ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
– and –
ABUBAKAR YUSUF DADABHAI
Defendant
D. Spence, for the Crown
J. Greenspan, B. Greenshields, and Z. Kay, for the Defendant
HEARD: October 9, 10, 11, and 15, 2024; December 4, 2024; February 3 and 13, 2025; and March 20 and 21, 2025.
molloy j.:
REASONS FOR JUDGMENT
1Abubakar Dadabhai was charged in 2022 with a sexual assault, which was alleged to have occurred in 1991. He was 21 years old at that time. The complainant is his cousin (A.T.). She became pregnant in April 1991 and had an abortion that May. She was 12 years old at that time. Although the Children’s Aid Society and police were notified, no charges were laid. A.T. contacted the police in 2022 and reported the assault again to different police officers. The charge now before me was then laid.
2The trial was scheduled to start before a jury on October 9, 2024. Mr. Dadabhai re-elected to be tried by me sitting without a jury. I heard evidence on October 9, 10, and 11 and closing arguments from counsel on October 15. I reserved my decision and then adjourned to December 3, 2024 to deliver my judgment.
3During the course of argument, defence counsel advised that she was not bringing a lost evidence application, but was relying on missing evidence as giving rise to a reasonable doubt as to the accused’s guilt.
4Subsequently, two weeks before the December 4th date for delivery of my decision, defence counsel asked me to hold off doing so to enable them to file a notice of application for a stay based on lost evidence. At that point, I had already completed Reasons for Judgment, which it had been my intention to release on December 4, 2024. However, I did not issue those reasons, and did not provide them to the parties. I adjourned the matter to February 3, 2025 for argument of the lost evidence application.
5On February 3, 2025, defence counsel sought a further adjournment to bring an application for a mistrial based on their assertion that the complainant had given evidence in another trial in January 2025 which contradicted her testimony before me in October 2024. I scheduled that motion to be heard on March 20, 2025.
6I heard further submissions from counsel on February 13, 2025 about what to do about the decision I had already written. I then filed those Reasons for Judgment in the court record as Exhibit A.
7Subsequently, the defence brought a motion requesting that I recuse myself from hearing further motions in this case based on an asserted reasonable apprehension of bias. Those allegations did not relate to anything that happened at the trial itself.
8On March 20, 2025, I heard submissions on the recusal motion. I reserved overnight and dismissed that motion the next day, with written reasons to follow. Those reasons are being released at the same time as these Reasons for Judgment: R. v. Dadabhai #2, 2025 ONSC 2588.
9On March 21, 2025 I heard the mistrial application, which I dismissed at the conclusion of the argument, indicating that written reasons will follow. Those reasons will be released in about the next week or so: R v. Dadabhai #3, 2025 ONSC 2589.
10I also heard argument on the lost evidence application on March 21, 2025. I reserved my decision on that application. I can now advise that the lost evidence application is also dismissed. My reasons for that decision will be delivered separately: R. v. Dadabhai #4, 2025 ONSC 2590.
11Having now disposed of these additional applications brought by the defence after the trial had concluded, it remains for me to deliver my decision on the trial itself. I find the accused Abubakar Dadabhai guilty of sexually assaulting as charged. My reasons for that decision are the same as I had written in my earlier decision dated December 4, 2024, which was not released at that time at the request of the defence. There was nothing from the mistrial application or the lost evidence application that caused me to have a reasonable doubt as to Mr. Dadabhai’s guilt. To the extent I deal with that issue in those two decisions, those reasons should be considered together with this decision.
12However, for the most part, I simply rely on my original decision, which follows, in its entirety, as Appendix A. To be clear, Appendix A forms part of my final reasons, along with subsequent findings made on the mistrial and lost evidence applications, to the extent that I deal with the substantive charges against Mr. Dadabhai based on the evidence at trial. Appendix A is the same as the document I marked as Exhibit A, apart from the previous neutral citation number, which no longer applies since it was from 2024, and the removal of the style of cause. The original was dated for release on December 4, 2024. This previous version of the reasons consisted of paragraphs 1 to 54. The concluding paragraph in that decision previously stated:
Counts 1 and 2 on the indictment are duplicative. I find A.D. guilty of sexual assault under Count 2. Count 1 (sexual touching) is stayed.
13Having raised this matter with counsel this morning, I am satisfied that this is an error. Count 1 (sexual interference with a child under the age of 14) is the more comprehensive count. Therefore, the appropriate disposition is that there is a conviction on Count 1 and Count 2 is therefore stayed a duplicative.
14I have deleted the original paragraph 54 of the original decision (quoted above). The Appendix containing the original decision is therefore 53 paragraphs long and covers paragraphs 15 to 67 of this decision. Following those reasons, under the heading “G. ADDENDUM: ADDITIONAL CONLUSIONS, is a summary of additional conclusions arising from the additional arguments on the merits advanced by defence counsel in the course of the applications.
APPENDIX A – REASONS FOR JUDGMENT DATED DECEMBER 4, 2024
A. INTRODUCTION
15There is no question that A.T. was sexually assaulted in April 1991. She was 12 years old and she became pregnant. On May 28, 1991, she had an abortion at the Toronto General Hospital. The aborted fetus had a gestational age of approximately seven to eight weeks.
16Both the Toronto Police Service (TPS) and the Children’s Aid Society of Toronto (CAS) investigated. Although A.T. had named her 21-year-old first cousin as the man who impregnated her, no charges were laid.
17After the abortion, A.T.’s father sent her to India to live with distant family members she had never met and to study at a religious Muslim school. She did not return to Toronto until she was 18 years old. By then, she had already been through an arranged marriage with a man in India and had a second abortion at a clinic there.
18In October 2022, A.T.’s father died. She felt unable to attend his funeral because the man she alleged assaulted her was a member of her father’s family and he would be in attendance at the funeral. Shortly after the funeral, A.T. contacted the TPS seeking to have charges laid against her first cousin, the accused A.D., for having assaulted her as a child. By then, 31 years had passed since the assault.
19A.D. was charged with sexually assaulting A.T. between April 2 and April 9, 1991. The trial proceeded before me, sitting without a jury, in October 2024. A.T. is now 45 years old. She testified at the trial, as did her mother. A.D. testified in his own defence. At the close of the evidence and argument from counsel, I reserved my decision.
20I am satisfied beyond a reasonable doubt that A.D. is guilty as charged. I do not find his evidence to be credible, nor does his evidence cause me to have a reasonable doubt. I find the testimony of the complainant A.T. to be highly credible. I have no doubt that she did her best to tell the truth about what happened to her, which caused her to become pregnant when she was 12 years old. The only real issue is whether her testimony is sufficiently reliable given some frailties in her memory and the absence of some relevant evidence that should have been obtained and retained by the TPS in 1991, but was not. Notwithstanding these difficulties, the core of A.T.’s evidence is unshaken. She knew the man who assaulted her, and has always known that, regardless of other details she may no longer remember accurately. I am satisfied beyond a reasonable doubt that she was impregnated by the accused when she was 12 years old. My detailed reasons for this conclusion follow.
B. THE EVIDENCE OF THE COMPLAINANT AND HER MOTHER
Testimony of the Complainant: Background and Assault
21A.T. testified that when she was 12 years old, she lived in the Flemingdon Park area with her mother, father, and three brothers. Theirs was a traditional, religious, Muslim family. Her parents had been born in India, but A.T. was born in Canada. She recalled going as a child with her family to the home of her father’s sister and her family, who also lived in Flemingdon Park. These were A.D.’s parents, but A.T. could not recall if he was living there when she went to visit. She had seen A.D. in the community, however, and knew who he was, and that he did not speak English.
22A.T. described the incident that led to her becoming pregnant in considerable detail. She said that her cousin approached her and asked if she would teach him to speak English. She said he looked at that time to be in his early twenties (he was 21) and was a recent immigrant to Canada. She agreed and he took her to a townhouse somewhere in Flemingdon Park. She did not know who lived there and did not know the address. There was nobody else there when they arrived. She thought he had a key and recalled that there were two levels, with a kitchen on the left and living room on the right as you entered, and two or three bedrooms upstairs. She said he took her into a bedroom and undressed her and himself, telling her as he did so that this was normal behaviour. He then took her to the bed, got on top of her, and started penetrating her with his penis. She said he was much taller and bigger than her and that she felt “scared, confused, helpless, and powerless.” She recalled one “random comment” that he made, telling her that she should wear a bra. A.T. said that he also touched her breasts, but did nothing else. He did not kiss her. She described the intercourse as not being “too long” but said it felt like a long time at that moment. Afterwards, she got off the bed. She described feeling “disoriented and confused.” She saw that there was blood on the bed, but did not understand at that time what this meant. She said she got dressed and walked home and that “everything was a blur.” She told nobody what had happened to her.
Events Surrounding Discovery of the Pregnancy
23Subsequent to the assault, A.T.’s mother noticed that A.T. had missed a menstrual period and took her to the doctor for a pregnancy test, which came back positive.
24A.T. could not remember how her father found out about the pregnancy, but she did recall telling him that it was her cousin A.D. who caused the pregnancy. She testified that her father’s reaction was not what she expected. She thought he would be furious, but instead he seemed uncaring, saying something like, “Oh, okay. We will deal with it.” She was taken for an abortion and soon after that, put on a plane to India and enrolled in an Islamic school there.
25A.T. said that at the same time she was going through dealing with being pregnant and the fact that everyone in their family and community knew about it, her parents were in the process of splitting up. She described this whole period of time as “chaos.” She said she felt guilty and ashamed, and was crying a lot. She remembers the house being filled with uncles and aunts, and also recalls one point where she was upstairs crying while her aunt (the mother of the accused) was patting her hair.
26Her memory of the details is not good. She said she had a vague recollection of the CAS and police involvement, but could not remember what she told them. She did remember that her father coached her on what she could and could not say to them.
27In cross-examination, it was put to A.T. that she denied having had sex until the pregnancy test came back positive. She testified that she has no memory of this, but did not dispute that according to the CAS records, that is what she said at the time. She also has no memory of telling the CAS or the police back in 1991 that the sex was consensual and that she was “in love” with her cousin. Again, this is something she maintains she simply does not remember, but she does not deny that statements to this effect are referred to in the CAS records. She agreed that these were lies that she told at the time.
The Abortion
28The abortion was performed at the Toronto General Hospital on May 28, 1991.
29On November 5, 2022, A.T. reported to the TPS that she had been sexually assaulted by A.D. in 1991. A police officer attended at her home and spoke with her about these allegations. Their conversation was recorded on the officer’s body-worn camera. Arrangements were then made for A.T. to come to the police station on November 26, 2022, at which time she provided a formal video-recorded statement.
30On November 5, 2022, A.T. told the officer that after she got pregnant she was “shipped off to India.” She said she remembered arriving in India, very young, alone, and pregnant. She also said she remembered that, very soon after, she took a bus to a clinic, and had the abortion there.
31Subsequent to the initial November 5, 2022 discussion with a police officer, and prior to the formal statement given on November 26, 2022, A.T. discussed this matter with her mother and a man named Ilyas Mullabhai (who was a close family friend at the time of the alleged assault, but has since died). They told her that they took her to Sick Kids Hospital in Toronto and that she had the abortion there before she went to India. A.T. requested her medical file from Sick Kids and the files from CAS. From these records she learned that the abortion had in fact been done at the Toronto General Hospital. When interviewed on November 26, 2022 she mistakenly said it was the Toronto Western Hospital, but that was soon corrected.
32In preparation for this trial, A.T. reviewed, for the first time, the video from the body-worn camera at the time of her conversation with the first police officer on November 5, 2022. After that review, she advised the police that she had been mistaken in her recollection of the abortion having been done in India. She explained that she had an arranged marriage in India when she was under the age of 18, became pregnant, and had an abortion there shortly before returning to Canada. She said that she had confused the location of that abortion with the abortion she had when she was 12 years old.
33At trial, A.T. testified that she has no current memory of the abortion she had when she was 12 years old, apart from the fact that she knew it had taken place. In cross-examination, A.T. agreed that on November 5, 2022 she believed she was telling the police officer the truth when she said she was still pregnant when she arrived in India. She also agreed that she had a clear memory of taking a bus to a clinic in India and having an abortion there. However, she said she experienced these two traumatic events when she was very young and that the second abortion occurred in similar circumstances of being forced to take that step after an unwanted pregnancy.
Testimony of the Complainant’s Mother
34A.T.’s mother (M.T.) was born in India, married there, and came to Canada in 1977, sponsored by her husband. She testified that this was an abusive relationship from the beginning. Eventually, she ended it, her husband moved out of the family home, and they later divorced. She could not recall the dates of the separation or divorce, and was not able to say if the separation was at the same time as her daughter’s pregnancy or at some time afterwards.
35She testified that in 1991, her own menstrual periods coincided with those of her daughter and that she therefore noticed when her daughter missed one of her periods. She said she took her to the family doctor for a pregnancy test. M.T. did not remember whether she asked her daughter if she had sexual intercourse before she arranged for the pregnancy test. I asked her when her daughter started having periods and she said it was roughly around the age of 11. She was about 12 ½ when she became pregnant. I then asked why she requested a pregnancy test after only one missed period and she said it was “just to satisfy my heart.”
36M.T. testified that her husband excluded her from discussions with A.T. about her pregnancy. However, she heard A.T. tell him that it was A.D. who had made her pregnant. M.T. said she was forbidden to talk about this with her daughter or with A.D. She was also excluded from all discussions with the police and the CAS. She had no involvement in her husband’s decision to send A.T. to India. She said she was afraid of her husband, and that A.T. also feared him. She recalled that A.T.’s pregnancy had no impact on her husband and that he did not seem to care.
37M.T. also testified that she has very little memory of these events, explaining that: she was in an abusive relationship; she knew that breaking up a marriage in a traditional Muslim family was a significant thing; she was worried about her daughter; she was not allowed at the time to talk to anybody about anything; and it all happened 32 years ago.
38I have not taken into account any of M.T.’s testimony about her discussions with A.D.’s mother. I find this to be inadmissible hearsay.
C. AGREED FACTS REGARDING EARLIER INVESTIGATIONS
39In May 1991, the TPS opened a file in relation to the investigation of A.T.’s pregnancy. Standard police protocol required that an occurrence report be generated. However, if that was done at the time, the report can no longer be located. There were two investigating officers who had a legal and professional duty to take notes of their investigation. For one officer, no notes at all can be located. The other officer had notes of some things, but no notes of the content of any statements provided by A.T., any family members or any family friends.
40On May 15, 1991, the two investigating officers went to the North York CAS office and met with A.T., her father, an uncle, and Mr. Mullabhai. After a discussion with the adults, the two officers interviewed A.T. privately in the presence of Mr. Mullabhai. Although the interview was tape recorded, the recording was left with the CAS and the police never obtained a copy. The tape can no longer be located by CAS.
41At the meeting on May 15, 1991, the police officers were informed that A.T. was scheduled to have an abortion. The abortion was performed at the Toronto General Hospital on May 28, 1991. The aborted fetus had a gestational age of approximately seven to eight weeks. The police did not seize or examine any tissues from the abortion, and did not make any effort to preserve any samples.
42The TPS opened a new file in relation to this matter in November 2022. Thereafter they made inquiries about whether the hospital had retained any material that could be used for DNA testing. However, in the summer of 2022, the hospital destroyed any biological and diagnostic material it had retained prior to 2003.
D. THE EVIDENCE OF THE ACCUSED
Testimony of A.D.
43A.D. was born in India but emigrated to Canada in 1990. He testified that he already had 3 uncles here in Canada and about 15 cousins. Many of the family members lived on the same street in the Flemingdon Park area of Toronto. He confirmed that A.T. was one of those cousins, being the daughter of his uncle. He said he did not “meet” her, but saw her at family occasions. In 1991, he learned that A.T. was pregnant. He said his parents came and told him that and also told him, “Your name came up.” In his examination in chief, he said this made him “scared” and he told his parents it was not him. He denied ever spending time alone with A.T. and denied asking her to teach him English. He also specifically denied ever having sexual intercourse with A.T.
44A.D.’s mother and A.T.’s father were brother and sister. The two families lived on the same street. In cross-examination, A.D. denied any memory of going with his family to the home of A.T.’s parents for dinner, and also denied any memory of that family coming to his home. He said that he did not know A.T. had been born in Canada or that she grew up speaking English. Also in cross-examination, he testified that he was “shocked” when his parents told him about A.T.’s pregnancy, but denied being “concerned” about the allegation made against him. He also denied that his mother suggested he should marry A.T. and said he did not know she had an abortion. He denied knowing that A.T. had gone to India in 1991.
Application of the Principles in R. v. W.(D.)[^1]
45The testimony of A.T. and the accused are diametrically opposed. If I believe her, he is guilty. If I believe him, he is not guilty. In these situations, it is crucial not to slip into making a determination as to which of the competing versions, or which witness, is more credible than the other. Approaching the task in that way ignores the presumption of innocence and runs the risk of placing a burden on the accused to prove his innocence, rather than keeping the burden of proof on the Crown to prove its case beyond a reasonable doubt. In the landmark case of R. v. W.(D.), the Supreme Court of Canada proposed a formula for the trial judge’s analysis in such cases, with a three-step approach as follows:
If I believe the testimony of A.D. denying that he had sexual intercourse with A.T., then I must find him not guilty.
Even if I do not fully believe A.D.’s evidence, if his evidence leaves me with a reasonable doubt, I must acquit.
If I do not have a reasonable doubt based on the defence evidence, I must go on to consider the whole of the evidence at trial (including the defence evidence) and determine whether I am satisfied beyond a reasonable doubt that A.D. committed the offence alleged.
46The Supreme Court was clear that the formula in W.(D.) is not required to be rigidly followed in every case. However, I find it to be the best approach in this case and I will follow it closely.
47The first step is to determine whether I believe A.D.’s testimony that this alleged assault simply did not happen. This is not a situation where he has a different version of an event that occurred. It is a complete denial of the act alleged. Obviously, if I believe him, he is not guilty of any offence.
48I do not believe A.D.’s evidence. He had recently come to Canada and was in a vulnerable position. He was 21 years old and was now accused of having impregnated his 12-year-old first cousin. He acknowledged that he knew A.T. was accusing him of this. However, he professed to have no other knowledge of what happened thereafter. This family was large and very close, and they also had close connections to other people from the same area of India who lived in the same neighbourhood. I do not find it believable that A.D. had no knowledge as to what happened with the pregnancy, nor that A.T. had been sent to India. A.T. was living in India with members of A.D.’s own family. It is inconceivable that she could have been there for six years without him ever knowing about it. She was the only girl in his uncle’s family and suddenly she was just gone. Surely, the absence would have been noticed. Even if nobody told him directly about the abortion or the banishment to India, he had a vested interest in finding out (given the accusation against him) and an easy way to get the information from his own close family members. I find that he lied about this in order to appear uninterested in anything about A.T.’s situation.
49I also do not believe his evidence that he did not know A.T. was born in Canada and was a fluent English speaker. In my view, he lied about this in order to avoid giving credence to the possibility that he asked A.T. to help him with his English.
50Although not the most significant point, I note that A.D. was also inconsistent about his own reaction upon being accused of impregnating his 12-year-old cousin. Initially, he said he was “scared” when he was told this, which I find to be understandable in the circumstances. However, in cross-examination he denied being “concerned” about it. The latter answer is typical of his tendency to deny and distance himself from every part of the complainant’s story.
51Given that he lied about these issues, I have no faith in his credibility with respect to the central issue concerning the assault itself.
52There is also nothing about A.D.’s evidence that causes me to have a reasonable doubt about his guilt. His blanket denials are simply not credible and there is nothing about his testimony that gives me pause.
E. STEP THREE: ANALYSIS OF THE WHOLE OF THE EVIDENCE
53What is important to recognize in this case is that there can be no doubt that A.T. was sexually assaulted in 1991, because she was only 12 years old, statutorily incapable of consenting to sexual intercourse, and she became pregnant. Somebody raped her. The only question is whether A.D. was that person.
54Before I can be satisfied beyond a reasonable doubt as to the guilt of A.D. based on the evidence of the complainant, I must determine that her evidence is both credible and reliable. Credibility has to do with whether a witness is telling the truth. Reliability is more nuanced and relates to whether the witness, although honest and trying her best to tell the truth, is nevertheless mistaken in her evidence. What is critical to this case is A.T.’s identification of her cousin A.D. as the person who sexually assaulted and impregnated her. If I found that A.T. deliberately lied about any particular in this case, even if it is not the central issue of the identity of the person who raped her, this would give me some cause to wonder whether I could believe her on that central issue. The honesty of a witness on all matters is important to any determination of her overall credibility. Likewise, testimony that is shown to be inherently unreliable on peripheral issues may also require the trier of fact to look even more closely at the central identity issue.
55There were many details about which A.T.’s memory was not reliable. She did not remember the precise location of the house where she said A.D. took her that day. She had only a vague recollection of there being a police and CAS investigation. She did not remember what she told the CAS at the time, although she remembered her father coaching her about what she could and could not say. However, she was 12 years old at the time, she was pregnant, her parent’s marriage was breaking up, and her entire life was in a state of turmoil. Furthermore, it is now 33 years since those events. It is perfectly understandable that she would not remember such peripheral details. This does not affect my assessment of her overall reliability. There were some details she remembered vividly (e.g., the comment about her needing to wear a bra, the fact that he never kissed her, and seeing blood on the bed afterwards). Other details were either not noticed at the time or have faded over time. That is understandable with any witness and particularly so with a witness who was a child at the time and where decades have since passed.2
56A.T.’s mistaken memory about the abortion that terminated this pregnancy is more troubling. She described an actual memory of arriving in India while still pregnant, travelling by bus to a clinic in India shortly after that, and having the abortion at that clinic. This is a completely false memory. She had the abortion in Toronto before she ever went to India. The fact of the abortion is not critical. The accurate information about the abortion is known because of the records kept at the Toronto General Hospital. The question is whether A.T.’s unreliability on this point is sufficiently concerning to undermine her evidence on the central issue of identity. This is not simply a matter of not remembering which hospital she went to for the abortion. Rather, in her police interview on November 5, 2022, A.T. described the circumstances of the abortion in vivid terms, including tangible memories of the bus and the clinic. Defence counsel submits that this is such a false memory about such a critical point that I cannot rely on the accuracy of her evidence about other matters, including the identity of the person who assaulted her.
57I do not agree. This “false memory” must be considered within the context in which it arose. This is not something that flowed from discussions with a third party who tainted her own memory and which she accepted as true, nor did it arise in the course of any kind of therapy. A.T. simply stated this to the officer as part of her initial narrative of events. Having since realized her error, the complainant has provided an explanation for her mistaken recollection. She has not completely misconstrued an event, or imagined something that never happened. She actually did have an abortion in India when she was still a teenager. It follows that her memory of going by bus to a clinic and having an abortion there is likely a real memory. However, the complainant mixed up that memory with the abortion she had five or six years earlier when in Toronto.
58It is important to remember what was going on in A.T.’s life during that period of time. She was a member of a traditional, religious, Muslim family. Yet, she found herself pregnant at the age of 12. This caused a huge commotion within her family, and resulted in her going to her doctor for a pregnancy test. She was pulled out of school. Meanwhile, her parents were embroiled in their own issues, and in the process of separating. After seeing her family doctor, she was taken to Sick Kids Hospital, and then to the Toronto General Hospital for an abortion. She was at a very early stage of the pregnancy. As a 12-year-old, she would have had very little understanding of these procedures. She was completely under the control of her father and felt that she had no choice but to do everything she was told. She was ashamed and felt guilty for bringing this embarrassment to her family. Then she was summarily sent to India, a culture with which she was entirely unfamiliar, to live with people who, although relatives, were strangers to her. She was alone and extremely vulnerable, without her mother, her father, and her three siblings who were close to her in age. She was sent to an Islamic religious school for the purpose, she said, of becoming a religious scholar to compensate for the shame she had brought to her family. She was then, still under the age of 18, forced into an arranged marriage and again became pregnant. This was the occasion of the second abortion, when she was only 17 years old. This young girl went through multiple traumatic events, all without the support of the only family she knew.
59This is the context within which she described the location of the second abortion to the officer on November 5, 2022, not realizing that this could not have been the abortion she had when she was 12 years old. She conflated the circumstances of the second abortion with the first one that she knew had taken place earlier. This was after a gap of 31 years during which time she was deliberately trying not to dwell on what had happened to her. She now says that she has no actual memory of the abortion procedure in Toronto, beyond knowing that it happened. Given her age and what was going on in her life, as well as the passage of time since, this is understandable. The procedure itself would likely not have been particularly memorable for a 12-year-old.
60The location of the first abortion is not a critical factor. Nothing at all turns on it. I do not take A.T.’s confused memory about this detail as indicative of the overall unreliability of her testimony in general, or on the central issue, which is the identity of the man who assaulted her. It is clear she was sexually assaulted within a narrow period of time, as the fetus was within seven to eight weeks at the time of the abortion. She had ample opportunity to observe her perpetrator. She knew him. There would be no reason at all for her to be confused as to his identity. She remembered many details of the event, including that her vagina was penetrated and the presence of blood on the bed. The memory of who it was is not tainted and has not faded through the passage of years or subsequent traumatic events, as was the case for the location of the abortion. She named her cousin as the man who assaulted her at the time. There is no reason whatsoever to find that this was a false and inaccurate memory. It was either an actual and reliable memory, or it was a lie.
61I found A.T. to be a truthful and honest witness. She fairly conceded things she could not remember. I found no trace of any vindictiveness, or any reason she would make up this story about her first cousin. There is no suggestion that this is a recent fabrication. A.T. identified her cousin A.D. as the perpetrator within two months of the incident. That is not to say that A.T.’s credibility as a witness at trial is bolstered by her prior consistent statement about the identity of the perpetrator. I do not consider it for that purpose. Indeed, in my view, it would be improper to consider it for purposes of determining credibility. However, it is relevant to consider the initial identification in terms of assessing the accuracy of A.T.’s evidence on the issue of reliability, particularly in light of the “false memory” of arriving in India while still pregnant and having the abortion there. Given that A.T. identified A.D. as the perpetrator at the time, her naming of him now cannot be attributed to some false memory that evolved over the course of 31 years, as would appear to have occurred with the abortion details. Given the circumstances, the identification is not an issue of reliability, but rather one of credibility.
62With respect to credibility, the only relevance of the initial identification of A.D. is to alter the lens that must be applied. If A.T. lied about A.D. being the person who assaulted her, it is a lie she told back in 1991. It cannot have been fabricated because of any recent event, such as the circumstances surrounding her father’s funeral. It is the circumstances around the assault and the discovery of her pregnancy that must be considered in terms of whether she lied about the perpetrator being A.D.
63A.T. was cross-examined about lies she told at the time of the CAS investigation. In particular, A.T. acknowledges that the CAS records show that: (1) she initially denied having had sex until the pregnancy test came back positive; (2) she said the sex was consensual; and (3) she said she was in love. There is no way to verify if the first statement about never having had sex was ever made. Her mother did not remember asking her that, and A.T. did not remember being asked. It is unclear who, if anyone, did ask, but the CAS records are likely hearsay on that point, as A.T.’s mother was never interviewed. It does not matter if A.T. said that the sex was consensual, or if she thought it was, or if she characterized herself as being “in love.” She was only 12 years old. She testified that her father told her what to say to CAS and she did what she was told. The fact that she may have told these falsehoods to CAS in 1991 is irrelevant to whether the accused is the perpetrator of this offence. It says nothing about her credibility as a mature adult under oath in a court of law.
64I am confident that A.T. was telling the truth at trial about what A.D. did to her. She did not appear to be exaggerating or inventing details. She was forthright about what she could remember and what she could not. I believe her. I am also confident that her memory as to the identification of the man who impregnated her is accurate and reliable.
65I have taken into account the substantial gaps in the evidence. None of the records from the interviews done by the police in 1991 are available, which is deplorable. It is also unfortunate that no tissue from the aborted fetus was retained. Perhaps this is attributable to the decision made at the time to take no further steps. Obviously, it would be preferable to have this evidence. I am well aware that a reasonable doubt can arise from the absence of evidence.3 Typically, this arises where there is a key piece of evidence one would expect to see, but which either does not exist or was not presented at trial. It can also arise in circumstantial evidence cases where the absence of a piece of evidence can cause a reasonable doubt because another possible explanation of the evidence inconsistent with guilt cannot be ruled out. This case is not like that. In the circumstances of this case, there is nothing about the nature of the “missing” evidence that causes me to have a reasonable doubt about whether the accused is the perpetrator of this offence.
F. CONCLUSION
66Our law does not require corroboration of a complainant’s testimony in order to make a finding of guilt in a sexual assault case. That is so even when the complainant was a young child at the time of the offence and even when decades have passed since the date of the offence. All that is required is that the evidence of the complainant be both reliable and credible. I find that it is both.
67As I said earlier, my starting point in this analysis was to reject the evidence of A.D. as I do not believe him. There is also nothing about his evidence that causes me to have a reasonable doubt about his guilt. Looking at the evidence as a whole, I do not find that the absence of evidence from the first “investigation” in 1991 causes me to have a reasonable doubt. The complainant was fair about what she clearly remembered and what she did not. She has a vivid memory of the accused having sexual intercourse with her, as a result of which she became pregnant. I am fully confident that she did not make that up. She is telling the truth. Further, her memory on the essential points is reliable. Notwithstanding the accused’s denials, I am satisfied beyond a reasonable doubt, based on the whole of the evidence, that he committed this offence.
G. ADDENDUM: ADDITIONAL CONLUSIONS
68The preceding paragraphs 13-66 are exactly as I had written them in November 2024 before any communication from defence counsel about bringing a lost evidence application.
69Since that time, I have heard extensive argument with respect to the credibility of the complainant (in the mistrial application) and the reasonable doubt that should arise from the missing evidence (in the lost evidence application). I stand by my reasons as I originally wrote them. My conclusions have not changed as a result of the further argument I heard from the defence.
70However, in light of some of the arguments on those two applications, I have some further comments. The full details on these points are in my decision on those two applications. However, there are some further points I should make.
71The purported focus of the mistrial application was the alleged differences between testimony given by A.T in the January 2025 trial and what she said in the trial before me. In the mistrial application, much was made by defence counsel about A.T.’s refusal to accept the accuracy of the CAS records as to what she told them and the police in 1991. Defence counsel argued that this position thwarted the ability of the defence to effectively attack the credibility of the complainant. Although there was reference to this issue in the closing submissions before me in October 2024, it was not with the same emphasis as was asserted in the argument of the mistrial application. I can say definitively that my assessment of the credibility of the complainant would not have been affected if a tape recording was produced, which proved she said the things attributed to her in the CAS records. Likewise, if the complainant had said before me that she recalled saying those things, but that they were untrue, my findings of credibility would be the same. The complainant testified before me that she lied to the CAS and police at the behest of her father and uncles in order to protect the accused. That is an admission of a prior inconsistent statement and a previous deliberate lie. This is relevant to credibility and I took it into account. However, before using that prior inconsistency to determine the credibility of other evidence of that witness, I am also required to take into account any explanation given by the witness for the discrepancy. As I noted in my original reasons, the complainant was 12 years old at the time, traumatized, and dominated by her father. She said she lied because she was ordered to do so by her elders. She believed she had brought shame and disgrace to the family and repeating what they told her to say was what she had to do to fix the problem. I find that to be a believable and understandable explanation for the former lies told to the CAS. I reject the argument that the complainant deliberately claimed not to remember the specifics of what she said to the authorities in order to protect herself from cross-examination and to tailor her evidence to avoid lines of cross-examination raised in the earlier s. 276 application brought by the defence. I accept that the complainant legitimately could not remember specifically the content of the lies she told, but that she did remember what actually happened to her. It is perfectly reasonable for a person to refuse to confirm the accuracy of words she cannot remember speaking. That is not the same as denying that the words were spoken. It is merely that she cannot remember what she said, although she knows that she lied. Those answers did not shield her at all from cross-examination and had no bearing on anything arising from the s. 276 application.
72I also disagree with the position taken by defence counsel on the mistrial application that the manner in which the complainant answered these questions made it impossible for the defence to pursue the issue of a possible alternative suspect. In her ruling on the s. 276 application, Sugunasiri J. permitted questions about whether the alleged sexual assaults by Mr. Dadabhai’s three brothers could fall into the category of something that could cause pregnancy and also to ask if there was any other sexual contact with unnamed persons in April 1991 that could have caused pregnancy, with permissible follow up questions, subject to the restriction of the trial judge.4 There was no cross-examination of the complainant before me about anything of this nature, nor did the defence raise the issue with me. Whether the complainant did or did not have a memory of what she said to the police or the CAS in 1991, these lines of inquiry could have been pursued if counsel chose to do so. She chose not to.
73Finally, there was considerable emphasis by the defence in the mistrial application about one point in the complainant’s testimony when she was asked if she could have made the statements attributed to her in the CAS records and she said “No.” The defence argued from this one exchange that this meant the complainant was rejecting the possibility that she ever told the CAS that she “had sex on a couple of occasions” and described being “in a relationship” and “falling in love.” That was not my understanding of the complainant’s evidence at the time of the trial, nor has my original impression changed. The entire exchange needs to be seen in context, which is as follows (from the cross-examination by Ms. Greenspan at trial):
Q. Okay. And that is how you described things when you spoke with the CAS and the police in 1991. You recall looking at the CAS sort of, slash police notes. Right?
A. Correct.
Q. Okay. And you told them that you had had sex on a couple of occasions and described a relationship as following, falling in love. Right?
A. Not my [indiscernible] memory.
Q. I’m sorry. Pardon me?
A. Not my own memory.
Q. Okay, but at least, looking at the notes, you accept that that is what you said in 1991?
A. That’s what’s documented in the notes.
Q. Do you accept that that is what you said to CAS and the police, is that you had had sex on a couple of occasions and described your relationship as falling in love?
A. I do not have a memory of that.
Q. Okay. Again, I just, I apologize to, to repeat that. Do you accept without having a memory that that is something that you could have said?
A. No.
74At the time, I did not take this answer as meaning that the complainant was alleging the CAS records were inaccurate because she never would have said such a thing. Her position throughout the trial was that she could not specifically confirm what was attributed to her in the notes because she had no actual memory of saying that. However, she did confirm that the statements attributed to her about the nature of her relationship with Mr. Dadabhai were untrue and that she recalled her father and his brothers coaching her on what she had to say in order to protect Mr. Dadabhai. I interpreted her answer to that specific question as consistent with her other evidence, which was that if she did not have a memory of specifically saying something, she could confirm that she said it. What is important is that she did not deny having said it, and consistently maintained that statements of that nature were untrue. The manner in which this one question was put is ambiguous because of the reference to the lack of memory within it. Defence counsel did not ask any follow up or clarifying questions. For example, the complainant was never asked if it was “impossible” that she would ever have said such things.
75It is clear that throughout questioning in 1991, A.T. always said that the person who made her pregnant was Mr. Dadabhai. She also said that she lied to keep him from getting into trouble, as directed by her fathers and uncles. When a woman becomes pregnant and wishes to ensure that a particular person does not “get into trouble” for having impregnated her, she can say one of two things: (1) that it was not him; or (2) that it was consensual. The complainant never said the former. It follows that whatever she was coached to say to the CAS could only have been about this being a consensual situation. That is the only other thing that could possibly protect a person accused of sexual assault. Simply as an exercise of logic, it is apparent to me that this is the nature of what she must have told the police and the CAS at the time. There is nothing else she could have said that would potentially protect Mr. Dadabhai. I emphasize, however, that this would not be a defence, then or now. A.T. was only 12 years old and incapable of consenting to sexual intercourse with her 21-year-old cousin, notwithstanding that the CAS and police at the time appear to have accepted it.
76Finally, I did refer in my reasons written in November 2024 to the issue of the absence of evidence giving rise to a reasonable doubt. Again, I stand by my original reasons on that point. However, I heard considerably more argument on that point during the lost evidence application. I have dismissed that application. However, before doing so, I did consider whether a lesser remedy than a stay of proceedings would be appropriate, and specifically whether the absence of such evidence could give rise to a reasonable doubt even if a stay of proceedings was not appropriate. I believe it was important to do that to ensure the fair trial rights of the accused, and notwithstanding the defence argument that the only adequate remedy is a stay of proceedings. Upon further reflection, I remain of the view that there is nothing about the missing evidence that gives rise to a reasonable doubt.
77Only two people actually know what happened in 1991 – A.T. and Mr. Dadabhai – both of whom testified at trial. The complainant admits prior inconsistent statements and that she lied to the CAS and police. I have found that this does not undermine the credibility of her identification of Mr. Dadabhai as the one who caused her pregnancy. The CAS handwritten notes and the closing summary from the CAS files are detailed and comprehensive. There is no reason to believe the tape recording of the interview would add anything material, nor that the memories of the CAS workers or police would be any different either. There is nothing about the missing CAS and police evidence that gives me a reasonable doubt, particularly given the detailed records that do exist. It is unfortunate, but understandable, that no tests were conducted of the tissue from the abortion in order to assess paternity. However, corroboration of a complainant’s evidence is not required in order to establish the guilt of the accused. The absence of forensic proof does not cause me to have a reasonable doubt. I remain satisfied on the whole of the evidence that the complainant’s version of events is both reliable and credible.
78I am satisfied beyond a reasonable doubt of Mr. Dadabhai’s guilt. I therefore find him guilty of sexual interference contrary to s. 151 of the Criminal Code as charged in paragraph 1 of the indictment. Count 2 (sexual assault) is duplicative and is stayed pursuant to the principles in Kienapple.
MOLLOY J.
Released: May 1, 2025
Footnotes
- R. v. B.(G.), 1990 CanLII 7308 (SCC), [1990] 2 S.C.R. 30, at p. 55; R. v. W.(R.), 1992 CanLII 56 (SCC), [1992] 2 S.C.R. 122, at pp. 132-134.
- R. v. Hassanzada, 2016 ONCA 284, 130 O.R. (3d) 81, at paras. 68-71.
- R. v. A.D., Reasons for Decision dated September 11, 2024, Sugunasiri J., (ONSC), unreported.
- R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742 [W.(D.)].