COURT FILE NO.: CR-16057/23 DATE: 20240410

ONTARIO SUPERIOR COURT OF JUSTICE

His Majesty the King – and – J.D.

Counsel: Tammy Holland, for the Crown Robert Greenway, for the Accused

HEARD: January 22 – 25, 2024

WOODLEY, J.

REASONS FOR JUDGMENT

OVERVIEW

[1] JD (“J.”) is charged with three sex offences that were allegedly committed against his daughter, LG (“the complainant or LG”), when she was between 6 and 7 years of age. The charges are as follows:

1. Count 1: that between the 13th day of August in the year 2010 and the 17th day of December in the year 2012, at the City of Oshawa, in the Province of Ontario, did commit a sexual assault on LG, contrary to section 271 (1) of the Criminal Code of Canada;
2. Count 2: that between the 13th day of August in the year 2010 and the 17th day of December in the year 2012, in City of Oshawa, in the Province of Ontario, did with a part of his body, for a sexual purpose, directly or indirectly touch the body of a person under the age of sixteen years, namely LG, contrary to section 151 of the Criminal Code of Canada; and
3. Count 3: that between the 13th day of August in the year 2010 and the 17th day of December in the year 2012, in the City of Oshawa, in the Province of Ontario, did for a sexual purpose, invite or counsel or incite, a person under the age of sixteen years, namely LG, to directly touch with a part of his body the body of LG, contrary to section 152 of the Criminal Code of Canada.

[2] All three charges involve allegations of sexual abuse that allegedly occurred while LG was between 6 and 7 years old and residing with her father J. at his home located in Oshawa, Ontario.

[3] LG alleged that all assaults occurred during the daytime, when LG and J. were alone together in the home, and that all assaults occurred in J.’s bedroom, on his bed.

[4] LG initially disclosed the allegations without details in 2021 when she was 16 years old first to a friend, and then to her foster mother P.

[5] In November of 2021, LG disclosed the allegations without details to her mother J.

[6] On November 13, 2021, J. accompanied LG to the York Region Police station, when LG made her initial complaint.

[7] On November 18, 2021, LG provided a detailed statement of her allegations that were videotaped.

[8] On January 16, 2023, LG attended at a preliminary inquiry at which time she adopted her videotaped statement and was asked various questions relating to her statement.

[9] LG testified that the events that she described which formed the basis for the charges were never forgotten by her, instead, she just doesn’t always think about it – she stated that “it will be out of my brain and some things make me remember”.

[10] The witnesses at trial were the complainant LG, the accused J., the accused’s male roommate at the time of the alleged offences R., and the complainant’s mother J.

[11] The real issue in this case is whether the Crown has proven beyond a reasonable doubt that the alleged acts that form the basis of the charges occurred. A finding in this regard depends in large part on the credibility and reliability of the complainant’s and the accused’s testimony. The principles in R. v. W. (D.), [1991] 1 S.C.R. 742 apply.

THE FACTS

LG’s Evidence

[12] LG testified that the incidents of sexual assault occurred when she was approximately 6 or 7 years old. LG provided disclosure in 2021, when she was 16 years old, provided evidence at the preliminary inquiry when she was 18 years old, and provided testimony at trial when she was 19 years old.

[13] LG presented as well-spoken and articulate. She provided her testimony in a self-assured, measured, and calm manner and did not appear to seek to exaggerate or embellish her allegations.

[14] At the date of trial, LG was finishing her high school diploma and working in retail.

[15] LG testified that when she was around 6 to 7 years old, she went to live with her father, J. LG stated that she remembers her age because she has a specific recollection of her seventh birthday at her father’s home.

[16] LG recalled her father’s home, including the layout of the home and noted that it was a two-story home, without a basement, and that there were three bedrooms upstairs. These details were verified by J.

[17] LG further recalled that the home had one bathroom which was located upstairs – which fact was also verified by J.

[18] LG described the location of the bedrooms upstairs noting that her room was next to her father’s room, which facts were verified by J.

[19] LG advised that she lived at the home with her father, J., and his roommate. LG stated that she assumes the roommate had a job as he wasn’t home in the daytime. LG stated that she didn’t speak to the roommate very much and didn’t remember his name.

[20] LG testified that she wasn’t sure what her father did – she thinks that he worked “collecting copper wires” and recalls that her father had a closet full of copper wires and sometimes she would accompany her father to sell the wires.

[21] LG recalled that the home had a grandfather clock and that she took the key to the clock to school to show her classmates and later returned it. J. confirmed that there was a grandfather clock in the home as described.

[22] LG stated that when she lived with J., he had a partner who had red hair and they shared a baby together. LG stated that she went to the partner’s house “a lot” and she would sleep over and wake up at the home and play “Pokémon”. She said that this was a “common thing” that she would wake up at 7 am to watch television, and then went to school, likely in Oshawa but she doesn’t remember.

[23] LG stated that J.’s partner did not live with them, and she only recalls seeing her once at J.’s home.

Allegations of Physical Abuse

[24] LG stated that she remembered the physical assaults first.

[25] LG stated that if she did something, such as not cleaning up crumbs under the cutting board – that she “got hit”. LG recalled a further incident when she was in her room and J. hit her with a brush that broke and left a mark. LG stated that J. one time hit her with a pop can on her upper bicep. LG didn’t remember why she was hit she just remembers she got hit.

[26] LG stated that her father J. broke her things sometimes. She recalled that J. took the DS her mother bought her and threw it at the window and broke it. LG stated that the red-haired lady was there that time.

[27] LG stated that J. appeared to be angry all the time. She stated that he had “lots of packs of 6 beer”. He had a whole bunch inside and a whole bunch outside.

[28] LG stated that she was scared all the time. She stated that one time J. had some friends over to the house and she said a bad word and got scared and ran to her room and hid under a chair and fell asleep. LG stated that she was afraid that J. was going to hit her, but she can’t recall if she was hit.

Allegations of Sexual Abuse

[29] LG testified that after she moved into J.’s home, he brought her into his bedroom and played a VHS pornographic video on a television and VCR located in his bedroom. LG stated that J. told her to watch it. LG stated that the video depicted a man and two women engaged in sexual acts, including intercourse. LG testified that all she could remember about this event was J. told her “This is what we are going to do”.

i. The First Incident

[30] LG testified that sometime following the pornographic video incident, and “most likely” the same day, she recalls being on her back while her father J. was over top of her. LG stated that J. was “on all fours like a dog”, over top of her, and was “jerking off”. LG testified that J. was masturbating, and “it” went on her stomach. She then stated that J. “came” on her stomach. LG stated that she was on her back, was looking away towards the wall and doesn’t believe that she was wearing any clothing. LG testified that she was looking away, she didn’t want to look at him or his face, so she was always looking at the wall.

ii. The Second Incident

[31] LG testified that one time, J. “used his penis and instead of his hand he went back and forth on top of her vagina”. LG stated that they were in the same room in J.’s bedroom, on the bed. She stated that she was positioned on her back and J. was in front of her, almost on all fours but not on all fours. LG stated that J. was over her and she was not wearing any clothing. She stated that J.’s penis was going back and forth, and they were both naked. She testified that she was looking away. She didn’t want to see his face. She stated that he was on top of her vagina, and his hand went into her vagina, but not his penis. LG testified that J. didn’t put his penis inside, but he put his “finger” inside. LG stated that she thought he was checking to see if “it was big enough or not”. LG stated that that happened a “decent amount of time”, J. “putting his finger inside her vagina”.

[32] LG stated that her memory is that it was just J. and herself (LG) in the home. That the incidents always occurred during the daytime. LG stated that J.’s room had a window on the right of the bed, and it was always light outside. She testified that she remembers seeing stuff in the room and that they were alone in the house. She stated that she has “no clue” as to the frequency of the incidents.

iii. The Third Incident

[33] LG stated that she recalls a time when J. had a “bleeding mouth”. LG stated that she was on her back and J. was putting his mouth on her chest and there was blood on her chest and “it wasn’t coming from” her. LG stated that she doesn’t know why J.’s mouth was bleeding – probably his lips were cracked. She stated that she wasn’t wearing any clothing and J.’s mouth was “on her boobs”.

iv. The Fourth Incident

[34] LG stated that she recalls being in J.’s room, on his bed, and he told her to squeeze her arms together to make it look like she has boobs, and he took a photo of her on his iPad. LG testified that she did what she was told, and never saw the photo.

v. The Fifth Incident

[35] LG testified that she was on her back and J. put his mouth on her vagina. That is all she remembers. She was never wearing any clothing from what she can remember, and it happened only one time. She was looking at the wall.

vi. The Sixth Incident

[36] LG alleged that J. directed her to put her mouth on his penis, but she said, “that is gross” and she didn’t do it. J. kept asking and she kept saying “that is gross and disgusting”. She said that it happened a lot of time and it “annoyed him” when she said no.

Other Memories Related to Living with J.

[37] LG testified that during the time she lived with J., she also saw her foster mother P. for visits. P. would pick her up from the townhouse for weekend visits and return her – and she never wanted to go back to J.’s home.

[38] LG stated that P.’s house was “better” as she didn’t “get hit, yelled at, or touched”.

[39] LG testified that she didn’t tell P. about the abuse, physical or sexual. As for her bruises she said that she told P. that she “fell”. LG said that she thought if she told someone they would get mad at her, and she wouldn’t be safe at J.’s home as she didn’t think they would take her away.

[40] LG recalled a CAS worker attending at the home. She doesn’t recall her name and remembers the CAS worker talking to J. downstairs. LG only remembers talking to the CAS worker one time, while in her room. She stated that she didn’t tell her anything as she didn’t tell anyone until she was at least 10 years old, and even then, she only disclosed that J. had hit her.

[41] LG testified that at some point she stopped living with her father. She stated that she was probably 7 or 7 ½. She recalled having one birthday at her father’s home, when she was 7. She didn’t recall any other birthdays with him.

[42] LG testified that she saw her father at her grandfather’s home for a visit. She doesn’t remember how long the visit was. She does recall that she was watching the “duck show” (Duck Walk Lemonade Stand). She stated that she was in a room by herself, and her father walked in and asked if she wanted to do the thing they did before. She replied “No”, and he left. LG stated that her father asked her very quietly and she doesn’t think that she saw her father again after that incident.

[43] LG testified that after she moved from her father’s home, she thinks that she went to live with her foster mother P. until she was 9 or 10 years old. When she was 9 or 10, she then went to live with her mother where she remained.

[44] LG testified that when she realized she wasn’t going back to live with her father she told P. and her mother about the “physical stuff”, meaning the physical abuse.

[45] LG testified that she doesn’t like her father J. as he made her childhood so hard. LG said that she remembers being 12 years old and being such a sad kid. She stated that she used to hit her head against objects to forget things.

[46] LG testified that she has a brother who is not a nice person who would say “my dad didn’t hit me”. LG testified that she and her mother J. do not talk about J. She tried to have no further contact with him.

[47] LG testified that she felt impacted until recently. She was depressed and diagnosed with depression. She would hurt herself when she was 12 years old. LG said that she took things to make her forget but then she would randomly remember those things and said that is no fun at all.

[48] LG testified that most of the time she doesn’t think about what happened, but it will come back to her brain. She said she only remembers the “small bits” and it made her depressed. LG stated that when J. contacted her it made it much worse.

Disclosure of Sexual Assault

[49] LG stated that when she was about 12 her mother would ask her if anyone had touched her private parts. LG stated that her mom asked her so many times “I always thought that maybe she knew”. LG stated that she didn’t tell her mom because “it was embarrassing, it is horrible, so heartbreaking”.

[50] LG stated that in 2021, her father reached out to her mom for contact with LG. LG testified that her mom said, “Don’t get angry, your dad said I want to talk to my daughter”. LG said that she doesn’t look at Facebook and didn’t see his message. LG stated that it made her angry that her father referred to her as his “daughter”. LG stated that she doesn’t understand how “you can do that to your child for not even that long and you say you want to speak to your daughter – you cannot call me that, you cannot call me that”.

[51] LG testified that she believes that she told her friend Nelly about being abused but did not share any details, in response to her father’s attempted contact. LG stated that she was afraid to tell anyone as she thought they would look at her with disgust. LG stated that she only realized that people would not look at her “disgusted” after she told Nelly who encouraged her to tell the police and her mother.

[52] After telling Nelly, LG stated that she disclosed the abuse to her foster mom P. but did not provide any details.

[53] LG stated that when she told P. she did not tell her mother as her mother is an “angry person” and “already so stressed no need to give her more things”.

[54] LG stated that after telling P. she had an argument with P. while at P.’s trailer and so she called her mother and provided disclosure but didn’t share any details.

[55] LG testified that her mother J. asked if she would go to the police and on November 13, 2021, LG and her mother went to the York Region Police station to make a statement and gave a “brief overlay”.

[56] LG attended at the Durham Regional Police station on November 18, 2021, to provide a video-taped statement.

[57] On January 16, 2023, a preliminary inquiry was held. LG adopted her earlier video recorded statement and was asked certain questions.

[58] LG stated that she keeps “forgetting” and then the events keep “coming back in my brain”. She then stated that she doesn’t forget she just doesn’t always think about it. She stated that it will be “out of my brain and some things make me remember”.

[59] During cross-examination, LG stated as follows:

1. She doesn’t recall J.’s roommate’s name, doesn’t remember calling him “uncle”, and doesn’t remember that he had a girlfriend.
2. She disagreed that she didn’t sleep at J.’s girlfriend’s house.
3. She doesn’t recall how she entered her father’s bedroom or how she exited.
4. She doesn’t remember how her clothes came off but remembers she never had any clothes on.
5. She has no doubt that her father had a television on his dresser at the end of his bed and a VCR player.
6. She remembered that she had an old boxy television with VCR in her bedroom.
7. She specifically recalled rewinding a VHS with her fingers to “re-crank it”.
8. She never reported any incident to CAS and does not recall having any conversations with the CAS worker.
9. When she was 12 years old her mom asked if J. had sexually abused her, and she said no but that was a lie.
10. She stated that her mother doesn’t like J., never did, and they don’t speak.
11. She stated that one time during the daytime her grandfather stopped in for a visit and she was upstairs in her father’s bedroom naked. She stated that her father went downstairs and told her to stay upstairs. She stated that she went to the railing and saw her grandfather and has “no clue” if he saw her. She agreed that she had never disclosed this incident to anyone prior and was “just recalling it".
12. She said that her memories of the sexual abuse are more like “to re-see it” than to remember.
13. She stated that she never looked at J. during any of the sexual assaults – made the effort not to look. She looked at the wall.
14. When she testified that her father took a photo of her with his iPad/tablet with her shirt off and she squished her arms together – she agrees that it is the first time she provided those details (squishing arms together).
15. When she provided details of her father touching her with his penis, she previously couldn’t remember how he was positioned but now she can see it, she said that she could visualize being there and said her memory is sometimes better with the details.
16. She only remembers oral sex happening once when his mouth touched her vagina, and she was looking at the wall.
17. She stated that all her memories are “narrow memories, snapshots in time”.
18. DC Kavanagh is the first person she told any of the details relating to the allegations of sexual assault.
19. She acknowledged that there was gap in her memory, and she only remembers “snapshots” of incidents but has no memory of how they began or ended, or how she entered or exited her father’s bedroom, or how her clothes came off.
20. She believes that she told Nelly about the sexual abuse before her father reached out because after he reached out, she began self-harming. When it was put to her that she provided sworn testimony (twice) at the preliminary inquiry that she told Nelly after her father reached out, she stated that it is possible that she was wrong at the preliminary inquiry and then added that her memory is “not great because of the passage of time”.

[60] During re-examination LG stated that she didn’t remember the incident when her grandfather entered the house to visit any time before but remembered it today when answering questions.

J.’s Evidence

[61] At the time of the trial, J. was 39 years of age, married, and the father of six children, including LG, who is his eldest child. J. testified that he has an ongoing relationship with two of his six children.

[62] J. testified that when he was young, he was involved in a “toxic” relationship with LG’s mother, J., for approximately one year prior to LG’s birth.

[63] At the time of LG’s birth in January of 2005, J. and J. did not communicate as they did not get along. This aspect of J. and J.’s relationship never changed.

[64] J. stated that from the day that LG was born that he “went through court, fighting for LG” but was unsuccessful.

[65] J. stated that LG was placed in the care of her mother J. briefly before being apprehended by the CAS and placed with her maternal grandparents, where she remained until LG was two years old. J. confirmed this evidence.

[66] When LG was two years old, she was returned to her mother J. for a brief period before being placed with her foster mother “P.”. LG remained with P. for an extended period. J. confirmed this evidence.

[67] J. stated that he and J. had lots of “bad blood” between them and J. didn’t want him to have any contact with LG, none. LG confirmed this evidence.

[68] J. was advised that J. left LG with her with her foster mother P., abandoned her, and did not return to pick her up.

[69] J. testified that up until that time the CAS “would not give” him “the time of day”. However, when J. “abandoned” LG, CAS was considering Crown wardship for LG, and only then did the CAS consider that J. might be able to care for LG.

[70] J. testified that prior to the commencement of LG’s placement with him, that the CAS required J. to attend and complete parenting courses, anger management courses, counselling, and to submit to regular drug and alcohol testing.

[71] J. testified that he completed all tasks asked of him by CAS, attended all courses and counselling and submitted to regular alcohol and drug testing.

[72] In preparation for LG’s placement, access with J. began as supervised access at the CAS for an extended period which progressed to unsupervised in-home visits every other weekend. J. testified that the supervised visits were a slow transition for moving in. J. testified that LG was upset – as she was transitioning between her mom, her foster mom and her dad and struggled with her emotions. J. stated that despite being upset, LG was not scared, intimidated, or sad to be in his care.

[73] J. testified that he had ongoing interactions with the CAS before and after placement and that a CAS worker (Amanda Wicks) regularly attended his residence for interviews and inspections throughout the entirely of his care of LG.

[74] Prior to LG’s move, J. testified that he moved into a three-bedroom townhouse rented by his father and brother. J.’s father and brother moved out and J.’s best friend R. moved into the home approximately 6 months prior to LG.

[75] J. received care of LG in 2010 when LG was approximately 6 years old. J. maintained care of LG for two years until December 2012.

[76] J. testified before LG came to live with him, he set up LG’s bedroom and decorated it suitable for a young girl. LG’s bedroom was located on the second floor of his townhouse, beside his room, down the hall and opposite to his roommate’s room. J. testified that his home was close to a school such that LG could walk to school and walk home for lunch.

[77] J. testified that when LG arrived, she had no manners and was completely undisciplined. J. stated that he was a “strict” parent but denied that he engaged in corporal punishment as alleged by LG.

[78] J. stated that he had “rules, regulations, structure, and routine” at his home. J. stated that it was initially hard for LG who was used to doing “whatever she wanted”. He stated that it was a shock to LG’s system to have rules and a routine.

[79] J. denied that he engaged in corporal punishment as alleged by LG. Instead, J. advised that he engaged in “exercise punishment” and would require LG to run laps in the house or do knee push-ups when she misbehaved. J. stated that he advised CAS of this and although unusual, they did not object to this form of punishment.

[80] J. testified that he had a lot of support during this period from his family and friends. He stated that CAS came by regularly. J. had a girlfriend Megan, who would come and stay and would sometimes babysit LG. J. stated that Megan helped a lot with LG’s care.

[81] Additionally, J. advised that his mother and father assisted as did his roommate R. and R.’s girlfriend A. (now his wife). J. testified that A. stayed at their home every weekend and sometimes during the week, loved children, and always took time to sit and talk with LG.

[82] J. stated that he appreciated the support that he received from all sources as it was a hard transition from being a single person to taking care of a child.

[83] J. stated that LG never spent the night at Megan’s house as alleged by LG as he was under strict instructions from CAS and was required to follow all of CAS’s processes, including inspections and background checks. J. stated that when LG lived with him, she didn’t sleep at anyone’s home other than his mother’s home, P.’s home, and J.’s home.

[84] J. testified that CAS came to his home at least once a week. He stated that they came every two weeks for scheduled visits with a “surprise” visit in between.

[85] J. testified that CAS attended regularly as: he was a young (25-year-old) father with no experience; he had a bad relationship with CAS as he was young and arrogant and rude and so they would attend to monitor him; he didn’t always comply with CAS rules, and they would fight with him to ensure that he was in compliance; and he often argued with the CAS case worker because he thought he “knew it all”.

[86] J. testified that when CAS visited, they always interviewed him first, without LG present, and then they would go to LG’s bedroom and interview her privately. J. testified that the CAS weekly visits continued the entire time that LG was placed with him from 2010 to December of 2012.

[87] J. testified that LG’s mother, J., had every other weekend access with LG. The access visits were arranged through the court and CAS. J. also advised that LG’s foster mom, P., saw J. approximately three to four times for overnights while she was in his care, as P. lived quite a distance. P. would pick up J. for the weekend and then return her to J.’s care.

[88] J. testified that he had a good relationship with P. They had each other’s phone numbers, she was a good person, and he had nothing negative to say about P.

[89] J. described the layout of his bedroom and denied that he had a television or a computer, laptop, or iPad in the room. Instead, J. stated that he had a large fish tank on his dresser, and the room was otherwise filled with his bed (gifted from his father), and his dresser with no extra space.

[90] J. stated that the living room had a big screen television mounted on a wall and a couch (both gifted from his father). J. also had an Xbox connected to the living room television, a computer desk, and a computer with hard drive. R. verified this information at trial.

[91] J. testified that his roommate R. had his own television, Xbox system, and stereo system in his bedroom. R. verified this information at trial.

[92] J. denied that there was a DVD player or iPad in the home. R. verified this information.

[93] As for his mental health struggles, J. testified that he is bi-polar and takes medication. He also has borderline multiple personality disorder which is treated with his bi-polar medication. Additionally, J. has anxiety and ADHD and accompanying depression. He does not take medication for any disorder other than bi-polar/borderline multiple personality disorder medication. J. testified that he takes his medications regularly for a period and then goes off his medication and then returns and this has been his pattern for years.

[94] J. denied that he had any issue with drugs but admitted that he had an issue with alcohol. J. testified that he has abstained for the past five years. J. testified that when LG was living with him, he would drink a “few beers a day” but never to intoxication as CAS would “shame him”, it would be irresponsible, and CAS conducted regular alcohol testing throughout the period that LG resided with him.

[95] J. testified that in 2012, CAS advised him that they were considering removing LG from his care and returning her to her mother’s care. J. testified that this caused him to have a mental breakdown and as a result in December of 2012, while LG was at school, J. attempted suicide.

[96] J. testified that his suicide attempt was predicated by CAS advising him that they were considering returning LG to the care of her mother, J. J. stated that he had a history of mental illness and suicide attempts and he had worked very hard to obtain and maintain the care of LG and the pressure applied upon him by the court, the CAS, and J. was too much for him at that time.

[97] J. denied all allegations of physical and sexual abuse. J. specifically denied each individual allegation contained in the Indictment and specifically denied that he ever touched LG in a sexual manner, denied that he ever put his fingers inside LG’s vagina, denied that he ever requested LG to touch his penis, denied that he ever placed his mouth on LG’s body, denied that he ever showed LG pornography and denied that he ever asked LG to engage in any sexual act.

[98] J. testified that when LG was 16 years old, he reached out via a Facebook message to LG and J. J. testified that this was his first attempt at contact since LG was seven years old. J. stated that he doesn’t believe that LG saw his message, but J. did see it and blocked him within a few days. J. testified that the police showed up at his door and arrested him within a month or two of sending the message.

[99] J. testified that he had no intention of pursuing contact with LG, as when J. blocked him it was clear that J. didn’t want him in LG’s life.

[100] During cross-examination it was put to J. that he advised DC Kavanagh that at the time that LG lived with him, he “drank a lot”. It was suggested to J. that this statement was inconsistent with his evidence that he was drinking a beer or two each day. J. explained that he was an alcoholic and “drinking a lot” meant drinking every day – and drinking a beer or two every day is “a lot”.

[101] During cross-examination it was put to J. that he was “in no place to be a parent” when LG was removed from his care. J. agreed with that statement and added that when LG was taken away was “one of the lowest points of his life” and he “attempted suicide”. He stated that he tried “really hard to be a good father, a good person” and had a lot of people to prove that he could be a good father and a good person”. J. said that it was tough and there were many times when he wanted to give up, but he started getting used to the routine and he and LG were building a close bond with each other.

[102] During cross-examination J. stated that the Court and CAS were not easy on him, and he had anger and resentment. J. stated that when CAS told him that they were giving LG back to her mother that it “crushed him” and he felt “betrayed, helpless, what was the point if they were giving her back to her mother who was not fit to raise a child, she abandoned her”. J. said that this put him in a “dark place,” and he felt he “had lost his world”.

[103] J. testified that although LG was taken away from him because of his suicide attempt, in his mind she was already being taken away. J. acknowledged that he created the exact situation that he was fearing, and it became a self-fulfilling prophecy.

[104] During cross-examination J. denied that he used physical punishment to discipline LG and stated that a “grown man” should not be able to “hit” a little girl. He didn’t think that was okay. He stated that at the time he was working out a lot and was strong – he reiterated that he didn’t use physical discipline he used exercise as punishment.

[105] After LG was taken away J. did not attend access with J. because he said he was “emotional, embarrassed, ashamed”. J. noted, “How do you pop up and continue to do what you do when you have this shame on you knowing you’re still not in a good place in your head?” He added that he could “break down in a second and cry hysterically or have an anxiety attack” and he wasn’t putting himself or LG in that position when he had already created a “dramatic event”.

[106] During cross-examination J. provided the following additional evidence:

1. LG’s description of the townhouse where they resided was accurate, including the identity and location of the grandfather clock, the location of the bedrooms and bathroom, and the fact that the house had no basement.
2. LG did not go into R.’s room that he can recall.
3. R. would sometimes care for LG when he wasn’t there.
4. LG never stayed at his girlfriend’s house overnight.
5. LG sometimes stayed at his mother’s house, or J.’s house, or P.’s house on the weekends.
6. It was a big deal for him to reach out to LG and J. by Facebook as he had no contact with LG since she was 7 years old and did not speak to J.
7. He did not use spanking or hitting to discipline LG as he was spanked and hit a lot as a child and didn’t want his daughter to resent him.
8. He was smoking marijuana at the time but said he had no drug use at all as he doesn’t believe that marijuana is a drug. He wasn’t using marijuana frequently as he was subject to drug testing by CAS.
9. He was a young man and a womanizer. He had a bad attitude towards society and was full of pride. He was very unhappy, and it took him many years and therapy, including self-help books, to improve. He is not the same person that he once was.
10. He was in no place to be a parent when LG was taken away. It was the right decision to remove her from his care at the time.

J.’s Evidence

[107] J. appeared as a witness for the Crown.

[108] J. appeared well groomed and soft spoken. She testified in an even manner and did not become emotional or upset at any point during her testimony.

[109] J. testified that she was LG’s mother, that LG had not always lived with her, that LG went into foster care, the first time being with her mother in a “kinship care” relationship.

[110] J. testified that LG lived with J. when LG was between 5 and 7 years old.

[111] J. testified that she continued to have contact with LG while she was with J. J.’s contact began supervised and eventually she was able to attend J.’s home to pick up LG for overnight unsupervised visits.

[112] J. stated that “at that time” she had a good relationship with P., LG’s foster mom.

[113] After LG left J.’s home she went to live with P. and later came to live with J. when she was 7 or 8 years old.

Disclosure of Physical Abuse

[114] When LG returned to J.’s care, LG advised there had been “physical abuse and corporal punishment”. LG reported this abuse to the CAS worker.

[115] J. testified that although visitation between J. and LG was granted at a CAS hearing – and she took LG to the meeting place 3 to 4 times, J. never showed up for the access visits.

[116] J. testified that LG began having panic attacks and “was anxious around men” and so J. arranged for therapy of LG.

[117] J. stated that after LG disclosed the physical assault that she did not seek out details but would tell LG that her feelings were valid, and it was not okay that it happened.

[118] J. testified that she never suggested that LG have contact with J. – it was the counsellor who would ask every time he saw LG. J. testified that LG wanted no contact with J.

[119] J. testified that she personally had no contact with J. and once her daughter LG was returned to her custody her feelings for J. were “non-existent”. J. stated that it was “resolved”, and she was “indifferent”.

Disclosure of Sexual Abuse

[120] J. testified that two years ago LG disclosed that J. had sexually abused her.

[121] J. testified that J. reached out seeking contact with LG prior to LG disclosing the allegations of sexual assault. J. received a message on Facebook from J. that said, “Can I talk to my daughter?” The next day there was a further message that said, “Guess not”. LG also received a message that J. read - but LG didn’t see or read.

[122] J. testified that she did not respond to J.’s message. J. stated that LG was 16 years old and could make her own decision and if J. wanted access, he could get it through the court.

[123] J. testified that she “would have told” LG about J.’s message “within a couple of days” of receiving it. J. testified that LG was “put off” and didn’t want to respond. J. testified that she discussed with LG the fact that LG was anonymous and couldn’t be found by J.

[124] J. testified that “months later” in the summer, LG disclosed the allegations of sexual assault to her. J. stated that LG was camping with P. and requested to be picked up as P. had made a comment that hurt LG’s feelings. J. stated that she picked up LG and they discussed her conversation with P. and whether LG wanted to file a report. J. stated that she did not offer an opinion and later “Googled” what you were to say as a parent.

[125] J. testified that she never asked LG for details of the allegations and advised LG that she could file a report when she felt comfortable.

[126] J. stated that LG began self-harming after the disclosure, and she took her to her pediatrician.

[127] J. testified that she informed LG that it was her choice whether she wanted to report the allegations, advised that a lot of women do not report, and told her that it was her decision to make.

[128] J. testified that LG “randomly texted her” asking if she would have to see J. if she made a report.

[129] J. testified that the next day she took LG to the York Region Police (November 13, 2021), to make a report and then to the Durham Regional Police on November 18, 2021, at which time LG’s statement was videotaped.

[130] J. testified that at the time of the report, she wasn’t concerned that J. could get custody of LG. J. stated that she was “worried he might kidnap her”. J. stated that as it related to access, she knew LG would be provided with a lawyer through the Office of the Children’s Lawyer and that her wishes would be respected. J. testified that at 16 years of age the child chooses whether to see the parent or not.

[131] During cross-examination J. stated:

1. She didn’t ask LG if she was being harmed or abused as you are not to ask these questions of a child. She stated that she never asked LG these questions. LG gave opposite evidence.
2. She picked LG up at J.’s home and didn’t know if anyone else lived there and has no direct knowledge.
3. She doesn’t believe that CAS took proper concern of J.’s mental distress and issues before placing LG with him.
4. She doesn’t hate J. – she just doesn’t want him anywhere near her or LG.
5. As soon as LG was placed in her care she learned of the physical abuse and advised LG’s school and the CAS.
6. She never asked LG whether she was sexually assaulted. LG gave opposite evidence.
7. She received disclosure of the sexual assault allegations from LG through a text message.
8. She has never discussed the details of the allegations with LG, and she is okay with that.
9. She has never indicated to LG how she feels about J. LG gave opposite evidence.

R.’s Evidence

[132] R. appeared as a witness for the Defence. R. is J.’s best friend and was J.’s roommate at the time that LG lived with J.

[133] At the date of trial, R. was 38 years old, was married to A., being the woman who was his girlfriend at the time he lived with J. and LG, shares children with his wife, owns his own home, and landscaping business.

[134] R. testified that he has known J. since they were 16 years old. They are best friends, like brothers. R. and J. know each other’s children and remain in regular contact with one another.

[135] R. testified that he knew LG because she came to live with him and J. from 2010 to 2012. At that time, R. and J. lived in a three-bedroom townhouse in Oshawa, Ontario.

[136] R. testified that at the time he was working as a landscaper in the summer and as a snowplow driver during the winter. R. saw LG and J. every day after work and on the weekends during the summer.

[137] R. testified that during the winter months, he was home all the time unless it was snowing and would have been in the home during the daylight hours.

[138] R. testified that during this period A. was attending school and living with her parents. A. would stay over with him two to three times per week at the home that he shared with J. and LG.

[139] R. testified both he and A. interacted regularly with LG. They talked to her and played with her, and she called him “Uncle”.

[140] R. testified that before J. was able to have LG live with them that he was required to go to court and that J. had to deal with CAS “all the time”. R. testified that CAS would come to the house for visits which he recalls at a minimum were monthly visits.

[141] R. described J. as a “strict, good, and loving” parent. He stated that J. didn’t let her do whatever she wanted and set time rules and took things away if LG misbehaved.

[142] R. testified that he personally rarely drinks alcohol, maybe twice a year and J. was an “occasional drinker” at the townhouse, once a week or twice a week.

[143] R. testified that he never saw J. drink to intoxication when LG was living at their home.

[144] R. provided a description of the home that was consistent with that provided by J. and LG. R. confirmed J.’s evidence that J. did not have a television in his bedroom. R. stated that J. had no electronics in his bedroom. R. also confirmed J.’s evidence that they did not have a VCR/VHS player in their home. R. testified that they didn’t use VHS – they could play DVDs through their respective Xboxes.

[145] R. testified that he had a television and an Xbox in his bedroom. The only other television and Xbox system was in the living room where J. played Xbox.

[146] R. doesn’t recall that LG was ever left alone in his company. R. testified that he didn’t own an iPad or tablet and doesn’t believe that J. owned an iPad or tablet and doesn’t recall ever seeing LG with an iPad or a tablet.

[147] R. testified that LG seemed to be a happy child. He didn’t recall anything specific she was just a regular child. R. confirmed that LG moved out in 2012 but didn’t recall the date.

[148] During cross-examination, R. testified as follows:

1. He lived at the home 6 months before LG moved in.
2. J. was at home during the daytime hours.
3. If LG stayed home from school J. would be with her.
4. He doesn’t remember J.’s girlfriend having red hair.
5. He doesn’t remember J. and LG staying at J.’s girlfriend’s home.
6. LG did not have a TV in her room.
7. J. advised him that LG accused him of sexual assault but does not recall being advised that LG alleged J. showed her pornography in his bedroom, but it is possible.
8. He doesn’t remember if CAS met with him or did a background check, but he assumes they did as he lived at the house full time.
9. He doesn’t remember any incident of physical abuse and never saw any of it. He does recall that J. used “exercise” for punishment and thought that it was appropriate.
10. He knew of J.’s mental health struggles but doesn’t know if he took his medications.
11. J.’s attempted suicide came as a surprise to him.

THE ISSUE

[149] Has the Crown proven beyond a reasonable doubt that J. is guilty of any of the offences for which he stands charged?

Positions of the Crown and the Defence

[150] The Crown claims that LG’s testimony was both credible and reliable and is deserving of belief. The Crown claims based on the whole of the evidence presented that LG’s evidence is both internally and externally consistent and satisfies the burden of proof beyond a reasonable doubt such that J.’s guilt of the offences charged has been proven beyond a reasonable doubt.

[151] The Defence asserts that the onus lies solely upon the Crown to prove the guilt of J. beyond a reasonable doubt on the entirety of the evidence admitted. The Defence asserts that based on the entirety of the evidence admitted, a reasonable doubt exists as to J.’s guilt. Consequently, the Defence asserts that J. must be acquitted of all charges.

THE LAW

Reasonable Doubt and Burden of Proof

[152] The burden is on the Crown to prove the accused’s guilt beyond a reasonable doubt. The accused comes before the court with the presumption of innocence. In other words, he has a clean slate. The presumption is only discharged when, and if, the Crown proves his guilt beyond a reasonable doubt.

[153] At all times the Crown bears the onus of proving the case. The accused does not have to prove anything. The Crown is required to prove the essential elements of the offence to the reasonable doubt standard. I must assess the evidence submitted on the whole and decide whether, on the basis of all of the evidence, or lack thereof, the Crown has proven the guilt of the accused beyond a reasonable doubt: R. v. Lifchus, [1997] 3 S.C.R. 320, 150 D.L.R. (4th) 733.

[154] LG testified that J. sexually assaulted her on multiple occasions during daytime hours inside his bedroom while she was in his care. LG testified that while she does not have a clear memory of how the incidents of sexual assault began or ended, she does remember aspects of the incidents as “snapshots” in her memory. LG testified that she has always known that J. assaulted her, has never forgotten the incidents, and despite her attempts to block the incidents from her mind, she still recalls the incidents through these “snapshots”. Although not the subject of any charge before the Court, LG also testified that J. physically assaulted her while she was in his care through the use of corporal punishment, including hitting by hand and with a brush, during J.’s care of her.

[155] J. testified that he did not sexually assault LG, at any time. J. also testified that he did not physically assault LG and specifically did not engage in corporal punishment to discipline LG. J. testified that although he was not in a good place mentally and emotionally when he had custody of LG, he did not on any occasion abuse LG, sexually or physically.

[156] My task is not to choose amongst these two different versions to see which one I prefer. Rather, I must assess J.’s evidence, in the context of all the evidence, and if I believe J., I must acquit. Even if I do not believe J., in the context of all the evidence, but his testimony leaves me with a reasonable doubt, I must acquit. Even if I am not left in doubt by J.’s testimony, I must still consider, on the basis of the evidence that I do accept, if I am satisfied beyond a reasonable doubt of J.’s guilt.

[157] If I cannot decide whether to believe the accused, or if I cannot decide who to believe, or I am unable to resolve conflicting evidence and am therefore left in a state of reasonable doubt, I must acquit.

Assessment of Evidence

[158] A criminal trial is not a credibility contest. At the end of the day, the Crown has the onus of proving its case beyond a reasonable doubt: R. v. W.(D.), [1991] 1 S.C.R. 742, 3 C.R. (4th) 302; R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at paras. 66, 67.

[159] As stated by the Supreme Court of Canada in R. v. Vuradin, 2013 SCC 38, [2013] 2 S.C.R. 639, at para. 21, “A verdict of guilt must not be based on a choice between the accused's evidence and the Crown's evidence”, citing R. v. C.L.Y., 2008 SCC 2, [2008] 1 S.C.R. 5, at paras. 6-8.

[160] In assessing the evidence led at trial, I must consider the credibility and reliability of the witnesses’ evidence. Credibility and reliability are not the same thing, as stated by Watt J.A. in R. v. H.C., 2009 ONCA 56, 241 C.C.C. (3d) 45, at para. 41:

Credibility and reliability are different. Credibility has to do with a witness's veracity, reliability with the accuracy of the witness's testimony. Accuracy engages consideration of the witness's ability to accurately: observe; recall; and recount events in issue. 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 witness may give unreliable evidence [citations omitted.]

Also see R. v. Ghadghoni, 2020 ONCA 24, at para. 34.

[161] In assessing a witness’s credibility and reliability, I must examine the consistency between what the witness said throughout his or her evidence, and what was said on other occasions, whether or not under oath: R. v. G.(M.), (1994), 93 C.C.C. (3d) 347, 73 O.A.C. 356 (Ont. C.A.), at para. 23, leave to appeal to S.C.C. refused, [1994] S.C.C.A. No. 390; R. v. A.M., 2014 ONCA 769, 123 O.R. (3d) 536.

[162] It is important to consider not just the individual inconsistency but also the cumulative effect of any inconsistencies that I find and the nature of the inconsistency. Not all inconsistencies are the same, some are minor, others are not, some concern material issues, others peripheral subjects. As stated by the Court of Appeal in R. v. R.C., 2021 ONCA 419 at para. 37:

Inconsistencies about which an honest witness is unlikely to be mistaken can demonstrate a "carelessness about the truth" while inconsistencies about peripheral issues are of less significance: R. v. G. (M.) (1994), 93 C.C.C. (3d) 347 (Ont. C.A.), at p. 354; see also R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788, at paras. 30-31.

[163] I am entitled to consider the witness’s demeanor in assessing the witness’s credibility. However, I must be cautious, as stated by the Ontario Court of Appeal in R. v. D.P., 2017 ONCA 263, at para. 26:

A witness’s demeanor is an appropriate consideration when assessing credibility. Demeanor can, however, be misleading and should be factored into the credibility assessment with care. There is always a danger that demeanor can be overemphasized by a trial judge or a jury.

[164] The evidence must be assessed based on the entirety of the evidence provided and not just the evidence of the complainant, whether by videotaped statement or viva voce evidence. The ultimate issue is always reasonable doubt.

Assessing the Testimony of Child and Adult Witnesses

[165] The complainant was 6 to 7 years old at the date of the alleged offences; 16 years old at disclosure; and 19 years old at trial.

[166] The accused J., and the other two witnesses, R. and J., were all adults at the date of the alleged offences; at the date of disclosure; and at the date of trial.

[167] Every person who gives evidence is an individual whose truthfulness and reliability must be assessed keeping in mind, among other things, that person’s mental development, understanding, and ability to communicate. When witnesses testify about events which occurred when they were younger their truthfulness and reliability should be assessed taking into consideration their current age. However, when the evidence relates to events that the witness says took place at a younger age, 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 that she is testifying about. It is important to consider the witnesses’ intelligence, experience, and capacity to observe and understand what was happening at the time of the event. This is because a younger witness might not be paying particular attention to some detail that an adult might notice. The failure to pay attention might give rise to confusion on such details. The important questions in that context are whether the deficiencies, if any, are minor or significant and whether the deficiencies mean that events were misconceived. However, this does not mean that the testimony of children or young adults is subjected to a lower level of scrutiny for reliability than other testimony. In other words, the standard of proof is not relaxed in cases dependent upon the testimony of children and young adults. See R. v. F. (W.J.) [1993] 3 S.C.R. 569, about the treatment of witnesses, as well as Finlayson J.A.’s comments in R. v. Stewart (1994), 18 O.R. (3d) 509, (Ont. C.A.), leave to appeal to S.C.C. dismissed without reasons [1994] S.C.C.A. No. 290.

[168] In R. v. W. (R.), [1992] 2 S.C.R. 122, at pp.132-135, McLachlin, J., stressed that courts have a new appreciation that it may be wrong to apply adult tests for credibility to the evidence of children. The court confirmed that a common-sense approach is to be taken when dealing with the testimony of children. At p. 134, McLachlin, J. stated as follows:

It is neither desirable nor possible to state hard and fast rules as to when a witness’s evidence should be assessed by reference to “adult” or “child” standards – to do so would be to create anew stereotypes potentially as rigid and unjust as those which the recent developments in the law’s approach to children’s evidence have been designed to dispel. Every person giving testimony in court, or whatever age, is an individual, whose credibility and reliability must be assessed by reference to criteria appropriate to her mental development, understanding, and ability to communicate. In general, where an adult is testifying to events which occurred when she was a child, her credibility should be assessed according to criteria applicable to her as an adult witness. Yet with regard to her evidence pertaining to events which occurred in childhood, the presence of inconsistencies, particularly as to peripheral matters such as time and location, should be considered in the context of the age of the witness at the time of the events to which she is testifying.

[169] Corroborative evidence is not required to make a finding of guilt beyond a reasonable doubt. Youthfulness, sincerity, and demeanor go to credibility, not to reliability: See R. v. R.H.A. (2000), 134 O.A.C. 186, at para. 3 and R. v. Stewart (1994), 18 O.R. (3d) 509.

Credibility: Delay in Disclosure

[170] It has long been recognized that there is no inviolable rule on how people who are the victims of trauma like a sexual assault will behave: R v. D. (D.), 2000 SCC 43, [2000] 2 S.C.R. 275 at para. 65.

[171] Delayed or incremental disclosure, standing alone, cannot adversely affect the credibility of a complainant. There are no fixed rules about how victims of sexual assaults must behave, including the timing of making reports. As Major J. stated, in speaking for the majority in R. v. D. (D.), at para. 65:

…there is no inviolable rule on how people who are the victims of trauma like sexual assault will behave. Some will make an immediate complaint, some will delay in disclosing the abuse, while some will never disclose the abuse. Reasons for delay are many and at least include embarrassment, fear, guilt, or a lack of understanding and knowledge. In assessing the credibility of the complainant, the timing of the complaint is simply one circumstance to consider in the factual mosaic of a particular case.

ANALYSIS: APPLICATION OF THE LAW TO THE FACTS

Credibility and Reliability of J.’s Evidence

[172] J. was attentive, cooperative, polite, and articulate throughout his testimony. He readily admitted that at the time of the alleged offences that he was young, arrogant, rude, and not a “good person”.

[173] J. spoke candidly about his challenges during the time that he had care of LG, including his mental health challenges. He was self-effacing and testified that although he tried his best to be a good father, he ultimately became overwhelmed. J. did not seek to excuse himself for his failures, including his suicide attempt, and he recognized that LG’s removal from his care was appropriate at the time.

[174] J. appeared throughout his testimony to be a credible witness.

[175] As for the reliability of J.’s testimony at trial, much of J.’s evidence that was capable of corroboration was in fact corroborated by R., whose testimony I accept, for the following reasons:

1. R. presented as a responsible, mature, and honest witness. R. answered all questions posed of him without hesitation or artifice.
2. Although R. attended as a Defence witness, I found his testimony to be balanced and fair. R. did not seek to overreach or exaggerate his knowledge of the events that occurred while LG resided at the home with him and J.
3. R. testified that he has known J. since they were 16 years old and considers him to be like a “brother”. R. testified that his alcohol intake was minimal at the time and remains minimal to this date. R. testified that he was employed as a landscaper and now owns his own landscaping business. R. testified that he was dating his girlfriend who is now his wife. R. testified that he and his wife share children together.
4. In all manner, R. appeared to be a solid human being, who was consistent in his testimony and his life choices.
5. I found R. to be a credible witness who provided reliable evidence.

[176] J.’s evidence was internally and externally consistent. As noted much of J.’s evidence that was capable of corroboration was corroborated by R., as follows: the layout of the home; the contents of the home; the type of electronic devices found in the home; the fact that there was no television in J.’s bedroom; the fact that there was no VHS/VCR player in the home; the fact that J. utilized “exercise” based discipline did not engage in corporal punishment; the fact that during the daytime several individuals would have been in the home at any time including J., J.’s girlfriend Megan, R., and R.’s girlfriend, A. the fact that J. spent time with other caregivers including week-ends outside of the home with J.’s mother, P., and/or J.; the fact that the CAS regularly attended the home and interviewed J. and LG; and the fact that J. limited his alcohol and marijuana intake during the period that he had custody of LG.

[177] There was only one aspect of J.’s testimony that was somewhat inconsistent, which dealt with the amount of alcohol and/or drugs that J. was consuming while LG was in his care. At trial J. said that he did not do drugs and drank very little. However, prior to trial, J. advised DC Kavanagh that he was drinking “a lot”. The explanation for this perceived inconsistency provided by J. was that he is an alcoholic and two beers per day is two beers too many. As for his comments regarding his marijuana use, I accept his testimony that he was using marijuana sparingly at the time as he was being regularly drug tested by CAS. When I consider J.’s evidence regarding his alcohol and drug use with that provided by R., I am of the view that J. provided truthful and accurate evidence, viewed from his own personal perspective, both when he advised DC Kavanagh that he was drinking “a lot”, and to this court when he said he was drinking one to two beers per day.

[178] I accept J.’s evidence that despite LG’s insistence, that LG did not spend any nights at J.’s girlfriend’s home and instead spent all school nights at J.’s home. I find that LG’s memories of her interaction with individuals that lived at J.’s home or visited the home during the period to be fractured and faulty.

[179] I find the fact that LG was “certain” that she spent many nights at J.’s girlfriend’s home, where she recalled that she would watch Pokémon, and then walk to school from her home, (all of which was adamantly denied by J.) to raise specific concerns about the accuracy of LG’s memory and the reliability of her evidence.

[180] I accept J.’s evidence as corroborated by J. and R., that LG would spend many weekends staying with J., P., or J.’s mother.

[181] I accept J.’s evidence that he did not engage in corporal punishment. I find that J.’s evidence in this regard was fully corroborated by R., who resided at the home throughout the entire period, who did not and does not drink alcohol or consume drugs, and who was a sober witness to the events that transpired in the home. R. confirmed J.’s evidence that J. utilized “exercise” as a form of punishment which was not abusive and was approved by the CAS.

[182] I find LG’s evidence that she would have “bruises” from being “hit” by J., to be inconsistent with J. and R.’s evidence that corporal punishment was not utilized in the home, and inconsistent with the fact that there were many people who cared for LG overnight on weekends, including J., P., and J.’s mother, all of whom would have assisted LG with her baths and dressing. Had LG exhibited bruising, I have no doubt that J. and P., at a minimum, would have raised an alarm and reported such concerns to the CAS.

[183] I find the fact that LG was certain that J. utilized corporal punishment, that she was “hit”, that J. physically abused her, and that she often had “bruises”, to be troubling and raises further concerns about the accuracy of LG’s memory and the reliability of her evidence.

[184] I accept J.’s evidence, which was partially corroborated by R. and J., that the CAS were a constant in their lives, and regularly attended the home.

[185] Again, I find the fact that LG only recalls the CAS attending the home on one occasion to raise concerns about the accuracy of LG’s memory and the reliability of her evidence.

[186] J. testified that he did not sexually assault LG. I find that this evidence could reasonably be true for the following reasons:

1. J.’s evidence was internally and externally consistent.
2. J.’s evidence that was capable of corroboration was independently corroborated, such as: i. There was no television or VHS/VCR player in J.’s bedroom. ii. There was no television or VHS/VCR player in LG’s bedroom. iii. The only televisions in the home were in R.’s room and/or the living room. iv. No one residing in the home, including J., R., or LG, possessed an iPad or a tablet. v. LG spent a lot of time with R. and R.’s girlfriend and referred to R. as “Uncle”, and yet LG has no recollection of these interactions and cannot recall R.’s name. vi. During the winter months, J. and R. were both at the home during the daytime hours, unless it was snowing. vii. During some weekdays and on most weekends, R.’s girlfriend and/or J.’s girlfriend, would sleep over at the home and were at the home during the daytime hours. viii. LG did not stay overnight at J.’s girlfriend’s home. ix. LG did not watch Pokémon in the morning at J.’s girlfriend’s home. x. LG did not walk to school from J.’s girlfriend’s home. xi. J. did not utilize corporal punishment to discipline LG. xii. J. did not “hit” LG. xiii. LG was not “bruised” from being “hit” by J. xiv. The CAS regularly attended the home to conduct “surprise” inspections. xv. LG spent many weekends away from J. with her mother J., her foster mother P., and/or J.’s mother.
3. LG’s memory of the events that occurred during the period that she resided with J. and R., excepting her description of the layout of the townhome, was cloudy, often mistaken, and fractured. LG readily admitted that she had difficulty recalling the events clearly and her memory was “not great due to the passage of time”.

Credibility and the Reliability of LG’s Evidence

[187] At trial, LG was polite, soft spoken, and articulate. LG presented as a mature young woman who sought to tell her truth.

[188] LG did not appear bitter, nor did she appear to have an ulterior motive in advancing her complaint.

[189] I found LG to be a credible witness.

[190] However, as noted above, I find LG’s ability to recall the events that happened during the period that she resided with J. and R., to be cloudy, fractured, and faulty. As LG herself noted, her memory was “not that great due to the passage of time”.

[191] Further, while LG’s version of events does not require corroboration to convict J., much of LG’s evidence that was capable of corroboration, was found to be mistakenly remembered.

[192] Further, as outlined above, much of LG’s evidence that she was certain was accurate was in fact inaccurate, and falsely remembered.

[193] Based on all the evidence introduced at trial, I find LG to be a credible witness in that I accept that she believes she is telling the truth. However, I have concerns with the reliability of LG’s evidence.

DISPOSITION AND CONCLUSIONS

[194] Based on the totality of the evidence presented, I find in the circumstances of this case that the Crown has not proven the guilt of J. for the offences charged beyond a reasonable doubt. Accordingly, I find J. not guilty on all counts.

Released Orally: April 4, 2024 Released in Writing: April 10, 2024 Amended: April 17, 2024 (grammatical and formatting corrections only No changes have been made to Her Honour’s Reasons or Judgment)