COURT FILE NO.: CR-23-279 DATE: 2024-07-24

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HIS MAJESTY THE KING Enoch Guimond, for the Crown

• and -

C. G. Solomon Ukhuegbe, for the Defendant

HEARD: May 27 - May 31, 2024

REASONS FOR JUDGMENT

MIRZA J.

INTRODUCTION

[1] C.G. is charged that between the 1st day of January, 1984, and the 31st day of December, 1987, at the City of Mississauga, in the Central West Region, committed a sexual assault on M.A., contrary to section 246.1 of the Criminal Code of Canada.

[2] He was also charged that between the 3rd day of May, 1990, and the 31st day of May, 1990, at the City of Mississauga, in the Central West Region, did commit a sexual assault on G.M., contrary to section 271 of the Criminal Code of Canada.

[3] The judge alone trial was completed between May 27, 2024 and May 31, 2024.

[4] The Crown invited that count 2 on the Indictment in relation to G.M. be dismissed after the completion of G.M.’s testimony on May 29, 2024. As a result, the accused was found not guilty of this charge.

[5] The focus of these reasons will be the remaining count in relation to M.A.

[6] For the reasons that follow, I find C.G. not guilty.

SUMMARY OF THE EVIDENCE

[7] At the outset, I note that during this trial many of the witnesses were highly emotional. As a result, at times the witnesses’ versions were presented in a disjointed manner and out of chronological order. Some of their comments were not fully explained. This circumstance may be reflected in my summary of the evidence.

CROWN’S CASE

M.A.

Background:

[8] I have initialized names because there is a publication ban of any information that may tend to identify the complainant pursuant to section 486.4(1) of the Criminal Code.

[9] M.A. is the complainant. She is 53 years old. She was born in Jamaica and came to Canada in July 1986.

[10] M.A. is G.M.’s daughter. G.M. is the sister of I.G.. The accused is married to I.G..

[11] D.G. (also known as D.M.) is the daughter of I.G. and the accused. She is also M.A.’s cousin (and sister through adoption) and G.M.’s niece.

[12] M.A. said that she was close with D.G. since they were young. They lived together both in Jamaica and Canada. D.G. was like a big sister to M.A.

[13] M.A. said that when she came to Canada she was about 13 years old.

[14] M.A.’s aunt, I.G., immigrated to Canada first and left her children, O.G., and D.G. in the care of M.A.’s mother in Jamaica.

[15] M.A. described that she lived with the accused and I.G. for much of her life.

[16] I.G. sponsored her family to come to Canada.

[17] M.A. spoke with emotion describing that in retrospect she saw her sponsorship like a charity case. Her mother cared for I.G.’s children when I.G. came to Canada. In return, after I.G. settled in Canada, M.A. believed that I.G. sponsored her and her mother.

[18] I.G.’s children O.G. and D.G. also came to Canada at the same time as M.A..

[19] M.A. stated that she initially lived with I.G. in Mississauga at North Service Road but slept in a room with a lady, who was I.G.’s roommate.

[20] Then they moved to an apartment at Bloor and Dixie in Mississauga area before settling at a semi-detached home on Fellmore Drive, Mississauga.

[21] At the Fellmore address she lived with the accused and his family. She said that she was 16 or 17 years old.

[22] M.A. explained that she attended high school at Central Tech for a couple of years. She mentioned that she was upset because when she graduated none of her family attended, not even her aunt I.G..

[23] M.A. said that after the alleged incidents took place, she did not report them at the time to police in order protect her mother, G.M. This was because I.G. was going to sponsor her mom to come to Canada and she did not want to disrupt that coming to fruition. In cross-examination, M.A. stated that she was smart enough at that age to know that if she reported the abuse to the police, her mother would lose her opportunity to be sponsored.

[24] Additionally, M.A. stated that her mother was going to stay with I.G. If and had she reported the alleged incidents, her mother would not have had a place to stay.

[25] M.A. indicated that at some point she did tell her mother, G.M. It was not entirely clear when, but once she disclosed the incidents, M.A. said that her mother begged her not to tell. M.A. stated that she understood her mother’s request as G.M. is elderly and would be out of a home. In cross-examination, M.A. said her mother told her not to go to the police as it would be an embarrassment. M.A. repeated that her mother begged her for time and for this not to go forward. M.A. blamed her mother for putting her in that predicament.

[26] M.A. said that the day her mother left I.G.’s home, there was a falling out at the house. She said her aunt pushed her through the screen door.

Incidents Alleged

[27] M.A. stated that around the age of 16 to 17 years old, the accused would come into her bedroom at Fellmore Drive. M.A. shared a room with her cousin, D.G..

[28] M.A. could not recall the layout of the bedroom when asked if a diagram presented to her by defence counsel was accurate.

[29] M.A. described the room as having two single beds. She said D.G.’s bed was close to the window. M.A.’s bed was closer to the door when a person entered.

[30] She stated that the accused, C.G., would enter and stand over her and put his hands under the sheets. He would touch her on the underwear and vagina. She said it happened countless times.

[31] She said that the accused touched himself on his penis area.

[32] She stated that she was scared and miserable. She also felt trapped and alone.

[33] In cross-examination she was asked about saying to the police that she wore a nightgown. She confirmed that she wore a nightgown and stated that since she was covered on top, he touched her down there.

[34] The Defence asked her why she didn’t think of wearing pants or pajamas to protect herself. I pause here to comment that this was an improper question and I place no reliance on this inappropriate line of questioning.

[35] In cross-examination, M.A. agreed she told the police that she kept a knife with her and was prepared to use it. However, she agreed that she did not mention this circumstance in examination in chief.

[36] M.A. said that in order to alert her that the accused was entering her room, she put figurines behind the door so that the figurine would fall and make a sound when he entered. She would use that alert system to be awoken and then tell him to leave. She said that she bought them from the store “Honest Ed’s” because they were cheap.

[37] In cross-examination, she was asked about the cost of replacing them if they broke since she said the incidents happened a lot. She stated that she had lunch money that she would use. She acknowledged that there was carpet in the bedroom. She said that the accused was the only person that would intrude or come into the room. However, she agreed that D.G. would leave the bedroom to go to the bathroom at times.

[38] M.A. was asked whether the sound the figurines would make if they were in that spot attracting the attentions of others. She said that when they fell they made a sound that would alert her and D.G.. This would prepare her to resist the accused. She said that the tactic controlled to some extent the accused’s behaviour but didn’t work all the time.

[39] M.A. also stated that she saw the accused sexually assault D.G., his daughter.

[40] In cross-examination, M.A. called D.G. a hypocrite for denying that she was abused. D.G. denied that she was abused when this allegation was investigated by the police. As I will review later, D.G. also denied being abused during her testimony.

[41] M.A. said that she was disappointed in D.G. for not protecting her.

[42] M.A. stated that she stayed at Fellmore Drive for two years before leaving.

[43] She claimed that the accused did not sleep in the same room as his wife.

[44] While still living at the Fellmore address, she would spend a few nights at her Auntie E.B.’s home. She did not tell her what happened. She was not permitted to stay with E.B. long-term.

Aftermath

[45] M.A. stated that at some point, around 1987, she spoke with D.G. and I.G., her cousin and aunt, about the allegations.

[46] M.A. said that I.G. would not hear it and her aunt sided with this “bad man” referring the accused. She said that they responded by putting her things in a garbage bag. As a result, she left the home.

[47] Later M.A.’s mother, G.M. arrived in Canada. M.A. explained that she came to live with I.G. and the accused around 1988-1989, but did not recall exactly the year. This was after M.A. had moved out.

[48] In M.A.’s view, G.M. had to maintain a good relationship with her sister, I.G., but her mother clearly did not like the accused.

[49] M.A. stated that she spoke to some “folks”, and they told her to report the accused to the police. However, she said she was “smart” and decided not to because she knew her Aunt, I.G., was sponsoring her mother to Canada, so she held her “composure” and suffered by not reporting him.

[50] M.A. said many years ago, she told her boyfriend R.B. at the time about the abuse. Although they are not together now, they had a long-term relationship— they dated for 16 years. They separated December 2021.

[51] She told R.B. before she raised seeking possible compensation from the accused when she raised the allegations with D.G. again in 2022.

[52] M.A. said that she had a conversation with R.B., and he told her he had a daughter in Jamaica. She thought it was the right time to tell him her story. She said that he told her to report the accused. At the time, she said no, leave it alone.

[53] R.B. testified that they dated from 2005 to about 2021. He said about a year after they dated she told him about the allegations, and he told her she should report it. In cross-examination he said that he had no personal problem with the accused. He came to court to tell what he knew.

[54] In cross-examination, M.A. denied she told her boyfriend P.E.. However, she said she brought him to the home for protection.

[55] M.A. stated that she eventually reported the incidents after speaking with D.G. about it over text messages, voice memos, and phone calls for a while in November and December 2022. The last message was sent on a Wednesday, likely January 3, 2023. Her mother, G.M. then was told to leave the home she lived in with I.G. and the accused. G.M. had to retrieve her belongings after being told to leave.

[56] M.A. said that she and D.G. had phone discussions about the subject earlier than the texts. In re-examination, M.A. said she first brought it up to D.G., maybe in 2021. Then, after M.A. was baptized in 2022, they got into it in more detail.

[57] M.A. said that this was around the time when the issue with Bill Cosby was in the news.

[58] M.A. told D.G. that her father, the accused, has never apologized. M.A. said that she wanted an apology for all of the abuse she has experienced. Their discussions on the phone and by text became more argumentative over time. M.A. used the word hostile at one point to describe their conversations.

[59] M.A. stated that she would speak with D.G. about the abuse periodically but could not recall the dates.

[60] M.A. stated that D.G. acknowledged the abuse she endured by the accused, but she forgave her father. M.A. said that was her choice. M.A. said she did not agree to forgive him without an apology. She insisted on an apology letter.

[61] M.A. stated that D.G. told her not to speak with the accused or her mother. Instead, D.G. said she would speak with her father.

[62] M.A. said it may be because D.G. did not know if her brother, O.G., was aware of what was alleged, and she didn’t want her brother to know. M.A. told D.G. she should tell her brother because if C.G. didn’t write an apology it will come out.

[63] M.A. mentioned to D.G. that she would seek compensation. In her view, the accused owes her for treatment for stress and agony. She said that her mother also has anger.

[64] M.A. said that D.G. responded that “you are looking for money”. D.G. eventually told M.A. that she would not have her father write an apology. This was reflected in text messages.

[65] M.A. said that in the past her mother told her not to tell anyone, because it was too embarrassing, and that it would bring an end to the family. M.A. maintained that she also did not report the incidents because her mother would not have had a place to live.

[66] M.A. said that when she reported the incident her mother was kicked out.

[67] In cross-examination, M.A. agreed that D.G. never said to her that she was sexually abused by her father. M.A. maintained that she saw the accused sleep with his daughter.

[68] M.A. was asked about telling the police in her statement that D.G. had a power of attorney for her father. She said she believed it was for a medical reason. She stated that the language used in her statement was legal power of attorney. She explained that she learned there was a power of attorney, and that she believed D.G. could go to her dad and break to him that she wanted the apology.

[69] M.A. denied that this was about seeking money. Instead, she said that because “you guys” damaged my childhood, you are responsible for “physio” and therapy.

[70] M.A. mentioned the accused’s lawyer called her and sent her a cease-and-desist letter, dated December 30, 2022. She said during the call, the lawyer was rude.

[71] However, she stated that she did not read the letter before going to the police the same day and providing a statement at 4 p.m.. She was shown that the email and letter dated December 30, 2022 at 10:37 a.m. M.A. stated that she did not pay much attention to it. She said it’s not the reason she went to the police. She repeated that the letter was not important, and it was not the reason she went to the police.

[72] In re-examination, she was asked again if she read the email before going to police, she said that she doesn’t think she opened it until later. When she did review it she was annoyed.

[73] She was asked about specific language in her voice memo to D.G. where she said, “I was told by lawyers, the group that I am going to represent me, that before we can go anywhere to court, that I have to take this to the police station first.”

[74] M.A. said when she saw the lawyer’s letter she wondered why D.G. was going to a lawyer. M.A. said she had no lawyers, and she was just randomly asking around to get information. She did not get a lawyer. In re-examination, she said she could not afford a lawyer, so she felt like saying that she had a lawyer because D.G. had got aggressive with involving a lawyer from church.

[75] M.A. said that things got intense with D.G.. She said she reported it because the accused was supposed to give an apology and did not. It was not supposed to get to a point of lawyers being involved. She thought it had gone too far but maintained it was not connected to the lawyer’s letter.

[76] She also said she reported the incidents to police because the accused’s family were arguing with her mother. However, she agreed that there was a major argument at the accused’s home that happened after she reported it to the police.

[77] In cross-examination, M.A. was asked about engaging in fraudulent activities in the past. She said that she is not involved in fraud but stated that she was out there hungry and needed to eat. She denied obtaining a mortgage for property using D.G.’s name and credit without her consent.

[78] She said if she did use D.G.’s name for a mortgage, she knew about it. M.A. said she is employed part time as a practical nurse at a hospital but not working due to a health issue. She did not remember when she graduated.

[79] M.A. got emotional and stated that her worst memories are due to the accused and that she should be compensated for therapy. She said that this is the reason she raised that topic with D.G.

[80] D.G. later testified for the Defence, that M.A. did use her name without her knowledge to obtain a mortgage on a townhouse, that eventually went to power of sale because M.A. did not keep up with payments. D.G. claimed that she discovered that this happened when she came across mail with her name on it at M.A.’s home while visiting. D.G. saw a letter from a bank and then found out M.A. had used her name.

G.M.

[81] G.M. is M.A.’s mother. She is I.G.’s sister.

[82] G.M. said that she moved to Canada in 1990.

[83] She moved into Lucerne Crescent with I.G. and the accused. She said that she stayed there from May 1990 to 2022, when she was kicked out by her sister. The breakdown was due to the allegations surfacing.

[84] G.M. said that she never saw the accused sleep in the same room as his wife, I.G.

[85] G.M. said M.A. told her about the touching by the accused when she came to Canada. G.M. said she told her daughter that she did not like scandal.

[86] G.M. described that years later M.A. asked for the apology, the accused said no, and there was a fuss in the family.

[87] G.M. said that she had a meeting over coffee with D.G., at Burger King or a similar place. She said she asked D.G. to obtain the apology letter and think it over.

[88] She said she did not ask for money or ask anyone to lie.

[89] G.M. described an incident between her and the accused that formed count 2 that was subsequently dismissed on invitation by the Crown. The Crown sought to rely on her evidence about the circumstances of the relationships.

[90] She said that the accused occupied the middle room. Her sister used the master bedroom. She used another bedroom where there were two beds. G.M.’s parents also stayed in that bedroom. G.M.’s father slept on one bed, and she slept on the other one with her mother.

[91] She stated that a few weeks after she came from Jamaica, the accused opened her room, leaned around her left side, and wiggled her big toe and scratched the bottom of her foot. She was lying on her left side. She jumped up awoken and saw the accused. She said that he had an erection. He was standing at the foot of her bed. He had on underwear. She could not recall what other clothes he had on. She said he was not naked. He did not say anything.

[92] She said that there was street lighting through the window. The room light was off.

[93] She yelled at the accused to get out and don’t touch me again. She said he left and never did it again.

[94] In cross-examination, she said her parents were not disturbed by her yelling at the accused that night. She responded that she didn’t say how “low” she yelled.

[95] She did not discuss the incident with the accused after. She said she was not sure of his intention, whether it was to wake her and take her to another room. She said that she believed he had improper intentions.

[96] In cross-examination, she said at the time this happened B. was downstairs. B. and O.G. were not using the middle room upstairs that night. She said her son fixed the basement permitting them to stay there.

[97] In cross-examination, she agreed that this incident came up after she was asked to leave the house, 32 years after the alleged incident. She said that because her daughter raised the abuse she experienced, she also decided to tell her story. Before that she was trying to hush up and live with it. When she learned there would be no apology letter she decided to speak up.

[98] G.M. denied that she made up the story and came forward to support her daughter’s claim. She disagreed with the suggestion the basement was unfinished and could not be slept in. She said the basement could be used to sleep in at that time. O.G. was in the basement at that time.

[99] In re-examination, G.M. said the window in the room of the incident faced the driveway from her room.

R.B.

[100] R.B. dated and lived with M.A. for 15 to 16 years, from 2005 to 2021.

[101] He stated that about a year or so after they started dating, she told him the accused molested her and his own daughter, D.G., at a tender age.

[102] He stated that there was no special moment the discussion occurred. No set time.

[103] They continued to speak with each other after they broke up.

[104] He learned the police became involved after the incident at the accused’s house where there was a fight between the families and the police got called.

[105] He has not spoken to anyone else about the allegations.

[106] He did not speak with M.A. about a lawsuit for money.

[107] In cross-examination, he agreed M.A. left in 1987. So she told him about 15 years after the incidents.

[108] In cross-examination, he disagreed that they spoke about the allegations often over the 15 years they were together. He maintained he told her she needed help and so did her sister, referring to D.G..

[109] He said that it had got to a point that it affected her and kept coming up for her. He was taken to an excerpt of his statement where he said, “She was troubled by it over the years, and, you know, she, she always talked about it…”. His advice was for her to get help and figure out how to deal with it. He agreed she brought it up several times over the years.

[110] In cross-examination, he said he did not have an interest in the outcome of this case.

[111] He was asked that he told the police she said it happened at Bloor. He said he was not focused on the address. They lived in the area in his mind.

[112] He agreed he told the police that she said she brought her boyfriend P.E. over to the home to stay with her to prevent the abuse.

DEFENCE EVIDENCE

D.G. (aka D.M.)

[113] D.G. is the daughter of the accused.

[114] M.A. is her cousin and sister through adoption.

[115] D.G. said she came to Canada the same day as M.A. in 1984. They grew up together and they were close. They were both in high school. D.G. is about two years older and graduated earlier.

[116] They shared a bedroom together when they lived together at Fellmore. D.G. said that they moved to Fellmore a few months after her father came to Canada. Prior to that they lived at an apartment on Bloor Street.

[117] She could not recall the exact timing but thought that a few years later, G.M. came to Canada with her parents and her son. She believed that they lived at Lucerne by then and she moved out before G.M. came to Canada.

[118] D.G. described the bedroom she shared with M.A., where M.A. said the allegations took place at Fellmore.

[119] D.G. said it was a small room, with two single beds. They were separated by a small narrow distance, but a person could walk between the beds. The door when opened would hit the foot of the bed on the left side. There was no other furniture except maybe a night table next to M.A.’s bed. There was a window behind the head of the bed, against the back wall. D.G. prepared a diagram that showed the layout.

[120] D.G. said that if anyone entered the room, she would know. She was 19 to 20 years old and would know if a sexual assault was occurring in that room while she was present.

[121] She admitted in cross-examination that she did not remember the flooring colours, or furnishings.

[122] D.G. also said that she did not see M.A. use figurines placed at the door to alert her about the opening of the door, nor did she hear about their use. She said that she did not recall M.A. having a figurine.

[123] D.G. stated that she did not witness the accused touch M.A.

[124] D.G. stated that she was not sexually abused by her father.

[125] D.G. also said that M.A. did not tell her about the alleged abuse prior to October 23, 2022. M.A. said to D.G. that the accused raped her.

[126] D.G. acknowledged that there could have been a discussion about Bill Cosby.

[127] D.G. said that M.A. left the Fellmore address in late 1987 to 1988.

[128] D.G. agreed that her father came to Canada on October 11, 1986.

[129] D.G. stated that she and M.A. would talk occasionally. She disagreed that they spoke often. M.A. would send her Bible scriptures or complain to her about her own mother.

[130] She said that she did not remember them talking specifically about allegations of sexual abuse prior to M.A. sending the text message on October 23. Prior to then she did not know. She was close to M.A. and M.A. had not told her earlier.

[131] In cross-examination, D.G. denied she was humouring M.A. in the messages back and forth by implying that until there is a meeting there will not be a letter. She said in re-examination that the first time M.A. asked for a written apology was November 22.

[132] D.G. said that M.A. had mentioned that something was wrong in October, but she did not know what it was. Then M.A. started to demand an apology. Then M.A. sought compensation.

[133] D.G. denied that she gave M.A. the impression she would get her an apology from her father. She said that she wanted there to be a meeting and if her father admitted to any wrongdoing, then they could discuss an apology. She said they would meet and discuss the subject. She did not agree to get an apology letter.

[134] D.G. denied that she wanted to keep conversations and resolutions internal.

[135] She was taken to their text messages and M.A.’s voice memos to her sent by phone.

[136] D.G. explained that her discussion in text messages referencing all humans being depraved and wicked and concepts of forgiveness as per religious scripture were in general and not specific to her father.

[137] D.G. agreed that after messaging with M.A. for some time, when M.A. refused to a meeting to engage in a process with possible forgiveness if there was an admission, she told M.A. the relationship would end.

[138] D.G. explained that M.A. had sent G.M. to meet her at a Tim Horton’s to ask for the letter, and D.G. made it clear that there is no letter. She said that she interpreted M.A.’s messages and the meeting with G.M. that if she doesn’t get the letter, her father will go to court and prison. She believed that M.A. wanted the letter so that she could sue them for money.

[139] In the past, they maintained a cordial relationship and M.A. visited her and her dad. They went to her kids’ baptisms and to R.B.’s home. They went to her father’s home. She supported M.A. when her son passed away. She said her father helped M.A. financially and so did D.G..

[140] They also have had disagreements over the years. D.G. passionately explained that there were financial issues between them. She said that she had loaned M.A. money and she believed M.A. did not want to pay it back, later claiming it was owed to her for the accused raping her.

[141] D.G. said that there have been issues about M.A. engaging in dishonest financial conduct that involved D.G..

[142] She described that there was a time when M.A. had forged her name on a mortgage document in relation to a townhome that M.A. had bought with her friend in the late 1980s. The home went to power of sale as the mortgage was not paid. D.G. said that M.A. used her name without her consent. She discovered that her name was on the mortgage while visiting M.A. and noticed mail from the bank in D.G.’s name.

[143] In cross-examination, she agreed that the home eventually sold power of sale and she was not pursued by creditors. Her credit rating was not damaged. Still, D.G. said she was concerned about the dishonesty.

[144] D.G. also stated that when she worked at Canadian Tire in Mississauga, M.A. had a problem with a credit card that resulted in her sister-in-law being fired. She did not describe her sister-in-law further. In cross-examination, D.G. said that she was embarrassed but it did not impact her employment.

[145] D.G. confirmed that the lawyer’s cease and desist letter to M.A. was copied to her by email. She said she got the lawyer because of concern that M.A. would speak to people, and she was insisting on a letter.

O.G.

[146] O.G. is the accused’s son. He was born in 1971.

[147] M.A. is his cousin (and sister by adoption) and G.M. is his aunt. D.G. is his sister.

[148] O.G. lived in the Lucerne house with M.A., D.G., and his parents. His room was on the top floor in the middle room.

[149] O.G. learned of the allegations from D.G. in 2022. He did not remember the dates.

[150] He said that at the Lucerne home the basement was unfinished when they moved in. At some point later, after he moved out, he returned when it was converted to a basement apartment. He shared the basement space.

[151] He said that while living at the house, he did not hear anyone yell get out of here or don’t come back at night.

[152] He did not see or hear about his father going into another person’s room.

[153] In cross-examination, he was shown a current photo of Lucerne and agreed that there was a window from a bedroom facing the street. There is a light pole.

[154] There was no evidence of a photo depicting Lucerne back from to 1987.

I.G.

[155] I.G. is the accused’s wife. She is G.M.’s sister. She is an aunt to M.A. She is the mother of D.G. and O.G.

[156] I.G. presented as an elderly person that is physically frail but of sound mind.

[157] I.G. denied that she stayed in separate bedrooms from her husband during the relevant time. She said relatively recently they stopped sharing a room, about seven years ago, due to his health issues such as snoring, use of a machine, and vision problems. She said before then they shared the same bedroom.

[158] She said that she brought M.A. from Jamaica to Canada. They all lived together in Jamaica.

[159] She said she heard about the allegations as of October. No one told her about it earlier. This was when M.A. told D.G..

[160] She said that she asked G.M. to leave her home after the allegations arose and there was a fight at her home on December 31. She described G.M. as cursing and acting upset. She said she came to her home to fight.

THE LAW

Statutory Provisions

[161] In 1984, section 246 of the Criminal Code stated:

246.1 (1) Every one who commits a sexual assault is guilty of (a) an indictable offence and is liable to imprisonment for ten years; or (b) an offence punishable on summary conviction. (2) Where an accused is charged with an offence under subsection (1) or section 246.2 or 246.3 in respect of a person under the age of fourteen years, it is not a defence that the complainant consented to the activity that forms the subject-matter of the charge unless the accused is less than three years older than the complainant.

Note: section 246.1 was added by An Act to amend the Criminal Code in relation to sexual offences and other offences against the person and to amend certain other Acts in relation thereto or in consequence thereof, S.C. 1980-81-82-83, c. 125, s. 19.

[162] By 1985, sexual assault was renumbered to section 271 and read:

271. (1) Every one who commits a sexual assault is guilty of (a) an indictable offence and is liable to imprisonment for a term not exceeding ten years; or (b) an offence punishable on summary conviction.

[No defence]

(2) Where an accused is charged with an offence under subsection (1) or section 272 or 273 in respect of a person under the age of fourteen years, it is not a defence that the complainant consented to the activity that forms the subject-matter of the charge unless the accused is less than three years older than the complainant. 1980-81-82-83, c. 125, s. 19. This section remained in effect to 1987.

[163] By 1987 the sexual assault section stated:

271. (1) Every one who commits a sexual assault is guilty of (a) an indictable offence and is liable to imprisonment for a term not exceeding ten years; or (b) an offence punishable on summary conviction.

[No defence ]

(2) Where an accused is charged with an offence under subsection (1) or section 272 or 273 in respect of a person under the age of fourteen years, it is not a defence that the complainant consented to the activity that forms the subject-matter of the charge unless the accused is less than three years older than the complainant. 1980-81-82-83, c. 125, s. 19.

Presumption of Innocence:

[164] 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.

[165] 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:

[166] 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.

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

[168] 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.

[169] 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.

[170] 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.

[171] 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] 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.

[172] 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.

[173] In applying the W. (D.) methodology, I am mindful of the following additional guidance in 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, a Crown witness provides evidence in support of the Defence. R. v. B.D., 2011 ONCA 51, at para. 105.

[174] 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 and other witness 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. Carrière (2001), 159 C.C.C. (3d) 51 (Ont. C.A.) at para. 51, R. v. Hull, and R. v. J.J.R.D. (2006), 215 C.C.C. (3d) 252 (Ont.C.A.).

[175] 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. J.E., 2012 ONSC 3373, at para. 20; R. v. J.M., 2018 ONSC 344, at paras. 9-20.

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

[177] 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.

[178] 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.

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

[180] 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.

[181] 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.

[182] 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.

[183] 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.

[184] 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), 115 C.C.C. (3d) 1 (Ont. C.A.), at p. 10; R. v. L.L., 2014 ONCA 892, at para. 2; and R. v. G. (R.), 2008 ONCA 829, at para. 20.

[185] As Paciocco J.A. stated in Kiss at para. 52, demeanour evidence has to be considered carefully as emotion or lack thereof is not a proxy for either truthfulness or dishonesty.

Evidence in Sexual Assault Cases:

[186] I have considered that it is important that a contextual credibility and reliability assessment is necessary of a mature adult complainant that is recollecting alleged incidents from their childhood or teenage years. I will review the law relevant to assessing the credibility and reliability of younger people that make allegations of illegal sexual touching.

[187] 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.

[188] 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. R. v. L. (D.O.), [1993] 4 S.C.R. 419, at pp. 464, 468; R. v. W. (R.), [1992] 2 S.C.R. 122, at p. 136; R. v. D.D., 2000 SCC 43, [2000] 2 S.C.R. 275, at para. 63; and R. v. S. (P.), 144 C.C.C. (3d) 120 (Ont. C.A.), at para. 69.

[189] 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.

[190] 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.

[191] 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.

[192] 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.

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

[194] Dates and times are not determinative. They are not essential elements that must be proven. Based on their reduced development and maturity, younger 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). R. v. W.(R.), [1992] 2 S.C.R. 122, at p. 134.

[195] A significant gap 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.

Motive

[196] The accused has no obligation to identify a potential motive to accuse him falsely of sexual assault. To require him to do so would be contrary to the presumption of innocence and reverse the burden to prove his guilt beyond a reasonable doubt which falls squarely on the Crown. At trial, the chief task is whether the Crown has met its burden beyond a reasonable doubt.

[197] Not only is there no burden on an accused to prove a motive to fabricate, but there is also no burden on an accused to disprove that the complainant had no motive to fabricate. It does not follow that because there is no apparent motive to lie, the witness must be telling the truth. It is dangerous and impermissible to move from an apparent lack of motive to the conclusion that the complainant must be telling the truth.

[198] In R. v. Gerrard, 2022 SCC 13, at paragraphs 4-5, the Supreme Court noted that when the accused suggests that the complainant has a motive to lie, lack of evidence of a complainant’s motive to lie may be relevant in assessing credibility. R. v. Stirling, 2008 SCC 10, [2008] 1 S.C.R. 272, at paras. 10‑11; R. v. Ignacio, 2021 ONCA 69, 400 C.C.C. (3d) 343, at paras. 38 and 52.

[199] Absence of evidence of motive to lie, or the existence of evidence disproving a particular motive to lie, is a factor that suggests a witness may be more truthful because they do not have a reason to lie when it is asserted that they do. That said, when considering this factor, trial judges must be alive to two risks. First, the absence of evidence that a complainant has a motive to lie (i.e. there is no evidence either way) cannot be equated with evidence disproving a particular motive to lie (i.e. evidence establishing that the motive does not exist). The latter requires evidence and is therefore a stronger indication of credibility. Neither is conclusive in a credibility analysis. Second, the burden of proof cannot be reversed by requiring the accused to demonstrate that the complainant has a motive to lie or explain why a complainant has made the allegations. R. v. Swain, 2021 BCCA 207, 406 C.C.C. (3d) 39, at paras. 31‑33.

Fabrication Claims and Prior Consistent Statements

[200] Fabrication or concoction allegations against a witness will permit the calling party to rebut that challenge with the use of prior consistent statements that are otherwise generally inadmissible because they lack probative value and are hearsay. Stirling, at para. 5; R. v. Ellard, 2009 SCC 27, [2009] 2 SCR 19, at para. 31.

[201] To be “recent”, a fabrication need only have been made after the event about which the witness testifies. R. v. T. (J.A.), 2012 ONCA 177, at para. 98.

[98] Where one party has made an allegation of recent fabrication in connection with a witness called by the opposite party, the opposite party can rebut the allegation by introducing other statements the witness made before the alleged fabrication arose, that are consistent with the witness’ trial testimony: Ellard, at para. 32. A “fabrication” can arise because outside sources have influenced the witness: Ellard, at para. 33; R. v. B. (A.J.), [1995] 2 S.C.R. 413, at para. 1. To be “recent”, a fabrication need only have been made after the event about which the witness testifies. The rebutting statements must have been made before the alleged fabrication arose: Ellard at paras. 32-33; and Stirling, at para. 5. The rebutting statements are not evidence of the truth of their contents.

[202] The prior statement has probative value because it can be used to establish the witness’s story was the same before the alleged motive to fabricate arose or prior to any alleged point of contrivance. R. v. B. (D.), 2013 ONCA 578, at para. 36; Stirling, at para. 5; T. (J.A.), at para. 98; R. v. B. (A.J.), [1995] 2 S.C.R. 413 at para. 2; and Ellard, at paras. 31-33.

[203] Prior statements cannot be relied upon to bolster credibility merely because they are consistent with the testimony. See R. v. C. (G.), [2006] O.J. No. 2245 (Ont. C.A.), at paras. 20-22; R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788, at paras. 39-40; and R. v. T. (J.A.), at para. 98.

[204] Prior consistent statements are not admitted to prove the truth of its contents. They are also not admissible to bolster the notion that the witness is telling the truth in his or her testimony or prior statements because they may be consistent. It would be improper for the trier of fact to use the prior statements to conclude that because the witness has said the same in the past that it is more likely that the witness is telling the truth either then or now or is more believable. B. (D.), at paras. 38-40; Dinardo, at paras. 39-40.

POSITIONS

[205] I received written submissions outlining the parties’ main arguments, so my summary of the positions in this part will be brief.

Crown

[206] The Crown submits that count 1 is from the time period of 1984 to 1987. However, based on the evidence, the relevant time period is likely 1986 to 1987. The Criminal Code switched to section 271 in 1985. Accordingly, section 271 as noted above is applicable. This was not disputed by the Defence.

[207] The Crown submits that this is a credibility case. It turns on the court’s determination of M.A.’s sincerity.

[208] There is no recent fabrication. M.A. told R.B. and G.M. before any claim of recent fabrication. Both explained circumstances consistent with her having revealed it before any relatively more recent motive to seek money or financial gain.

[209] M.A. did not have a financial motive to fabricate. There was money going to M.A. before she made the complaint, out of family support such as funds loaned to her.

[210] Reliability of M.A.’s memory is relevant, but this is not an issue that she could have been mistaken on.

[211] D.G. should not be believed that she did not know about the allegations earlier and that she did not see her father enter the room to touch M.A..

[212] M.A.’s position should be accepted that D.G. was there, saw, and knew about it. However, if I accept D.G.’s evidence and this raises a reasonable doubt, then that leads to a finding of not guilty.

[213] D.G. has a motive to protect her father and their family from being driven apart, even though she was a victim of abuse.

[214] D.G.’s evidence about the text messages supports the motive to conceal. The messages indicate that D.G. was recruited into an apology for what the accused did to both of them.

[215] M.A. does not have a motive to fabricate. The financial compensation is not a driving factor. Her emotional approach to her evidence was supportive of her credibility. M.A. was upset with the accused. D.G. was upset with M.A. for blowing up the family. Both were sincere.

[216] I note that in oral submissions, the Crown conceded that there are multiple interpretations concerning D.G.’s response to the allegations. D.G. was in a tough position as the daughter of the accused.

Defence

[217] The Defence submits that there is no credible evidence substantiating the sexual assault allegation. M.A.’s roommate, D.G., did not witness the assault on any of the many supposed occasions nor did M.A., or anyone else, mention it to her, until October to November 2022, 35 years later, when M.A. was seeking “compensation.”

[218] M.A. also wanted not to pay back a debt to D.G. for money loaned.

[219] The allegation of sexual assault by M.A. is a recent fabrication. Although the Crown called R.B. to rebut the Defence claim of recent fabrication, R.B. is not a credible witness.

[220] The Defence submits that this case is all about money; the complainant attempting to extort payment from the accused’s family by blackmail using the tool of a totally contrived sexual assault.

[221] M.A. chose to deal with D.G. because, as she admitted in her testimony, she found out that D.G. had a power of attorney from her father. In M.A.’s mind that power of attorney might give D.G. control over the accused’s assets and finances.

[222] M.A. intended to use the complaint to the police and the criminal prosecution as the foundation for a future civil litigation claim against the accused for sexual assault. She said to D.G. “I was told by my lawyers, the group I am going to have represent me that before we can go anywhere to court, that I have to take this to the police station first.”

[223] The Defence submits that there is collusion between M.A. and G.M., and between M.A. and R.B.

ANALYSIS

[224] After considering the totality of the evidence, I am left in a state of reasonable doubt.

[225] In particular, I find credible D.G.’s evidence that she shared a room with M.A. and was present during the relevant period. I accept D.G.’s evidence that she did not see the accused come into her shared bedroom with M.A. and she did not see the accused touch M.A.. After considering the totality of evidence, I am left in a state of reasonable doubt that the incidents took place.

[226] My analysis will focus on the primary reason the Crown has not proven the case beyond a reasonable doubt. I will review the clearest path to reasonable doubt that is determinative.

[227] I am satisfied that D.G.’s evidence was candid, straight forward, credible and reliable. Her evidence was not shaken in cross-examination. She was not impeached on a prior statement. She was not internally inconsistent. She was not contradicted by other independent evidence. Overall, I accept the import of her evidence that she was present and the incidents did not occur. Even if I had not accepted D.G.’s evidence, I am satisfied that it is capable of raising a reasonable doubt because it is a specific and reasonably plausible contradiction of M.A.’s version. I also accept D.G.’s evidence that M.A. communicated to her that she wanted financial compensation and became upset and went to the police when D.G. would not facilitate an apology letter.

[228] I accept D.G.’s evidence that she was close with M.A. and that they shared a small bedroom at the Fellmore address during the relevant period. This was not disputed.

[229] D.G.’s bed was right next to M.A.’s bed in this small bedroom. Based on the specific description of the witnesses of the small bedroom where the incidents allegedly occurred, I find that it is a confined area with a narrow walk through between the two beds. A small enough space that the presence of another adult person such as the accused would be clearly visible or heard, and identifiable. Similarly, D.G. described the space between the foot of the bed and the door was very small. D.G. said that the door would hit the foot of the bed when opened. I accept this total evidence.

[230] I also accept the cumulative evidence that M.A. was about 16 to 17 years old and D.G. was 18 to 19 years old. They were young people but of sufficient age, knowledge, and maturity to understand their surroundings. I am satisfied that D.G. was a young adult and mature enough to comprehend the context and her surroundings.

[231] Based on the total circumstances, I find that this is not a situation that if the incidents occurred, D.G. may not have appreciated sexual touching of M.A. was transpiring or may not have seen or heard the incidents take place based on the dynamics in the room or because she was asleep.

[232] Although there was no clear evidence adduced of whether D.G. was a light or heavy sleeper, D.G. was clear that she would have been aware if another adult, and in particular her own father, entered the room. This would have been particularly true if there was a specific alert system in place as described by M.A. I accept D.G.’s evidence on this important point.

[233] I have considered this possibility of D.G. being asleep. In considering that possibility, I must be mindful of the totality of evidence. M.A.’s version is that D.G. was specifically aware of the incidents of sexual touching. M.A. said that the placement of the figurines was to trigger a falling sound to alert of the accused’s entry.

[234] I accept that D.G.’s evidence that she did not see M.A.’s placement of figurines at the door to alert them the accused was entering; and she did not hear the figurine fall or make sounds. I find that she did not see her father enter the bedroom and touch M.A. as described.

[235] I find that had D.G. been present for any incident as M.A. alleged she was, it is likely D.G. would have heard her father enter the small bedroom and hear or witness at least some aspect of the touching related interaction with M.A.. I accept D.G.’s evidence that she did not. D.G. would have been aware of the alleged encounters as she was in very close proximity to M.A.. She would have been near the accused had he repeatedly been in their small room.

[236] D.G. credibly explained that she did not see or hear her father engage in this behaviour with M.A. at any time. Her credibility and denial was not diminished in cross-examination.

[237] I do not accept the argument that D.G. was biased or had a motive to lie to protect her father such that I should reject her evidence or not be left in a state of reasonable doubt based on her evidence.

[238] I accept that D.G. had affection for her father. She spoke highly of his character. I am aware that there can be bias in a family relationship that may result in a witness shading their evidence or lying to protect their kin. However, it is a case specific determination. On this record, I did not observe indications of D.G. being biased. She was responsive to the questions and provided reasonable explanations. The Crown did not persuasively point to factors in her evidence that established that she was biased or motivated to lie to cover for the accused.

[239] I do not find that D.G. shaded her evidence in favour of the accused or that she was inconsistent, misled or lied to the court. I did not find that there were other bases to find her evidence was not credible or reliable.

[240] I have considered whether D.G.’s evidence that she was not abused as alleged by M.A. detracts from her credibility. I find that it does not. It is important to remember that at this trial, the focus is not whether D.G. was abused. Still, I was alive to any bias or motive based factoring that background. D.G. credibly explained that when M.A. demanded an apology and sent her text messages, initially she was willing to arrange a meeting between M.A. and her father to talk but M.A. refused. She was not taking sides and was respectful to M.A. However, after M.A. became more aggressive in her demands, D.G. decided she did not want to be involved. That context indicates that D.G. was not biased or shielding her father from M.A.’s claims. At trial, I found that D.G. reasonably described what she saw, heard, and knew.

[241] Since I accept that D.G.’s denial that she did not witness the assaults is credible, I am left with reasonable doubt. This is determinative.

[242] I have considered the totality of the evidence and M.A.’s version before making this finding.

[243] I have also considered that the Defence argument of recent fabrication was rebutted by R.B. But that rebuttal is not a make weight to bolster the M.A.’s allegations.

[244] It is important not to lose sight that M.A.’s version is that D.G. was in the room when the incidents of sexual touching occurred. M.A. said that they happened numerous or countless times. M.A. did not state that there were incidents of touching pertaining to the indictment that occurred when D.G. was not present. M.A. said the incidents happened at night when both of them were in the room. The alert system was for the benefit of both of them.

[245] I am not persuaded by the Crown’s argument that the text and audio messages submitted where M.A. repeatedly communicates to D.G. her demands and anger diminish D.G.’s credibility that she was not a victim. The communications do not prove that D.G. witnessed any crimes. They show that M.A. was persistent and aggressively pushing for an apology because she believed there had been no acknowledgment of the abuse she endured by the accused, and she wanted compensation. M.A.’s communications to D.G. appeared to be self-serving in support of her position. They are not admissible for an oath bolstering purpose.

[246] In addition, the messages’ contents do not assist the Crown in proving the offences to the requisite standard. D.G. credibly explained that when M.A. notified her of the desire to obtain an apology from the accused, D.G. initially acted as a go between. However, over time, D.G. was not as a responsive as M.A. had wanted and M.A. became increasingly angered. Ultimately, D.G. declined to pursue an apology from her father, but rather suggested M.A. meet with her side of the family to tell her story. M.A. refused and became more enraged.

[247] I accept D.G.’s testimony that she decided the better course was for M.A. to air her allegations directly to the accused. M.A. emphatically refused D.G.’s suggestion to deal with the allegations in this way.

[248] M.A. went to the police after it was made clear to her that there would be no apology and no compensation. On the same day that M.A. went to the police, she was sent and received by email a legal letter advising her to cease and desist with the allegations due to reputational damage. The situation had been escalating up to that point.

[249] In their earlier texts, M.A. had mentioned seeking compensation for therapy to address trauma and said she had been advised by civil counsel to make a police complaint.

[250] M.A’s mother, G.M., had been asked to leave the accused’s home after a significant dispute involving the parties connected to the allegations. G.M. had resided with the accused’s family for an extended period of time prior to that. This breakdown also added to M.A. and G.M.’s anger towards the accused’s family.

[251] The Crown submitted that I could find D.G. less credible for specifically not refuting that she was a victim or contesting M.A.s claims in their text communications. I disagree.

[252] D.G. was put in a very difficult position by M.A.. D.G. was initially open to acting as an intermediary between two people she cared about, her cousin M.A. and her elderly father. I do not find D.G. less credible or draw any negative inference from the content of her text responses.

[253] I am cautious to read into her text responses as submitted by the Crown. Text communications can be clear at times but on other occasions they can be ambiguous. They can also be prone to misunderstanding as they are often subject to the personality of the sender, dynamics of a relationship, and the people’s willingness to engage in this method of communication. Some messages can be intended to be responsive to only part of a thread only. Some messages are one sided.

[254] In this case, it is clear that D.G. was reluctant to engage M.A. as frequently in text given the confrontational and hostile manner in which M.A. was communicating at times. I accept D.G. was trying to de-escalate M.A.’s anger and find a reasonable way to help M.A. deal with her allegations. The two of them were close as children, sisters. They spoke less frequently as they grew older and their relationships became strained over financial issues, but it is clear that D.G. still cared about M.A., and vice versa.

[255] Since I find that there is reasonable doubt based on D.G.’s evidence, I need not address Defence arguments further such as collusion, the extent of M.A.’s motive to lie based on a history of financial mismanagement or fraud, or submissions about G.M.’s credibility.

[256] Based on the witnesses demonstrative evidence at the trial by the witnesses such as M.A., D.G. G.M. and I.G. it is clear that this is an emotionally charged situation for both the complainant and accused’s families that has resulted in turbulent breakdown of long-term relationships. Based on the nature of the case and the specific circumstances, in my view it does not serve the administration of justice or public interest to make findings in relation to every argument that are not required to decide the case.

[257] In light of my findings that D.G.’s direct evidence leaves me in a state of reasonable doubt, this is clearly not a case to find that the Crown’s case, even when there is no reason to reject the Defence evidence, satisfies me beyond a reasonable doubt that the offences have been proven. In this regard, this case is distinguishable from J.J.R.D.. It would be a miscarriage of justice to convict the accused based on the totality of evidence that I accept that results in reasonable doubt.

CONCLUSION

[258] I find C.G. not guilty.

Mirza J. Released: July 24, 2024