COURT FILE NO.: CR-23-59

DATE: 2024-06-18

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HIS MAJESTY THE KING

B. Jackson, for the Crown

• and -

P.M.

E. Hilzenrat, for the Defendant

HEARD: April 22-26, 30, 2024

RESTRICTION ON PUBLICATION

Pursuant to an order of this court, issued under s. 486.4(1) of the Criminal Code, no information that could serve to identify the complainant in this prosecution shall be published in any document or broadcast or transmitted in any way.

REASONS FOR JUDGMENT

MIRZA J.

INTRODUCTION

[1] P.M. is charged that between the 1st day of January 2015, and the 25th day of March 2018, at the City of Mississauga, in the Central West Region, did commit a sexual assault on C.M., contrary to section 271 of the Criminal Code, R.S.C., 1985, c. C-46.

[2] She is further charged that between the 1st day of January 2015, and the 25th day of March 2018, at the City of Mississauga, in the Central West Region, she did for a sexual purpose touch C.M., a person under the age of sixteen years, directly with a part of her body, contrary to section 151 of the Code.

[3] The judge alone trial was conducted from April 22 to April 26, 2024. An agreed statement of facts (ASF) was filed documenting key dates that provides additional background.

[4] For the reasons that follow, I find P.M., not guilty of all charges.

SUMMARY OF THE EVIDENCE

[5] In these reasons, I will respectfully refer to people at times by their first names or abbreviations. I have modified initials where necessary since some family members possess the same initials.

CROWN’S CASE

C.M.

Background:

[6] C.M. is the complainant. She testified on consent by CCTV with a support worker present, pursuant to sections 486.2 and 486.1 of the Criminal Code.

[7] C.M. is 12 years old. She is the daughter of P.M., and L.B.

[8] P.M. and L.B. are separated.

[9] C.M. currently lives with her mother, L.B., and L.B.’s partner.

[10] Since C.M. was 2.5 to 3 years old, L.B. and P.M. have been involved in family proceedings. It is agreed that their post separation relationship has been high conflict and tumultuous.

[11] In May 2022, when C.M. was in Grade 5, she made allegations to the police that P.M. touched her vagina.

[12] Shortly before making the allegations to the police, C.M. was concerned that due to the anticipated outcome of a family proceeding ruling, she would have to spend parenting time with P.M. heading into the summer. By this point, she did not want to see P.M. further.

Visiting P.M.:

[13] C.M. said that her earliest recollection of inappropriate touching by P.M. was when she was when she was 3 years old.

[14] After P.M. and L.B. separated, C.M. would visit P.M. At that time, P.M. resided in an apartment in Mississauga. C.M. would visit P.M. once a week for more than a day.

[15] C.M. stated that around the start of Grade 1, P.M.’s mother moved in and occupied the bedroom in the basement apartment.

[16] C.M. said that she stopped visiting P.M. around the end of Grade 1 or at the start of Grade 2. Their last visit may have been at a community centre or library.

Basement Layout:

[17] C.M. described P.M.’s apartment as a one-bedroom, small space with a living room and kitchen.

[18] C.M. said that there was a landing after the door, then a set of stairs. Under the stairs was a storage area with containers and random items. At the bottom of the stairs, was a hallway and to the left was the laundry area. Straight ahead was the wall to bathroom.

[19] She described that there was a living area with a side door. It took about 10 to 15 steps to get to the living area.

[20] There was a pullout bed in the living room. Beside the bed, was a couch. There was a coffee table and TV against the wall. There was also a shelf with her stuff stored and a fish tank.

[21] C.M. said that she slept in the bedroom for a while and P.M. slept on the couch. In the bedroom was a queen-sized bed. She did not remember the furniture.

[22] However, after P.M.’s mother moved in, the arrangement changed. She said that P.M.’s mother used the bedroom. C.M. then moved into the living room where she slept on a bed that she said was not really a bed. P.M. was next to her. She was asked when this happened, and she said both years of kindergarten.

[23] In cross-examination, it was put to her that she slept on a couch in the living room first before she moved to a foldout bed and P.M. slept on the floor. She said she did not remember. She agreed the couch can only fit one person.

[24] The Defence suggested to C.M. that her grandfather, (P.M.’s father), F.M. lived with P.M. and her mother at the apartment. C.M. did not remember her grandfather being present.

[25] She was shown a diagram of the basement by defence counsel during cross-examination. She accepted parts of the layout as depicted such as the living room and kitchen.

[26] There were other parts of the diagram that she disagreed with. She said that there was a couch in the living room, not a loveseat. She recalled the position of the bed and TV were reversed from the diagram. She also said that she did not recall the contents of the storage area under the stairs, as summarized in the diagram.

Alleged Sexual Touching

[27] C.M. alleged that P.M. touched her sexually often over a period of time that spanned between when she 3 years old to the end of Grade 1. With the Crown’s prompting, C.M. often used school grades as a gauge for time. She also mentioned her ages at times.

[28] When asked how many times it happened, C.M. said not every weekend visit but around every other visit. She stated that would not happen for two visits and then happen again. In cross-examination, she said that the touching occurred about every other visit, on weekends and not during weekday visits.

[29] Although she claimed that there were many incidents, her ability to recall in detail was largely focused on a few that stood out in her mind. She described a few others more briefly, in a more general and limited manner. This summary of the nature of her evidence was agreed to by the Crown and Defence.

First Incident:

[30] C.M. said that the earliest time she remembered P.M. touching her vagina in uncomfortable ways was when she was 3 years old.

[31] She explained that she was in junior kindergarten or kindergarten. In cross-examination, she said that she was 3 or close to 4 years old, and close to junior kindergarten. She said it was the spring.

[32] She said that during a visit, P.M. touched her vagina while she was on the couch in the living room.

[33] She said it was evening or night. She was watching TV. P.M. was in the kitchen. Then P.M. came to be beside the couch or sitting on the couch.

[34] C.M. said that she could not recall the words spoken at the specific time of touching, but she remembered at different times that P.M. would get upset and frustrated when C.M. expressed that she wanted to speak with L.B.. She stated that P.M. appeared from her facial expression not to be happy. C.M. later said that P.M. did not say anything during the touching.

[35] C.M. said that P.M. told her to pull down her bottoms, which she described as pants and underwear.

[36] She stated that she had no choice with respect to removing her clothing. She described that she did what she was told.

[37] In examination in chief, she stated that P.M. would squeeze, twist, and dig her nails into her vagina. This was under clothes, directly on skin. The nails would touch her near the top of the vaginal area.

[38] She said that she did not know how long it lasted for but estimated that it was about five minutes or less. She did not keep track but knew it was not for a long time.

[39] In cross-examination, she was taken to a part of her video-statement where according to the transcript, she described to the officer touching of her vagina but said that P.M. would twist, then “put my nails into it.” On the transcript, it read as “my” as in reference to C.M.’s own nails.

[40] The officer summarized her evidence back to her but when he did so, he used the word “her nails” as in P.M.’s. C.M. agreed with the officer’s version.

[41] To determine the accurate words used, the video-statement was played for C.M. to listen to in the CCTV room with all parties present to observe and for the Defence to ask questions thereafter.

[42] When asked about her comment and after listening to the relevant clip more than once, C.M. disagreed she said, “my nails” and emphatically stated that she clearly said “her nails” during the interview, referencing P.M.. She said the officer understood what she meant and relayed it back accurately.

[43] I pause here to note that upon my own review of the video clip with the aid of earphones, I heard C.M. say, “her nails.” In other words, she used the word “her” in reference to P.M. and the transcript was wrong. I notified the parties of my understanding and gave them an opportunity to make further submissions. My interpretation was not disputed. Earlier while the video-statement was played in court, it did sound like “my nails” but the aid of earphones provided greater clarity.

[44] C.M. stated that after the touching occurred, she did not feel good. She felt uncomfortable and sore. She said it was painful.

[45] C.M. said that after the touching P.M. would threaten her that if she told anybody she would not see the people she cared about. P.M. told her that she would do something to them, and C.M. would not see them again. C.M. interpreted that to mean that P.M. would kill or harm them. She said that the threats happened every time.

Second Incident:

[46] C.M. described an incident when she was in junior kindergarten. In cross-examination the time period was reviewed again, and she said it was during kindergarten, acknowledging there is junior and regular or senior. She described it as happening during winter weather.

[47] She said this incident was before Christmas. Initially she said it was November or December, then she said around Christmas eve. She also said around early December.

[48] She said she was on the couch in the living room. She was watching the “grinch” movie. She said that P.M. paused the movie. No one else was in the basement. This was before P.M.’s mother moved in.

[49] She did not think P.M. said anything but did not recall.

[50] C.M. said that she was lying down, and P.M. got her to pull down her pants. She pulled down her pants because she did not feel she had a choice.

[51] She said she thought that P.M. seemed angry by her facial expression. She could not describe the expression.

[52] She stated that P.M. touched her vagina in the same way as the other incident. She said that P.M. would touch her under her clothes, squeeze and put her nails into her vagina in uncomfortable ways.

[53] Initially she said she did not remember how it stopped and that she did not remember saying anything to P.M.. She did not remember her reaction.

[54] Later C.M. said that she told P.M. to stop and not to do it.

[55] She was asked if she remembered how P.M. responded and said she did not remember if P.M. responded.

[56] She said the duration of the encounter was the same as the first incident.

[57] In examination in chief, she reviewed her statement to the police on this point to refresh her memory. The Defence objected but I allowed her to do so since she could not recall and said that reviewing her statement might help her to refresh her memory. Since C.M. is 12 years old, the statement was taken when she was 10 years old and the alleged incident is from several years earlier, in my view it was fair for her to review her statement to see if it helped to refresh her memory. It was not disputed by Defence counsel that she could not recall, she said it might help, and the statement accurately provided her past recollection.

[58] After reviewing the transcript of her statement to the police to refresh her memory, C.M. said that she remembered that P.M. pushed her, motioning to her left shoulder. On another occasion she said that P.M. yelled at her. The push was a different time than the yelling. She did not remember what P.M. said.

[59] It was not clear which incident this pushing pertained to as in her statement she does not reference the “grinch” movie incident. In submissions counsel agreed that there was no evidence which incident this alleged push or yelling pertained to.

[60] C.M. said that she believed this incident of touching took about the same amount of time as the prior incident.

[61] C.M. said that the touching felt weird and tingly. She didn’t know how to describe it. She said it hurt.

[62] In cross-examination, she said that she did not recall screaming in relation to the kindergarten incidents. She said she screamed during other incidents.

[63] She did not remember how it stopped. She did not remember if she said anything.

[64] She said that P.M. repeated that if she told anyone she would not see people she cared about. Again, she said that P.M. said this every time.

[65] She said P.M. was angry. She described her voice as above neutral, not loud, or soft.

[66] She said that when the sexual touching occurred, P.M.’s mother would not be home.

Third incident:

[67] C.M. mentioned that there was another alleged incident in Grade 1. This was after P.M.’s mother moved in. She said that P.M.’s mother was out running errands at the time.

[68] C.M. stated that the touching never occurred when her grandmother was around.

[69] She said this incident was not the specific last time there was touching as she did not recall when it ended. She did not recall the particulars. She did not recall the time or season but said it was nice outside. She did not describe this incident in detail but said more broadly it happened inside, always on the couch.

Other Incidents:

[70] C.M. was asked if there were other incidents that stood out as unusual. Initially, she said no.

[71] C.M. explained that there were other occasions of being touched sexually, but she did not describe them with particulars.

[72] She was asked if she could recall the number of times she was touched numerically and could not. But as noted above, she said it happened frequently, about every other visit. She stopped visiting P.M. near the end of Grade 1.

[73] She said that there were a couple of incidents of sexual touching in the bedroom sometimes before she went to bed, but that did not happen often. It was usually on the couch. P.M. did not touch her that much while in the bed. It was less and she didn’t do it as hard as the other times. She stated that her relatively more clear recollections were on the couch.

[74] In cross-examination, she was taken to her statement to the police where she said that she was not sure if the touching was on the couch or bed. She told the officer that it did not make sense that it happened on the couch because it wasn’t that wide or thick.

[75] In response to these questions about this discrepancy between her trial testimony and statement to the police, she said that her memory was unclear at the time of speaking to the police. She said that it was hard to remember when she spoke to the police but did not know why her memory seemed more clearer now. She was asked that she recalled other details when speaking with the police such as P.M. got angry and asked her mother to leave. She agreed.

[76] C.M. was then questioned how it was she did not recall other details as she had described in her testimony at trial, when speaking with the police 2 years earlier. She was taken to parts where she was asked by the police if there was anything else to report or that she could remember and she said no. She testified that she told the officer everything.

[77] She was confronted with the new details she testified about at trial.

[78] She acknowledged that her memory did not get better over time.

[79] She also agreed that she mentioned one incident on the couch to the police. She did not mention in her statement that there was another incident on the couch as she mentioned at trial. She mentioned the nails being used on her one time. These omissions are confirmed in the ASF at paras. 7 and 9.

[80] She agreed that she described for the first time in her testimony at trial that the first incident she recalled was when she was 3 years old and that she sat on the couch and P.M. did something. In her police statement, she said the incident was when she was in kindergarten or grade 1. See also the ASF at para. 8.

[81] She agreed that she also added at trial that the other incident happened during the playing and pausing of the “grinch” movie. See also the ASF at para. 8b.

[82] It is an agreed fact that she reviewed her statement on April 10, 2024, prior to testifying and did not disclose any new information to the police. She also met with Detective Constable Clutterbuck on April 8, 2024, and did not disclose any new information. DC Clutterbuck is the same officer that interviewed her initially.

[83] It was put to her by the Defence that these are important details that she did not tell the police in her statement of May 2022. She said she did not mention this information because she was scared. She mentioned during examination in-chief that she was shy, and it was hard to talk about the subject.

[84] She was challenged that she was specific sometimes and could be specific when she wished such as when she described P.M. got angry with her mother and told her mother to leave. She disagreed with the suggestion that she is only now remembering. She said she always remembered and was scared and did not know how to explain it good.

[85] She was taken to her transcript where she said she was increasingly comfortable as the interview progressed. In her testimony, she confirmed that she was comfortable during the interview by that point.

[86] In cross-examination, she was questioned that she specifically used the word “intimate” in the video-statement to describe the touching. This word was reflected in the transcript.

[87] C.M. denied using the word “intimate” and asked Defence counsel what the word meant.

[88] The video statement excerpt was played for C.M. at my direction to ensure fairness. After listening to the excerpt, she adamantly denied using the word “intimate.” She said she was sure that it was not a word that she would know or use.

[89] She said that when she listened to the playback, she didn’t hear her say that word. To her, that part sounded like two different words, and it was very muffled. She said at the time she was quiet and nervous. She maintained she would not use that word.

[90] She was also questioned about her comment that P.M. would harm or kill her mother if she told anyone. On the video-statement (and as reflected on the transcript), this was stated by her to the officer at 4:56 p.m. after a lengthy break, and after the officer met with L.B., who was at the station with C.M.

[91] At 4:45 p.m., after completing the interview with L.B., Officer Clutterbuck stated: “your mom was mentioning, was there something else you wanted to tell me that you didn't tell me?” See ASF at para. 6.

[92] It was suggested to her that this was an add-on after meeting with L.B.. She said that was her belief.

[93] She agreed with the suggestion that P.M. did not actually threaten to harm or kill anyone, but said P.M. told her that she would not see them again.

[94] She was questioned that by the time of her police interview she had not spoken with P.M. for over a year. When asked why she went to the police in May 2022, she said that there was a family court requirement that she would have to go live with P.M., and she could not have that happen again. She was really scared. The family court said that by the summer she would have to go live with P.M. and deal with her all over again.

[95] She said that the family law case was going on since she was little and was still going on at the time. The court case was deciding if she had to go live with P.M. for a few months. Her mom, L.B., told her it was going to happen soon. She said that she freaked out and was scared.

[96] She said L.B. told her about the family law situation a few weeks before she went to the police. She spoke to L.B. about how much time she had. She was scared to see P.M. again and go through the abuse again.

[97] In cross-examination, C.M. said that she remembered during parenting exchange that P.M. and L.B. had conflict. She was stuck between two feuding parents. There were aggressive episodes.

[98] C.M. was questioned that when was 5 years old, there was an incident where P.M. and L.B. had an argument during a parenting exchange after her art lessons. C.M. said that P.M. threw L.B. onto a car, attacking L.B.. She said that they were trying to hide behind a car. Then when the police arrived, P.M. wrongly accused L.B and said to the police that L.B. attacked her. As a result, L.B. got charged. She remembered being at the police station late at night. She believed that P.M. wanted L.B. to go to jail. When describing this incident, C.M. raised her otherwise usually quiet voice.

[99] C.M. was asked about other aspects of her relationships with P.M. and L.B.. She explained that P.M. came to her baseball games, but it would ruin her experience and mess her focus up.

[100] In cross-examination, C.M. described having a loving relationship with L.B., Tammy (L.B.’s new partner), and her brother. She preferred their company. She thought that L.B. was less harsh as a parent compared to P.M..

[101] She agreed that P.M. would discipline her. She said P.M. would sometimes give her a timeout, or yell at her or spank her. She did not like that. In comparison, L.B. and Tammy did not do that to her. She agreed L.B. was easier going, and in her view, nicer as a parent.

[102] C.M. agreed that before L.B. moved to Acton, she would see P.M. more often, including once per week. She spent a full week of vacation with P.M..

[103] After P.M. moved to Ottawa she saw her less. She said she wasn’t unhappy about seeing P.M. less often because she felt like P.M. didn’t care about her.

[104] When asked about participating in fun activities with P.M., she said she did not remember them for the most part. She denied that she had a close relationship with P.M. when she was younger. She said it was not close like with L.B..

[105] Later in cross-examination, she was shown a series of photographs of her, and P.M. engaged in various activities such as travel, skating, crafts, and playfulness where they seemed happy.

[106] C.M. said that she appeared happy at times but did not agree she was happy and stated people “act” happy in photos.

[107] She was shown a photo of P.M.’s father and mother, her grandparents. She remembered P.M.’s mother but not her name. She did not remember P.M.’s father. She said she barely remembered P.M.’s parents. She did not remember that P.M.’s father lived with them.

[108] C.M. had some memory of P.M.’s friend K.H. staying over when C.M. was also visiting. She remembered they stayed at an Airbnb and K.H. being there but did not remember the time. She did not remember the extent of times she visited with K.H. present.

[109] She agreed that when living with L.B., she had her own bed. There was a place for her toys. She agreed that this contrasted with the environment at P.M.’s home, where she technically did not have her own space as she was moved into the living room.

[110] She said that back in Grade 1, she went to sleep around 7:30 to 8 p.m. She remembered P.M. reading to her sometimes, to help her fall asleep.

[111] She said that there was no other sexual touching other than the vaginal touching she described. However, she said P.M. also smacked her as discipline. Later, she said spanked.

[112] At the conclusion of cross-examination, C.M. denied that she knew if she said to the police that P.M. did bad things to her that she would not have to go live with P.M.. She denied that was what she was thinking when she came forward with the complaint. She said that she did not want to go to visit P.M. because of what happened, not because of dislike for her smaller home or living circumstances.

DEFENCE EVIDENCE:

P.M.

[113] The accused, P.M. testified that she did not touch C.M. on her vagina as alleged.

[114] She denied that she physically disciplined C.M.

[115] She also denied that she told C.M. that if she told anyone about the improper touching that C.M. would not see people she loved again.

Background:

[116] P.M. is 43 years old.

[117] For the past 12 years she has worked as a manager. She has a bachelor’s degree and drafting certificate. She resides in the Ottawa area.

[118] She was married to L.B. in September 2008. They separated in September 2013. They had been in a relationship since 2001. C.M. is their daughter.

[119] The ASF documents key dates in their history that provides additional background and context. I will summarize some of the dates in this section where helpful and discuss them further in the analysis.

L.B. Charged with Assault and Peace Bond:

[120] L.B. was charged with assault in April 2016 based on a complaint by P.M.. It was alleged that L.B. pushed P.M. and then spat in P.M.’s face. After the allegations were read in, counsel on behalf of L.B. responded that “that’s substantially correct” and did not oppose the bond. Normally, at a peace bond, the Crown provides the underlying allegations. It is not clear if Defence counsel was acknowledging those were the allegations only.

[121] In July 2016, the Crown withdrew the charge after L.B. entered into a Criminal Code section 810 peace bond for 12 months with conditions.

Parenting Disputes:

[122] P.M. testified that after the separation, initially, the parenting for C.M. was shared equally. She described it as 2 days on and 2 days off with alternating days on weekends.

[123] In May 2014, P.M.’s mother visited for the first time, and she wanted additional time with C.M. L.B. said that C.M. wanted more time with L.B.’s side of the family. P.M. said that L.B.’s mother had access to C.M.

[124] They completed an interim parenting order by December and a separation agreement by March 2, 2016.

[125] In cross-examination, P.M. agreed that between May 2014 and March 2016, her relationship with L.B. was turbulent. P.M. said she felt that she had to fight for any time she could have with her daughter. Things were said that were hurtful during negotiations related to the separation agreement.

[126] When L.B. was charged with assault in April 2016 the parenting situation changed. She said the lawyer told her that her access was temporarily suspended.

[127] Later the parenting schedule was modified so that P.M. had C.M. with her every other weekend and one weekday. There was also vacation time of two non-consecutive weeks and additional hours together during the holidays and birthdays.

[128] P.M. said that over time, her parenting time with C.M. was reduced. L.B. would restrict her parenting time if she was late even by minutes for pick-up. L.B. would also speak with C.M. for lengthy periods even while she was supposed to be spending time with P.M..

[129] They still went on trips together with court interventions, as L.B. only wanted P.M. to see her on weekends.

[130] P.M. explained photographs that depicted their positive mother-daughter time together during specific dates from 2016 to 2018.

[131] P.M. said that in July 2017, while P.M. was driving back from Ottawa to Mississauga with C.M. as part of a planned vacation period, L.B. made a false abduction claim and called the police to complain against her. P.M. said that she received a call from her neighbour that the police were waiting at her home.

[132] She then received a call from the police and had to explain to them the allegation was false. She shared emails with the police that showed L.B. knew the circumstances and when C.M. was coming home. C.M. was in the vehicle during the drive when the calls came through.

[133] P.M. decided to move to Ottawa in March 2018 and saw C.M. less thereafter. She wanted to continue to see her every other weekend, but it was not financially feasible. Before moving, after Christmas she told C.M. she was moving to Ottawa. C.M. was upset. She started to see C.M. only once a month. This resulted in them feeling less connected.

[134] P.M. had a week with C.M. in July and August of 2018.

[135] As the parenting disagreements continued in the subsequent years, there were family proceedings with a trial for 15 days in August to October 2021.

[136] On May 20, 2022, the family law trial judge advised that he intended to issue reasons for judgment on June 30, 2022, and to meet with C.M. to explain the reasons.

[137] However, before the decision was released, there were several developments.

[138] By May 22, 2022, authorities were contacted about C.M.’s allegations of sexual assault against P.M..

[139] At additional case management court dates in May and June, L.B.’s lawyer raised a CAS and police investigation. A fresh evidence hearing was conducted on June 20-21, 2022.

[140] On June 30, 2023, the Judge released the decision. The Judge found that L.B. had alienated C.M. against P.M. and had consistently done so for a number of years.

The Apartment and Grandparents

[141] P.M. lived in Mississauga in a basement apartment from 2015 until she moved to Ottawa on March 19, 2018.

[142] She described the apartment as about 500 to 600 square feet. Her diagram of the basement was entered as Exhibit 3.

[143] She described the layout of the apartment. In brief, she stated that the apartment was a smaller space with one bedroom that was next to the living room. I will review the layout further as required during the analysis.

[144] P.M. stated that she set up the bedroom for C.M. until P.M.’s parents moved in September 2017. P.M.’s parents, C.Y. and F.M., moved in with P.M. around labour day, September 2017. She said it was to support her and give her peace of mind after L.B.’s peace bond was to expire. They previously lived in Nova Scotia.

[145] After moving in, the parents then had use of the bedroom.

[146] C.M. slept on a fold out futon style bed and P.M. slept on a mattress where the coffee table would sit in front of the love seat. P.M. said there may have been times they would switch beds.

[147] C.M. was not happy when she had to give up the bedroom. P.M. explained to C.M. that her parents, as two people, needed the space and C.M. was smaller and could fit on the fold out.

[148] Their routine around bedtime during the weekend visits was to play a board game, or do some crafts, and then get ready for bed. Her parents would also play. C.M. would then brush her teeth and get changed into pajamas on her own.

[149] P.M. said that she read C.M. bedtime stories to help her fall asleep and would stay with her until she was asleep around 8:30 p.m., with some earlier or later deviation. When C.M. slept in the bedroom, after C.M. fell asleep, P.M. would leave to go the living room.

[150] After P.M.’s parents moved in, after C.M. fell asleep, she would watch TV with her mother until about 11 p.m. to 12 a.m. Her mother would then go to her bedroom.

[151] P.M. described that her parents would use the bathroom overnight so they would come out of their room a one or two times each. Her mother at least once, and her father a few times. The bathroom was outside of the bedroom, and they would walk the short distance into the living room to use the bathroom as diagramed.

[152] On one occasion, P.M. said that she had an argument with voices raised with her mother about something trivial that she does not recall what it was about. C.M. was present beside P.M.. After the argument her mother went to the bedroom, and it ended. P.M. said that she did not ask her mother to leave the home. Her mother had mobility issues and she would not have asked her to leave or to take stairs.

[153] P.M. discussed her relationship with her partner K.H.. They live together in the Ottawa area.

[154] P.M. stated that K.H. visited and stayed overnight at her basement apartment two times before her parents moved in. The first time was in 2016 after the assault incident with L.B.. P.M. said that she took C.M. to Ottawa to visit with K.H. three times a year.

[155] In cross-examination, P.M. was asked questions about areas that may agree with C.M.’s recollection as a child, such as the apartment layout, the nature of her interactions, when they were alone, the dynamics with the grandparents, and motive.

[156] P.M. acknowledged that the bedroom was differently configured or oriented before her parents moved in, and therefore it had some differences than her diagram in Exhibit 3. P.M. said that the bed was against the wall and closer to the window in the corner when it was used as C.M.’s room. It was modified for her parents to allow them both to exit the bed on both sides.

[157] P.M. described C.M. having a good relationship with her parents. When there were gaps in their visits, it would take C.M. some time to adjust. P.M. described her mother as warm and affectionate. She said that her father was supportive of C.M. in a different way. He would give her family keepsakes and go on walks with them. He would also tease C.M., but he was relatively less outward with his affection due to his personality.

[158] P.M. admitted that as her disputes with L.B. about parenting time got worse, she was increasingly frustrated. She was also asked about her feelings about L.B.’s family being able to see C.M. consistently, but the same opportunity not being given to P.M.. She acknowledged that she was upset by the abduction allegation L.B. made. She agreed that she saw L.B. as inflexible and rigid.

[159] P.M. said that due to these circumstances she felt hurt and helpless. She did not adopt the Crown’s language that she was angry or resented L.B.. She agreed that, in her view, it was possible that L.B. was driving a wedge between her and C.M. and this was frustrating. But P.M. maintained she wanted more meaningful time with C.M., and she did not hurt her.

C.Y.

[160] C.Y. is P.M.’s mother. She is 66 years old. She is a retired registered nurse. She lives with her husband, F.M., in Nova Scotia. F.M. is P.M.’s father.

[161] She spent time with C.M. in May 2014, while visiting for two weeks for C.M.’s birthday and mother’s day. C.M. called F.M. “Grampy”, and C.Y. “Nana.”

[162] At the end of August of 2017, C.Y. and her husband came to live with P.M. and stayed for two years. The lived in the basement apartment that is the focus of the alleged incidents. They moved in at a time that they understood P.M. was concerned for her safety, and they wanted to spend time with C.M.

[163] C.Y. explained that F.M. is a carpenter and has scaffolding experience. He worked weekdays usually until 5 p.m. unless he was on a specific job that required him to stay late. He was home on the weekends.

[164] C.Y. explained that C.M. stayed over about every second weekend. She was present for the most part in the apartment on the weekends. Her medical appointments were on weekdays.

[165] C.Y. and F.M. used the bedroom. C.M. would sleep on the futon or a mattress in the living room when she visited. P.M. would sleep on the sofa.

[166] C.Y. said that due to her health issues, she mostly stayed home, watching TV, doing light housework, and attending to groceries and visits to the clinic. She could not walk distances and so was not out for activities alone. Sometimes she went out with P.M. and C.M.

[167] C.Y. said that she would drop F.M. to work in the morning or pick up some groceries in the afternoons occasionally sometimes and then return to the apartment.

[168] She described that when C.M. visited they would play boardgames, talk, have snacks, and overall enjoy her company. C.Y. observed P.M. read C.M. bedtime stories and help her get her ready for bed.

[169] C.Y. said that she would often be present in the living room after C.M. fell asleep. She would stay up watching TV and then go to her bedroom around 11 or 12 p.m.

[170] C.Y. said that she observed that P.M. and C.M. had a loving relationship. C.M. hugged and kissed P.M. and heard C.M. say she missed her. P.M. told C.M. she loved and missed her. They made crafts together, drew, baked, rode bikes, went to the zoo, and took trips to Ottawa to visit K.H..

[171] C.Y. did not see P.M. mistreat C.M. She saw P.M. correct C.M. as a parent but did not spank or yell at her.

[172] She never saw P.M. act inappropriately with C.M. and did not see her touch C.M. in a sexual part of her body in any way.

[173] She stated that she remembered C.M. would act differently when being picked up to visit with P.M., have a long face, eyes downcast. However, once they turned the corner she was smiling, happy if a song came on. She was present for pick-ups about 4 to 5 times towards the end of 2017 to the start of 2018.

[174] In cross-examination, C.Y. agreed that at night she and F.M. would close the bedroom door for privacy.

[175] C.Y. said that both she and F.M. would get up at night to use the bathroom a few times each. F.M. would go to bed earlier, around 9 p.m. at the latest. He would sometimes go to bed before C.M., especially on weekdays because of his work schedule.

[176] C.Y. said that she would go with F.M. to visit the neighbours when P.M. and C.M. went out. In general, she wanted to be around when C.M. visited as much as possible.

[177] C.Y. recalled she had an argument with P.M. on one occasion with C.M. present. It was over C.Y. making a bracelet from a craft kit for C.M.. P.M. and C.M. got upset because C.M. wanted to make a bracelet first. C.Y. apologized and gave C.M. another craft kit that she had been saving for her birthday. She also took apart the bracelet she made to make C.M. feel better. Then she sat with C.M. as she made one.

[178] C.Y. said that during the disagreement, she was not asked by P.M. to leave the house or go to her room.

K.H.

[179] K.H. is P.M.’s partner. I have referred to her as K.H. above.

[180] K.H. and P.M. have been in a relationship since January 2016. P.M. lived in the basement apartment when they started dating.

[181] She said that they have lived together since spring break of 2018.

[182] K.H. is 51 years old. She has three children. She works for the government and as a part-time acupuncturist.

[183] K.H. said that she met C.M. in 2016. She assisted with child exchanges after the assault charge against L.B..

[184] K.H. spent overnights at P.M.’s apartment. She spent between 7 to 9 weekends with P.M.. There were also a few half-day trips. This was between April 2016 to September 2017. During that period, they also spent a weekend at an Airbnb.

[185] When K.H. stayed at the basement apartment, she slept on the mattress in the living room with P.M..

[186] After P.M.’s parents moved in around labour day 2017, she stopped staying at P.M.’s and coming in for weekends due to the small space.

[187] K.H. said that C.M. travelled to Ottawa for trips, during which she met K.H.’s daughters.

[188] K.H. described an occasion when C.M. had a ball game around June 2017 and she and P.M. went to watch. L.B. was present with her partner. She said that L.B. and her partner did not acknowledge P.M., who tried to say “hi”.

[189] K.H. said that during the game P.M. cheered loudly in support for C.M., but C.M. did not respond. She said it was hard to watch C.M.’s reaction.

[190] K.H. said that C.M. would shut down when she was around L.B. and her partner. She would not want to hold P.M.’s hand or be affectionate when L.B. was present. P.M. recognized the change in C.M.’s behaviour so she adjusted and stopped. P.M. would hug C.M. at the car and then walk her to the exchange point at McDonald’s or Tim Horton’s.

[191] K.H. said that she spent time with C.M. a few weeks after when they went to a movie theater and C.M.’s behaviour was cheerful and loving.

[192] K.H. described the first time she picked C.M. up and that C.M. was resistant initially. However, when they got into the car and turned the corner out of L.B.’s sight, C.M. would be happy, singing along to music. K.H. thought to herself that C.M.’s initial reluctance was an act.

[193] K.H. explained how in July 2017, C.M. spent two weeks total with P.M. for a scheduled vacation period. During a trip P.M. and C.M. came to Ottawa by car. On the drive back from Ottawa to Mississauga, P.M. got a call from a neighbour that said the police were outside her home. C.M. was in the backseat. K.H. asked P.M. what happened and was told that L.B. had reported C.M. had been abducted. The call was on speaker phone.

[194] K.H. said that she never saw P.M. touch C.M. inappropriately, either physically or sexually. In cross-examination, K.H. said that P.M. was a calm person and parent. She would use timeouts. She did not see her physically discipline C.M.

THE LAW

Presumption of Innocence:

[195] The accused is presumed innocent. The presumption of innocence is of fundamental importance in the criminal justice system as it places the burden of proof squarely on the Crown, and also serves to protect against wrongful conviction.

[196] The presumption of innocence stays with the accused throughout the trial and is only displaced if the court is satisfied that the Crown has proven the charges beyond a reasonable doubt. The Crown has the sole obligation or burden of proving each charge. The accused does not have an obligation to prove anything or to testify.

Proof Beyond a Reasonable Doubt:

[197] The concept of proof beyond a reasonable doubt is also of fundamental importance in the criminal justice system. Proof beyond a reasonable doubt is a very high legal standard. A reasonable doubt is not an imaginary or frivolous doubt. It is not a doubt based upon sympathy or prejudice. Rather, it is a doubt based on reason and common sense. It is logically derived from the evidence or absence of evidence.

[198] While probable or likely guilt is not enough, proof to a level of absolute certainty is not required as that standard is impossibly high. That said, proof beyond a reasonable doubt falls much closer to absolute certainty than to proof on a balance of probabilities.

[199] If there are reasonable inferences other than guilt, the Crown’s evidence does not meet the proof beyond the reasonable doubt standard. A certain gap in the evidence or lack of evidence may result in inferences other than guilt. But those inferences must be reasonable given the evidence and the absence of evidence, assessed logically, and in light of human experience and common sense.

[200] When assessing circumstantial evidence, I must consider other plausible theories and other reasonable possibilities which are inconsistent with guilt. The Crown thus may need to negative these reasonable possibilities, but certainly does not need to disprove every possible conjecture which might be consistent with innocence. Other plausible theories or other reasonable possibilities must be based on logic and experience applied to the evidence or the absence of evidence, and not on speculation. R. v. Villaroman, 2016 SCC 33, at paras. 36-37.

[201] Ultimately, in order to convict an accused person of an offence, I must be sure that the defendant committed the offence. If I am not sure, I must acquit.

[202] The methodology for assessing the evidence in cases where credibility is a key issue was set out by the Supreme Court of Canada in R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742, as follows:

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, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

[203] The W.(D.) analysis is a useful framework that serves to emphasize the burden of proof and the presumption of innocence by ensuring that criminal cases are not reduced to credibility contests. R. v. J.H.S., 2008 SCC 30, and R. v. C.L.Y., 2008 SCC 2.

[204] In applying the W.(D.) methodology, I am mindful of the following additional guidance that has been provided by the caselaw. First, the W.(D.) methodology applies not only to instances where the Defence calls exculpatory evidence, but also to exculpatory evidence that is found within the Crown’s case, for example, where a Crown witness provides evidence in support of the Defence. R. v. B.D., 2011 ONCA 51, at para. 105.

[205] Second, in considering the first two steps of the W.(D.) analysis, the evidence of the accused must be considered in the context of the evidence as a whole, including the complainant’s evidence. In other words, the assessment is not simply whether the accused’s evidence standing alone and without context is believed or leaves a reasonable doubt; see R. v. Carriere (2001), 2001 CanLII 8609 (ON CA), 159 C.C.C. (3d) 51 (Ont. C.A.) at para. 51, R. v. Hull, 2006 CanLII 26572 (Ont. C.A.), and R. v. J.J.R.D. (2006), 2006 CanLII 40088 (ON CA), 215 C.C.C. (3d) 252 (Ont. C.A.).

[206] Third, the second step of the W.(D.) analysis is important. It emphasizes the point that credibility assessments in a criminal case are not dichotomous. There is a third alternative between complete acceptance and complete rejection of the accused’s evidence that can ground a reasonable doubt. R. v. Edwards, 2012 ONSC 3373 at para. 20, and R. v. J.M., 2018 ONSC 344, at paras. 9-20.

[207] When assessing credibility, there is no formula that applies in determining whether a witness is telling the truth. Instead, the witness’ evidence is considered using a common-sense approach that is not tainted by myth, stereotype, sympathy, or assumption.

[208] There are many factors that may be relevant in determining credibility. Some of the key factors include whether the witness’ evidence is internally consistent, whether it is externally consistent with evidence from other witnesses or exhibits, whether the witness has a bias or motive to give evidence that is more favourable to one side or the other, whether inconsistencies in the evidence are about important or minor matters, what explanations are given for any inconsistencies, and whether the inconsistencies suggest that the witness is lying.

[209] Arriving at a verdict in this case requires that I determine issues of credibility and reliability. In other words, I have to decide whether the witnesses told the truth and if so, whether their evidence can be relied upon as accurate.

[210] However, and to be clear, this case is not a credibility contest.

[211] The issue is not whose evidence I prefer. Rather, the issue is whether the Crown has proven the case against the accused, on each charge, beyond a reasonable doubt. In making this determination I can accept some, none, or all of any witness’ evidence. I may find that even though I prefer the evidence of a Crown witness on some points over the evidence of or supporting the accused, I am left with a reasonable doubt about guilt.

[212] As well, after careful consideration of all the evidence, I may not know who to believe, in which case, I am also left with reasonable doubt.

[213] The accused has no obligation to establish that the complainant has a motive to fabricate or lie or that they were biased. A complainant may accuse a person of committing a crime for reasons that may never be known, or for no reason at all.

[214] Lack of embellishment may be considered in response to suggestions the complainant has a motive to lie. However, it is not an indicator that a witness is more likely telling the truth because both truthful and dishonest accounts can be free of exaggeration or embellishment. R. v. Alisaleh, 2020 ONCA 597, at para. 16.

[215] It is wrong to reason that because an allegation was not exaggerated or could have been worse, it is more likely to be true. R. v. Kiss, 2018 ONCA 184 at para. 52, citing R. v. G.(G.) (1997), 1997 CanLII 1976 (ON CA), 115 C.C.C. (3d) 1, at p. 10 (Ont. C.A.); R. v. L.L., 2014 ONCA 892, at para. 2; R. v. G. (R.), 2008 ONCA 829, 243 O.A.C. 1, at para. 20. As Paciocco J.A. stated in Kiss at para. 52:

On the other hand, in my view, there is nothing wrong with a trial judge noting that things that might have diminished credibility are absent. As long as it is not being used as a makeweight in favour of credibility, it is no more inappropriate to note that a witness has not embellished their evidence than it is to observe that there have been no material inconsistencies in a witness’ evidence, or that the evidence stood up to cross-examination. These are not factors that show credibility. They are, however, explanations for why a witness has not been found to be incredible. [Emphasis added.]

Children’s Evidence:

[216] A contextually appropriate common sense approach must be applied to assessing the evidence of child witnesses: R. v. W.(R.), 1992 CanLII 56 (SCC), [1992] 2 S.C.R. 122, at p. 133; R. v. B.(G.), 1990 CanLII 7308 (SCC), [1990] 2 S.C.R. 30, at p. 55.

[217] Courts do not lower the standard of proof for a child witness, and they must still carefully assess their credibility and reliability, mindful of the presumption of innocence. However, Courts must factor in the reality that children experience the world differently than adults. Children cognitively process information differently than adults.

[218] In R. v. P.S., 2019 ONCA 637, the Court of Appeal summarized the law that recognizes that children will often delay reporting, especially against people in positions of trust for valid reasons. This is a relevant consideration in assessing their evidence and ensuring the court stays focused on the totality of circumstances proven.

[219] The practical reality is that children will often delay disclosing abuse they have suffered, particularly when the abuse is sexual in nature and involves perpetrators who stand in positions of trust relative to those children. L. (D.O.), 1993 CanLII 46 (SCC), [1993] 4 S.C.R. 419, at pp. 464, 468; W. (R.), at p. 136; R. v. D.D., 2000 SCC 43, at para. 63; S. (P.) (2000), 2000 CanLII 5706 (ON CA), 144 C.C.C. (3d) 120 (Ont. C.A.) at para. 69.

[220] Whether the complainant is a child or not, it is a “simple and irrefutable proposition” that the reasons for delayed disclosure in sexual crimes are many, including “embarrassment, fear, guilt, or a lack of understanding and knowledge”: D.D., at paras. 65-66.

[221] There is no fixed rule on who will experience sexual violence or how they will react to it. There is no typical victim or typical assailant or typical situation or typical reaction. Sexual violence can take place in almost any circumstance. It can happen between all different kinds of people, and in different types of relationships. Victims will not all look or act the same way. Sexual violence is rarely witnessed first-hand by another person. Corroboration is not required.

[222] Someone who was the victim of sexual assault may immediately stop having contact with their abuser, whereas others may continue having contact with the person abusing them. Some victims might immediately complain about the abuse, while some will delay disclosing it, and still others will never disclose it. The reality is that there is no fixed rule on how people who are the victims of sexual abuse will behave while subject to such abuse or in its aftermath.

[223] In assessing the credibility of a complainant, their continued contact with the accused or the timing of the complaint are simply factors to consider in all the circumstances of a particular case.

[224] A delay in disclosure, standing alone, will not give rise to an adverse inference against the credibility of the complainant.

[225] Dates and times are not determinative. They are not essential elements that must be proven. Based on their reduced development and maturity, child sexual abuse victims may not remember details such as time and place, but that does not necessarily mean the child misconceived what happened to them and who did it. The presence of inconsistencies in relation to peripheral matters (e.g., time and place), should be considered in context and in relation to the age of the complainant at the time of the event(s). W.(R.)., at p. 134.

[226] A significant gap in time from the time of the incident to the date it is reported does not detract from reliability. See P.S. at para. 25, where the Court of Appeal summarized what may appear to be an inability to accurately recall may be nothing more than a reflection of the child’s age and stage of life. It does not necessarily mean that the person has misconceived the events.

POSITIONS

[227] The parties submitted helpful written submissions. I will not repeat their positions in depth.

[228] Briefly, the Crown submits that the testimony of C.M. makes out all the elements of both offences. The testimony of C.M. and K.H. do not undermine the credibility or reliability of C.M.’s testimony.

[229] The Crown submits that the Defendant’s evidence should be rejected through a considered and reasoned acceptance beyond a reasonable doubt of the testimony of C.M., as permitted in J.J.R.D., at paras. 46-48, 53.

[230] The Defence submits that the Crown has not met its onus to prove the offences beyond a reasonable doubt. The W.D. analytical framework should therefore result in an acquittal. P.M.’s testimony was forthcoming, honest, and believable.

ANALYSIS

[231] I find P.M. not guilty of both charges.

[232] After considering her explanation in the context of the totality of evidence, I believe her denial that she did not commit sexual assault and sexual interference against her daughter C.M.

[233] On the basis of the evidence which I do accept, I am not convinced beyond a reasonable doubt of the guilt of the accused.

[234] She provided a credible and reliable refutation of the allegations that I accept and believe.

[235] She reasonably explained why she would not touch her daughter sexually. She loves C.M. and wants to spend more time with her. She was making a concerted effort to be with her more frequently. She would not hurt her physically or touch her sexually.

[236] The parenting situation was a struggle. P.M.’s access was being eroded over time. She reasonably acknowledged that she was upset about the parenting circumstances and was convincing that the situation would not motivate her to harm her daughter as implied by C.M.’s evidence. Her frustration was with ex-partner’s conduct and not with her very young daughter who she believed was being alienated.

[237] P.M.’s credibly explained how it was unlikely that she could have done the acts for a period covering the time frame alleged. She lived in small quarters with her mother and father, both of which were typically present during the weekend visits with C.M. and involved with them, when they were at home. P.M.’s parents were within feet of them and consistently present. This would reduce the opportunity that the touching happened as described during the evening or during Christmas time. This environment was corroborated by C.Y.. I recognize that the opportunity for abuse could still exist regardless of the parents living at the apartment, but on C.M.’s allegations, the parents were home and close by.

[238] P.M.’s credibly explained how C.M. was likely biased due to alienation. She described in an honest, detailed, and convincing manner her relationship with C.M. during the time of the allegations. As I will explain, C.M.’s evidence demonstrated indicators of tainting and alienation.

[239] P.M. testified that since C.M. was 3 years old, she and L.B. have been involved in an increasingly acrimonious post separation relationship. The dynamics have induced C.M. to take the side of L.B..

[240] P.M. has attempted to spend more time with C.M but that has been unsuccessful due to conflict between the parents and P.M.’s move to Ottawa. As the years passed, P.M.’s efforts to spend more time with C.M. became increasingly more difficult due to her disagreements with L.B. and C.M.’s perception of their situation.

[241] C.M. was in the middle of less than amicable child exchanges, awkward attendances by both sides at C.M.’s ball games, and litigation concerning a high conflict parenting dispute. She was exposed to the conflict. She was informed about the family law proceedings by L.B..

[242] C.M. preferred being with L.B. and her new partner Tammy at their home. She found them to be less harsh and fun. At their home she had more space. She also had an extended family.

[243] In April 2016, L.B. was arrested for an assault based on a complaint by P.M.. This was a turning point.

[244] The importance of the event was corroborated by C.M. She was present for the incident, and aware of the assault charge. At this trial she expressed strong negative feelings against P.M. for having charged L.B.. C.M stated that in her view P.M. was the aggressor.

[245] It became clear that although C.M. was only five years old at the time of this incident, it has had a lasting impact on her. This was one of the few occasions during her testimony that her voice elevated, and she spoke assertively about what she viewed as a false allegation by P.M. against L.B..

[246] I accept that C.M.’s behaviour became noticeably different and subdued when she was going to visit and be picked up by P.M., her mother or K.H., until she was out of L.B.’s sight. Then once they were on their way, C.M. became happier and more relaxed. Both C.M. and K.H. corroborated this behaviour. P.M. described that C.M. put on an act when L.B. was present, either at exchanges or ball games, to hide any signs of affection for P.M.. However, when L.B. was not in their presence, C.M. seemed to enjoy her time with P.M. and K.H..

[247] In March 2018, P.M. moved to Ottawa. She currently resides with K.H. and her children. P.M. was still seeing C.M. up to the time she moved, but this move resulted in geographic separation that made visits with C.M. less frequent. Their in-person visits decreased from every second weekend and one weekday to one weekend a month.

[248] P.M. also described how L.B. called the police on her unnecessarily claiming an attempted abduction when P.M. was exercising parenting time. C.M. was directly exposed to this adversarial high conflict circumstances as well.

[249] Over time C.M. became closer to her other family unit with L.B.. She enjoyed their lifestyle and living conditions more. She also had a younger brother that she bonded with. All of these circumstances with L.B. are positive but at the same time provide a point of comparison for a young child that is also subject to openly negative views about the other parent.

[250] By September 2018, C.M. no longer wished to visit with P.M.. Although there was a separation agreement with parenting time in place, the dynamics were getting worse. P.M. tried therapy and reconnection programs with C.M. However, the strain on their relationship adversely impacted the bond between them.

[251] I find that this cumulative background provided a motive for C.M. to take on a more negative view of P.M. and be susceptible to external influence by L.B. that exacerbated negative views. In the intervening years between the date of separation to 2018, C.M. distanced herself from P.M..

[252] In May 2022, following a lengthy family law trial alleging parental alienation by L.B. with a forthcoming judgment date at the end of June, C.M. discussed this circumstance with L.B.. C.M. said that she believed she would be ordered to spend time with P.M. over the summer. Prior to the delivery of the ruling expected at the end of June, C.M. discussed with L.B. to come forward with allegations of sexual assault against P.M.. Then L.B. sought to re-open the family law trial. These allegations served to prevent P.M. and C.M. from reuniting.

[253] In my view, this was a calculated joint effort to block P.M. from coming back into C.M.’s life in a meaningful manner because the outcome of family proceedings was expected not to go L.B.’s way. This tactic worked, delaying judgment for over a year. In the Agreed Statement of Fact, at para. 18, on June 30, 2023, the trial judge released a decision, in which he concluded that L.B. has alienated C.M. from P.M. and has consistently done so for a number of years” and that L.B. has engaged in a consistent and long-term pattern of conduct that has alienated C.M. from P.M.. The judge concluded that to maintain the status quo would be an error.

[254] I accept P.M.’s evidence that she did not touch C.M. in a manner that violated her sexual integrity or for a sexual purpose. I do not accept C.M.’s evidence that the reason she came forward was because she didn’t want to be abused again.

[255] I find that she was motivated to distance herself from P.M. for a number of factors noted above that place external pressure on a child. These include circumstances such as L.B. having made C.M. feel uncomfortable about having affection for P.M. after separation; C.M. having been upset about P.M. making an assault complaint against L.B., her favoured parent; and because C.M. strongly preferred her life with L.B.. She wanted the status-quo as she knew it, to continue after years of gradual separation from P.M.. Overall, C.M. became disconnected from P.M. for a variety of reasons such as parental conflict and P.M. moving to Ottawa.

[256] In her testimony, C.M. responded that she came forward because she didn’t want to be abused again and not because she did not want to be with P.M. because of her different parenting style or living conditions.

[257] I can see that from C.M.’s point of view, she believes these reasons. However, it’s not the whole story or an accurate reflection of the motives. As I will discuss further below, in addition to C.M.’s distant attitude towards P.M. when L.B. was present, there are other indicators of C.M. being coached and subject to undue influence tied to the criminal complaint.

[258] With respect to P.M.’s explanation and denial, the Crown conceded that there was “no glaring issue” with P.M.’s evidence and that there was “no great blemish” in her evidence in cross-examination. When the Court asked the Crown specifically what basis there was to reject her evidence or more importantly, find that it did not raise a reasonable doubt, there was no basis identified. This is because there was no basis to find her evidence should not be accepted.

[259] Still, the Crown submits that I should reject P.M.’s evidence “based on a considered and reasoned acceptance beyond a reasonable doubt of the truth of the conflicting credible evidence” of the complainant pursuant to the ruling in J.J.R.D., at para. 53. See also R. v. R.A., 2017 ONCA 714, at paras. 33-40, where the trial judge neither accepted nor rejected the accused’s evidence stating it was straightforward but did accept the entirety of the particulars of the complainant’s evidence.

[260] The Crown’s reliance on the Court of Appeal decision in J.J.R.D. is distinguishable. First, based on my findings about accepting P.M.’s evidence that she did not commit the offences alleged, the Crown has not proven the offences charged beyond a reasonable doubt. Second, this is not a case where it would be justified to convict the accused because despite there not being a reason to reject her explanation, the Crown’s has proven the offences beyond a reasonable doubt. I will explain this further in my analysis of C.M.’s evidence below.

[261] It is important to remember that in J.J.R.D., the central issue was appellate review about sufficiency of reasons. The Court of Appeal held that the circumstances of the particular case will determine the adequacy of the reasons for judgment and the effect, if any, of the inadequacy of reasons or the outcome of the appeal, including the basis to find the accused’s denial, even if not flawed, did not leave the court in a reasonable doubt. Reasons for judgment must be examined in the context of the entire proceeding, “especially the nature of the evidence heard and the arguments advanced.” See J.J.R.D. at para. 32.

[262] In J.J.R.D. at paragraphs 47 and following the Court of Appeal explains why the trial judge’s reasons on the specific facts of that case, were sufficient for appellate review. Based on the totality of evidence, the trial judge’s decision to find sexual assault was proven beyond a reasonable doubt was upheld, despite the accused’s explanation did not have obvious flaws that resulted in it being disbelieved. The trial judge found that the totality of evidence proved the case beyond a reasonable doubt while the accused’s evidence did not leave the trial judge with a reasonable doubt. The Court of Appeal held that a rejection of an accused’s evidence based on a considered and reasoned acceptance beyond a reasonable doubt of the truth of conflicting credible evidence is a permissible explanation. No flaw in the accused’s evidence is required.

[47] The trial judge also did not proceed directly from a finding that A.D. was credible to a finding that the allegations were proved beyond a reasonable doubt. To the contrary, the trial judge recognized the distinction between a finding of credibility and proof beyond a reasonable doubt. Despite his finding that A.D. was credible, the trial judge was not prepared to conclude beyond a reasonable doubt that the alleged buggery had occurred, presumably because A.D. did not advert to the buggery until very late in her testimony.

[48] The trial judge also acknowledged that there was nothing in the substance of the appellant’s evidence or in the manner in which he gave his evidence which would cause the trial judge to disbelieve that evidence. Once again, this aspect of his reasoning is readily apparent.

[49] In addition to his assessment of the respective credibility of the two main witnesses, the trial judge also considered the diary. As he put it in his reasons: “There is more to this case, however, than what each of the parties have said in the trial, and that is what can be derived from A.D.’s diary.”

[50] The trial judge proceeded in his reasons to consider the circumstances in which the diary was discovered, the contents of the three entries that were placed in evidence, the timing of the making of the entry dated February 6, and the contents of that entry.

[51] The trial judge concluded that the diary was A.D.’s “recording of a running series of events.” I take this to mean that the trial judge was satisfied that the February 6 entry that described the sexual assault was made between the dates of the other two entries, the first being December 5, 2002, and the third being February 8, 2003. The trial judge proceeded to find that a diary entry made between those dates rebutted trial counsel for the appellant’s suggestion that A.D. had fabricated her allegations after she started to visit her mother so that she could go and live with her mother. Although the trial judge did not expressly so state, it is clear to me that the trial judge was referring to fabrication at or about the time A.D. reported the alleged assault to her mother in the spring of 2004.

[52] It was open to the trial judge to conclude that the diary was written at or about February 6, 2003. It was unchallenged that A.D. wrote the diary entry and that neither she nor her mother had anything to do with the police obtaining possession of the diary.

[53] The trial judge’s analysis of the evidence demonstrates the route he took to his verdict and permits effective appellate review. The trial judge rejected totally the appellant’s denial because stacked beside A.D.’s evidence and the evidence concerning the diary, the appellant’s evidence, despite the absence of any obvious flaws in it, did not leave the trial judge with a reasonable doubt. An outright rejection of an accused’s evidence based on a considered and reasoned acceptance beyond a reasonable doubt of the truth of conflicting credible evidence is as much an explanation for the rejection of an accused’s evidence as is a rejection based on a problem identified with the way the accused testified or the substance of the accused’s evidence.

[263] Similarly, in R.A., the Court of Appeal upheld the conviction, finding the trial judge neither explicitly accepted nor rejected the appellant’s testimony. The trial judge stated only that he accepted defence counsel’s submission that the appellant “testified in a straightforward manner, that he was not evasive and did not exaggerate, embellish or colour his evidence”, and that he “withstood cross-examination without a blemish”.

[264] That category or lines of decisions are not applicable to the facts and evidence as I have them in this case. The bottom line is that after considering the totality of the evidence in this case, I am left in reasonable doubt. The fundamental principle that must be faithfully adhered to is that when the accused’s evidence, whether believed or not, or other inferences logically derived from the totality of the evidence, leaves the court in a state of reasonable doubt, the only just option is a finding of not guilty. Villaroman at paras. 36-43.

[265] The heart of a criminal trial remains whether the Crown has met their burden of proof and in that evaluation whether there is any evidence that raises a reasonable doubt. Similarly, on the basis of the evidence which the trier of fact does accept, are they convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

[266] To convict a person whose testimony, when considered in the totality of evidence at trial, raises a reasonable doubt would be a miscarriage of justice.

[267] It is worth repeating that an accused is presumed innocent from the start to end of their trial. The onus is on the Crown to prove the accused’s guilt beyond a reasonable doubt. When the court finds the accused’s evidence, considered with the totality of evidence, results in a reasonable doubt that the alleged crimes did not occur, then the accused must be found not guilty. When their evidence is rejected, if it still leaves the court in a state of reasonable doubt, the person must be found not guilty. When any evidence in support of the defence position permits a reasonable inference that raises a reasonable doubt, the accused must be found not guilty.

C.M.’S EVIDENCE

[268] Even if I had not accepted P.M.’s evidence, I am still be left in a state of doubt based on concerns about C.M.’s evidence. Her evidence indicates she has likely been coached by L.B. about how to explain the central allegations.

[269] I pause here to comment that C.M. is very soft spoken. This is not unusual for a child that testifies in court. However, her voice was so low that it raised specific challenges. I mention this aspect because all parties considered this circumstance and positively supported C.M. to give her evidence. In closing submissions, I reviewed her evidence with counsel to confirm that they heard her evidence similarly. I discussed my observations with counsel to assist with an accurate summary of evidence which was confirmed.

C.M. BEING COACHED

[270] Whether C.M. used the word “intimate” during her interview by the police of May 31, 2022, is of significance to the issue of the existence of outside influence on C.M.’s in stating her allegations against P.M..

[271] When asked about her possible use of the word in her police statement, C.M. emphatically stated that it is not a word that she would use or know its meaning. She was ten years old at the time.

[272] In the context of the facts of this case with a significant history of conflict between the parents as noted above and documented in the agreed statement of fact, C.M.’s use of the word intimate takes on greater significance.

[273] The Crown fairly conceded that if I found she used the word “intimate” to describe the touching to the interviewing officer, it would be evidence she was coached, and this would have a negative impact on her credibility and reliability.

[274] The Crown did not dispute that a finding by the court that she said the word “intimate” could contribute to a reasonable doubt about the reliability of her allegations as this would support that she experienced coaching about what to say to the police about the substantive allegations.

[275] After careful consideration, I am satisfied on a balance of probabilities, that in her video-statement to the police, when describing the allegations to Officer Clutterbuck when he tried to develop a rapport with her, C.M. used the word “intimate.”

[276] This happened when she was prompted by Officer Clutterbuck to tell him what happened, while reassuring her he was her friend and there to help.

[277] With the aid of earphones, I listened repeatedly to this segment of her video-statement to the police. I find that she said the word intimate in the context of describing the touching that grounds the offences alleged.

[278] When reviewing the comments that precede her utterance, it becomes clear that it is also the only word that fits within the narrative and context of her response.

[279] During closing arguments, I gave notice to the parties of my observation, instructed each counsel to independently listen to the audio with earphones, and sought their additional submissions. The Defence maintained that she said “intimate.”

[280] The Crown said it was not decipherable to a point they could confidently say she said the word, but agreed that the word intimate was logically consistent as a response given the police lead up and question.

[281] I find that her use of the word intimate in her statement to the police, when viewed with the totality of evidence, indicates that her allegations are not independent of external influence by L.B.. Her use of the word intimate is an indication that she was told, at least in part what to say about the touching.

[282] I recognize that does not mean necessarily mean that everything she said was tainted by coaching, influence, or bias. Having her mother present with her at the police station to provide support is reasonable and appropriate. However, the comment supports that when it came to the allegations of touching, she was coached. This causes me to be concerned that the basis for the charges is not based on an independent recollection of the child.

[283] There are also other problems with the child being coached.

[284] First, it raises concerns about C.M.’s credibility. When the audio was played for her at trial and she was asked questions about her response, C.M.’s evidence was clear that she had never heard or used that word. She forcefully denied that she would or could have used the word in the interview with the officer, even when confronted with the transcript and video being played for her consideration. She was given a fair opportunity to respond. There was no ambiguity in the suggestion put to her that she had used the word intimate. She was shown the transcript and listened to the clip. Her response is telling in that she denied she used it, despite evidence to the contrary.

[285] She listened to the clip and offered no alternative word she could have used. She said it sounded like two words to her. The import of her evidence was that she said she would not use that word and she didn’t know what it meant. This is understandable given her young age and maturity.

[286] In my view, she said the word intimate, sounding out a term that was uncommon to her, like a child would after being told to say it.

[287] Second, C.M.’s use of the word intimate raises concerns about her reliability. This is some evidence that her recollection is the product of ongoing coaching by L.B. who was present with her at the station and previously informing her about the family proceedings, telling her that there was an expected adverse ruling pending.

[288] I find that this circumstance is consistent with collusion instigated by L.B. when one considers the evidence of a motive to fabricate.

[289] I acknowledge that C.M. did not listen to the audio with earphones as I and counsel did during closing. However, she did listen to the clip in her CCTV room, alone with a support person, and it was fairly put to her by the Defence that its possible she used the word “intimate.” That fair process was not disputed by the Crown during closing.

[290] The motive to fabricate was conceded by the Crown to exist. The Crown’s response was that she reasonably explained that she disclosed the allegations when she did, because she didn’t want to endure more abuse by having to visit P.M., and not because she wanted to stay with L.B., at any cost to P.M..

[291] I am mindful that the presence of a motive to fabricate does not necessarily mean that a witness is not credible. It depends on the facts and evidence I do accept. However, the existence of a motive or ulterior purpose is a relevant and important factor when evaluating if the witness is credible and reliable. It may reasonably cause the trier of fact to be concerned that the witness’s evidence should not be relied on in part or whole.

[292] The reasons for an ulterior motive can be complex. It does not have to be rational or logical to the outside observer that has the benefit of hindsight, maturity, or wisdom. It does not have to be planned or deliberated.

[293] On this record, I find that there are compelling reasons to find that C.M. had motives to be biased and unfair in her complaint against P.M., and that attitude continued in her evidence at trial.

[294] I am left in a state of reasonable doubt due to concerns about C.M.’s motive to fabricate, collusion, and coaching that is correlated to the genesis of the complaint. The totality of the evidence supports those conditions incentivized C.M. to make allegations to stall and try to alter the family proceedings outcome. C.M.’s stated anger at P.M. for having L.B. charged with assault also motivated her to be angry with P.M. and cast her negatively. C.M. maintains that the incident was entirely P.M.’s fault not L.B.’s. This is despite L.B. having entered into a peace bond.

[295] There are other concerns that I have about C.M.’s evidence that are part of the totality of evidence that contributes to concerns about the reliability of C.M.’s memory. She did not recall her grandfather, P.M.’s father F.M., living in the small apartment, being present and involved with her to for a year of many weekend visits. I am satisfied that this is a deliberate omission to provide more opportunity for the offences to occur.

[296] Even factoring, her young age and limited recollection, based on C and P.M.’s evidence, F.M. was consistently with her and the others in that small apartment. He spent time with C.M. He played games with her, gave her keepsakes, and went for walks with her. They spent Christmas together.

[297] Since C.M. described the apartment, interactions, and memories inside the apartment from a young age, it is problematic that she claims no memory at all of her grandfather who lived with P.M. and took her room with her grandmother during the relevant time. It’s hard to believe that F.M.’s consistent physical presence and role in her life is entirely forgotten.

[298] I recognize that trauma can affect people in different ways and children’s memories may be incomplete or fade over time. They may also emerge as they process their past. At the same time, on this record, both grandparents occupied a distinct space in this child’s life.

[299] Finally, I have concerns about C.M.’s credibility due to her adding significantly to the allegations at trial, alleging additional instances but with the exact same touching.

[300] I am cautious about this factor taking on great significance because I recognize she was young, and this process must be extremely difficult for her. Victims of sexual violence and especially children may delay disclosure for valid reasons including but not limited to their vulnerability, development, and individual circumstances.

[301] I am also concerned that C.M. was interviewed by a male officer despite her age and gender. I raised with counsel that this could hinder disclosure by a young female child that is asked about sexual touching and her body by a grown man. This context can unnecessarily interfere with the search for the truth. While I can appreciate police decisions about the use of their resources or capacity are theirs to make, in my view it is not reasonable or justifiable for a young girl to only be given the option to speak to a male officer about such allegations. I hope that this problem will be remedied immediately as it is contrary to the public interest and substantive equal treatment of young girls that come forward with a complaint.

[302] Despite these concerns, I cannot ignore that C.M. made one detailed touching allegation in her statement but then made more allegations at trial that are based on the same type of touching. She also added details central to the incidents such as the grinch” movie playing, and her grandmother being out running errands.

[303] It is important context that during the police interview she also came back for a second discussion with the same officer on the same day to clarify and confirm her position with respect to the alleged threats. This was done after speaking with L.B.. By this stage of the interview, she was more comfortable. These total circumstances suggest that she was prepared to revisit details after being coached but did not mention the other incidents she would later describe at trial.

[304] Although she was shy and sexual touching is a very sensitive and difficult area to discuss, she did describe the exact same touching in her police statement, but notably fewer incidents, despite being prompted to tell everything. As the interview with the officer progressed, she indicated she was more comfortable, and after consulting with her mother, came back to talk openly. In other words, she took time to provide more information during that same interview.

[305] She also did not mention the additional allegations that she would then describe at trial, during a recent meeting with the officer to prepare for this trial.

[306] It was only while testifying that she said that there were other incidents she recalled. While factoring a contextual understanding of children’s evidence about delayed reporting of sexual violence on its own as not justifying an adverse inference, in these circumstances I find that the additions to the incidents are an indicator of C.M.’s motive to portray P.M. in the worst light and ongoing coaching by L.B..

[307] Based on all of these factors there is real danger of C.M. being subject to continuing influence by L.B. about how to give her evidence against P.M.. This concern also results in me having a reasonable doubt about the reliability of the allegations.

[308] With this full complex context considered, I do not find that C.M.’s evidence is convincing beyond a reasonable doubt.

CONCLUSION

[309] I find the accused not guilty of all charges.

MIRZA J.

Released: June 18, 2024

COURT FILE NO.: CR-23-59

DATE: 2024-06-18

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HIS MAJESTY THE KING

B. Jackson, for the Crown

• and –

P.M.

E. Hilzenrat, for the Defendant

REASONS FOR JUDGMENT

Mirza J.

Released: June 18, 2024