R. v. G.Y., 2023 ONCJ 395

WARNING The court hearing this matter directs that the following notice be attached to the file: A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code . This subsection and subsection 486.6(1) of the Criminal Code , which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1) , read as follows: 486.4 Order restricting publication — sexual offences. —

(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (

a) any of the following offences: (

i) an offence under

section 151, 152, 153, 153.1, 155, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or (ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (

i) if it occurred on or after that day; or (

b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a) .

(2) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)(

a) or ( b ), the presiding judge or justice shall (

a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and (

b) on application made by the victim, the prosecutor or any such witness, make the order. . . . 486.6 OFFENCE —

(1) Every person who fails to comply with an order made under any of subsections 486.4(1) to (3) or subsection 486.5(1) or (2) is guilty of an offence punishable on

summary conviction. CITATION: R. v. G.Y., 2023 ONCJ 395 DATE: September 18, 2023 COURT FILE No: 22-37100292 O N T A R I O C O U R T OF J U S T I C E B E T W E E N : HIS MAJESTY THE KING -AND-

G.Y. Before Justice M. G. March Heard on April 20 & 26, May 15, & June 13, 2023 Reasons for Judgment released on September 18, 2023 Conor Kyte………………...……………………….…….Counsel for the Provincial Crown Virginia Dolinska………...………………………………………………….Counsel for G.Y. March, M.G., J. : Introduction: 1 . The accused, G.Y., stands charged that between January 1, 2003, and December 31, 2010, he did:

a) in the Township of Laurentian Valley, Ontario, for a sexual purpose, touch S.M., a person under the age of sixteen directly with a part of his body, to wit, his hands, contrary to

section 151 of the Criminal Code of Canada (“the Code ”),

b) in the City of Pembroke, Ontario, for a sexual purpose, invite S.M., a person under the age of sixteen to touch directly with a part of his body, to wit, his penis, the body of S.M. contrary to

section 152 of the Code , and

c) in the Township of Laurentian Valley, Ontario, commit a sexual assault on S.M. contrary to

section 271 of the Code . 2 . G.Y.’s trial proceeded over the course of four days. It involved historical allegations made by the complainant, S.M., of a sexual touching nature implicating G.Y., who was then the husband of her cousin, M.G. According to S.M., when the incidents occurred, she was a child ranging in age somewhere between 4 and 9 years. G.Y. would have been a young man in his mid to late 20’s. 3 . As with so many criminal trials, the outcome of this case turns primarily on an assessment of the credibility and reliability of the witnesses called to testify. The Relevant Evidence S.M. 4 .

When S.M. gave her evidence on April 20, 2023, she was 24 years of age. She was living with her mother, F.H., and her brother, C. 5 . She completed her schooling in Pembroke and was employed locally. 6 . She described her decision to come forward to the authorities with her allegations against the accused, G.Y., as “standing up for myself for what was done to me when I was younger”. 7 . She went on to explain that she had been inappropriately touched by G.Y., a person she knew as “J.”. At that time, G.Y. was married to M.G., S.M.’s older cousin. M.G.’s mother is D.G., the aunt of S.M. 8 .

S.M.’s mother, F.H., and D.G. are sisters. 9 . S.M.’s aunt, D.G., would drive her as a child on occasion to visit G.Y. and M.G. S.M. described G.Y. as a “quiet” type, who was always in the background.

10 . S.M. related that the touching occurred on two distinct occasions. The first time it happened was in the middle of the night when G.Y. was babysitting her. She had been sleeping in bunkbeds with G.Y.’s stepson and M.G.’s biological son, K., who is half a year younger than her. S.M. and K. were close. She woke up in the middle of the night and wanted to go home. However, G.Y. was comforting her and convinced her to go into his bed with him. She did not know how to say no. 11 . She woke up later in G.Y.’s bed with her hand on his penis. He was having her stroke it.

He used her hand to grasp his penis, and to rub up and down it. She was in shock and afraid when she realized what was occurring. She pretended as though it was not happening, and that she was still sleeping. 12 . She could not remember seeing his penis, but she could feel his skin. It was the first time she had ever had such an experience, but as she put it, “I knew enough to know what a penis was.” She did not know if his penis was erect, but her hand was all the way around it with his hand over hers. 13 . She ran to the bathroom to get away and hide. G.Y. came to the bathroom door and knocked.

He spoke through the door to her. He was trying to get her to come out. 14 . When S.M. exited, G.Y. was there. She returned to K.’s bedroom and to her bunk on the bottom. She believed K. was still in the one above her. She fell asleep again. 15 . Later, she re-awoke to G.Y. using a flashlight and trying to see her vaginal area. She was sure it was him with the flashlight because there was no other adult in the house at the time. She was wearing “little shorts like a skirt at the same time”. She did not know what G.Y. was wearing. 16 . She rolled over, at which point, she surmised, G.Y. realized she was awake.

She did not recall what happened afterwards. 17 . She did not specifically know how old she was. She stated that she was under 10 years of age. She did not know what grade she was in at the time. 18 . The incidents occurred while G.Y and M.G. were living with their sons near the French public school in Pembroke, and S.M. was living on T. St. in the same city. 19 . S.M. added that it was just G.Y. who was there with K. and her at the time. M.G. was a nurse and was working the night shift. S.M. did not know where M.G.’s older son, D., was that night. 20 .

S.M. was able to place the second event as occurring during the fall of the year. There was no snow on the ground. However, all the leaves on the trees were dead. It was cold and light outside. G.Y. and she were riding together on an all-terrain vehicle (an “ATV”). 21 . G.Y. and M.G. were then living in Shady Nook, just outside Pembroke, near where M.G.’s sister, T. resided. 22 . At G.Y.’s and M.G.’s house, S.M. recalled that their son K. had a bedroom in the basement. The family dog was a Husky named “Red”. 23 . Present during this occasion were G.Y., M.G., and their sons, K. and D., and S.M.’s aunt, D.G.

D.G. did not want S.M. to ride alone. S.M. was told to ride with G.Y. She was uncomfortable, but was too scared to say no. 24 . S.M. explained that they were all telling her to go. She felt that if she did not, that she would have to say what had happened to her, and that G.Y. had “raped” or “molested” her. 25 . She recalled that K. was then able to operate an ATV on his own. 26 . G.Y. drove with her down a bush road into “a hidden area with trees all around”. He then began sticking his hands down her pants trying to touch her vagina. He told her his hands were cold. He was “using that as an excuse”.

He was trying to get “further down”, but he did not succeed in getting his hands inside her. 27 . He managed nevertheless to put his hands in her underwear and to touch her vagina. She tried to push them away. While testifying, S.M. gestured by raising both her hands and pushing them outward from her body. 28 . Eventually, G.Y. stopped. S.M. did not know how long the incident went on for. Again, she was in shock. She clarified that it was traumatizing event. She described it as something “disgusting to do to a kid”. 29 . K. was nowhere to be seen while this was happening. 30 .

S.M. stated that she was “older” than the first time she was inappropriately touched by G.Y., but she could not recall what grade she was in or exactly how old she was. She did not know how long an interval there was between the first and the second incident. 31 . She recounted that it took her a long time to tell anyone about the incidents, but she eventually disclosed them to her twin cousins, A.C. and B.C., when they were in S.M.’s mother’s bathroom. At that point, S.M. estimated that she was between 12 and 14 years of age. She could not remember in which grade she was at the time.

Nor could she recall how much detail she gave to her cousins. 32 . Later, she told a few friends and her brother as well. When she disclosed the incidents to her mother, F.H., she was upset about something else, and she “let it out”. She “kind of had enough of everything”. However, S.M. did not provide much detail to F.H., just that G.Y. was “touching” or “molesting” her. S.M. could not be sure of what specific words she used. 33 . By that point, G.Y. and M.G. had moved back from Fort McMurray, AB and were living again in the Pembroke area for a year or two.

They had a daughter of their own, Ki., who was around 6 years old. S.M. was worried for this child.

34 . On a prior occasion, she had been at a family gathering during which she was playing with Ki. as a baby. G.Y. was present, but S.M. would not look at him because of what he had done to her. They did not speak. She did not want to “get into it”. 35 . S.M. also disclosed the incidents to her ex-boyfriend, J.V., roughly 3 years prior to giving her testimony. She was not sure whether this was before or after she had told her mother, F.H. 36 . S.M. did nevertheless explain that she was then more open about the incidents since telling her mother. She also told her aunt, D.G. 37 .

Under cross-examination, S.M. recalled that she gave a statement to police on June 22, 2021. At that point, she was 22 years of age. 38 . Prior to giving her evidence, she reviewed that statement. She denied that she had spoken to either her mother, F.H., or her aunt, D.G., about the statement she gave to police. However, she was aware that her cousin, M.G., or her aunt, D.G., had already spoken to police about the allegations against G.Y. she was making. 39 .

When referred to her statement, S.M. then recalled telling police that she was aware M.G. had initially spoken to them, but that she had not “really talked to [M.G.] about what happened to me”. 40 . S. M. then placed the timing of her disclosures to her mother, F.H., and her aunt, D.G., at about 3 years ago when she was around 20 or 21 years of age. S.M. only told them that “he [G.Y.] did something to me”. She knew that her mother and her aunt then told M.G. 41 .

It was then pointed out to S.M. by defence counsel that in her statement to police two years previous to giving her evidence in court, she stated “I told my mom a few years ago”. 42 . S.M. retorted that “I didn’t write the date down that I told my mom”. She added that “I get the years mixed up”. 43 . She denied that she would not have come forward with her allegations to the police if M.G. or D.G. had not spoken to them first; however, she agreed that she needed support before making her allegations public. 44 . S.M. maintained that she did not speak to police at the instance of her family members.

Her mother, F.H., was waiting for her to make a decision about whether she wished to go forward with her allegations or not. 45 . She agreed that she had referred to her mother as “dumb” when speaking to police. She explained that she had wanted her mother “to do something”, but she conceded that she did not tell her mother what she wanted done. Nor did her mother know really what to do in S.M.’s estimation. Her mother ended up doing nothing. 46 . S.M, reemphasized that she had gotten mad at her mother and blurted it out.

She did not think that her mother wanted to call the police upon learning of the allegations. 47 . She stated that she did not really remember what she first disclosed to her mother. She did recall that, around this time, her aunt D.G. would bring G.Y.’s and M.G.’s daughter, Ki., to her house to visit every two weeks or so. 48 . S.M. was aware that G.Y. and M.G. were engaged in litigation in Family Court at the time she gave her evidence, but she maintained that their court case postdated her disclosure of what G.Y. allegedly did to her. 49 .

S.M. denied vehemently that she was fabricating allegations against G.Y. to benefit M.G. in any way. When challenged by defence counsel as such, S.M. testified, “I would never go through all of this for a lie.” 50 . She provided her reasons for coming forward to the authorities as, firstly, for Ki.’s safety, and secondly, because she (S.M.) was going through “a bad time”. 51 . She disagreed that she had ever previously heard from her aunt, D.G., that G.Y. was molesting his own daughter, Ki. 52 .

In recalling the first incident when she testified about G.Y. babysitting her, she agreed that she was probably taken to his house by D.G., and that her cousin, M.G., who she believed was a nurse, was probably at work doing a night shift. 53 . S.M. did not think that M.G.’s older son, D., was home on that occasion. S.M. agreed that he did have a bedroom downstairs. 54 . She added that it was normally her aunt, D.G., or her cousin, M.G., who would care for her when her mother could not. It was unusual for G.Y. to be in that role.

Indeed, she could not remember if that was the first and only time that he babysat her. She may have visited again at G.Y.’s and M.G.’s house, but she did not think that she would have had another sleepover. However, S.M. did not know for sure. 55 . It was possible however, that she had had sleepovers with K. before this incident. 56 . S.M. went on to say that she was never comfortable with sleepovers. 57 . In estimating how old she was when the first incident occurred, S.M. thought she was between 6 to 8 or 9 years old.

When referred by defence counsel to the statement she gave to police, she agreed that she estimated her age then as between 4 and 7. 58 . S.M. recalled that G.Y. and M.G. moved around a lot, but she was confident that the first incident occurred when they lived in an area of Pembroke known as “Shack Town”. Her best approximation of her age when the first incident occurred was between 5 and 9. 59 . When pressed by defence counsel, she remembered that instead of letting her call her mother, G.Y. was telling her to come into

his bed with him. She was never naked during the occurrence. She was wearing a “skort”. 60 . In his bed, she laid on her left side. He was to her right. When she woke up after having fallen asleep again, she knew what was happening to her. Although she did not see his penis, she remembered feeling it. She knew what it was. As she put it, “the Internet existed.” 61 . S.M. agreed that she had never felt a penis before. She was not sure if she felt pubic hair. She did not know if G.Y. ejaculated. She emphasized that she knew what had occurred. She was not guessing or assuming it was a penis. 62 .

Nevertheless, S.M. stated that she had definitely thought about the incident for years. It haunted her. She was under the sheets with G.Y. when it happened. She froze. She did not know how to react. She pretended to be still asleep because she was scared, and she did not want to deal with the reality of the situation. 63 . She was still afraid in the bathroom until coaxed out by G.Y. She reckoned he knew he had to do something. He did not follow her as she went to K.’s room. K. was asleep when she arrived back in his room. 64 . She managed to fall back asleep. She did not see G.Y. come into the bedroom.

His use of the flashlight woke her up. He shone it under her blanket. She was still wearing her skort, although she was truly not 100% sure as to what she was wearing. He used the flashlight to see while he poked her vaginal area with his other hand. It happened quickly, and he left once he realized she was awake. 65 . She maintained that she was being honest in recalling this incident, even though she had not told police that G.Y. had poked her, and that that detail came to her while she was being cross-examined. 66 . She could not remember how many times she had been poked. It is what she awakened to. 67 .

When she was driven home by M.G., she did not talk at all about what had happened. Later, she testified that she did not remember how she got home after the first incident. 68 . As she explained, she “kinda buried it”. She complained that she was being made to remember stuff she tried to forget. She did not want to relive it. 69 . With respect to the second incident, S.M. reaffirmed that she could not say how long after the first that it occurred. By that point, G.Y. and M.G. were living near S.B. Road. S.M. could not confirm whether the name of the street upon which they lived was W. Road or not. 70 .

She knew that she was older than when the first incident occurred. It was also the first time that G.Y. had taken her on an ATV ride. 71 . Under cross-examination, S.M. faltered and was not sure whether M.G. was there or not for the second incident. When it was pointed out to her that she had told police that it was either D.G. or M.G. who told her to go on the ATV with J.Y., S.M. maintained that she was not sure if M.G. was there at the time. Nor could she be certain whether the ATV that G.Y. was driving was a three-wheeler or a four-wheeler. Nor did she have a recollection of its colour. 72 .

S.M. stated that G.Y. used both hands in trying to put them down her pants. If not both, he used one for certain. She agreed that she was not sure whether she told police he used one or both. As she put it, “I just knew his hands were not where they should’ve been.” She was sure that they were in her underwear. 73 . S.M. was not able to say how long one or both of G.Y.’s hands were in her pants. She did nevertheless push them away. 74 . She could not recall what she was wearing at the time, and whether her pants were unzipped or buttoned to allow his hand(

s) to go underneath. One or both did touch the beginning of her vagina. 75 . At that point, they were on a back road. G.Y. had stopped the ATV. They remained seated on the vehicle. 76 . She was not sure if she used both hands to push him away. When referred to her police statement, she was reminded that she told police that she did not know how she pushed him away. She did not think that she said anything to G.Y. at the time. 77 . She did not want to go on the ATV ride with G.Y. because of what had happened before. Reluctantly, she did go on it and sat in front of him.

She denied that she was seated behind him. 78 . She could not recall how the incident came to an end, nor how long she had been riding with G.Y. on the ATV. 79 . She did not recall whether she stayed at G.Y.’s and M.G.’s house that night. S.M. remembered that her aunt, D.G., had taken her to visit earlier in the day. 80 . When S.M. disclosed the incidents to her mother, she said to her, “You were bringing me to a pedophile.” 81 . S.M. heard of G.Y. molesting others, but she knew nothing of it. She believed that her aunt, D.G., was the source of that rumour. F.H. 82 .

When F.H., S.M.’s mother, testified on April 26, 2023, she was 56 years of age. She was living with her 33-year-old son, C. She described her daughter, S.M., as living in “the back apartment”. 83 . She explained that the family used to live on T. Street in Pembroke. She stayed home with S.M. to care for her from her birth to

the time S.M. was 3 years of age. 84 . F.H. worked full-time locally thereafter. She was employed at the same job for the past 36 years. 85 . She described her daughter, S.M., as a difficult child growing up. S.M. was often angry and violent with many of her outbursts aimed at her mother. F.H. At times, her brother, C., would have to assist and intervene to put an end to the altercations. 86 . F.H. added that she had to be careful with the use of bathroom words around S.M. 87 . Eventually, F.H. had to take S.M. to the Children’s Hospital of Eastern Ontario to receive an injection.

S.M. also had to take a dialectical behaviour therapy course to help regulate her volatile conduct. 88 . F.H., nevertheless, maintained that she was always close to S.M. 89 . F.H. related that she would go for drives in the country with her sister, D.G. Together, they liked to attend Blues Night at the Wilno Tavern. D.G.’s daughter, M.G., would care for S.M. when they did. F.H. estimated that S.M. would then have been between the ages of 3 and 8 years old at that time. 90 . F.H. recounted as well that she developed stomach problems when S.M. was 2 years old.

Five years later, F.H. had her gallbladder surgically removed. She struggled to find a caregiver for her daughter, and her niece, M.G., G.Y.’s partner, would take S.M. when she could to watch over her. 91 . F.H. stated that her motivation for coming to Court was because her daughter had been molested as a child. F.H. first became aware of this when one night, while distraught and in her “other personality”, her daughter screamed, “[G.Y.] molested me.” S.M. blamed F.H. for letting it happen. S.M. told F.H. that she hated her for having brought her on this earth. 92 .

F.H. explained that she did not ask about the details, nor do anything about the revelation, but her son and she were walking around on eggshells as a result. 93 . F.H. understood that it happened to S.M. in two places. Eventually, the police became involved after S.M. told D.G. and M.G. about what had happened. S.M. was worried that her cousin, Ki., was getting old enough to remember if anything untoward should happen to her. 94 . F.H. estimated that she spoke to police about S.M.’s allegations two years prior to testifying. 95 .

F.H. went on to relate that S.M. had problems with incontinence up to the age of 12. She had to wear pull-ups. She was bullied as a result. At times, she would stay outside and hug the fence. 96 . The other children would tease her. Eventually, S.M. started to fight back which resulted in many suspensions. By grade 6, she was not permitted to return to school, nor did she want to go back. 97 . S.M. also suffered as a child with stomach sickness. F.H. recalled being called to the school when S.M. was in grade 2.

The Children’s Aid Society (“CAS”) was concerned about S.M. because she always had her hands down her pants. 98 . Eventually, counselling was arranged for S.M. at the Phoenix Centre in Pembroke, but S.M. had difficulty getting close to her therapist. 99 . Under cross-examination, F.H. reckoned that S.M. was 17, almost 18, when she made her first disclosure relating to her allegations of having been sexually abused by G.Y. 100 . F.H. recalled that S.M. was in the process of moving to the “back apartment”. S.M. “just came out and said it”. It was during the evening in front of the garage at F.H.’s house. 101 .

F.H. wanted to call the police. S.M. did not. She said to her mother, “Oh . . . you’d like that so they can strap me down to the bed and put me in the crazy house”. 102 . F.H. added that she tried to be supportive to her daughter and did not shrug off the seriousness of the revelation. 103 . F.H. was certain that the alleged abuse had occurred in two different locations, W. Road and Shack Town. S.M. would have described both sites respectively as near where her cousin, T. lived, and across from the old school. 104 .

F.H. was aware that the first person who went forward to complain about S.M.’s allegations was her niece, G.Y.’s former partner, M.G. S.M. told M.G. what had happened to her as well. Again, F.H. understood that S.M. was concerned for G.Y.’s and M.G.’s daughter, Ki. 105 . F.H. explained that she did not like to talk to S.M. about what she said G.Y. did to her because, if her buttons were pushed, S.M. would go into this other person. 106 . F.H. thought that she did not learn of the custody battle between M.G. and G.Y. over their daughter, Ki., until after S.M. told M.G. about G.Y. abusing her. 107 .

F.H. agreed that M.G. and her mother, D.G,. probably did speak poorly of G.Y. in the lead up to S.M.’s disclosure. F.H. added, nevertheless, that she was never present to hear M.G. and D.G. speak ill of G.Y. in the presence of S.M. 108 . Throughout her childhood, S.M. would self-abuse by harming and cutting herself, although, according to F.H., the hospital never

“formed” her. 109 . S.M. could be quite violent. She would leave holes in the walls and doors of F.H.’s home. 110 . To F.H.’s recollection, M.G. took care of S.M. “a fair amount”. It was not an uncommon occurrence. Sometimes, S.M. would sleep over at M.G.’s and G.Y.’s. The sleepovers were not uncommon either. F.H. believed that M.G. and G.Y. were together for a period of roughly 15 years. 111 . Over the years, F.H. reflected that there were likely times when S.M. said she did not want to go to M.G.’s and G.Y.’s place, but F.H. made her go. S.M. never told F.H. why she was reluctant. 112 .

F.H. did not remember S.M. ever going on ATV rides while being cared for by M.G. 113 . When F.H. moved to the residence in which he was living at the time of testifying, she reckoned that S.M. would have been about 10 years old. F.H. doubted that anyone ever babysat her again after that. 114 . F.H. did not recall ever being told by anyone that S.M. had been left alone in the care of G.Y. 115 . F.H. denied that she ever spoke to S.M. or M.G. about Court. G.Y. 116 . When G.Y. testified on May 15, 2023, he was living in Pembroke as a retired member of the Canadian military.

He resided in this area for many years with his former partner, M.G., during the complainant S.M.’s early childhood. 117 . Using his Ontario Driver Record made Exhibit 1 at his trial, he was able to chronicle many of the places where he lived. 118 . He remembered using 791 W. Road as a mailing address in 2003. Later, he resided at 402 M. Street in 2006. Thereafter, he lived at 737 W. Road in 2008. Then in 2010, he lived at 259 Mc. Street in an area known as Shack Town in Pembroke. All the while, he was with his partner, M.G. 119 . He explained that M.G.’s mother, D.G., cared more for S.M. than M.G. did.

Between 2002 and 2005, he denied that he ever took care of S.M. When he moved to M. Street in 2006, he could not remember S.M. ever being around. 120 . By the time he lived on Mc. Street in 2010, he could not remember S.M. ever being around, although it was “definitely a possibility” that she was. 121 . In 2011, he moved with M.G. and her sons to Fort McMurray, AB, where they resided for several years. 122 . At some point in or after 2016, M.G. and he split up. G.Y. was served with papers for Family Court regarding custody of their daughter, Ki. He read some of their contents, but he missed the date for Court.

He understood that the judge presiding over the matter decided the case in his absence. M.G. was awarded “full custody” of their daughter. She was also granted possession of all contents of their shared home. 123 . Nevertheless, G.Y. continued to Facetime with his daughter every night. Occasionally, he would have visitations with Ki. when M.G. would bring her to meet with him in Fort Saskatchewan, AB. 124 . G.Y. eventually moved back east to live with his sister in Cape Breton, NS and to get help from Veterans Affairs (“VA”) for his posttraumatic stress disorder (“PTSD”).

His former partner, M.G., returned to Pembroke. 125 . G.Y. struggled to receive any medical or therapeutic attention from VA. It took three months for him to talk to anyone over the phone. Six months went by and he was still not receiving any assistance. He told the VA worker he was “not going to make it”. 126 . Finally, he ended up receiving treatment in the Annapolis Valley in NS. 127 . He entered thereafter the Homewood treatment program in Guelph, ON and spent 56 days there. 128 . He then moved back to Pembroke to try to restore his relationship with M.G., but he was “blindsided”.

He felt as though she had led him on. He did not realize until he returned that she had started into a relationship with a new man. 129 . G.Y. then moved to Wasaga Beach, ON for a year or so. Ultimately, he moved back to Pembroke. He decided to leave the military. He entered a new relationship with another woman with whom he lived in nearby Beachburg. His daughter, Ki., would come to visit him there. 130 . He then began to have problems with his current girlfriend, his former spouse, M.G. and their daughter, Ki. M.G. began labelling him as a rapist and a pedophile on her Facebook posts.

Her mother, D.G. showed up at his house. He decided to go to the CAS for help. 131 . Someone had written on the pavement in front of his home that he had raped an 11 year old girl. The writing contained an arrow pointing to his residence. 132 . In 2020, he retained a family lawyer for legal assistance. M.G. had earlier threatened not to go near him again. Ki. was still quite young. 133 . G.Y. denied that he ever:

a) babysat S.M.,

b) put her hand on his penis, or

c) touched or poked her vagina. 134 . He described her as a difficult child, who had issues and who was kicked out of school frequently. 135 . G.Y. confirmed that he owned two ATV’s which he acquired while he lived on W. Road in Pembroke. The older one was a three- wheeler and the four-wheeler was “kiddy sized”. The latter was for M.G.’s son, K. 136 . G.Y. could not recall ever taking S.M. for a ride. 137 . He explained that the three wheelers were unsafe, and that is why they stopped manufacturing them. If ever he took children on the ATV with him, they would be seated behind him as the driver.

If they were seated in front of him, they could be killed, should he be involved in an accident. 138 . G.Y. denied that he ever put his hands down S.M.’s pants. Nor did he ever touch her vagina. 139 . He added that he was devastated by her allegations. They shut his life down. For the last three years he had been struggling with anxiety, depression and PTSD. 140 . He surmised that S.M. came forward to the authorities with her allegations against him because he wanted a better arrangement for seeing and being with his daughter, Ki. 141 .

He ventured that to peg him as a pedophile was one way to ruin him, and to ensure he did not get his daughter back. 142 . Under cross-examination, G.Y. clarified that he joined the military while he was still in Cape Breton, NS. He left in 2003 after a seven year career. 143 . He believed he had already met M.G. in 2002 when her son, D., was roughly 6 years old, and her other son, K,. was 2. 144 . He met S.M. around that time as well. He remembered that she was close to K. In terms of their ages, they were within a couple of years of one another. 145 . He reaffirmed that he never babysat S.M.

It was M.G.’s mother, D.G., who always did. 146 . In 2006, G.Y. agreed that he lived at Mc. Street in Pembroke in an apartment. M.G. found the place. At that time, M.G. was attending school to become a Personal Support Worker (“PSW”). S.M., he thought, came to that place to visit. 147 . However, he could not recall ever being alone with S.M. there. 148 . In 2008, G.Y., M.G. and her sons then moved to W. Road near where M.G.’s sister, T. lived. By this point, M.G. was working as a PSW. He could not remember, however, where she was working, or what her hours were. 149 .

He agreed that M.G and he had pets at that house including a Husky named “Red”. 150 . At that home, G.Y. and M.G. were living on a one and a half acre lot. G.Y. and the boys, D. and K., were able to ride their ATV’s, not on trails, but in fields with the permission of their owners. G.Y. taught K. to ride. D. was “self-taught”. 151 . G.Y. re-emphasized that he did not put K. in front of him to teach him to ride. To do so may shatter the hips of a child. Rather, G.Y. probably stood K. next to the ATV to demonstrate how it functioned. 152 .

G.Y. doubted that S.M. ever visited at that house, although he allowed for the possibility that she did. 153 . If she had and he had taken her for a ride on an ATV, he would never have put her in front of him. The three-wheeler was very dangerous. Again, he denied adamantly that he ever put his hands down her pants to touch her vagina. 154 . G.Y. remembered that S.M. and her mother, F.H., lived off E. Road in Pembroke for years before F.H. bought a house on L. Street. The E. Road home in which S.M. and F.H. lived was close to the house in which G.Y. and M.G. lived on Mc. Street in Pembroke as well. 155 .

When G.Y. and M.G. lived on Mc. Street, D. was a teenager. D. made a bedroom for himself in the basement. 156 . G.Y. could not recall S.M. ever sleeping over at their Mc. Street home. She was normally always with M.G.’s mother, D.G. However, G.Y. could not rule out the possibility that D.G. brought S.M. over to visit at the Mc. Street house, but not to stay overnight. 157 . G.Y. reiterated that there was never an instance where S.M. was left in his care. He did not ever babysit her. He would babysit K. as his stepfather, but not S.M. too, when she was with K. Nor did G.Y. ever bring her to his bed. 158 .

S.M. never masturbated him. Nor did he walk into K.’s bedroom where S.M. was sleeping with K. to look at her vagina with a flashlight. Nor did he ever touch her vagina. 159 . G.Y. could not remember when he last had contact with S.M. He ventured that it may have been in 2015 at Ki.’s baptism where there had been a family gathering at her grandmother’s house.

160 . However, if S.M. was there, he did not have any interaction with her. Nor could he recall S.M. holding KI as a baby during that occasion. He placed this event as happening near the end of 2010 while M.G. and he were still living on Mc. Street. 161 . In 2018, after living in Eganville, ON, Fort McMurray, AB, Cape Breton, NS and after receiving treatment at Homewood in Guelph, G.Y. moved back to Pembroke. 162 . The writing left in front of his house was in bold red or pink spray paint.

He thought this occurred in 2020, perhaps 30 days or less before the allegations regarding his sexual abuse of S.M. really began to surface. G.Y. reported the incident to police. When it was suggested to G.Y. that his report was made on September 9, 2020, he agreed that was likely the exact date. 163 . Prior thereto, M.G.’s mother, D.G., and K. came to G.Y.’s house to accuse him of inappropriately touching S.M. He believed that happened in August of 2020. 164 . On June 2, 2021, G.Y. was charged with the offences for which he was tried. Defence Position 165 .

Defence counsel pointed out that a W.(D.) [1] analysis must be applied to the evidence called at G.Y.’s trial. G.Y.’s testimony was essentially a denial that any of the allegations made by S.M. forming the subject matter of his charges were true. He gave reasons in support of his denials. 166 . He was completely forthcoming in the evidence he gave. There were no inconsistencies to what he testified to in his evidence-in- chief and his cross-examination. 167 . Credibility and reliability are the key issues for determination at his trial. 168 .

S.M. testified that both incidents where she says G.Y. inappropriately touched her occurred when she was under the age of 10. 169 . Defence counsel highlighted the contradictions in the account of S.M.’s first incident where she alleged she was brought into G.Y.’s bed and awoke to him having her stroke his penis as follows:

a) in her statement to police, she said she was 5 to 7 years old at the time, whereas in cross-examination, she believed she was 6 to 9 years old, and

b) in her statement to police, she said nothing about G.Y. returning to K.’s bedroom with the flashlight and poking her in her vagina; she only recalled this spontaneously, while testifying under cross-examination. 170 . Defence counsel suggested this sudden recall on the part of S.M. was a clear attempt on her part to exaggerate and embellish. 171 . Further, she was generally vague about whether G.Y. poked her over or under her skort. The reliability of her recollection is thus unsound. 172 .

Regarding the second incident during the ride on the ATV, S.M. in her statement to police was unsure if G.Y. even touched her, whereas in her testimony at trial, she was adamant that he was trying to touch her vagina. 173 . Equally, in her statement to police she was unsure if she was even pushing G.Y. away as he attempted to put his hands down her pants, whereas in her testimony, he was dogged in trying to do so. 174 . Furthermore, G.Y.’s evidence, supported by his Driver’s Record, demonstrated that when he lived at 791 W. Road in Pembroke, it was October 2008, a month shy of S. M. turning 10 years of age.

It was not until March 2010 that he moved to Mc. Street in the Shack Town district of Pembroke. By this point, S.M. was 11, going on 12. 175 . S.M. must therefore be wrong about the sequence of the events. The touching or attempted touching during the ATV ride must have preceded the sleepover. Crown’s Position 176 . Crown counsel submitted that S.M.’s and G.Y.’s credibility required close examination. S.M.’s estimation of her age at the time the subject incidents were alleged to occurred ought to be considered in context. 177 .

The Information itself wherein the Crown alleged the timeframe within which G.Y. touched S.M. sexually spanned a timeframe when S.M. could have been between 4 to 12 years of age. She had no exact sense of her age when the material events occurred, but that served to enhance her credibility as opposed to detract from it. 178 . S.M. gave a compelling account of what happened to her during a sleepover at G.Y.’s residence. She was frozen in shock the instant she realized what was transpiring when she awakened in G.Y.’s bed.

She sensed and she was adamant in her belief as she aged that what she was touching with G.Y.’s hand over hers was his penis. 179 . Equally, her credibility was entirely genuine when she described what she believed to be the second incident of inappropriate sexual touching. She clearly remembered being seated in front of G.Y. on an ATV. It matters not that it was a three-wheeler or a four- wheeler. 180 . His ruse that his hands were cold as contended by S.M. had the ring of truth to it. It was a ploy that she was wise to. 181 .

Overall, according to Crown counsel, S.M.’s veracity in attempting to recall distant events was admirable and unassailable.

182. Her sudden recall of being poked with G.Y.’s hand when he went into K’s room came with an explanation. She had “buried” theincident. It was the challenges put to her by defence counsel which brought back for her specific details of what had occurred. 183. Candidly, Crown counsel agreed that S.M.’s timeline could not have been right. The Court’s focus, however, must not be on thecorrect sequence of the incidents, but rather, on whether they actually happened. 184.

The Court also could not find that S.M. recently fabricated the allegations to assist in any way M.G.’s attempts to have solecustody of G.Y.’s and her child, Ki. S.M. disclosed to cousins, her friends, her mother, her aunt and her boyfriend long before she knewthat family litigation had commenced between M.G. and G.Y. 185. S.M. testified about how she had been haunted for years by what G.Y. did to her. 186. The Crown contended that G.Y’s evidence could be rejected because:

a) his denials of the alleged sexual touching were offered as absolutes to attempt to eradicate even the possibility of having anopportunity to carry them out,

b) G.Y.’s explanation of how he taught his stepson, K., to drive an ATV was ridiculous in that he more than likely sat K. in front ofhim as opposed to at his side to instruct him how to operate such a vehicle, and

c) based on a considered and reasoned acceptance of the evidence given by S.M. The Law Adult Witnesses Testifying about Childhood Events: 187. In Paddy-Cannon v. Canada (Attorney General) 2022 ONCA 110 , Coroza J.A. reminded triers of fact of the properapproach to be taken in assessing the evidence of adult witnesses testifying about distant childhood events. He wrote: [33] It is undisputed that when adult witnesses testify about events that occurred when they were children, in general their evidenceshould be assessed by the criteria applicable to adult witnesses: W. (R.), at p. 134.

However, inconsistencies and lack of memory in thattestimony must be considered in the context of the age of the witness at the time of the events: W. (R.), at p. 134; see also R. v.Pindus, 2018 ONCA 55, at para. 37; R. v. Radcliffe, 2017 ONCA 176, 347 C.C.C. (3d) 3, at para. 34, leave to appeal refused, [2017]S.C.C.A. No. 274. 188. Coroza J.A. went on to state as follows: [37] In his reasons, the trial judge referenced this court’s decision in R. v. Sanichar, 2012 ONCA 117, 280 C.C.C. (3d) 500,rev’d, 2013 SCC 4, [2013] 1 S.C.R. 54.

In that case, Blair J.A. for the majority stated that in cases involving historic acts of sexual andphysical abuse, particular scrutiny is called for in approaching the reliability of the evidence. The trier of fact must be mindful of seriousinconsistencies in a witness’s account as well as the subtle influences that may have distorted memory over time: Sanichar, at paras. 38-39. The passage of time may influence the witness’s ability to observe, recall and recount the events at issue accurately: Sanichar, atpara. 70, per Laskin J.A. (dissenting, but not on this point).

The trial judge was clearly alive to this caution in Sanichar. [38] Sanichar does not, however, instruct a trial judge to reject witness testimony as unreliable because time has passed.

The trialjudge concluded that “[i]n this case, the passage of several decades make it impossible for me to determine that the [appellants’]evidence is reliable.” His reasons reveal that he treated the passage of time as nearly determinative of the appellants’ unreliability.Respectfully, the passage of time cannot overwhelm a trier of fact’s assessment of the evidence, and I agree with the appellants’submission that treating the passage of time as determinative in this case is akin to imposing a limitation period on the appellants’ claim.This is the wrong approach. [39] I accept that Sanichar advises triers of fact to be mindful of time, and appropriately cautious, when assessing testimonyof events from a distant past.

However, as noted above, W. (R.) and other cases require that when assessing the testimony of adults tryingto recount childhood memories, triers of fact must also be mindful of the context when addressing inconsistencies and a lack of memory. [40] In W. (R.), McLachlin J. (as she then was) stated, at p. 134: It is neither desirable nor possible to state hard and fast rules as to when a witness's evidence should be assessed by reference to “adult”or “child” standards — to do so would be to create anew stereotypes potentially as rigid and unjust as those which the recentdevelopments in the law's approach to children's evidence have been designed to dispel.

Every person giving testimony in court, ofwhatever age, is an individual, whose credibility and evidence must be assessed by reference to criteria appropriate to her mentaldevelopment, understanding and ability to communicate. But I would add this. In general, where an adult is testifying as to events whichoccurred when she was a child, her credibility should be assessed according to criteria applicable to her as an adult witness.

Yet withregard to her evidence pertaining to events which occurred in childhood, the presence of inconsistencies, particularly as to peripheralmatters such as time and location, should be considered in the context of the age of the witness at the time of the events to which sheis testifying. [Emphasis added.] [41] In Pindus, Laskin J.A. stated, at para. 37, that “when an adult witness gives evidence about events that took place in childhood,inconsistencies and lack of memory have to be considered in the context of the age of the witness at the time of the events.” 189.

I will, of course, guide myself in accordance with the direction offered by Coroza J.A. above, as I consider and deliberate over theevidence of all witnesses called at G.Y.’s trial. 190. Further, I will adhere to the general direction offered by way of an endorsement of the Court of Appeal for Ontario in R. v. A.M.

2014 ONCA 769 as follows: [8] Several basic principles inform our decision regarding the trial judge's reasons for judgment. [9] First, every witness, irrespective of age, is an individual whose credibility and evidence should be assessed according to criteriaappropriate to his or her mental development, understanding and ability to communicate: R. v. W. (R.), (SCC), [1992] 2S.C.R. 122, [1992] S.C.J. No. 56, at p. 134 S.C.R. [10] Second, no inflexible rules mandate when a witness' evidence should be evaluated according to "adult" or "child" standards.

Indeed,in its provisions regarding testimonial capacity, the Canada Evidence Act, R.S.C., 1985, c. C-5 eschews any reference to "adult" or"child", preferring the terms "14 years or older" and "under 14 years of age". An inflexible, category-based system would resurrectstereotypes as rigid and unyielding as those rejected by the recent developments in our approach to children's evidence: W. (R.), at p. 134S.C.R. [11] Third, despite this flexibility, there are some guiding principles.

Generally, where an adult testifies about events that occurred whenshe was a child, her credibility should be assessed according to the criteria applicable to adult witnesses. However, the presence ofinconsistencies, especially on peripheral matters such as time and location, should be considered in the context of her age at the time theevents about which she is testifying occurred: W. (R.), at p. 134 S.C.R. See, also, R. v. Kendall, (SCC), [1962] S.C.R.469, [1962] S.C.J.

No. 27. [12] Fourth, one of the most valuable means of assessing witness credibility is to examine the consistency between what the witness saidin the witness box and what she has said on other occasions, whether or not under oath: R. v. G. (M.), (ONCA), [1994] O.J. No. 2086, 93 C.C.C. (3d) 347 (C.A.), at p. 354 C.C.C., leave to appeal to S.C.C. refused [1994] S.C.C.A.

No. 390.Inconsistencies may emerge in a witness' testimony at trial, or between their trial testimony and statements previously given.Inconsistencies [page540] may also emerge from things said differently at different times, or from omitting to refer to certain events atone time while referring to them on other occasions. [13] Inconsistencies vary in their nature and importance. Some are minor, others are not. Some concern material issues, others peripheralsubjects.

Where an inconsistency involves something material about which an honest witness is unlikely to be mistaken, theinconsistency may demonstrate a carelessness with the truth about which the trier of fact should be concerned: G. (M.), at p. 354 C.C.C. [14] Fifth, a trial judge giving reasons for judgment is neither under the obligation to review and resolve every inconsistency in awitness' evidence, nor respond to every argument advanced by counsel: R. v. M. (R.E.), [2008] 3 S.C.R. 3, [2008] S.C.J. No. 52, 2008SCC 51, at para. 64.

That said, a trial judge should address and explain how she or he has resolved major inconsistencies in the evidenceof material witnesses: G. (M.), at p. 356 C.C.C.; R. v. Dinardo, [2008] 1 S.C.R. 788, [2008] S.C.J. No, 24, 2008 SCC 24, at para. 31. [15] Sixth, prior consistent statements of a witness are not admissible for their truth: R. v. Stirling, [2008] 1 S.C.R. 272, [2008] S.C.J.No. 10, 2008 SCC 10, at para. 7. Mere repetition of a story on a prior occasion does not make the in-court description of the events anymore credible or reliable: R. v. Curto, [2008] O.J.

No. 889, 2008 ONCA 161, 230 C.C.C. (3d) 145, at paras. 32, 35; R. v. Ay, (BC CA), [1994] B.C.J. No. 2024, 93 C.C.C. (3d) 456 (C.A.), at p. 471 C.C.C. The Meaning of Proof beyond a Reasonable Doubt: 191. In a very recent case I decided, R. v. McLaren 2023 ONCJ 92 , I adverted, as I must, to the meaning of “reasonabledoubt”. I had the following to say: 181. The standard of proof beyond a reasonable doubt is an age-old principle of criminal law in Canada and virtually every othercommon law jurisdiction.

Triers of fact must be ever conscious of the high burden of proof placed upon the Crown, if ever the accused’sright to be presumed innocent is to be rebutted. 182. Recently, my colleague, Brochu J., in R. v. Hawryluk, (unreported), offered these helpful commentaries on the meaning ofreasonable doubt: [39] Like every person accused of a criminal offence, Mr. Hawryluk begins this trial presumed to be innocent of the offence with whichhe is charged. That presumption remains intact unless and until the Crown proves beyond a reasonable doubt that he is guilty.

It is theCrown that bears the onus of proving the essential elements of the offence beyond a reasonable doubt. That onus never shifts to theaccused. [40] Intermingled with the presumption of innocence is the standard of proof required to displace that presumption. To secure aconviction in a criminal case, the Crown must establish each essential element of the charge against the accused beyond reasonabledoubt. This standard of proof is very stringent.

It is a standard far beyond the civil threshold of proof on a balance of probabilities. [41] The expression “proof beyond a reasonable doubt" has no precise definition, but it is well understood. The Supreme Court ofCanada outlined a suggested model jury charge in R. v. Lifchus, (SCC), [1997] 3 S.C.R. 320. This is the definitiveguide for criminal trial courts in Canada. It is worth setting out here verbatim: * The term "beyond a reasonable doubt" has been used for a very long time and is a part of our history and traditions of justice.

It is soengrained in our criminal law that some think it needs no explanation, yet something must be said regarding its meaning. * A reasonable doubt is not an imaginary or frivolous doubt. It must not be based upon sympathy or prejudice. Rather, it is based onreason and common sense. It is logically derived from the evidence or absence of evidence. * Even if you believe the accused is probably guilty or likely guilty, that is not sufficient. In those circumstances you must give the

benefit of the doubt to the accused and acquit because the Crown has failed to satisfy you of the guilt of the accused beyond a reasonabledoubt. * On the other hand you must remember that it is virtually impossible to prove anything to an absolute certainty and the Crown is notrequired to do so. Such a standard of proof is impossibly high. * In short if, based upon the evidence before the court, you are sure that the accused committed the offence you should convict sincethis demonstrates that you are satisfied of his guilt beyond a reasonable doubt. [42] Three years later, in R. v.

Avetysan, 2000 SCC 56 , [2000] 2 S.C.R. 745, the Supreme Court of Canada clarified at para. 13that: In situating the criminal standard of proof, “it falls much closer to absolute certainty than to proof on a balance of probabilities”: Starr,at para. 242, per Iacobucci J. W.(D.): 192. I must, of course, apply a W.(D.) analysis to the evidence adduced at G.Y.’s trial. Clearly, the credibility of both S.M., F.H. andG.Y. must be carefully assessed. Their reliability as historians for significant past events is very much worthy of consideration as well. 193.

Essentially, in applying the law, I must acquit G.Y. if I believe his testimony regarding the incidents in question, after I assess theevidence as a whole. (see R. v. Hull

(2006) CanLII 26572 (ONCA) at paras. 4 – 5) 194. If I do not believe G.Y., but his evidence nevertheless raises a reasonable doubt, to my mind upon my assessment of the evidencein its totality, I must find him not guilty. 195. Even if I do not accept the evidence of G.Y., nor does it raise a reasonable doubt, I must still be convinced of his guilt beyond areasonable doubt based on the evidence which I do accept, if I am to convict him. 196. Further, in assessing the evidence of an accused, I take guidance from the dicta of L’Heureux-Dubé J. in R. v.

L. (D.O.) (SCC), [1993] 4 S.C.R. 419, where she stated: Appropriate Test 79 The respondent submitted a brief to the trial judge with regard to the appropriate test for weighing the evidence and in particular withregard to assessing the credibility of witnesses. He argued that the proper test was whether an account given by, or on behalf, of anaccused might "reasonably be true". The trial judge did not agree and explained: Whether an account given by, or on behalf of, an accused might reasonably be true, is not in my view the honest and proper andestablished test of whether the Crown's evidence should be rejected.

It is simply one factor in assessing the overall impact of theevidence as a whole. If one were to determine criminal cases simply on an academic test, unrelated to all the other facts, of whethersomething might reasonably be true, much of the impact of truly and compellingly credible Crown evidence such as that here, would gofor naught, and truth would be subjugated by plausibility.

In my view, the trial judge was correct, as was O'Sullivan J.A. who succinctly enunciated the test as follows (at p. 317): The only question for the trier of fact at the end of the trial is whether or not, on the whole of the evidence, the Crown has proved itscase beyond a reasonable doubt. If it has, the accused must be convicted. If there is a reasonable doubt, the accused must be acquitted. This is the proper test on which Cory J. in R. v.

W. (D.), (SCC), [1991] 1 S.C.R. 742, at pp. 757-58, expanded asfollows: A trial judge might well instruct the jury on the question of credibility along these lines: First, if you believe the evidence of the accused, obviously you must acquit. Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit. Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence whichyou do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

The respondent's submissions on this point, also made to us, cannot succeed. Analysis: Do I believe the evidence of G.Y.? 197. G.Y.’s defence was essentially one of denial. For the most part, he was unshaken in maintaining that he never inappropriatelytouched S.M. 198. Nevertheless, the frailty in G.Y’s evidence was his tendency to testify in absolutes. He was near 100% certain that he neverbabysat S.M., cared for her overnight, or drove with her alone in the bush on an ATV. His emphasis was on the complete lack ofopportunity to commit the acts with which he was charged.

For example, he testified that he never would have cared for S.M.,

notwithstanding how close she was to his stepson, K. 199. Somehow, G.Y. seemed to have a clear, unfailing recollection of the impossibility of ever having moments alone with S.M. 200. As a matter of logic and common sense, I reject his evidence as it relates to a lack of opportunity to commit the crimes. It ispatently ridiculous to suggest, as he did, that there was never a real chance for him to do what S.M. said he did. 201. G.Y. lived with S.M.’s cousin, M.G., for years. S.M. and his stepson, K., were playmates. They liked to spend time together.

S.M.’s mother, F.H., enjoyed attending the Wilno Tavern on Blues nights with her sister, D.G., the person who cared for S.M. most oftenin F.H.’s absence. When F.H. went out at night with D.G, F.H. needed someone other than D.G. to watch over S.M. That responsibilityfell to M.G., F.H.’s niece and D.G.’s daughter. 202. There was no reason why M.G., her mother, S.M.’s aunt, D.G., or S.M.’s mother, F.H., would not have trusted G.Y. to care forS.M. as a child. 203. I find that, at times, G.Y. was left alone with S.M. without any other adults around. 204.

I also reject G.Y.’s evidence based on a considered and reasoned acceptance of the evidence of S.M. (see R. v. Jaura, 2006 ONCJ385 at paras. 12-21, see R. v. J.J.R.D., (ONCA) at para. 53, and R. v. C.L., 2020 ONCA 258 atpara. 30). I come to this conclusion, of course, without preferring her evidence over his. That is not my task as the trier of fact. 205. Rather, I place far greater emphasis on the rapidity, fluidity and genuineness of S.M.’s attempts to remember distant events whenchallenged under cross-examination. Her memory of what G.Y. did to her, for the most part, was etched in her mind.

Overall, herpowers of recall were quite compelling. 206. I find, in essence, that S.M. was both credible and forthright in the manner she gave her testimony. I did not doubt for an instantthat she both accurately and honestly recalled real and traumatizing events from her childhood. 207. Her accounts were trustworthy and reliable on the core aspects of what she remembered G.Y. did to her as a vulnerable child. Shetold the truth. G.Y. did not. He could not have, based on my firm belief in the veracity and accuracy of the evidence given by S.M. Does the evidence of G.Y. raise a reasonable doubt? 208.

Having rejected the evidence of G.Y., I certainly cannot find that it raises a reasonable doubt in my mind. On the basis of the evidence I do accept, am I convinced beyond a reasonable doubt in the guilt of G.Y.? 209. My assessment of the evidence as a whole adduced at G.Y.’s trial does not, of course, end with the completion of my inquiriesunder the first two branches of W.(D.). I must articulate what I am convinced of beyond a reasonable doubt. 210. Turning my mind to the evidence which I do accept, I find that:

a) S.M. was a credible witness, and for the most part, a reliable historian, notwithstanding the passage of time between when shetestified, and when the acts occurred,

b) any inconsistencies in her evidence were due to the passage of time, and the tendency for precise memory to fade with time, asopposed to any intention on her part to be untruthful, and

c) her evidence was reliable in that she understood what G.Y. did to her of a sexual nature, and she never forgot the core aspects of theincidents themselves. 211. I conclude specifically based on my acceptance of S.M.’s evidence that:

a) G.Y. brought her into his bed as a young child between 4 to 9 years of age, and while she slept, he placed his hand over hers to useit to masturbate, and

b) G.Y. touched her sexually under her pants on an ATV ride with her alone. 212. But for S.M..’s sudden recollection of vaginal touching while a flashlight was shined on her as she gave his evidence in Court, Ifound her overall to be a truthful and forthright witness. S.M. gave me very little reason to doubt otherwise what she remembered G.Y.doing to her. 213. Defence counsel did not pursue any motive to fabricate in her final argument. There was no such theory of the defence put forthand wisely so. I find that S.M. disclosed what G.Y. did to her long before any family litigation was commenced. 214.

In short, I believed S.M. The Inconsistencies: 215. I consider the following to be the major inconsistencies in the evidence of S.M.:

a) her age estimates of when G.Y. brought her into his bed, and she awoke to him having her stroke his penis,

b) her failure to tell police about G.Y.’s use of a flashlight and being sexual touching by him in K.’s bedroom juxtaposed against hersudden recall of this occurrence under cross-examination, and

c) her lack of clarity as to whether she was sexually touched when she spoke to police about the ATV ride versus her certainty itoccurred when she testified. 216. Her best guesses as to her ages were exactly that – best guesses. They were not so disparate as to lead me to believe that S.M. wasdishonest or unreliable in making them. 217. Her failure to tell police about the flashlight and the sexual touching in K.’s bedroom was far more significant. I could not placesufficient weight on the reliability of those memories to be satisfied beyond a reasonable doubt that those events occurred. They couldhave.

It was the spontaneity that left me unsettled. 218. I specifically reject the defence argument that S.M. was “exaggerating” or “embellishing”. The truth may well have come to her. It was its timing that made me uneasy. 219. I do not consider her confusion over the sequencing of the events to be an inconsistency. Rather, that is an issue which goessquarely to the reliability of her evidence. 220. To my mind, even though she may have gotten the order of the incidents wrong, I believe her regarding what happened.

Thesequence in which they happened are not nearly as important as the inquiry into whether they happened. On the findings of facts I havemade, absolutely – they did. Conclusion: 221. In sum, I am more than convinced beyond a reasonable doubt in G.Y.’s guilt after a complete review of the evidence called at histrial. 222. For the above reasons, I must convict him for sexually touching S.M., and for sexually assaulting S.M. 223. I find that nothing in the evidence adduced at trial concerning what G.Y. did to S.M. constituted an invitation to sexual touching.

It should not have survived scrutiny by the Crown at the outset of trial based on what the complainant was likely to say during hertestimony. Further, it ought to have been dismissed on an application for a directed verdict by the defence at the close of the Crown’scase. DATED: September 18, 2023 ________________________________ March, M.G., J. Endnotes: [1] R. v. W.(D.), (SCC), [1991] 1 SCR 742 A trial judge might well instruct the jury on the question of credibility along these lines: First, if you believe the evidence of the accused, obviously you must acquit.

Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit. Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of theevidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.