Court File and Parties

Court File No.: CR-21-695 Date: 2025-09-23 Ontario Superior Court of Justice

Between: His Majesty the King and A.(M.)

Counsel:

• Ryan Mullins, for the Crown
• Edmond Brown, for the Defendant

Heard: April 14-24, 2025

Publication is banned under s. 486.4 of the Criminal Code of any information that could reveal the complainant's identity

Reasons for Judgment

D.E. Harris J.

Introduction

[1] There have been two jury trials in this case, both ending with the jury being unable to reach verdicts. As the trial judge on the second jury trial, the parties have agreed that I resolve guilt or innocence under s. 669.2(4) and (5) of the Criminal Code. No additional evidence or submissions were heard. The record is the same as it was for the trial before the second jury.

[2] The accused is charged with three sexual offence counts against his step-daughter S.M., over a period of five years from the time when she was four years old to when she was nine. In a pre-trial application, the Crown applied before Petersen J. sitting as a case management judge to have S.M.'s two videotaped interviews to the police and the audio and transcript of her preliminary hearing evidence admitted into evidence at her trial as principled exceptions to the hearsay rule. With the support of an expert witness who had examined S.M., the Crown argued that there was a real possibility that the complainant would suffer psychological trauma if she testified in court. The necessity branch of the principled hearsay exception was satisfied. Petersen J. agreed with this necessity argument and also held that reliability had been established. The Crown's application to adduce the two videos and the audio in front of the jury was allowed: R. v. M.A.A., 2022 ONSC 6060.

[3] As a result, the complainant did not testify before the jury in the first or in the second trials. The jury did not have the opportunity to observe the complainant in person and watch her reaction to live questioning. Instead, the jury watched and heard:

(a) The video recording of S.M.'s statement to the police given on December 22, 2018;

(b) The video recording of S.M.'s statement to a social worker on January 23, 2019; and heard and read a transcript of,

(c) S.M.'s testimony at the preliminary inquiry given on February 22 and 23, 2021, including cross-examination by the defence.

Summary of the Evidence

[4] Together with the complainant's previous video interviews and her testimony at the preliminary hearing, there was also evidence given by the complainant's teachers when she first disclosed the alleged abuse. The complainant's mother also testified for the Crown. There was no objection to the admissibility of this evidence. In the defence case, the accused testified in his own defence. His mother and sister were also called as witnesses.

[5] I do not intend to reinvent the wheel. Appended to this judgment as Appendix A is the charge to the jury. The necessary redactions have been made to comply with the publication ban protecting the complainant's identity. The charge supplements these reasons. In the charge, legal instructions were provided to the jury on a number of topics, including the hearsay nature of the complainant's evidence and the limited use to which the complaint evidence could be put. These instructions distilled legal rulings made in the pre-charge conference with counsel. The same legal rulings and conclusions have been applied in these reasons.

The Counts in the Indictment

[6] The accused M.A. and S.M.'s mother, M.A., lived together as a couple for a period of time and S.M. lived with them. Two of the three counts took place during this period but the other count, count 1, occurred after the two had split up. All counts were for sexual touching of a person under 16 years of age:

i. Count 1 – The Mattress Incident

The first count charges what became known during the trial as the mattress incident taking place in Brampton at Primrose Crescent after A.M. and M.A. had parted ways. Although the first count, this was the last incident in time according to S.M. The offence period in the indictment was May 1, 2015 to June 30, 2017. The complainant being born in 2008, she was between seven and nine at the time of this alleged offence.

ii. Count 2 – The Shower Incident

The second count charges the alleged shower incident in St. Catharines when the accused and the complainant and her mother were living together. The offence period is May 1, 2012 to May 31, 2015. The complainant would have been somewhere between four and seven years old.

iii. Count 3 – The Bedroom Incidents

The third count charges the incidents that took place in between the time of counts 1 and 2. It is based on the evidence of S.M. at the preliminary hearing with respect to allegations that she disclosed for the first time in her examination-in-chief. The offence period is May 1, 2012 to May 31, 2017. The complainant was between four and nine years old.

Count 1

[7] After her mother A. and A.M. ended their relationship, S.M. was living in St. Catharines and M.A. was living at the Primrose address in Brampton with his mother and sister. It was the sixth birthday party of S., S.M.'s sister. Based on this milestone, S.M. would have been around nine years old.

[8] According to S.M. she was trying to get to sleep with her sister S. on a mattress in the basement. There was a light on above the kitchen stove which she could see from the mattress. She and her sister were sleeping perpendicular to each other. M.A. came out of his room and laid down behind S.M. She did not say exactly what he did in the first video but in the second, she said that, from behind, he took his penis and rubbed it for a bit between her thighs. He pulled her pants down to do this, S.M. later adding that it was to her knees. It was about two minutes she said in cross-examination at the preliminary hearing. Then he stopped and said "sorry".

[9] M.A. testified in his own defence. He denied this incident occurred as he denied the other allegations of sexual assault as well.

Count 2

[10] This is the count relating to the shower incident. It is the first in time. S.M.'s evidence was that she was showering by herself in the bathtub while living in St. Catharines. She initially said in the videos that she was six years old but then later at the preliminary hearing she said that she was four or five. Her mother A.M. said that they moved to Brampton from St. Catharines in November of 2012; S.M. would have been four and a half. S.M. said that she was getting out of the shower and M.A. was there, naked. He grabbed her by the arm and she almost tripped. He then put his penis in her mouth for a brief period of time. His mood seemed angry or stressed.

[11] Her mother A.M.'s evidence was that S.M. would not have showered on her own until she was six or seven years old. In my view, that discrepancy does not carry a great deal of weight given the general difficulty people have with dates and the extra difficulty experienced by a child: R. v. B. (G.), [1990] 2 S.C.R. 30, at pp. 54-56; R. v. W. (R.), [1992] 2 S.C.R. 122, at pp. 134-136; R. v. S. (A.), 165 C.C.C. (3d) 426, at p. 437.

Count 3

[12] This third count charges a period from 2012 to 2017 in Brampton. This is based on the allegations that were made by S.M. for the first time in examination in-chief at the preliminary hearing. The evidence suggests that this allegation is from the Archdekin residence in Brampton, the second house they lived at.

[13] In the first video, S.M. said that she may have forgotten some things. In the second video, she said, "Like I said before I think there was a third time. I'm not fully sure." Then at page 20 of the preliminary hearing in her examination in chief, S.M. interjected to ask if she could talk about another time that M.A. touched her apart from the other two incidents. She was in Brampton where she lived with her mother, M.A. and some of her siblings. M.A. in these instances would unzip his pants, pull down her pants, and rub his penis between her thighs, similar to the mattress incident. This would happen at night on the bed in the bedroom M.A. shared with her mother, A.M. M.A. would say sorry and leave the room or she herself would leave the room. S.M. said that it would happen twice a week at least. In cross-examination she said it was at least once a week. Her mother would be in the living room next to the kitchen or out somewhere and her siblings would be asleep. It should be mentioned that there was also evidence that sometimes S.M would walk on M.A.'s back in the bedroom. M.A. and A.M. also testified to this.

Findings with Respect to the Credibility of S.M.

[14] In her first videotaped statement, S.M. was very reluctant to reveal any details but disclosed in vague terms that there were sexual acts committed against her by M.A. The police force chose to have a male officer interview the 10 year old female complainant. By happenstance, I was the case management judge on an application by the Crown to admit expert evidence with respect to what was called "incremental disclosure" from S.M. That term referred to a complainant not giving the whole story all at once but rather disclosing it in pieces, incrementally. The application was dismissed: R. v. A.(M.), 2024 ONSC 655. Social science opinion evidence of this kind is rarely if ever admitted in sexual offence trials as it generally does not extend beyond the knowledge of a typical jury member and threatens to usurp the task of the finders of fact: R. v. Hoggard, 2024 ONCA 613, 173 O.R. (3d) 721, at paras. 26-45. Instead I instructed the jury on the well-known phenomenon, particularly evident with children, of not telling the entire story initially but rather supplementing it over time.

[15] In the course of that judgment, at paras. 15-22, I described the decision to have a male officer interview the 10 year old complainant as "shockingly inappropriate." Nothing I saw during the trial alters that view. However, the complainant's reluctance to divulge the intimidate details of the alleged sexual abuse at the hands of the defendant to a male officer, when placed into relief against the properly conducted interview soon after with the female social worker, has significance. The tone and content of the two interviews could not have been more different. With the social worker, S.M. had none of the same reluctance. Although not a strong finding, in my view it would be more likely that, if the allegations were fabricated, the complainant would have little reluctance to disclose no matter who her interlocutor was. That she was reluctant in the first interview bolsters her credibility to some limited extent.

[16] Credibility is a notoriously difficult quantity for a trial judge to assess. In R. c. Dinardo, 2008 SCC 24, quoting with approval from a previous judgment by the court, the Supreme Court said at para. 26:

Assessing credibility is not a science. It is very difficult for a trial judge to articulate with precision the complex intermingling of impressions that emerge after watching and listening to witnesses and attempting to reconcile the various versions of events. That is why this Court decided, most recently in H.L., that in the absence of a palpable and overriding error by the trial judge, his or her perceptions should be respected.

[17] This trial exemplified this difficulty in adjudging credibility. However, I have had multiple occasions to watch and listen to both of the video interviews as well as the preliminary hearing audio of the complainant's evidence. I found her to be a credible witness and think it unlikely that she knowingly fabricated these allegations. This is subject to an important caveat I will get to later. One of the indications that led me to this credibility conclusion is the perceived lack of hesitation or conscious thought between the questions put to her and her answers. There appeared, as best as I could tell, no mediation or filter intervening between the questions and her answers. She seemed very responsive and open. She answered promptly and with no reservations. In a ten year old child, I believe there may well have been some sign if this was a fabrication.

[18] Furthermore, the way the alleged sexual assaults occurred and what was said according to S.M. by the accused was plausible, in my mind. That M.A. was said to have apologized after the so called mattress incident in count 1 and the incidents in count 3 portrayed a man in deep conflict with himself: capable of horrific acts but, immediately following, remorseful for his own actions. He was acting under some terrible compulsion. It is difficult to imagine that S.M. would have made up such a complicated, conflicted psyche or imagined it at her young age. This, in my mind, made the allegations more believable.

The Complainant Evidence

[19] The circumstances under which an allegation of this kind emerges and is disclosed by a complainant can have importance. For example, if a complainant is being pressured in some way or another, that can impact on credibility. Likewise, a motive to fabricate and be apparent from the process of initial disclosure of the allegations. In this case, there was extensive evidence of S.M.'s first complaint about the sexual misconduct. In December 2018, S.M.'s grade five class was travelling by school bus to a movie theatre. S.M. drew a picture of a penis with a sharpie marker on the back of the seat in front of her. Her teacher, the principal and the school social worker got involved. S.M. was in trouble for vandalism. She was sent to the principal's office which was unusual for her. She was generally well-behaved. The teacher testified that S.M. was upset and put her head down. She was crying. She said that she was not the girl they thought she was. When the teacher asked whether there was anything she wanted to tell her, S.M. said that her mother's boyfriend, the accused, had done sexual things to her when she was 7 and 8. Her mother and the police were notified and the first police interview was then conducted soon afterward.

[20] The defence argued that the sexual allegations were a way out of the discipline S.M. was facing for vandalizing the school bus seat. The Crown argued that S.M. was not pressured by the school staff to make the allegations. I instructed the jury in the charge and self-direct myself here that the entire body of complaint evidence was hearsay and the majority of it constituted a prior consistent statement. For those dual reasons it was subject to the strictures that pertain to this type of evidence: see R. v. S.C., 2023 ONCA 832, at paras. 12-19; Dinardo, paras. 36-40. It was not admissible for its truth but only to explain how the allegation was first disclosed.

[21] In my view, this evidence does not significantly damage S.M.'s credibility. I do not think, based on all of the evidence, allegations of sexual misconduct against M.A. to deflect attention away from the vandalism makes much sense. It would be a wildly disproportionate response to being caught drawing a penis, particularly when it is considered that it has now been maintained from that first disclosure all the way through the preliminary hearing. The penis drawing may have been a plea for help of some kind, later elaborated on when S.M. made the specific allegations.

[22] S.M. in her first police interview, said that it was not a penis she drew but rather a butterfly. She later admitted in cross-examination at the preliminary hearing that this was false. It was a penis. She had been told by another student to draw it. I do not put much weight on this admitted falsehood. Any child of this age would be embarrassed and try to wiggle out of the situation. Furthermore, the butterfly lie is another symptom of the police misstep having a male officer interview the young complainant. Embarrassment at drawing a penis would have been more pronounced talking to a man than talking to a woman. At least to some extent, the lie was brought about by the improvident decision to have S.M. interviewed by a male officer. She was bound to be exceedingly awkward, distorting her account of the allegations.

Is the Evidence of S.M. Reliable?

[23] Despite finding S.M. generally credible, I do have concerns about reliability. At the preliminary hearing in February 2021, almost three years after she first made the allegations and was interviewed by the police, she disclosed for the first time and according to her, remembered for the first time, that sexual abuse used to occur almost every week.

[24] It was after watching the videotapes of herself made in late 2018 and early 2019 while on the witness stand at the preliminary hearing that the count 3 allegations first emerged in her examination in-chief. This was not evidence only of incremental disclosure. It was evidence of "recovered or repressed memory" as it has sometimes been referred to. Expert evidence explaining how memories can be recovered after disappearing for years or even decades has been held to be inadmissible: R. v. R.D., 2017 ONSC 1856, at paras. 38-59, aff'd 2019 ONCA 132, at para. 3. The Court of Appeal in that case held that the trial judge correctly excluded the proposed expert evidence on the basis that "it would impermissibly trench on the province of the fact finder by commenting directly on the credibility and reliability of the complainant." Based on this conclusion, as the finder of fact, I must make my own conclusions.

[25] There has been a good deal of skepticism aimed at recovered memory over the years, particularly in the 1980s and 1990s: see e.g. Issues Arising in Criminal Prosecutions for Distant Events by Marc Rosenberg (1995 Canadian Appellant Court Seminar /Colloque de 1995 des Cours d'appel over time canadiennes) LexisNexis, Alan D. Gold Collection of Criminal Law Articles, ADGN/RP-005 at paras. 14-26, 140-141). It is certainly arguable that the phenomenon of recovered memory has been more or less debunked. But it is unnecessary and inappropriate to do a deep dive into the literature on the topic. It would not be fair to the parties as the issue was not argued and, in any case, injecting social science research into this trial would not be proper. It would be to rely on expert commentary despite the prohibition in cases such as R.D. with respect to expert evidence.

[26] I make my own assessment based on common sense and my judicial experience. Recovered memory, as the phrase implies, refers to a process by which memories are lost but subsequently regained. During the period of loss, the memories have disappeared, or, at the least, are inaccessible. They may theoretically be blocked by psychological trauma. It is true that we all have lapses in which we cannot remember a particular event or a person's name, for example. Often, such lapses are relatively short lived. Recovered memory, however, refers to a process in which large bodies of memories are lost for a lengthy period of time.

[27] In this case, the period of time was at least from the commission of the offences (May 31, 2017 is the latest date in count 3 of the indictment) to February, 2021, when during questioning at the preliminary hearing, the memories were recovered. That is almost four years. The complainant was unable to retrieve the memories in the police interviews, although in the second interview she had a vague sense something else had happened. The loss of memory would have been from about age nine to almost 13.

[28] I would state these general propositions:

1. Memory as everyone knows is potentially unreliable;

2. In general, although subject to exceptions, the longer the time from the event, the less reliable becomes the memory of it;

3. The loss or fading of memories can be due to regular degradation over time, psychological disturbance or the influence of intervening events.

[29] In my view, for these reasons, it should be self-evident that recovered memories are less reliable than ordinary memories obtained and retrieved more or less as part of the routine process of memory. Furthermore, the process of loss and retrieval raises a serious concern that other memories and other experiences may have influenced the loss and retrieval process. The process of retrieval after a lengthy absence of memory is perhaps possible but this process is for the most part foreign to common, everyday human experience. Reliability is almost inevitably reduced where it is recovered memories at issue.

[30] Justice Rosenberg concludes in his very helpful article cited above, at para. 141:

Fundamentally, the court is not equipped to conduct a proper search for the historical truth from many decades earlier. There are existing tools which can be modified to ensure that these claims are properly tried. However, the most important tool which the court may have is a healthy scepticism for the reliability of claims which have taken so long to come to court. (Emphasis added)

[31] What S.M. did remember in reference to counts 1 and 2 may have suggested and led to her filling in with the new memories. In S.M.'s case she remembered the shower incident and the mattress incident and never lost those memories. These incidents were similar to the recovered memories charged in count 3. Moreover, although not at the same time or in the same place, these occurrences were within the same general time span. In addition, the criminal acts encompassed by count 3 were much more frequent and regular than the shower and mattress single incidents. One would have thought that on that basis alone, they would have been easier to remember, at least as a group if not each instance.

[32] Thus, in their particular context, the loss and subsequent recovery of the memories of the count 3 incidents is troubling. There is a reasonable possibility that the vagueness and delay in retrieving of the count 3 memories was a result of them being unconsciously derived or directly suggested by the shower and mattress memories. It is unsafe to rely on those memories given their recovered nature and their interweaving with S.M.'s other allegations.

[33] It is also important that it was only during the act of testifying that S.M., after so many years, remembered and retrieved these incidents. There was as with any witness, stress in testifying in court, which she had never done before. On balance, that significantly increases the concerns about unreliability. Retrieval was not in a neutral context. Furthermore, the incidents themselves were particularly unusual. They allegedly took place when her mother could have at any time walked into her bedroom although, it should be noted, that the presence of this degree of risk is strangely not unusual in interfamilial sexual assault allegations.

[34] Common sense tells us that recovered memory of the kind here is outside the body of human norms with respect to memory and should be viewed with skepticism as Justice Rosenberg concluded 30 years ago: also see R. v. Kruk, 2024 SCC 7, at para. 99. Moreover, while the accumulation of these circumstances surrounding this evidence led to the conclusion that the allegations in count 3 are unreliable, in my view, it does also affect S.M.'s reliability in general. In other words, if it is concluded that the incidents in count 3 testified to by the complainant likely did not happen, that finding must also affect her reliability at large.

The Hearsay Evidence

[35] The jury had only hearsay evidence from the complainant. They did not have the advantage of seeing her testify before them and were unable to gauge her reaction to contemporaneous cross-examination. As a consequence, my hearsay instructions in the charge were quite extensive, alerting the jury to the potential pitfalls arising from not seeing and listening to the witness in court during this trial.

[36] It may well be that the inability of two consecutive juries to decide the case was affected to some degree by not having the complainant in court before them. It was a factor for me too, although not one of major importance. The concern about not seeing S.M. live and observing her reaction and answers to questions would have been a larger problem if her evidence had been poor. But there remained some lingering discomfiture in being asked to find guilt in these circumstances. That is not surprising.

[37] Assessing a witness is not all about logic, reason and rationality. There is an intuitive aspect as well. It is true that great caution is necessary in judging demeanour but demeanour and physical presence before the trier of fact when under cross-examination cannot be dismissed as completely unimportant: R. v. S. (N.), 2012 SCC 72, [2012] 3 S.C.R. 726, at paras. 26-27. In this case, demeanour was observable in the highly distorted interview with the male police officer and also in the subsequent interview with the social worker. But it was not available for the testimony at the preliminary hearing, the only time when the complainant was cross-examined. In totality, the hearsay evidence from the complainant in this trial was in my mind not fully the equivalent of viva voce evidence before the jury.

The Defence Evidence

[38] M.A. testified and outright denied all the allegations. There was nothing in his evidence which would lead me to reject his evidence, with one possible exception. M.A. testified with respect to the mattress incident, count 1, that there was a mattress like described by S.M., in the basement. A picture of it was entered into evidence. He agreed S.M. was at his residence for her sister S.'s birthday but she did not sleep on the mattress. M.A. was emphatic that no one including S.M. were ever allowed to sleep on it. A spring was damaged and was sticking out of it, posing a safety hazard. Yet the children were permitted to play on the mattress.

[39] In cross-examination, M.A. was confronted with additional pictures of the mattress. M.A. said that he would allow the children to do what ever they wanted on the mattress, despite the springs popping out of it. M.A. insisted that the mattress was never left on the floor; it was always propped up against the wall. The Crown also challenged M.A. with respect to why there was a fitted sheet on the mattress as shown in the pictures if no one slept on it.

[40] M.A.'s sister, who lived in the home too, was called by the defence to support M.A.'s evidence with respect to the mattress. She said that the children played on the mattress but always slept with her. The fitted sheet was put on the mattress so it would look better, not so dirty. M.A.'s mother was also called and she offered some support as well for the accused's mattress evidence.

[41] I found the defendant's mattress evidence questionable. It seemed he was going to extreme ends to protest that S.M. never slept on the mattress. The logic of the mattress being used to play on but not to sleep on because of the hazardous springs poking out of it was dubious. If anything, one would have thought that sleeping on it would have been less hazardous than playing on it. At least when sleeping on it, it would have been possible to better control contact with the damaged springs. Also, there would be no reason to put a fitted sheet on the mattress if it was not being used to sleep on. I would also note that during the Crown's cross-examination in this area, M.A. became quite combative for the only time in his evidence, which only heightened my suspicions.

[42] This evidence leads me to question M.A.'s evidence. In the end, because of it, I cannot say I believe him in his denials. However, the mattress evidence was isolated. And even if S.M. slept on the mattress, it did not mean that M.A. was guilty as alleged. The evidence with respect to the mattress certainly tended towards the total rejection of his evidence, but it was not enough to do so in itself.

Final Conclusions

[43] I believe S.M. She was an honest witness. There is an important caveat, however. Believing the complainant in a criminal trial is different than believing a person outside of court, during regular interaction in our daily lives. In everyday life, when we say we believe someone, nothing else need be said. In criminal law, that changes. Due to the burden and standard of proof, the degree or certainty of the belief in the witness' evidence is all important. There are gradations. The finder of fact must examine the degree of certainty with great care. A belief in the veracity of a witness may often not be equivalent to the degree of certainty required by proof beyond a reasonable doubt. There are many lower levels of belief even when the evidence is seen in combination with other evidence that may bolster it.

[44] Despite finding that S.M. was an honest and credible witness, it is difficult to be "sure" of that as I must be in the full context of a trial: R v. Lifchus, [1997] 3 S.C.R. 320. Without significant external support, of which there is little in this case, or the force of compelling logic which was also absent, it is difficult to be sure of any single witness' evidence. And I cannot grant S.M. extra credibility for complaining in the first place, as that would violate the presumption of innocence: R. v. J.C., 2021 ONCA 131, at paras. 88-89. In addition, as explained, I have real concerns about the reliability of S.M.'s testimony in light of the recovered memory evidence.

[45] I found M.A.'s evidence and his denials unremarkable except for the mattress incident area. It is tempting to reject the entirety of his denials due to this evidence but I believe it would be disproportionate to the true dimensions of the problem. Instead, his evidence on this issue leads me not to believe him but not to outright reject his entire evidence.

[46] In the final analysis, the high degree of certainty required in a criminal case has not been achieved by the Crown. I am not sure of guilt. Looking at the defence case, I do not believe M.A. but cannot reject his evidence either. Based on these findings, I am obligated to enter not guilty verdicts on each of the three counts on the indictment.

[47] In leaving this case, I would like to salute S.M. for her courage in coming forward and bringing these allegations to the attention of the authorities at such a young age. Something likely happened along the lines she alleged in counts 1 and 2. However, the rigours of criminal court, and in particular, the necessity that proof be beyond a reasonable doubt, do not permit of findings of guilt in this case.

D.E. Harris J.

Released: September 23, 2025

Appendix A: Jury Charge – R. v. M.A.A.

Index

• INTRODUCTION
• DUTIES OF JUDGE AND JURY
• IRRELEVANCE OF OUTSIDE INFORMATION
• IRRELEVANCE OF PREJUDICE AND SYMPATHY
• IRRELEVANCE OF PUNISHMENT
• JURORS' APPROACH TO TASK
• FURTHER INSTRUCTIONS
• PROCEDURE FOR QUESTIONS
• REQUIREMENTS FOR A VERDICT
• PRESUMPTION OF INNOCENCE
• BURDEN OF PROOF
• PROOF BEYOND A REASONABLE DOUBT
• ASSESSMENT OF EVIDENCE
• THE APPLICATION OF THE BURDEN OF PROOF WHERE CREDIBILITY IS IMPORTANT
• A WARNING ABOUT ASSESSING M.A. CREDIBILITY
• EVIDENCE DEFINED
• DIRECT AND CIRCUMSTANTIAL EVIDENCE
• USE OF JUROR NOTES DURING DELIBERATIONS
• DEMEANOUR OF THE WITNESSES IN THIS TRIAL
• THE EVIDENCE
• THE EVIDENCE OF S.M.
• HEARSAY INSTRUCTION
• VIDEOTAPE EVIDENCE
• PRELIMINARY HEARING
• THE COMPLAINT EVIDENCE DECEMBER 19, 2018
• PRIOR INCONSISTENT STATEMENTS
• THE EVIDENCE OF CHILDREN
• COUNT 1
• COUNT 2
• COUNT 3
• THE EVIDENCE OF M.A.
• THE EVIDENCE OF M.A.'s MOTHER AND SISTER
• POSITION OF THE PARTIES
• DEFENCE POSITION
• CROWN POSITION
• USE OF VERDICT SHEET
• RETURN OF VERDICT
• JUROR CONDUCT DURING DELIBERATIONS
• REQUIREMENTS FOR VERDICT
• FINAL REMARKS

Introduction

[1] It is time for me to tell you about the law you must follow in making your decision. These instructions will cover a number of topics. Consider them as a whole.

Duties of Judge and Jury

[2] In every criminal jury trial, there are two judges. I am one. You are the other. As judge of the law, it is my duty to decide what evidence the law permits you to hear and consider and I give you the law at the end of the case. That is what I am doing now, in what is called the jury charge.

[3] As judges of the facts, you have three main duties:

[4] Your first duty is to decide what the facts are in this trial. You make that decision from all the evidence in the trial. Deciding the facts is your job, not mine. Put aside anything you think I might believe. It is your decision and your decision alone. That is your duty.

[5] The evidence does not and cannot answer every question raised in the case. It would be an unusual case in which a jury could say "We now know everything there is to know about the case."

[6] Your second duty is to accept all the rules of law that I tell you apply in the case. You are not allowed to pick and choose amongst my instructions on the law.

[7] Your third duty is to apply the law that I give you to the facts as you find them and come to a verdict. I will help you with this task by relating the evidence to the legal issues in the case.

[8] So, in summary:

1. Find the facts;
2. Accept the law from me; and
3. Apply the law and burden of proof I have given you to the facts as you find them.

That will then lead you to your verdict.

[9] If I make a mistake about the law, justice can still be done in the case. The court reporter records everything I say. The Court of Appeal can correct my mistakes. But justice will not be done if you wrongly apply the law. Your decisions are secret. You do not give reasons.

[10] The main issue in this case is did the incidents testified to by S.M. happen? The question you have to decide comes down to a credibility and reliability contest between S.M. and M.A. There are three counts:

i. the first count charges the alleged mattress incident taking place in Brampton at Primrose Crescent after A.M. and M.A. had broken up. Although the first count, this is the last incident in time according to S.M.

ii. the second count charges the alleged shower incident in St. Catharines; and

iii. the third count charges the incidents that took place in between the time of counts 1 and 2. This is based on the evidence of S.M. at the preliminary hearing with respect to new allegations that she disclosed for the first time then (see pp. 20-24 at tab 1 of the preliminary hearing transcript dated February 22, 2021 and for the cross-examination see the second day of the preliminary hearing transcript, tab 2, February 23, 2021, pp. 43-56).

[11] A separate verdict is required with respect to each count. On each count, the available verdicts are not guilty and guilty. The verdicts are separate and you deal with each individually, however, the evidence can be viewed by you as a whole. In other words, when looking at count 1, you can take into account evidence you heard with reference to count 3. And so on. The evidence is all one package for you to consider. The verdicts must be separate and individual.

Irrelevance of Outside Information

[12] You must disregard completely any information about the case which you did not hear in this courtroom. It would not be fair to decide the case on the basis of any information not introduced or tested by the parties in court and made part of the evidence at trial.

[13] Also, you have heard that there was another proceeding in this matter. Do not spend any time wondering about that. It is irrelevant and it will just be distracting.

Irrelevance of Prejudice and Sympathy

[14] You must consider the evidence and make your decision without sympathy, prejudice or fear. You must decide this case with no axe to grind and focus solely on the facts and the law I will tell you about. You might well be sympathetic to S.M. because of her young age for example. You might be sympathetic with M.A. because of his epilepsy. Put those sympathies aside, they should play no part in your determination.

[15] The other issue under this heading I want to specifically mention is racial or religious prejudice. M.A. is Muslim and from Pakistan, of South-Asian extraction. You all agreed in the jury selection process that this would not interfere with your function as jurors. And I have no doubt that you were sincere and honest about that. But I remind you of the issue again. Keep on your toes. Do not let stereotypes or myths intrude into your thinking or reasoning process.

[16] You are obviously a conscientious group from my observation of you. All of you agreed by solemn oath or affirmation when you were chosen as jury members that you would not let this affect you. So, exercise introspection and self-reflection to ensure this evidence is not misused by you and does not enter your thinking or feeling about the case. Do periodic checks on your self and on others during your deliberations. Make sure it plays no part in your decision.

Irrelevance of Punishment

[17] Punishment has nothing to do with your task. It has no place in your discussions or in your decision. If you find any of the accused guilty, it is my job, not yours, to decide what punishment is appropriate.

Jurors' Approach to Task

[18] It is traditional to give you a few tips on your discussions, despite the fact they might sound patronizing.

[19] When you go to your jury room to begin your discussions, it is important that no one starts off by telling everybody else that he or she has already made up his or her mind and will not change it, whatever anyone else may say. That is not the way to decide a case.

[20] You should choose a foreperson whose job it will be to lead and organize the discussions and to give the verdicts in court when you have completed your work.

[21] As jurors, it is your duty to talk with and listen to one another. Discuss the evidence. Put forward your own views. Listen to what others have to say. Try to reach an agreement if you can.

[22] Each of you has to decide the case for yourself. You should only do so, however, after you have considered the evidence with your fellow jurors and applied the law that I have explained to you.

[23] During your discussions, do not hesitate to re-consider your own opinions. Change your mind if you find that you are wrong. Do not give up your honest beliefs, however, just because others think differently. Do not change your mind only to get the case over with.

Further Instructions

[24] I may have to give you further instructions during your deliberations. Unless I tell you otherwise, do not consider any further instructions I may give you to be any more or less important than anything else I have said about the law. All the legal instructions, whenever they may be given, are part of the same package.

Procedure for Questions

[25] If, during your discussions, you have any questions, please put them in writing and give them to the court support staff who will be outside the door of your jury room. The question will be brought to me. I will discuss them with the lawyers. You will then be brought back into the courtroom. Your questions will be repeated, and I will answer them as quickly as I can and as best I can.

[26] I cannot give you transcripts of the evidence in this case. If you do want a refresher, you can put that into a question.

Requirements for a Verdict

[27] To return an effective verdict in the case requires that all of you agree on your decision. A verdict, whatever it may be, is the unanimous opinion of the whole jury.

[28] There are times, however, when a jury is unable to reach a verdict on any particular offence. Jurors have the right to disagree. You should make every reasonable effort, however, to reach a verdict. Consult, express your views, listen to the views of others, discuss your differences with an open mind. Try your best to decide the case.

[29] Everyone should give fair, neutral, and objective consideration to all the evidence. Your goal should be to reach an agreement that matches the individual judgment of each juror. You must not agree, however, only for the purpose of returning a unanimous verdict.

[30] I want to remind you of what was part of jury selection: objectivity, impartiality and being open minded. Ensure you approach deliberations without prejudice or bias. Be careful not to adopt a rigid one-dimensional view that may seep into your decision making.

[31] We bring stereotypes and implicit bias with us but we are often unaware of them. That makes them particularly difficult to root out. How do we ensure they are not affecting our judgment and decision making? Self-reflection is critical. Or you can call it self-awareness or introspection.

[32] One key thing about stereotypical thinking is that it imposes a formula on evidence. There ought to be no formulas, however. This is a human process. Use logic and your experience in evaluating behaviour. Look at the details of the evidence. Do not make assumptions and do not speculate. There are purely factual issues to be decided strictly on the evidence you have seen and heard in this courtroom.

[33] If you reach a unanimous verdict, your foreperson should record it on the verdict sheet I will give you and notify the court staff. We will come back into court to receive it. Your foreperson will tell us your verdict in the courtroom.

[34] If you cannot reach a unanimous verdict on a particular count, you should notify the staff in writing. Your message will be brought to me. I will discuss what has happened with the Crown and defence counsel. We will then return to the courtroom to see what we should do next.

Presumption of Innocence

[35] First of all, every person charged with an offence is presumed to be innocent, unless and until Crown counsel has proven his or her guilt beyond a reasonable doubt.

[36] The indictment on which you are trying the accused is only a formal accusation or charge. It tells the person charged, as it tells you, what specific crime Crown counsel alleges that the person charged committed. The charge is not evidence.

[37] The presumption of innocence means that the accused started the trial as an innocent man. The presumption stays with him throughout the case, including your deliberations at the end of the trial. It is only defeated if Crown counsel satisfies you beyond a reasonable doubt that the accused is guilty.

Burden of Proof

[38] An accused does not have to present evidence or prove anything in the case, in particular that they are innocent of the crime charged.

[39] From start to finish, it is Crown counsel who must prove the accused guilty beyond a reasonable doubt. It is Crown counsel who must prove the accused's guilt beyond a reasonable doubt, not the accused who must prove his innocence. He does not have to prove anything. You must find the accused not guilty unless Crown counsel satisfies you beyond a reasonable doubt that he is guilty of any of the offences in the indictment.

Proof Beyond a Reasonable Doubt

[40] The phrase "beyond a reasonable doubt" is a very important part of our criminal justice system. It expresses the high level of certainty which is required before a person is found guilty of a criminal offence.

[41] For a case to be proved beyond a reasonable doubt it is not enough for you to believe that the accused is probably or likely guilty. In those circumstances, you must find him not guilty because Crown counsel would have failed to satisfy you of guilt beyond a reasonable doubt. Proof of probable or likely guilt is not proof of guilt beyond a reasonable doubt. It is considerably lower.

[42] Probable and likely guilt lies lower in its degree of certainty than proof beyond a reasonable doubt. Above beyond a reasonable doubt lies absolute certainty. It is important to understand that it is nearly impossible to prove anything with absolute certainty. Crown counsel is not required to do so. Absolute certainty is a standard of proof that is unrealistically high.

[43] In the same vein, in order to find guilt, it is not proof beyond any doubt. It is proof beyond a reasonable doubt. A reasonable doubt is not a far-fetched or frivolous doubt. It is not a doubt based on sympathy or prejudice. It is a doubt based on reason and common sense. It is a doubt that logically arises from the evidence, or importantly, the lack of evidence.

[44] In moving along the spectrum from probable guilt to proof beyond a reasonable doubt and then finally to absolute certainty, reasonable doubt is situated much closer to absolute certainty than to proof on a balance of probabilities.

[45] The level of certainty expressed by the beyond a reasonable doubt standard is not one we generally use or are familiar with in our daily lives. It is considerably higher. It is important to come to grips with it in deciding this case. After applying the instructions I have given, a conclusion that guilt is proved beyond a reasonable doubt is equivalent with being "sure" that the accused is guilty.

[46] So, if at the end of the case, after considering all the evidence, you are sure that the accused is guilty, as the Crown alleges, then you should find him guilty, since you would have been satisfied of guilt beyond a reasonable doubt.

[47] If, at the end of the case, based on all of the evidence or the lack of evidence, you are not sure that the accused is guilty, you should find him not guilty.

[48] Summing up on the presumption of innocence and proof beyond a reasonable doubt, perhaps it has never been said better than Chief Justice Dickson said it in the Supreme Court decision of R. v. Oakes, [1986] 1 S.C.R. 103, at pp. 119-120:

The presumption of innocence protects the fundamental liberty and human dignity of any and every person accused by the state of criminal conduct. An individual charged with a criminal offence faces grave social and personal consequences, including potential loss of physical liberty, subjection to social stigma and ostracism from the community, as well as other social, psychological and economic harms. In light of the gravity of these consequences, the presumption of innocence is crucial. It ensures that, until the state proves an accused's guilt beyond all reasonable doubt, he or she is innocent. This is essential in a society committed to fairness and social justice. The presumption of innocence confirms our faith in humankind; it reflects our belief that individuals are decent and law-abiding members of the community until proven otherwise.

[49] One important word of caution. Proof beyond a reasonable doubt only applies to the essential elements of the offence, not basic questions of fact. If you subject each little piece of evidence to the beyond a reasonable doubt standard you would quickly become frozen and impossibly confused. Do not go about your task that way.

[50] Each of the three counts charged are of the offence of sexual interference. Sexual interference has these essential elements:

1. Touching with a part of the body;
2. For a sexual purpose; and
3. Of a person under the age of 16 years.

I do not think you need to be overly focussed on those elements. S.M. was under 16 years old at all relevant times. Second, if what she said about M.A. touching her on the two videos and at the time of the preliminary hearing is found to be true beyond a reasonable doubt, and you reject M.A.'s evidence—I will explain these aspects in more detail below—then what was testified to by her amounts to the offence of sexual interference. Each of the incidents involved were of M.A.'s penis touching S.M. I do not think you will have much trouble finding that there was a sexual purpose, a sexual intention. But that is up to you.

[51] So that gets us to the real issue in this case: Did the events or incidents testified to by Ms. S.M. happen? That is the sole issue in this case.

Assessment of Evidence

[52] To make your decision, you should consider carefully, and with an open mind, all the evidence presented during the trial. It will be up to you to decide how much or little you will believe and rely upon the testimony of any witness.

[53] Evidence is to be assessed cumulatively. Do not isolate evidence. Do not put it into separate silos. It is the totality of the evidence that is important. All evidence must be considered; obviously you will find some parts more important than others. But do not leave any behind. It is from all the evidence that you make findings of fact.

[54] It is up to you how you go about it. You can analyze a piece of evidence on its own but then do not forget that there may be other evidence which either reinforces it or diminishes it.

[55] When you go to your jury room to consider the case, use the same good judgment that you use every day in deciding whether people know what they are talking about and whether they are telling the truth. Just because someone says something does not mean that it is true, obviously. There is no magic formula for deciding how much or how little to believe of a witness' testimony or how much to rely on it in deciding the case. I spoke of that in my opening remarks when we began.

[56] I gave you a few tips in my opening remarks about how to assess witnesses. To make your decision, you should consider carefully, and with an open mind, all the evidence that is presented during the trial. It will be up to you to decide how much or little you will believe and rely upon the testimony of any witness. You may believe some, none or all of the testimony.

[57] As judges of the facts, it is for you to decide what inferences should be drawn from the evidence of the surrounding circumstances. What is crucial to remember in a criminal case is that the inferences to be drawn must be reasonable and they must arise from the evidence or the lack of evidence. In other words, you are not allowed to engage in speculation, guesswork or hunches. However, as finders of fact, what constitutes speculation is up to you. When counsel argued to you that something was speculation, it is your job to determine whether it is or whether there is evidentiary support for the proposed fact or inference. That is a factual question, a question within your exclusive area.

The Application of the Burden of Proof Where Credibility is Important

[58] The key aspect issue in this case is the credibility and reliability of S.M. and of M.A. This pertains to all the offences and issues. S.M. says these things happened. M.A. denied all the allegations. Credibility is focussed on the honesty and sincerity of a witness. Simply put, is the witness telling the truth, or are they twisting the truth, holding back, giving you only part of the true picture? Or are they outright lying? Reliability is an issue when a witness is attempting to tell the truth but their evidence, for whatever reason, is unreliable. Credibility and reliability can overlap in any given instance.

[59] I am going to give you a specific instruction with respect to M.A.'s testimony on the witness stand. The purpose of the special instruction I am about to give you is as follows. Judges' reasons and jury instructions over many decades have shown that in the common situation where there is direct opposition in the evidence between the Crown and the defence and credibility is important, there is a natural tendency and temptation to simply choose which of the two versions is preferred: M.A.'s evidence or S.M.'s evidence. The jury says that we prefer S.M.'s evidence over M.A.'s, for example, and therefore we find him guilty.

[60] This is a very frequent error and must be carefully guarded against. Deciding a case on the basis of mere preference for the Crown case over the defence case is fundamentally wrong. The reason for this is that it ignores the presumption of innocence and the requirement of proof beyond a reasonable doubt. It reduces the beyond a reasonable doubt standard of proof on the Crown and at the same time puts a weight or burden on the defence to prove innocence. The effect is that the vital presumption of innocence and the requirement of proof beyond a reasonable doubt in a criminal case are reduced to a matter of probabilities, more likely than not. That is the standard used in a civil case, not in a criminal case.

[61] A jury instruction has been formulated by the Supreme Court of Canada thirty years ago to guarantee that diminishing the beyond a reasonable doubt burden on the Crown in this way does not occur. This is the instruction:

First, if you believe M.A.'s evidence that he did not sexually touch S.M., you must find him not guilty;

Second, even if you do not believe M.A.'s denials but are left in a reasonable doubt by them and any other evidence you find that also favours the defence, you must also acquit and find him not guilty; and

Third, even if you are not left in doubt by M.A.'s evidence in the context of all of the evidence, you must ask yourself whether, on the basis of the evidence which you do accept, the Crown has convinced you beyond a reasonable doubt of his guilt.

[62] You do not necessarily have to follow the order of these three steps in deciding this case. It is up to you. But keep in mind the importance of not being lured into deciding this case by preference for Crown over the defence. Many a judge has fallen into this trap. The key point is that the Crown must prove the case, taking into account all of the evidence, beyond a reasonable doubt. You do not have to believe M.A. to find him not guilty. If M.A.'s evidence coupled with other evidence benefiting him leaves you in a reasonable doubt, you must acquit him. That is at the heart of our system. If you are unsure who to believe, you must acquit. Ensure that no findings of guilt against M.A. in this case on the essential elements of the offences are made unless you are convinced beyond a reasonable doubt taking into account all of the evidence.

A Warning About Assessing M.A.'s Credibility

[63] There is another aspect about M.A.'s evidence that requires a legal instruction. It has to do with assessing his credibility as a factual matter. The bottom line is that you should not put any weight on his interest in the outcome of the trial in assessing his credibility on the witness stand. That would be unfair.

[64] Why not? To consider it would be to violate the presumption of innocence. If one were to question credibility because an accused is on trial and testifying in their defence, then the fact he has been charged and is being tried before a jury is being used against him. Our law does not permit such reasoning as it directly conflicts with the presumption of innocence. And, furthermore, whether guilty or innocent, an accused has essentially the same interest in the outcome of the case. An innocent person has an interest in being acquitted; a guilty person has the same interest. So to use an accused's interest in the outcome would not be logical either.

Evidence Defined

[65] To decide what the facts are in the case, you must consider only the evidence that you saw and heard in the courtroom. Consider all the evidence in reaching your decision. That includes what the witnesses said and the exhibits.

[66] There will be a computer for you to access the electronic exhibits. Choose one or two people who are adept with a PC computer. They can access the exhibits. The staff will be able to assist if you need it.

[67] You will not have the recording of the preliminary hearing but will have the transcript of it. If you want to listen to the recording, let us know. We can play it for you.

[68] The evidence includes what each witness said in answering the questions the lawyers asked. The questions themselves are not evidence unless the witness agreed that what was asked was correct. The answers of the witness are the evidence. However, you obviously have to keep the question in mind because you cannot understand an answer fully without taking the question into account. You may believe all, some, or none of what a witness testified. That is up to you.

[69] As I explained to you earlier, there are some things that are not evidence. You must not consider or rely upon them to decide the case. The indictment or charges that you heard read out when we started the case is not evidence. It is a formal accusation reduced to paper. It has no value beyond that. When I and the lawyers spoke during the trial, that is not evidence.

[70] A word of warning. The question of why evidence was not called by one side or the other or why certain questions were or were not asked is one that juries and judges very often wonder about. That is a totally normal human instinct. Call it curiosity if you will. Whatever it is, please do not go there. You cannot draw any negative inference against either the Crown or the defence for not asking questions or not calling witnesses. Of importance under our system, counsel is not called upon, or indeed permitted, to explain his or her conduct of a case. And you are not allowed to draw anything from it.

Direct and Circumstantial Evidence

[71] In my opening instructions, I spoke to you about the terms "direct evidence" and "circumstantial evidence". You may believe or rely upon either one as much or as little as the other in deciding the case.

[72] A fact may be established by direct or circumstantial evidence. Direct evidence consists of the testimony of a witness who, with any of her physical senses, perceived the fact in question.

[73] Earlier, I gave you an illustration of direct evidence of a witness who said, "I saw it raining outside". However, you are not required to rely on direct evidence only. A fact may be established by circumstantial evidence as well. Although there may be no or insufficient direct evidence of a fact, you may infer the fact in issue from evidence of other surrounding facts.

[74] As an example of circumstantial evidence, imagine a witness who saw someone enter a building with a raincoat and umbrella, dripping wet. You might conclude that it was raining outside, even though the evidence was indirect. That indirect evidence is called circumstantial evidence.

[75] You will see by this example that the concept of "circumstantial evidence" is just a legal term to describe a mental process that we, as human beings, routinely employ throughout our everyday lives. We use observed or known facts, or what might be called primary facts as a basis from which to infer the existence of unobserved facts or events, or what we sometimes refer to as secondary facts.

[76] When considering what inferences, if any, you are prepared to draw, be sure that you do not consider evidence in isolation. Consider all of the evidence when deciding what inferences you are prepared to draw and rely upon.

[77] Like witnesses, things filed as exhibits may also provide direct or circumstantial evidence. You will have a computer to view the non-physical exhibits in this case.

[78] As judges of the facts, it is for you to decide what inferences should be drawn from the evidence of the surrounding circumstances. What is crucial to remember in a criminal case is that the inferences to be drawn must be reasonable and they must arise from the evidence or the lack of evidence.

[79] And remember as well that, depending upon your view of it, circumstantial evidence could lead to an inference that a fact does exist, but it may also lead to an inference that a fact does not exist.

[80] Do not jump to conclusions. A very helpful example again involving rain was referred to in a case decided by the Supreme Court of Canada several years ago. If we look out the window and see that the road is wet, we may jump to the conclusion that it has been raining. But we may then notice that the sidewalks are dry or that there is a loud noise coming from the distance that could be street-cleaning equipment and re-evaluate our premature conclusion. The observation that the road is wet, on its own, does not exclude other reasonable explanations. The inferences that may be drawn from this observation must be considered in light of all of the evidence and the absence of evidence, assessed logically, and in light of human experience. The moral of the story is do not jump to conclusions. Take into account all of the evidence.

[81] The law treats both direct evidence and circumstantial evidence equally. Neither is necessarily better or worse than the other. In each case, your job is to decide what conclusions you will reach based upon the evidence as a whole, both direct and circumstantial. To make your decision, use logic, good judgment and experience.

Use of Juror Notes During Deliberations

[82] When we began the trial, I told you that you could take notes to help you remember what any witness said in testifying here. Some of you have done so. You may take your notes with you to the jury room for your use during your deliberations.

[83] Your notes are not evidence, any more than the notes that I make or the lawyers make are evidence. The notes are to help you remember the evidence.

[84] It is also important to remember that the notes are those of the note-taker, not someone else. They may or may not coincide with other jurors' memories of the evidence.

[85] A jury's decision is a group decision. Everyone has a say. We depend on the memory and judgment of each one of you to decide the case. Do not simply give your responsibility over to the person who seems to be the best note-taker.

Demeanour of the Witnesses in This Trial

[86] Demeanour refers to the appearance of a witness on the witness stand. We all consciously and unconsciously rely to some degree on demeanour and the appearance of people in our daily lives, their facial expressions and body language. We look at demeanour together with and in combination with what they say. You are permitted to do the same in court. But here you must be particularly cautious.

[87] Caution is required with respect to demeanour evidence in court particularly when it is said to favour the Crown's case. Why? The reason is that it can be unreliable and hard to read. Particularly when you do not know a person, it is hard to say what is in their mind. You do not know any of the witnesses in this case. Second, the witnesses in this case were not people who testify regularly in court. Third, the courtroom setting increases pressure on people and can lead to nervousness and awkwardness. Demeanour evidence is soft evidence and it is prone to errors by the finder of fact‒that is, you‒in evaluating its worth. You can use it but be careful.

The Evidence

[88] My obligation to help you, members of the jury, is to summarize the evidence and to then relate it to the live issues in the case. In deciding what to summarize and what not to, I am making judgment calls from the total body of evidence you have heard. But as I have said, it is crucially important for you to use your own judgment as to what is relevant and how much detail is important. You are obligated to use your own judgment, findings of fact and conclusions. Some of the detail I am not going to summarize you may feel is important.

[89] You are the triers of fact. You alone make the factual findings. Not me and not the lawyers. I may summarize evidence you think is not terribly important. I may fail to summarize evidence you may find to be important.

[90] Deciding what is important and what is not is exclusively, 100% your job. It is what you think is important or not important that is critical. So you cannot just rely on my summary but rather you must make your own assessments. And of course, the same goes for my recollection of the evidence and my interpretation of it. It is your job. Ignore anything I say or that the lawyers say that you believe does not accurately recount the evidence. My summary of the evidence may implicitly suggest a way to look at it. I will remind you from time to time that these are matters for you, it is always your call, not mine. These are matters over which you have total decision-making authority; no one else does.

[91] And while we are on the subject, a reminder to always look at evidence cumulatively. Do not isolate evidence from other evidence. If you are examining a piece of evidence towards making a finding of fact, look to other evidence relevant or related to the area or topic.

The Evidence of S.M.

[92] The evidence of S.M. is central of course. She testified to events with M.A. which no one else was present for.

Hearsay Instruction

[93] I will start by giving you a hearsay instruction with reference to her evidence. This relates both to her two videotaped statements that you have watched and her preliminary hearing evidence which you have listened to. What you saw and heard is the evidence, the transcripts are merely an aid for you.

[94] Generally, in a trial, evidence comes from a witness in the witness box next to me. There is examination in chief by the party that calls the witness and then cross-examination by the other side. The cross-examination is a key to testing the truth and reliability of the evidence. You saw this occur with all the other witnesses in the case, even Ms. T. on Zoom.

[95] In this case, with reference to S.M., that did not happen. She did not appear here in court. Do not speculate why she did not appear. That will simply distract you. It is no part of your job to inquire into that and draw anything from it one way or the other. It is irrelevant and so I instruct you not to consider it.

[96] I do need to give you an instruction on the evidence that you did hear from S.M., however. Her evidence is hearsay. Hearsay refers to statements made out of court relied upon for their truth.

[97] Now, let us apply that definition of hearsay here. The videotaped statements are made out of court in interview rooms. The preliminary hearing evidence is also not something that came from a witness before you in this courtroom. It too meets the first requirement of hearsay—it is said out of court.

[98] These statements of S.M. are relied upon by the prosecution in this trial. They say that they are true and that you should rely upon them. That is an assertion of their truth.

[99] So, S.M.'s statements are:

1. All made out of court;
2. The contents of those statements are relied upon for their truth.

Both elements of hearsay then are present. The evidence is hearsay.

[100] The Supreme Court has said:

The law has conventionally favoured the evidence of witnesses who give evidence in court because they can be observed, under oath or affirmation, and their credibility and reliability can be tested by cross-examination. These elements help the trier of fact [that is you, the jury] assess the credibility of the declarant or witness, the reliability of the evidence, and the degree of probative force it carries. When these elements are absent, as is the case with a statement made outside of the court [that is a hearsay statement], it is more difficult for the trier of fact [you] to make these assessments. [The evidence can be unreliable because it cannot be tested in the same way in the court process].

[101] Most hearsay is inadmissible because it is viewed as unnecessary and unreliable. But there are so-called principled exceptions to the hearsay rule in which evidence can be admitted and heard by the jury. The videotaped statements and the preliminary hearing recording is entered into evidence before you as a hearsay exception. That does not mean that the evidence is necessarily equally reliable and satisfactory as if S.M. testified before you. There are still potential disadvantages. But the law sees the evidence as sufficiently reliable to be heard by a jury. It is your call how much weight you put or do not put on the evidence and ultimately how much weight you put on S.M.'s evidence. But you must consider the following in deciding that.

Videotape Evidence

[102] With respect to the videotaped statements, these are the features which stand in or substitute, at least to some extent, for seeing and hearing the witness live as you would if her evidence were non-hearsay and was given live in this courtroom.

[103] You can see S.M. on the videotaped evidence and assess her demeanour and appearance similar as you would in a courtroom but without the cross-examination. Demeanour, when taken with the content of a witness' evidence, may have some importance as I instructed you previously. Also, at the beginning of the first video dated December 22, 2018, S.M. demonstrated that she knew the difference between a lie and telling the truth. She then promised to tell the truth. That is equivalent to taking an oath on a holy book or making an affirmation as you have done when you became jury members. So that may give you some degree of assurance with respect to reliability.

[104] The major deficit in relying on the videotaped evidence is that there was no cross-examination at the time, as there would have been in court, the principal means by which evidence is tested in court. It has been termed the most powerful engine to get at the truth.

Preliminary Hearing

[105] With respect to the preliminary inquiry, the issue was the same there as here and the parties ‒ M.A. and the Crown‒ were the same. The evidence is equivalent to evidence given in this courtroom in this way. The substitutes that help to fill in and provide some reliability for the hearsay dangers are that the evidence was also given after a promise to tell the truth, the hearing was audio recorded and, most importantly, counsel for M.A. had the opportunity to cross-examine S.M.. You can also look at the fact that the videotape was played during her evidence and she and the lawyers viewed it. She could and was cross-examined on it and her evidence while on the witness stand.

[106] On the other side, in examining the transcript, you cannot observe S.M.'s demeanour on the witness stand. That may be a handicap depending on your views in assessing reliability and credibility.

[107] So in summary, compared to the usual way evidence is called from a witness here before us, there are some differences. You must examine those with some care in assessing the credibility and reliability of S.M. The biggest and most important difference is that you did not see her cross-examined live before you.

The Complaint Evidence December 19, 2018

[108] This refers to the first disclosure by S.M. of the acts she said M.A. committed on her. Remember the evidence from her and from the Westmount teachers and Principal. S.M. was in Grade 5 and 10 years old (DOB May 11, 2008). On the bus, she drew a penis in permanent Sharpie on the seat in front of her. She was in trouble for vandalism from Ms. T. and was sent to B.'s office. Ms. T. did not send students to the principal's office frequently. Before B. arrived, to the question of why she had done it, S.M. said, "I am not the girl you think I am, I have done bad things." She put her head down and started to cry.

[109] Then Ms. T. asked S.M. if there was anything she would like to tell her. S.M. told her that she tried to hurt herself in the past and tried to run away. S.M. then said that her mother's ex-boyfriend had done bad things to her. Ms. T. asked whether she meant sexually and S.M. responded yes. It happened when she was 7 and 8 years old. You can ask yourself whether that question from Ms. T., whether it was sexual, was suggestive or leading and may have started the whole ball rolling in this case. That's a factual matter and up to you entirely.

[110] When Bradley B. arrived on the scene with S.M., social worker C. V. and Ms. T., this story was confirmed in their presence. B. added that S.M. said that she had gone to stay on her own with her mother's ex-boyfriend. Ms. V.t said that S.M. said it happened on an access visit with Dad in Brampton.

[111] So that is the disclosure\complaint evidence. It is a summary and so there may well be other parts of it that you may feel are important. I need to give you an important instruction with reference to this evidence. It is correctly seen as hearsay based on the definition I gave you earlier:

1. An out of court statement. This was a statement made at Westmount School by S.M. So it was made out of court; and
2. Admitted into evidence for its truth.

That leads to the question, what purpose can this evidence be potentially used for?

[112] The bottom line is that you cannot use this evidence for its truth. That is not a proper or permitted purpose. That would make it hearsay. Unlike the videotaped statements and the preliminary hearing, it is not an exception to the hearsay rule. Therefore it does not go in for its truth, that is to prove directly that M.A. is guilty of the offences. It is unlike S.M.'s videotaped evidence and her preliminary hearing evidence in that respect. You cannot use this complaint evidence in the same way.

[113] There is a second reason that this evidence is not admissible for its truth. Just because someone makes the same or a similar allegation more than once does not make it more, or less, believable. It is important that you do not give extra weight to S.M.'s videotape and preliminary hearing evidence because you feel it is confirmed or supported by her original complaint evidence. That is an easy and tempting trap to fall into but it would be illogical and is prohibited by the law. It is known as a prior consistent statement.

[114] It may be a good time to also advise you that S.M. making a complaint and elaborating upon it in her statements does not enhance her credibility or reliability for another reason. Just because someone complains, the law does not presume it to be true. To use it this way would be contrary to the presumption of innocence. Remember what I said to you earlier about the centrality of that in our system.

[115] I should say that I am well aware that these instructions about the complaint evidence are not necessarily easy to understand and follow. To some extent, they may be said to be artificial. But they are legal rules developed over many decades and are well entrenched in our law. There are very good reasons for them. I cannot explain in too much detail the underlying reasons as it would lead us too far astray from what is at hand. But it is very important that you follow them.

[116] That raises the question, if this complaint evidence cannot be used to determine the truth of the allegations, what is the proper use of this evidence? The answer is it simply explains how it was that the disclosure was made to the authorities. According to the indictment and the evidence, by this time, the alleged offences complained of were at least two years in the past. It may be important to your consideration to know how the complaint and the reporting was divulged. So now you know that. Also, you can look at the consistency or inconsistency of S.M.'s account but cannot use this evidence for its truth.

[117] Another quick word with respect to the disclosure by S.M. There was a significant delay between the offences and reporting it to the teachers at Westmount. Nothing was said to her mother or anyone else in this period. You are permitted to look at this delay in terms of the reliability and credibility of S.M. Delay however is only one factor to look at amongst others. It cannot on its own demonstrate a lack of credibility or reliability. Different victims will react differently. Some persons may make an immediate complaint, some will delay in disclosing the abuse, while some will never disclose at all. There is no set way of disclosing. Look at all of S.M.'s circumstances including her young age at the time. Delay can be factored in if you think it is important. It is your call.

[118] You heard some evidence about S.M.'s concerning behaviours from her mother including hospitalization. This evidence should probably not have been heard by you. You cannot use this evidence to argue backwards, drawing an inference from those behaviours to her credibility or reliability with respect to the allegations. Put this evidence out of your mind. It is irrelevant to your job here. The same is true for the drawing of the penis. You cannot infer that this helps the Crown in showing that S.M. was sexually abused. She said that she was told to draw it by Jenna.

Prior Inconsistent Statements

[119] This instruction applies to all witnesses in this trial. If you find that a witness said one thing and something different about the same subject on a different occasion, such as during a police interview or a preliminary inquiry; it is for you to determine what effect any inconsistencies will have on your overall assessment of the witness's credibility and reliability. They may have a large effect, or no effect, or something in between.

[120] Not every difference is important. Consider the extent and nature of any difference. Was it on a central point or something peripheral? Consider any explanation the witness gave. Was the explanation satisfactory?

[121] Whether an inconsistency is material or peripheral is important, as is the overall context of the inconsistency. Within that context, you can consider the age of the witness at the time of the events to which she is testifying, the age of the witness at the time that she is giving a police statement, and the age of the witness at the time that she is testifying.

[122] When a witness's credibility or reliability is challenged on the basis of inconsistencies between her evidence at trial and prior statements, then points of consistency on essential aspects of the allegations can also be relevant to your assessment of the witness's credibility and reliability. You must consider the entirety of the evidence relating to the witnesses' various statements, including the consistencies in those statements, in deciding the impact of any inconsistencies in those statements.

[123] I will now go through the evidence count by count. I am not going to go through step by step the three accounts S.M. gave in the two videos and in the preliminary hearing and pick out differences for you. There may well be some inconsistences between the three. You are of course free to examine and decide their importance.

The Evidence of Children

[124] S.M. was 10 years old in the video statements and almost 13 at the time of the preliminary inquiry. On each occasion, she explained her understanding of the difference between the truth and a lie. At the preliminary hearing, she promised to tell the truth. Her promise to tell the truth has the same effect as an oath or affirmation for an older witness.

[125] Young witnesses do not always have the same ability as adults to recall precise details or to describe events fully and accurately. For this reason, you may choose to regard inconsistencies in S.M.'s evidence in a different manner than you would have had the evidence been given by an adult. The important thing to consider is the significance of any inconsistencies and whether they point to S.M.'s having misconceived, twisted or falsified the events.

[126] It is up to you to say, as with any witness, how much or how little you believe, and how much you will or will not rely upon a witness' evidence to decide this case. Consider each witness' ability to observe and remember what happened, and in the case of a child witness, as here, S.M., her maturity, life experience, ability to recall the events, her ability to observe, her language facility and her sense of safety when giving the evidence. Did S.M. understand the questions that were asked and did she give truthful and accurate answers? Where there were differences in what S.M. said on different occasions, ask yourself whether they related to something important or something minor.

[127] We all know that children are different from adults. You should not assume that children are less reliable witnesses than adults, or that their testimony should not be examined on the same basis as adult testimony. But you will have to look closely at the details. There is no confirmation for S.M.'s evidence but in law there does not need to be in order to find M.A. guilty. But this might be something to examine if you wish. Use your good judgment.

Count 1

[128] This is the mattress count. After her mother A.M. and M.A. ended their relationship, S.M. was living in St. Catharines and M.A. was living at the Primrose address in Brampton with his mother and sister. It was Sameha's sixth birthday party. Given that she was born in June 2011 according to her mother, this would likely have been in June 2017. S.M. would have been about nine years old by that math. Exact dates are not of great consequence in this trial.

[129] According to S.M., she was trying to get to sleep with S. on a mattress in the basement. Sameha is a deep sleeper and was asleep. There was a light on above the kitchen stove. She and her sister were sleeping perpendicular to each other. M.A. came out of his room and laid down behind her. She did not say exactly what he did in the first video but in the second, she said that, from behind, he took his penis and rubbed it for a bit between her two thighs. He pulled her pants down first, later saying it was to her knees. It was about two minutes she said in cross-examination at the preliminary hearing, and then he stopped and said "sorry". In the first video she told the police that she said stop; in the second, she said she tried to say stop or something like it. At the preliminary hearing, she said that M.A. unzipped his pants before this happened.

[130] One issue you should look at—and what you make of it is up to you—has to do with the drawing on the bus. As I said, S.M. was in trouble when the drawing came to light. In the first video on December 22, 2018, she said it was a drawing of a butterfly. She denied trying to draw a penis. At the preliminary hearing however, when she was almost 13 years old, she admitted that the butterfly story she told was not true. She was told by Jenna to draw a penis and she did. Up to you what, if anything, you make of that with reference to S.M.'s credibility or reliability. It is a general credibility issue and can affect all three counts, not just this one. Generally, as previously mentioned, take all the evidence cumulatively on all counts but you must analyze and bring in a verdict on each count separately and individually.

Count 2

[131] This is the count relating to the shower incident. It is the first in time. S.M.'s evidence is that she was showering by herself in the bathtub while living in St. Catharines. She initially said in the videos that she was six years old but then later at the preliminary hearing she said that she was four or five. Her mother A.M. said that they moved to Brampton in November of 2012, she would have been four and a half. S.M. said that she was getting out of the shower and M.A. was there, naked. He grabbed her by the arm and she almost tripped. He then put his penis in her mouth for a brief period of time. His mood seemed angry or maybe stressed.

[132] You will remember her mother A.M.'s evidence that S.M. would not have showered on her own until she was six or seven years old. Consider that if you wish.

Count 3

[133] This third count charges a period from 2012 to 2017 in Brampton. This is based on the allegations that were made by S.M. for the first time at the preliminary hearing. The evidence shows that this allegation is from the Archdekin residence in Brampton, the second house they lived at.

[134] In the first video, she said that she may have forgotten some things. In the second video, she said, "Like I said before I think there was a third time. I'm not fully sure." Then at page 20 of the preliminary hearing, tab 1, in her examination in chief, S.M. interjected to ask if she could talk about another time that M.A. touched her apart from the other two incidents. It was in Brampton where she lived with her mother, M.A. and some of her siblings. M.A. in these instances would unzip his pants, pull down her pants, and rub his penis between her thighs, similar to the mattress incident. This would happen at night on the bed in the bedroom M.A. shared with her mother, A.M. S.M. mentioned that sometimes on M.A.'s back in the bedroom, which M.A. and A.M. testified that she did from time to time. M.A. would say sorry and leave the room or she herself would leave the room. S.M. said that it would happen twice a week at least. Later in her evidence she said that it would happen quite a lot. In cross-examination she said it was at least once a week. Her mother would be in the living room next to the kitchen or out somewhere and her siblings would be asleep.

[135] In cross-examination, S.M. testified that this was the first time she had mentioned these incidents. This was the first time she had remembered them. She knew previously there was another incident but could not remember where, when, or how.

[136] That is the summary of the evidence. On this count, you will likely want to examine this delay in disclosure and the substantial delay in S.M.'s memory. The other allegations had been made several years before. You will have to ask whether the account of the third count is reliable in light of all the evidence, as you will with all the counts.

[137] You must look at this evidence and how it came out at the preliminary inquiry. It was after watching the videotapes of herself for this first time made in late 2018 and early 2019. You must determine whether the account given is reliable and credible and should look at the fact that it was not remembered for a number of years. However, keep in mind that when we report something to someone, we may not tell the whole story right away particularly if it happened a while ago. It takes time to process events. Distance can bring clarity. Most people are familiar with bit-by-bit disclosure and see it as a not unusual phenomenon common to both adults to children. It may well show up more typically in children than adults. Think of your experience with children and the things they say. They are not always chronological or linear.

[138] Some details may never be disclosed. Piece by piece disclosure may occur for the same reasons that delayed disclosure occurs, and indeed this kind of disclosure may be viewed as a type of delayed disclosure. In assessing the credibility and reliability of S.M., the fact that there was late disclosure, like the third count evidence, is simply one circumstance to consider in the overall evidence of a particular case. Also look at the fact that there was no distinct memory of these incidents for years. How much weight you give the process and delay in disclosure is up to you.

The Evidence of M.A.

[139] M.A. testified in his own defence. He is 40 years old, Muslim and came to Canada from Pakistan going back and forth several times before settling down here. A.M. and he lived common law from 2011 until 2015, at which point the relationship ended. He has done some work as an assistant to a plumber but has been limited by his epilepsy.

[140] M.A. denied all the allegations against him, saying that he found them very disturbing, and was cross-examined on his denials. Nothing like the shower incident in count 2 ever happened. With respect to the mattress incident, count 1, there was a mattress in the living room in the basement at the Primrose address but no one ever slept on it. The children played on it. In cross-examination, M.A. explained that when it was not being used for this purpose, it was propped against the wall. There was a spring coming out of it and it was potentially dangerous. Pictures were entered into evidence of the mattress some with a fitted sheet on it.

[141] With M.A.'s evidence, as with all the witnesses' evidence, you should take into account that the events at issue here are alleged to have taken place between 2012 and 2017, at least eight years ago. They are very old. You should take this into consideration with respect to M.A.'s evidence and all the other witnesses as well. Memories will be affected by this type of passage of time. Perfect recall cannot be expected and is unrealistic.

[142] So in the end, if you believe M.A. you must acquit. Of course, if you do not know who to believe, you must acquit. Even if you do not believe him but are left in a reasonable doubt by his evidence and any other evidence beneficial to him, you must acquit. If you do not have a reasonable doubt based on his evidence and the other beneficial evidence, you must look at the Crown evidence and decide whether it satisfies you, beyond a reasonable doubt, that he is guilty.

The Evidence of M.A.'s Mother and Sister

[143] The evidence of these two women relates directly to the mattress incident, count 1. It was their evidence that Sameha and S.M. did not sleep downstairs on the mattress at the Primrose address on the occasion of Sameha's sixth birthday party. Madiha, M.A.'s sister, testified before you yesterday and said that the two girls slept in her room, not in the basement. No one slept on the mattress in the basement. It was used for playing on. If you believe that evidence in the context of all of the evidence or if it raises a reasonable doubt, you should find M.A. not guilty of this count. It can also be used more generally on the other counts as well.

[144] I would add here that there was some question raised as to how these witnesses would know to testify with respect to what happened at Sameha's sixth birthday party specifically. Ignore that please. This involves the entirely proper, normal process of preparation for trial and you should draw nothing from it.

Position of the Parties

[145] I have asked counsel to reduce their positions to paper to help you in your deliberations. I will read them to you verbatim. This is their language, not mine.

Defence Position

[146] S.M. was in a stable family relationship with a mom, siblings and a man she called "dad". The only dad she knew. Dads are a big deal in a child's life. To be rejected by dad is significant. Her mom and her mom's boyfriend, M.A., split up. The mom took her and her brother Skyler to St. Catharines. You have heard in this trial that everything went downhill. Her mom started to train to be a PSW. Mom not only had to go to class, but she had to go to placement.

[147] S.M.'s family unit got kicked out of her grandmother's apartment. They went to a shelter at Christmas time. They moved to Thorold, a new school, new friends. Her mother wasn't able to keep things together. Family and Children Services became involved. They visited the home quite often. They were concerned about the mother smoking marijuana, smoking cigarettes when the child was present, the messy apartment and the chaos. The children were apprehended by Family and Children Services. S.M. was placed with her mother's sister. Her siblings Skylar and Adrian were sent to a foster home. The baby Jackson went to stay with his biological father.

[148] S.M. ran away from home. She tried to harm herself and went to a hospital. Her life was wonky. Her dad did not come and rescue her. It could be that she wanted revenge on her dad. Or it could be that S.M. wanted a way out of the accusation of vandalism and agreed to the teacher's suggestion that she might have been the victim of sexual interference. We don't know why S.M. made these false accusations. S.M. did not testify. I was unable to ask S.M. the questions that might have helped you understand what was going on. All we have is S.M.'s out-of-court statements. All that is hearsay.

[149] We know that S.M. had a small window of opportunity when she was 4 when she lived with her mom and M.A. in St. Catharines. Her mother, A.M., said that it would not have been her practice to let a child take a shower alone in the tub when she was 4 years old. If whatever happened to her when she was 6, 7 or 8 in St. Catharines happened, it was not the accused before the Court, M.A., because he was not there, he was in Brampton.

[150] The allegation from 56 Primrose is false. You heard from my client's mother and sister that S.M. slept in her aunt's bedroom on the second floor, not in a mattress on the floor on the ground floor. You heard from my client's mother and sister. They told you they had testified at a previous proceeding and were aware what the issues are in this trial.

[151] Finally, the allegations that one or two times a week she was molested by M.A. in his bed on Archdeacon are false. We know that A.M. stayed up all night, every night, to keep an eye out for the kids, when they lived at the apartment on Archdeacon.

[152] A.M. could not have missed the multiple visits by S.M. to her partner's bed or miss M.A. going to the children's bedroom to bring the child to his bed and then return her to the siblings' bedroom. She might miss one or two, but it is unlikely that she could miss multiple visits on a twice weekly basis. You also heard there were children staying in his bedroom. We saw a photo of the toddler bed and the crib. That photo was taken at the address on Angelucci in Brampton. My understanding was the same toddler bed and crib were in the bedroom at Archdeacon.

[153] It would be unsafe to convict M.A. on this evidence. The Crown has failed to prove this charge beyond a reasonable doubt. I ask you to find M.A. not guilty on all charges.

Crown Position

[154] The Crown's position is that M.A. should be found guilty of all counts of sexual interference against S.M. The evidence as a whole does not raise a reasonable doubt about his guilt.

[155] S.M.'s evidence about what M.A. did to her should be believed. You should accept her account that M.A. committed the following sexual acts on her when she was underage:

1. Putting his penis in her mouth in the bathroom of their St. Catharine's apartment;

2. Repeatedly rubbing his penis between her legs while laying behind her on the bed at the Archdekin residence in Brampton; and,

3. Rubbing his penis between her legs while laying behind her on the basement mattress at the Primrose residence in Brampton.

[156] If you find that the evidence supports that these events happened, the offences should easily be made out, as the touching is obviously sexual in nature.

[157] S.M.'s evidence on these events did not contain any material inconsistencies. S.M. had difficulty recalling her precise age when these events occurred and her disclosure was incremental and occurred over time – these things are not unusual in a child's evidence. Though S.M. only originally recounted allegations numbered #1 and #3 (above) in her video statements, she consistently referred to her belief that there was more inappropriate touching by M.A. that she could not fully remember or articulate, until her memory was refreshed at the preliminary hearing when she watched her video statements. Significantly, S.M. tied certain incidents to landmark locations, being certain places where she and her family had resided or that she had visited.

[158] The evidence does not suggest that S.M. felt pressured by school administrators or her mother to lie about things that M.A. had done.

[159] The evidence of M.A. and his family members should be approached cautiously. M.A. did not appear to be credible in aspects of his testimony; for example, that the basement mattress was not safe for sleeping on but was safe for playing on. M.A. had significant opportunity to commit these crimes given that he lived with S.M. for many years and sometimes supervised S.M. alone.

[160] Based on the evidence, M.A. should be found guilty of these crimes.

Use of Verdict Sheet

[161] Included in the things that will go with you to the jury room is a verdict sheet. On the sheet, I have listed the available verdicts. There is no significance to the order in which the verdicts are listed.

[162] If you reach a verdict, your foreperson should place a check mark in the box opposite the verdict you have reached. There is a place at the bottom of the sheet for the foreperson to sign.

Return of Verdict

[163] If you reach a verdict, please tell the staff that you have made your decision. We will reconvene court and bring you back into the courtroom to hear your decision.

[164] Your foreperson should bring the verdict sheet into court when we reconvene. It is the foreperson's responsibility to announce your verdict in the courtroom, but first turn over to me the completed verdict sheet. You do not give reasons for your decision.

Juror Conduct During Deliberations

[165] When you go to your jury room, your duty is to consult with each other and to deliberate with a view to reaching a just verdict. Your verdict must be based on the facts as you find them from all the evidence introduced at trial, and on the law that I have told you applies in the case.

[166] You will have several things provided to you during your deliberations. Anything that has been made an exhibit during the trial will be sent to the jury room for you to examine to the extent and in the manner you may wish to do so.

[167] You will have your binders containing a copy of my final instructions.

[168] Keep an open mind. Don't just talk. Listen too. Put forward your own views in a reasonable way. Listen in a calm and impartial manner to what your fellow jurors have to say.

[169] Jurors are not advocates who have a duty, like the lawyers here, to argue the case for the Crown or for the defence, as the case may be. Jurors are judges. If you approach your deliberations calmly, putting forward your own views and listening carefully to what others have to say, you will be in the best position to reach a just and proper verdict.

[170] It is the responsibility of your foreperson to be the chair of the meeting, to guide the deliberations along, to prevent them from becoming protracted or descending into unnecessary repetition of matters already decided. Be firm in your leadership but be fair to everyone.

Requirements for Verdict

[171] For there to be a verdict in the case, it is necessary for all twelve jurors to agree about the decision. In other words, a verdict, whatever it may be, expresses the unanimous opinion of the jury.

[172] Sometimes jurors are unable to reach a verdict. Jurors have the right to disagree. No jury, however, will ever be in any better or different position to decide the case than you are now. If you do have a problem agreeing, please report it to me.

Final Remarks

[173] I want to express my appreciation to you, ladies and gentlemen. You have been patient and diligent throughout. You have been attentive and have listened well. And you have sacrificed your time and energy for the administration of justice. This is not a small sacrifice, we realize. So, thank you. I hope the experience of being on a jury has been an interesting one and an educational one.

[174] I want to thank you for all of us. This trial could not have happened without your cooperation and dedication. I also want to thank counsel. The pep talk I gave in my opening remarks to you is more of a hope that the trial will go smoothly and efficiently as opposed to a promise that it will. It is too unpredictable to make any promises. But we are now at the end of the trial thanks to counsels' industry and focus. And thank you to the staff who are critical for this trial to run.

[175] You the jury have taken an oath, or made a solemn affirmation, to well and truly try the case and to render a true verdict according to the evidence. If you honour that oath or affirmation, as I am sure you will, you will have done everything that is expected of you as jurors.

Released: September 23, 2025