R. v. M.B., 2019 ONCJ 349

WARNING An order restricting publication in this proceeding under ss. 486.4(1) , (2) , (2.1) , (2.2) , (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide: 486.4(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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (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, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 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 at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (

i) if it occurred on or after that day; or (iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49). (

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) 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.

(2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

(2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall (

a) as soon as feasible, inform the victim of their right to make an application for the order; and (

b) on application of the victim or the prosecutor, make the order.

(3) In proceedings in respect of an offence under

section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.

(4) An order made under this

section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15 ; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5 ; 2012, c. 1, s. 29 ; 2014, c. 25, ss. 22, 48; 2015, c. 13, s. 18 . 486.6(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.

(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15 . ONTARIO COURT OF JUSTICE CITATION: R. v. M.B. , 2019 ONCJ 349 DATE: 2019·05·10

BETWEEN: Her Majesty the Queen — and — M.B. Reasons for Judgment released on May 10, 2019 D. Bronowicki ....................................................................................... Counsel for the Crown A. Weisberg and M. Psutka ......................................................... Counsel for the Defendant Felix J.: R. v. M.B. – Table of Contents I. Introduction . 5 II. Position of the Crown and Defence . 5 III. Decision at Trial 6 IV. The Allegations . 6 V. Organization of this Judgement 7 VI. Over-arching Criminal Law Principles . 8 A. Introduction . 8 B.

Credibility, Reliability, and the Criminal Burden of Proof 8 C. Special Considerations with Respect to the Assessment of the Credibility and Reliability of Child Witnesses . 9 D. Motive or Animus . 10 VII. External Factors Impacting the Strength of the Prosecution Case . 11 A. The Marital Circumstances and Family Law Issues . 11 B. The Credibility and Reliability of the Complainant’s Mother 12 1.

Interpretation and amplification . 12 2. Postural testimony . 13 3. The risk of influence . 13 4. The “ordinary approach” to issues involving the complainant 14 5. Response to cross-examination . 15 6. The family court deadline. 15 7. The complainant’s day-care and school 16 8. 50/50 Access . 16 9. Motive to fabricate . 16 10. Conclusion: Credibility and reliability of the complainant’s mother 17

C. The Credibility and Reliability of the Complainant’s Father 17 1. Background . 17 2. Co-parenting . 18 3. Family law deadline . 18 4. The complainant’s susceptibility to influence . 18 5. The recording . 19 6. Motive to fabricate . 19 7. Conclusion: Credibility and reliability of the complainant’s father 20 D. The Recording . 21 E. The Counselling Records . 22 F. Conclusion: External Factors . 22 VIII. Internal Factors Impacting the Strength of the Prosecution Case . 23 A. Credibility and Reliability of the Child Complainant 23 1. The Recording . 24 2. Testimonial Concerns Raised by the Complainant 24 3.

The Complainant’s experience with not telling the truth to her parents . 24 4. Description of peculiar sexual organs and acts . 24 5. Inconsistencies . 25 6. D Motive to Fabricate . 28 7. Demeanor 28 IX. Conclusion . 30 I. Introduction [ 1 ] The defendant is charged with committing sexual assault and sexual interference concerning his 5 year-old grand-daughter (the complainant). [ 2 ] The background circumstances involve a fractious and acrimonious family law dispute between the complainant’s parents over custody, access, and support concerning the complainant.

The complainant’s mother and father were not residing together due to marital tumult. The complainant was spending time with her mother, her father, and her paternal grandparents at the time of the allegations. [ 3 ] One day the complainant made a comment to her mother comparing a chicken dinner to a portion of her grandfather’s anatomy. After clarifying the reference, the complainant’s mother notified the police. The complainant was interviewed and provided details concerning sexual contact with her grandfather. The defendant was charged. II.

Position of the Crown and Defence [ 4 ] The Defence position is that the sexual acts never occurred. The Defence argues that one of three things occurred: (1) the complainant fabricated the allegations; (2) the complainant’s mother induced the complainant to manufacture the allegations; or (3) the complainant’s mother heard a strange reference from her daughter and determined to amplify and thereby capitalize on the circumstances to gain an advantage in family law proceedings.

In sum, the Defence argues that the family law litigation was the overarching influence inducing the complainant’s mother to promulgate false allegations. Finally, Defence counsel cites a multitude of factors undermining both the credibility and reliability of the complainant. [ 5 ] The Crown position is that that a proper analysis of the complainant’s evidence through the lens appropriate for a child witness will lay bare the core truth of the complainant’s evidence. The Crown position is that the complainant was not induced or influenced to manufacture allegations.

Furthermore, the complainant had no motive to make an allegation against the defendant – a grandfather she loved. If anyone is guilty of undue influence, it is the complainant’s father who induced the complainant to make statements undermining her allegations.

III. Decision at Trial [ 6 ] I generally accept the evidence of the complainant concerning the particulars of the allegations and I am reasonably confident that the defendant engaged in sexual behaviour with his granddaughter. Notwithstanding my belief in the allegations made by the complainant, I lack confidence in the prosecution’s case because of numerous factors that combined to erode the strength of the prosecution’s case. [ 7 ] Proper articulation of the criminal standard of proof requires a recognition that acceptance of the complainant’s evidence does not end the analysis.

A contextual placement of the complainant’s evidence in the milieu of a number of circumstances diminishes impacted the reliability of the complainant’s evidence and to a limited degree, credibility as well. The primary external factors include: credibility and reliability findings concerning both of the complainant’s parents; Prior inconsistent statements made by the complainant to her counsellor; and the content of a surreptitious audio recording of the complainant captured by her own father.

The primary factors focused on the complainant are certain inconsistencies in her evidence and the demeanor of the complainant when she testified. [ 8 ] In order to find the defendant guilty to the requisite criminal standard of proof I must have a state of mind greater than a simple belief in the testimony of the complainant. I am required to have conviction beyond a reasonable doubt as to the defendant’s guilt. Suspicion and mere belief is insufficient to reach this standard. [ 9 ] Notwithstanding my belief in the complainant, I am obligated to find the defendant not guilty.

In the reasons that follow, I will explain how the combination of external and internal factors impacted the strength of the Crown’s case such that this must be the result. IV. The Allegations [ 10 ] One night after dinner the complainant compared her chicken dinner to sexual organs possessed by her grandfather. The complainant provided further details of the circumstances to her mother. A few days later she provided a video statement to the police. She testified at a preliminary inquiry. This case did not proceed by way of trial in the Superior Court of Justice.

Pursuant to a procedural re-election, the matter returned and proceeded to trial in the Ontario Court of Justice. The complainant’s video was admitted on consent pursuant to s.715.1 of the Criminal Code . She provided testimony at trial via close circuit television with a support person. [ 11 ] As I generally accept the allegations made by the complainant, a thematic, hyper-focused, analysis of the specifics, flowing from her initial statement through to trial, is not required. This is particularly so when the appropriate approach to the evidence of child witnesses is employed.

The core allegations (echoed by the extensive submissions of both the Crown and Defence) involve allegations that the defendant is touched the complainant’s vaginal area, caused her to touch his penis, and placed his penis at the entrance of her vagina. I will restrict myself to a accessing the details of the allegations where needed for context and to explain other conclusions as necessary. V. Organization of this Judgement [ 12 ] I will not replicate the voluminous and dense record produced at trial.

I will endeavor to summarize and reference evidence only as needed to explain why the Crown has not satisfied the criminal burden of proof. I will commence by addressing the relevant overarching criminal law considerations including: 1. Credibility, reliability, and the criminal burden of proof; 2. The proper approach to the evidence of children; and 3. The proper approach to evidence of motive or animus. [ 13 ] Next I will address relevant factors that are external to the analysis of the complainant’s evidence that nonetheless impact the strength of the prosecution case including: 1.

The marital circumstances including family law issues of custody, access, support and divorce; 2. The credibility and reliability of the complainant’s mother; 3. The credibility and reliability of the complainant’s father; 4. The recording; and, 5. The counselling record. [ 14 ] Finally, I will address the relevant factors internal to the evidence of the complainant and explain the impact on the credibility and reliability of the complainant. VI. Over-arching Criminal Law Principles A. Introduction

[15] There are certain fundamental elements of every criminal trial. I must commence with express recognition of the following: 1. Credibility, reliability, and the criminal burden of proof; 2. The proper approach to the evidence of child witnesses; and 3. The proper approach to evidence of motive or animus. B. Credibility, Reliability, and the Criminal Burden of Proof [16] The prosecution must prove the defendant’s guilt beyond a reasonable doubt. The onus does not shift. There is no obligation onthe defendant to testify. If there is any reasonable doubt it must be resolved in favour of the defendant.

It is not sufficient to simply holda belief that unlawful conduct occurred. I must be convinced beyond a reasonable doubt based on all of the evidence at trial. [17] I am guided by the principles in W.(D). v. The Queen (1991), 63 C.C.C. (3d) 77 (S.C.C.) [W.(D.)] notwithstanding the fact thatthe defendant did not testify. The principles in W(D.) apply to the defence-led evidence and evidence supportive of the defence positioncalled by the prosecution. [18] A court may believe all, none or some of a witness' evidence: R. v. Francois, (SCC), [1994] 2 S.C.R. 827, atpara. 14; R. v.

M.R., 2010 ONCA 285, at para. 6; R. v. Hunter, [2000] O.J. No. 4089 (C.A.), at para. 5; and R. v. Abdallah, (ON CA), [1997] O.J. No. 2055 (C.A.), at paras. 4 - 5. There are significant portions of testimony provided by both parents that Ido not believe or accept. I will detail these concerns in this judgment. [19] A court is entitled to accept parts of a witness' evidence, reject other parts, and determine the appropriate weight accorded todifferent parts of the evidence: R. v. Howe, (ON CA), [2005] O.J. No. 39 (C.A.), at para. 44.

I will explain how Ianalysed all of the evidence provided by the witnesses at trial. [20] A determination of guilt or innocence must not, devolve into a mere credibility contest or choice between competing prosecutionand defence witness evidence. This approach would negatively impact the presumption of innocence and the criminal standard of proofbeyond a reasonable doubt: W.(D.), at p. 409; and Avetsyan v.

The Queen (2000), 2000 SCC 56 , 149 C.C.C. (3d) 77 (S.C.C.), atpp.85-87. [21] Finally, after considering the totality of the evidence at trial, if I am unable to decide whom to believe as between the prosecutionevidence and the defence evidence, this state of mind translates into a reasonable doubt: R. v. S. (J.H.), 2008 SCC 30, at para. 12; and R.v. Austin, (ON CA), [2006] O.J. No 4660 (C.A.), at para. 20. C.

Special Considerations with Respect to the Assessment of the Credibility andReliability of Child Witnesses [22] It is important to recognize special guidance concerning the proper approach to the evidence of children. The complainant wasfive-years-old when she provided her video statement to the police. By the time of trial, she was eight-years-old. I have receivedguidance from the following case law concerning the assessment of child witness evidence: 1. The court should approach the evidence of children with common sense and refrain from assessing credibility using an adultstandard: R. v.

F(C.), (SCC), [1997] S.C.J. No. 89, at paras. 48-49 [F.(C)]; R v. W.R., (SCC), [1992]S.C.J. No. 56, at paras. 23-26 [W.(R).]; R v. B.(G), (SCC), [1990] 2 S.C.R. 30, at paras. 47-48[B.(G.)]; R. v. Marleau,[2005] O.J. No. 1173 (C.A.), at paras. 9-10; and R. v. Mayahi, [2006] O.J. No. 313 (C.A.). 2. The evidence of children is no longer viewed as inherently unreliable and deserving of special caution: W.(R)., supra. 3. Notwithstanding the special approach to the evidence of children the trier of fact is not permitted to employ a lower level of scrutinyfor reliability simply because the witness is a child: R. v.

Stewart, (ON CA), [1994] O.J. No. 811 (C.A.). 4. There is no fixed formulaic approach to the assessment of potential problems with a child’s evidence – the trier of fact should assessboth the strengths and weaknesses using common sense: R. v. Marquard, (SCC), [1993] S.C.J. No 119, at paras. 19-20. 5. The fact that the legal requirement for corroboration child witness evidence has been repealed, does not mean that the trier of factmay not treat the evidence of a child with caution where the circumstances of the case require such caution: W.(R)., supra. 6.

The trier of fact must consider the credibility and reliability of the child witness in light of all of the evidence at trial with reliabilitybeing the more important focus: R v. Morin, (SCC), [1988] S.C.J No 80; and, R. v. Gostick, (ON CA),[1999] O.J. No 2357(C.A.). 7. Child witnesses may be confused by a skilful cross-examination and may testify to inconsistencies even if telling the truth: F(C.), atparas. 48-49. 8. The trier of fact must assess all claimed inconsistencies in context with a view to assessing whether or not an inconsistency is animportant indicator of reliability: R. v.

M.(G.),[ (ON CA), 1994] O.J. No 2086 (C.A.), leave to appeal ref’d [1994]S.C.C.A. No 390; R. v. A.(S.), (ON CA), [2002] O.J. No 1950 (C.A.); and R. v. G.G., (ON CA),[1997] O.J. No. 1501 (C.A.). 9. Child witnesses may not be able to readily recount exact details such as the date and time of an event and such deficiency does not

mean the child is being untruthful: B.(G.), supra 10. That there is a significant gap between the date of the allegation and the date of the trial does not necessarily impact the reliability ofa child’s evidence: R. v. B. (A.), (ON CA), [1997] O.J. No 1578 (C.A.); and R. v. L.(J.),[2000] O.J. No 3806 (C.A.). 11. The child witness should be assessed by use of criteria appropriate to the child’s mental development, understanding, and ability tocommunicate: W.(R)., supra; and R. v. Keeper, [2000] O.J.

No 1407 (C.A.). [23] I have employed common sense, experience, sensitivity, and my best assessment of the child complainant in evaluating herevidence. D. Motive or Animus [24] A significant issue in this case involves the Defence assertion that the complainant’s mother had powerful motives to fabricateevidence or to encourage the complainant to fabricate evidence given the specter of family law proceedings. The Defence also assertsthat the complainant had a motive to fabricate the allegations.

The prosecution asserts that the complainant’s father had a motive tofabricate evidence and to influence the complainant. [25] The defendant has no burden to prove a motive to fabricate on the part of the complainant or her mother. The defendant is notlegally required to explain why the complainant made allegations against him.

The prosecution is not required to prove motive or animusas an essential element of the offences. [26] For the reasons that follow, I find that there is a solid foundation in the evidentiary record to be concerned about the motives ofboth parents given the dynamic of their relationship at the time of the allegations. While there was no “smoking gun”, there is ampleevidence in emails and text messages demonstrating mutual animus. For this reason, extreme caution was required in accepting evidencefrom either parent in this case notwithstanding the lack of any explicit or clear evidence of motive: R. v.

Bartholomew, 2019 ONCA 377,at paras. 20-23 [Bartholomew]; R. v. L.L., 2009 ONCA 413, at para. 44. [27] With respect to the complainant, the state of the evidence does not permit a conclusion that a motive to fabricate was absent. The evidence is unclear in my mind. As a result this factor is neutral as it pertains to the complainant and is not available to enhance thecredibility and reliability of the complainant: Bartholomew, at paras. 20-23. VII.

External Factors Impacting the Strength of theProsecution Case [28] Having addressed the controlling guidance of criminal law principles, I now turn to the external factors and circumstancesimpacting the strength of the prosecution case including: 1. The marital circumstances including family law issues of custody, access, support and divorce; 2. The credibility and reliability of the complainant’s mother; 3. The credibility and reliability of the complainant’s father; 4. The recording; and, 5. The counselling record. A.

The Marital Circumstances and Family Law Issues [29] It makes sense to begin with the marital circumstances because of the important foundational context it provides. Counsel, witha more advanced and thorough understanding of the issues, advanced issues focused on the marital circumstances and the familydynamic. At trial this tension between family law matters and the criminal allegations was explored at great length. Frankly, at times,this Court struggled with where the line of relevance fell given it is not the role of this court to deal with the merits of the family lawissues.

This necessitated clarification and guidance from counsel on points of relevance at times. [30] Based on the evidentiary record and the submissions of counsel I make the following findings: 1. Prior to the allegations the defendant and his spouse (the complainant’s grandmother) were the primary caregivers for thecomplainant including before school and after-school care; 2. The complainant’s parents were separated and living apart at the time of the allegations. 3. Family law issues such as custody, access, support, and the terms of divorce were in contention during the relevant time frame. 4.

At the time of the complainant’s disclosure, the complainant’s parents were at a self-imposed, legal counsel-directed deadline,relevant to the contemplation of litigation; 5. The complainant’s allegations surfaced at the deadline set by counsel for the complainant’s mother and the complainant’s father;

6. The complainant’s father was pressing for equal access to his daughter and the complainant’s mother was resisting this effort; 7. The complainant’s mother wished to change the complainant’s school and change daycare arrangements and the complainant’s father was resisting this effort; 8. Prior to the allegations, the parents would discuss any circumstances around the complainant’s behaviour before taking action; and, 9.

The subjective views held by each parent concerning the veracity of the complainant’s allegations were not relevant. [ 31 ] Against the backdrop of the family law issues, the credibility assessment of both parents required clear caution and a self- instruction on motive to fabricate and mutual animus. B. The Credibility and Reliability of the Complainant’s Mother [ 32 ] The complainant’s mother testified as a disclosure witness concerning the circumstances surrounding the allegations made by the complainant. The complainant’s mother presented as an intelligent and careful witness.

That being said, the Court approached her evidence with caution for several reasons. 1.

Interpretation and amplification [ 33 ] There is no objective record of the words used by the complainant to disclose to her mother. The disclosure made by the complainant required her mother to explore and amplify the allegation to a degree. The words used by the five-year-old complainant required her mother interpret what was said by her daughter. The complainant referenced their chicken dinner and compared it to her grandfather’s “bum”. The complainant’s mother necessarily had to tease out the meaning attributable to the words. The initial allegation was thereby sourced and influenced by the

interpretation of the complainant’s mother. [ 34 ] There is nothing wrong or suspicious about the complainant’s mother being a disclosure witness. Indeed, most child disclosures are made to a parent and lack an objective record. While it is not unusual for a parent to be a disclosure witness to a child sexual complaint, and it is not unusual for such disclosure to be inaccessible to objective review, in this particular case it is a relevant factor to consider given the animus between the complainant’s parents. 2.

Postural testimony [ 35 ] The complainant’s mother testified that her daughter was not easily influenced or coachable when it suited her testimonial purpose and then relied upon her daughters suggested susceptibility to undue influence at other times in her testimony. She testified that her daughter was not easily influenced or coachable because she perceived this as protective of her direct involvement in the acquisition of the allegations by way of disclosure and conveyance to the police.

To be blunt, this defensive posture was presented in aid of her anticipatory efforts to rebut any suggestion that she unduly influenced her daughter or that she directed her daughter to fabricate the allegations. [ 36 ] This defensive posture was inconsistent with this witness’ testimonial concern that the complainant speak to the police before anyone could influence her. It was inconsistent with her actions in limiting access to the defendant side of the family after disclosure.

It was inconsistent with the accusations made by her about the complainant’s father brainwashing the complainant over the issue of custodial access. It was also inconsistent with this witness’ testimony about the rationale for her approach to her daughter’s disclosure which I will address in a moment. This defensive posture was also inconsistent with common sense. The record at trial shows that the complainant was clearly subject to influence generally. It is also clear that the complainant was particularly susceptible to influence from her parents or caregivers. This is not surprising.

What five-year-old child is not subject to the influence of her mother, father, or other caregivers? The complainant’s mother had a calculated approach to this issue that impacted her credibility. 3. The risk of influence [ 37 ] An unusual aspect of mother’s evidence concerned her testimonial concern about undue influence on the complainant at the time of the complainant’s initial disclosure.

Parents confronted with disclosure of an allegation of inappropriate sexual contact often embark upon a clear, determined, and emotional quest for detail about the circumstances and in particular, the extent of the sexual contact. While there is obviously no single way for a disclosure parent to react to such a horrifying circumstance, this is often an almost natural impulse for most parents in my experience in the criminal justice system. Most parents would be focused on the extent of any inappropriate conduct and the perpetrator.

For example, if the child discloses penetration, access to medical care would be an immediate focus. [ 38 ] The complainant’s mother testified to a highly attuned and cautious approach to her daughter’s disclosure grounded in a concern about the immediate risk of influence on the complainant. This witness testified that she was alive to the issue of contamination and undue influence immediately (e.g., not pressing for further details when the complainant became slightly upset). [ 39 ] The complainant’s mother is not an investigator, police officer, or someone with investigatory experience.

Even prior to any initial contact with the police, this witness expressed a self-imposed investigatory approach to her child’s disclosure. That she was so attuned to these issues is a curious feature of this case. That she was content to prioritize her highly evolved concern about contaminating a police investigation over a detailed and specific understanding of what happened to her daughter was a curious and unusual feature of her evidence. 4.

The “ordinary approach” to issues involving the complainant [ 40 ] All children lie, misbehave, and seek to deceive their parents sourced, perhaps, in the narcissism associated with total dependency

on caregivers. The complainant was no exception. I did not credit the Defence cross-examination around the complainant telling lies to her parents and then forgetting the fact that she had lied. This nuanced general cross-examination theme was lost on the complainant. [ 41 ] What is important is the approach that the complainant’s caregivers took to circumstances where there was an issue with the complainant’s behaviour.

Notwithstanding the marital circumstances, it is clear that the ordinary approach of the complainant’s mother and father was to discuss the circumstances and the merit of any issue involving the complainant. For example, if the complainant related something that happened when her father had custody, the parents would speak before determining the appropriate response and potentially involve others such as the grandparents. The complainant’s caregivers would engage in cooperative collaborative investigatory measures.

This is not surprising, and would perhaps be expected, from responsible caregivers. [ 42 ] In the circumstances of the complainant’s initial disclosure, her mother testified to an approach that involved seeking additional information and understanding. Notwithstanding this testimonial stance, the complainant’s mother did not speak to the complainant’s father or anyone on his side of the family. Rather, she spoke to her boyfriend, her mother, and her father about the allegations. The complainant’s father was kept completely in the dark about the circumstances until the arrest of the defendant.

The complainant explained her approach as sourced in a concern that the complainant’s father would exert some undue influence on the complainant. [ 43 ] It is important that the complainant’s mother presumptively took this approach rather than following the traditional approach to issues involving the complainant. It is also important that this witness testified that she initially scoffed at the allegations. A search for further information and initial disbelief would tend to lead the complainant’s mother to the collaborative consultative approach – the “ordinary approach”.

But this approach was not followed because of a stated concern about undue influence. On the record at trial, there was no specific evidentiary basis relied on by the complainant to draw the presumptive conclusion that she needed to cut-off the complainant’s father from involvement or take protective measures insulating the complainant’s evidence. Once again, this was a fairly advanced investigatory stance from the complainant’s mother prior to the involvement of the specialized police officers. 5.

Response to cross-examination [ 44 ] The complainant’s mother presented extremely well as a witness during her direct-examination. She presented as intelligent, thoughtful, and clear. During cross-examination the complainant’s mother was less cooperative. She would not reasonably concede issues put to her unless or until confronted with proof. For example, she maintained that her relationship with her ex-partner was positive and would not even acknowledge that there was an acrimonious family dispute between her and her ex-partner until confronted with emails that plainly establish this circumstance.

She denied limiting contact between the complainant and her father between September 2 and September 7 when she clearly made such attempts. She testified that she had heightened concerns because a feature of the complainant’s disclosure involved a description of male genitalia inappropriate for the complainant’s age. She maintained this position until confronted with her prior communications to the contrary in her statement to the police and an email to the investigating police officer. [ 45 ] The constant theme from the complainant’s mother was denial until confronted with objective evidence.

On several occasions the complainant’s mother disputed factual suggestions made by Defence counsel only to concede the issue when presented with objective proof. After several demonstrations of this cycle, the complainant’s mother eventually began to agree with suggestions made by Defence counsel without follow-up proof. There were no such difficulties in direct examination when the Crown asked questions. When Defence counsel asked questions, grudging concessions predominated. [ 46 ] This testimonial capacity on the part of the complainant’s mother showed intelligence and insight.

It also betrayed a malleable perception of events until confronted with the illuminating light of cross-examination. 6. The family court deadline. [ 47 ] The inescapable objective reality is that the complainant’s disclosure was elicited on the family court deadline -- September 2.

Separate and apart from the concern inherent in this alignment, I have further concerns because I do not believe the complainant’s mother’s testimony that she was ignorant of the impending deadline. [ 48 ] Defence counsel put to her the flurry of family lawyer letters going back and forth over family law issues and text communications between this witness and her ex-partner. This record firmly establishes that the complainant’s parents were engaged in back and forth communications leading up to the deadline as were the lawyers for each side.

The bare circumstances support the finding that the complainant’s mother clearly knew the impending deadline. One of her communications arguably documents her explicit awareness. [ 49 ] This claim of ignorance was difficult to accept.

Particularly so, coming on the heels of her unwillingness to concede that she was even generally aware of the general prospect of litigation until confronted with an August 31 electronic communication. [ 50 ] Instead of simply acknowledging these circumstances, the complainant’s mother testified that she had no knowledge of the deadline, the general prospect of ligation, and then finally, incredibly in my view, that her family law lawyer had not shared important correspondence and information with her.

The complainant’s father freely admitted these circumstances and did not engage in any subterfuge (on this issue). [ 51 ] While no evidence was called from the legal counsel dealing with the family law issues I am at least entitled to question whether it is true that a professional lawyer failed to keep the complainant’s mother abreast of important legal developments. The objective truth is that litigation was in the offing and all parties were aware of this circumstance. [ 52 ] Why these machinations on the part of the complainant’s mother?

She was clearly attempting to diminish the temporal connection between the family law deadlines and the complainant’s disclosure. That intelligent effort concerned me. 7. The complainant’s day-care and school

[ 53 ] In a similar vein, the complainant’s mother downplayed her efforts to change the complainant’s school and daycare arrangements until confronted with text communications clearly indicative of her concern and involvement in such efforts. It is clear that she was also concerned about these issues and would not readily admit this fact. 8. 50/50 Access [ 54 ] The complainant’s mother refused to acknowledge that she was aware that the complainant’s father was pursuing 50-50 access to his daughter as early as the spring of 2014. She also testified that his motivation was purely financial.

Finally, she would not endorse a suggestion that she had financial concerns associated with the custodial arrangements. All of these positions fell away during cross- examination when she was confronted, again and again, with her own communications. 9. Motive to fabricate [ 55 ] The Defence position is that the complainant’s mother manifests a motive to fabricate. The Crown argues that there is no such motive. On all of the evidence, I find that there are that there were powerful motives for the complainant’s mother to fabricate evidence. 10.

Conclusion: Credibility and reliability of the complainant’s mother [ 56 ] In conclusion, the general circumstances surrounding the family law dispute with her ex-partner caused this court to be alert to animus and bias against her ex-partner and his family.

Her testimonial performance supported the concern. [ 57 ] Defence counsel argues that either the complainant’s mother completely fabricated the allegations or the complainant’s mother took something the complainant actually said that was a bit odd, and interpreted that disclosure in a manner that fuelled the police investigation and charge. [ 58 ] There is no question in my mind that the complainant’s mother cares for her daughter and I am satisfied that the marital circumstances were very trying times.

While I cannot conclusively determine the twin assertions made by Defence counsel, I cannot disabuse my mind of the doubt and concern implied by these circumstances. Furthermore, the timing of the allegations, coming when there was an impending family law deadline, is gravely concerning. The contortions exhibited by the complainant’s mother during her testimony are concerning. [ 59 ] In the final analysis I generally accept the evidence of the complainant at its core. But I am concerned about the complainant’s mother and her integral role in the timing of disclosure and her role in the

interpretation and ultimate acquisition of the allegations. These circumstances negatively impact the foundational support for the complainant’s testimony in support of the criminal standard of proof. C. The Credibility and Reliability of the Complainant’s Father [ 60 ] The defendant called his son, the complainant’s father, as a witness at trial. This witness also merited a caution given my overall credibility and reliability assessment. 1. Background [ 61 ] The evidence of this witness was important on the following issues: 1. The general background information around the co-parenting of the complainant; 2.

The evolution of the Family Court issues culminating in the September 2 deadline; 3. The complainant’s susceptibility to influence; and, 4. The surreptitious recording of the complainant produced by her father. [ 62 ] By way of background, the complainant’s father found out about the allegations on September 7. He was testified that he was floored by the allegations and immediately suspicious of the timing of the allegations given the impending family law deadline. On September 9 he took custody of the complainant for his normal access on the weekend.

He testified that the complainant was apologetic, that “mommy made me say it”, and that the police gave her a police badge. Thereafter the complainant’s father says that the complainant communicated that she wanted to tell the police that “mommy touched her bum” and that she wanted her mother to die so she could spend more time with him. [ 63 ] The Court approached the evidence of the complainant’s father with caution for several reasons. First, similar to the approach to the complainant’s mother, the court exercised inherent caution given the family law circumstances and the evident animus.

Certainly, this witness was unsatisfied with the status quo at the time and was gearing up for litigation. Second, the allegation concerned this witness’ father. This witness was susceptible to bias -- objectively speaking. Finally, it is the bare circumstances of the surreptitious recording of his daughter which is deserving of significant concern as it relates to credibility and reliability. 2. Co-parenting [ 64 ] The complainant’s father was forthright about the acrimonious and difficult family law circumstances involving his ex-partner.

Unlike the complainant’s mother, he did not attempt to portray himself in any particular light and easily acknowledged the difficult

circumstances. I generally accept his recount of the dynamic of the marital circumstances and prefer his evidence on this issue to the halting calculated evidence of the complainant’s mother. 3. Family law deadline [ 65 ] I also accept his evidence about the evolution of the family law circumstances and the deadlines of August 31 and September 2. His evidence is supported by the evidentiary record placed before the court that was used by Defence counsel to impeach the complainant’s mother.

His evidence was in line with that record and I believe his testimony that the deadline was being discussed with the complainant’s mother and it was notorious. 4. The complainant’s susceptibility to influence [ 66 ] I have explained my approach to this issue earlier in this judgment. I accept this witness’ straightforward acknowledgement that the complainant was indeed subject to influence. The complainant’s father gave examples of how easily, and not surprisingly, a five- year-old child may be influenced. This is not earth-shattering controversial evidence.

Unlike the complainant’s mother, he did not attempt to present a defensive approach to this issue notwithstanding the obvious relevance to the concern that he had unduly influenced the complainant prior to pressing the record button on his recording device. 5. The recording [ 67 ] With respect to the captured recording, this is the penultimate factor with respect to the complainant’s father. I found his evidence to be very concerning on this issue. [ 68 ] In the final throes of cross-examination of the complainant, Defence counsel, Mr.

Weisberg, dramatically played a recording of the complainant made by her father a few weeks after the allegations were made. The evidence at trial establishes that the complainant’s father, while tucking his five-year-old daughter into bed at night, had the presence of mind to surreptitiously record a night-time conversation. It was a startling and concerning revelation at trial. Such conduct would cause any reasonably sensible person to be cautious with the evidence of a father capable of this type of conduct. [ 69 ] There are a number of concerns with this evidence.

First of all, that he would surreptitiously record his five-year-old daughter, in the safety and security of her bedroom, as he gently tucked her, is illuminating of his character. Second, the captured conversation is not complete, portions are inaudible, and the full context of any discussions unclear. Third, speaking of the ability to influence, whether or not the complainant’s father primed this conversation in some manner is also unclear. [ 70 ] This witness testified that by Thanksgiving weekend, October 2016, the complainant was continually communicating with him her changed stance about the allegations.

He testified that he did not have a pre-existing plan to record her but made a split-second decision based on the repeated nature of the statements made by his daughter. While he testified that there were countless circumstances where the complainant recanted her allegations in a more complete fashion, it is curious that what is available is one slender recording – a recording that does not fully address the allegations nor corroborate his testimony. [ 71 ] The complainant’s father did not disclose the recording to the police, the CAS, or the complainant’s mother.

His self-interest governed his conduct on this issue. He was worried about how his actions would be perceived in the family court proceedings. His primary focus was his own interests. Not his daughters. Ironically, not even the interests of his own father prevailed. Had his father’s interests been at the forefront, I am convinced he would have done more to try to relieve his elderly father and family from the ongoing burden associated with a criminal allegation. 6. Motive to fabricate [ 72 ] The Defence argues that there is no convincing evidence of a motive to fabricate on the part of the complainant’s father.

The Crown asserts that the complainant’s father exhibited bias in his conduct and argues that the Court should infer that he influenced his daughter in relation to the recording. I am satisfied that the complainant’s father was biased and possessed a motive to fabricate evidence given the allegations against his father. 7.

Conclusion: Credibility and reliability of the complainant’s father [ 73 ] As much as there are solid reasons to be concerned about the credibility and reliability of the complainant’s father, there are aspects of his testimony that I endorse. [ 74 ] I believe he told the truth about his interaction with the CAS worker. The CAS worker had formed an immovable opinion in his eyes. That he claimed a lack of confidence in the CAS worker makes sense given his evidence. The CAS worker did not testify. Probably her evidence was collateral or inadmissible on point.

But what remains is a least some support for his personal view that the CAS worker was not objective or responsive to his concerns. [ 75 ] In a similar vein, I understand why he didn’t turn it over to the complainant’s mother. Given the status of their relationship it is easy to see that this recording would have added fuel to the fire. In any event, I accept his selfish concern about how the recording would make him look in the family court proceedings. [ 76 ] Finally, I can understand why this witness resorted to turning the recording over to Mr. Weisberg given his role as Defence counsel.

The approach to the use of the recording after that step is submerged in solicitor-client privilege and not the proper focus of this Court. [ 77 ] I do not accept the complainant’s father’s evidence about Detective Hancock. He says that when he called the detective to

communicate the fact of the complainant’s recantation the detective basically told him that the investigation was closed and it was in the court’s hands. I sincerely doubt that recount. Any professional detective would be keenly interested in the suggestion that there exists an audio recording of a complainant recanting extremely serious allegations. Detective Hancock would have been duty bound to objectively investigate such a circumstance. From the evidentiary record I have I can see the professional manner in which Detective Hancock approached the interview with the complainant.

I don’t believe the complainant’s father explicitly told Detective Hancock about the substance of the recording, even in the absence of testimony from the detective. [ 78 ] In the balance, there is some meagre credit to accord the complainant’s father. He had the decency, upon reflection, to explicitly acknowledge how ashamed he was of his conduct in surreptitiously recording his child. He was straightforward about the dynamic between the complainant’s mother and his side of the family.

While his credibility is suspect, the issues with his credibility do not cause me to categorically reject the recording as a fabrication. Thus, I am obligated to assess the probative value of the recording as a piece of real evidence. D. The Recording [ 79 ] There is no avoiding the fact that the recording is a troubling and concerning piece of evidence. While the context is incomplete and some portions are inaudible I am able to clearly hear some of the content. I find that the complainant said “… that’s what I’m going to say to mommy, that I was just joking.

And then I am gonna tell police that, that, that, that mommy said it ”. I find that the context of the discussion concerns her grandfather. [ 80 ] The Crown argues that implicit in the content of the recording is an acknowledgement by the complainant that her allegations about her grandfather are true. By offering to recant, at the instance of her father, logically, she was confirming that her allegations were true.

The Crown also argues that the recording evidences the obvious undue influence of her father and the recording should receive little weight. [ 81 ] Notwithstanding the strength of the Crown argument on this issue, I confess that I cannot entirely remove the recording from consideration as it pertains to the credibility and reliability of the complainant. [ 82 ] The complainant was age six at the time of the recording. I find that the recording demonstrates the complainant suggesting to her father that she make up an allegation that her mother induced her to make the allegation against her grandfather.

It also demonstrates the complainant’s reference to a plan to tell her mother that she was just joking about the allegations concerning her grandfather. Even if the complainant is perceived as truthful about the allegations against her grandfather, the recording demonstrates her aptitude to say something untrue to achieve a desired outcome. It also shows the complainant’s willingness to make a false allegation against her mother. [ 83 ] Immediately prior to playing the recording to the complainant during cross-examination Defence counsel put the substance of the content to her.

She did not have any memory of saying such things to her father. After the recording was played, the complainant still claimed no memory. Furthermore, the complainant would not adopt the recording when asked by Defence counsel. When the Court intervened to clarify, she only acknowledged hearing her father’s voice on the recording. [ 84 ] Clearly the complainant was caught off-guard by the recording. Most adults would have been caught off guard as well. In my view she had the capacity recognize the voices on the recording.

Indeed, upon urging by the court she acknowledged her father’s voice minutes after claiming not to recognize any of the voices on the recording. Parts of the recording are clear and there is sufficient content for the complainant to recognize the voices in my view. I find this evidence concerning because the complainant was old enough, by the time of trial, to recognize that what she said on the recording was a problem. [ 85 ] Given the complainant’s approach to this evidence, I do not have the benefit of her perspective about the context and circumstances surrounding the production of the recording.

The Crown argues that there is sufficient concern about the credibility of the complainant’s father such that the Court should infer that he improperly influenced the complainant. Given the tattered credibility of the complainant’s father this submission is understandable. But the Crown’s submission (draw an inference) properly recognizes that there is no direct evidence on this issue from the complainant. The complainant did not testify at any point during this trial that her father influenced her, suggested information to her, or otherwise interfered with her articulation of the allegations.

As such, I am left with the recording and the evidence of the complainant’s father that he did not inappropriately interfere. For these reasons, I do not endorse the Crown argument. I do not find that this recording is an additional piece of evidence augmenting the credibility of the child complainant. [ 86 ] Whatever one might think about a father surreptitiously recording his five-year-old daughter as he tucks her into bed at night, the complainant’s response to this recording impacted her credibility. E.

The Counselling Records [ 87 ] There is a clear inconsistency in the reliable counselling records obtained from the complainant’s counsellor. The complainant testified at trial that she had not seen a male penis prior to the circumstances involving her grandfather.

She resisted even suggestions that she might have possibly seen a male penis in innocent circumstances such as walking in on her father in the bathroom. [ 88 ] The counselling record details that the complainant told her counsellor that she had seen her grandfather’s penis on prior occasions (occasions not associated with the abuse at issue) and felt he was playing a game.

I find that this evidence is available as a prior inconsistent statement. [ 89 ] The spectacle of the defendant displaying his penis to his granddaughter during other incidents not within the four corners of the allegations before the court was not explored during the trial. Absent a prior discreditable conduct application, I have disabused my mind of the obvious incriminatory power associated with this evidence.

F. Conclusion: External Factors [ 90 ] I am required to state my reasons clearly for the defendant, counsel, the record, and any reviewing court. It is not my intent to criticize or condemn the actions of the complainant’s parents as it relates to acrimonious family law proceedings. Nevertheless, these circumstances impacted the reliability of the complainant’s evidence because of the unique and peculiar circumstances. It is my duty to explain that impact. [ 91 ] Given my assessment of the credibility of the complainant’s mother, the timing of the disclosure is an obvious and serious concern. The involvement of the complainant’s mother in the disclosure and

interpretation of the statements made by the complainant is a factor I have considered. I have also explained how concerned I am about the credibility of the complainant’s father. Notwithstanding those concerns, I did not reject reliance on the recording. The counselling record contains material inconsistencies totally independent of the concerns associated with the motives and conduct of the complainant’s parents. [ 92 ] These factors impacted the reliability of the complainant’s evidence even when viewed with the particularized lens applicable to child witnesses.

This created a drag on the strength of the prosecution’s case. [ 93 ] With the impact of largely external factors addressed, I will turn to other factors more narrowly focused on the credibility and reliability of the complainant. VIII.Internal Factors Impacting the Strength of the Prosecution Case [ 94 ] The internal factors impacting the strength of the prosecution case focuses on the credibility and reliability of the complainant and in particular the following factors: 1. The impact of the recording; 2. Testimonial concerns raised by the complainant; 3.

Historical evidence of the complainant telling the truth or lies; 4. The description of peculiar sexual organs and acts; 5. Motive to fabricate; 6. Inconsistencies; and, 7. Demeanor. A. Credibility and Reliability of the Child Complainant [ 95 ] Defence counsel, in excellent written submissions, cites a multitude of circumstances impacting the credibility and reliability of the complainant. Notwithstanding this formidable presentation by counsel, having considered all of the evidence in this case, I generally accept the core allegation made by the complainant – that the defendant had sexual contact with her. 1.

The Recording [ 96 ] I have explained earlier in this judgment how the utterances made by the complainant on the recording and her testimonial response to this evidence in court impacted her credibility, even as a child witness. 2. Testimonial Concerns Raised by the Complainant [ 97 ] On several occasions the complainant displayed concern when testifying around who could hear her testimony. She was testifying from the CCTV room and could not observe persons in the body of the court. At other times the complainant displayed a concern about what the consequences of her answers would be.

For example, questioning about her mother’s new boyfriend, her cousin, or her counsellor provoked this response. [ 98 ] The Crown argues that the complainant was sensitive to this issue because of the circumstances surrounding the disclosure of her grandfather touching her. As a direct result of her disclosure, she no longer saw her grandfather and her time with her father was reduced.

Thus, the complainant was concerned about the impact of her testimony and whether it would impact her ability to see other individuals. [ 99 ] I tend to agree with the submission of the Crown, but I am also conflicted because this is frankly an evolved concern coming from an eight-year-old child witness. 3. The Complainant’s experience with not telling the truth to her parents [ 100 ] I did not find the cross-examination on this issue to be probative in the end. It is not surprising to hear that a child at times tells on truthful things to either or both parents.

It is not unusual to me that a child would have difficulty remembering long-term whether a lie or the truth was told. This is particularly so given the generalized nature of the cross on this issue. That the complainant testified to

the possibility that she could tell a lie and then not remember it is a lie has to be placed within this context and thereby receive theappropriate weight. 4. Description of peculiar sexual organs and acts [101] It is sometimes an important consideration that a young child is describing peculiar sexual acts or sexual organs that would tendto be outside the knowledge of the typical child: See R. v. Gagnon, 2006 SCC 17 , [2006] 1 S.C.R. 621. [102] In this case the weight attributed to this factor is diminished.

First of all, the Crown submitted that the prosecution was notrelying on such an inference given the evidentiary record in this case (a concession I agree with). The Crown argued that morecompelling were the physical actions observed and statements made by the complainant while describing the touching in her policevideo statement. Second, when observing the actions depicted by the complainant on video at the time when she was touching of hergenital area the specific hand motions are not necessarily or peculiarly associated with sexual acts.

The complainant suffered fromrashes and at times care-givers (including the defendant) would apply cream to address this circumstance. Her physical demonstrationobserved on video did not include actions singularly consistent with sexual touching. 5. Inconsistencies [103] Both the Crown and Defence focused on the issue of inconsistencies in the complainant’s evidence. I have carefully evaluated theevidentiary record and the helpful detailed submissions on this issue. I have marshaled the relevant case law guidance on how toapproach the evidence of children, my experience, and common sense in evaluating this issue.

I find that there are a number ofinconsistencies and some improbabilities within the four corners of the complainant’s evidence. Before addressing the issue ofinconsistencies it is important to recognize some general observations. [104] First of all it is not surprising nor unusual the child witnesses to be inconsistent. One expects inconsistencies from childwitnesses.

As explained earlier in this judgment, the focus must be on the material nature of the inconsistencies and the assessment ofthese inconsistencies in light of the evidence overall. [105] Second, I do not agree with the submission the Crown that Defence Counsel’s cross-examination was unfair. Both counsel dealtwith an extremely challenging witness with patience and professionalism. The cross-examination by Defence counsel was mild, friendly,and fair. It was not designed to trick or pressure the complainant in this case.

While the cross-examination was lengthy, the predominantcontributing cause to the length was the demeanour of the complainant. [106] Third, I will not address every single suggested inconsistency by Defence Counsel nor every response by the Crown. I believethat part of the explanation for some of the claimed inconsistencies involves nothing more complicated than the evolving narrativeinherent in an eight-year-old child articulating events that occurred when she was five-years-old.

By the time of trial, the complainanthad a more evolved vocabulary and potentially a greater ability to explain events. [107] Fourth, I find that the police statement was skilfully and fairly elicited by DC Hancock without resort to inappropriate leadingquestions. The detective also dealt with a challenging five-year-old complainant at the time of the police statement. There is no basis tocriticize the approach to questioning given the circumstances. At trial, the complainant was examined and cross-examined withunderstandable attention to detail.

The complainant explained during her testimony that she had not been asked some of the questionsbefore and this is another factor to consider when assessing asserted inconsistencies. [108] Finally, the vast majority of the catalogue of suggested inconsistencies and problems with the complainant’s evidence submittedby Defence counsel are answered by the recognition that a proper approach to the assessment of child witnesses provides an answer tomany of the concerns.

Balanced against these considerations is a recognition that weaknesses have to be addressed and the criminalburden of proof overall is not relaxed just because the complainant is a child. With these general observations in mind I will address theasserted inconsistences and credibility factors that I determined to be material.

a) The Bathroom Allegation [109] In the complainant’s police statement she explained that her grandfather touched her when they were brushing their teeth. [110] During cross-examination at trial the complainant disclosed for the first time that the defendant was sitting on the toilet with hispants down when they began touching each other’s private parts.

Furthermore, she also disclosed for the first time that the defendantwas helping her with the application of cream to her genital areas after she had performed a bowel movement. [111] It is significant that this evidence was not elicited during direct examination by the Crown and only surfaced during cross-examination. I am not required to be ignorant of the preparation of witnesses – particularly child witnesses. I know that the complainanthas had the opportunity to observe her statement to the police on several occasions.

I know that the Crown Attorney’s privilegedpreparation of witnesses at trial must give way to new disclosure. New disclosure around the particulars of the allegations would havebeen a keen concern on the part of the prosecution team had they surfaced. [112] I do not find that these particular circumstances are answered by the evolving vocabulary of a developing child. I have dismissedseveral of the submitted inconsistences from Defence counsel on that basis. These circumstances are too integral to dismiss in thatmanner.

b) The number of sexual touchings [113] The complainant was inconsistent with her police statement on the number of times she had touched her grandfather. At trial shetestified that she touched her grandfather once upstairs and twice downstairs. She then changed her evidence to twice. Then her

evidence evolved to suggest that the first time she touched the defendant he made her touch her and the second time she did it of her own volition.

c) Inconsistent disclosure to the complainant’s mother [ 114 ] The complainant’s mother testified that the complainant disclosed the defendant touched her on the basement couch while watching Dory. The complainant testified that she was painting when the touching in the basement commenced. The prior inconsistent statement to her mother on this issue was important.

d) Disclosure to the complainant’s father [ 115 ] The complainant testified that she told her father about what happened with grandpa and that it was the truth. The complainant’s father clearly testified that the complainant recanted on numerous occasions over months. Given my credibility assessment of the complainant’s father outlined in this judgment I do not accept his evidence on this point. I prefer the evidence of the complainant. I do not find a material inconsistency based on the evidence of her father.

e) Knowledge of Sexual Organs [ 116 ] The complainant testified that the incident involving the defendant was the first time that she had seen a penis and claimed not to clearly understand the difference between male and female genitalia. The complainant also testified that she had not seen the male penis by accident (e.g. walking in on her father in the bathroom). Finally, she denied telling her mother that grandpa’s penis was longer than mommies or daddies. She agreed that she had no point of comparison.

She testified that all boy penises are the same length. [ 117 ] The complainant’s mother and father both testified that the complainant had seen the male penis in more innocuous circumstances and she was aware generally of the difference between male and female genitalia. The complainant’s testimony was inconsistent with her prior statement to her mother about the length of the defendant’s penis. The complainant’s evidence was materially inconsistent with the evidence of her parents and the counseling record.

f) Parental Caution [ 118 ] I accept the evidence of both parents that prior to the incident involving the defendant both parents had addressed the subject matter of inappropriate touching and inappropriate exposure of “private parts”. It is also clear that the complainant was aware of a “child safety issue” game as per the evidence of her mother including an admonition to tell her parents if something inappropriate occurred. The complainant did not acknowledge this subject matter. I viewed this as a mild reliability concern balanced by a recognition that a five year old child might simply follow her grandfather’s request to keep a secret.

g) Prior Inconsistent Statement to the Counsellor [ 119 ] I have addressed the counselling record earlier in this judgement. I accept the counsellor’s record of what the complainant said as an accurate and objective record. The counsellor noted that the complainant said she saw her grandfather’s penis before when she was a baby, that she saw his penis all the time, and that she felt he was playing a game. At trial the complainant denied the substance of this reliable evidence. This was a material inconsistency and also impacted the weight of the complainant’s description of her grandfather’s sexual organs. 6.

Motive to Fabricate [ 120 ] The Defence generally alleges that the complainant had a motive to fabricate the allegations to increase the time she would have with her parents. The Crown submits that the complainant loved her grandfather and had no motive to fabricate the allegations against him. [ 121 ] On all of the evidence, this consideration is neutral. I do not find that the prosecution has proven the absence of a motive. I do not find that there was a motive to fabricate. The evidence is unclear in my mind.

The proper approach in such circumstances is the cautious analysis I have performed in this judgment. 7. Demeanor [ 122 ] At the time of the complainant’s police statement she was only five-years-old. By the time of trial, the complainant was eight- years-old. She testified from a remote room and had a support person present. [ 123 ] A significant feature of this trial involved the challenging demeanour presented by the complainant in this case. In arriving at this determination I have considered the evidence of the complainant’s mother and father, the submissions of counsel, and frankly my direct experience.

The complainant’s demeanour, even when viewed through the appropriate lens suitable for young witnesses, was concerning. The complainant presented a constant challenge and was at times uncontrollable as a witness. [ 124 ] The complainant vacillated between various presentations in court. Some examples include: • throwing a small squeeze toy around the CCTV room • laughing inappropriately, • speaking in a whisper, then speaking in a very loud voice alternatively

• yelling into the microphone when asked by the court to simply elevate volume of her voice • deliberately providing nonsensical or non-responsive answers with a laugh or smile suggestive of frivolity • refusing to sit in her chair • lying down on the floor or under the table • disappearing from view of the CCTV camera • moving away off-camera • refusing to follow the direction of the Court or counsel [ 125 ] The complainant was a challenging child witness even within the subset of child witnesses. Both counsel expended enormous reserves of patience and understanding in gently examining the complainant.

In my view, any reasonable review of the record must recognize this challenging environment in which counsel admirably conducted themselves.

There was nothing in the approach of either the Crown or the Defence that provoked this response from the complainant. [ 126 ] The Court had to utilize a number of tools in an attempt to address the demeanor of the complainant including: frequent breaks, asking for cooperation nicely, asked for cooperation sternly, redirecting the witness, indulging the witness, placating the witness; and even ignoring some of the witness’ outbursts. [ 127 ] In sum, this witness demonstrated an inability to focus for any meaningful length of time on the line of questioning by either counsel.

Some level of difficulty must be expected from any child witness. Court is a challenging environment. But the particular display in this case caused a mild credibility concern sourced in the fact that the complainant did not appear to take the courtroom environment or her role as a witness seriously. It is my confident belief that the complainant understood in a general sense that this was a serious endeavour. Her demeanour as a five-year-old during her statement with the police is understandable. It is not unusual for five- year-olds to act in such a manner.

But in my honest view, based on my life experience, there is a world of difference between a five- year-old in an eight-year-old in terms of development and maturity. I must honestly admit that I was troubled by the demeanour of the complainant. [ 128 ] The complainant apparent lack of sincerity and her apparent predominant concern about the consequences of her testimony were striking features of her testimony.

That the complainant did not want to be at court, and her narrow ability to focus for short time periods on the specifics of the allegations were neutral features in my view. [ 129 ] Given these considerations, it would be natural to grasp for some explanation for the complainant’s behaviour. There was no evidence adduced concerning possible explanations for this behavioral display (e.g. ADD/ ADHD) through her parents or through medical evidence. The complainant was at an age where I am confident that schools would be alert to such behaviour and possible causes.

As a result, the Court is left to assess this behaviour through the lens of the court’s experience in dealing with children as witnesses in the criminal justice system, the demeanor of the complainant, and the evidentiary record. My assessment of the complainant is that she was eight-years-old at the time of the trial. She was not a toddler. She was perfectly capable of understanding the seriousness of this proceeding. Her demeanour was not simply a manifestation of grave immaturity.

Quite the contrary, having absorbed days of her testimony and having watched her statement to the police she is frankly an intelligent young lady in my view. [ 130 ] In the final analysis, while demeanour is a limited consideration in the overall credibility analysis, it would be disingenuous to say that demeanor played no role in the overall credibility assessment. IX.

Conclusion [ 131 ] Despite a belief in the general nature of the allegations made by the complainant, I am driven to acquit the defendant because of the factors outlined that coalesce to erode the strength of the prosecution’s case. [ 132 ] The defendant is found not guilty. Released: XXX 0, 0000 Justice M. S. V. Felix