Court File and Parties

COURT FILE NO.: CR-23-10000648-0000 DATE: 20241031

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING – and – K.N.

Counsel: A. Leggett, counsel for the Crown P. Roachman, counsel for K.N.

HEARD: July 30, 31, August 1, and 2, 2024

REASONS FOR JUDGMENT

NEWTON-SMITH J.

Overview

1Mr. K.N. is charged with sexual assault and sexual interference. It is alleged that he sexually assaulted his stepdaughter T.S. on multiple occasions when she was between the ages of 14 and 18.

2T.S. was the only Crown witness. The accused did not call evidence.

The Evidence

Background

3T.S. was born in 2003. She had little contact with her biological father who is now deceased. In 2012 her mother and Mr. K.N. were married in India. During the first five years of their marriage Mr. K.N. remained in India waiting to be sponsored to come to Canada. T.S. lived in Canada with her mother. In 2017 Mr. K.N. came to Canada to live with them.

4T.S.’s mother and Mr. K.N. had four children together.

5T.S. was 9 years old when they married and 14 when Mr. K.N. came to Canada. When she testified at trial T.S. was 20 years old.

The Trip to Sri Lanka

6In the summer of 2018 when T.S. was 14 years old, she travelled to India and Sri Lanka with her mother, grandmother, and eldest sister. They were joined later by Mr. K.N.

7T.S. testified that, at first, she was distant with her stepfather. Having grown up without a father she was scared to let someone else in and wanted to keep boundaries. However, by the time that they went to Sri Lanka she had come to see him as a father.

8T.S. could not at first recall exactly when they went to India in the summer of 2018, she thought it was in May or June. Nor could she recall exactly how many sisters she had at the time but testified that she was, “pretty sure it was just one”.

9The trip began in India where they visited her mother’s family. They then went to Sri Lanka to visit her stepfather’s family. While in Sri Lanka they first stayed with Mr. K.N.’s family. At some point, T.S. thought it was in July, her grandmother joined them in Sri Lanka, and they went to stay at the home of her grandmother’s family. Mr. K.N. joined them later, T.S. thought in August. She testified that he was with them at both places but mostly at her grandmother’s family place in Sri Lanka.

10Her grandmother’s family place in Sri Lanka was a house in a village with 3 or 4 bedrooms, 2 living rooms and a kitchen. T.S. her grandmother, her mother, her sister, her stepfather and two uncles all stayed there.

The Kiss Incident in Sri Lanka

11T.S. testified that while they were at her grandmother’s family place in Sri Lanka her stepfather kissed her. He and her mother were arguing at the time and not speaking to each other. Her mother was outside, and her stepfather was in a bedroom. T.S. testified that she felt sorry for her stepfather and went to speak with him in the bedroom. At some point when they were in the bedroom, he kissed her on the lips. T.S. said something like, “what are you doing” but Mr. K.N. didn’t respond.

12T.S. testified that the kiss was inappropriate and made her uncomfortable. She described herself as shocked and testified that she left the room and avoided him for the next few days.

13When Mr. K.N. asked her what was wrong, T.S. asked him why he did it. She testified that at first, he didn’t respond, but later said that it was just a friendly kiss. T.S. testified that she told her stepfather that it was not a friendly kiss, and it made her uncomfortable. Mr. K.N. responded that he wouldn’t do it again and T.S. told herself, “ok, it was just a mistake”.

The Touching in Sri Lanka

14While she was testifying in chief, the Crown asked T.S. what happened after the kissing incident in Sri Lanka. T.S. responded, “there were times when he touched me and kissed me”. She went on to testify that Mr. K.N. had kissed her again days after in a similar way that did not feel like a friendly kiss and that he touched her, “bottom and top area”, meaning her vagina and breasts.

15T.S. had not, prior to the trial, disclosed that Mr. K.N. had touched her vagina or breasts while they were in Sri Lanka.

16The Crown asked when the touching occurred in Sri Lanka and T.S. responded, “I know it happened, but I can’t think, it’s hard to answer that now because it’s been years especially since I recorded it, it does taunt you a lot and it gets very overwhelming dealing with it alone and I have had to leave in in the past and not think about it”.

17T.S. was asked by the Crown if she could tell the court anything about the touching in Sri Lanka. She responded, “he definitely touched me at some point in both of those areas … it is hard to use the terminology especially around someone who has really betrayed my trust”. When asked what she could remember about the touching in Sri Lanka said, “not much”. The Crown moved on to another area telling T.S. she would “return to that later”.

18T.S. testified over the course of three days. Her evidence in chief lasted into the second day. On the second day the Crown again broached the subject of the touching in Sri Lanka, asking, “you told us about touching in Sri Lanka, what do you remember about the touching there?” T.S. paused before answering and then said, “can we come back to that”. When the Crown asked if there was a reason that she didn’t want to answer the question “now”, T.S. responded, “I just kind of need to ease into it”.

19Later when the Crown again returned to that area of questioning and asked, “what can you recall about bottom touching in Sri Lanka”, T.S. responded, “at the moment it is just very vague in my memory … like I can’t remember it right now”.

20Eventually T.S. testified that he had touched her under her clothes and put his fingers inside of her vagina. She thought that it happened in a bedroom during the day because at night she slept with grandmother who locked the door. Her stepfather slept in another room with her mother and sister.

21During cross-examination, when defence counsel began to question T.S. about the touching in Sri Lanka, T.S. went silent and then asked for a break.

22After the break defence counsel attempted to confirm that T.S. had testified in chief that Mr. K.N. had touched her vagina in Sri Lanka. T.S., appearing overwhelmed, responded, “I don’t recall”. When asked if she meant she didn’t recall if it happened at all T.S. responded, “I am just blanking out right now”. She was then asked if she agreed that her stepfather putting his finger in her vagina for the first time would be a significant event. T.S. responded, “I don’t know… it was significant after Sri Lanka”. This line of questioning continued with T.S. unable to answer and stating that she was anxious, unable to think at the moment and “blanking out”. After a few minutes T.S. said that she needed to review her statement and did not want to continue anymore that day.

The Return to Canada

23In October of 2018, after T.S. had turned 15 she, her mother, sister, and stepfather all returned to Canada. Her grandmother followed later. It was T.S.’s evidence that her grandmother returned shortly after the birth of her second sister in March of 2019.

24In Canada they lived in a building owned by her grandmother. The first floor of the building contained a restaurant. The second floor contained her grandmother’s unit and the third floor contained T.S.’s mother’s unit. There was a door which locked to her grandmother's second floor unit but not to their third-floor unit.

25Her grandmother’s unit had 3 bedrooms. One was her grandmother’s and two of her uncles lived in the other rooms. When she stayed at her grandmother’s T.S. slept in her grandmother’s bedroom. The unit had two washrooms and a kitchen.

26Her mother’s unit had a kitchen, a washroom, a balcony, a large bedroom and a small bedroom. There was no living room. When T.S. returned from Sri Lanka in October of 2018 there was a tenant who lived in the large bedroom. T.S., her mother, stepfather and sisters all shared the small bedroom. T.S., her mother and her sister slept on a matt on the floor. Her stepfather slept on the floor with a blanket.

27It was T.S.’s evidence that when her grandmother returned from Sri Lanka in March of 2019, T.S. mostly slept at her grandmother’s.

The Touching in Canada

28T.S. was asked in chief if there were any other touching incidents after she returned from Sri Lanka. She responded, “it continued from vacation and when we got back”.

29She was asked if it was within days, weeks or months of their return. T.S. responded, “I definitely think less than a week … it wasn’t long before I started getting uncomfortable again”.

30T.S. testified that back in Canada her stepfather, “groped me, touched me and kissed me” but that after her grandmother returned the touching incidents happened less frequently. When the crown asked how many times they happened after her grandmother’s return, T.S. responded, “more than five times, I don’t know a number.” She was asked how long between touching incidents. T.S. responded, “definitely not on a biweekly frequency but months apart”.

The Sleeping Arrangements in Toronto

31T.S. testified that, before Mr. K.N. moved to Canada to live with them, her mother had warned her not to get too close to him because he wasn’t her real father. Her mother told her that stepfathers, “may get thoughts of wanting to touch stepchildren”.

32It was T.S.’s evidence that her mother organised the sleeping arrangements and they changed often to accommodate the growing family. She testified that her mother was “looking out for her” and, “always put me in a place where he couldn’t touch me”.

33When they first returned to Canada, before her second sister was born, she and her stepfather slept at opposite ends of the bedroom. Because of this he couldn’t touch her while they were sleeping. However, T.S. testified that, “there were times when my sister moved to the other side of the room, and he was able to touch me”.

34After her second sister was born, the room became more crowded. T.S., her mother and sisters slept vertically in the room and her stepfather slept horizontally.

35Around the time that the twins were born the tenant left. T.S., her mother and all of her sisters moved to the large bedroom and Mr. K.N. slept in the small bedroom.

The No Frills Incident

36T.S. described an incident that occurred just after they had been to No Frills. She testified that she and her mum and sisters were unpacking the groceries. Her stepfather came up to her and squeezed her buttocks. T.S. testified that her mum did not see because she was busy with the groceries. She thought that this occurred before her grandmother returned from Sri Lanka. T.S. testified that this is what she had been referring to earlier in her evidence when she said that her stepfather had “groped” her.

The Attempted Fellatio – The Kitchen Incident

37T.S. also described an incident which occurred in the kitchen. She testified that she was kneeling on the floor getting a snack from the bottom cupboard. As she tried to stand up her stepfather appeared and pushed her head down on his exposed penis. T.S. ran away to the bedroom where her sister was.

38She testified that her mother was in the hospital at the time giving birth to either the twins or her second sister. When reminded that her second sister was born in March of 2019, T.S. testified that it must have happened when she was born because her grandmother was not yet back from Sri Lanka.

The “Bottom Touching” Incidents

39Initially T.S. did not want to talk about what she had described as the “bottom touching”. When the Crown returned to it, T.S. testified that Mr. K.N. had “fingered her” meaning he put two fingers inside of her vagina.

40At first T.S. testified that the “bottom touching” began when they were back in Canada, but her grandmother had not yet returned. When asked where she was T.S. responded, “it’s kind of hard to answer that”. When asked how many times it would happen, she responded, “this would happen at first like every few days for a while and then when I was able to avoid him when my grandmother returned it was every few weeks”.

41When asked what room in the house she would be in, T.S. responded “the small bedroom”. She testified that this would be at night when no one else was in the room.

42Shortly after she was asked, “when this would happen at night in the small bedroom who would be in the room?”. This time T.S. responded, “me, my mum and my sister, I’m not sure if my other sister was born”.

43T.S. testified that she would push his arm away but was too scared to call out for her mum. When asked why she was scared, she testified that she didn’t want to ruin the family and didn’t want her sisters to grow up without a father.

44After her grandmother returned from Sri Lanka, T.S. tried to avoid her stepfather by sleeping at her grandmothers. She would stay at her grandmothers until her mother asked her to come and sleep upstairs.

45The Crown asked T.S. if Mr. K.N. touched her “bottom part” again after her grandmother returned. T.S. responded “yes” and when asked when said, “at night”. She testified that “he would find a way to do stuff when my mum was not looking or she was away doing something”. She testified that it didn’t happen as much after her grandmother was back.

46The Crown asked T.S. what her sister and mothers were doing when he was touching her. T.S. responded that they were asleep. The crown asked why she didn’t wake them up. T.S. responded, “because I know my mum won’t do anything about it”. When asked why she said that T.S. testified that she wasn’t sure if she wanted to “say it” right now.

47At another point in her evidence in chief, T.S. testified that the touching also happened in the afternoon.

48The next day at trial, while L.S. was still testifying in chief, the Crown returned to the touching that had occurred in Canada. T.S. was asked, “once you were back in Canada, you talking about touching that happened at night and told us as well there were times that it happened in the afternoon, can you tell us anything about the times where it happened in the afternoon”. This was just after she had been asked what she could recall about the touching in Sri Lanka. T.S. responded, “it is also very vague”. She was asked what she meant by vague. T.S. responded, “there are some things that you can still remember from the trauma but you just can’t remember everything especially as time goes by”.

49T.S. was asked if she could recall anything about the touching that happened in the afternoons. She responded, “it’s very vague” and described it as happening anywhere in the unit that her mother wasn’t.

50When asked how many times it occurred in the afternoon as opposed to the night, T.S. testified that it happened mostly at night saying, “I do remember the night was the most because I would try to go to my grandmothers”. She testified that after her grandmother returned from Sri Lanka she had a place to go and it, “wasn’t as easy for him to get away with it”.

The Shower Incident

51T.S. also reported an incident that occurred in her grandmother’s unit in Toronto.

52She testified that she was showering in her grandmother’s unit one day when she heard someone trying to get in the bathroom door. She had locked the door to the bathroom and assumed that it was her sister fooling around. T.S. called out to her sister to leave her alone but it didn’t stop. She testified that the door then opened and Mr. K.N. came into the bathroom. T.S. was in the shower and naked. She testified that the tried to hide herself with the shower curtain, but he stepped into the shower with one foot and put his fingers into her vagina. She called out to her grandmother but Mr. K.N. said, “please just let me do it”. When she called out in a louder voice he left the bathroom.

53T.S.’s grandmother appeared and began yelling at Mr. K.N. Her grandmother asked T.S. if her stepfather had come into the shower. T.S. testified that she said no but her grandmother pointed to the wet footprints and asked her why she was lying.

54Her grandmother went up to her mother’s unit and T.S. rushed after her. She heard her mother and grandmother arguing. T.S. testified that Mr. K.N. was not allowed in her grandmother’s unit. Her grandmother was angry and demanding to know why Mr. K.N. was on her floor and in her bathroom with her naked granddaughter. Her mother and stepfather then got into an argument and her mother threw hot water on Mr. K.N.

55T.S. testified that she thought that Mr. K.N. was drunk at the time because his eyes were red, and he smelled like alcohol. She recalled that the incident occurred in May of the year that she went to the police.

56The Crown asked T.S. why she had lied to her grandmother about Mr. K.N. coming into the shower. T.S. testified that she had had an experience where she was raped when she was a “kid”, and “they” didn’t do anything about it. She testified that at that time her grandmother had said “no traditional person goes to the police”.

57T.S. testified that after the shower incident she stayed at her grandmothers until she went to the police in August of 2021. After that, the only time that she slept in her mother’s unit was when Mr. K.N. was working a night shift.

58The shower incident, which she believed happened in May of 2021, was something that T.S. did not recall until shortly before the preliminary inquiry. She testified that it was when she was preparing for the preliminary inquiry that she recalled the incident and told the police about it before court.

59The shower was the only incident that happened in her grandmother’s unit. T.S. agreed that it was significant because both her grandmother and mother were aware that something happened. It was also significant because of the fight which it caused that led to her mother throwing water on her stepfather. This incident in turn led to her mother being charged criminally and was the catalyst for the police speaking with L.S. about the alleged sexual abuse.

60T.S. testified that her uncle was also at her grandmother’s unit during the shower incident.

61It was suggested to T.S. in cross-examination that the argument between her mother and stepfather that day which led to her mother throwing hot water on him, was in fact about their relationship with her grandmother and the general situation in the household. T.S. responded that tension was already very high between her mother and stepfather, and they were not on speaking terms. She testified that her mother was angry because Mr. K.N. had come home from a party drunk.

The Last Incident

62T.S testified that the last time that Mr. K.N. assaulted her was the day before she went to the police in August of 2021. She testified that Mr. K.N. was also drunk on this occasion.

63At the time he and her mother were in a fight and not speaking to each other.

64T.S. testified that that day Mr. K.N. came home from work at 3pm, and then left again to go to a party. Her mother and sisters all went to sleep early. T.S. went to bed at around 11 pm.

65She, her mother and all four of her sisters were sleeping in the large bedroom at the time. Mr. K.N. had the small bedroom.

66That night T.S. was sleeping on a matt on the floor with one of her sisters at one end of the room. Her mother was sleeping at the opposite end of the room on a matt with her other sister. The twins, who were infants, were asleep in their cribs.

67The room was small, and the matts were just a few feet away from each other. The door to the room was on the end where her mother was sleeping. The cribs were positioned in front of the door blocking access to the sleeping matts. T.S. slept at the other side of the room away from the door and closest to the wall.

68T.S. testified that at around midnight she was woken up by her stepfather. He was stroking her hair. She asked him what he wanted, and he told her to just go back to sleep. T.S. moved to the bottom of the matt so that she was laying across the bottom perpendicular to her sister. She testified that Mr. K.N. said, “come here I need to tell you something”. He was kneeling on the floor at the head of the matt. He reached over her sister and pulled T.S. back to the head of the matt with his hand. He then reached under the blankets, put his hand inside of her pajamas and pushed his fingers into her vagina. T.S. testified that she pushed him off and threatened to cry out. Her mother started moving around in her sleep and Mr. K.N. left.

69T.S. testified that she went back to sleep thinking that he wouldn’t return but was awoken again. This time Mr. K.N. was kissing her on the lips. She pushed him away, but he lifted the blanket and tried to put his fingers in her vagina. As he was doing this, he put his other hand over her mouth to stop her from calling out, but she was able to call loudly enough that her mother woke up. T.S. testified that she was pretty sure that he also put his hand on her breast.

70T.S. testified that when her mother woke up, she glared at Mr. K.N. who was stroking her hair. Mr. K.N. told her mother, “My chest is hurting and I need her to step on my chest”. T.S. described herself as freaking out but acting like she was sleeping.

71After her stepfather left her mother asked T.S. if something had happened. She told her mother that he didn’t do anything. Her mother said don’t lie to me and went back to bed.

The Police Report

72The day after this last incident T.S.’s mother was arrested for assault with a weapon. The charge arose from the earlier incident when she had thrown hot water on Mr. K.N.

73T.S. was at home when the police came to the house to arrest her mother. At the house T.S. was told by the police that her stepfather was seeking custody of all five children, including her. T.S. testified that, in her view, her stepfather had demonstrated by complaining to the police about her mother, and being willing to leave the house, that he was willing to leave the family. At this point she no longer felt the need to protect her siblings from being without a father.

74T.S.’s mother was not taken to the police station at that time but was asked to go in the next day.

75The next day T.S.’s mother went to the police station. When her mother returned, she asked T.S. to go and speak to the police. When she did, T.S. was asked by the police if she had been sexually assaulted by her stepfather. It was then that she first made the allegations.

76When T.S. spoke to the police and made the allegations against Mr. K.N., she told the police that she did not want her mother to go to jail.

The Note

77T.S. was asked by the Crown if she had documented what was going on at the time that the assaults were happening. She responded, “there was one note that I submitted”. The note was produced in evidence. It was written on a Burger King napkin. At the top was written “butt grab” and underneath it “slap butt”. On the side of the napkin was written “weird and different when drunk finger rubbing in palm while handshake”.

78T.S. testified that she could not recall which incident she was referring to in the note. She confirmed that there had only been one incident, the No Frills incident, where Mr. K.N. had “grabbed her butt”. She testified that he had slapped her butt once that she could recall. T.S. recalled that this incident was “probably different from the butt squeeze” but must have been around the same time.

79The “finger rubbing in palm” referred to times when Mr. K.N. would shake her hand and rub his palm with his two fingers. She testified that she had not known what it meant at the time, but someone at “uni” told her that it was “like a sexual thing”. The “uni” conversation happened in the year or so before she testified at trial. When asked when the incident itself occurred, T.S. responded, “when he shook my hand, it was only two times, probably around vacation time”. In her evidence T.S. used the term “vacation time” to refer to the trip to Sri Lanka.

Law and Analysis

80The parties agreed that T.S. could testify about events that occurred in Sri Lanka. The Sri Lanka evidence was not admitted for the purpose of substantially proving any Criminal Code offences nor was it sought to be used as similar fact evidence.

81It is the position of the Crown that the evidence as to what occurred in Sri Lanka is relevant to the development of the relationship between T.S. and her stepfather and an important part of her narrative. It is the position of the defence that there was no sexual contact whatsoever between T.S. and Mr. K.N., in Canada or Sri Lanka.

82The question to be decided is, has the Crown established beyond a reasonable doubt that Mr. K.N. touch T.S. for a sexual purpose when she was 15 years old and/or when she was between the ages of 16 and 17.

83There is no issue that if Mr. K.N. touched T.S., while they were in Canada, in the sexual manner she described, the offences are made out.

84This is not a case which involves complex legal issues. Nor is it a case where there is evidence from multiple witnesses and sources. I have only the evidence of T.S. to grapple with. But deciding this case is far from a simple matter.

85T.S. was testifying as an adult sand her evidence is to be assessed by the criteria applicable to adult witnesses. However, she was testifying as to events that took place when she was a teenager, and I must consider any inconsistencies or lack of memory in the context of her age at the time of the events. The passage of time and the troubling nature of her evidence are factors to consider in assessing any lack of memory or inconsistencies in her evidence such as frequency, duration of events and precise details: R. v. G.H., 2024 ONCA 523, at para. 32; R. v. Pindus, 2018 ONCA 55, at paras. 34 and 37.

86In assessing the evidence of T.S. I must also bear in mind that there is no expected or proper way for a victim of abuse to act, particularly a victim of childhood abuse. Stereotypical reasoning plays no role in a fair assessment of the evidence.: G.H. at paras. 20-21.

87Similarly, as has been stated and restated by the Supreme Court of Canada:

There is no inviolable rule on how people who are the victims of trauma like a sexual assault will behave. Some will make an immediate complain, some will delay in disclosing the abuse, while some will never disclosure the abuse. Reasons for delay are many and at least include embarrassment, fear, guilt, or a lack of understanding and knowledge. In assessing the credibility of a complainant, the timing of the complaint is simply one circumstances to consider in the factual mosaic of a particular case. A delay in disclosure, standing alone, will never give rise to an adverse inference against the credibility of the complainant.

R. v. D.D., 2000 SCC 43 at para. 65.

The Evidence of T.S.

88T.S. is a young 20-year-old woman testifying as to events in her life when she was 14 to 17 years old. She is a university student who speaks three languages. She presents as both an accomplished young woman, and an anxious and unsophisticated witness.

89When T.S. testified at trial she gave evidence that Mr. K.N. had touched her vagina while they were on a family vacation in Sri Lanka when she was 14 years old. This was not information which she had explicitly told the police in either of her statements. Nor had she testified about it at the preliminary inquiry. Her evidence as to the details of the abuse in Sri Lanka was vague.

90It is the position of the defence that this evidence is inconsistent with T.S.’s statements to the police.

91It is clear that T.S. did not tell the police about any sexual touching in Sri Lanka other than the kiss. When it came to the “bottom touching” evidence, T.S. was largely unable to give any details. She referred to having “vague recollections” and often “blanked” when pushed for specifics.

92When I consider her evidence as a whole, it is difficult to say if this is delayed or piecemeal disclosure, an inconsistency or a consistent vagueness as to timing and detail. Given that she was testifying to events that, if true, occurred 4 to 6 years earlier when she was a younger teenager this aspect of her evidence, standing alone, does not give great cause for concern with respect to her credibility.

93T.S. did not disclose the shower incident until just before the preliminary inquiry. This incident is alleged to have occurred within months of her statement to the police. It was a significant event both in the sense that it was a significant act of sexual assault, putting his fingers in her vagina, but also for how it occurred and what happened immediately after. It is the only incident which occurred in her grandmother’s unit. According to T.S.’s evidence, it was the incident which precipitated her mother throwing hot water on her stepfather. Which incident in turn caused her mother to be criminally charged and ultimately led to T.S.’s disclosure to the police. In the context of her evidence as a whole, the delayed disclosure of this incident gives pause for concern.

94A witness's demeanour in court, as an aid in assessing credibility and reliability, must be approached with caution. In this case T.S. was on several occasions reluctant to answer questions. At times she asked for breaks when confronted with inconsistencies.

95I do not consider her demeanour generally to be particularly probative in the circumstances of this case. It is equally consistent with a victim who is uncomfortable and anxious delving into her abuse, as it is with a witness whose discomfort arises from uncertainty in her evidence and a lack of veracity. What is of some concern is that a request for a break almost always came when T.S. was confronted with inconsistencies in her evidence or newly made revelations. The request for breaks did not come with the same frequency and consistency when she was being questioned about particularly sensitive and invasive areas such as the details of the sexual assaults themselves.

96T.S.’s account of the shower incident, and the last incident, raise concerns that go beyond what might be explained by her age at the time, the passage of time and the difficult and embarrassing subject matter.

97T.S. testified that her grandmother was particularly vigilant with respect to her interactions with her stepfather. According to T.S., Mr. K.N. was not allowed in her grandmother’s unit. It was her grandmother’s unit where she went to escape Mr. K.N. Her grandmother’s unit had more rooms than her mother’s but neither unit was large. At the time of the shower incident both her grandmother and uncle were in the unit.

98There is no explanation as to how Mr. K.N. came to be in her grandmother’s unit, let alone how he could be standing at the locked shower door trying to get in without attracting the attention of at least her grandmother. T.S. was clear that she had locked the door, which is why Mr. K.N. was standing there for some time trying to get in. There is no explanation as to how he managed to unlock the door. There is no explanation as to how Mr. K.N. could have known that T.S. was even in the shower.

99T.S. testified that following the shower incident she never slept at her mother’s again unless Mr. K.N. was working an overnight shift. This is inconsistent with her evidence that the last incident occurred at night, while she was sleeping in the large bedroom in her mother’s unit. Mr. K.N., on T.S.’s evidence, was clearly not working an overnight shift that evening. T.S. testified that Mr. K.N. came home from work that afternoon at 3pm before going out again to a party.

100This is a significant inconsistency in T.S.’s evidence for which there is no explanation. She went to the police within a day or two of this happening. She was 17 years old at the time. She gave a statement to the police recounting this incident shortly after it is alleged to have occurred when the events would have been very fresh in her mind.

101I also find that there is an improbability about this evidence.

102The room in which T.S. testified that this last incident occurred, while larger than the “small” bedroom, was not a particularly large room. In it slept her mother, her 7-year-old sister, her 2 ½ year old sister and her 1-year-old twin sisters. T.S. shared a matt on the floor with her 7-year-old sister. Her mother and 2 ½ year old sister slept on the floor a few feet away. The twins slept in cribs in front of the door.

103T.S. testified that Mr. K.N. twice came into the room while they were all asleep. He physically pulled T.S. across the mattress on which she slept beside her sister, reaching over to put his hand inside her pajamas. According to T.S., he left the room when she called out causing her mother to stir, but then returned again and again assaulted her.

104T.S. had testified that her mother was concerned about her being around Mr. K.N. and organised the room such as to best protect her. It is difficult to see how, in these circumstances, he could have carried out two such physical assaults in such a small room with so many people sleeping in such close proximity.

Absence of Evidence

105The burden is on the Crown to prove its case beyond a reasonable doubt. Reasonable doubt can arise both from the evidence and from the absence of evidence. There is absolutely no requirement in law that a complainant’s evidence be corroborated. The very term “corroboration” is one “long since interred and unworthy of exhumation”. It is within the Crown’s discretion to call the witnesses it chooses. The evidence of a single witness may be sufficient to satisfy the Crown’s burden of proof. However, where the Crown does not call certain witnesses the exercise of that discretion can “carry the attendant risk of failing to meet the burden of proof”: R. v. H.A.K., 2015 ONCA 905, at paras. 11-13.

106There is no evidence here from either T.S.’s mother or grandmother to assist in understanding what appear to be significant improbabilities and inconsistencies in the account of the shower incident and the last incident.

Motive to Fabricate

107There is, in this case, strong evidence of a motive to fabricate. T.S. first disclosed to the police that she had been sexually assaulted by her stepfather shortly after her mother had been arrested for assaulting him. She was admittedly concerned that her mother might go to jail. She had also been told that Mr. K.N. wanted custody of her and her sisters. It is not speculative to say that T.S., at this time, had a strong motivation to turn the tables on her stepfather.

Conclusion

108T.S. was a young woman testifying about what would have been very difficult and traumatic events which began some six years earlier. She had difficulty remembering when some events occurred. Her disclosure of what occurred was piecemeal. All of this can be explained by her youth and the trauma of what she was testifying to. I also think that it is possible that some events have conflated in her mind. She was in many ways an extremely sympathetic and compelling witness.

109However, the inconsistencies and improbabilities in her account of the last two incidents, coupled with the presence of a motive to fabricate, are such that I am left with doubt as to whether those incidents occurred. This in turn leaves me unable to rely on her evidence as a whole to the degree of certainty required in a criminal trial.

110The burden on the Crown is high. Nothing short of proof beyond a reasonable doubt will suffice. I cannot in this case say, with the required certainty, that Mr. K.N. is guilty. I find Mr. K.N. not guilty of all counts.

Newton-Smith J.