WARNING
The Court hearing this matter directs that the following should be attached to the file:
An order restricting publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:
486.4(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of
(a) any of the following offences;
(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or
(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or
(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).
(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).
(2) In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall
(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and
(b) on application made by the victim, the prosecutor or any such witness, make the order.
(2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.
(2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall
(a) as soon as feasible, inform the victim of their right to make an application for the order; and
(b) on application of the victim or the prosecutor, make the order.
(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.
(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22, 48; 2015, c. 13, s. 18.
486.6(1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15.
Court and Counsel
Court File No.: C.R. 23-23
Date: 2025/01/13
Ontario Superior Court of Justice
Between:
His Majesty the King
and
M.R.
Appearances:
Lorne Goldstein, Counsel for the Crown
Eric Granger, Counsel for the Accused
Heard: September 16-18, 2024
Reasons for Judgment
Lia Bramwell
What is this case about?
[1] In this case, I must decide whether M.R. is guilty of sexually assaulting or sexually interfering with his daughter C.R. in 2020 when C.R. was three years old and/or in April, 2021, when she was four years old.
[2] C.R. made two video-recorded statements to police, when she was three and four years old. In those statements, she said that her father poked her in her bum and in her vagina. Those statements formed part of her evidence at trial.
[3] When C.R. testified in court, she was eight years old. In court, she said that she did not remember much about the events she talked to the police about but she knew that some of the things she said to the police were not true. She said that she remembered her father putting diaper rash cream on her bum and vagina at times when she was a young child and she remembered him wiping her bum sometimes when she had trouble cleaning herself after using the toilet. She said she thinks she remembers someone poking her in the vagina or bum once but that it could have been her father or a woman who babysat her, at her father’s house, during the relevant time period.
[4] M.R. testified that when C.R. was three and four years old, he sometimes applied diaper rash cream to C.R.’s vaginal area and bum when she had diaper rashes before she was fully toilet trained, and he helped her clean her bum after she used the toilet sometimes. However, he denied ever touching C.R.’s vagina or bum for a sexual purpose.
[5] If I accept M.R.’s denial as true, he must be found not guilty.
[6] If I am not sure whether M.R.’s denial is true, then I have not rejected it entirely and he must be found not guilty.
[7] Even if I do reject M.R.’s denial, he cannot be found guilty unless I am satisfied that the rest of the evidence proves, beyond a reasonable doubt, that he is guilty.
[8] So, this case turns on whether I accept M.R.’s denial and, if I do not, whether the Crown has proven beyond a reasonable doubt that what C.R. said to the police when she was three and four-years-old is true.
What do I have to keep in mind when deciding whether M.R. is guilty of the charges?
Proof beyond a reasonable doubt
[9] I must start my decision-making process by presuming that M.R. is innocent. M.R. remains innocent until he is proven guilty. M.R. does not have to prove anything. It is the Crown that must prove that M.R. is guilty, not M.R. who must prove that he is not.
[10] Not only must the Crown prove that M.R. is guilty, but that he is guilty beyond a reasonable doubt. It is not enough for the Crown to convince me that M.R. is probably guilty or likely guilty of sexually assaulting and/or sexually interfering with C.R. The Crown must leave me with no reasonable doubt that he is guilty.
[11] If, after hearing all of the testimony, I think that M.R. is likely guilty but I am not sure, I have to find him not guilty.
Witness Credibility and Reliability
[12] In order to accept the testimony of a witness as true, I must find that it is both credible and reliable. Credibility and reliability are different. Credibility is about whether the witness is testifying honestly. Reliability is about whether the witness is testifying accurately. In determining whether a witness is testifying accurately, I have to consider whether that witness had the ability to accurately observe the events in question, accurately recall or remember later what happened and accurately explain what happened when the witness comes to court to testify.
[13] A witness who is not credible, in other words who is not testifying honestly about something, cannot give reliable testimony on that point. On the other hand, a witness may be testifying honestly but may still give unreliable or inaccurate evidence. In other words, an honest witness may be mistaken about the facts.
Do I accept M.R.’s denial?
[14] I find that neither the credibility nor the reliability of M.R.’s evidence was challenged in any meaningful way in cross-examination. This was not for a lack of trying on the part of the Crown but in this case, as in most, it is difficult to challenge what is, in essence, a flat-out denial of having committed the offence.
[15] I find that there were some aspects of M.R.’s evidence that supported his credibility. For example, he admitted that he touched C.R.’s vagina and bum many times when she was a child. He did not hesitate to admit this. He simply denied that he had ever done so for any purpose other than to apply diaper rash cream or clean C.R. after she used the toilet. As another example, despite his quite adamant testimony that he knows for a fact that C.R.’s mother physically abused C.R. and her two brothers, he readily agreed that he had no concerns, at any time, that the children were being sexually abused in her care. Despite the obvious animus that M.R. clearly has at this point towards C.R.’s mother, I find he did not take the opportunity to exaggerate or overreach or retaliate in his evidence by suggesting that C.R. was sexually abused while in her mother’s care.
[16] That being said, while I find that there are some aspects of M.R.’s evidence that support the credibility of that evidence, I am not able to find as a fact that his denial of having touched C.R. sexually is true. I simply do not know whether it is true or not. I do not necessarily accept M.R.’s denial as true. But I cannot reject his denial as untrue either. On this basis alone, M.R. is entitled to an acquittal.
[17] However, in the event that I am wrong in my conclusion with respect to M.R.’s evidence, I will go on to assess whether I would have convicted him if I had rejected his denial of having committed the offences. In other words, whether I find that C.R.’s evidence provides proof, beyond a reasonable doubt, that M.R. is guilty of the offences.
Was C.R.’s evidence credible and reliable?
[18] In order to find C.R.’s testimony to be proof, beyond a reasonable doubt, of M.R.’s guilt, I must be confident that her testimony was given honestly and that she was accurate when she talked about what happened.
[19] C.R. is a child. She was eight years old when she came to court to testify about events that took place when she was three and four years old. I must take the fact that she is a child into account when considering her evidence. A flaw in C.R.’s evidence should not, generally, be considered in the same way that a similar flaw in an adult’s evidence might be considered, particularly as it relates to details about, for example, time and location. I must consider C.R.’s testimony in the context of her mental development, understanding and ability to communicate, both now, as an eight-year-old, and at the time she gave her statements to police. [1]
[20] That being said, the fact that C.R. is a child does not mean that her testimony does not have to meet the same standard of proof beyond a reasonable doubt. I must apply common sense and consider the strengths and weaknesses of her testimony.
[21] Having carefully reviewed C.R.’s evidence, that being her two statements to the police and her evidence in court, I find that I have significant concerns about the credibility and reliability of C.R.’s evidence. The inconsistencies in her evidence make it unreliable to the point that it cannot be accepted as proof beyond a reasonable doubt that the alleged offences happened.
[22] First, I will set out my concerns about the credibility or honesty of C.R.’s evidence. I want to make it clear that in stating my concerns, I am not suggesting that C.R. was intentionally lying or trying to mislead the police in her statements or me when she was testifying in court. Rather, my concerns are better characterized as concerns that C.R. may have been influenced in what she told the police by her mother and/or other adults in her life. It is important to note that every time C.R. was asked directly or indirectly, by the police in her statements, or in court, whether her mother told her what to say about what her father had done, the answer, generally, was no. So, I am not saying that there is evidence before me that C.R.’s mother or any other adult in fact influenced or tainted C.R.’s evidence. However, I am concerned that C.R.’s statements to the police and her evidence in court may have been tainted, even inadvertently. I am also concerned that C.R. may not have fully understood the importance of telling the truth when she spoke to the police in her statements and that her account of the allegations is perhaps scripted.
[23] My concerns about C.R.’s credibility are based on the following:
First statement to police
a. When giving her first statement to the police on September 29, 2020, when she was three years old, C.R. disclosed the alleged sexual touching only seconds after her interview with the officer began. The officer did not even have a chance to have a discussion with C.R. about the importance of telling the truth before C.R. stated, in a way that was not responsive to anything she was asked, that her Daddy always pokes her in her bum and vagina. Immediately prior to making this statement, C.R. was constantly chattering, seemingly about nothing in particular, or indiscernibly.
b. When C.R. was asked by the officer, immediately after she made the statement that her Daddy always poked her, to provide more information, C.R. said that her Daddy poked her in the “apples” which turns out to be the word that C.R. used to describe her breasts. She said that this happened at night and in the morning at her father’s house.
c. C.R. then continued to repeat, multiple times, that her father poked her in her bum and her vagina, even when such statements were not responsive to what she’d been asked by the officer. It is this aspect of C.R.’s evidence in her statement that caused her allegations to come across as scripted.
d. When, after a significant portion of the interview had already been conducted, the officer tried to have a discussion with C.R. about the importance of telling the truth during the interview, C.R. was completely disengaged from the discussion. I do not say this to criticize C.R. in any way. She was a three-year-old child. But it was unclear that she was even paying attention to what the officer was trying to explain to her and so I am concerned that C.R. may not have understood the fundamental importance of telling the truth when speaking to the officer.
Second statement to police
e. C.R. said that when her mother drove her to the place the interview took place that day, her mother said that she was going there to tell the police that her Dad poked her in her vagina. Later, when asked what her mother told her to “say about this”, C.R. responded “she said go talk to the policeman.” When asked “did she say anything else?,” C.R. responded “No. I don’t know the rest.”
This raises two concerns. First, C.R.’s answer was internally inconsistent in that she said that her mother did not say anything else but then said that she didn’t remember what else her mother said. Second, C.R.’s evidence that her mother said something else to her about C.R.’s upcoming interview by police is part of the body of evidence that leads to my concerns about tainting of C.R.’s evidence, even inadvertently, because of comments made to her by adults.
f. Eleven minutes into the thirty-seven-minute interview, C.R. began asking to go back to her mother and wanting the interview to end. She repeated this request at least ten times over the twenty minutes that elapsed between the 11:11 mark and the 31:20 mark in the statement. The officer redirected C.R. multiple times by telling C.R. that she could see her mother in “a couple more minutes”. At around the 30:53 mark, the following exchange took place:
Officer: Did you tell your – so you told your mommy what happened at your dad’s?
C.R.: Now I’m over here.
Officer: And now you’re over here. Do you remember what you said?
C.R.: No.
Officer: No.
C.R.: No.
Officer: Okay.
C.R.: Okay. Now can we go to my mommy?
Officer: What – what else do you think I should know, C.R.?
C.R.: Mommy. Mommy.
Officer: Hey C.R., what else do you – is there anything else I should know?
C.R.: I want to go see mommy. I want to go see mommy.
Officer: Well, hang on. Hang on, C.R. Do you think I should know something else?
C.R.: Only one more.
Officer: What’s that?
C.R.: Daddy poked me in the vagina. Now can I go to my mommy?
In my view, C.R. made this statement at this juncture because she believed that doing so would give the officer what she wanted in the hopes that the officer would grant C.R.’s wish to end the interview and return to her mother. This is another example of the unfolding of C.R.’s evidence in a way that leads to my concerns that her evidence may have been tainted.
g. Shortly after C.R. made that statement to the officer, C.R.’s mother was brought into the interview room and remained there while the officer continued to question C.R. C.R. continued to protest and say that she didn’t want to talk to the officer anymore and that she wanted to go home. C.R.’s mother then told C.R. that she wasn’t being “nice” to the officer by not talking to her and that the officer had taken time out of her busy day to talk to C.R. Immediately following this, in answer to a direct question from the officer, in her mother’s presence, C.R. stated that her father poked her in her vagina with his finger. Again, in my view, there was clearly a link in C.R.’s mind between making that statement, being perceived by the adults in the room to be saying “the right thing”, and getting to leave the interview as a result.
h. Lastly, in her statements to the police and in her testimony in court, C.R. candidly admitted to a strong preference for her mother over her father. She clearly stated she loves her mother more and prefers her mother’s home. This is evidence of a clear bias on C.R.’s part against her father and in favour of her mother.
[24] In summary, I find that C.R.’s credibility was negatively impacted, largely because of the way in which her disclosure to the police unfolded. The allegations were made to police in a way that seemed scripted, rehearsed, unresponsive to questions posed to her, and lacking in detail. I also have concerns that, at age three and four, she did not understand the gravity of what she was saying and the importance of telling the truth. It also seemed clear, particularly in her second statement, that she was saying what she believed the officer she was speaking to needed to hear in order to allow C.R. to get out of the interview room and back to her mother. When her mother entered the room, instead of C.R. being allowed to leave it, it seemed as though C.R. may have simply stated what she understood her mother and the officer wanted to hear in order to bring the interview to a close. Lastly, I am concerned about the fact that C.R. displayed a clear bias and preference in favour of her mother.
[25] My concerns about the reliability or accuracy of C.R.’s evidence stem mainly from significant inconsistencies or seemingly nonsensical answers in her evidence. The following are examples:
a. The following exchange took place between the officer and C.R. during her first statement:
Officer: …Do you – can you tell me about – where do you sleep at Daddy’s house?
C.R.: At Mom’s.
Officer: At Mom’s. Okay. Where do you sleep at Mom’s house?
C.R.: At Grandma’s.
This is an example of a nonsensical answer.
b. Shortly after the exchange described above, C.R. explained, when asked, that the poking of her bum and vagina happened in her bed at her Dad’s house. She went on to explain that her bed was in an area of the house occupied by a woman she referred to as Piper, who I later learned in the trial was a friend of M.R.’s who stayed with him, to help out, when the children were with him. She was essentially a tenant who occupied the main floor of the house while M.R. and the children lived upstairs. However, immediately after saying that her father poked her while she slept in her bed, which was “in Piper’s place”, C.R. said that the poking happened in her father’s bed.
c. C.R. said in her first statement to the police that her father also poked her in the face. But in examination-in-chief in court, after watching the video, she said that was not true and that M.R. had never poked her in the face.
d. In examination-in-chief, when testifying about her first statement, C.R. said that her father, in her words, hurt her when he wiped her bum when she went poo. She said “that’s when he hurt me.” Then, in answer to a leading question, C.R. stated that her father hurt her in the privates, or vagina. She said that her father poked her in the vagina, once, when she was wearing a nightgown. The fact that she was wearing a nightgown was all she could remember.
e. C.R. testified in examination-in-chief, when speaking about her first statement to the police, that she made a mistake in that statement when she told the police that her father poked her in the vagina many times. She said in court that there was, in fact, only one time that she “felt it.”
f. In examination-in-chief, when testifying about her second statement to the police, C.R. said that when she told the police about having her eyes open a crack when her father touched her on her private parts, that was not true.
g. In her second statement to the police, C.R. gave inconsistent answers, within seconds, when asked whether her father helped her by wiping her bum when she went poo. She said no he did not but then said, seconds later, that yes, he did.
h. In examination-in-chief, C.R. was asked whether her second statement to the police was true. As stated earlier, she testified that the part of the statement in which she said that her eyes were a little bit open when her father poked her in the vagina was not true. She was then asked whether everything else she said in the statement, which had just been played in court, was true. She replied that she did not know. When prompted again, she answered, “….uh, yes” with some hesitation.
i. In examination-in-chief, C.R. said that the one time that she was poked in the vagina, she was wearing a nightgown with pants underneath. I understood her to mean she was wearing underwear under her nightgown. However, in her second statement to the police, C.R. said that she was wearing a pull-up and that her father had put his hand inside the pull-up when he poked her in the vagina. She agreed in cross-examination that it was possible that she only ever wore pyjamas, with a top and a bottom, when she stayed at her father’s.
j. In examination-in-chief, C.R. testified that while she remembered being poked in the vagina on one occasion when she was younger, she did not know who it was that poked her. She said it could have been “the girl in the basement” who she referred to as Piper or it could have been her father. She later said that she did not remember the poke that hurt her.
k. In examination-in-chief, C.R. confirmed that there was an occasion when she went to the doctor because it was painful for her when she peed and she cried out for her mother, who then took her to the doctor. When she went to the doctor, she learned that she had been hurt in her vagina. She did not remember how she got hurt. She testified that she got hurt somehow at her father’s house but she does not know how it happened or who else, if anyone, was involved. She agreed in cross-examination that she learned she’d been hurt in her vagina when she went to pee, not at the time the injury to her vagina happened.
A medical record relating to an examination of C.R.’s genitals conducted by a physician at CHEO on April 8, 2021 was tendered as an exhibit. It documents two linear lacerations at the entrance to C.R.’s vagina, one at the right side and one at the left side. There is no indication as to the length or depth of the lacerations. I agree with the submission of Mr. Rupp’s counsel that this record documents lacerations that explain why it hurt C.R. when she attempted to urinate at her mother’s home that day. However, there is nothing in this record that provides any evidence as to how the injury was caused. C.R. testified that she remembers being in pain when she tried to urinate the day she was taken to CHEO for this examination. But she did not remember what caused the small cuts to the entrance to her vagina. In my view, if a finger had been inserted in her vagina to the extent that it caused lacerations which caused her to feel pain the next time she urinated, one would expect that she would also remember, while testifying, the finger being inserted into her vagina at a time quite proximate to the pain she has a clear memory of.
[26] In summary, I find that there were significant inconsistencies in C.R.’s evidence. Some were inconsistencies found within her statements and some were inconsistencies between her statements and her examination-in-chief. Other aspects of C.R.’s evidence simply didn’t make sense. Again, this is not a criticism. She was very young at the time she gave her statements to the police and, even by the time she testified in court, she was only eight years old. She was testifying about events that took place, for her, half a lifetime ago.
[27] The bottom line is that when C.R.’s evidence as a whole is considered, all that is clear is that she thinks she was poked in the vagina once as a child and that it hurt. She does not know whether it was her father who did it. She agrees that her father put diaper rash cream on her bum and vagina when she was young and that he used his fingers to do so. She also agreed that it was possible that the only time her father touched her bum and vagina was when he was putting cream on her. It is also clear that she knows now that she made mistakes in what she told the police when she was three and four-years-old.
Conclusion
[28] Overall, I find that, even if I had rejected M.R.’s evidence and was not left in doubt by it, I would not have been able to accept C.R.’s evidence as proof beyond a reasonable doubt of the offences charged.
[29] I want to reiterate that nothing in these reasons is meant to suggest that the evidence in this case shows for a fact that C.R. did not tell the truth, either in court or to the police. I believe that when C.R. spoke to the police four years ago and when she came to court to testify, she did her best to answer the questions she was asked. But, as I said at the outset of these reasons, it is not enough for me to hear the evidence against an accused person in a criminal trial and to be left thinking that he could be or might be guilty or even that he is probably guilty. I must be convinced, to the very high standard of beyond a reasonable doubt, that he is guilty.
[30] The evidence in this case does not meet that standard. I am left unsure. And so, the benefit of that doubt must go to M.R. as the accused person. He must be found not guilty.
Lia Bramwell
Released: January 13, 2025