Court File and Parties

COURT FILE NO.: CNJ 101545 DATE: 2024/01/24

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING - and - T.A. Defendant

Counsel: Balsam Bashi, Counsel for the Crown David Lang, Counsel for the Defendant

HEARD: January 22 and 23, 2024

PUBLICATION RESTRICTION NOTICE

By court order made under subsection 486.4(1) of the Criminal Code, information that may identify the persons described in this judgment as the complainant and the accused may not be published, broadcasted or transmitted in any manner. This judgment complies with this restriction so that it can be published.

REASONS FOR JUDGMENT

GIBSON J.:

Overview

[1] T.A. is charged with: one count of sexual assault contrary to s.271 of the Criminal Code against R.T.; and one count of sexual interference contrary to s.151 of the Criminal Code against R.T. The offences are alleged to have occurred in Kitchener between June 30, 2020, and April 1, 2021.

[2] T.A., now 74, was the neighbour of R.T. The complainant R.T., now 13, was 10 years old at the relevant time period covered in the Indictment. R.T. was friends with T.A.’s children, and used to play with them in T.A.’s residence, in a nearby park, and at a nearby swimming pool.

[3] The trial has been proceeding as a judge-alone trial on January 22 and 23, 2024.

[4] The Crown presented evidence from one witness, the complainant R.T., who gave her evidence by video link from outside the courtroom. Part of her evidence was comprised of her video recorded statements to police given on April 2 and 7, 2021, which she adopted during her testimony at this trial and which, pursuant to s. 715.1 of the Criminal Code, were incorporated into her evidence at this trial.

[5] The Defence called the accused person T.A.

[6] The evidence of the complainant R.T. may be succinctly summarized as follows. R.T. testified that T.A. “humped” her from behind by briefly pressing his penis against her “butt” while she was playing a game of hide and seek with his children at his residence; that while at the local swimming pool, he tried to put his hand inside her bathing suit bottom, and that he touched her vagina while in the deep end of the pool; and that, while playing with his children in the basement of his residence, he made her sit on his lap and tried to pull her on top of his penis while sitting in a chair.

[7] T.A. gave evidence and denied that he touched R.T. in the manner alleged, and adamantly insisted that there was never any sexual purpose in his touching of R.T. at any time.

Law

[8] The first legal issue upon which I must instruct myself relates to the presumption of innocence and the legal standard of proof beyond a reasonable doubt.

[9] It is fair to say that the presumption of innocence is perhaps the most fundamental principle in Canadian criminal law, and the standard of proof beyond a reasonable doubt in order to displace the presumption of innocence is an essential part of the law that governs criminal trials in this country. Under Canadian criminal law, every person charged with an offence is presumed to be innocent until the prosecution proves his or her guilt beyond a reasonable doubt. An accused person does not have to prove that he or she is innocent. It is up to the prosecution to prove its case on each essential element of the offence beyond a reasonable doubt. An accused person is presumed innocent throughout his or her trial until the trier of fact, weighing all of the evidence, makes their determination at the end of the trial.

[10] The standard of proof beyond a reasonable doubt does not apply to the individual items of evidence or to separate pieces of evidence that make up the prosecution’s case, but to the total body of evidence upon which the prosecution relies to prove guilt. In order to secure a conviction, it is incumbent on the prosecution to prove each essential element of the offence charged to the standard of proof beyond a reasonable doubt. The burden or onus of proving the guilt of an accused person beyond a reasonable doubt rests upon the prosecution and it never shifts to the accused person.

[11] The Court must find an accused person not guilty if it has a reasonable doubt about his or her guilt on all the essential elements of the offence after having considered all of the evidence.

[12] The term “beyond a reasonable doubt” has been used for a very long time. It is part of our history and tradition of justice.

[13] In R. v. Lifchus, [1997] 3 S.C.R. 320, the Supreme Court of Canada proposed a model jury charge on reasonable doubt. The principles laid out in Lifchus have since been applied in a large number of Supreme Court and appellate court decisions. In substance, a reasonable doubt is not a far-fetched or frivolous doubt. It is not a doubt based on sympathy or prejudice; rather, it is a doubt based on reason and common sense. It is a doubt that arrives at the end of the case, based not only on what the evidence tells the court, but also on what that evidence does not tell the court. The fact that the person has been charged is no way indicative of his or her guilt.

[14] In R. v. Starr, [2000] 2 S.C.R. 144, at para. 242, the Supreme Court of Canada declared that:

... an effective way to define the reasonable doubt standard for a jury is to explain that it falls much closer to absolute certainty than to proof on a balance of probabilities....

[15] On the other hand, it should be remembered that it is nearly impossible to prove anything with absolute certainty. The prosecution is not required to do so. Absolute certainty is a standard of proof that does not exist in law. The prosecution only has the burden of proving the guilt of an accused person beyond a reasonable doubt. To put it in perspective, if the court is convinced, or would have been convinced, that the accused is probably or likely guilty, then the accused would be acquitted since proof of probable or likely guilt is not proof of guilt beyond a reasonable doubt.

[16] The second legal issue is the assessment of the testimony of witnesses. Evidence may include testimony under oath or solemn affirmation before the court by witnesses about what they observed or what they did. It could be documents, photographs, videos, maps or other items introduced by witnesses, the testimony of expert witnesses, formal admissions of facts by either the Crown or the Defence, and matters of which the court takes judicial notice.

[17] It is not unusual that some evidence presented before the court may be contradictory. Often, witnesses may have different recollections of events. The court has to determine what evidence it finds credible and reliable.

Credibility and Reliability

[18] Credibility is not synonymous with telling the truth, and the lack of credibility is not synonymous with lying. Many factors influence the court’s assessment of the credibility of the testimony of a witness. For example, a court will assess a witness’ opportunity to observe events, as well as a witness’ reasons to remember. Was there something specific that helped the witness remember the details of the event that he or she described? Were the events noteworthy, unusual and striking, or relatively unimportant and, therefore, understandably more difficult to recollect? Does a witness have any interest in the outcome of the trial; that is, a reason to favour the prosecution or the defence, or is the witness impartial?

[19] The demeanour of the witness while testifying is a factor which can be used in assessing credibility; that is, was the witness responsive to questions, straightforward in his or her answers, or evasive, hesitant or argumentative? However, demeanour must be assessed with caution, and should be assessed in conjunction with an assessment of whether the witness’ testimony was internally consistent, that is, consistent with itself, and externally consistent with the other uncontradicted or accepted facts in the evidence.

[20] The Court of Appeal for Ontario has repeatedly cautioned against over-reliance on demeanour as a factor in assessing the credibility of witnesses and the reliability of their evidence.

[21] Minor discrepancies, which can and do innocently occur, do not necessarily mean that the testimony should be disregarded. However, a deliberate falsehood is an entirely different matter. It is always serious, and it may well taint a witness’ entire testimony.

[22] The Court is not required to accept the testimony of any witness except to the extent that it has impressed the court as credible. The Court may accept the evidence of a particular witness in total, in part, or not at all. In Clark v. The Queen, 2012 CMAC 3, Watt J.A. gave very clear guidance as to the governing principles in the assessment of credibility of witnesses:

First, witnesses are not “presumed to tell the truth.” A trier of fact must assess the evidence of each witness, in light of the totality of the evidence adduced at the proceedings, unaided by any presumption, except the presumption of innocence [of the accused person.]

Second, a trier of fact is under no obligation to accept the evidence of any witness simply because it is not contradicted by the testimony of another witness or other evidence. The trier of fact may rely on reason, common sense, and rationality to reject uncontradicted evidence. [A trier of fact may accept or reject, some, none or all of the evidence of any witness who testifies in the proceedings.]

[23] Credibility is not an all or nothing proposition. Nor does it follow from a finding that a witness is credible that his or her testimony is reliable. A finding that a witness is credible does not require a trier of fact to accept the witness’ testimony without qualification. Credibility is not co-extensive with proof.

[24] As Justice Watt indicated at para. 48 of Clark:

Testimony can raise veracity and accuracy concerns. Veracity concerns relate to a witness’ sincerity, his or her willingness to speak the truth as a witness believes it to be. In a word, credibility. Accuracy concerns have to do with the actual accuracy of the witness’ account. This is reliability. The testimony of a credible, in other words an honest witness, may nonetheless be unreliable.

[25] The concept of reasonable doubt applies to credibility.

[26] The term “credibility assessment” is a shorthand for the assessment of two qualities of a witness’s testimony: their credibility, and their reliability. It is helpful to distinguish the concepts from one another even though they are analyzed in tandem.

[27] Credibility and reliability are different. Credibility has to do with a witness’s veracity or honesty. Reliability has to do with the accuracy of a witness’s testimony.

[28] Accuracy engages consideration of the witness’s ability to accurately observe, recall and recount events in issue.

[29] Any witness whose evidence on an issue is not credible cannot give reliable evidence on the same point. Credibility, on the other hand, is not a proxy for reliability: a credible or honest witness may still give unreliable evidence.

W.(D.) Assessment

[30] The accused person T.A. gave evidence at the trial, and that evidence was a denial of most of the essential elements of the offences charged on the Indictment.

[31] Given this, the Court must focus its attention on the analytical process specified in the reasons for decision of Justice Cory in the Supreme Court of Canada case of R. v. W.(D.), [1991] 1 S.C.R. 742, for cases such as this where the accused has testified and that evidence essentially constitutes a denial of one or more of the essential elements of the offence.

[32] The principles in W.(D.) apply in cases where the accused gives evidence. However, the principles of W.(D.) will also apply in any case where a crucial issue turns on credibility: R. v. F.E.E., 2011 ONCA 783, per Watt J.A. at para. 104. The W.(D.) analysis applies not only to an accused’s testimony, but also to other exculpatory evidence that emerges during a trial that relates to a vital issue: R. v. B.D., 2011 ONCA 51, per Blair J.A. at paras. 113-114, and R. v. Cyr, 2012 ONCA 919, per Watt J.A. at para. 50.

[33] The guidance in W.(D.) provides as follows:

a. first, if I believe the evidence of the accused, then I must acquit;

b. second, if I do not believe the testimony of the accused but am left in reasonable doubt by it, I must acquit; and

c. third, even if I am not left in doubt by the evidence of the accused, I must ask myself whether, on the basis of the evidence that I do accept, I am convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

[34] In R. v. J.H.S., [2008] 2 S.C.R. 162 at paragraph 12, the Supreme Court of Canada quoted approvingly the following passage from R. v. H.(C.W.) (1991), 68 C.C.C. (3d) 146 (B.C.C.A.) where Wood J.A. suggested the additional instruction:

I would add one more instruction in such cases, which logically ought to be second in the order, namely: “If, after a careful consideration of all the evidence, you are unable to decide whom to believe, you must acquit.”

[35] Helpful guidance on the application of these principles has been given by Justice David Paciacco, writing extra-judicially, in ‘Doubt About Doubt: Coping with R. v. W.(D.) and Credibility Assessment’, (2017) 22:1 Can Crim L Rev 31.

[36] In popular parlance, one often hears trials such as this described as “he said/she said” matters. One must be careful not to unreflectively adopt this notion, as framing it this way is too simplistic and may lead one into error in understanding the task of the trier of fact. This trial is not a credibility contest between the complainant and the accused, in which one simply chooses whose version one prefers. The lack of credibility on the part of the accused does not equate to proof of his guilt beyond a reasonable doubt. The persistence of a reasonable doubt is incompatible with a finding of guilty.

[37] I will now address several issues that may potentially arise in the trial of alleged sexual offences.

Sexual Offences Myth-Based Reasoning

[38] It must be acknowledged that trials do not take place in a historical, cultural or social vacuum. Before turning to a discussion of the specific elements of the offences with which T.A. is charged and the evidence that relates to those elements, one must adopt caution against approaching the evidence with unwarranted or stereotypical assumptions that may be holdovers from a past era, as to what is or is not sexual assault, what is or is not consent, what kind of person may or may not be the complainant of a sexual assault, what kind of person may or may not commit a sexual assault, or what a person who is being, or has been, sexually assaulted will or will not do or say.

[39] My purpose in doing so is to ensure trial fairness. It is not to privilege the rights of the complainant over the accused. The objective rather is to identify specific biases, prejudices, and stereotypes that may reasonably be expected to arise in a particular case and attempt to remove them from the deliberative process in a fair and balanced way, so that they do not distort the fact-finding process.

[40] There is no typical victim or typical assailant or typical situation or typical reaction.

[41] Unfortunately, myths and stereotypes regarding complainants in sexual assault or other sexual offence cases still exist in society. Such myths and stereotypes are entirely unfounded and have no place in a court of law. Such myths and stereotypes should not be considered when deciding this case.

[42] In particular, the myth that complainants in sexual offence cases have a higher tendency than other complainants to fabricate allegations based on “ulterior motives” and are therefore less worthy of belief, is not supported by social science, the law, or judicial experience. It is a myth. There is no basis to believe that sexual offence complainants are more likely to fabricate allegations than complainants of any other type of crime. The Supreme Court of Canada has clearly stated that sexual assault complainants should not be treated as inherently suspect.

[43] No inference should be drawn regarding a complainant’s credibility that is based on assumptions about how a victim of a sexual offence is “supposed” to react to the assault.

[44] It is a myth that failure to fight back means that no sexual assault occurred. Complainants know that there is no response on their part that will assure their safety.

[45] It is also a myth that failure to scream or call out means that no sexual assault or other sexual offence occurred or that the complainant consented. There is no “right” way to respond during a sexual assault. It would be stereotypical to assume that sexual assault victims tend to scream for help. Some will, others will not.

[46] It is also a myth to expect that a complainant will change her or his behaviour or take steps to avoid her or his abuser. The Supreme Court has clearly stated that the lack of avoidant behaviour on the part of a complainant is not relevant in a sexual assault trial. It would be an error to conclude that a complainant is less worthy of belief because she failed to avoid having contact with the accused. To do so would be to rely on the myths that a complainant will take steps to avoid her or his abuser or immediately tell someone what had occurred.

[47] As I have stated, there is no inflexible rule on how people who are the victims of trauma, like sexual assault, will behave. Some will make an immediate complaint, some will delay making disclosure of what happened to them, while some will never make disclosure. Some victims may disclose details incrementally, at different times. Some details may never be disclosed. Reasons for delay or incremental disclosure are many and may include embarrassment, fear, guilt or a lack of understanding and knowledge.

[48] In assessing the credibility of a complainant, the timing and fullness of the disclosure is simply one circumstance to consider in the factual mosaic of a particular case. Delayed or incremental disclosure, standing alone, should not give rise to an adverse inference against the credibility of the complainant.

[49] Just as there is no “right” way for a victim to behave during or after a sexual violation, there is no “right” way that a sexual offence occurs nor a “special” location in which it occurs.

[50] It remains impermissible, however, to reason that a complainant is telling the truth by the mere fact that she has pursued a complaint and shown willingness to undergo “the unpleasant rigours of a criminal trial.” To reason in this way would reverse the burden of proof and evince stereotype: R. v. JC, 2021 ONCA 131, at paras. 88-89.

[51] My purpose in articulating these concepts is not to support a particular conclusion but to caution myself against reaching conclusions based on common misconceptions. One must approach the evidence with an open mind and without preconceived ideas.

Essential elements of the offence of sexual interference (s.151)

[52] The essential elements of the offence of sexual interference are:

1. That the complainant R.T. was under 16 years old at the time;
2. That T.A. touched the complainant; and
3. That the touching was for a sexual purpose.

[53] As specified at s.150.1(1) of the Criminal Code, when an accused is charged with an offence under s. 151, it is not a defence that the complainant consented to the activity that forms the subject matter of the charge.

[54] As specified at s. 274 of the Criminal Code, if an accused is charged with an offence under s.151, no corroboration is required for a conviction.

[55] Touching is done for a sexual purpose where it was done for T.A.’s sexual gratification, or for the purpose of violating the complainant’s sexual integrity, including any act meant to degrade or demean the complainant in a sexual way.

[56] To determine the purpose of the touching, one should consider all the circumstances that surround it, including what was said and what was done. One should take into account the part of the body that T.A. allegedly touched, and the nature of the contact. Any words or gestures that accompanied T.A.’s touching should also be considered. One must consider whether the sexual nature of the touching would be apparent to a reasonable observer.

The essential elements of sexual assault s.271 Criminal Code

[57] The essential elements of the offence of sexual assault under s. 271 are:

1. That T.A. touched R.T. directly or indirectly;
2. That the touching by T.A. was intentional;
3. That the touching by T.A. took place in circumstances of a sexual nature;
4. That R.T. did not consent to the sexual activity in question (as specified at s.150.1(1) of the Criminal Code, when an accused is charged with an offence under s. 271 in respect of a complainant under the age of 16, it is not a defence that the complainant consented to the activity that forms the subject matter of the charge); and
5. That T.A. knew that R.T. did not consent (as already explained, he was aware of her age, which means that she was legally incapable of consenting).

Motive of complainants to lie

[58] In this case, there is no onus on T.A. to prove that the complainant had a motive to lie.

[59] It would be a reasoning error in assessing the credibility of an accused to consider his inability to explain why a complainant would lie.

[60] There is a distinction between the absence of evidence of a demonstrated motive to fabricate and affirmative proof of no motive to fabricate. The absence of evidence of a motive to fabricate must not be confused with the absence of such a motive. One must not conclude that complainants must be telling the truth because no motive to fabricate had been demonstrated. The absence of an established motive to fabricate is only one factor among many in assessing the complainant’s credibility.

[61] It is dangerous and impermissible to move from an apparent lack of motive to lie, to the conclusion that the complainant must be telling the truth. People may accuse others of committing a crime for reasons that may never be known, or for no reason at all.

[62] In R. v. Gerrard, [2022] 1 S.C.R. 35, the Supreme Court of Canada has succinctly summarized the relevant factors:

Two of these factors warrant a few additional comments. Lack of evidence of a complainant’s motive to lie may be relevant in assessing credibility, particularly where the suggestion is raised by the defence (R. v. Stirling, [2008] 1 S.C.R. 272, at paras. 10-11; R. v. Ignacio, 2021 ONCA 69, at paras. 38 and 52). Absence of evidence of motive to lie, or the existence of evidence disproving a particular motive to lie, is a common-sense factor that suggests a witness may be more truthful because they do not have a reason to lie. That said, when considering this factor, trial judges must be alive to two risks: (1) 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), as the latter requires evidence and is therefore a stronger indication of credibility — neither is conclusive in a credibility analysis; and (2) 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, at paras. 31-33).

Lack of embellishment may also be relevant in assessing a complainant’s credibility and often arises in response to suggestions that the complainant has a motive to lie. But, unlike absence of evidence of motive to lie, or the existence of evidence disproving a particular motive to lie, lack of embellishment 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. Lack of embellishment cannot be used to bolster the complainant’s credibility — it simply does not weigh against it. It may, however, be considered as a factor in assessing whether or not the witness had a motive to lie.

Testimony of children

[63] At the time of the alleged commission of the offences against her, R.T. was 10. She is now 13. She promised to tell the truth when she gave her evidence. The evidence of children must be approached on a common-sense basis bearing in mind their mental development, understanding and ability to communicate. As the trier of fact, I must determine how much or little to believe of her evidence. Relevant factors in this regard include: her capacity to observe; her capacity to recollect; her capacity to understand questions and frame intelligent responses; and her moral responsibility, whether she understands the duty to tell the truth, and the difference between truth and falsehood.

[64] Every person giving testimony in court, of whatever age, is an individual, whose credibility and evidence must be assessed by reference to criteria appropriate to her mental development, understanding and ability to communicate.

Analysis

[65] I start with an assessment of the credibility of the complainant. I found that R.T. was generally a credible witness, who understood the difference between truth and falsehood, but there were numerous inconsistencies in her evidence which detracts from its reliability.

[66] For example, she testified that T.A. “humped” her from behind by pressing his penis against her buttocks while standing in a doorway in his residence. But, as she acknowledged, he was much taller than she was at the time. R.T. said she is now 5’4” tall, and was shorter at the time of the incidents. Moreover, she was crouched down while playing hide and seek. It is implausible in this circumstance that, while standing, he could have pressed his penis against her buttocks.

[67] The circumstances R.T. described when she says T.A. touched her in the swimming pool are equally consistent with touching for a non-sexual purpose, when he assisted her when she was out of her depth in the deep end of the pool, or while playing with the children.

[68] In this case, it is not necessary to discuss every essential element, when there is one whose assessment is dispositive in this case. One common element between both of the offences charged on the Indictment is that the touching must have been done for a sexual purpose.

[69] The accused person T.A. gave evidence, and denied that he ever touched R.T. for a sexual purpose. I am left with a reasonable doubt by his testimony. Consistent with the analytical approach prescribed in W.(D.), this alone must lead to an acquittal.

[70] Moreover, even apart from this, there is no evidence that T.A. ever said anything during the incidents of touching, or that he ever manifested any conduct that was clearly consistent with seeking sexual gratification. He was always clothed, as was she. He never asked to see her genitals. He never exposed himself to her. He never asked her to do anything to him. The sexual nature of the contact would not have been apparent to a reasonable observer. The incidents are plausibly at least possibly also susceptible to innocent explanation.

[71] The rigour of the standard of proof beyond a reasonable doubt of all the essential elements of the offence is our society’s bulwark against the potential for wrongful convictions, and must not be diluted.

[72] Taken altogether, viewing the evidence as a whole, I cannot find beyond a reasonable doubt that the touching of R.T. by T.A. at the door in his residence while she was engaged in a game of hide and seek, in the basement of his residence, or at the swimming pool, was done for a sexual purpose.

[73] The Crown has not discharged its burden of proving all of the essential elements of the offences charged to the standard of proof beyond a reasonable doubt. It would be unsafe to convict on this evidence.

[74] Consequently, there will be an acquittal on both Counts of the Indictment.

Conclusion

[75] The Court finds T.A. not guilty of Counts 1 and 2 on the Indictment.

M.R. Gibson J.

Dated: January 24, 2024

COURT FILE NO.: CNJ 101545 DATE: 2024/01/24 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: HIS MAJESTY THE KING – and – T.A. Defendant REASONS FOR JUDGMENT M.R. Gibson J. Released: January 24, 2024