REASONS FOR JUDGMENT
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
– and –
R.T.
Accused
Cecilia Bouzane, for the Crown
Samantha Robinson for the Accused
HEARD: September 5-9, November 22-23, 2023, oral decision given February 7, 2024
Restriction on Publication
Subject to any further Order by a court of competent jurisdiction, an Order has been made in this proceeding directing that the identity of the complainant and any information that could disclose such identity shall not be published in any document or broadcast in any way pursuant to section 486.4 of the Criminal Code of Canada.
REASONS FOR JUDGMENT
Rees J.
Overview
1The accused, R.T., is charged with sexual interference and with sexual assault against his granddaughter, A.B. The sexual interference is alleged to have happened between June 1, 1998 and August 4, 2006. The sexual assault is alleged to have happened between August 5, 2006 and August 5, 2008.
2The charge of sexual interference spans multiple alleged occurrences over more than eight years when the complainant was between the ages of five and 14. The charge of sexual assault spans multiple alleged occurrences when the complainant was between the ages of 14 and 15.
3The complainant provided the only evidence of the alleged sexual interference and sexual assault. The Crown also called her parents, who did not witness the alleged occurrences but who provided evidence regarding some of the circumstances surrounding the alleged occurrences.
4The accused did not testify and did not call any evidence. The defence says that the complainant is neither credible nor reliable. Further, the defence contends that the complainant fabricated the allegations because her grandfather left her father out of his will. Finally, the defence argues that the Crown engaged in an abuse of process by posing certain questions to the complainant’s parents during a midtrial witness preparation interview.
Issues
5This trial raises the following issues:
a. Is the complainant credible and reliable?
b. Was there an abuse of process?
c. Did the accused commit sexual interference?
d. Did the accused commit sexual assault?
Issue 1: Is the complainant credible and reliable?
6The complainant’s credibility and reliability are central to this trial. As discussed, the defence says that the complainant is neither credible nor reliable. Further, the defence contends that the complainant has a motive to fabricate the allegations because her grandfather left her father out of his will. I will address each of these arguments in turn.
7The term “credibility” has to do with a witness’s veracity, honesty, or truthfulness. The term “reliability” has to do with a witness’s ability to accurately observe, recall, and recount the events at issue: R. v. H.C., 2009 ONCA 56, at para. 41. I must consider both dimensions of the complainant’s evidence: R. v. Morrissey (1995), 1995 3498 (ON CA), 22 O.R. (3d) 514 (C.A.), at p. 526.
8After assessing credibility and reliability, I may believe all, some, or none of a witness’s evidence: R. v. François, 1994 52 (SCC), [1994] 2 S.C.R. 827, at p. 837.
Did the complainant fabricate the allegations because the accused left her father out of his will?
9In considering the accused’s contention that the complainant fabricated the allegations because the accused left her father out of his will, I have been mindful of the Court of Appeal’s caution that a “misplaced emphasis on motive overlooks the fact that motive is, at best, a secondary consideration, and offers limited assistance to either party when sexual offences are at issue. At trial, the chief task is – and must remain – whether the Crown has met its burden beyond a reasonable doubt”: R. v. M.S., 2019 ONCA 869, at para. 16.
10The Supreme Court of Canada has recently summarized the law in this area in R. v. Gerrard, 2022 SCC 13, 468 D.L.R. (4th) 389, at para. 4. The summary warrants being quoted in full:
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 SCC 10, [2008] 1 S.C.R. 272, at paras. 10-11; R. v. Ignacio, 2021 ONCA 69, 400 C.C.C. (3d) 343, at paras. 38 and 52). 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, 406 C.C.C. (3d) 39, at paras. 31-33).
11With that guidance in mind, I now turn to the defence’s allegation in this case.
12The defence put the suggestion to the complainant in cross-examination that she made up the allegations because her grandfather left her father out of his will. The complainant denied being aware that her father could have been in the accused’s will. She readily conceded that it would not be unusual for a father to leave money to a son, but she explained that her father only became acquainted with the accused when her father was 30, and that they never had a close relationship. The complainant further denied the suggestion that her parents were angry at learning they were not in the accused’s will. The complainant’s evidence was that they were not even aware that the accused had cancer. She only found out about his illness after she gave her statement to the police. She denied the suggestion that she complained to the police because she was angry over being left out of the will.
13I find the complainant credible in this regard. Her account was coherent and balanced during cross-examination. She fairly conceded it would not be unusual for a father to leave money to a son, but then contextualized why she was not aware that her father could have been in the accused’s will given her own family’s particular circumstances. Her answers were clear and firm. Further, her evidence on this issue is confirmed by her parents’ evidence.
14In this regard, the complainant’s father, C.D., testified that, to his knowledge, there was never any dispute over his father’s will. He also testified that he never asked A.B. to make up the allegations against his father. His evidence on this point was unshaken on cross-examination. He stated on cross-examination that the complainant did not tell him anything about questions posed at the preliminary inquiry. He stated that she told him that she had no right to tell him what was talked about during the preliminary inquiry. Nor was he aware of the complainant’s evidence at trial. He acknowledged the Crown’s questions regarding the will during his midtrial witness preparation meeting.
15On cross-examination, C.D. stated that he was surprised that he might be asked about his father’s will at trial. He testified that his name is not mentioned in the will and that has been the case for a long time. It does not bother him. He found out that he was not in the will when he met the accused. They were estranged until they reconnected when C.D. was in his thirties. At that time, C.D. testified that the accused told him that he would like to add him, but that the accused never talked about it again. That was the only time they discussed it.
16C.D. was not surprised to learn that he was not added to the will. He assumed that his inclusion as a beneficiary in the will had fallen through. Although he learned through the complainant that his father was ill in 2019 and that there was some concern that he may not live, he did not speak with his father again after he learned of what his father was alleged to have done to the complainant. He was not upset to be left out of the will; he stated that he did not want his father’s money. When challenged that he had accepted money from his father over the years, C.D. explained that he had earned this money by working for his father. Neither he nor E.F., the complainant’s mother, were upset at him for not being in the will. Nor did he expect his father to include the complainant in the will.
17I find C.D. to be credible on these points. His testimony was consistent with his estrangement from his father and the history of their relationship. It was also consistent with the complainant’s evidence that she only found out about the accused’s illness after she gave her statement to the police. Further, although I do not place undue weight on C.D.’s demeanour, he gave me no reason to doubt that he was testifying truthfully on these points.
18E.F. testified on cross-examination that she had heard from a friend of the family in Rouyn-Noranda that the accused had become very ill. She could not recall the name of the person who told her. She was not aware that he only had some months to live. She was not aware that C.D. and the complainant were not in the accused’s will. No one talked about the will.
19E.F. initially stated that this was the first time she was hearing about the will. She also initially stated that the complainant did not tell E.F. about her evidence or the questions put to her during the preliminary inquiry. After counsel for the accused refreshed her memory with the officer’s notes of their discussion, E.F. readily admitted that the complainant told her that she was asked about the accused’s will at the preliminary inquiry. She explained that she was not lying in giving her initial evidence; she simply did not recall that the complainant told her that she was asked about it at the preliminary inquiry. They had not discussed it again since.
20E.F. did not recall discussing any other evidence from the preliminary inquiry with the complainant. She denied having discussed the complainant’s evidence at trial. She also denied having discussed C.D.’s evidence at trial; she did not recall having spoken with C.D. about the will.
21I find E.F. to be credible on this point. Although she initially stated that this was the first time she was hearing about the will and that the complainant did not tell E.F. about her evidence or the questions put to her during the preliminary inquiry, I find that it was a lapse of memory, rather than a lie or an evasion. Indeed, as I discuss below, she was the one who volunteered this information to the investigating officer following her midtrial witness preparation meeting. She would not have done so had she intended to mislead. I also find that there is no evidence that she tailored her evidence or colluded with the complainant or C.D. to lie about the will.
22The defence argues that the complainant breached the witness exclusion order following the preliminary inquiry by telling her mother that she was asked about the accused’s will at the preliminary inquiry. The defence says I should take this into account in my credibility assessment of the complainant. The defence argues that this breach permitted the witnesses to tailor their evidence and was exacerbated by the Crown’s alleged breach of the witness exclusion order at trial by posing questions to C.D. and E.F. regarding the accused’s will during a midtrial witness preparation meeting. (I will return to this latter point below.)
23I have taken the complainant’s breach into account in assessing her credibility. The complainant should not have discussed the question with her mother. But her having done so does not, when I consider the complainant’s evidence in its totality, lead me to doubt her truthfulness on this point. The complainant’s evidence about the will is consistent with her parents’ evidence. It is also consistent with her family’s particular dynamics: that is, her father’s 30-year estrangement from his father, followed by a period where the accused and his son were not particularly close, and then C.D.’s subsequent re-estrangement from the accused when he learned about what his daughter alleged the accused did to her.
24Because the defence only learned about the complainant having spoken to her mother about the question after the complainant had testified, there was no opportunity for the complainant to explain. Neither the Crown nor the defence sought to recall the complainant. We do not know precisely what the complainant discussed with her mother. However, there is no evidence that the complainant and her mother tailored their evidence, and no evidentiary basis for me to draw this inference. Ultimately, the accused’s argument of tailoring their evidence is conjecture.
25To be clear, the accused did not put his will into evidence. The exclusion of the complainant’s father was a suggestion the defence put to the complainant, C.D., and E.F. I do not suggest that the accused had an obligation to prove the existence of the will and its contents or that the accused left out the complainant’s father. It is the complainant’s belief about whether her father was excluded from the will that matters to the alleged motive to fabricate.
26I am responding to the submissions put forward by the accused at trial. I do not suggest that the accused is required to demonstrate that the complainant has a motive to lie or explain why a complainant has made the allegations: Gerrard, at para. 4; R. v. Swain, 2021 BCCA 207, 406 C.C.C. (3d) 39, at para. 33. The onus remains throughout on the Crown to prove the charges beyond a reasonable doubt.
27In sum, I find that the complainant did not fabricate the allegations out of anger that her father was left out of the accused’s will. The evidence on this point, taken as a whole, does not raise a reasonable doubt.
28This is sufficient to dispose of the accused’s contention that the complainant was motivated to fabricate her evidence over her father being left out of the accused’s will. In coming to this conclusion, I have not considered whether the Crown rebutted the defence suggestion of recent fabrication by leading evidence of a prior complaint. Nevertheless, given that the issue was fully argued, I will now turn to it.
Did the Crown rebut the defence suggestion of recent fabrication?
29The Crown led evidence through the complainant and E.F. of the complainant having made a complaint to her mother on her 18th birthday. The defence did not object to the evidence of prior complaint when the Crown raised it through the complainant. Nor did the defence object to the evidence of prior complaint when the Crown raised it through E.F. However, I questioned the admissibility of the evidence when the Crown raised it through E.F. The defence agreed the prior consistent statement was admissible for the purpose of rebutting the suggestion of recent fabrication but argued that the Crown should not be allowed to ask questions regarding the contents of the prior consistent statement. I disagreed and allowed the Crown to elicit the content of the prior statement, not for the truth of its contents but so that the court would know whether the complainant’s prior statement rebutted the allegation of recent fabrication.
30Prior consistent statements are declarations made by witnesses before trial that are consistent with the testimony they give at trial. Prior consistent statements are generally inadmissible: David M. Paciocco, “The Perils and Potential of Prior Consistent Statements: Let’s Get it Right” (2013) 17 Can. Crim. L. Rev. 181 at 181; David M. Paciocco & Lee Stuesser, The Law of Evidence, 7th ed. (Toronto: Irwin Law, 2015), at p. 527. But where the testimony of a witness is challenged on the specific basis that it has been “recently” fabricated, a prior consistent statement that logically rebuts that challenge can be admitted. Unless an independent hearsay exception applies, the prior declaration is not admitted for the truth of its contents, however: R. v. Simpson, 1988 89 (SCC), [1988] 1 S.C.R. 3, at pp. 22-25.
31As the Court of Appeal held in R. v. K. (S.), 2019 ONCA 776, 148 O.R. (3d) 1, at para. 152, per Tulloch J.A. (concurring), to trigger the recent fabrication exception, three conditions must be met:
First, the statement must be consistent with the testimony it is offered to support. Second, the witness must have made the statement after the event the witness is testifying about. Third, the statement must predate the point in time when the opposing party claims the witness first adopted the version of events the witness is testifying to at trial. See David M. Paciocco and Lee Stuesser, The Law of Evidence, 7th ed. (Toronto: Irwin Law, 2015), at p. 531.
See also K. (S.), at para. 122, per Simmons J.A. Tulloch J.A., for the majority on this point, clarified that “what is critical to triggering the recent fabrication exception is the identification by the opposing party of a point in time that gives rise to a motive to fabricate”: at para. 153. As Watt J.A. explained in R. v. Vassel, 2018 ONCA 721, 365 C.C.C. (3d) 45, at para. 124, “[a] bald allegation of fabrication does not amount to an allegation of recent fabrication because essential to the latter is an assertion that at some identifiable point in time the witness began to make the claim being challenged. For example, the allegation may be that a particular cause or event was the genesis for the fabrication” (citations omitted).
32I am satisfied that the recent fabrication exception applies here. The defence put the suggestion to the witnesses that the allegations were fabricated because the accused had left C.D. out of the will. The defence alleged they learned of this when the accused became ill, which was around 2019. In response, the Crown tendered evidence that the complainant, who is now 31, told her mother on her 18th birthday that the accused had sexually interfered with her from the age of six to the age of 15. This is many years before the defence argues that the complainant and her parents learned that the accused left C.D. out of his will.
33Thus, I conclude that the Crown has rebutted the defence’s allegation of recent fabrication. To be clear, I have not admitted the complainant’s prior statement to her mother for the truth of its contents. Nor do I give the complainant’s prior statement any weight in assessing whether the Crown has proved the charges beyond a reasonable doubt.
Overall assessment of the complainant’s credibility
34I have assessed the complainant’s credibility as an adult: R v. A.M., 2014 ONCA 769, 123 O.R. (3d) 536, at para. 25; R. v. W. (R.), 1992 56 (SCC), [1992] 2 S.C.R. 122, at p. 134.
35I find that the complainant is credible. Yes, she breached the preliminary inquiry’s witness exclusion order in respect of the will. But this is outweighed by my assessment of her credibility when considering her evidence as a whole. She was forthcoming in her evidence in chief and on cross-examination. Her account was internally consistent. (Where her evidence was contradicted by the other witnesses, I address this in my consideration of the evidence under each count below.) The complainant answered questions directly. She was not evasive. Her evidence was balanced. On cross-examination, she conceded when she could not recollect details and when she was mistaken. She made concessions even when they were not in her interest. While I must not place undue weight on her demeanour, she presented throughout as being truthful.
36The accused argued that I should consider the arc of his relationship with the complainant in assessing her credibility. He says that I have to look at it in its totality. He says there are years of a seemingly content relationship between them. There was no gradual fizzling out or reluctance on the complainant’s part to spend time with him. Instead, the complainant suddenly disclosed the alleged assaults to her mother around her 18th birthday. Although the accused acknowledges that I cannot rely on myths and stereotypes, he says the totality of the complainant’s conduct in this regard does not bolster her credibility.
37As discussed, I have not relied on the complainant’s prior disclosure when she was eighteen in any way to bolster her credibility or to add any weight to the allegations. As for the arc of the complainant’s relationship with the accused, there is no inviolable rule about how people who are the victims of trauma like a sexual assault will behave: R. v. D.D., 2000 SCC 43, [2000] 2 S.C.R. 275, at para. 65. The accused’s argument courts stereotype about how a complainant should respond. There is nothing arising from this complainant and these facts that leads me to doubt the complainant’s credibility based on the progression of her relationship with her grandfather and her disclosure to her mother at the age of 18. And contrary to how the accused portrayed it in closing argument, the complainant did not suddenly cut off contact with her grandfather when she was 18. Rather, her evidence was that she did not have any contact with him after she was 15.
38I will discuss my assessment of the complainant’s reliability when I consider the charges below.
Issue 2: Was there an abuse of process?
39After the conclusion of the complainant’s evidence, Crown counsel met separately with C.D. and E.F. for midtrial witness preparation. Crown counsel was accompanied by a police officer, who took notes of what was asked and the answers that the witnesses gave. Crown counsel asked them specifically about the allegation concerning the will. The following morning, before the witnesses were called, the Crown disclosed the officer’s notes of the midtrial witness preparation meeting.
40The accused brought a midtrial application alleging that this constituted an abuse of process and a breach of his fair trial rights. The Crown asked that I summarily dismiss the accused’s application. I refused the Crown’s request and directed that the accused’s application could be more fully addressed at the conclusion of trial. In the meantime, to ensure the accused could make full answer and defence, I heard evidence from the officer about what transpired at the Crown’s midtrial witness preparation meetings with C.D. and E.F. before they were called as witnesses. The defence had an opportunity to cross-examine the officer.
41I heard submissions on the accused’s abuse of process application after the officer’s evidence and again at the conclusion of trial. The accused argued that asking C.D. and E.F. questions about the will just after the complainant testified negatively impacted the accused’s fair trial rights. The accused argues that doing so was effectively akin to disclosing the questions posed by the defence in cross-examination at trial. The accused says that the timing of the Crown’s midtrial preparation meeting must have signalled to the two witnesses that questions about the will came up in court with the complainant, and provided them with time to think about how they would answer similar questions. The accused contended that this went beyond the usual witness preparation and was a second round of interviews solely for this purpose. The accused says that this amounted to an abuse of process. He anchors this abuse of process argument in the order excluding witnesses.
42I disagreed and ruled that there was no abuse of process. I provided a brief ruling before closing submissions, with further written reasons to follow. These are my further reasons.
43The boundaries of appropriate witness preparation are contextual. Thus, it would be imprudent for me to articulate a hard-and-fast rule. Instead, I will focus on what occurred here.
44The Crown did not breach the witness exclusion order. The purpose of excluding witnesses is to ensure that they do not alter or tailor their evidence based on the evidence provided by other witnesses. It would have been wrong for the Crown to tell the witnesses what the complainant’s evidence was. But the Crown did not do so here.
45Crown counsel did not divulge the complainant’s evidence. Nor did the Crown divulge the questions the defence put to the complainant at trial. Rather, after advising the witnesses to tell the truth, Crown counsel elicited the witnesses’ evidence about whether there was a dispute about the accused’s will, and whether they asked the complainant to make up the allegations. Crown counsel did so to ensure that both she and the witnesses were properly prepared for trial. The witnesses were asked non-suggestive, open-ended questions, and the issue was left at that. As discussed, Crown counsel was accompanied by the investigating officer. He took notes of the witnesses’ questions and answers, and these were disclosed to the accused.
46In E.F.’s case, shortly after the witness preparation interview, she approached the investigating officer to disclose that after the preliminary inquiry, the complainant told her that the accused’s lawyer said that C.D. was no longer in his will. She asked what she should say if asked. The investigating officer told her to tell the truth. E.F. reiterated to the investigating officer that she was not aware of a fight over the will.
47Crown counsel did not do anything improper during the midtrial witness preparation meetings. I do not agree with the accused that it was inappropriate for Crown counsel to pose these questions in midtrial witness preparation once the defence had put its questions to the complainant. There is no rule of law or ethics forbidding the Crown from doing so.
48The accused could not provide any authority supporting his position. The only authority relied on by the accused is R. v. Singh Nagra and Singh, 2018 ONSC 5230. But Singh Nagra and Singh is inapposite. The issue in that case involved Crown counsel sharing with Witness A, who had not yet testified, the question put on cross-examination by defence counsel to Witness B about what Witness A was purported to have advised the accused. In that case, the Crown conceded a breach of the witness exclusion order. This is a different scenario than what occurred here.
49By contrast, the Court of Appeal for Ontario has held in obiter in another context that “no fixed or invariable rule holds that it is never appropriate for counsel to alert a witness to a subject that is likely to be raised in cross-examination”: R. v. Mahmood, 2011 ONCA 693, 107 O.R. (3d) 641, at para. 67, per Watt J.A.
50In an often-quoted passage, the Supreme Court of Canada has held that “the purpose of a criminal prosecution is not to obtain a conviction, it is to lay before a jury what the Crown considers to be credible evidence relevant to what is alleged to be a crime. Counsel have a duty to see that all available legal proof of the facts is presented: it should be done firmly and pressed to its legitimate strength but it must also be done fairly”: R. v. Boucher, 1954 3 (SCC), [1955] S.C.R. 16, at pp. 23-24.
51The Crown not only has a duty to properly prepare its witnesses, but doing so is necessary for the proper administration of justice and the truth-seeking function of trial: R. v. Trought, 2019 ONSC 1421, at paras. 17-18; R. v. Liard, 2013 ONSC 5457, at para. 424.
52The Crown’s conduct was consistent with Crown counsel’s duty to elicit the witnesses’ evidence about whether there was a dispute about the accused’s will, and whether they asked the complainant to make up the allegations. Trials are fluid. New lines of inquiry arise as the evidence emerges. The Crown should not be foreclosed from exploring issues midtrial with prospective witnesses.
53In addition, the Crown has a duty to continually evaluate its case as the prosecution progresses to ensure that there is a reasonable prospect of conviction and that the prosecution is in the public interest: see e.g. Ontario, Report of the Attorney General’s Advisory Committee on Charge Screening, Disclosure, and Resolution Discussions (Toronto: Queen’s Printer for Ontario, 1993) (G. Arthur Martin, Chair) at pp. 129-30. The Crown may also be under a duty to investigate in certain circumstances, for instance when the Crown is informed of potentially relevant evidence pertaining to the credibility or reliability of a witness in a case: R. v. Ahluwalia (2000), 2000 17011 (ON CA), 149 C.C.C. (3d) 193 (Ont. C.A.), at paras. 71-72; R. v. Darwish, 2010 ONCA 124, 100 O.R. (3d) 579, at paras. 36-37; and R. v. McNeil, 2009 SCC 3, [2009] 1 S.C.R. 66, at paras. 49-50. It would be inconsistent with these duties to forbid the Crown from exploring issues that arise during the trial with witnesses who have yet to testify.
54The accused argues that the Crown could have anticipated this line of questioning after the preliminary inquiry, when the issue was first raised with the complainant. The accused concedes that it would have been proper for Crown counsel to have raised it with the witnesses as part of their general preparation meeting. But the accused says the timing – right after the complainant testified – telegraphed to the witnesses that the issue arose during the defence’s cross-examination. They could intuit it would be put to them.
55This is speculation. But even if it were so, the Crown is entitled to properly prepare its witnesses. A witness being alerted to a possible or even likely line of questioning by the defence is proper and good witness preparation. Nothing Crown counsel did here ran afoul of the Kaufman Commission’s recommendations regarding the conduct of Crown interviews, for example: Ontario, The Commission on Proceedings Involving Guy Paul Morin (Toronto: Ontario Ministry of the Attorney General, 1998) pp. 36-37, 767-70.
56Although not binding, the Kaufman Commission’s recommendations in several areas of criminal law practice have been approved of or relied upon by the Supreme Court of Canada: see e.g. R. v. Brooks, 2000 SCC 11, [2000] 1 S.C.R. 237, at paras. 81-83; D.D., at para. 52; R. v. Khela, 2009 SCC 4, [2009] 1 S.C.R. 104, at para. 12; R. v. Regan, 2002 SCC 12, [2002] 1 S.C.R. 297, at paras. 66-70. In this regard, see the discussion in R. v. Spence, 2011 ONSC 2406, at paras. 26-28.
57For ease of access, I reproduce the relevant Kaufman Commission recommendation here:
Recommendation 107: Conduct of Crown interviews.
Earlier in this Chapter, I have noted the dilemma facing Crown attorneys when preparing witnesses for trial. On the one hand, counsel should not be suggestive, and should not try to dovetail the evidence of a number of witnesses to make a perfect whole. On the other hand, counsel may understandably wish, in fairness to a witness and with a view to ascertaining the true facts, to advise the witness of conflicting evidence in order to invite comment and reflection.
I have previously suggested guidelines respecting the conduct of interviews. I reiterate them here.
(a) Counsel should generally not discuss evidence with witnesses collectively.
(b) A witness’s memory should be exhausted, through questioning and through, for example, the use of the witness’ own statements or notes, before any reference is made (if at all) to conflicting evidence.
(c) The witness’ recollection should be recorded by counsel in writing. It is sometimes advisable that the interview be conducted in the presence of an officer or other person, depending on the circumstances.
(d) Questioning the witness should be non-suggestive.
(e) Counsel may then choose to alert the witness to conflicting evidence and invite comment.
(f) In doing so, counsel should be mindful of the dangers associated with this practice.
(g) It is wise to advise the witness that it is his or her own evidence that is desired, that the witness is not simply to adopt the conflicting evidence in preference to the witness’ own honest and independent recollection and that he or she is, of course, free to reject the other evidence. This is no less true if several other witnesses have given conflicting evidence.
(h) Under no circumstances should counsel tell the witness that he or she is wrong.
(i) Where the witness changes his or her anticipated evidence, the new evidence should be recorded in writing.
(j) Where a witness is patently impressionable or highly suggestible, counsel may be well advised not to put conflicting evidence to the witness, in the exercise of discretion.
(k) Facts which are obviously uncontested or uncontestable may be approached in another way. This accords with common sense.
58While not exhaustive, this recommendation provides helpful guidance to the Crown in obtaining reliable, untainted evidence from witnesses: Peter J. Sankoff, Law of Witnesses and Evidence in Canada (Toronto: Thomson Reuters, 2023) at §5:10.
59More generally, the accused overstates the value of surprise in this instance. As the trier of fact, I disagree with the defence’s suggestion that by asking these questions at the midtrial witness preparation meeting, rather than in court, the Crown deprived me of the ability to properly assess C.D. and E.F.’s credibility. To the contrary, I was fully able to assess their credibility, particularly since the allegations of fabrication and witnesses tailoring their evidence was thoroughly explored at trial.
60In the absence of any breach of the witness exclusion order or improper conduct by the Crown, there is no evidence of any prejudice to the accused’s fair trial rights. Moreover, the accused was fully able to cross-examine the witnesses regarding the will and the complainant’s alleged motive to fabricate. There is no evidence of the witnesses tailoring their evidence; that is purely speculation by the defence.
Issue 3: Did the accused commit sexual inference?
61The accused is charged with having committed sexual interference with the complainant between June 1, 1998 and August 4, 2006. Within this time, the alleged occurrences span a number of places. I will address each alleged occurrence in turn.
62Before doing so, I will set out the law in relation to sexual interference contrary to s. 151 of the Criminal Code.
The law
63The Crown must prove each of the following essential elements of the offence beyond a reasonable doubt:
a. that A.B. was under the age of 14 at the time of the touching (as of May 2008, this was raised to 16, but this amendment occurred after the date range of the charge);
b. that the accused intentionally touched A.B., either directly or indirectly; and
c. that the touching was for a sexual purpose.
64The Court of Appeal for Alberta has held that touching is for a sexual purpose “if it is done for one’s sexual gratification or to violate a person’s sexual integrity”: R. v. Morrisey, 2011 ABCA 150, at para. 21. In assessing the accused’s purpose, the trier of fact may consider “whether the sexual context of the touching would be apparent to any reasonable observer”: ibid. The court goes on to explain that “‘sexual purpose’ may be proven either by direct evidence, or it may be inferred from circumstantial evidence or from the nature of the touching itself”: ibid.
65The Court of Appeal for Ontario has explained that whether touching was for a sexual purpose or took place in circumstances of a sexual nature is largely a question of fact to be determined by examining all the circumstances: R. v. Langevin, 2016 ONCA 412, at para. 24. The court also held that “proof of these essential elements may be made by direct evidence, by circumstantial evidence or by both types of evidence in combination”: ibid.
66Generally, the Crown is not required to prove beyond a reasonable doubt that the alleged offence occurred within the timeframe set down in the indictment: see R. v. B. (G.) (1990), 1990 7308 (SCC), 56 C.C.C. (3d) 200, at pp. 215-16; R. v. S.M., 2017 ONCA 878, at para. 10; and Criminal Code, s. 601(4.1). Here, the Crown is required to prove beyond a reasonable doubt that the alleged offence of sexual interference occurred before the complainant was 14, because the age of the complainant is an essential element of the offence under s. 151. But the Crown is not required to prove that a particular incident occurred on any particular date, provided it occurred before the complainant was 14.
The complainant’s age
67The complainant’s birthday is August 5, 1992. There was no live issue at trial that the complainant was under the age of 14 during the incidents alleged under Count 1.
The law regarding the assessment of the complainant’s reliability
68Each witness must be assessed individually, based on criteria “appropriate to her mental development, understanding and ability to communicate”: W. (R.), at p. 134. In W. (R.), McLachlin J. (as she then was) provided the following guidance for assessing the evidence of adults testifying about childhood events, at p. 134:
In general, where an adult is testifying as to events which occurred when she was a child, her credibility should be assessed according to criteria applicable to her as an adult witness. Yet with regard to her evidence pertaining to events which occurred in childhood, the presence of inconsistencies, particularly as to peripheral matters such as time and location, should be considered in the context of the age of the witness at the time of the events to which she is testifying.
69Given the passage of time since the events occurred, assessing the reliability of the complainant’s evidence is particularly important: R. v. Sanicher, 2012 ONCA 117, 280 C.C.C. (3d) 500, at paras. 35-41. In cases of historical sexual abuse or distant events, “particular caution and scrutiny” is called for in assessing the complainant’s reliability: Sanicher, at para. 38. The trier of fact needs “to be cautious about relying upon adult memories of childhood impressions”: Sanicher, at para. 38, relying on R. v. M. (B.) (1998), 1998 13326 (ON CA), 42 O.R. (3d) 1 (C.A.), at p. 29, per Rosenberg J.A.
70I have approached the complainant’s evidence through this lens.
The incident in Longueuil
71The Crown alleges that the accused touched A.B. for a sexual purpose when she was a child and living in Longueuil, Québec. The living arrangements for A.B. and her parents – and where the accused would stay when visiting – was a central issue in respect of this alleged incident.
(a) The complainant’s account
72The complainant testified that the first incident occurred when she was living in Longueuil. Her parents were briefly separated – for about three months – but living in neighbouring apartment buildings. The complainant was living with her mother and occasionally slept over at her father’s apartment.
73The complainant’s mother’s apartment had two bedrooms. Her mother occupied one bedroom; A.B., her 11-year-old half-sister, and 14-year-old brother occupied the other bedroom.
74The complainant’s father’s apartment had one bedroom. The complainant’s evidence was that her mother occasionally stayed over at her father’s. As far as she noticed, this happened twice, including on the night of the alleged incident. On these occasions, the complainant would stay with her mother at her father’s apartment. The complainant’s half-sister would stay with her own father. The complainant did not know where her brother would stay, but agreed on cross-examination that her brother would not have been left alone at the age of 14.
75The complainant first met her grandfather when she was four and was becoming acquainted with him. Her grandfather came for a visit during the summer of 1998, around her birthday. Although the complainant testified that she was six or seven during the visit, she also had a clear recollection of the year. Going by the year, the complainant was five or six years old at the time. The complainant says she remembers the year of the incident because they had just moved to Longueuil recently when she was five.
76While she could not be sure it was the day of the incident, she could recall that around the date of the incident the accused had bought her a cat for her birthday. The complainant was uncertain if they had gone to Montreal: initially she stated that they had gone shopping in Montreal but then said she did not think it was in Montreal. She could not recall exactly where they had gone shopping for the cat.
77The complainant testified that she had gone to bed around 9 p.m. in her father’s bedroom. She was wearing a flannelette nightie which went down below the knee. She said she was sharing the bedroom with her grandfather. She had her eyes closed and was pretending to be asleep. She was lying on her back. Her grandfather came into the bedroom and lay down beside her. She testified that he put his hand up her nightie and touched her left breast for a little while, pinched her nipple, and then moved his hand to her right breast, then down to touch her vagina over her underwear. The nightie was loose and there was no need for her grandfather to pull her nightgown up.
78The complainant testified that the touching of her left breast lasted a few minutes. The touching of her vagina did not last long because she got up right away and went to the bathroom. She remained in the bathroom for several minutes, then returned to the bedroom and lay down. Her grandfather turned to go to sleep.
79A.B. did not report the incident to her parents. When asked on cross-examination why she did not report the incident to her parents, she explained that she was young and was not fully conscious of everything that had happened. She did not understand the significance of it. I allowed the question to be put because in “assessing the credibility of a complainant, the timing of the complaint is simply one circumstance to consider in the factual mosaic of a particular case”: D.D., at para. 65. I was mindful of the Supreme Court of Canada’s caution in D.D., that (at para. 65):
A trial judge should recognize and so instruct a jury that 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 complaint, some will delay in disclosing the abuse, while some will never disclose 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 circumstance 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.
80I find the complainant’s explanation about why she did not report the incident to her parents to be wholly credible and consistent with the complainant’s ability, as a young child age, to understand the significance of what had happened.
81The complainant testified that her parents were sleeping on a pull-out couch in the living room during the incident. She agreed, on cross-examination, that there was no reason for her and her grandfather to share a bed. She does not know why they shared a bed. She also agreed on cross-examination that it did not make much sense that she, her grandfather, her mother, and her father would sleep in the one-bedroom apartment when next door was her mother’s apartment where she normally slept.
82When challenged, A.B. insisted that she had an accurate memory of what happened, despite her young age at the time. She was confident that the incident happened as she recalled it.
(b) C.D.’s account
83The complainant’s father, C.D., testified that he and E.F. were separated for a year or two from 1998 into 2000. The accused did not visit him at his apartment very often, but visited the complainant’s mother, E.F., at her apartment five or six times, perhaps more. C.D. testified that the accused would stay overnight at E.F.’s apartment. C.D. did not believe that he also stayed at E.F.’s apartment on those occasions, but rather stayed at his own apartment. C.D. was drinking a lot at the time and his recollection of events was affected. As a result, he could no longer recall details about dates.
84Contrary to the complainant’s evidence, C.D. testified that he – not the accused – had brought the cat home. He believed he did so sometime between 1998 and 2000. He kept the cat at his home because E.F. was allergic.
85C.D.’s ability to recount the sleeping arrangements was confusing at times. He testified that when the accused came to visit him, the accused would sleep in C.D.’s bedroom, and C.D. would sleep on the couch. At one point, C.D. testified that on the occasions that the accused stayed with him, A.B. and E.F. stayed at E.F.’s apartment. In the same breath, C.D. also stated that because his father was stayed with him, A.B. had to be with “us”. He clarified later that he meant that on the occasions the accused stayed with him, A.B. stayed with C.D. alone (that is, without E.F.) in the living room. Ultimately, he testified that he had no specific memory of A.B. and the accused sharing a bed at his apartment in Longueil. He also agreed that it would have made more sense for A.B. and E.F. to sleep at E.F.’s apartment where there was more room. However, he testified that A.B. could have stayed with him when the accused was staying over since she was a young child, but he does not remember A.B. asking to do so.
(c) E.F.’s account
86The complainant’s mother, E.F., testified that the accused started visiting A.B. in Longueuil when she was six. E.F. testified that the accused visited frequently.
87She and C.D. were separated at the time. Although E.F. could not specifically recall given the passage of time, she agreed it was possible that she and C.D. lived in neighbouring apartment buildings at the time. According to E.F., A.B. generally split her time sleeping between her parents’ apartments 50-50.
88The accused came to see E.F. and also went to see C.D. several times at C.D.’s apartment. The accused stayed with C.D., not at E.F.’s apartment. There was one occasion when the accused visited and stayed the night with C.D. On that occasion A.B. and E.F. stayed at E.F.’s apartment. E.F. was firm in her evidence that she had no memory whatsoever of herself or A.B. sleeping at C.D.’s when the accused was there.
(d) Findings
89I find that the complainant was being truthful in her account, as she sincerely remembered the events. I also find that she was doing her best to recall events at a distance of over two decades from a time she would have been between five and seven. But her recollection of the sleeping arrangements on the night of the alleged incident is not sufficiently reliable to ground a conviction. I come to this conclusion for three reasons.
90First, on the evidence, there is no reason why A.B. would have shared a bedroom with the accused. A.B. was firm in her recollection that she and her grandfather shared a bedroom. But she agreed that it did not make much sense that she, her grandfather, her mother, and her father would sleep in the one-bedroom apartment when next door was her mother’s apartment where she normally slept.
91Second, C.D. did not recall A.B. sleeping in the same room as the accused. The weight of C.D.’s evidence, while unclear at times, was that A.B. either slept with him in the living room or at her mother’s apartment. He agreed that it was more likely that A.B. and E.F. slept at E.F.’s apartment where there was more room when his father visited.
92Third, on the occasion E.F. could recall the accused staying at C.D.’s apartment, she testified that she and A.B. stayed at E.F.’s apartment. E.F. was definite that she had no memory of herself or A.B. sleeping at C.D.’s when the accused was there. I do not believe she would have expressed herself this firmly without being certain. E.F. provided the most reliable evidence on this point.
93Taken together, I am left with a reasonable doubt that A.B. slept in the same bedroom with her grandfather at C.D.’s apartment one night when he was visiting C.D.
94The sleeping arrangements are more than a peripheral detail. They are central to the complainant’s account of how the accused found himself in the same room with her when the alleged touching occurred. Given that I have found that the complainant’s account is not sufficiently reliable on this central point, I am left with a reasonable doubt that the accused touched A.B. in Longueuil.
The incident in Rouyn-Noranda
95The Crown alleges that the second incident occurred in Rouyn-Noranda, Québec.
96The complainant and her parents were living in Rouyn-Noranda. The complainant testified that the accused came to visit in the summer of 2003 or 2004. The complainant put her age at 11 at the time. Although E.F. put the complainant’s age at 10, I find that the complainant had a clearer recollection of her age.
97When A.B. got home from playing with friends, the accused was at her home. She went up to him to say hello and gave him a hug. The accused put his left hand on her back and his right hand on her buttock. He squeezed her buttock. The squeeze lasted about two seconds. The complainant froze. In the complainant’s view, the touching could not have been accidental because the accused was squeezing her buttock with his hand. The complainant noticed that he was breathing heavily while doing so. No one witnessed the incident. Her mother was in another room.
98The complainant testified that she told her mother that her grandfather had squeezed her buttock and that she did not like it. The complainant testified that she had no recollection of her mother being upset when told. She looked mixed up, not knowing what to think. For her part, E.F. testified that A.B. had not told her about any incident with the accused before A.B.’s 18th birthday. For his part, C.D. testified that A.B. had not told him anything about the incident. She did not start complaining about visiting her grandfather until they lived in Gatineau.
99In closing argument, the defence pointed to E.F.’s evidence as a contradiction that undermined the credibility of the complainant. The defence contends that A.B. was not being truthful when she testified that she told her mother about the incident. Further, the defence says that E.F. would have done something about it had her daughter told her the accused had inappropriately touched her at 11.
100I disagree that the complainant’s evidence was contradicted on this point. Neither the Crown nor the defence specifically asked E.F. whether A.B. told her that her grandfather had squeezed her buttock when she was 11. Rather, the defence asked her more generally whether A.B. had told her anything about what was happening before her 18th birthday. In response to the general question, one cannot reliably speculate whether E.F. did not recall being told of the incident, or made nothing of it when A.B. told her about it, or that A.B. positively did not tell her about the incident. Further, I disagree that the incident was so stark as to necessarily cause E.F. to do something about it or to stop her daughter visiting with the accused when they later moved to Gatineau.
101Moreover, there is no inconsistency between A.B.’s evidence and her father’s. She testified that she told her mother; she did not testify that she told her father. Her father not having been told by her mother does not lead me to conclude that A.B. did not tell her mother. It would be conjecture to conclude that if told, E.F. would have told C.D.
102In the absence of clearer evidence on this point, I do not find a contradiction that undermines the complainant’s credibility. The complainant was both credible and reliable. Her recollection was clear and specific. She recalled the context and how she reacted.
103Having considered all the evidence, I find that the Crown has established the following beyond a reasonable doubt:
a. The accused touched the complainant’s buttock with his right hand and squeezed her buttock for about two seconds. Given the squeeze, the touching was deliberate and not accidental.
b. The touching was for a sexual purpose given the part of the body touched, the squeezing, and the accused’s heavy breathing (which suggests arousal).
c. A.B. was 11 years old – and in any event under the age of 14 – at the time of the touching.
The incident in Ottawa
104In July 2006, A.B. and her parents moved to Gatineau, Québec. The complainant was 13 at the time. They initially stayed with the accused while their apartment was being readied. The accused’s house was in Vars, a suburb of Ottawa. While staying with the accused, A.B. was making toast in the kitchen. She testified that the accused came up behind her to give her a hug. She testified that he reached under her clothes and touched her left breast with his right hand. The touching lasted a few seconds. No words were exchanged. In the complainant’s view, the touching could not have been accidental because the accused was touching her breast and his hand stayed there.
105On cross-examination, the complainant was confronted with her evidence at the preliminary inquiry. She previously testified that the touching was over her shirt. At trial, however, she explained that her previous evidence was an error and the touching was under her shirt. Although significant inconsistencies may be sufficient to raise a reasonable doubt, it is open to me to accept the complainant’s explanation for the inconsistency: R. v. François, 1994 52 (SCC), [1994] 2 S.C.R. 827, at pp. 839-40; R. v. C.R., 2010 ONCA 176, 260 O.A.C. 52, at para. 35. I find her recollection at trial was both credible and reliable, and I accept her explanation that she made a mistake at the preliminary inquiry. At trial, her recollection was specific and firm. She directly confronted the error of her evidence at the preliminary inquiry. She did not evade or hesitate on cross-examination.
106Having considered all the evidence, I find that the Crown has established the following beyond a reasonable doubt:
a. The accused reached under the complainant’s clothes and touched her left breast with his right hand. The touching lasted a few seconds.
b. The touching was for a sexual purpose. I come to this conclusion because of the part of the body touched, because the accused reached under the complainant’s clothes to touch her breast, and because he left his hand there.
c. A.B. was 13 at the time of the touching.
Conclusion on sexual interference
107Accordingly, a conviction shall be entered on Count 1. I find that the accused is guilty of having committed sexual interference on two occasions, contrary to s. 151 of the Criminal Code.
Issue 4: Did the accused commit sexual assault?
108The Crown alleges that the accused sexually assaulted the complainant on multiple occasions after her family moved to Gatineau. These alleged incidents are charged as a sexual assault because they are said to have occurred after the complainant turned 14, which was the age threshold for sexual interference at the relevant time.
The law
109The actus reus of sexual assault comprises three elements: (1) touching; (2) the sexual nature of the contact; and (3) the absence of consent: R. v. Ewanchuk, 1999 711 (SCC), [1999] 1 S.C.R. 330, at para. 25; R. v G.F., 2021 SCC 20, at para. 25. Touching is proven objectively. “It is sufficient for the Crown to prove that the accused’s actions were voluntary”: Ewanchuk, at para. 25. Voluntariness means that “the conduct in question must be willed”: R. v. Daviault, 1994 61 (SCC), [1994] 3 S.C.R. 63, at p. 74.
110The sexual nature of the contact is also determined objectively. The Crown does not need to prove that the accused had any mens rea with respect to the sexual nature of his behaviour: Ewanchuk, at para. 25. The Supreme Court of Canada stated the following in R. v. Chase, 1987 23 (SCC), [1987] 2 S.C.R. 293, at p. 302:
In making this assessment, the part of the body touched, the nature of the contact, the situation in which it occurred, the words and gestures accompanying the act, and all other circumstances surrounding the conduct … will be relevant. [The accused’s] intent or purpose, to the extent that this may appear from the evidence, may also be a factor in considering whether the conduct is sexual. If the motive of the accused is sexual gratification, to the extent that this may appear from the evidence, it may be a factor in determining whether the conduct is sexual. [Citations omitted.]
111The absence of consent is determined subjectively, by reference to the complainant’s internal state of mind toward the touching at the time it occurred: Ewanchuk, at para. 26; R. v. Barton, 2019 SCC 33, [2019] 2 S.C.R. 579, at para. 89.
112The mens rea of sexual assault has two elements: (1) intention to touch; and (2) knowledge of, or wilful blindness or recklessness as to, a lack of consent on the part of the person touched: Ewanchuk, at para. 42; Barton, at para. 87. Sexual assault is a crime of general intent. The Crown need only prove that the accused intended to touch the complainant in order to satisfy the basic mens rea requirement of intention to touch: Ewanchuk, at para. 41.
The incidents at the accused’s home
113I will now consider the allegations of sexual assault in the accused’s home. These assaults are alleged to have happened in three places in the accused’s home: in G.H.’s room (G.H. is the complainant’s aunt), in the guestroom, and in the living room.
114The alleged incidents at the accused’s home occurred after the complainant turned 14.
The first bedroom incident
115A.B. testified that the first incident in this period occurred in G.H.’s bedroom. She testified that she was on her side on the bed, watching TV. She was wearing shorts and a t-shirt. The accused came and lay down beside her to watch TV. The accused put his hand underneath her t-shirt and touched her left breast. The touching lasted a few minutes. The accused then touched the side of the complainant’s right buttock, then touched her vagina. The accused’s hand was inside her shorts but outside her underwear. He then caressed her vagina. A.B. estimates that this touching lasted five to ten minutes. The accused was also kissing the nape of her neck. A.B. reacted by trying to push the accused’s hand away, but she was startled and hardly able to move. The accused did not speak during the touching; he was breathing heavily. The accused stopped abruptly, stood up, and left.
116A.B. was challenged on cross-examination regarding the arrangement of the room. Specifically, she was asked about the position of the bed and how her grandfather got on and off the bed. She recalled him coming from the bottom of the bed to position himself on the left side. I find that the arrangement of the room in no way undermined her account; it did not make it less probable.
117I find that the accused intentionally touched A.B. He persisted despite her resistance. She did not consent. The touching was of a sexual nature given where he touched her: breast, buttock, and vagina. He touched her breast underneath her t-shirt. He put his hands inside her shorts and outside her underwear. He caressed her vagina. He was kissing her neck while touching her. The touching lasted several minutes. All this supports the sexual nature of the touching. Further, I conclude that the accused knew or was wilfully blind to or reckless as to her lack of consent: she never expressed consent in words or through conduct. He persisted when she pushed his hand away.
The second bedroom incident
118A.B. testified that another incident occurred in G.H.’s bedroom during this period. The complainant was watching the movie She’s the Man on TV. She was on her back, leaning a little on her left side. She was on the right side of the bed. The accused entered the bedroom and lay down next to her on the bed to watch TV. He put his right hand inside her t-shirt on her nipple, then moved his hand down to her vagina, outside her underwear. The complainant was not wearing a bra. The accused was kissing the nape of her neck and breathing heavily in her ear. The complainant was startled and motionless.
119A.B.’s recollection was challenged on cross-examination. She acknowledged that at the preliminary inquiry she testified that she could not recall what she was doing before the accused came into the room. A.B. acknowledged at trial that it was possible that it was the fourth incident when she was watching She’s the Man on TV. She agreed that she was probably mixing up the second and fourth incidents. It was the fourth incident when she was watching She’s the Man because the accused had just bought her the movie.
120However, as I understand A.B.’s evidence, even though she may have mixed up what she was watching, she was not conceding that the second incident did not occur. The touching in the second bedroom incident and the fourth were different. The inconsistency about which incident involved her watching a particular movie does not leave me with a reasonable doubt. It is a peripheral detail.
121I find that the accused intentionally touched A.B. She did not consent. The touching was of a sexual nature given where he touched her: on her nipple and vagina. He touched her breast inside her shirt. He was kissing her neck while touching her. All this supports the sexual nature of the touching. I find that the accused knew or was wilfully blind to or reckless as to the absence of consent: the complainant never expressed consent in words or through conduct.
The third bedroom incident
122A.B. testified that another incident occurred in G.H.’s bedroom during this period. Her memory of this incident was less clear. She testified that she was watching TV. The accused entered and lay down beside her. He put his hand under the collar of her shirt to directly touch the skin of her breast. She was not wearing a bra. She estimates the touching lasted a few minutes. She felt uncomfortable. She could not recall how she reacted.
123I find that the accused intentionally touched A.B. He put his hand down her collar to touch her breast. The touching was of a sexual nature given where he touched her and that it was skin to skin. A.B. did not consent. I conclude that the accused knew or was wilfully blind to or reckless as to her lack of consent: she never expressed consent in words or through conduct.
The fourth bedroom incident
124A.B. testified that another incident occurred in G.H.’s bedroom during this period. The complainant was watching the movie She’s the Man on TV. She was lying on the bed, on her left side. The accused entered the bedroom and lay down beside her. He watched the film with her for a short time. He was positioned behind her. He touched her buttock from behind, then moved his hand to touch her vagina. It made her feel very uncomfortable.
125A.B.’s account was challenged on cross-examination. She was asked about her evidence at the preliminary inquiry, where she testified that the accused’s hand went under her buttock to reach her vagina. It was suggested to her that this was not possible because her buttock or hip or some portion of her body was on the mattress. The defence suggested that the accused could not reach the complainant’s vagina that way.
126A.B. denied that the accused had any difficulty reaching her vagina from behind. She stated that the accused had access to her vagina from behind.
127I find that nothing in A.B.’s description would have made it difficult or impossible for the accused to access her vagina. Her account is physically coherent. Positioned as she said, the accused would have been able to access her vagina.
128I find that the accused intentionally touched A.B. She did not consent. The touching was of a sexual nature given that he touched her buttock and vagina. I also conclude that the accused knew or was wilfully blind to or reckless as to the complainant’s lack of consent: she never expressed consent in words or through conduct.
The fifth bedroom incident
129A.B. testified that another incident occurred in the accused’s guestroom during this period. She was lying on the bed watching wrestling on TV. She was on her back on the right side of the bed. The accused came into the bedroom and sat on the left side of the bed next to her. He watched TV with her and then moved his hand under her t-shirt to her breasts. He moved his hand over her breasts, making direct contact with the skin. The accused was breathing heavily. The complainant could not recall if there was other touching on this occasion. The touching made her feel very bad.
130I find that the accused intentionally touched A.B. She did not consent. The touching was of a sexual nature given that he put his hand under her shirt and made skin-to-skin contact with her breasts. I conclude that the accused knew or was wilfully blind to or reckless as to the complainant’s lack of consent: she never expressed consent in words or through conduct.
The sixth bedroom incident
131A.B. testified that another incident occurred in the accused’s guestroom during this period. She was lying on the right side of the bed. The accused came in and sat next to her on the left side of the bed. He was wearing only white underwear. He put his hand on her thigh. He used his pinky to touch her vagina over her clothing. The complainant tried to push his hand away with her hand. He resisted. She froze.
132I find that the accused intentionally touched A.B. She did not consent. The touching was of a sexual nature given that he used his pinky to touch her vagina over her clothing and given the accused was wearing only his underwear. I also find that the accused knew or was wilfully blind to or reckless as to the complainant’s lack of consent: she never expressed consent in words or through conduct, and the accused persisted when the complainant tried to push his hand away.
The seventh bedroom incident
133A.B. testified that another incident occurred in the accused’s guestroom during this period. This was similar to the previous incident, but the accused was not in his underwear. The complainant had no recollection whether he touched her breasts on this occasion, but she testified that he felt her vagina outside of her trousers. Unlike the other occasions, the accused was positioned on the right side of the bed and the complainant on the left side of the bed. In the complainant’s view, the touching could not have been accidental because he touched her vagina directly.
134On cross-examination, A.B. acknowledged that she could be mixing up her positioning on the sixth or seventh bedroom incidents.
135Even though the complainant acknowledged that she could be mixing up the details of the two incidents, she had a distinct recollection of the sixth and seventh bedroom incidents being two separate incidents. The complainant was firm in her recollection that the incidents were precise for her – she could very clearly remember these incidents because they left an impression on her.
136I am not left in any reasonable doubt that there was a seventh incident. Accordingly, I find that the accused intentionally touched A.B. She did not consent. The touching was of a sexual nature given that he felt her vagina outside her trousers. Further, I conclude that the accused knew or was wilfully blind to or reckless as to the complainant’s lack of consent, as she never expressed consent in words or through conduct.
The eighth bedroom incident
137A.B. testified that another incident occurred in the accused’s guestroom during this period. She was lying on the right side of the bed, watching wrestling on TV. She was wearing a pyjama shirt and basketball shorts. The accused was on the left side. The accused touched her breasts underneath her shirt. A.B. cannot precisely recall but she estimates the touching lasted a few minutes. She froze during the touching.
138On cross-examination A.B. was challenged that she had a mental block regarding the details around the eighth incident. At the preliminary inquiry, she could not recall exactly what occurred during the eighth incident, though she had a memory that the accused touched her breasts. The next thing she could clearly remember was an incident on the La-Z-Boy, which I will consider below.
139Because A.B. could not recollect details regarding the eighth incident and had blocked portions of the incident, I find that her recollection of this incident is insufficiently reliable to ground a conviction. Put differently, her evidence leaves me with a reasonable doubt about the eighth incident.
Was there a TV in G.H.’s room?
140As discussed, A.B. testified that four of the incidents occurred while she was watching TV in G.H.’s room. Whether there was a TV in G.H.’s room became a key issue at trial. A.B. testified that there was a TV in the closet of G.H.’s room. She omitted a TV in G.H.’s room on the sketch she prepared for the police, but included a TV in her sketch of the guest room. On cross-examination, A.B. explained that she did not include the TV in the closet of G.H.’s room in the sketch because she did not think it was important to put it there.
141The issue was also canvassed with the complainant’s parents.
142When it was put to E.F. on cross-examination that the only television in the accused’s house was in the living room, she agreed. But she was not asked directly whether there was a television in G.H.’s room. On re-examination, she testified that she did not recall ever looking in the closet of G.H.’s room.
143On cross-examination, C.D. stated that there was a television in the living room of the accused’s house and that there was a television in the guest room. He testified, however, that there was no television in G.H.’s room. On re-examination, he testified that he did not ever look in the closet of G.H.’s room.
144I find that there was a TV in G.H.’s room. A.B. spent a fair bit of time in G.H.’s room and was familiar with its contents; she was more familiar with the room than her parents, neither of whom looked in the closet. I believe A.B.’s explanation for omitting the TV from the sketch. When confronted with the omission, she answered directly and acknowledged it. I am not left in doubt on the basis that she omitted it from the sketch.
Was A.B. confusing the bedroom incidents?
145On cross-examination, it was put to A.B. that the bedroom incidents were quite similar and she could be mixing up details. A.B. acknowledged that could be the case given the passage of time. However, she testified that she was giving her best recollection of eight separate incidents and the details thereof. She testified that the incidents were precise in her mind. She readily acknowledged that it was possible that she mixed up the sides of the bed between the sixth to eighth incidents. She also acknowledged that there may have been other bedroom incidents in the accused’s home in Vars, but she had no specific recollection of other incidents. Her evidence was that these sexual assaults happened frequently. Her evidence was of the incidents that she clearly remembers because they left an impression on her – the incidents were striking. To the best of her recollection, the eight incidents were in chronological order. A.B. was unable to recall how much time passed between each incident.
146The accused argued that the complainant has a “unique” memory because she could recall a lot of details about the bedroom incidents, but could not recall surrounding details, such as dates, times of day, what she did on those dates before the alleged assaults. The accused says this is just not how memory works.
147I disagree. I find that A.B.’s recollection of the incidents is credible and reliable. I accept her explanation that she had a clear memory of seven incidents, even if she has mixed up some of the details between incidents. This is consistent with there having been multiple incidents. I do not accept the defence’s argument that it is implausible that A.B. would have a distinct memory of seven separate incidents, even if she mixed up some of the details. As she explained, the events left an impression on her – they marked her. I do not find it unusual in the context of multiple incidents that she would not have specific memory of surrounding details, especially given she was between the ages of 14 and 15, and she is now 31. The passage of time may have led the complainant to forget surrounding details such as dates, times of day, but her memory is clear on the essential core of the allegations.
Did the complainant have a sufficiently reliable independent recollection of the bedroom incidents?
148The accused argued that the complainant did not have a sufficiently reliable independent recollection of the bedroom incidents because she frequently had to refresh her memory.
149I disagree. On the occasions that the complainant refreshed her memory, she was not simply repeating her evidence from the preliminary inquiry. Rather, reviewing the transcript of her previous evidence properly triggered her present recollection. Nor do I find that the complainant refreshed her memory inordinately.
Recurring nature of the acts
150Although I have made specific findings for each of the incidents, given how the matter was argued, it is also open to me to approach the incidents as an ongoing, repeated touching. Given the recurring nature of the acts, I am not required to find a specific act occurred at a certain time in a certain way: R. v. C.D., 2023 ONCA 89, at paras. 39, 41.
151Considered in this way, I find that the Crown has established beyond a reasonable doubt that the accused repeatedly and intentionally touched A.B., without her consent, while she was in G.H.’s room and the guest bedroom. The touching was of a sexual nature. The evidence is unequivocal that A.B. did not consent. Finally, I find that the accused knew or was wilfully blind to or reckless as to the complainant’s lack of consent. She never expressed consent in words or through conduct. On occasion, she resisted and he persisted in the touching.
152Before leaving this point, I observe there was no cross-count similar fact evidence application. I have therefore not taken into account the similarity of the incidents in making my findings.
The La-Z-Boy incidents
153The Crown alleges that the accused sexually assaulted A.B. on three occasions in his living room. These sexual assaults are alleged to have taken place over the same period as the incidents in the bedrooms.
154A.B. testified that, on the first occasion, she was sitting with the accused on the La-Z-Boy in his living room. She sat on the accused’s left thigh. He put his hand inside her t-shirt over her bra. He was touching her breast through her bra. A.B. could not recall precisely how long the touching lasted. She estimated between one and a few minutes.
155A.B. testified that, on the second occasion, she and the accused were watching a movie in the living room. She was sitting on the accused’s knee on the La-Z-Boy. Her uncle René was sitting on the sofa next to them. René got up and left the room to do something, probably to go to bed. The accused then started to feel her breast. He put his hand underneath the bottom of her t-shirt. He felt her right breast underneath her bra. The touching ended when the complainant or accused took his hand out and she left. The touching made her feel unwell.
156On cross-examination, A.B. conceded that she may have mixed up the first and second La-Z-boy incidents. René may have been present just before the first, rather than the second.
157A.B. testified that, on the third occasion, she was sitting on the accused’s lap on the La-Z-boy. The accused put his hand underneath her t-shirt. He felt her breasts from left to right. She was wearing a bra. She believed the accused put his hand inside her bra, but could not be sure. The complainant froze. She could not recall how the incident ended.
158The complainant acknowledged on cross-examination that her recollection of the third incident is vague. She readily conceded that it is possible that there we only two incidents on the La-Z-Boy. She clearly recalls two.
159On the first two La-Z-Boy incidents, I find that the Crown has proven beyond a reasonable doubt that the accused twice intentionally touched A.B. while she was seated with him in his living room. Given the passage of time and the multiple, similar incidents on the La-Z-Boy, mixing up the order of the incidents does not leave me with a reasonable doubt that the incidents occurred. These were not accidental touchings – the accused went under her t-shirt to directly touch her breasts, both outside and inside her bra. For the same reason, I find the touchings were of a sexual nature. A.B. did not consent. I conclude that the accused knew or was wilfully blind to or reckless as to the complainant’s lack of consent: she never expressed consent through words or conduct.
160As for the third La-Z-Boy incident, I find, given A.B.’s uncertainty, that the Crown has not proven beyond a reasonable doubt that the third incident occurred.
The incidents in the accused’s vehicle
161The Crown alleges that the accused sexually assaulted A.B. on several occasions while driving her to various locations. Although there was evidence that some of the alleged touching in the accused’s vehicle may have occurred when the complainant was under the age of 14, the evidence of the complainant’s age was insufficient to reliably consider some of the alleged touching under the charge of sexual interference in Count 1. I have therefore considered the allegations solely under the charge of sexual assault in Count 2.
162A.B. testified that these instances occurred when the accused was driving her in one of his vehicles. They would be coming from Gatineau to Ottawa or going shopping at St. Laurent. She would sit in the passenger side. While they were in his vehicle, he would frequently put his right hand on her left thigh and put his hand on her vagina (on the outside of her clothes) to stroke her vagina with his pinky. She described the motion as a “come and go” movement of the accused’s pinky. The accused did this while the car was moving.
163A.B. testified that in response to the accused’s touching, she would put herself closer to the vehicle’s door and curl her body into a ball to protect herself. She froze. She would try to push the accused’s hand away, but he resisted.
164A.B. testified that there was more than one incident – at least ten. They occurred while the complainant was between the ages of 13 and 15. The incidents occurred in two different vehicles: a white Cavalier and in the accused’s work pickup truck. She thought the accused’s pickup truck was a Hydro-Québec truck, but she acknowledged that her recollection was not clear about that detail. The complainant could not recall which incident occurred in which vehicle.
165She could recall one incident when she sat in the backseat so that the accused would not touch her thighs and go farther. On that occasion, the accused touched her thigh but nothing else. When challenged on cross-examination, the complainant testified that on that occasion the vehicle was small and the accused’s hand could reach her in the backseat while the car was moving.
166The complainant recalled an occasion when they were driving from Gatineau to Rouyn-Noranda and the accused touched her while they were listening to the radio. But she could not remember any details.
167A.B. testified that she specifically recalled a particular incident in the accused’s truck. But there was some ambiguity regarding the surrounding circumstances of this incident. In examination-in-chief, the complainant testified that they were driving to St. Laurent and they had an accident. The touching occurred as she described above. The accused touched her vagina. By contrast, on cross-examination, the complainant testified that on one occasion they saw an accident when they were driving in Orléans or Embrun. By the time of this incident, the accused had already touched her several times in his vehicle.
168Although there is some ambiguity regarding the surrounding circumstances of this specific incident, it does not leave me in any doubt as to the accused’s course of conduct – that is repeatedly touching the complainant in his vehicle on several occasions without her consent.
169A.B. testified that the accused told her several times that she looked disappointed, sad, or isolated. She further testified that, on one occasion, he told her that he helped her parents with money and that he was going to stop helping her parents. He did not make a specific threat, or necessarily tell her not to talk about his touching her, but she took it as implying that she was not to talk.
170The complainant testified on cross-examination that these incidents occurred in a Cavalier or the accused’s work truck. She recalled his work truck was an old truck from Hydro-Québec. (C.D. testified that his father did not work for Hydro-Québec.) The complainant readily acknowledged, however, that it may not have been a truck from Hydro-Québec. She acknowledged that she may have the detail of the kind of truck wrong in her memory.
171The lack of memory regarding whether one of the vehicles was an old truck from Hydro-Québec or some other kind of truck does not lead me to doubt the reliability of the complainant’s evidence. The kind of truck is not a central feature of the events.
172In closing submissions, the accused argued that the complainant’s account of the incidents in the accused’s vehicle were incredible. The accused argues that it defies logic that he would try to touch the complainant while safely driving, especially while she was pushing the accused’s hand away. The accused also pointed to the size of the pickup truck and suggested it was improbable that he would be able to reach for the complainant and drive safely. The accused further suggested that the account of the incidents in the accused’s vehicle defies logic because he had frequent access to his granddaughter, and he would have had much easier and better opportunities to touch her.
173I disagree. There is nothing inherently improbable with the complainant’s account. I am not left in doubt because it might have been unsafe for the accused to drive while touching the complainant or to reach for her in the passenger seat, or to reach to touch her thighs in the backseat of his pickup truck. Nothing in the complainant’s account leads me to question how it was possible for the accused to drive while touching her or reaching for her. None of this activity is so inherently dangerous while driving as to raise a doubt in my mind.
174Nor am I left in doubt because the accused had frequent access to his granddaughter and could have had easier and better opportunities to touch her. One cannot assume that because the accused had easy access to the complainant at his home, for instance, that it defies logic that he would touch her while in his car. A better opportunity does not mean the accused did not take the opportunities that presented themselves in his vehicle.
175I find that the accused, on several separate occasions, intentionally touched the complainant’s vagina outside her clothes while she was in his vehicles. The touching was sexual in nature given the part of the complainant’s body he touched and the “come and go” motion the accused made with his finger. Further, he touched the complainant without her consent. It is plain from the circumstances that the accused knew or was wilfully blind to or reckless as to her lack of consent. On occasion, she pulled away, curled into a ball, or resisted, and he persisted in the touching. She never expressed consent in words or through conduct.
The incident in Gatineau
176The Crown alleges that the accused sexually assaulted A.B. in Gatineau, Québec when she was 15.
177A.B. testified that when she was 15 and at her home in Gatineau, she came out of the bathroom to go to her bedroom. The accused was in the hall as well. He put himself in front of the door, put one hand on her back, and with the other touched her breast then touched her vagina. The touching was over her clothes. The complainant could not recall how long the touching lasted, but characterized it as a few seconds.
178After the touching, A.B. went to ask her mother for money, possibly to go shopping. The accused took $50 from his pocket and gave it to the complainant. The accused had the habit of giving her money when she asked for money from her parents.
179I find that the Crown has proven beyond a reasonable doubt that the accused touched the complainant. The touching was not accidental, it was intentional: he blocked her way and directly touched her breast then vagina over her clothes. Given the places touched, the touching was of a sexual nature. The accused touched the complainant without her consent. I find that the accused knew or was wilfully blind to or reckless as to her lack of consent. She never expressed consent in words or through conduct.
Conclusion on sexual assault
180Accordingly, a conviction shall be entered on Count 2. I find that the accused is guilty of having committed sexual assault on multiple occasions, contrary to s. 271 of the Criminal Code.
Justice Owen Rees
Released: February 9, 2024
COURT FILE NO.: 21-SA4549-B
DATE: 2024/02/09
ONTARIO
SUPERIOR COURT OF JUSTICE
HIS MAJESTY THE KING
– and –
R.T.
Accused
REASONS FOR JUDGMENT
Rees J.
Released: February 9, 2024