R. v. Engen, 2011 ONCJ 814

WARNING The court hearing this matter directs that the following notice should 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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (

a) any of the following offences: (

i) an offence under

section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347, (ii) an offence under

section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code ,

chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or (iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or

section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code ,

chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or (

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

i) to (iii).

(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 complainant of the right to make an application for the order; and (

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

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

summary conviction. Citation: R. v. Engen , 2011 ONCJ 814 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — TIMOTHY ENGEN Before Justice David M. Paciocco Reasons for Judgment released on December 20, 2011 Mr. P. Attia ........................................................................................................ for the Crown Mr. Ian Carter .................................................................... for the accused Timothy Engen PACIOCCO J.:

[ 1 ] Mr. Timothy Engen is charged with one count of counselling M.D. to permit him to touch her for a sexual purpose in the vaginal or anal region, contrary to

section 152. The incident is alleged to have occurred on 19 January 2011 when M.D. was five years old. [ 2 ] Two witnesses testified for the Crown, M.D., and her grandmother, J.D., who M.D. calls “Mommy.” M.D. and Ms. D. lived together and alone at the relevant time in fifth floor apartment in the City of Ottawa. Mr. Engen testified on his own behalf. He lived on the 8 th floor of the same building. Procedural Matters [ 3 ] M.D., who was six years old at the time of the trial, was given the benefit of available child friendly procedures. [ 4 ] She gave her evidence from outside the courtroom by video link.

This was done on consent. It was appropriate for the defence to agree. Based on admitted facts it was clearly in the interests of the administration of justice to permit this.

M.D.’s tender age and her reluctance to co-operate with the Assistant Crown Attorney during trial preparation signalled that M.D. would likely have difficulty giving her evidence from with witness box. [ 5 ] Again, on consent, a support person from the Victim Witness service was present with her during that testimony. [ 6 ] After a voir dire it was established that M.D. was competent to give evidence applying the generous standards applicable to child witnesses, as she could clearly understand and respond to questions posed. [ 7 ] A videotaped statement furnished by M.D. was also admitted into evidence after a

section 715.1 Criminal Code of Canada voir dire was conducted. Since the elements of

section 715.1 were established on evidence, Mr. Carter, counsel for Mr. Engen agreed that the videotaped statement made by M.D. on the 28 January 2011 was admissible. It was played, adopted by her, and admitted as part of her evidence in chief. The General Allegation and Response [ 8 ] During her videotaped and in-court testimony M.D. described acts by the accused that would satisfy all of the elements of

section 152, if believed beyond a reasonable doubt in light of all the evidence. In essence, she alleged that while she waited in the hallway outside of the 5 th floor laundry room for “her mother” to do the laundry, Mr. Engen asked her if he could touch her “private parts” or “private spot.” Ms. D. testified to observing Mr. Engen interact with M.D. from time to time, but did not claim to overhear what he was saying. She said she was not comfortable with what she was seeing and tried unsuccessfully to persuade M.D. to remain in the laundry room with her. Specifically she described M.D. dancing around Mr.

Engen, and sitting next to him, including hugging him at one point. Ms. D. would open the door from time to time to check on M.D.. She said that when she completed her laundry and opened the door she saw M.D. and Mr. Engen walking down the hallway together. She summoned M.D. who ran back towards the laundry room and began playing with Ms. D.s’ walker. Ms. D. described M.D. falling over while walking with it, and Mr. Engen helping her up. Ms. D. claims that M.D. pulled away from Mr. Engen and seemed “distant” and “different.” Ms.

D. also narrated how, when she and M.D. returned to their apartment, M.D. disclosed what had happened. More will be said about this disclosure later. Ms. D. put these events as occurring as the supper hour approached and took between a half hour and an hour, based on how long it took her to do her laundry. [ 9 ] Mr. Engen adamantly denied ever asking M.D. if he could touch her. He agreed that he saw Ms. D. and M.D. in the laundry room area, but says this happened at 10:00 in the morning or so, not around supper time.

He agrees that he had been alone in the same hallway as the child and that he interacted with her when she communicated with him. He said that their dealings were innocent and lasted seven or eight minutes, not the lengthy period claimed by Ms. D.. He disputes being hugged by M.D., and while he testified that M.D. held onto him while falling over when doing a pirouette, he never walked down the hallway with her and there was no incident regarding the walker. Analysis

[10] I have cautioned myself that even though this is a case with opposing versions of relevant events, it is not a credibility contestbetween the Crown and Defence witnesses. The outcome of this case does not turn on which version I prefer. In coming to a decision Ihave considered carefully the principles in R. v. W.(D.), (SCC), [1991] 1 S.C.R. 742. I am mindful that the Crown bearsthe burden of proving the alleged charge beyond a reasonable doubt, and that a reasonable doubt can remain even if the defence evidenceis not believed or even if the defence evidence fails, on its own, to raise a reasonable doubt.

Even if I reject the defence evidenceabsolutely and entirely, I must still be satisfied, before convicting, that the Crown has established the guilt of the accused beyond areasonable doubt on all of the evidence I do accept. [11] I am also aware that there is no rigid order in which the evidence must be analysed and that compliance with reasonable doubtprinciples is a matter of substance: R. v. C.L.Y. 2008 SCC 2 , [2008] S.C.J. No. 2, para. 7. In this case it is convenient, however,to begin the analysis with the evidence of Mr. Engen. [12] In his evidence in-chief Mr.

Engen said that he ended up on the 5th floor that day after going to the methadone clinic. He said he went down from his 8th floor apartment to the 5th floor to visit his friend Sharon in apartment 508. He said that he knocked on the doorbut Sharon did not answer. He explained that Sharon is disabled and may have been sleeping or in the bathroom. He said he decided towait in the lobby and make a phone call “until Sharon came back.” [13] Mr. Engen testified that it was then that he saw the “girl and woman” in the laundry room, near the elevator bank.

He did not referto the “girl and woman” by name during his evidence in-chief. Mr. Engen described in his testimony how he and his wife would oftensee the girl and the woman around the building and that they were all “fairly good friends.” He said if he saw them in the steps he wouldstop and chat with them, and that he knew the grandmother quite well. He testified he opened the door and said “Hi” to them andengaged in “small chit chat for a minute or so.” [14] Mr. Engen testified that he then went into the lobby area just pacing around in front of the elevators for a minute or two.

Whilestanding close to the laundry room door he made his phone call, a six minute conversation with his friend Sam, who lives on the same floor as Mr. Engen, the 8th floor. [15] He testified that while he was there, the little girl was running around in the hallway speaking to him. She was showing him her“dance” a few feet away, right in front of the laundry room door, and at one point grabbed his arm when doing a spin or pirouette. Hesaid she started to fall and grabbed his arm to “bolster herself up” and he complimented her on her dance. [16] Mr.

Engen testified in-chief that the woman came out of the laundry room many times – “4 or 5 times anyway” – to tell “the girl”to stop running around. Mr. Engen said that at some point he “went in and asked the woman if she saw Sharon to tell Sharon that he hadbeen here.” [17] Mr. Engen denied ever going down the hall with the girl, seeing the girl fall over the walker or helping her up. Most importantlyhe denied ever asking her if he could touch her private parts or speaking to her in any sexual way. [18] Mr.

Engen closed his evidence in-chief by testifying that a thyroid problem has left him without a sex drive and it has been “a littleover four years” since his last sexual activity. No medical evidence about his condition was offered. [19] Mr. Engen ran into considerable difficulty during his cross-examination. [20] His problems began when the nature of his relationship with Ms. D. was canvassed. Although he described being “fairly goodfriends” with “the woman” in his testimony in-chief, as indicated he never used her name.

He had also described her in a voluntarystatement he gave to the police as the “big woman” and he referred not to M.D. but to “the girl.” When confronted during cross-examination with his failure to use their names he gave different explanations. Initially he said at the time of the interview he could notremember Ms. D. name. He later explained that he does not “generally use people’s names if there is somebody I don’t like. She is a bigwoman. That is what she is.”

[ 21 ] The suggestion that he did not like Ms. D. did not come out of the blue in this latter response. In spite of his evidence in-chief that he and Ms. D. were fairly good friends, when asked earlier in the cross-examination whether there had been a falling out he said “there was about a year and a half ago.” He explained that Ms.

D. had taken a shine to him and wanted to be more than friends. [ 22 ] At first he testified that she had been making comments about wanting to have a personal relationship with him, but shortly after he testified that she had not said anything to imply a relationship but would touch his knee and his back and rub his shoulder suggestively. [ 23 ] Mr. Engen testified that he was uninterested and described things getting to the point where “I got mad one day and got loud and basically told her get away from me.

I don’t want anything to do with you.” He said this happened in the elevator in the late summer or fall of 2010, a few months before the alleged incident. Mr. Engen then agreed with the suggestion that Ms. D. was bad news and that he wanted to avoid her. He also agreed that he wanted to avoid M.D., because where “M. goes, J. goes.” [ 24 ] When confronted with the inconsistency of his account in opening the laundry room door to say “hi” to someone he was trying to avoid, Mr. Engen explained that he spoke to Ms. D. as a “courtesy and to get her to tell Sharon that he had been there.” It is not clear whether Mr.

Engen was giving both reasons – courtesy and getting his message to Sharon – as his explanation for initiating contact with Ms. D.. This is because his evidence in-chief suggested that it was some time after their initial contact that he asked her to get the message to Sharon. Regardless, his explanation is problematic. [ 25 ] If his explanation was that he opened the door and said hello simply as a courtesy, this is inconsistent with his expressed desire to avoid Ms. D.. More profoundly, it is inconsistent with his testimony about the aftermath of his elevator confrontation with Ms. D..

He had explained that after he got angry with her “she still said ‘hi’ to me but I did not talk to her.” He explained if she said “hi” to him he would basically keep walking. This, of course, makes his decision to stop and say “hi” to her as a courtesy problematic. Moreover, his description of how he stopped responding to her is also inconsistent with testimony he gave that “everybody who knows me knows that even if I don’t like somebody I say hi to keep cordial,” and with his evidence, given earlier, that after the falling out she made a snide comment to him about being stuck up. [ 26 ] If Mr.

Engen was indeed offering both explanations for initiating contact – courtesy and getting his message to Sharon – the difficulties multiply. Not only would the “message to Sharon explanation” for initiating contact be difficult to reconcile with his evidence in-chief which appears to suggest that the message to Sharon request came sometime after initially opening the door and saying hello to Ms. D., the message to Sharon explanation for the initial contact would make no sense. Mr.

Engen’s version in-chief was that his intention when Sharon did not answer the door was to wait for her, which explained his loitering in the 5 th floor lobby. Why would he ask Ms. D. to tell Sharon he had been there if he intended to stay and wait for Sharon himself? To be clear, I do believe that Mr. Engen did ask Ms. D. to tell Sharon he had been there. Ms. D. confirmed this. For the reasons given I conclude, however, that this did not occur when Mr.

Engen first opened the door and said “hi.” The message to Sharon does not explain why he would initially open the door and interact with someone he testified he was trying to avoid. [ 27 ] That was not the end of the problems with Mr. Engen’s testimony about his relationship with Ms. D.. After committing to the version in which his problems with Ms. D. stemmed from her uninvited amorous intentions towards him, Mr. Engen was confronted with an answer he gave in an admittedly voluntary statement to Detective Lyle on 5 February 2011.

Specifically, when asked why this five year old girl would tell her grandmother and the police that Mr. Engen had asked to touch her sexually Mr. Engen spoke of having had an altercation with Ms. D.. The altercation he then described was unconnected to his need to rebuff her sexual overtures. Specifically, Mr. Engen explained that he had made the mistake of chastising Ms. D. for breaking building rules by disregarding earlier warnings not to loiter with her kid at the side door of the building, and that Ms. D. took offence to that. He explained to the officer that Ms.

D. thought he was making fun of her, and he explained in his testimony that she is a big woman who is sensitive because she is often teased in the building about the way she walks. At no time did he bring up the “woman scorned” confrontation. [ 28 ] It is perplexing that Mr. Engen would initially describe being fairly close friends with Mr.

D. during his evidence in-chief, then feature this “woman scorned” explanation for animosity during cross-examination, all without mentioning the “side door” confrontation that he featured in his police interview. [ 29 ] When confronted with why he did not tell Detective Lyle about the “woman scorned” falling out he said, in effect, that during the interview he was focused only on the girl’s accusation and not on why a false allegation would be made, and that he had not meant during the interview to imply anything relating to why a false allegation would be brought against him.

Both claims are flatly contradicted by the interview. During that interview he said “But I can tell you one thing I don’t. You know what. I don’t want to be within five miles of that big woman because I don’t trust her. She is the one I don’t trust.” As for the claim to not implying anything when speaking of the confrontation, this is flatly inconsistent with the fact that it was in response to the question during the police interview of why this five year old girl would tell her grandmother and the police that Mr. Engen had invited M.D. to let him touch her

sexually that Mr. Engen brought up the “side door” altercation. Indeed, he responded, “Right. OK. Think about this one. At the same time I had altercations wit this woman.” [ 30 ] In his submissions defence counsel, Mr. Carter, urged that the challenge to Mr. Engen’s credibility based on his offered explanations as to why a false allegation was being made is inappropriate given that as defence counsel he had avoided raising a motive for a false allegation during Mr. Engen’s evidence in-chief.

He also urged that the “altercation” questions asked by Assistant Crown Attorney Attia stemmed from information gathered when Detective Lyle asked Mr. Engen whether he had an explanation as to why false allegations would be made. Were this question posed by a prosecutor during trial it would have been inappropriate. [ 31 ] I agree with Mr. Carter only in part.

Prosecutors should not, during trial, ask accused persons to offer explanations about why others might make false allegations since this is inconsistent with the presumption of innocence at trial, and human experience shows that it is not always possible to know what motivates individuals to act as they do. Inferring that an accused person who cannot find a motive for a false allegation is apt to be guilty is therefore irrelevant and unfair. I am therefore disregarding Assistant Crown Attorney Attia’s attempt to challenge Mr.

Engen as to why he did not, of his own initiative, offer the “come on” and related elevator confrontation during his interview with Detective Lyle. [ 32 ] That being said, it was not inappropriate for Mr. Attia to ask Mr. Engen about whether he had any altercations with Ms. D.. He did not initiate the issue of the nature of the relationship between the two. It was Mr. Engen in his evidence in-chief who said that he and Ms. D. were friendly. Mr. Attia was entitled to explore that testimony. [ 33 ] Moreover, once Mr.

Engen offered the “woman scorned” version of the confrontation in response to this proper line of questioning it was appropriate for Mr. Attia to confront Mr. Engen with the fact that he gave an entirely different account of his confrontation with Ms. D. to Detective Lyle. The fact that this different account was initiated by a question asked by a Detective during a police interview that a prosecutor could not ask during trial does not require the prosecutor, or a court, to ignore inconsistencies that arise from the accused person’s response. [ 34 ] To be clear, I am using this exchange not to infer that Mr.

Engen may be guilty because he has failed to offer a persuasive explanation as to why a false allegation would be made against him. I am using the exchange instead to: (1) note that Mr. Engen’s credibility has been harmed because he changed his testimony about the nature of his relationship with Ms. D. between his examination in-chief and cross-examination; (2) his testimony about wanting to avoid Ms.

D. does not sit well with the fact that he opened the laundry room door to say “Hi”; (3) that he offered inconsistent testimony about the nature of the “come on” by saying it had been verbal and then saying it had not; (4) that he offered inconsistent accounts to Detective Lyle and the Court about the nature of his difficulties he was having with Ms.

D.; (5) that he tried to escape from the problems all of this was presenting by offering the patently incredible explanation that he had not been thinking about the grandmother during the police interview because the allegation was made by the girl; and (6) by offering incredible testimony that during the police interview he was not implying anything when he spoke about his “altercations with this woman.” He clearly wanted Detective Lyle to accept that this could account for the allegations made against him. [ 35 ] Mr. Engen’s credibility problems were not confined to his relationship with Ms. D..

I am not troubled by the fact that he did not

mention going to Sharon’s door twice until he was being cross-examined. I do find his testimony that he thought she was sleeping when she failed to answer the door after he first knocked on the door to be problematic. It sits awkwardly with his testimony that he had already seen Sharon that morning on the bus, and that he was waiting in the 5 th floor lobby for her to return.

More problematic still is his testimony that he did not simply phone Sharon because “my cellphone does not work well at times.” This does not mesh with his own narrative which included a six minute cellphone call made at the same time to his friend Sam, on the 8 th floor. Mr. Engen grabbed the “unreliable cellphone” explanation as a convenient but unconvincing way to respond to a challenge that had been made. [ 36 ] I make nothing of Mr. Engen’s failure to call Sharon or Sam or even his wife as witnesses to support his testimony.

This is not one of those rare cases where an adverse inference for failing to call witnesses is appropriate. I do note, however, that when his efforts to contact Sam were being explored by Mr. Attia, Mr. Engen gave incredible responses. He said he tried to call Sam several times but Sam doesn’t answer his phone a lot of times especially when he is working, and “I was not even asked to contact him until the day before yesterday.” Those responses do not sit well together, nor do they explain why he did not call Sam, who he reached easily on the day in question, outside of working hours. Again, I find that Mr.

Engen was reaching for answers to a challenge made and that any answer that popped into his head would do. [ 37 ] I agree with Mr. Carter that Mr. Engen’s account of choosing to wait for Sharon in the lobby, and to his innocent interaction with M.D. describes a plausible story. Not much significance can be poured, however, into the fact that a version of events is plausible. While implausibility can cast doubt on an account, plausibility of a mere claim or denial does not add confirmation. More importantly, the plausibility of the version offered by Mr. Engen does not change the fact that Mr.

Engen demonstrated in his testimony that he is an undependable reporter of what happened that day. The fact that the account offered by Mr. Engen could plausibly happen given the order of the universe does not change the fact that Mr. Engen is a witness whose evidence cannot be trusted. I do not believe him and his testimony raises no doubt in my mind. [ 38 ] The question for this Court, therefore, is whether on the evidence I do believe, the Crown has proved beyond a reasonable doubt that Mr.

Engen did in fact counsel M.D. to permit him to touch her in the vaginal or anal area. [ 39 ] Even though this case turns on the credibility and reliability of the M.D. account, I will begin by commenting on the credibility and reliability of Ms. J.D. as I will be referring to her testimony when evaluating the evidence of M.D.. I do find J.D. to be a credible and generally reliable reporter of events. [ 40 ] I reject any suggestion that she was motivated to provide false evidence against Mr. Engen. The defence never put any such suggestion to her, no doubt because this was not part of the case presented by Mr.

Carter. I do accept her testimony that she knew Mr. Engen only casually to say “hi” and that she never went for coffee with Mr. Engen as he claimed. This is in keeping with his failure to refer to her by name in his police interview and in his evidence in- chief. At best there is an absence of proved motive to mislead and her evidence stands on its own merit. [ 41 ] I am aware that Ms. D. added detail to her last videotaped interview that was not contained in her original written statement or in her first police interview. Specifically, Ms. D. ultimately added that:

(1) Mr. Engen was playing with a radio, (2) that at one point M.D. hugged Mr. Engen, and (3) her seeing M.D. walking in the hallway with Mr. Engen when Ms. D. left the laundry room followed by M.D. ultimately falling with the walker and being helped up by Mr. Engen. [ 42 ] The first addition is immaterial and uncontested - Mr. Engen admitted to having a radio with him at the time. [ 43 ] The second addition – the hugging – is the kind of secondary detail that might well have been missed in the first telling. What matters is that both she and Mr.

Engen tell a very similar story about the nature of the interaction between himself and M.D. in the hallway, and Mr. Engen admitted contact when M.D. grabbed onto his hand during the pirouette. Mr. Carter suggested to Ms. D. that M.D. is not a shy girl and Ms. D. agreed. In effect, the addition of the hugging evidence does little to change the dynamics of what was

occurring. [44] The sole omission that is in the least bit troubling is the failure to describe M.D. and Mr. Engen being down the hallway, and thewalker incident. After all, Ms. D. used this walker incident to raise suspicion by describing M.D.’s apparent aversion at being picked upby Mr. Engen. Ms. D. testimony when challenged was that she knew she had missed things during her first statement so she told it thesecond time. I find this explanation to be believable.

She is not a professional witness and this amendment to her statement does notcause me to reject her testimony. [45] I also note that at no time was Ms. D. challenged on the accuracy of what she claimed M.D. said to her upon return to theapartment, a matter I will return to below. Suffice it to say here that I accept the testimony of Ms. D. that I refer to below. [46] It is M.D. testimony, of course, that is central to the case and its analysis will resolve whether there is evidence that I do acceptthat supports Mr. Engen’s conviction beyond a reasonable doubt. [47] Her material evidence is as follows.

When asked during the

section 715.1 statement whether there are any bad people in herbuilding M.D. replied, “I saw a man … he has a beard and is really bad.” She indicated during cross-examination that she sees this manoften and always says “Hi.” When asked why this man (whose identity as Mr. Engen was conceded during the trial) was bad, she said“Because he said … he asked me if he could touch my private spot and I said no.” She explained that this happened when the man wassitting beside the laundry room door on the floor. “He asked me to come here.” She sat down beside him, right next to him.

After shesaid “no” he then said “please” and she said “no.” She then testified that she “moved to the other side.” Later in the videotape sheillustrated what she meant by moving across the room. M.D. was essentially testifying that after this conversation she moved across thehallway from Mr. Engen. She said that while Mr. Engen was with her, “Mommy” kept saying “come in the inside… the laundry room.” [48] In evaluating M.D.’ testimony I have endeavoured to apply established principles for the evaluation of the testimony of youngchildren.

Specifically, I am not to apply adult standards to her evidence, given that children may experience the world differently fromadults. For example, children may not retain details relating to ancillary matters that are unimportant to them. As Justice Wilsoncommented in R.v.

B.(G.) (SCC), [1990] 2 S.C.R. 30 at 55, “While children may not be able to recount precise detailsand communicate the when and where of an event with exactitude, this does not mean they have misconceived what happened to themand who did it.” [49] I caution myself that none of this means that the evidence of children should be accepted more readily than adult testimony andthat the same standards of proof apply to the evidence of children as pertain to adult witnesses. “Protecting the liberty of the accused andguarding against injustice of the conviction of the innocent person requires a solid foundation for a verdict of guilt, whether thecomplainant be an adult or a child.” Common sense is to be applied, and criteria appropriate to the mental development of the witnessare to be consulted, including material inconsistencies and complications: R. v.

B.(G.) (SCC), [1990] 2 S.C.R. 30 at132). [50] While I recognize that it is dangerous to rely unduly on demeanour evidence or the way testimony is presented I begin by notingthat M.D. presented as a credible witness. She was confident during her

section 715.1 statement and during her live testimony. She wasresponsive and engaged. Nothing of concern arose in the delivery of her evidence.

Of far more importance, however, than theimpressions created by the manner in which a witness testifies are: (1) what is known about the witness and her situation, (2) the content of the testimony of the witness and its conformity with common sense, (3) the fit of the testimony with the overall evidence in the case, and (4) any indications from the specific testimony provided related to its credibility and reliability. [51] In terms of what is known of the witness herself, no relevant factors were identified apart from M.D.’s tender age. I caution myself

that I am not to infer that M.D.’s evidence is inherently unreliable simply by virtue of her age, and that it would be wrong to assume thatthe testimony of children is always less reliable than the evidence of adults. I am to judge her evidence based on its quality alwaysbearing in mind the burden of proof on the Crown, and not upon stereotypical assumptions: R. v. W.(R.) (SCC), [1992] 2S.C.R. 122 at 132-133 (S.C.C) [52] Mr. Carter challenged the credibility of M.D.’ evidence not by attacking her individual credibility but by examining the nature ofher account.

First, he urged that her narrative lacked detail and is therefore suspicious. [53] The account of the invitation to touch presented by M.D. is indeed simple. It took but six generously spaced pages of transcriptinterview to tell during the

section 715.1 interview. The criminal allegation in this case is, however, inherently simple. It consists ofnothing more than a brief conversation between the two. It was to be expected that the description of the alleged crime would bestraightforward and brief. [54] More importantly, M.D.’s account of what happened is not a bald allegation without context or setting. M.D. explained where theevent happened, both generally and specifically.

She situated herself and the event physically as occurring next to the laundry room doorand included details, such as his initial invitation to her to come over and his subsequent request where he asked her “please.” Moreimportantly, she described her reaction in getting up and moving. This was not a suspiciously naked allegation. It was a materiallycomplete version of the alleged offence including how she responded to it. [55] Second, Mr. Carter also challenged the credibility of her account by arguing it was unbelievable.

He submitted that it isimplausible that an individual would, in a public hallway, in front of elevators next to a laundry room door with a window where thechild’s mother is, behave in this way. It is true that such conduct would be unwise, and that someone prepared to counsel sexualtouching could easily select a more opportune time and place. The allegation, however, is not that Mr. Engen molested M.D. there. It isthat he propositioned her sexually.

It is not implausible, in my view, that someone might derive sexual pleasure from merely making theproposal, or that someone might make the proposal with the intent of dealing with logistics later. I would not reject M.D.’s testimonybased on implausibility alone, nor is the implausibility theory an important consideration in the context of this case. [56] Mr. Carter also urges that it is implausible that Mr. Engen, given his experience in the criminal justice system, would refer toM.D.’s “privates.” I do not find that this detail discredits the prosecution.

It is arguably as implausible that a man trying to persuade achild to permit touching would to denigrate into prison vernacular to describe his intentions. [57] In terms of the fit of her testimony with the overall evidence I do note that M.D.’s account is uncorroborated in its materialparticulars. Her narrative does, however, find situational support in the testimony of Ms. D.. Specifically Ms. D. described how at onepoint while she was doing laundry Mr. Engen, a man known to her from the building, came and crouched down beside M.D. beside thelaundry room door.

M.D. was initially standing but ended up sitting beside him. Ms. D. testified that she could see the two through thewindow as she was folding clothes. She said that she was uncomfortable with the situation and she went outside and asked M.D. to comeinside the laundry room. She said that M.D. came in for a time but went back outside because the laundry room is small and there isnothing for M.D. to do inside.

All of this is consistent with events described by M.D., and does give her testimony modest support. [58] When considering the credibility and reliability of her testimony based on what was testified to, I note that the heart of M.D.’evidence withstood challenge. She remained true to her account of the crime during cross-examination. She retracted nothing ofsubstance and made no material concessions while her account was being challenged. [59] This is not to say her testimony was perfect. There were problems of internal and external inconsistency that require consideration. [60] In her

section 715.1 statement, for example, when she was asked what happened with the man with the beard M.D. said that shewas playing in the hallway with her adult friend Demahn and “he came out and yells at me.” She then went on to describe an incident inwhich after being yelled at she closed the door on Demahn by accident. When asked about this during cross-examination she said theman with the beard did not come out and yell at her.

She described how a “lady” said to stop the noise. [61] When being cross-examined she initially said that she was not dancing in the hallway, just sitting down like the man with thebeard. Later during cross-examination she said she sat down with him, right next to him. When asked if this was for the whole time shesaid no, and said she was dancing and running around in a circle.

[ 62 ] M.D. also appeared to deny that the term “private parts” is used in her family. Ms. D. said that it was. [ 63 ] Moreover, she said that after leaving the laundry room “we [her and her Mommy] went inside [their apartment] but I went to Demahn’s house. J.D. contradicted this information, testifying that there was no interaction with Demahn after the encounter with Mr. Engen. [ 64 ] Contrary to the testimony of Ms. D., M.D. claimed her “Mommy” only came out of the laundry room door one time. [ 65 ] She did not describe hugging Mr. Engen nor did she mention the walker incident described by Ms.

D.. [ 66 ] None of these observations shake my confidence in M.’s credibility or her ability to offer a reliable narrative on the core details of the case. [ 67 ] In my opinion the inconsistency in her testimony about whether Mr. Engen yelled at her is nothing more than a child’s confusion about what she was being asked. I say this because M.D. corrected the false impression she created when asked more directly during cross-examination whether Mr. Engen yelled at her. We know from the uncontested testimony of Ms. D. that there is indeed an incident on that occasion when someone other than Mr.

Engen yelled at M.D. for making noise in the hallway. Her confusion is understandable. [ 68 ] The same can be said about her inconsistent evidence about whether she danced in the hallway. It is not clear she understood the time frame being asked about when she initially denied doing so. When she did describe dancing it was in response to the broader question about whether she sat down for the whole time. [ 69 ] Her apparent denial that the term “private parts” is used in her family is also unimportant. First, the point is a collateral one.

I am not prepared to discount M.D.’s testimony on salient points because of possible disagreement between M.D. and Ms. D. over whether the term is habitually used in their home. Moreover, although it is inappropriate for judges to seize on speculative explanations to remove apparent problems with evidence, I do believe M.D. may have misunderstood what was being asked of her. The concept of a habitual lexicon is not a simple one. Mr.

Carter addressed the issue by asking, “You and Grandma talked about private parts before?” to which M.D. answered “Nope.” “This is not a word you used with your mother before?” “ Nope.” I intend no criticism of Mr. Carter in observing that a child is apt to misunderstand such questioning. The first question could be taken to suggest that M.D. and her “mommy” sat down and had a discussion about private parts and this could well be all that M.D. was denying. The second question could suggest to M.D. that at some point she brought up the topic of private parts, again provoking a denial.

A less ambiguous answer might have been provided had M.D. simply been asked directly what “Mommy” calls the area between M.D.’s legs. [ 70 ] M.D.’s claim that she went to Demahn’s house after her and Ms. D. returned to the apartment is also unimportant. While Ms. D. contradicted M.D. as to the timing of this event, she also testified that prior to the incident with Mr. Engen, M.D. was at Demahns, leading to the incident in which M.D. was yelled at for making noise in the hallway.

M.D.’s confusion about chronology is in keeping with what would be expected of someone her age. [ 71 ] Nor do I find it problematic that M.D. underestimated the number of times her “Mommy” came out of the laundry room, compared to Ms. D.. This is an insignificant detail, and not the basis for rejecting the testimony of a six year old child. [ 72 ] As for the omission to mention hugging Mr. Engen or the walker incident, both featured in Ms. D.’s testimony, neither proposition was put directly to her. I am not troubled in the circumstances that her evidence deviates from Ms.

D. on these points. [ 73 ] I am therefore unimpressed by the inconsistencies in M.D.’s evidence, taken alone or together. [ 74 ] I was impressed however, that during the

section 715.1 video-taped interview when the interviewing Detective misstated what M.D. had previously said, young M.D. corrected her. “But you told me that the man asked you to see your privates. Can you tell me about that?” M.D. immediately replied, “No, No. He asked if he can touch.” When I asked Mr. Carter for his comments on the

significance of this he urged that the correction was unimportant because only a few seconds had passed between M.D.’s account of whathappened and her correction of the officer. The point, however, is not that M.D. was able to hang onto a version of events for a fewseconds. It is that M.D. demonstrated great confidence in her account – she was self-assured enough to correct a police officer.

Thisspeaks not only to her resistance to influential suggestion, it supports the conclusion that young M.D. was doing her best to describeexactly what she perceived to have happened. [75] In sum, I find that M.D. presented her evidence in a credible way. Her narrative was plausible and offered in an appropriatelysimple and straightforward manner with the kind of detail one would expect. While her account was not corroborated her narrative wasconsistent in time and place with other evidence, and the heart of the allegation sustained challenge.

Any of the collateral inconsistenciesthat were uncovered are unimportant. Typically they are the type of frailties one would see with the evidence of young children. I amaware that these inconsistencies do raise reliability concerns but they relate to collateral matters. I have no reliability concerns relating tothe material allegation – M.D. described the invitation being repeated and there is no reason to believe she misheard or misapprehendedwhat had been said.

Finally, there is reason in M.D.’s readiness to correct a police officer to believe that she was doing her best todescribe exactly what she perceived. [76] Before rendering a verdict in light of these findings there is one final issue that needs to be addressed. During the course of thetrial, Mr. Attia for the Crown complied with the proper procedure of alerting the Court in advance of his intention to present evidence ofa prior statement made by M.D. consistent with her testimony.

He also appropriately advised the Court of the purpose for which theevidence was being presented (see R. v. (A.E.) (ON CA), [2001] O.J. No.3222 (Ont.C.A.). Mr. Attia argued, ineffect, that the statement could be admitted as narrative and to support the credibility of M.D. in-court evidence. After submissions it wasagreed by Mr. Carter, for Mr. Engen, that the statement could be admitted under the doctrine of narrative, and that the ultimate use of thestatement could be resolved later in the proceedings. [77] As a result, evidence was heard from Ms.

D. that four or five minutes after arriving back at their apartment M.D. told Ms. D. shehad something to tell her. M.D. then said, “You are not going to get mad at me?” and Ms. D. told her not to be scared. Ms. D. thentestified that Ms. D. told her that “the man out there [Mr. Engen] asked if he could touch my private parts,” and she did not let him. M.D.told Ms. D. that Mr. Engen apparently had asked a few times and she kept saying no. The question is what use, if any, can be made ofthis evidence?

Oral and written argument was received relating to the issue. [78] The place to begin is by noting that logically, there are times when out of court statements can yield inferences that are notavailable in the case of in-court testimony. This is because whereas in-court testimony is presented as a de-contextualized narration ofpast events by a witness, there are often contextual circumstances surrounding the making of out of court statements that provide rationalcriteria for evaluating the truth of what is said.

Where those contextual circumstances are sufficiently telling they can even show the outof court statement to be reliable enough to admit as hearsay, as proof of the truth of what was said. R. v. Khan (SCC),[1990] 2 S.C.R. 531 provides a clear example. In Khan the contextual circumstances of the out of court disclosure yielded rationalcriteria for evaluating the truth of what was said.

Specifically, the spontaneity of a precocious disclosure of sexual violation made shortlyafter the event in age appropriate language by a child without motive to harm the accused, helped yield the rational conclusion that thechild’s account was a reliable one. Had the child been competent and simply narrated what happened in Dr. Khan’s office during in-court testimony the testimony would not have exhibited a number of these relevant analytical factors.

The story would have lost itscontext along with valuable information useful in assessing its credibility and reliability. [79] Similarly, based on logic alone, the context in which M.D. initially made the allegation about what Mr. Engen had done containsfeatures that support the credibility of her account. Specifically, the disclosure was made in a reasonably contemporaneous fashion –although it is not clear at what precise point in the interaction between M.D. and Mr. Engen that the criminal invitation is alleged to havebeen made, M.D. made her disclosure within four or five minutes of being out of Mr.

Engen’s presence. This reduces the time availablefor concoction although it does not eliminate the possibility. What it certainly does logically is remove any risk that M.D. may havemisremembered what happened when giving her account; the event, if it occurred at all, had just happened. Moreover, M.D.’s statementwas made without prompting and before being exposed to any other adults. This, combined with the timing of the statement removes therisk that the child was influenced by another, either intentionally or by suggestion, into making a false allegation.

In addition, the childwas reluctant to make the allegation. Although a person can be reluctant to tell a lie, in the circumstances of this case both thecircumstances and what she said show that the reluctance clearly arose from M.D.’s own concern that she had done something wrong –“You are not going to get mad at me?” I believe it to be proper to consult this out of court statement in identifying logical inferences thatarise from the manner and context of disclosure.

It is not being used for its hearsay purpose but as original evidence from which it ispossible to infer circumstantially her state of mind – her apprehension about disclosing what had happened: R. v. P.(R.)(1990), 58 C.C.C.(3d) 334 (H.C.). Logically this enhances the credibility of her account since, for M.D., disclosure was not unlike an admission againstinterest. [80] In R. v. Khan the circumstances surrounding the making of an out of court allegation that permitted a rationale evaluation of theevidence could be consulted because the child was unavailable. There was no in-court testimony.

In this case M.D. did testify about theevents, so necessity based hearsay exceptions do not apply. Indeed, M.D.’s earlier disclosure to Ms. D. qualifies in law as a priorconsistent statement and prior consistent statements are generally inadmissible: R. v. Stirling 2008 SCC 10 , [2008] S.C.J. No.10 (S.C.C.). The question that arises, then, is whether the fact that M.D. testified and provided a de-contextualized narrative of past

events deprives the Court of the benefit when evaluating her allegation of those contextualized factors that accompanied her earlierdisclosure and that may assist in assessing its credibility and reliability. [81] In 1994 in R. v. D.(C.B.) [1994] M.J.

No. 403, the majority of the Manitoba Court of Appeal endorsed a rule that would permitcourts to consider relevant circumstances accompanying a previous consistent statement made by a child, when evaluating the credibilityof the child’s allegation, even when the circumstances surrounding the making of the out of court statement fall short of supportinghearsay admissibility.

The Court supported the initiative by noting the shortcomings of the evidence of children, by recognizing theadditional logical assistance the earlier disclosure can furnish in evaluating the allegation, and by taking comfort in the fact that theaccused person would have the full opportunity to cross-examine the maker.

Moreover, since the out of court statement would not beadmissible as independent evidence of allegation the out of court statement alone could never be the basis for a criminal conviction. [82] Although neither the Ontario Court of Appeal nor the Supreme Court of Canada have rejected the D.(C.B.) approach, these andother courts across Canada have accomplished much the same thing using a different approach, namely the doctrine of narrative. (See Rv. B.(O.) 1995 NSCA 220 , [1995] N.S.J.

No. 499 [N.S.C.A.]) [83] Under the doctrine of narrative, it is possible for inferences to be drawn about credibility and reliability arising from thecircumstances and manner in which a prior consistent statement has been made, including if not especially in the case of child evidence. As the Ontario Court of Appeal recognized in R. v. C.(G.) [2006] O.J.

No. 2245, “In appropriate cases, the way the complaint comesforth can, by adding or detracting from the logical cogency of the child’s evidence, be a useful tool in assisting the trial judge in theassessment of the child’s truthfulness.” In effect, these statements yield circumstantial inferences that can assist in evaluating in-courttestimony. [84] To understand these cases it is imperative to bear in mind that it is always an error for a judge to infer that in-court testimony ismore credible simply because it repeats a claim that the witness previously made out of court.

As put by Justice Twaddle two decades ago, “Consistency is a quality just as agreeable to lies as to the truth”: R. v. L.(D.O.) (1991), (MB CA), 6 C.R. (4th) 277 at 309 (Man. C.A.), rev’d (1993), (SCC), 25 C.R. (4th) 285 (S.C.C.). Moreover, if all a prior consistent statement isbeing offered for is to show that the witness said the same thing before, the prior consistent statement is superfluous – the witness is exhypothesis already offering their version of events in-court as testimony.

For this reason “credibility from mere repetition” is animpermissible inference. [85] By contrast, in those cases where a prior narrative serves as circumstantial evidence relevant to credibility, it is not the simplerepetition of the statement that yields the inferences but rather the manner and circumstances in which the prior consistent statement ismade. This is what makes the inferences appropriate. Adapting what was said in R. v. F.(J.E.) at 241: ...

The fact that the statements were made [in the fashion and circumstances they were] is admissible to assist the jury as to the sequenceof events from the alleged offence to the prosecution so they can understand the conduct of the complainant and assess her truthfulness. [86] Most often it is the timing of the prior consistent statement that is relevant; for example, the prior consistent statement can helpexplain why disclosure was delayed. In R. v.

Ay (1994), (BC CA), 93 C.C.C. (3d) 456 (B.C.C.A.) proof of the priorconsistent statement and its timing was relevant in confirming that it was fear of the accused that caused a delay in complaining. In R. v.B.(O.) 1995 NSCA 220 , [1995] N.S.J. No. 499 (N.S.C.A.) disclosing the timing of the prior consistent statement was helpful inshowing that disclosure was prompted by a cathartic occasion, after a long delay. [87] Narrative uses are not confined merely to rebut allegations of delay. In R. v. Evans (SCC), [1993] S.C.J.

No. 30,a prior consistent statement was recognized to be admissible to support the inference that the witness, who the accused claimed was thereal killer, would not have risked implicating herself to the police by disclosing during their investigation that the accused was bringingthe murder weapon with him when coming to meet her prior to the killing. Essentially, the timing and content of her prior disclosure tothe police about the accused and the weapon provided circumstantial support indicating that her testimony denying that she caused thedeath of the deceased was more likely to be true. And in R. v.

Dinardo 2008 SCC 24 , [2008] S.C.J. No. 24 at para, 39, the priorconsistent statement of a mentally challenged complainant assisted in rebutting the defence submission that she had difficulty situatingevents, was easily confused, and had lied on occasion. The Supreme Court of Canada held that the spontaneity and character of the priorconsistent statement could be used in evaluating whether this was so in the case of the allegation before the court.

In each of these casesthe content of the prior statements – what was said – were relevant, but not simply on the basis that the statements contained the sameinformation later repeated in court. In each case the content along with timing and circumstance supported circumstantial inferences thatdid not depend upon the mere fact of repetition. Simply put the context and manner in which the disclosure occurred, yielded inferencesrelevant in evaluating the credibility of the allegation testified to in-court.

[88] Mr. Carter noted in his submissions that as in the case of recent fabrication, such cases involve the use of a prior consistentstatement to rebut a submission made by the defence. In effect, the prior consistent statement is used as a shield against a defenceargument, and not as a sword to generate positive information that would add to the credibility of the in-court testimony of a Crownwitness. I agree that prior consistent statements will often, even typically, become relevant to credibility as a result of defence initiativesbut I do not believe that their use is confined to such cases.

The question is simply one of logic. As the Ontario Court of Appealexplained in R v Curto 2008 ONCA 161 , [2008] O.J.

No. 889, “the narrative exception is, in my view, essentially a convenientlabel for instances falling outside the traditional exceptions where the fact that the witness made prior statements about the incident hassome probative value.” Where, apart from the prohibited inference described above, the “circumstances render evidence of priorconsistent statements of potential significance to the trier of fact, either with respect to credibility of the declarant/witness or with respectto a fact in issue,” the prior consistent statement can be used: R. v.

Toten (1993), (ON CA), 83 C.C.C. (3d) 5 at 36(Ont.C.A.). [89] One final caveat has to be expressed, however. In those cases where prior consistent statements can come in to support otherinferences apart from truth based on mere consistency, it is never permissible to treat in-court testimony as being corroborated orconfirmed by the prior consistent statement from the same witness. The obvious reason is that the prior consistent statement is notindependent. It comes from the same source as the in court testimony – the witness whose evidence is being evaluated. (See R. v.Dinardo 2008 SCC 24 , [2008] S.C.J. No. 24).

In effect, the circumstances surrounding the making of the prior consistentstatement can be used to help evaluate the credibility and reliability of the allegation that the witness describes in their in-court testimonybut not as independent evidence proving the same allegation.

Simply put, the earlier statement does not corroborate the in-courtstatement, but the circumstances in which it is made can assist in the evaluation of the in-court allegation. [90] I am therefore of the opinion that there is nothing in law that prevents me from taking into account, when assessing the credibilityand reliability of M.D. allegation, the factors identified in paragraph 80 above. In the circumstances of this case, however, it is notnecessary to do so in order to find the evidence of M.D. to be credible and reliable.

I find it to be so even leaving her prior consistentstatements aside. [91] I am satisfied beyond a reasonable doubt that on 19 January 2011, Mr. Engen asked M.D., a five year old child, if he could touchher vaginal or anal region. I therefore find Mr. Engen guilty of the offence as charged. Released: December 20, 2011 ___________________________________ The Honourable Justice David M. Paciocco