COURT FILE NO.: CR-23-00000008-0000 DATE: 20240906

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

His Majesty the King – and – A. G. Defendant

Counsel: L. Weis, for the Crown D. North, for the Accused

HEARD: May 13th, 14th, 15th, 17th, and 22nd, 2024

REASONS FOR JUDGMENT

McCarthy J.

Introduction

[1] A.G. is charged with four counts: two of sexual touching and two of sexual assault, all charges stemming from alleged sexual relations with the complainant S.R. between the dates of February 1, 2021, and November 29, 2021. Born on March 21, 2005, there is no doubt that S.R. was a minor at the time of these alleged offences.

Background

[2] A.G. was the foster father of S.R who was placed into the home of A.G. and his spouse M.G. (“the residence”) on or about January 25, 2021. S.R.’s social worker with CAS was T.R. S.R. was placed in the residence through the facility of P.H. who operated an agency called M.T.F.

[3] A.G.’s son R.G. lived in the residence until approximately May 2021. During the winter and spring of 2021, a handful of other foster children also came to reside in the residence for brief periods.

[4] On September 9, 2021, the A.G. and M.G. welcomed two-year-old twins into foster care. They are referred to as “the twins”.

[5] In early October 2021, S.R. made various complaints to the applicable government ministry about conditions in the residence. At about the same time, S.R. advised T.R. that she wished to leave the residence. T.R. conveyed that information to A.G. and M.G.

[6] On or about October 10, 2021, M.G. wrote to P.H. advising her that S.R. was unhappy and wished to leave the residence. M.G. added that T.R. had advised S.R. that her reasons for wanting to leave were insufficient and that more serious grounds were required to terminate the placement.

[7] A meeting was held at the residence on October 14, 2021, attended by S.R., P.H., T.R., M.G. and A.G. A number or rules for the residence were agreed to and implemented. They are referred to as “the rules”.

[8] Acting out of concern for the safety of the twins and for the fact that S.R. was no longer comfortable residing in the residence, M.G. provided 7 days’ notice asking that S.R. be removed from the residence. This notice was given on October 17, 2021.

[9] On November 29, 2021, S.R. left the care of A.G. and S.R., departing the residence following her disclosure to T.R. that S.R. and A.G. had been engaging in sexual relations throughout the 10-month placement.

[10] S.R. provided a statement to police on December 2nd, 2021. At that time, she furnished police with a pair of what she claimed to be a pair of her underwear. This garment was sent along to the Centre for Forensic Science (CFS) for testing. CFS retrieved a DNA sample from a deposit of semen found in the crouch of that garment. The DNA from the semen was ultimately matched to A.G. A.G. was arrested and charged with the index offences on December 8, 2021.

[11] All of the sexual assaults, save one, were alleged to have taken place at the residence.

Governing Authorities

R. v. W. (D.)

[12] Because A.G. testified and gave exculpatory evidence at trial, the court is bound to engage in the three-step process set down by the Supreme Court of Canada in R. v. W. (D.), [1991] 1 S.C.R. 742, at para. 28. First if I believe A.G., I must acquit; second if I do not believe the testimony of A.G. but am left with a reasonable doubt by it, I must acquit; third, even if I am not left with a reasonable doubt by the evidence of A.G., I must ask myself whether, on the basis of the evidence which I do accept, I am convinced beyond a reasonable doubt of A.G.’s guilt.

Motive to Fabricate by the Complainant S.R.

[13] As for the issue of motive for a complainant to concoct a story, I am guided by the words of Doherty J.A. who stated as follows at paras. 120-121 in R. v. Batte, [2000] O.J. No. 2184 (C.A.):

It is difficult to think of a factor which, as a matter of common sense and life experience, would be more germane to a witness’s credibility than the existence of a motive to fabricate evidence. Similarly, the absence of any reason to make a false allegation is a factor which juries, using their common sense, will and should consider in assessing a witness’ credibility.

What must be avoided in instructing a jury is any suggestion that the accused has an onus to demonstrate that a complainant has a motive to fabricate evidence, that the absence of a demonstrated motive to fabricate necessarily means that there was no motive, or finally, that the absence of a motive to fabricate conclusively establishes that a witness is telling the truth. The presence or absence of a motive to fabricate evidence is only one factor to be considered in assessing credibility.

Evidence of Young People

[14] I am also governed by authorities which pertain to the evidence of S.R. a person who was a minor at the time of the events she was recounting. In R. v. A.M., 2014 ONCA 769, 123 O.R. (3d) 536, the Court explained the standard to be applied to assessing evidence of adults who are testifying about events that happened when the witness was underage:

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.

The Allegations

[15] S.R. gave evidence at trial. Her statement was allowed into evidence pursuant to s. 715 of the Criminal Code, R.S.C. 1985, c. C-46. S.R. was 15 years old when she was placed into care at the residence. Following an initial intimate encounter with A.G. which involved tickling and kissing, S.R. began having sexual intercourse with A.G. within two weeks of her arrival. S.R. described how the sexual intercourse continued at regular intervals of 3-4 times per week. These acts would take place on both the bed and the floor of her upper-level bedroom, on the main floor couch, in A.G.’s basement “man cave”, and on the floor of the A.G./M.G.’s bedroom. The intercourse often took place on Fridays when the pair were alone in the residence. The encounters would sometimes take place as late as 2 or 3 in the morning. There was one occasion of sexual intercourse on a job site in Whitby. The illicit sessions would often be initiated and arranged through text messaging. S.R. recalled that the frequency of sexual encounters dwindled to 2-3 times per week after the rules were put in place in October 2021. S.R. provided a detailed description of the last sexual encounter. S.R. was concerned about what would transpire if she brought forth the allegations. She did not want there to be a fight. After a time, S.R.’s mental health began to deteriorate, and she wanted M.G. to know the truth.

[16] In early October 2021, S.R. advised T.R. that she did not want to reside in the residence any longer. S.R. did not want the ongoing relations with A.G. to continue but she did not wish to stir up problems or cause any harm; therefore, she came up with only “little” reasons why she wanted to leave the residence.

[17] S.R. had little recollection of the October 14th, 2021, meeting which resulted in the household rules being put in place.

[18] On November 29, 2021, S.R. texted T.R. to finally divulge the truth about the sexual relations. T.R. received the message later in the day and contacted S.R., telling her to remain at school until T.R. could pick her up. Later that day, S.R. returned to the residence to pick up her belongings.

[19] A series of text messages exchanged between S.R. and A.G. were identified by S.R. She testified that those text messages were exchanged as part of the ongoing sexual relations between the pair. The text messages span the dates of November 7th to November 27th, 2021.

Discussion

[20] R. v. W.(D.) would require me to first consider the exculpatory evidence of A.G. and ask whether I accept that exculpatory evidence or am left with a reasonable doubt about it.

[21] I am not prepared to base an acquittal upon the exculpatory evidence of A.G. His evidence had certain problems. His commentary on the context and meaning of the text messages was difficult to follow. Without any good reason A.G. failed to abide by the rules put in place in October 2021 for the protection of both him and the foster children. I find it difficult to believe that board games with friends and visitors were going on until the wee hours of the morning on school nights. I find his reasons for contacting R.G. in the wake of S.R.’s final text message to be suspicious and certainly not exculpatory. The court was never furnished with an explanation of why A.G. was concerned that S.R. would make something up “like she had in the past”.

[22] The second prong of W.(D.) directs me to consider the exculpatory evidence of A.G. and decide whether it leaves me with a reasonable doubt as to whether the alleged sexual encounters took place. Considering the manner in which the evidence was received as well as the setting, context and circumstances in which the alleged offences took place, I find it a more practical and comprehensive exercise to consider all of the evidence (including that of A.G.) and determine whether it leaves me with a reasonable doubt as to the guilt of A.G.

The Alleged Sexual Encounters

[23] S.R. generally made for a sympathetic witness. She was polite, courteous, soft spoken and responsive. She recounted in rich enough detail the history of her alleged sexual relations with A.G. Nonetheless, there were some concerning inconsistencies between her statement and her testimony. In her statement, she changed her evidence about the last sexual encounter, at first stating that A.G. had removed her clothing before then correcting herself and confirming that she removed her own pants. She gave conflicting information on whether A.G.’s penis was circumcised. This is hardly a detail on which there should have been any uncertainty given the number of occasions of intercourse alleged.

[24] There were other problems with her evidence which will be explained below.

[25] My overall concern with her narrative is that it strains credulity that more than 100 acts of sexual intercourse would have taken place between S.R. and A.G. over a period of 10 months in multiple rooms in the residence, at all times of day and night, often times while other persons were home, without once raising the suspicion of the people who lived there: teenage foster children Hannah, Christian and Jasmine, R.G. from January 2021 to May 2021 and M.G. working from home throughout.

[26] This is not about S.R.’s delay in reporting the sexual encounters (one of the twin myths). Rather, it is my common sense view that a hundred or more illicit acts, all of which required at least some degree of planning, discretion, quiet, secrecy, timing, and privacy could not have all taken place without there being at least one occasion when an adult or adolescent member of the household would have uncovered, come upon, overheard, discovered, or even suspected that an illegal act was taking place.

[27] The suggested number of occasions of these alleged illegal sex acts leaves me profoundly skeptical. Between her arrival in January 2021 and the late spring of that year, S.R. would have been in school most weekdays, the school being a return bus ride away. Although there was some evidence that she missed significant class time beginning in September 2021, she remained a full-time student. Moreover, there is evidence that the S.R. had a part time job. My skepticism is heightened by the state of the household engendered by the arrival of the twins in September 2021. Any privacy, freedom of action or tranquility enjoyed by the occupants of the household up to this point could have only been reduced by the presence of two active youngsters, one of whom hardly napped. The twins did not attend school and were not going to any kind of day care. They left the residence to see their birth mother no more than once per week. According to S.R. herself, the twins demanded the constant attention and supervision of M.G. and A.G.. And while it is true that the opportunity to have sexual encounters may have been enhanced when A.G. was laid up after his second surgery (during which period M.G. took time off work and took the twins for their biological parent visit on a few Fridays) this constellation of circumstances existed for only a very short passage of time during the 10-month period in question. The bulk of the 10-month period was characterized by M.G. working at home, S.R. in school, other persons populating the residence and A.G. being generally responsible for taking the twins to the biological parents meeting on Fridays.

What Was Not in the Text Messages

[28] As important as the content of the text messages is in the factual matrix, it is just as important to consider what they do not contain. S.R. recounted that she had no concern or fear of being caught in these alleged sex acts. If that were the case, why would at least one of the text messages not contain some language about, some allusion to, some details or description of, the sexual activity being engaged in by two people 3-4 times per week (later 2-3 times per week) over a period of 10 months?

[29] Again, this does not invoke a twin myth about a victim not reporting abuse. Quite the contrary: if S.R. was a willing participant in these acts who had no concern about the affair being found out, why would she not have casually, carelessly, or even absent-mindedly at least once included comments, details, plans, secrets, and sentiments about their shared sexual relations to the man she was involved with? And if S.R. was as possessive of A.G. as was indicated by her comment on October 14, 2021, that for her, A.G. was “My [A.]”, it would make sense that the text messages would contain some possessive overtones. They do not. There was no evidence that she was impeded, prevented, or discouraged from expressing her feelings or sentiments. Yet the text messages are utterly devoid of any references to sexual activity or emotional attachment. There is no innuendo, and nothing in the way of suggestive language, lewd commentary, or feedback in the wake of any one of the succession of encounters.

The Securing of the Underwear

[30] I am greatly troubled by the history surrounding S.R.’s securing of the underwear and the way it made its way into the hands of police. S.R.’s evidence on this point was contradictory and confusing. It appeared to change at trial. In her statement, she told police that the underwear was the only item she did not wash with “it” on it. But at trial S.R. stated that she had left the residence on November 29, 2021, with both clean and dirty clothing. Explaining that it was her aunt who suggested that she obtain a piece of her clothing, she went one to give a convoluted account about the clothing that she removed from the residence, how she proceeded to wash only three separate outfits and then found the underwear in a dirty laundry pile. Her suggestion that she normally did her laundry on a “Tuesday” was a little too convenient, since this would have been the day after she disclosed the sexual intercourse to T.R. and presumably the day after she received the suggestion from her aunt to secure a piece of clothing containing sperm. Yet she claims that this was the only piece of laundry that was dirty. This makes little sense. If S.R. picked the underwear up on Monday, with laundry day being the next day, how could that underwear have been the only dirty piece of laundry on that day? Logic would dictate that she would have plenty of dirty laundry about the day before Tuesday laundry day. When faced with the obvious contradiction in her evidence, S.R.’s facial expression noticeably changed. A sly smile emerged. It was obvious that she understood the importance of this part of her evidence. Her rather blithe explanation for why that one piece of underwear had not been laundered when just about every other piece in her wardrobe had been, was clearly ad lib and not persuasive.

[31] As well, I am troubled with S.R.’s suggestion that a CAS worker apparently attended with her as she was retrieving the laundry from the residence. S.R. could not identify the person. That CAS worker did not testify in court. Nobody else testified that a worker attended the residence with S.R. that day; certainly not T.R. who would have had knowledge of such a fact. I find that there is a distinct possibility that S.R. offered this evidence to make it appear that her securing of this crucial piece of evidence was witnessed, supervised and therefore legitimate and untainted. Clearly it was not. The truth is that no independent witness could testify that S.R. retrieved the underwear from her own belongings. There being no restrictions on S.R.’s access to either M.G.’s room or the laundry room, I find that S.R. could have just as easily selected a piece of M.G.’s underwear, knowing full well where to find it and being keenly aware that it might have traces of A.G.’s semen on it.

[32] I am left with the nagging suspicion that S.R., either independently recognizing that she needed evidence to support her story or acting upon the advice of her aunt, returned to the residence in that frame of mind. S.R. had unrestricted access to both M.G.’s room and the laundry room. S.R. could have easily collected and removed a piece of M.G.’s underwear without raising suspicion. The distinct possibility that she took a pair of M.G.’s underwear knowing that it would contain traces of A.G.’s DNA is raised on the evidence and cannot be easily dismissed.

CFS Testing and DNA

[33] There are other shortcomings in the evidence relating to the underwear: first there is no DNA sample linking the garment to S.R. In addition, there was no DNA sample drawn from M.G. which could serve to eliminate her as a candidate for ownership of the garment.

[34] This is not a criticism of the police or the CFS; but considering the defence advanced and the competing evidence as to the ownership of the underwear, this absence looms large. The CFS report acknowledges this limitation. It contains the following caveat: “DNA assumed to come from S.R. plus one male.” Nor did the evidence establish when A.G.’s semen would have been deposited on the garment. The evidence of M.G., which was challenged but not discredited during cross-examination, established that M.G. was engaging in sexual relations with her husband like any married couple. There is therefore no science linking the underwear to S.R.; nor is there any science eliminating M.G. as the owner of the underwear. The only evidence linking that underwear to S.R. came from S.R. And her evidence of why she decided to secure a pair of underwear, when and from whom the suggestion came from, the timing of when she did it, the fact that she had access to all rooms in the house, the fact that her securing of the underwear was unwitnessed, the fact that M.G. made a competing claim to ownership of the underwear all leave me with serious doubt about who the true owner was. The court received no independent, verifiable evidence of the size and weight of the respective claimants to the underwear in 2021. The best evidence of ownership that I have comes from M.G. who observed, inspected, and considered the actual underwear in open court and claimed it as her own.

No Evidence from S.R.’s Aunt

[35] I am greatly troubled by the absence of evidence from S.R.’s aunt. The missing detail from this disclosure witness about her conversations with S.R. on November 29, 2021, leaves an evidentiary gap into which I peer for answers to unposed questions. What precisely did S.R. divulge to her aunt? Was it consistent with what she told T.R. and/or R.G. that same day? When did she have that conversation? What was the substance of the advice offered by the aunt about obtaining evidence? Was the conversation before or after S.R. sent the text to T.R.? Why did the aunt not contact T.R., M.G., CAS or for that matter the police? How could some of the conversation not have been reduced to or contained in a text or email message? Was the conversation with her aunt prior to or after S.R.’s conversation with R.G.? Why would T.R. not have offered the same advice to S.R. about obtaining DNA from a piece of clothing? T.R. was her case worker and by her own evidence the person most responsible for her well-being.

[36] The Crown contends that S.R. would have had to have been very sophisticated to have hatched a plan to seize a piece of M.G.’s underwear. Not necessarily. If S.R. was encouraged by her aunt to obtain a piece of underwear to corroborate her story, it is not difficult to imagine that S.R. well understood that A.G.’s semen would undoubtedly be found on a piece of underwear from a person with who he had engaged in recent sexual relations with.

The Text Messages in Context

[37] The text messages themselves, viewed from the presumption that sexual relations were taking place between A.G. and S.R., could be interpreted as secretive communications referring to sexual encounters. From any other starting point, the texts could be viewed as ongoing, rather banal communications between members of a household. Both interpretations are equally plausible. I note that there is nothing explicitly sexual contained in the messages: no suggestive emojis, no slang, no lingo, or sexual parlance. One would assume that a sexual predator would be cautious enough to leave out descriptive or suggestive language in his text messages to his minor victim; but the same cannot be said for S.R. who admittedly had no concern about being caught.

[38] And why would A.G. send texts to begin with if cell phone calls were an effective means of communicating and planning sexual encounters without leaving any written text as evidence?

[39] Viewed in context, the text messages, while suspicious, are equivocal and can be explained by the household dynamics, the strained relationship between S.R. and her foster parents, both parties’ immature and irresponsible attempt to get around the rules that had been imposed in October and the fact of the troubled S.R. feeling unwanted and left out (viz the texts exchanged on Saturday November 27, 2021 which focus on S.R. having been left out of a family outing and a concerned A.G. offering an explanation and an apology).

A.G.’s Deletion of the Texts

[40] A.G.’s deletion of the texts and his removal of S.R.’s contact information could be viewed as evidence of a guilty conscious, an attempt to conceal evidence; in short after the fact conduct tending to support guilt for crimes alleged. I am not convinced of that. A.G. struck me as an intelligent and practical man. He must have understood that deleting texts and contacts from his end would not eliminate or even compromise those texts as evidence given that a record of them would remain with the recipient. Deleting the S.R. as a contact would have no impact whatsoever on the availability of those text messages as evidence.

[41] I accept as plausible A.G.’s explanation that he felt compelled to delete the text history and contact information for S.R. It would make sense given the enormity of the allegations against him that he should cut off all contact with his accuser. The fact that M.G. did not delete the contact is understandable given that she was not the target of the allegations.

[42] Moreover, if A.G. did have a guilty conscious or feared that the text messages he had exchanged with S.R. in the weeks preceding the allegations might be inculpatory, why would he not have deleted the text messages simultaneous with his conversation with R.G. in which he expressed his concerns to R.G. that S.R. was going to invent some story? There is no evidence that he deleted the messages or the contact until the allegations were levelled against him days later.

S.R.’s Motive to Fabricate

[43] The entire history of S.R.’s status at the residence following the arrival of the twins suggests that S.R. had become unhappy with the household dynamics. This was corroborated by both T.R. and P.H. who provided evidence that I found to be both independent and reliable. There is a lengthy email from M.G. to T.R. dated November 10, 2021, in which the former sets out her concerns over S.R.’s recent behavior: marijuana use, weekly meltdowns, absenteeism from school, complaints about the twins, non-compliance, invasion of private space. These are indicia of a young person who was unhappy with her living situation. This feeds into the notion that S.R. had a motive to find reasons for her removal. S.R.’s recollection was that T.R. had advised that the reasons she had provided in October 2021 did not constitute valid reasons for removal from the placement. The reasons that S.R. had given had led to a meeting, some discussion, the imposition of some rules but not what she really sought: her removal from the residence. I would infer that by mid-October 2021, S.R. had formed the belief that something far more serious than what she had complained of to date would be required to secure her wish.

[44] Given its proximity in time to the allegations being made two days hence, S.R.’s last text message dated November 27, 2021, reading “ Im actually done i want to leave and I’m going to do what i have to do to leave ” demands some contextual analysis.

[45] This message supports the possibility of S.R. being motivated to fabricate a story. The context was this: one, the household had become insupportable for S.R. because of the twins, the new rules, and her feeling of being neglected by M.G. and A.G.; two, S.R.’s earlier reasons to be removed from the placement (the food, lack of privacy) had proven insufficient to result in her removal; and three, S.R. reiterated her wish to be moved in a text message to A.G. on November 9: “I want u and M to tell cas to put me somewhere else”.

[46] It is well within the realm of reasonable possibility that S.R., a young person in foster care wishing to change her circumstances and feeling powerless to do so after previous attempts, might well have concocted a story which she knew would lead to the desired outcome. On the evidence before me, I cannot exclude that possibility nor even banish it to the realm of the unlikely. It forms part of my consideration when considering reasonable doubt.

The Text Messages: A Small Sample Size

[47] The text messages began on November 7, 2021, and culminated on November 27, 2021, a period comprising less than three weeks. This is a small sample size, representing approximately 7% of the time over which these assaults are alleged to have taken place. I was offered no explanation why no text messages were put into evidence prior to November 7, 2021. S.R. simply stated that she was not sure if she provided all the text exchanges to police; she was similarly uncertain as to whether she texted A.G. prior to November 7, 2021.

[48] This makes no sense. S.R. was clear in her testimony that at least some of the sexual encounters were arranged by text message. I cannot and will not speculate on any evidence I did not see. That said, the court is left wondering why a host of text messages would not exist over a period of 10 months during which A.G. and S.R. were allegedly arranging sexual encounters in the identical way they were arranged between November 7 and November 27, 2021.

[49] I can only infer that any text messages exchanged during the preceding 9 months would be so infrequent or equivocal, or both, that they would tend to undermine the overall believability of the narrative that pre-arranged sexual encounters were going on 3-4 times per week.

Where are the Call Logs?

[50] If the sexual encounters were arranged by either text messages or cell phone calls 3 to 4 times per week before October 14 and 2 to 3 times per week after the October 14 meeting, I would have expected to see dozens of call logs between the two cell phones. But there were none. And while A.G. may have deleted conversations and content related to S.R.’s phone, the opposite was clearly not the case. We have a limited sample of text messages sent and received between S.R. and A.G. in November 2021 but no call logs. If even some of the some of the more than 100 sexual encounters were arranged between parties via cell phone calls, the court would have expected to see records of dozens of calls and received over at least some of the 10-month period. There was no explanation offered for the absence of this crucial and contemporaneous corroborating evidence.

The Evidence of R.G.

[51] I found R.G. to be very credible. He gave his evidence in a calm, relaxed and entirely believable fashion. He did not embellish or exaggerate. He was candid about his relationship with S.R.: he considered her to be weird; she was into black magic. R.G. sought to treat her like a sister, but the pair did not spend a great deal of time together. They did not share mutual friends or attend classes together at high school. Shortly before the day S.R. left the residence, S.R. confided to R.G. that she did not like M.G. and wished to be removed from the placement. R.G. found S.R. to be behaving strangely and noted that her tone and facial expressions had changed.

[52] A few days later, R.G. received a call from A.G. who related to him that S.R. was behaving peculiarly. A.G. expressed concern that S.R. would make up elaborate stories like she had in the past to secure her removal from the residence. R.G. told his father “ not to worry about it ”.

[53] R.G. and S.R. offered differing versions of the conversation in the school library on November 29, 2021. R.G. testified that S.R. divulged her intention to make up a story about a sexual relationship she was having with his father. S.R. also mentioned that she would acquire proof of either DNA or sperm. R.G.’s evidence was logical, detailed, internally consistent and a had ring of truth to it. I accept R.G.’s version of events and place weight on the detail he provided from that interaction with S.R. His version makes sense in the context of S.R.’s state of mind as reflected in her text to A.G. of November 27, 2021, and in her troubling behavior over the weeks preceding the events of November 27 to November 29. Taken together and in context, the substance of the conversation between S.R. and R.G. tends to support the real and substantial possibility that S.R. was prepared to both concoct a story and attempt to support it with evidence to facilitate her removal from the residence.

[54] I recognize that R.G.’s father is the accused. I acknowledge that R.G. was not living at the residence after May 2021. I have taken into account that his evidence on some minor or ancillary matters was inconsistent with that of M.G. and A.G. I have considered that he did not think it concerning enough to contact police when S.R. revealed to him that she was going to report the sexual relations with his father. Just as I take into account the age of S.R. at the time of the alleged events so must I take into account the age of R.G. at the time of the events. His evidence was not perfect, but I found it to be genuine and highly compelling.

[55] Perhaps R.G. should have reported the November 29 conversation with S.R. to police. Perhaps R.G. should have taken her threat more seriously. Perhaps R.G. should have done more than simply report it to his guidance counsellor. He was young at the time. He thought it was a joke. He did not take it seriously. He only told his parents about it in January or February 2022. I am not prepared to discount his evidence for what he did or did not do with the warning given by S.R. R.G. was not yet 18 himself when he had the interaction with S.R. In the aftermath of learning about the charges, he did report the conversation in relatively timely manner.

Evidence of M.G.

[56] M.G. was working at home most days throughout the 10-month period in question. Her office was on the main floor. M.G. testified that she left her office door open most of the time and took regular breaks. She had no set hours. I find it difficult to imagine that this woman, who struck me as sharp, attentive, responsible, practical, and wise, would have literally had the wool pulled over her eyes for months on end while her husband was having sexual relations with a 15-year foster child in various rooms of their home three to four times per week.

[57] Exhibit 12 was a series of emails between T.R. and M.G. They tend to demonstrate that M.G. was highly attentive and genuinely dedicated to S.R.’s welfare but also keenly aware of what was going on in the residence. Subjects covered in those emails included: biological parent visits, dental appointments, tutoring, access visits with S.R.’s aunt, summer school, vaccines, and S.R.’s safety at school.

[58] While some of M.G.’s evidence conflicted with that of others in the family and the household (R.G. as to his level of involvement and contact with the household and A.G. with respect to how often she kept the door to her home office closed), I see these as minor inconsistencies which do not undermine the portion of her testimony which was germane to the important issue: whether the alleged acts took place.

[59] I found the evidence of M.G. on key points to be for the mostly reliable. While she did tend to over-emphasize her claim to ownership of the underwear, I accept her evidence that it was indeed hers. I was not privy to the exchange between Crown counsel and M.G. when the underwear was shown to her outside of court. I have only her sworn testimony in court which I accept. That M.G. was theatrical on the issue may be true; but it was an important piece of evidence, and I cannot fault her for wishing to emphasize the point and to have it brought home forcefully. Passion and emphasis do not in this case undermine reliability.

[60] Nor was I made aware of any previous statement made by M.G. to police or under oath which contradict her ownership claim. M.G. was not afforded the opportunity to view the underwear at the time of her husband’s interview. She could hardly be expected to have claimed ownership to a garment she never saw. M.G. was never asked to submit a DNA sample. It seems to me that the first real opportunity for her to comment on ownership to that underwear was at trial. Without any evidence that M.G. would not have fit into that underwear in 2021, I have no reason to disbelieve her evidence. And when S.R. did have the opportunity to embellish on another critical subject she clearly did not. She must have understood that it was important to state that she was having sexual relations in and around the time of November 29, 2021, in order to connect the semen to her clothing. Rather than exaggerating that the couple engaged in sexual activities nightly or that she distinctly remembers intimate relations on that critical weekend preceding S.R.’s allegations of November 29, 2021, M.G. offered the court a moderate, even, and what I find to be reliable summary about her sexual relations with her husband.

The Evidence of T.R. and P.H.

[61] The Crown suggests that the evidence of T.R. and P.H. was largely neutral. I tend to agree except that some important information emerged from their testimony which bears consideration in the wider context.

[62] S.R. informed T.R. as early as October 4, 2021, that she wanted to leave the residence and live on her own. In a brief follow-up discussion, S.R. expressed frustration that the twins commanded the attention of M.G. and A.G., that S.R. was experiencing a lack of support and that the food cupboards were often locked. M.G. subsequently confirmed to P.H. that S.R., “….had mentioned to her worker that she is unhappy and wants to leave, she was told by her worker that the reason for wanting to leave is not sufficient [sic] it has to be something more drastic, she told [A.G.} that what she has to do to leave she would have to tell a lie and she is not going to lie.” (Exhibit 11).

[63] This evidence tends to support the state of mind of S.R.: anxious to leave the residence; understanding that her reasons were insufficient to prompt her removal; and a growing awareness that something more serious was needed.

[64] P.H. provided details of what took place and what was discussed at the October 14, 2021, meeting. She recalled how S.R. was exhibiting anger towards the twins and the special treatment they were receiving. This was sufficient to raise concerns for the safety of the twins and partly responsible for the rule that the foster children should remain on the main floor where two sets of eyes could always be on them. Again, this tends to illuminate S.R.’s state of mind as she searched for a way to escape from what had become an unacceptable domestic environment.

[65] As well, P.H. had a distinct recollection of S.R. stating that A.G. had been the only man she had known to have treated like a father and who had not been sexual towards her. S.R. denied that her statement that day included anything about A.G.’s appropriate conduct. I am not of course concerned that S.R. denied sexual involvement with A.G. at the time: this would run afoul of one of the twin myths. Nonetheless, S.R.’s denial of having stated something so specific about the propriety of A.G.’s conduct stands in sharp contrast to the evidence of the “neutral” witness P.H., whose evidence I accept. I can only conclude that S.R. was being less than truthful in an effort to lend credulity to the balance of her narrative.

A.G.’s Denial of Sexual Relations versus S.R.’s narrative of events

[66] I do not accept all of A.G.’s evidence any more than I accept all the evidence given by S.R. I found each of them prepared to shade their evidence to lend support to their positions. I found each of them to be clever, careful, and street smart in their own respective ways. As I stated above, A.G.’s flat denial of the sexual relations with S.R., taken by itself, would not have allowed me to find him not guilty. However, his emphatic, repeated and steadfast denials taken together with his explanations for the timing and content of the text messages tend to support a reasonable doubt in his favor. R.G.’s exculpatory evidence, on its own, would be insufficient to ground an acquittal. Taken together with the other evidence and the absence of evidence which I have identified, it forms part of the factual matrix which, viewed globally, leaves me with a reasonable doubt that A.G. is guilty of the offences charged.

Conclusion

[67] The foregoing findings leave me with a reasonable doubt that the sexual relations described by S.R. in fact happened.

[68] I find that there is real and substantial possibility that S.R., who was determined to leave the residence soon after the arrival of the twins in September 2021 but whose reasons for wanting to leave had proven insufficient, had a real motive to fabricate a story of a sexual relationship with A.G. knowing that this would bring about the desired outcome. To support her story, S.R. understood or was advised that she would need evidence. She decided to secure and produce to police a piece of clothing which she supposed would contain A.G.’s sperm and therefore his DNA. There is a real and substantial possibility that the underwear in fact belonged to M.G.

[69] I do not accept the Crown’s submission that S.R. had no reason to maintain her narrative at trial if the events recounted did not take place. Few people would come forward to admit that they made false allegations of the kind in question here. If this was a fabrication of a story designed by S.R. to facilitate her removal from the household, she certainly had no motive or incentive to recant: after all, her relationship with the family has been severed for the better part of three years.

[70] This distinct and reasonable possibility of a fabrication is supported by the evidence which I have accepted and leaves me with a reasonable doubt as to the guilt of A.G. on the indictment before the court. As a result, I find A.G. not guilty on all four counts and there shall be an acquittal entered accordingly.

[71] The accused is free to go.