life, this complainant acted after the alleged incident in a way that is consistent with her story. To assess that, the jury must consider the state of mind of the witness at the time, her age and level of maturity, her sense of confidence and composure, and the relationship between her and her alleged abuser. It may well be that the jury can draw no conclusions of consequence about her subsequent behaviour, and will decide that it is not a telling point one way or the other on the truth of her story.

[ R. v. T.E.M., 1996 ABCA 31, at para. 11 (A.B.C.A); see also, R. v. D.D., [2000] 2 S.C.R. 275, 2000 SCC 43, at paras. 31 and 32 (S.C.C.); R. v. C.B., 2008 ONCA 486, at paras. 38-40 (Ont. C.A.) ].

[51] The Supreme Court of Canada observed:

While children may not be able to recount precise details and communicate the when and where of an event with exactitude, this does not mean that they have misconceived what happened to them and who did it. In recent years we have adopted a much more benign attitude to children’s evidence, lessening the strict standards of oath taking and corroboration, and I believe that this is a desirable development. The credibility of every witness who testifies before the courts must, of course, be carefully assessed but the standard of the “reasonable adult” is not necessarily appropriate in assessing the credibility of young children.

[ R. v. B. (G.); [1990] 2 S.C.R. 30, at pp. 54—55 (S.C.C.)]

[52] The Supreme Court of Canada in R. v. W. (R.) further adopted that observation in a later decision:

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 her mental development, understanding and ability to communicate.

[ R. v. W.(D.); [1992] 2 S.C.R. 122, 74 C.C.C. (3d) 134 (S.C.C.), at p. 144]

The R. v. W.(D.) Principle

[53] This is a “he-say-she-say” case. As is most commonly the case, AD and LB were the only witnesses who could speak to whether the sexual abuse occurred or not. Well-entrenched principles guide the trier of fact’s determination of reasonable doubt when a defence is called and the accused’s evidence conflicts with that of the Crown.

• First, if you believe the evidence of the accused, obviously you must acquit.
• Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.
• Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, based on the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

[ R. v. W.(D.) (1991) 63 C.C.C. (3d) 397 (S.C.C.) ]

[54] R. v. W.(D.) cautions that it is an error when dealing with conflicting evidence to prefer one version of events over the other. To do this is to reverse the onus of proof onto the accused. Where credibility is the central issue the trial judge must direct their attention to the decisive question of whether the accused’s evidence, considered in the context of the evidence as a whole, raises a reasonable doubt as to their guilt: [ R. v. Dinardo, 2008 SCC 24, [2008] 1 SCR 788, at para. 23].

[55] The Supreme Court of Canada observed that making credibility evaluations is not a simple exercise:

Assessing credibility is not a science. It is very difficult for a trial judge to articulate with precision the complex intermingling of impressions that emerge after watching and listening to witnesses and attempting to reconcile the various versions of events.

[ R. v. Gagnon, [2006] 1 S.C.R. 621, 2006 SCC 17, at paras. 20 - 21 (S.C.C.) ].

[56] LB was confronted by the defence with each allegation made by AD. He flatly denied engaging in the acts he stands accused of. The law speaks to how triers of fact should treat this type of defence.

[57] An accused is entitled to flatly deny accusations and not be subjected to adverse findings because of this. It is an error to reject defence evidence only on the basis it was a flat denial. In many cases, a flat denial is the only available defence for the accused. All an accused can say is they did not do it. The accused’s evidence must be analyzed in the context of the evidence as a whole: [ R. v. C. (R.H.); (1996), 104 C.C.C. (3d) (Ont. C.A.) and; R. v. Kumric, [2006] CarswellOnt 7728 (Ont. S.C.J.), at paras. 18 - 20 ].

[58] It is also a mistake to reject the defence evidence without any analysis of the defence evidence and find that evidence does not raise a reasonable doubt for the simple reason that the trier of fact believes the Crown witness. To make this error is to run afoul of R. v. W.(D.). A trier of fact has to examine all of the evidence. Where credibility is at issue courts should apply the criteria in R. v. W. (D.): [ R. v. D.(S.), [2004] CarswellOnt 2123 (Ont. C.A.), at paras. 29-30].

ANALYSIS

[59] A conviction for a sexual assault requires proof beyond reasonable doubt that the accused with intent committed an act of touching another person, conduct of a sexual nature, done without consent: [ Criminal Code, s. 271; R. v. Ewanchuk, [1999] 1 S.C.R. 330 (S.C.C.) ]. There is no dispute that if accepted AD’s allegation would meet the legal requirements of sexual assault.

[60] For the offence of sexual interference to be made out, the sexual touching, whether done directly or indirectly, must be both intentional and done specifically for a sexual purpose when the person knew the complainant was under the age of 16. The touching can either be with the accused’s own body or with an object. [ Criminal Code, s. 151]. There is no question that AD was under the age of 16 years at the time of the sexual interference. If AD’s evidence is accepted it would meet the legal requirements of sexual interference.

[61] I found LB’s evidence was not daunted in any material way under cross-examination. I found the Crown was not successful in raising questions that adversely impacted his credibility in any material way. I find the strength of LB’s evidence examined in the context of the evidence of other witnesses raises sufficient doubt in my mind about his guilt.

[62] In arriving at that conclusion, I am mindful of the caution other courts have offered with a finding that an accused’s evidence is believed. Reasonable doubt may survive a finding that a defendant is credible: [ R. v. J.J.R.D. (2006) ON CA, 215 C.C.C. (3d) 252 (Ont. C.A.), at paras. 47 and 53, leave to appeal to S.C.C. dismissed, [2007] S.C.C.A. No. 69].

[63] The Ontario Court of Appeal in R. v. Strong made a similar point regarding a complainant’s evidence holding that the evidence of a reliable complainant will not necessarily prove a case beyond a reasonable doubt:

The question is not simply whether the complainant’s evidence was reliable, but rather when considered in the context of the totality of the evidence whether it established guilt beyond a reasonable doubt.

[ R. v. Strong (2001), O.J. No. 1362 (C.A.), at para. 5].

[64] I arrived at my determination on the totality of the evidence.

[65] LB worked weekends during the relevant time of the allegations. He would leave home in the morning and arrive home in the afternoon from one job and at dinner time from his other job. While he had somewhat limited time to be alone with AD when no one else was around, he still had some opportunities. And while LB denied the substance of the allegations, he did not deny some of the facts surrounding some of the allegations.

[66] LB described his relationship with AD as being akin to his relationship with JB, his son. He described AD’s relationship with JB to be like one of brother/sister. He would offer both of them guidance on their behaviour.

[67] LB did not deny entering the bedroom AD was sleeping in at night. He could have denied going into the bedroom at all. But he explained that in the summer months, he would sometimes enter the room at night to adjust the air conditioner to save on hydro expenses. LB indicated he might have touched the bed in doing so since the air conditioner was in a window above the head of the bed. LB denied ever being in a bed with AD or sitting on the edge of the bed. He denied ever touching her legs or vagina or digitally penetrating her vagina in the bedroom.

[68] LB did not deny sitting on the couch alone with AD watching television. But he said those occasions were rare. There was usually someone else watching television with him besides AD. He did not deny that when he was watching television, and AD might have been with him, he would shoo AD’s younger brother out of the room. He denied the implication that he did this to hide the alleged sexual abuse he was inflicting on AD.

[69] LB explained that he would ask any of the smaller children, AD’s brother and younger cousins who would stay over, to go to the kitchen if there was violence or vulgar language in the program because he felt that would not be appropriate for children to see or hear.

[70] LB denied massaging AD’s feet on the couch, using her feet to touch his penis, ejaculating on her, and wiping it up with a scarf. He said he knew nothing of the scarf. He also denied other allegations related to the couch. He denied ever exposing his penis to AD on the couch.

[71] I found nothing in LB’s evidence that raises a reasonable doubt about his guilt. But I must look at LB’s evidence on the totality of the evidentiary record which requires examining the evidence of other witnesses.

[72] In arriving at my determination that AD’s evidence raises doubts about LB’s guilt, I am mindful of the fact I am dealing with the statements of a child to the police looking back the five years before she reported the abuse.

[73] AD was 20 years of age at trial. She was age 15 when she went to the police. There was about a five-year delay before she made her allegations to the police. That is not surprising given AD’s young age of 10 to 15 years when the abuse was allegedly committed.

[74] Also, it is not uncommon for a child to delay reporting a close family member for fear of the break up of the family or threats of retaliation by the family member. AD said LB never threatened her not to tell anybody about the abuse and never told her not to tell anyone. LB was a close family member, at the time a 12-year partner of her grandmother, whom AD had known since she was three years of age.

[75] The delay alone is not a strike against her credibility.

[76] AD did not recall some details about the incidents of abuse. This is expected with victims of sexual assault, particularly children. A child may not have the words to describe an experience they are not familiar with. They may use imprecise, exaggerated, or understated language.

[77] The defence assailed AD with an hours-long cross-examination challenging her on some of the words she used in describing to the police some instances of abuse.

[78] For instance, AD frequently would use the words “usually”, “maybe” or “thinking” something happened a certain way as opposed to “knowing” or being sure something happened a certain way. AD agreed that when she said “usually” she meant it happened that way most of the time but not all of the time. And she agreed that when she said “maybe” or “think” something happened, she did not know whether it happened for sure.

[79] Defence counsel also questioned AD about her second statement to the police that the abuse happened “every single time [she] went to her grandmother’s on weekends”. AD admitted that she had exaggerated and should have said “almost” every time she went to her grandmother’s.

[80] AD’s imprecise choice of language might have been a function of her young age when she spoke to the police. But that is the evidence I am left to consider to assess critical areas of her testimony. I do not find her imprecise language necessarily poses a credibility issue. But it does present questions about the reliability of her evidence.

[81] There is also a concern about incidents of sexual abuse AD did not recount to the police in her first statement, incidents that are more than noteworthy.

[82] For instance, in her second police statement, she alleged that LB fingered her in her bed every time she stayed over at her grandmother’s. She never mentioned this in her first statement. At the preliminary inquiry, she reduced the frequency to almost every time. AD explained that she was very nervous and embarrassed to speak about these things. Her memory was blurry. She said she just wanted to get her testimony in court over with.

[83] Digital penetration is an egregious form of abuse. It is also embarrassing for a victim to speak about this before strangers at the police station and in a courtroom. It is certainly possible that she neglected to mention it and changed her evidence for the reasons she offered. Or it could be that she mentioned this when it did not happen to embellish her abuse claim. Whatever the reason, I have to deal with the inconsistency in her evidence. This may not be a credibility issue. But this also puts the reliability of her evidence in question.

[84] Courts have addressed the distinction between assessments of credibility and reliability:

Testimonial evidence can raise veracity and accuracy concerns. The former relates to the witness's sincerity, that is, his or her willingness to speak the truth as the witness believes it to be. The latter concerns relate to the actual accuracy of the witness's testimony. The accuracy of a witness's testimony involves considerations of the witness's ability to accurately observe, recall and recount the events in issue. When one is concerned with a witness's veracity, one speaks of the witness's credibility. When one is concerned with the accuracy of a witness's testimony, one speaks of the reliability of that testimony. Obviously a witness whose evidence on a point is not credible cannot give reliable evidence on that point. The evidence of a credible, that is, honest witness, may, however, still be unreliable. In this case, both the credibility of the complainants and the reliability of their evidence were attacked on cross-examination.

[ R. v. Morrissey (1995), 22 O.R. (3d) 514, at p. 526 (CA) ]

[85] My greatest concern with AD’s evidence was not as much with its credibility but rather with its unreliability in certain important areas.

CONCLUSION

[86] In the result, I find the unreliability of AD’s evidence and the strength of LB’s evidence considered in the context of all the evidence sufficient to raise a reasonable doubt of LB’s guilt of sexual assault and sexual interference. The Crown has failed in its burden to prove his guilt beyond a reasonable doubt.

VERDICT

[87] I find LB not guilty on count 1 on the indictment (sexual assault s. 271 of the Criminal Code) and an acquittal will be registered accordingly.

[88] I find LB not guilty on count 2 on the indictment (sexual interference s. 151 of the Criminal Code) and an acquittal will be registered accordingly.

Allen J. Released: January 8, 2024