ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR-23-157-00

DATE: 2024-08-27

B E T W E E N:

HIS MAJESTY THE KING

C. Kreuger, for the Crown

• and -

R.P.

J. Blanco, for the Accused

Accused

HEARD: May 27, 28, & 29, 2024,

at Thunder Bay, Ontario

Regional Senior Justice W. D. Newton

WARNING

AN ORDER RESTRICTING PUBLICATION OF ANY INFORMATION THAT COULD “IDENTIFY” THE COMPLAINANT OR WITNESS HAS BEEN MADE IN THIS PROCEEDING UNDER SECTION 486.4 OF THE CRIMINAL CODE OF CANADA

Reasons on Judgment

Overview

[1] The accused is charged with sexual interference (Criminal Code, R.S.C., 1985, c. C-46, s.151), invitation to sexual touching (s. 152), and sexual assault (s. 271) of his former partner’s daughter, K.E., between 2012 and 2019, when K.E. was between five and twelve years old.

The Evidence

The Allegations are Made

[2] Family members testified that K.E. reported the allegations of sexual assault. A cousin testified that, in early 2022, K.E. told him that the accused had touched and “raped” her. He said that K.E. did not want her mother to know. He told his mother and his mother told K.E.’s maternal grandmother. The grandmother told K.E.’s mother who then contacted the police.

[3] K.E.’s mother testified that she lived “off and on” with the accused between 2010 and 2021. During this period, she was employed from time to time and, along with the accused, K.E., and her other two children, moved around several times.

[4] In cross-examination, K.E.’s mother testified that the accused “moved in” in 2010 when K.E. was three years old. K.E.’s father was “not in the picture” and the accused took over the “father role”. Over the years of their relationship, she observed the accused to be a good father and had no reason to believe that anything inappropriate was happening between the accused and her daughter. The accused did have a drug problem and so the couple separated from time to time; however, he was allowed parenting time if he passed a drug test. They separated finally after the accused overdosed, and K.E.’s mother decided to end the relationship because she did not want to go through the same experience again.

The Complainant

[5] K.E. testified via video conference with a support person on consent. She was seventeen years old when she testified, and a student in grade twelve.

[6] K.E. testified that the first time she mentioned the allegations against the accused was to her cousins; however, she could not remember when this conversation occurred, nor could she recall its contents. She indicated that she did not want to tell her mother but was “not a hundred per cent sure why not” at the time.

[7] K.E. spoke to a police officer in March 2022, but did not really want to speak about what happened, so she wrote a note to the officer describing one incident “when he first put it in me.”[^1] She said that she was “maybe 12… like, grade 7, or the beginning of grade 7”. She described this as happening in the back porch of the house where they lived at the time. She said that she remembered watching the accused lock the outside door and then tell her to come to him. She said that this occurred during the daytime and at the end of winter, because there was snow on the ground.

[8] At this point in her testimony, the Crown asked that K.E. be permitted to refresh her memory by reviewing the statement she wrote for the police. Upon review of her statement, she said that the event happened “in between… winter and like, fall-ish. Or, like, changing out of winter. Spring.” She also stated that the accused called her out into the back porch, locked the back door, then sexually assaulted her from behind with her bent over on the staircase. She said she was “confused” and that “it hurt.” She said that the assault ended when her mother came home and knocked on the back door because it was locked.

[9] When asked if she talked to the police about another incident that happened at a different house, on Windsor Street, she replied, “not that I remember.” The Crown then asked that K.E. be allowed to refresh her memory by referring to her preliminary hearing testimony. After reviewing the transcript, K.E. testified that there were “multiple situations” and was asked to describe a “situation” she remembered. K.E. said that the accused had her stand in a corner outside her mother’s bedroom for a “timeout.” She said that the accused rubbed his hand against her vagina and moved her hand to touch his penis. She could not recall what grade she was in when this occurred.

[10] She was asked if there was another situation that she remembered and K.E. replied, “…not at this moment, I don’t remember any.”

[11] When cross-examined about the note she wrote for the police, K.E. admitted that she was having a hard time remembering details. She admitted that, even after reviewing the video of her conversation with the police and her preliminary inquiry transcript, she was having a hard time remembering certain things. For example, she could not remember the day of the week or why she was being punished for the “time out” incident. She agreed that her memory of the “time out” incident was a “pretty big blur” and that she did not mention the “time out” incident to the police. With respect to the incident in the back porch, she admitted that she could not remember the time of year, although she remembered snow. She told the police it occurred in November. She was unsure which day of the week this occurred on but was confronted with her statement to the police when she said it was on a weekend.

[12] She admitted that there were usually other people around and that she was not often alone with the accused, as her two younger sisters would have at least been present.

[13] She described the back porch as “kind of” exposed, since there was a window to the backyard. The back porch was used as the main entrance to the house. She said that the back porch incident ended when her mother knocked on the door and admitted that the accused would have been discovered assaulting her but for the door being locked. She was not sure whether she had mentioned the locked door in her statement to the police, but after reviewing her statement she confirmed that she did not. She thought that she had told the Crown about the locked door at the preliminary inquiry and was given an opportunity to review her transcript again. It was confirmed that she only mentioned that the door was locked in response to a question from counsel for the accused suggesting that her mother could have walked in during the incident in the back porch.

The Accused

[14] The accused is 34 years old. He admitted to being diagnosed with Fetal Alcohol Syndrome Disorder (FASD), a condition affecting his memory and speech.

[15] He testified that he commenced a relationship with K.E.’s mother when he was 19 and K.E. was about three years old. He described his relationship with K. E. as “pretty good …your typical father-daughter relationship.” He said that K.E. had ADHD and would often “act up” and then be punished with a “time out” up until she was about eight or ten years old. He denied touching her inappropriately, specifically denying that he touched K.E.’s vagina or attempted to have her touch his penis.

[16] With respect to the alleged back porch incident, he said that the house was shared and that his family occupied the main floor, and another man rented the top floor. The common entrance was through the back porch, with access to shared laundry in the basement through the back porch. He denied sexually assaulting or touching K. E. inappropriately at anytime.

[17] In cross-examination, he continued to deny the allegations of sexual assault, sexual interference, and invitation to sexual touching.

[18] He admitted that he was addicted to crack cocaine and that his drug use could impair his memory. He further stated that, from 2016 to 2018, his memory “was not the greatest”. In re-examination he testified that he did not use drugs in the presence of the children

Positions of the Parties

[19] Both counsel agree that the principles found in R. v. W. (D.) [2] are applicable in this case.

[20] Counsel for the accused submits that, if I am unable to decide who to believe, I must acquit. He argues that the accused’s testimony was credible and not significantly challenged on cross-examination. He notes that the complainant’s allegations are vague and lacking in detail. Because the police did not conduct a formal interview –instead obtaining a simple, brief, handwritten statement – counsel submits that the accused is handicapped in challenging the complainant’s testimony due to the lack of detail. Counsel further notes that the complainant had no recollection of the “time out” incident until she reviewed her testimony from the preliminary inquiry, and that this incident was not mentioned in her statement to the police. He notes the complainant’s acknowledgement that that her recollection is a “pretty big blur.” He argues that the “emergence” of the locked door detail for the first time upon cross-examination raises serious concerns with respect to the complainant’s credibility.

[21] The Crown submits that the testimony of the accused is reliable and credible, considering that these incidents occurred when she was a child, and that any inconsistencies in her testimony are accounted for by her age and the passage of time. The Crown also notes that the complainant did not have any difficulty remembering the “core aspects” of the incidents.

The Law

Child Witnesses and Credibility

[22] In R. v. M. (A.),[3] the Ontario Court of Appeal succinctly set out the following principles, which are particularly relevant in this case:

[9] First, every witness, irrespective of age, is an individual whose credibility and evidence should be assessed according to criteria appropriate to his or her mental development, understanding and ability to communicate: R. v. W. (R.), 1992 CanLII 56 (SCC), [1992] 2 S.C.R. 122, [1992] S.C.J. No. 56, at p. 134 S.C.R.

[10] Second, no inflexible rules mandate when a witness' evidence should be evaluated according to "adult" or "child" standards. Indeed, in its provisions regarding testimonial capacity, the Canada Evidence Act, R.S.C., 1985, c. C-5 eschews any reference to "adult" or "child", preferring the terms "14 years or older" and "under 14 years of age". An inflexible, category-based system would resurrect stereotypes as rigid and unyielding as those rejected by the recent developments in our approach to children's evidence: W. (R.), at p. 134 S.C.R.

[11] Third, despite this flexibility, there are some guiding principles. Generally, where an adult testifies about events that occurred when she was a child, her credibility should be assessed according to the criteria applicable to adult witnesses. However, the presence of inconsistencies, especially on peripheral matters such as time and location, should be considered in the context of her age at the time the events about which she is testifying occurred: W. (R.), at p. 134 S.C.R. See, also, R. v. Kendall, 1962 CanLII 7 (SCC), [1962] S.C.R. 469, [1962] S.C.J. No. 27.

[12] Fourth, one of the most valuable means of assessing witness credibility is to examine the consistency between what the witness said in the witness box and what she has said on other occasions, whether or not under oath: R. v. G. (M.), 1994 CanLII 8733 (ON CA), [1994] O.J. No. 2086, 93 C.C.C. (3d) 347 (C.A.), at p. 354 C.C.C., leave to appeal to S.C.C. refused [1994] S.C.C.A. No. 390. Inconsistencies may emerge in a witness' testimony at trial, or between their trial testimony and statements previously given. Inconsistencies [page540] may also emerge from things said differently at different times, or from omitting to refer to certain events at one time while referring to them on other occasions.

[13] Inconsistencies vary in their nature and importance. Some are minor, others are not. Some concern material issues, others peripheral subjects. Where an inconsistency involves something material about which an honest witness is unlikely to be mistaken, the inconsistency may demonstrate a carelessness with the truth about which the trier of fact should be concerned: G. (M.), at p. 354 C.C.C.

[14] Fifth, a trial judge giving reasons for judgment is neither under the obligation to review and resolve every inconsistency in a witness' evidence, nor respond to every argument advanced by counsel: R. v. M. (R.E.), [2008] 3 S.C.R. 3, [2008] S.C.J. No. 52, 2008 SCC 51, at para. 64. That said, a trial judge should address and explain how she or he has resolved major inconsistencies in the evidence of material witnesses: G. (M.), at p. 356 C.C.C.; R. v. Dinardo, [2008] 1 S.C.R. 788, [2008] S.C.J. No, 24, 2008 SCC 24, at para. 31.

[15] Sixth, prior consistent statements of a witness are not admissible for their truth: R. v. Stirling, [2008] 1 S.C.R. 272, [2008] S.C.J. No. 10, 2008 SCC 10, at para. 7. Mere repetition of a story on a prior occasion does not make the in-court description of the events any more credible or reliable: R. v. Curto, [2008] O.J. No. 889, 2008 ONCA 161, 230 C.C.C. (3d) 145, at paras. 32, 35; R. v. Ay, 1994 CanLII 8749 (BC CA), [1994] B.C.J. No. 2024, 93 C.C.C. (3d) 456 (C.A.), at p. 471 C.C.C.

[23] The Supreme Court of Canada also recently re-emphasized the importance of taking a “common sense” approach when assessing evidence from child witnesses:

[57] The Supreme Court’s jurisprudence mandates that a common sense approach 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.), at p. 55. This approach recognizes that children often experience the world differently than adults. For example, child sexual abuse victims may not remember details such as time and place, but that imprecision does not necessarily mean the child misconceived what happened to them and who did it. This direction reflects the reality that children cognitively process information differently than adults. When courts ignore the common sense approach for child witnesses, they fail to fulfill their duties to ensure a fair trial and do not give proper effect to children’s evidence, rendering them voiceless.[^4]

Conflicting Testimonial Accounts: W. (D.)

[24] The W. (D.) framework is intended to explain what reasonable doubt means in the context of conflicting testimonial accounts.[^5] The usual recitation of the framework is as follows:

First, if you believe the evidence of the accused, obviously, you must acquit. Secondly, if you do not believe the testimony of the accused but you are left in a reasonable doubt by it, you must acquit. Thirdly, 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 you do accept, you are convinced beyond a reasonable doubt by the evidence of the guilt of the accused.[^6]

[25] As noted by Paciocco J. (as he then was) in the article entitled “Doubt about Doubt: Coping with W. (D.) and Credibility Assessment”:

The first W. (D.) rule addresses what occurs when there is ‘‘total acceptance” of evidence inconsistent with guilt, the third W. (D.) rule instructs on when a conviction can follow after ‘‘total rejection” of the evidence that is inconsistent with guilt ,and the second W. (D.) rule instructs that an acquittal must follow when there is indecision about whether to credit, or act on, evidence inconsistent with guilt.[^7]

[26] With respect to the third W. (D.) rule, Paciocco J. stated that it “is meant to confirm that even after the total rejection of defence evidence, guilt is to be determined on the affirmative evidence that is credited, not on the simple fact that the defence evidence has been rejected.”[^8] As he notes, this step is crucial to a fair fact-finding process in criminal cases:

As a matter of law, if individuals could be convicted simply because the exculpatory versions they have offered are rejected, this would reverse the burden of proof; they would be convicted because they have not proved their innocence.[^9]

Analysis

[27] Cases like this, based upon the conflicting testimony of two witnesses and no other evidence, are the most difficult to decide.

[28] As always, the burden is on the Crown to prove the guilt of the accused beyond a reasonable doubt. Proof of probable guilt is not proof beyond a reasonable doubt.

[29] The complainant’s statements to her cousins that she was assaulted are of no assistance in bolstering her credibility as prior consistent statements. These statements are disregarded.

[30] Generally speaking, both the complainant and the accused appeared to be credible witnesses.

[31] That the complainant could not recall “peripheral” matters, such as the season or the day of the week when an alleged incident occurred, does not, from a common sense perspective, cause me to question her credibility.

[32] However, two aspects of the complainant’s testimony raise concerns with respect to the reliability and credibility of her testimony.

[33] Despite reviewing her statement to the police, and her preliminary inquiry testimony, in the days preceding trial, the complainant still had to refresh her memory while testifying. I accept that some of this difficulty could be attributable to nervousness from testifying in court, especially given her young age and the nature of the matters discussed, but the reliability of her memory remains suspect.

[34] However, the fact that she did not mention, to either the police or to the Crown during her preliminary inquiry testimony, that the accused locked the back porch door is more concerning. She only testified that the accused locked the back door when confronted with the assertion by defence counsel that anyone could have entered the back porch while she was being sexually assaulted. This raises the possibility that this evidence was concocted to fill a gap in her testimony, and that her testimony was therefore untruthful. This is not to suggest to that I find the complaint untruthful, but it is sufficient to raise a reasonable doubt.

[35] I accept that the accused candidly acknowledged difficulties with his memory due to FASD and his drug use. There were no other challenges to the reliability or credibility of his testimony.

[36] Even if I concluded that the I did not believe the testimony of the accused, I am left with reasonable doubt as to his guilt based on the complainant’s testimony.

[37] Therefore, acquittals will be entered for all three charges.

“Original signed by”

The Hon. Mr. Justice W.D. Newton, R.S.J.

Released: August 27, 2024

COURT FILE NO.: CR-23-157-00

DATE: 2024-08-27

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HIS MAJESTY THE KING

Crown

• and –

R.P.

Accused

REASONS ON JUDGMENT

Newton R.S.J.

Released: August 27, 2024

[^1]: His “dick” in “my vagina”.

[^2]: R. v. W. (D.) [D.W.], 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742 (“W. (D.)”).

[^3]: R. v. M. (A.), 2014 ONCA 769, 123 O.R. (3d) 536, at paras. 9–15.

[^4]: R. v. D.F., 2023 ONCA 584, O.J. No. 3994, at para. 57 per Hourigan. J.A.; affirmed in R. v. D.F., 2024 SCC 14, S.C.J. No. 14.

[^5]: David M. Paciocco, “Doubt about Doubt: Coping with R. v. W. (D.) and Credibility Assessment” (2017) 22 Can. Crim. L. Rev. 31, at p. 32.

[^6]: Paciocco, at p. 32.

[^7]: Paciocco, at p. 41.

[^8]: Paciocco, at pp. 45–46.

[^9]: Paciocco, at p. 46.