Overview
Judge was left with significant doubts as to whether or not the assault took place. Witnesses evidence was inconsistent and lacked credibility. Therefore, not guilty.
R. v. F.B., [2019] O.J. No. 1202
Ontario Judgments
Ontario Superior Court of Justice
[REDACTED] J.
Heard: January 7-11, 14 and 15, 2019.
Judgment: March 6, 2019.
Court File No.: CR-18-10000041
Between Her Majesty the Queen, and [REDACTED].
(158 paras.)
Counsel
[REDACTED], for the Crown.
[REDACTED], for the accused.
BY COURT ORDER MADE UNDER SUBSECTION
486.4 (1) OF THE CRIMINAL CODE OF
CANADA, INFORMATION THAT MAY IDENTIFY
THE PERSON DESCRIBED IN THIS
JUDGMENT AS THE COMPLAINANT MAY NOT BE
PUBLISHED, BROADCAST OR TRANSMITTED
IN ANY MANNER.
[REDACTED] J.
1 [REDACTED] is charged with "indecent assault upon a female person" contrary to what was, at the relevant time, s. 141(1) of the Criminal Code of Canada, R.S.C. 1985, c. C-46. The charge has been laid under the former s. 141 since the assaults are alleged to have taken place between 1964 and 1968.1
2 [REDACTED] is the uncle of the complainant, [REDACTED]. When [REDACTED] immigrated to Canada with his family in 1964, he resided for a period of time with [REDACTED] and her family. Certain of the alleged assaults relate to the time when the accused and his family were residing with [REDACTED] and her family. It is further alleged that [REDACTED], along with his wife [REDACTED], assaulted [REDACTED] in 1968, when [REDACTED] and her younger brother were briefly staying with [REDACTED] and his family at the latter's residence.
I. Overview of the Case
3 As noted above, [REDACTED] is the uncle of [REDACTED]. In 1964, [REDACTED] immigrated to Canada with his wife, [REDACTED], and their then 1-year-old daughter [REDACTED]. [REDACTED] was sponsored for immigration purposes by [REDACTED]'s father, [REDACTED]. Upon arriving in Canada, [REDACTED] and his family resided on the second floor of the complainant's family home on [REDACTED] Avenue in Toronto. [REDACTED] and her family had moved into the home on [REDACTED] Avenue in 1963 and resided on the main floor.
4 It is alleged that [REDACTED] assaulted [REDACTED] on a number of occasions between 1964 and 1968, when [REDACTED] was between 7 and 11 years old. The allegation is that while [REDACTED] was babysitting other children and no other adults were present, [REDACTED] would take [REDACTED] upstairs to the bathroom on the second level of the [REDACTED] Avenue house and indecently assault her. [REDACTED] is then said to have instructed [REDACTED] not to disclose these incidents to anyone, and to have rewarded her by giving her a dime.
5 By 1968, [REDACTED] and his family had purchased and were living in their own home on [REDACTED]Avenue in Toronto. In July 1968, [REDACTED]'s parents went on a vacation out of the country for a number of weeks. While [REDACTED]'s parents were away, she and her younger brother [REDACTED] went to stay with their grandmother, who was at that time living on the second floor of [REDACTED]'s home on [REDACTED] Avenue. [REDACTED] alleges that on one occasion during her stay at the [REDACTED] Avenue home, she was grabbed on the front porch and indecently assaulted by [REDACTED] and his wife [REDACTED].
6 [REDACTED] denies that any of the alleged assaults in the second floor bathroom at [REDACTED] Avenue took place, and both [REDACTED] and [REDACTED] deny that the assault on the porch at [REDACTED] Avenue took place.
II. The Evidence
- The Case for the Crown
7 Two witnesses testified for the Crown, the complainant [REDACTED] and her brother [REDACTED].
8 [REDACTED] testified that she immigrated to Canada with her family in 1958 when she was one year old. In 1963, her father, [REDACTED], purchased the home on [REDACTED] Avenue. [REDACTED] and her family (which by this time included her brother [REDACTED], born in 1959, and a sister born in 1963), moved into the main floor of the [REDACTED] Avenue home. Initially, the second floor of the house was rented out to some tenants.
9 [REDACTED] worked as a construction labourer while his wife, [REDACTED], was a homemaker. [REDACTED] testified that sometime in 1964 her father sponsored [REDACTED] and his family as immigrants to Canada. The tenants who had been living on the second floor moved out and [REDACTED], along with [REDACTED] and their one-year-old daughter, moved in to the second floor at [REDACTED] Avenue.
10 Upon his arrival in Canada, [REDACTED] worked as a construction labourer for the same company as [REDACTED]. They generally worked during the week from Monday to Friday and occasionally on Saturdays. Shortly after arriving in Canada, [REDACTED] also secured employment outside the home from Monday to Friday. While [REDACTED] and [REDACTED] were at work during the week their one-year-old daughter, [REDACTED], would be under the care of [REDACTED]'s wife, [REDACTED].
11 [REDACTED] recounted that she had had a strict family upbringing. This was characterized by a high degree of respect for those in authority. The children were taught never to say no to a person in authority or else they would be punished.
12 [REDACTED] states that although her mother did not work outside the home, she would often step out during the day to go to a local grocery store or to run other errands. She might be absent from the home running these errands for between 15 minutes and one hour. When her mother was absent during these times, she would instruct [REDACTED] to take care of her younger brother and sister as well as [REDACTED] and [REDACTED]'s one-year-old daughter, [REDACTED].
- The [REDACTED] Avenue Incidents
13 [REDACTED] states that shortly after [REDACTED] moved into the [REDACTED] Avenue home, he commenced a series of indecent assaults which continued for approximately three years.
14 [REDACTED] states that the first assault occurred in the summer time. One day she was babysitting her younger brother and sister as well as [REDACTED], and no other adults were in the home. She remembers that she was wearing a white dress and the children were playing outside. She testified that [REDACTED] came downstairs and, without saying anything, took her by the hand and led her upstairs to the washroom located immediately at the top of the stairs on the second floor.
15 [REDACTED] testified that [REDACTED] closed and locked the door, placed her facing the wall over the bathtub and asked her to bend over the bathtub. He placed his hand over her neck and pulled her underwear down. [REDACTED] applied some sort of liquid to her vagina while he fondled and penetrated her, although [REDACTED] does not know if the penetration was with [REDACTED]'s finger or his penis. Because [REDACTED] was facing the wall, she does not know if [REDACTED] pulled down his pants during the assault.
16 At the end of the assault, [REDACTED] told her not to tell anyone and threatened to harm her, her siblings or her mother if she ignored his warning. [REDACTED] gave her a dime which she used to buy popsicles for their children. [REDACTED] then went back downstairs and rejoined the other children.
17 [REDACTED] testified that these assaults occurred on approximately 10 occasions over approximately a three year period beginning from the time she was seven years old. She indicates that she is not sure of the amount of time that would pass between the various assaults. She testifies that each assault occurred in the same manner, with [REDACTED] coming downstairs, not saying anything but simply leading her by the hand to the second floor washroom where he would fondle and penetrate her vagina with either his finger or penis. Although she does not know what the liquid was that was applied to her vagina, [REDACTED] now believes that it was the liquid that appears on an erect penis prior to ejaculation.
18 [REDACTED] testified that the assaults always took place during the day, and she believes that they occurred during the week (i.e. between Monday and Friday) rather than on the weekends. She indicates that during the weekends there were generally adults present and thus it would not have been possible for [REDACTED] to have assaulted her on the weekends.
19 [REDACTED] never told anyone about these incidents. Not only was she was frightened of [REDACTED], she was also fearful that her own father might harm [REDACTED] if he learned of these incidents, which would mean that her father might be taken away from the family and imprisoned.
20 [REDACTED] testified that these assaults continued until [REDACTED] and his family moved out to their own home on [REDACTED] Avenue, which she believes occurred sometime in late 1967 or early 1968. After [REDACTED] and his family moved out, there were no further assaults at the [REDACTED] Avenue home.
21 In her initial evidence, [REDACTED] had testified that there had been "full penetration" during the assaults in the second floor bathroom. However on cross-examination, [REDACTED] stated that [REDACTED] had not inserted his finger or penis into her vagina during the assaults. [REDACTED] was further questioned about this issue during her re-examination by counsel for the Crown. During this re-examination she initially said that there was no actual insertion into her vagina, but then changed her account by stating that there had been insertion, which she assumed to have occurred with [REDACTED]'s finger.
22 [REDACTED] was also questioned during her cross-examination as to her statement that the assaults had occurred "in and around" a three-year period. She indicated that she believes that the assaults happened over the course of three years because she remembers what she was wearing during the various assaults as well as her different hairstyles. She stated that she is quite certain that the assaults continued for longer than a single year.
- [REDACTED]'s testimony
23 The second Crown witness, [REDACTED], testified that [REDACTED] and his family moved in to the second floor at [REDACTED] Avenue in approximately 1965. [REDACTED] believes that [REDACTED] and his family lived with them for approximately 18 months. During this period of time [REDACTED], who was born in 1959, would have been between five and seven years old.
24 [REDACTED] testified that the children in the home would often play in the kitchen in a circle. [REDACTED] recalls that [REDACTED] was sometimes home on Saturdays while the women who were living in the home might be out shopping and his father was out working. He recalls two occasions in which [REDACTED] called for [REDACTED] to assist him with a household task upstairs. [REDACTED] would go upstairs and he would try to follow her. [REDACTED] would motion him to be quiet by putting her hand in front of her mouth and instructing him to remain with the other children.
25 [REDACTED] remembers one occasion when he followed [REDACTED] and observed [REDACTED] leading her up the stairs by the hand. [REDACTED] initially testified that he recalled seeing [REDACTED] leading [REDACTED] into the washroom on the second floor and closing the door. However on cross-examination [REDACTED] indicated that he cannot recall observing [REDACTED] leading [REDACTED] into the washroom; his only recollection is of [REDACTED] walking upstairs and being led by [REDACTED] by the hand.
26 On the two occasions in which [REDACTED] recalls [REDACTED] being called upstairs by [REDACTED], [REDACTED] eventually returned and resumed playing with the children. She did not say anything about what might have happened while she was upstairs.
- The [REDACTED] Avenue incident
27 As noted, [REDACTED] testified that after [REDACTED] and his family moved out of the [REDACTED] Avenue home, no further assaults occurred at that location. However, in July 1968, her parents and her younger sister went on a vacation out of the country for three weeks. While her parents were away, she and her brother [REDACTED] went to stay with her grandmother, who was then living with [REDACTED] and [REDACTED].
28 By way of background, [REDACTED]'s grandmother was the mother of both her father, [REDACTED], as well as [REDACTED]'s wife, [REDACTED]. The grandmother had come to Canada with another of her daughters, [REDACTED], who was then about 20 years old. In 1968, the grandmother and [REDACTED] were living in a second floor apartment or "flat" in [REDACTED] and [REDACTED]'s home on [REDACTED] Avenue.
29 [REDACTED] testified that one evening her grandmother took her and her brother [REDACTED] to a nearby park. When they arrived back home, [REDACTED] and [REDACTED] were sitting on the large front porch of the [REDACTED] Avenue home. Her grandmother walked in the front door, followed by her brother. As she was walking toward the front door, [REDACTED] testified that [REDACTED] and [REDACTED] jumped up from their chairs on the porch and tried to grab her. [REDACTED] tried to get away and yelled for help but no one heard her. [REDACTED] grabbed her. [REDACTED] then held her down while [REDACTED] pulled down her underwear. [REDACTED] testified that [REDACTED] and [REDACTED] both laughed, but they did not say anything, nor did they touch her. [REDACTED] testified that she believes they were trying to examine her to see if she had pubic hair, although this intention was not expressly stated by either [REDACTED] or [REDACTED]. This incident took about five minutes.
30 After being released by [REDACTED] and [REDACTED], [REDACTED] ran back upstairs to her grandmother. Although she had been crying, her grandmother did not ask her any questions. Nor did [REDACTED] tell her grandmother or her parents about this incident because of her fear of [REDACTED], as well as her fear of what her father might do to [REDACTED] if he learned of this assault.
31 On the second day of her examination in chief, [REDACTED] indicated that after her initial testimony on the previous day, she had had an opportunity to review transcripts of her prior police statements as well as her testimony at the January 2018 preliminary inquiry. In light of that review, she wished to correct certain aspects of her testimony from the previous day.
32 In particular, she indicated that although she had only been grabbed once on the porch at [REDACTED] Avenue in July 1968, [REDACTED] and [REDACTED] had attempted (unsuccessfully) to grab her on a number of other occasions. She further stated that, on the occasion when she had been grabbed, [REDACTED] had told her that she and [REDACTED] wanted to see if she had developed pubic hair. She further testified that on the occasion when she was actually grabbed, [REDACTED] had touched her vagina.
33 On cross-examination, [REDACTED] denied that there was any contradiction between these two accounts of the incident on the porch at [REDACTED] Avenue. She acknowledged that she had not mentioned in her initial testimony that [REDACTED] had said that she and [REDACTED] wanted to see if she had developed pubic hair. But having reviewed the transcripts of her earlier statements, she now remembered [REDACTED] having said this.
34 [REDACTED] was not asked about, nor did she further clarify the fact that in her initial testimony she had stated that she had not been touched by either [REDACTED] or [REDACTED] when she had been grabbed on the porch, whereas in her subsequent evidence she stated that [REDACTED] had in fact touched her vagina. [REDACTED] further clarified in cross-examination that she had been chased on the porch on [REDACTED] Avenue by [REDACTED] and [REDACTED] approximately 6 to 9 times during the three weeks she spent living there in July 1968, although [REDACTED] and [REDACTED] only succeeded in grabbing her on a single occasion.
35 [REDACTED] was also cross-examined over the fact that in her initial statement to police provided in June 2016, she had not mentioned the incident on the porch at [REDACTED] Avenue. It was not until December 2016 that she informed the police about the incident on [REDACTED] Avenue involving [REDACTED] and [REDACTED]. [REDACTED] explained that she had only remembered the incident on [REDACTED] Avenue sometime after speaking to the police in June 2016. However she could not recall when this memory had been triggered or what might have triggered it.
36 In his testimony, [REDACTED] stated that he recalled staying with [REDACTED] and [REDACTED] in July 1968 while his parents were away on vacation. He did not notice anything unusual involving [REDACTED] and [REDACTED] during this time. However, although he did not see anything specific, he believed that [REDACTED] wanted to avoid [REDACTED] while they were staying on [REDACTED] Avenue.
37 [REDACTED] did indicate that by this time he had noticed that [REDACTED] had entered puberty and was beginning to develop as a young woman. He also stated that he believed his aunt [REDACTED] was afraid of [REDACTED] and always remained upstairs when [REDACTED] was home.
- Subsequent events
38 [REDACTED] testified that in the years following these various assaults, she attempted to avoid [REDACTED]. Although she would see him at regular family gatherings, she would not sit close to him at these events and if possible would move to another room so as to not have to interact with him. [REDACTED] indicated that in later years after she had married and had her own children, she would not invite [REDACTED] to her home, although he might on occasion have visited her uninvited. Moreover, when she went to visit her parents, if she saw [REDACTED]'s car in the driveway she would turn around and leave without going in.
39 During her cross-examination, [REDACTED] was questioned with regard to a number of photographs of various family events or gatherings over the years which showed her either sitting or standing next to [REDACTED]. One photograph had a date stamp indicating it was taken on February 14, 1988, and it depicted [REDACTED], along with her husband and daughter, standing beside [REDACTED] and [REDACTED]. The men were dressed in suits and ties and the women in long dresses, which suggested a particular event of some significance. [REDACTED] stated that she had no recollection of when this photo might have been taken. On re-examination by the Crown, she was again asked about this February 1988 photograph but repeated that she had no recollection of when or why it was taken. With respect to the other photographs showing [REDACTED] sitting beside [REDACTED] at various family events, she stated that perhaps she had merely been sitting beside [REDACTED] momentarily while the photograph was taken and had gotten up and moved elsewhere afterwards.
40 [REDACTED] was also cross-examined as to whether [REDACTED] had ever undertaken renovations to [REDACTED]'s home. She indicated that the only renovations that [REDACTED] performed had been in relation to an outdoors fence, and that [REDACTED] had been accompanied by her father while undertaking this work. [REDACTED] was asked whether [REDACTED] had renovated her basement to create a small beauty salon where she could provide salon services to clients. [REDACTED] replied that she did not remember whether [REDACTED] had undertaken renovations to her basement.
41 [REDACTED] testified that she was very troubled by an incident involving [REDACTED] which occurred at a celebration for her parents' 40th wedding anniversary. Her son [REDACTED] was approximately eight years old at the time and was in attendance at the celebration. [REDACTED] sat next to her son and squeezed his thigh very hard, causing a bruise. The next day her son mentioned this incident to her. [REDACTED] was very angry and called her mother to discuss it. Her mother advised her not to take it up with [REDACTED] or other family members in order to "keep the peace".
42 In 2004, [REDACTED]'s father [REDACTED] passed away. [REDACTED] testified that the day after her father's funeral, her mother received a telephone call from another unidentified family member complaining about the fact that no limousine had been arranged for [REDACTED], [REDACTED] or certain other members of the family. [REDACTED] noted that these other family members seemed more concerned over limousines as opposed to the family member they had lost. [REDACTED] blamed [REDACTED] for this telephone call, which was very upsetting to her mother. Subsequently, this caused a rift in the family and she did not see [REDACTED], [REDACTED] and their children, as well as various other family members, for approximately the next decade.
43 In his evidence, [REDACTED] acknowledged that there had been a rift in the family following his father's funeral in 2004. However he did not attribute this to any dispute over limousines. Rather, [REDACTED] indicated that there had been some issue over who would be permitted to be present at the final visitation prior to the closing of [REDACTED]'s coffin. [REDACTED] testified that [REDACTED] had decided that only certain of the immediate family would be present at this time and others would be asked to leave. [REDACTED] believes that this decision had contributed to creating a distance in the family after the funeral
- [REDACTED]'s 2015 accident and eventual report to police
44 In early 2015, [REDACTED] was severely injured in a fall. She was in hospital for approximately three months and describes it as a life threatening injury. She feared for her life and believes it was a miracle that she survived.
45 One day while she was in hospital in late February 2015, she glanced out into the hall outside her hospital room. She noticed a man who looked very familiar, walking with a cane. She recognized this man as [REDACTED] and became frightened as he approached her hospital room. She screamed and yelled profanities at [REDACTED], calling him a "pervert". [REDACTED] turned around immediately and left as fast as he could. Nursing staff and hospital security arrived and attempted to calm her down, while also taking a report of the incident. She also called 911, as well as the Toronto Police, to report a perpetrator in her room. Toronto police referred her to hospital security.
46 [REDACTED] did not return to the hospital. However [REDACTED] testified that later that evening she had a visit from [REDACTED], along with [REDACTED]'s daughter, [REDACTED], and [REDACTED]'s husband, and that [REDACTED] brought her a case of fruit. [REDACTED] interpreted the fruit from [REDACTED] as an attempt to keep her quiet about what had occurred during [REDACTED]'s visit that morning. [REDACTED] asked whether [REDACTED] could visit her in the hospital, to which [REDACTED] replied no. This ended [REDACTED]'s visit. [REDACTED] did not keep the fruit and gave it away to nursing staff.
47 In her cross-examination she was questioned about the fact that in her statement to police she had indicated that she had requested family members to bring her fruit while she was in the hospital. She acknowledged making this request but indicated that she had only asked for oranges and blueberries and had been given a variety of other fruits that she had not requested. It was for this reason that she interpreted the fruit as an attempt to buy her silence about the incident that had occurred earlier that day with [REDACTED].
48 [REDACTED] describes her 2015 accident and the subsequent visit by [REDACTED] as a "tipping point" which caused her to decide to come forward about the assaults that had occurred some 50 years earlier. In June 2016 she attended at Toronto police to provide a statement in which she described the assaults that occurred on [REDACTED] Avenue. In the fall of 2016 she made a number of telephone calls to Toronto police to inquire into the status of the investigation into [REDACTED]. Subsequently in December 2016 she sent an email describing the incident on the porch at [REDACTED] Avenue involving [REDACTED] and
- The Case for the Defence
- Testimony of [REDACTED]
49 The first defence witness was [REDACTED]. He testified that he, his wife and one-year-old daughter immigrated to Canada on November 6, 1964. He provided a copy of a Landing Record obtained from Citizenship and Immigration Canada stating that he had been admitted as a Landed Immigrant in Montréal on November 6, 1964. This Landing Record also stated that [REDACTED] had been sponsored by his brother-in-law, [REDACTED]. [REDACTED] was then 25 years old.
50 After their arrival in Montréal, [REDACTED] testified that he and his family immediately came to Toronto, where they moved in with [REDACTED]'s family at their home on [REDACTED] Avenue. For a short time they lived on the main floor, but shortly thereafter the tenants who had been living on the second floor moved out. [REDACTED] and his family then moved upstairs where, according to [REDACTED], they lived for approximately the next 13 months.
51 [REDACTED] testified that [REDACTED] had arranged a job for him as a labourer with the same construction company that employed [REDACTED]. [REDACTED] stated that he began work within a few days of arriving in Toronto.
52 [REDACTED] explained that for the next two years, he worked on the same construction sites as did [REDACTED]. [REDACTED] indicated that he did not speak English and did not know his way around Toronto. He therefore relied upon [REDACTED] to bring him to work and to translate as necessary during the working day. [REDACTED] stated that they generally worked Monday to Friday, leaving the home at 6:30 in the morning and returning home at approximately 6 PM in the evening. Neither of them had a car and thus they would travel to work either by public transit or be picked up by a coworker.
53 [REDACTED] denied ever being alone in the home on [REDACTED] Avenue with [REDACTED] and the other children, without any other adults present. He also denied assaulting or inappropriately touching [REDACTED].
54 [REDACTED] testified that he and his wife [REDACTED] purchased their own home on [REDACTED] Avenue on November 23, 1965. He produced a deed of transfer under the Land Titles Act recording the transfer as of that date. [REDACTED] testified that approximately one week after acquiring the house, he and his family moved to [REDACTED] Avenue.
55 [REDACTED] testified that in September 1966, his mother-in-law and sister-in-law (i.e. [REDACTED]'s mother, along with [REDACTED]’s sister, [REDACTED]) immigrated to Canada and began living upstairs with them on [REDACTED] Avenue. His mother-in-law and sister-in-law were still living there when [REDACTED] and [REDACTED] came to stay with them for a few weeks in July 1968. While there, [REDACTED] and [REDACTED] lived upstairs and were under the care of his mother-in-law.
56 [REDACTED] denied that he and/or [REDACTED] assaulted or attempted to grab [REDACTED] on the front porch of their [REDACTED] Avenue home in July 1968 or otherwise. He also denied ever having touched [REDACTED]in her vaginal area.
57 [REDACTED] maintained that in subsequent years he did not notice any attempt by [REDACTED] to avoid him at family events. He also testified that he undertook a number of renovations and other household repairs for [REDACTED] after she was married and had her own family, including constructing a small beauty salon in the basement of her home. He indicated that when attending at [REDACTED]'s home to undertake these repairs or renovations, she would often be in the home with him alone.
58 [REDACTED] recalled that at the time of [REDACTED]'s funeral in 2004, there had been some issue with respect to allowing family members to be present when closing [REDACTED]'s coffin. He denied having made any telephone call to [REDACTED]'s mother after the funeral.
59 [REDACTED] recalled visiting [REDACTED] at the hospital in February 2015 after she had been injured in a fall. He testified that when he walked into [REDACTED]'s hospital room, [REDACTED] was sitting in the bed and there were two other women in the room. [REDACTED] turned around and saw him and yelled profanities at him. He did not know why she had reacted in this manner but he turned around immediately and left as quickly as he could.
60 On cross-examination, [REDACTED] was questioned as to how he was so certain that he had worked with [REDACTED] on the same job sites for at least the first two years after his arrival in Canada. [REDACTED] indicated that given his inability to understand English and his lack of familiarity with the Toronto he relied on [REDACTED] in this way. He testified that after the first two years, from time to time he began working at different job sites without [REDACTED].
61 [REDACTED] was asked how it was possible that he began work almost immediately after arriving in Toronto and whether it would have been necessary for him to have obtained some documentation prior to commencing employment. He replied that [REDACTED] had made all the necessary arrangements in advance which enabled him to begin work immediately upon arrival in Canada.
62 [REDACTED] was also questioned over whether he had worked every day during these initial years or whether there might have been days when he was sent home because of bad weather or some other job-related issue. He denied ever being sent home, stating that there was always work to do for a labourer on a job site.
63 [REDACTED] was also questioned over whether, after he had begun living on [REDACTED] Avenue, he might have come back unannounced to visit the home on [REDACTED] Avenue. He replied that she could not recall having done so but that it was possible.
64 [REDACTED] was asked to comment on whether [REDACTED], as the oldest girl in her family, would have had more responsibilities and household duties than her brother [REDACTED]. He replied that he was unaware of whether that was the case and he had not observed it. He was further asked about whether he observed that [REDACTED], as a young girl in a traditional family, had tended to wear dresses rather than pants. He had no recollection of this being so.
65 [REDACTED] was asked whether he had ever hugged [REDACTED] when greeting her, or held her on his lap. He indicated that he might have hugged [REDACTED] but that he had never held her on his lap.
66 At one point in his cross-examination, [REDACTED] stated that he remembered [REDACTED] and the other children coming home from school. However he then indicated that he did not remember them actually coming home but that he remembered them being home in the evening.
67 [REDACTED] was questioned as to whether he had noticed that [REDACTED] had entered puberty and was developing as a young woman when she had come to stay with him in July 1968. He replied that he did not recall noticing any such development on [REDACTED]'s part.
68 [REDACTED] was asked why he had gone to visit [REDACTED] in the hospital alone in 2015 without his wife [REDACTED]. He indicated that his wife [REDACTED] had visited [REDACTED] the day prior to his visit and told him that he should go to see [REDACTED] in the hospital because she was very sick. He testified that he was in the area the next day visiting his sister-in-law [REDACTED] and he decided to go to the hospital. He indicated that he would from time to time visit [REDACTED] on his own. He denied that he had gone to visit [REDACTED] because he had started to feel guilty for what had happened in the bathroom at [REDACTED] Avenue in the 1960s and he wanted to make amends. He did not know why [REDACTED] had reacted so negatively upon seeing him in the hospital, but that he thought it might have had something to do with problems that had occurred at [REDACTED]'s funeral. He noted that there had been an argument at the funeral which had caused a subsequent separation in the family.
- Testimony of [REDACTED]
69 [REDACTED] is the brother of [REDACTED], [REDACTED] and [REDACTED]. As such he is [REDACTED]'s brother-in-law and [REDACTED]’s uncle. He came to Canada in 1962 at the age of 21 and began living with the family of his brother [REDACTED]. When [REDACTED] and his family moved into the home on [REDACTED] Avenue in early 1963 he moved with them there and was living on the main floor.
70 [REDACTED] testified that a conflict developed between he and his brother [REDACTED] over the fact that [REDACTED] attempted to impose a curfew on him. He objected and eventually [REDACTED] moved out in May 1964 to a residence on Roncesvalles Ave. in Toronto. [REDACTED] was no longer living on [REDACTED] Avenue when [REDACTED] and his family arrived in the fall of 1964. As such, [REDACTED] had no knowledge of any incidents involving [REDACTED] and [REDACTED] while [REDACTED] was living at the [REDACTED] Avenue home.
71 When [REDACTED] and his sister [REDACTED] purchased their home on [REDACTED] Avenue, [REDACTED] moved in with them. He occupied a room on the second floor of their home.
72 In September 1966, [REDACTED]'s mother and sister [REDACTED] immigrated to Canada and moved in to the second floor of the home on [REDACTED] Avenue. He, his mother and sister [REDACTED] paid rent to [REDACTED] and [REDACTED] while occupying the second floor at [REDACTED] Avenue. [REDACTED] continue to reside there until he got married in 1970.
73 [REDACTED] did not believe that [REDACTED] was particularly strict as a parent. [REDACTED] was not afraid of [REDACTED] and he did not believe that his mother or his sister [REDACTED] were afraid of him either.
74 [REDACTED] recalls the fact that in July 1968 [REDACTED] and [REDACTED] came to stay on [REDACTED] Avenue. During this time [REDACTED] continued to have dinner with his mother and sister [REDACTED] on the second floor, and would also use the washroom facilities. However for the duration of [REDACTED] and [REDACTED]'s stay he slept at a friend's house and allowed [REDACTED] to sleep in his room. [REDACTED] recalls that [REDACTED] slept with his mother in her room.
75 [REDACTED] did not notice whether [REDACTED] had entered puberty or was beginning to develop as a woman while she was staying on [REDACTED] Avenue in July 1968. He also did not notice that there was anything unusual in the interactions between [REDACTED] and [REDACTED]. He did not notice [REDACTED] avoiding [REDACTED], nor did she appear to be afraid of him.
76 [REDACTED] recalled his mother taking [REDACTED] and [REDACTED] to a small park nearby the home on [REDACTED] Avenue. When they came back, he never heard any screaming or yelling or people running around on the porch. He testified that his mother was with the children all the time while they were staying with her on [REDACTED] Avenue.
77 In later years, [REDACTED] would attend family gatherings at which both [REDACTED] and [REDACTED] were present. [REDACTED] did not notice [REDACTED] attempting to avoid [REDACTED]. [REDACTED] also testified that [REDACTED] was a carpenter who from time to time provided assistance to various members of the family. [REDACTED] stated that at one point [REDACTED] had assisted in undertaking renovations to [REDACTED]'s basement, although he was not certain of exactly what renovations [REDACTED] had performed.
78 When his brother [REDACTED] died in 2004, [REDACTED] was ill with a fever. Although he did attend at the funeral home the day prior to the funeral, he was not well enough to attend the funeral itself. However he understood that there was some dispute that had taken place at the funeral. Afterwards, [REDACTED] threatened to write a letter "disowning him as an uncle". [REDACTED] did not understand why she was angry. For the next four or five years he did not speak with [REDACTED]. Subsequently, [REDACTED] spoke with [REDACTED] at a family event and they began to redevelop their relationship.
79 In 2015, when [REDACTED]was in the hospital following her accident, she called him and told him she wanted to speak with him. At the hospital she told him that [REDACTED] had molested her but she did not provide him with any details. After [REDACTED] was released from hospital, she called him on certain occasions to discuss her allegations against [REDACTED]. However, approximately six months ago he told her that he did not want to become involved and has not spoken to her since.
- Testimony of [REDACTED]
80 [REDACTED] is the sister of [REDACTED], [REDACTED] and [REDACTED]. She came to Canada with her mother in 1966 when she was 20 years old. She and her mother moved in with her sister [REDACTED] and brother-in-law [REDACTED] on the second floor of their home on [REDACTED] Avenue, where she resided until December 1968.
81 [REDACTED] testified that generally [REDACTED] would work Monday to Friday, leaving the house early in the morning and returning at about six or 6:30 PM in the evening. She also testified that [REDACTED] would sometimes work on the weekends.
82 [REDACTED] indicated that she was not afraid of [REDACTED]. She also did not believe that her mother was afraid of [REDACTED].
83 [REDACTED] remembered the time in July 1968 when [REDACTED] and [REDACTED] came to stay with them on [REDACTED] Avenue. Her mother was responsible for taking care of [REDACTED] and [REDACTED]. [REDACTED] further remembered her mother sometimes taking [REDACTED] and [REDACTED] to a nearby park to play. [REDACTED] recalled that when they returned from the park they would walk closely together, hand in hand.
84 [REDACTED] testified that she never heard or saw either [REDACTED] or [REDACTED] chasing after [REDACTED] while [REDACTED] was staying with them on [REDACTED] Avenue. Neither did she ever hear [REDACTED] yelling, screaming or crying, or see [REDACTED] running to her mother. [REDACTED] did not recall noticing whether [REDACTED] was developing into a woman, or developing breasts, at that time.
85 In later years, [REDACTED] received beautician services from [REDACTED] in [REDACTED]'s basement. She testified that she believed that [REDACTED] had renovated the room where the services were provided by [REDACTED].
86 [REDACTED] was asked about what happened at the time of [REDACTED]'s funeral in 2004. [REDACTED] stated that [REDACTED], along with [REDACTED]'s mother and her husband, had told other members of the family that they were only permitted to enter the room where [REDACTED] was being kept in the funeral home at certain times.
87 After [REDACTED]'s funeral, [REDACTED] had not seen [REDACTED] very often. However she had visited [REDACTED] three times when [REDACTED] was in the hospital in 2015 after her accident.
88 [REDACTED] was cross-examined as to whether she understood why she had been called to testify in this trial. She indicated that she had simply been told to appear and had not been informed of the reason, having been advised that she would understand what the trial was about when she arrived.
89 [REDACTED] was also questioned as to whether [REDACTED] ever visits her alone. She testified that her husband died in 2016 and that [REDACTED] sometimes comes over to assist her with repairs.
- Testimony of [REDACTED]
90 [REDACTED] testified that she, her husband [REDACTED], and their one-year-old daughter [REDACTED] immigrated to Canada in November 1964. [REDACTED] was then 20 years old. [REDACTED]'s family moved in with her brother [REDACTED] and his family on [REDACTED] Ave. in Toronto.
91 [REDACTED] began working with her brother [REDACTED] almost immediately after they arrived, while [REDACTED] secured full-time employment three or four weeks later. [REDACTED] worked from Monday to Friday from 7:30 in the morning until 4 o'clock in the afternoon. She testified that when she left for work in the morning, [REDACTED] had already left for work together with [REDACTED]. [REDACTED] would return home after 5 PM in the evening. [REDACTED] never recalled a time when [REDACTED] was already at home when she herself returned from work.
92 [REDACTED] testified that while she and [REDACTED] were away at work, their one-year-old daughter [REDACTED] would be cared for by her sister-in-law [REDACTED]. She does not recall [REDACTED] ever caring for [REDACTED] during this time since, in her view, [REDACTED] was too young for that responsibility.
93 During the time when they lived on [REDACTED] Avenue, [REDACTED] never saw [REDACTED] take [REDACTED] into the bathroom on the second floor.
94 [REDACTED] stated that she and [REDACTED] moved to their own home on [REDACTED] Avenue shortly after purchasing it in November 1965. In 1966, her mother and her sister [REDACTED] came to live with them, occupying the "flat" on the second floor.
95 She recalls that in July 1968, [REDACTED] and [REDACTED] came to stay with them for a few weeks. They were under the care of her mother at that time.
96 [REDACTED] denied ever chasing or grabbing [REDACTED] on the porch at [REDACTED] Avenue in July 1968. Nor did she ever observe [REDACTED] doing so. She further denied ever telling [REDACTED] that she wanted to check her to see if she had pubic hair. She denied ever holding [REDACTED] down and denied ever seeing [REDACTED] pulling down [REDACTED]'s underwear and touching her vagina.
97 [REDACTED] testified that in the evenings during the summer they would often sit on their front porch, as would other neighbours. There was no fence around the front yard and the porch was visible from the street. It a friendly neighbourhood and it was common for them to be visited by neighbours as they were sitting on their front porch in the evening.
98 [REDACTED] testified that after [REDACTED] was married, [REDACTED] might sometimes come over to [REDACTED]’s home for a visit. [REDACTED] identified the photograph taken in February 1988, which included herself, [REDACTED], and [REDACTED] (along with [REDACTED]'s husband and daughter), as having been taken in the basement of [REDACTED]'s home.
99 [REDACTED] described an incident that had arisen at the time of [REDACTED]'s funeral in 2004. She stated that just prior to the coffin being closed, [REDACTED] asked other members of the family to leave the room. [REDACTED] stated that after the funeral she did not see or visit with [REDACTED] very often.
100 [REDACTED] stated that she went to visit [REDACTED] twice in the hospital after her accident in 2015. On her second visit she went with her daughter, [REDACTED], and [REDACTED]'s's husband. On this occasion [REDACTED] asked [REDACTED]'s husband, who works at a store that sells fruit, to bring some fruit to the hospital for her. [REDACTED] and her husband later brought fruit to [REDACTED], but [REDACTED] did not accompany them on that occasion.
101 On cross-examination, [REDACTED] was asked about the circumstances surrounding her visits to see [REDACTED] in the hospital in 2015. She indicated that prior to going she had received a telephone call from her brother, [REDACTED], who had said that [REDACTED] was very ill and might die. [REDACTED] suggested that they try to go to the hospital to see [REDACTED] as soon as possible. It was for this reason that she, along with her daughter and son-in-law, had rushed to the hospital in order to see [REDACTED]
102 After [REDACTED] returned from visiting [REDACTED] in the hospital, he had told her that [REDACTED] had begun screaming at him. [REDACTED] did not know why [REDACTED] was screaming at[REDACTED]or what specifically she might have been saying to [REDACTED].
III. Applicable Legal Principles
- The Presumption of Innocence and Proof Beyond a Reasonable Doubt
103 The presumption of innocence is a cornerstone of our criminal justice system, guaranteed by s. 11(d) of the Canadian Charter of Rights and Freedoms. The presumption of innocence, and along with it the standard of proof beyond a reasonable doubt, are important and necessary safeguards to ensure that no innocent person is convicted of an offence and wrongfully deprived of his or her liberty.
104 Thus, [REDACTED] is presumed innocent of the charge brought against him and this presumption remains with him unless and until the Crown proves his guilt beyond a reasonable doubt. This is a heavy burden that remains on the Crown and never shifts.
105 I remind myself of the meaning of the phrase proof beyond a reasonable doubt. A reasonable doubt is not an imaginary or frivolous doubt. It is not a doubt based on sympathy for or prejudice against anyone involved in this trial. It is a doubt based on reason and common sense, one that arises logically from the evidence or absence of evidence. It is not enough for me to believe that [REDACTED] is probably or likely guilty. In that circumstance I am required to give the benefit of the doubt to [REDACTED] and acquit him because the Crown would have failed to satisfy me of his guilt beyond a reasonable doubt.
106 I also recognize that proof beyond a reasonable doubt is not proof to an absolute certainty. But the standard of proof beyond a reasonable doubt falls much closer to absolute certainty than to probable guilt. I recognize that I must consider all of the evidence and be sure that [REDACTED] committed the offence with which he is charged before I can be satisfied beyond a reasonable doubt of his guilt.
- Assessing Credibility
107 [REDACTED] and testified to two contradictory versions of events. Their evidence cannot stand together and to reach a verdict in this case I must assess the credibility of each. This task however does not simply involve choosing which version of events I prefer. The decisive question is whether, considering the evidence as a whole, the Crown has proven the guilt of the accused on the specific charges alleged, beyond a reasonable doubt.
108 The correct approach in cases such as this was set out by the Supreme Court of Canada in R. v. W.(D.), where the Court directed, first, that if I believe the evidence of [REDACTED] that he did not commit the offence with which he is charged, I must find him not guilty. Second, even if I do not believe the testimony of [REDACTED], if his testimony leaves me with a reasonable doubt of his guilt regarding the offence charged, I must find him not guilty. Third, even if [REDACTED]'s testimony does not leave me with any reasonable doubt as to his guilt, I must still consider whether the evidence I do accept satisfies me of his guilt beyond a reasonable doubt.
109 I am not required to consider the evidence in any particular chronological order or in accordance with any strict formulaic structure. I agree with Code J.'s approach to the W.D. analysis as set out in R. v. Thomas:
A trier of fact must look at all the evidence when deciding whether to accept the accused's evidence and when deciding whether it raises a reasonable doubt. It is at that same point in time that the trier of fact will also determine whether the Crown's witnesses prove guilt beyond a reasonable doubt and whether the accused's contrary exculpatory account must necessarily be rejected. In other words, these decisions are all made at the same time on the basis of the same total body of evidence...
110 Nor is there any no singularly correct or scientific method for assessing credibility. As Chief Justice McLachlin recognized in R. v. M.(R.E.), credibility determinations "may not be purely intellectual and may involve factors that are difficult to verbalize."4 It is precisely for that reason that is important to avoid credibility assessments based on what Paciocco J.A. has described as "impressions [that are] the product of stereotype, emotional evaluation, or ill-founded confidence in what is no more than guesswork."
111 As Watt J.A. noted in R. v. A.M., one of the most valuable means of assessing witness credibility is to examine the consistency between what the witness said in the witness box and what he or she has said on other occasions, whether or not under oath.6 Inconsistencies may emerge not just from a witness' testimony at trial, but also from things said differently at different times, or from omitting to refer to certain events at one time while referring to them on other occasions. As Watt JA further observed:
Inconsistencies very in their nature and importance. Some are minor, others are not. Some concern material issues, others peripheral subjects. Where an inconsistency involves something material about which an honest witness is unlikely to be mistaken, the inconsistency may demonstrate a carelessness with the truth about which the trier of fact should be concerned.
- Avoiding Myths and Stereotypes in Sexual Assault Cases
112 The Supreme Court of Canada has repeatedly observed that relying on myths and stereotypes in assessing the credibility of sexual assault complainants invokes impermissible reasoning. Of particular relevance in this case is the fact that no inference should be drawn regarding a complainant's credibility that is based on assumptions about how a victim of sexual assault is supposed to react to the assault. This includes the now discredited belief that a sexual assault victim is expected to make a timely complaint. As the Supreme Court of Canada noted in R. v. D.(D.):
[T]here is no inviolable rule how people who are the victims of trauma like a sexual assault will behave... Reasons for delay are many and at least include embarrassment, fear, guilt, or a lack of understanding and knowledge. In assessing the credibility of a complainant, the timing of the complaint is simply one circumstance to consider in the factual mosaic of a particular case. A delay in disclosure, standing alone, will never give rise to an adverse inference against the credibility of the complainant.
113 Nor is it appropriate to assume that a victim of sexual assault will subsequently avoid their abuser. The mere absence of avoidant behavior by a complainant cannot form the basis of a credibility assessment leading to reasonable doubt. This is all the more so when dealing with child victims who often fail to make early disclosure and may attempt to normalize behaviour for any number of reasons.
- The Evidence of Children
114 [REDACTED] was between 7 and 11 years old at the time of the alleged offenses, and [REDACTED] was between 5 and 9 years old. There was a time when the evidence of children was regarded is inherently unreliable and therefore to be treated with special caution. As the Supreme Court of Canada determined a generation ago, that time is long past. It is now clear that it is wrong to assess the testimony of a child in accordance with the standard applicable to an adult. As Wilson J. recognized in R. v. B.(G.), "[w]hile children may not be able to recount precise details and communicate the when and where of an event with exactitude, this does not mean that they have misconceived what happened to them and who did it." Inconsistencies about peripheral matters must be assessed in the context of their ages at the time of the events about which they are testifying.
115 At the same time, when adult witnesses testify about events that took place when they were children, their evidence is to be assessed according to the criteria applicable to adults, not to the somewhat lessened standard of scrutiny associated with child witnesses. While minor inconsistencies may not unduly diminish a witness' credibility, significant inconsistencies that are not merely in relation to peripheral matters may cause the trier of fact to have a reasonable doubt about the reliability or credibility of the witness' evidence.
IV. Analysis
116 One of the challenges associated with this case is the fact that the events that are the subject of the charge occurred approximately 50 years ago. Not only have witnesses' memories faded over time, there is limited independent evidence against which to measure the credibility or reliability of the evidence which is available.
117 That said, in my view there are certain basic factual findings that emerge directly from the record and which can provide a context and a foundation upon which to make the further determinations necessary in this case.
118 First, I find that [REDACTED] and his family arrived in Canada on November 6, 1964. [REDACTED] and [REDACTED]'s evidence in this regard is confirmed by the Landing Record obtained from Citizenship and Immigration Canada. There is no credible or plausible basis upon which to dispute the fact that this is the date upon which [REDACTED] and [REDACTED] arrived in Canada. Neither [REDACTED] nor [REDACTED] had a clear recollection of the date upon which [REDACTED] and [REDACTED] arrived in Canada. Nor could they be expected to have had such a specific recollection given that they were ages 7 and 5 at the time. It is therefore clear that [REDACTED] and [REDACTED] arrived in Canada on November 6, 1964.
119 Second, I find that [REDACTED] and his family moved out of the [REDACTED] Avenue residence at around the end of November or the beginning of December 1965. [REDACTED] and [REDACTED]'s evidence in this regard is supported by the deed of transfer recording their purchase of the [REDACTED] Avenue home on November 23, 1965. It stands to reason that they would have moved to their new home very shortly after purchasing it, rather than leaving it vacant for any substantial amount of time. Moreover, there is no plausible basis in the record before me to dispute the fact that [REDACTED] and [REDACTED] would have moved to [REDACTED] Avenue at this time. Although [REDACTED] and [REDACTED] testified that [REDACTED] lived with them on [REDACTED] Avenue until 1966 and 1967, they did not have a clear recollection of the precise dates. Nor would they be expected to, given their ages at the time.
120 Third, I find that any assaults that occurred on [REDACTED] Avenue did not continue after [REDACTED] and his family moved out at the end of November or the beginning of December, 1965. The uncontradicted evidence on the record is that any assaults on [REDACTED] Avenue did not continue after [REDACTED] had moved out. [REDACTED] was quite firm in her testimony that the assaults on [REDACTED] Avenue ceased once [REDACTED] was no longer living there. Moreover, the Crown did not offer any plausible scenario whereby [REDACTED] could have continued the assaults on [REDACTED] on [REDACTED] Avenue while living on [REDACTED] Avenue. It is clear that immediately after [REDACTED] and his family moved out of the house on [REDACTED] Avenue, another family moved into the second floor "flat". Thus [REDACTED] would no longer have had ready access to the bathroom on the second floor. In any event, if [REDACTED] was intending to continue his assaults upon [REDACTED], it simply defies credulity that he would have attempted to do so by utilizing a second floor bathroom in a home in which was no longer residing and where the risk of discovery would be significant.
- The [REDACTED] Avenue incidents
121 Turning first to [REDACTED]'s evidence on this aspect of the case, he had difficulty in recalling specific events or dates in relation to the time when he was living on [REDACTED] Avenue. Nevertheless, it is not surprising that a witness' memory of events 50 years in the past might have faded.
122 [REDACTED]'s evidence account was largely internally consistent. He testified that he began working immediately upon arriving in Toronto in November 1964. He further testified that for the first two years after he arrived, he worked on the same job sites as [REDACTED]. He denied that he was ever alone during the day with the children, and denied ever having taken [REDACTED] into the bathroom on the second floor at [REDACTED] Avenue and assaulting her there.
123 There were some areas of concern with respect to [REDACTED]'s testimony. In particular he maintained that during the time he was living on [REDACTED] Avenue, he never missed a day of work. It is unclear how he would have such a specific recollection 50 years after the fact. [REDACTED]'s unwillingness to consider that he might have been off work for even a single day during the 13 months when he lived on [REDACTED] Avenue suggested that he was not being entirely forthright in his testimony.
124 [REDACTED] also appeared to be less than forthright when asked about a variety of other matters, including whether [REDACTED] had tended to wear dresses as a young girl, whether he had ever hugged [REDACTED] or held her on his lap, and whether [REDACTED] had been a strict father and disciplinarian. [REDACTED] also did not provide a clear explanation as to why he had gone on his own to visit [REDACTED] in the hospital after her accident in 2015.
125 Nevertheless, despite these concerns, I do not find that they are so substantial that they cause me to reject [REDACTED]'s evidence. The fact that [REDACTED] may have been less than forthright about a variety of matters does not necessarily mean he is lying when he denies having sexually assaulted [REDACTED].
126 Turning to the evidence of [REDACTED], I begin with the observation that I draw no adverse inference from the fact that [REDACTED] waited approximately 50 years before reporting these alleged assaults to the police. Victims of sexual assault, particularly child victims, often do not report such abuse for a substantial period of time. Standing alone, a delay in reporting does not provide a basis for questioning the credibility of a complainant.
127 Similarly, there is no expectation that [REDACTED] would necessarily have avoided [REDACTED] in the years following these alleged assaults. The mere fact that [REDACTED] may have continued to have contact with [REDACTED] after the assaults does not, in itself, give rise to a credibility concern.
128 During her initial examination in chief, [REDACTED] described the series of assaults that she was certain took place over a three-year period, beginning when she was seven years old. She gave her initial evidence in a manner that was straightforward and made sense.
129 Nevertheless, when I consider the balance of [REDACTED]'s testimony, including both her later examination in chief and her cross-examination, and taking into account the totality of the evidence before me, I am left with concerns about her credibility and reliability.
130 First, [REDACTED]'s testimony at trial was internally inconsistent. The first occasion when this arose was on the second day of her examination in chief when she indicated that she wished to revise her earlier evidence regarding the incident that had taken place on [REDACTED] Avenue. She explained this on the basis that she had had an opportunity to review the transcripts of her statement to the police as well as her testimony at the preliminary inquiry. She did not explain why she might have forgotten certain details or aspects of her evidence while testifying the day before.
131 I will consider in more detail below her specific evidence in relation to the [REDACTED] Avenue incident. Nevertheless, this revision of her earlier testimony without adequate explanation suggested that she was attempting to tailor her evidence so that it would appear internally consistent, as opposed to providing an honest and genuine account based on her actual recollection of events. Moreover, as will be described below, [REDACTED] then denied that her revised testimony was inconsistent with her original testimony, which reinforced these credibility concerns.
132 Second, a matter of particular concern was that [REDACTED]'s description of the manner in which the assaults occurred on [REDACTED] Avenue changed at various points during the trial. In her examination in chief, [REDACTED] testified that there was "full penetration" during each of the incidents in the second floor bathroom on [REDACTED] Avenue. This changed during her cross-examination, when [REDACTED] stated that she was touched or fondled in her vaginal area but that there had not been any penetration. Then, during her re-examination by the Crown, she suggested initially that there had not been penetration, but then revised her position again by stating that "yes there was insertion, but I assumed with a finger."
133 In closing argument, the Crown argued that these different answers did not necessarily reflect any inconsistency in [REDACTED]'s account of the assaults on [REDACTED] Avenue. Crown counsel attributed the apparent inconsistency to the fact that [REDACTED] may have had a confusing or imprecise understanding of the use of the term "penetration". Indeed, in re-examination by Crown counsel, [REDACTED] indicated that "penetration" did not necessarily mean insertion.
134 That said, the fact remains that [REDACTED] testified in direct examination that there had been "full penetration", and then took a different position on cross examination where she said that there had been "no penetration". Moreover, [REDACTED] stated in cross-examination that there had not been insertion of either a finger or penis into her vagina, whereas in redirect by the Crown, [REDACTED] stated that there had been insertion. Crown counsel was unable to provide any convincing explanation as to how to reconcile these inconsistencies.
135 As discussed earlier, inconsistencies regarding peripheral or incidental matters are not necessarily a cause for concern. Particularly where a witness is describing events that took place when they were child, they cannot be expected to have an accurate recollection of specific dates or times. But that is not the issue here where [REDACTED], testifying at trial as an adult, is offering inconsistent accounts of the nature of the assaults themselves. This cannot be explained on the basis of the frailties associated with evidence provided by children, nor does it relate to a peripheral or incidental matter.
136 I also have concerns over the fact that [REDACTED] was very firm in her evidence that the assaults on [REDACTED] Avenue continued for a period of approximately three years, and she was certain that they would have continued for more than one year. In fact, as I have earlier found, the assaults could have continued for, at most, a period of 13 months. Moreover, if I accept [REDACTED]'s evidence that the first assault took place in the summer (a matter on which she was very certain), then the first assault could not have taken place until the summer of 1965. This would mean that the assaults could have continued for no more than five months, since I have found that [REDACTED] moved out of [REDACTED] Avenue by late November or early December 1965.
137 Even taking account of the fact that [REDACTED] was a young child at the relevant time, there is clearly a substantial difference between assaults that continue for a period of five months, as opposed to for a period of three years. Moreover, [REDACTED] maintained that she remembered the assaults having continued for about three years because of the changes in her clothing or hairstyles over this period of time. It is difficult to see how this recollection can be reconciled with the fact that the assaults would have ceased by December 1965, when [REDACTED] had recently turned eight years old.
138 I am also concerned by the inconsistency between [REDACTED]'s evidence that she avoided [REDACTED] in the years following the assaults, and other independent evidence pointing in a opposite direction. To be clear, a victim of sexual assault is not necessarily expected to avoid the perpetrator. But [REDACTED] claimed that she had, in fact, consistently attempted to avoid [REDACTED] after the last assault in 1968. Thus evidence that she had maintained contact with [REDACTED] after the assaults is relevant to her credibility.
139 [REDACTED] was unable to explain or reconcile her account of avoidant behaviour with contrary evidence suggesting that she had continued to have regular contact with [REDACTED] in later years. For example, when presented with the photograph taken in February 1988 depicting [REDACTED], her husband and young daughter with [REDACTED] and [REDACTED], she indicated that she could not recall when or why that photo had been taken. Given the date stamp on the photograph as well as the formal dress of everyone in the photo, this denial was simply not credible. Similarly, when questioned about other photographs at family events depicting her sitting close to [REDACTED], she suggested that the various photos might have been staged in some way and that she might have moved away from [REDACTED] immediately after the photo had not been taken. Yet the photos appeared to be candid rather than staged, and [REDACTED]'s suggestion appeared to be speculative, designed to simply avoid having to deal with evidence inconsistent with her position.
140 I was also concerned about [REDACTED]'s response to the question about whether [REDACTED] had undertaken renovations to her basement. Initially, [REDACTED] had stated that [REDACTED] had undertaken repairs to an outdoor fence but had not otherwise undertaken any renovations at her home. When asked whether [REDACTED] had renovated her basement, [REDACTED] replied that she did not remember. This response was simply incredible since [REDACTED] would surely be expected to know whether or not [REDACTED] had renovated her basement. A variety of other witnesses testified to the fact that [REDACTED] had in fact undertaken these basement renovations. I conclude that [REDACTED] was simply not responding honestly to the question.
141 I am also left with concerns regarding [REDACTED]'s account of the reasons why a rift developed in the family after her father [REDACTED]'s funeral in 2004. [REDACTED] attributed this to a telephone call regarding an apparent failure to provide limousines for certain family members; she suggested that this concern had somehow been caused or prompted by [REDACTED]. In fact a number of other witnesses, including the Crown's other witness [REDACTED], had a different account of the cause of the rift. These other witnesses indicated that it was the decision of [REDACTED] to restrict access to the closing of [REDACTED]'s coffin that had been a source of the difficulty. I mention the matter not because it was somehow inappropriate to restrict access to [REDACTED]'s coffin, a matter on which I express no opinion. The concern, rather, is that [REDACTED]'s account of the incident did not appear to be forthright or candid, and was tailored with a view to cast blame upon [REDACTED].
142 Similarly I am troubled by [REDACTED]'s account of the case of fruit that was given to her while she was in the hospital in February 2015. In her initial evidence, [REDACTED] stated that [REDACTED] had simply shown up at the hospital with the fruit after [REDACTED] had screamed at [REDACTED] earlier in the day. She characterized the fruit as an attempt to buy her silence about the earlier visit by [REDACTED]. In cross-examination she was forced to acknowledge that she had requested the fruit and that her complaint was that more fruit was brought than had been requested. This again suggested a lack of candour in her evidence, thereby undermining the credibility of her characterization of the fruit as a "payoff" in return for her silence.
143 In highlighting these concerns regarding the credibility and reliability of [REDACTED]'s evidence, I do not mean to suggest that she was lying when she claimed that she was sexually assaulted by [REDACTED] in the second floor bathroom at [REDACTED] Avenue. It may well be that such assaults did occur.
144 Nevertheless I am left with a reasonable doubt as to whether that is the case. That doubt arises primarily because of my concerns about [REDACTED]'s evidence. There are simply too many areas in which I have found [REDACTED]'s evidence to be internally inconsistent, inconsistent with other evidence that I accept, or lacking in credibility. Taken as a whole, I am left with significant concerns about the credibility and reliability of her version of events.
145 My reasonable doubt also flows from a consideration of the evidence of [REDACTED]. While I have concerns over certain aspects of his evidence, these are not such as to cause me to reject his evidence entirely. Accordingly, [REDACTED]'s evidence also leaves me with a reasonable doubt.
146 As discussed above, the burden of proof beyond a reasonable doubt is onerous. I cannot be sure that [REDACTED] committed the assaults alleged in relation to [REDACTED] on [REDACTED] Avenue. I therefore acquit him of those assaults.
- The [REDACTED] Avenue incident
147 Turning to the [REDACTED] Avenue incident, as noted above both [REDACTED] and [REDACTED] denied ever having chased, grabbed or assaulted [REDACTED] while they were living on [REDACTED] Avenue. Their testimony on this aspect of the case was straightforward and believable.
148 In cross-examination of [REDACTED], Crown counsel suggested that [REDACTED] and [REDACTED] were playing a little game where they would chase [REDACTED] and try to grab her, as a joke. [REDACTED] simply denied any such teasing or gameplaying. In any event, [REDACTED] did not suggest that the chasing had been a game. She maintained that she had been yelling and crying when being chased repeatedly during the time she was staying at [REDACTED] Avenue.
149 In brief cross-examination of [REDACTED], Crown counsel focused on other matters and did not even question [REDACTED] about the incident on the porch at [REDACTED] Avenue.
150 In short, I find no basis to reject the evidence of [REDACTED] and [REDACTED] in relation to the incident on the porch at [REDACTED] Avenue.
151 Turning to the evidence of [REDACTED], I note that her evidence at trial as to what happened on the porch at [REDACTED] Avenue was inconsistent in a number of material respects. In her initial testimony, [REDACTED] stated that on a single occasion in July 1968 she had been grabbed on the porch and held down by [REDACTED], while [REDACTED] pulled down her underwear. [REDACTED] testified that although [REDACTED] and [REDACTED] both laughed, neither of them said anything, nor did they touch her. [REDACTED] further testified that she believed that [REDACTED] and [REDACTED] were checking to see if she had pubic hair, but that this was not expressly stated by either of them.
152 Her testimony changed in a number of significant respects later in the trial. First, as discussed above, she stated that in addition to the occasion on which he had been grabbed, [REDACTED] and [REDACTED] had chased her on the porch frequently during the three weeks she was staying there. She also testified that during the incident [REDACTED] had said that they wanted to check if she had pubic hair, and that [REDACTED] had touched her on the vagina after pulling down her underwear.
153 [REDACTED] was unable to offer any plausible explanation that would reconcile these inconsistent accounts of the incident on [REDACTED] Avenue. At one point [REDACTED] claimed that in her initial testimony she had simply not mentioned the fact that [REDACTED] had made the comment about checking for her pubic hair. But this attempted reconciliation merely reinforced concerns over [REDACTED]'s credibility, since she had had specifically stated in her initial testimony that neither [REDACTED] nor [REDACTED] had said anything during the assault upon her, and was now testifying to the contrary.
154 I am further troubled by the fact that [REDACTED] did not mention anything about the incident on the porch at [REDACTED] Avenue in her initial statement to the police in June 2016. It was only in December 2016, after she had been in contact with the police on a number of occasions to inquire about the status of the investigation, that she raised allegations regarding [REDACTED] Avenue. When cross examined on this point, she claimed to have forgotten about the [REDACTED] Avenue incident at the time of her initial plea statement, and only remembered it sometime in the fall 2016. However she could not provide any details as to when or how this recollection had occurred.
155 More fundamentally, I have serious concerns regarding the inherent plausibility of [REDACTED]'s account of the [REDACTED] Avenue incident. [REDACTED] claimed that she was chased and grabbed as she was attempting to enter through the front door of the house. However she acknowledged that she had been walking home from the nearby park with her grandmother and her brother [REDACTED], and that they had been walking close together. Thus both her grandmother and her brother would have only just entered the house moments before. If [REDACTED] and [REDACTED] had suddenly jumped up from their chairs and begun chasing [REDACTED], and she had been yelling and crying for them to stop, it stands to reason that one or both of her grandmother or her brother would have noticed something. This is particularly the case if the chasing had occurred whenever they returned home from the park. Yet [REDACTED] maintains that neither her grandmother nor her brother ever noticed anything untoward, which seems to defy logic and common sense.
156 Also relevant in this regard is the fact that the front porch of the [REDACTED] Avenue home was clearly visible to neighbours and passersby on the street. [REDACTED] testified that during July evenings it was common for residents in the area to sit on their front porches. Thus any chasing or improper touching of [REDACTED] would likely have been noticed by others in the neighbourhood. In addition, the [REDACTED] Avenue house was a semi-detached property, with the adjoining porch separated by a partition which made it impossible for those sitting on one side to see whether anyone was sitting on the other. As such, [REDACTED] and [REDACTED] would not have had any way of knowing whether someone was sitting no more than a few feet away on the adjoining porch and would surely have heard the commotion associated with the chasing. These considerations suggest that it is highly implausible that [REDACTED] and [REDACTED] would have chosen to engage in this conduct on their front porch.
157 The irresistible conclusion that flows from these various considerations is that I have significant doubt as to whether the incident on [REDACTED] Avenue took place. I therefore find [REDACTED] not guilty of indecent assault in respect of the allegations regarding [REDACTED] Avenue.
V. Disposition
158 I find [REDACTED] not guilty,
[REDACTED] J.
