R. v. H.(D.), 2014 ONCJ 92

WARNING The court hearing this matter directs that the following notice be attached to the file: This is a case under the Youth Criminal Justice Act and is subject to subsections 110(1) and 111(1) and

section 129 of the Act. These provisions read as follows: 110. Identity of offender not to be published. —

(1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act. . . . 111. Identity of victim or witness not to be published.—

(1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person. . . . 129. No subsequent disclosure.— No person who is given access to a record or to whom information is disclosed under this Act shall disclose that information to any person unless the disclosure is authorized under this Act.

Subsection 138(1) of the Youth Criminal Justice Act , which deals with the consequences of failure to comply with these provisions, states as follows: 138. Offences.—

(1) Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) . . . or

section 129 (no subsequent disclosure) . . . (

a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or (

b) is guilty of an offence punishable on

summary conviction. ONTARIO COURT OF JUSTICE sitting under the provisions of the Youth Criminal Justice Act , S.C. 2002, c. 1, as amended; Citation: R. v. H.(D.) , 2014 ONCJ 92 DATE: 2014·02·20 BETWEEN: HER MAJESTY THE QUEEN — AND — D. H., a young person Before Justice Marion Cohen Reasons for Judgment released on February 20, 2014 Amended: See Pages 14, 15 and 16 Ms. Jody Milstein ...................................................................... counsel for the Crown Mr. Jason Rabinovitch ................................................. counsel for the accused D. H.

COHEN: J.: [ 1 ] D. H. is charged that sometime between February 28, 1997, and February 27, 2002, he sexually assaulted and sexually interfered with L. H., [1] the complainant in this matter. The accused is her paternal cousin. On February 28, 1997, the complainant was 6 years of age and the accused was 13. Although the accused is charged with committing offences over a five year span, this Court has jurisdiction over him only until October 19, 2001, when he turned 18. At that time the complainant was about to turn 11. [ 2 ] This trial commenced on June 11, 2013. The accused pled not guilty to all of the charges.

Pursuant to sections 486.1 and 2 of the Criminal Code , for reasons delivered orally at the time, I permitted the complainant to testify from a remote location in this courthouse by closed circuit television, and to be accompanied by a support person from the Victim Witness Assistance Program. [ 3 ] The complainant, her mother and the accused were the only witnesses. There was no forensic or other extrinsic evidence, and the case turns on the credibility of the witnesses.

Because the alleged incidents are alleged to have occurred well over a decade ago, the reliability of the witnesses’ evidence is also in issue. [ 4 ] At the time of the trial, the complainant was twenty-two years of age. She is the mother of a young child, and is pursuing a diploma in business, banking and financing. The complainant was recently diagnosed with Crohn’s disease, and is undergoing treatment. She stated she has lost a great deal of weight, and her health is fragile. Because of her illness, she has had to temporarily suspend her studies. [ 5 ] The accused is now thirty years of age.

He has an advanced diploma in computer engineering, and is employed as an IT Help Desk Analyst. He has no criminal record. [ 6 ] I begin with a narrative of the events alleged to have transpired in this case. [ 7 ] At the time these charges arose, the complainant’s parents did not live together. From the time the complainant was an infant, she was taken to her father’s home, on weekends or alternate weekends, for overnight visits. The father lived with his mother, his sister, G., the accused, who is G.’s son, and G.’s new born infant, M..

The complainant testified that the incidents of sexual assault and sexual interference occurred during her weekend visits at the father’s home. [ 8 ] The father and his family occupied a two storey house. The complainant alleges she slept with the accused in his bedroom, and that the sexual assaults occurred in that bedroom. The accused denies that the complainant ever slept in his bedroom. Accordingly the sleeping arrangements in the house are relevant. [ 9 ] There is no dispute that the father, although rarely home, slept in the attic, which doubled as a storage space.

The second floor was occupied by tenants, with private facilities. The grandmother had a bedroom on the main floor, where the kitchen and living room were also located. The accused slept in the basement. There was a second room in the basement, as well as the only bathroom in the house available to the H. family, and the laundry room. [ 10 ] The complainant and the accused disagree about where G. and the baby slept. The accused states G. and M. slept in the second room in the basement. Although the complainant’s mother did not spend much time in the house, this was her recollection as well.

The complainant thought G. and the baby slept in a room on an upper floor, however she was inconsistent about which floor, and indeed, how many floors there were in the house. Her recollection was that the second room in the basement was being renovated, and was not habitable. Ultimately, the complainant acknowledged her uncertainty about the sleeping arrangements: “They were all over the place.

Like their house was just confusing.” As a question of reliability, on all of this evidence, I find it likely that the accused’s description of the living arrangements is the most accurate, that is, that G. and M. had a bedroom next to his. The mother corroborated the evidence of the accused on this point, and the complainant’s recollection, on her own evidence, was confused. [ 11 ] However, while the complainant was unclear about where some of the other people in the house slept, she was very clear about where she slept, and with whom.

She testified that while she sometimes slept with the grandmother, most of the time she slept in the accused’s bedroom, and in his bed. The accused stated categorically that the complainant never slept with him in his bed or in his room. He said the complainant occasionally slept with the grandmother, or she slept in G.’s room. The complainant stated that she did not sleep with the grandmother because of her habit of bed-wetting. It is undisputed that the complainant was a frequent bed-wetter, and that the problem continued until she was almost a teenager.

The mother was not there, and, trusting G., she made no inquiries about the sleeping arrangements. Neither the grandmother nor G. testified. Thus I am left with a contradiction between the accused and the complainant. What I will say at this point in the judgment, is that, in light of the bed-wetting problem, it is reasonably possible that the complainant was consigned to the accused’s bedroom to sleep.

The accused said he hung out in his bedroom, but the door was open. [ 12 ] Considering the time frame alleged, I find that despite the open door, the proximity of the next bedroom, and the lone bathroom down the hall, the accused had the opportunity to commit the offences alleged. [ 13 ] The complainant asserted a continuous pattern of sexual abuse by the accused, which included kissing, French kissing, touching her vagina, cunnilingus, analingus, fellatio, and failed attempts at penetration with his penis. Her descriptions of the sexual acts were specific and graphic.

She said the incidents would begin with kissing, touching, and rubbing. She said the accused would always take off her bottoms and leave on her top. She stated “He would go down on me …and will have a hard on.” She said he did not wear a condom and he did not ejaculate. She described the appearance of his erect penis and his testicles. She said he would call her “Baby”, and would treat her like a girlfriend.

The complainant stated she told the accused to stop and he wouldn’t stop. [ 14 ] The incident the complainant recounted with the most surrounding detail was the first - which she stated occurred when she was about six years old, (“probably 1997”), when she was “probably [in] senior kindergarten.” She stated that she and the accused were in his room watching television. They were on the accused’s bed. The door was open. She stated she was wearing a blue sleeper she

described as a “onesie”. “It’s like a body suit but my- it was open. Like the bottom was open.” It was a button up all the way. She stated that the accused “started taking it off, touching me in my vagina, started touching, rubbing and decided to kiss me which was a peck.” He kissed her on her lips, about twice but she did not specifically remember how many times. She stated that the onesie came off all the way. She stated she was wearing underwear and the accused removed her underwear. She stated he was “breathing really heavy because he has asthma.” She testified that the incident probably lasted 15 minutes.

The complainant stated that the grandmother’s male friend came down the basement stairs to use the bathroom, and the accused told the complainant to put her clothes back on. Her feeling was that she was going to get into trouble. [ 15 ] After this first incident, the complainant stated that “It just got worse and worse.” She said that every time the accused would try something new. She said the sexual acts occurred repeatedly, but gave inconsistent answers to questions about how many times she was sexually abused by the accused.

In her testimony in chief, she stated that she went to the accused’s home every second weekend, from ages 6 until 11, and that “It continuously happened every time I was there.” In her video statement to the police the complainant said it happened ten times. She stated that every time the accused was home, every time she slept in his room, it would happen – day or night - whenever she was alone with him, and he had the chance.

She stated it probably happened more than once in a day, and “probably thirty times.” When it was put to her, in cross examination, that over the numbers of weekends and years she stated the abuse occurred, it would have happened 120 times, she agreed that this was possible. [ 16 ] In her video statement to the police, and in her testimony, the complainant also gave wildly varying estimates of the frequency with which the various sex acts were performed by the accused.

She stated that after the first time, he “had me do a lot of stuff,” and that this happened “every time except the first time,” “almost every time,” “probably three or four times,” “two times,” “ten times”, and “random times throughout the years he was molesting me.” Ultimately she testified that she “lost track of how many times. It just happened repeatedly. I got used to it.” [ 17 ] The complainant stated that she did not tell her mother about the abuse until she was 11 years of age. She stated that she “kept it all bottled in. I never told anybody”. She stated she was embarrassed and disgusted.

The complainant stated she used to cry every time she was dropped off at the accused’s home, and that she would tell her mother she didn’t want to stay. [ 18 ] The complainant described the circumstances of her telling the mother she had been sexually abused by the accused. She stated she was 11. She stated her mother had been repeatedly asking her “What’s wrong with you?” and “Why do you keep doing this over and over?” She stated the questions were about the bed-wetting and the defecating and not about whether anyone had touched her.

She testified that she was frightened that she would be in trouble if she told her mother. She stated that her mother’s manner was frustrated, but not angry, and that her mother questioned her in a calm way. She denied that the mother ever suggested anything to her. Finally, in response to her mother’s questioning, she stated that, from what she could remember, she started to cry, and she said, “D is doing it to me.” The complainant said she did not give her mother any details. [ 19 ] The complainant stated that her mother gave her a hug and then called G., and then spoke to G., and to the accused, on the phone.

The complainant said she was able to hear the conversation because the phone was on speaker. She said that G. pleaded with her mother not to report the abuse, that she said her son was going to university, and that the mother was going to ruin his life. Then the accused came on the phone “… and he pleaded the same way, saying he was experimenting. He said ‘I was only experimenting. I’m so sorry.’” [ 20 ] The complainant recounted a litany of behaviour problems that preceded this disclosure. She stated she was always angry, lashing out, and blaming her mother.

She said she hated going to school, and she felt like an outcast at school. She said that because of her frequent moves she never really knew anybody at school, had no friends, and never went to sleepovers. She felt that no one really liked her . She used to defecate in her pants, smear her feces, and, from the age of three or four, she wet her bed. [ 21 ] The complainant’s mother corroborated much of this history, although she was uncertain about the complainant’s age when some of these behaviours began and ended. The mother stated that the complainant had her own room, but would never want to sleep alone.

She had difficulties in school. She had mood swings. The mother testified that the complainant would come in and sleep at the end of her bed until she was 15 or 16. [ 22 ] The mother did not, however, corroborate the complainant’s evidence that she cried when she had to go to her father’s house. She testified that the complainant gave her no reason to think anything was happening when she took her there. According to the mother, the complainant never resisted or cried, and seemed normal.

She described the complainant as being “outspoken,” and she stated she was shocked the complainant hadn’t told her about the abuse. [ 23 ] The mother described two incidents which caused her particular concern. She stated that, when the complainant was around eight, she used to crawl into the mother’s bed while she was sleeping, and would begin playing with her breast. At first the mother ignored the behaviour, but when the complainant was 9, she asked her why she was doing this. The complainant did not respond, but after the confrontation, the behaviour stopped.

The mother stated that, while the behaviour was inappropriate, she ignored it at the time because “I just thought it was something she was going through.” [ 24 ] The mother testified that the complainant was 11 when she had a concern she was being sexually assaulted. The mother described an incident involving the complainant and her step-sister J, who, she stated, was the complainant’s only friend outside of school. The mother went into the washroom and found the two girls lying on the floor under a blanket.

When the mother saw this, she felt something wrong was going on, that somebody had done something to her daughter. [ 25 ] Prior to this incident, the mother had been asking the complainant why she was defecating in her underwear. After the incident she began to ask the complainant whether anyone had touched her inappropriately, or done anything to her. She stressed that whatever happened was not the complainant’s fault, and that no one was going to get hurt. She described a conversation that lasted about half an hour, because the complainant would get emotional, and cry, and she would have to stop.

The complainant said nothing in response to her questions. Over the next six weeks the mother continued to question the complainant in the same way. Finally, after weeks of asking her, the complainant said “Yes, it happened”. The complainant said she didn’t want to get the person in trouble. The

mother asked her whether it was her step-brother, or the mother’s former boyfriend, but not if it was the accused because “…there ( sic ) family was the furthest thing from my mind”. She continued to ask for the name “and then the complainant said it was D. Then …she said to me that it was D, and I said D who? And she said it was D. I kept on saying D. who…G.’sD.? D.H.? I kept going on and on about it, and she said yes. And she started crying and she that ( sic ) he’s gonna get in trouble, and I said no, it’s ok-it’s ok, he’s not gonna get in trouble.

And then I picked up the phone…and I called and G. answered... [ 26 ] The mother recounted the conversation with G.. The mother said “Do you know what your son has done to my daughter?” She said “Your son molested my daughter,” and “Your son touched my daughter.” The mother said G. was “hyperventilating and she couldn’t breathe.” Her concerns were for her daughter, and her mother who was ill, and something about the accused’s university. The mother said she asked “Is he there?” and the accused came on the phone. She testified that she asked him “Why did you touch my daughter?

Did you touch my daughter?” and [ 27 ] He said to me “Yes I did it”. He said “I was just experimenting. You can send the police to come and pick me up, because I know what I did was wrong”. And I said, “If I was close to you I would friggin’ kill you!” She asked the accused how would he feel, and he said “A priest did it to him.” [ 28 ] The mother said she did not know where the complainant was when she was calling. The phone was not on speaker, but she stated that the complainant would have heard her repeat what was said.

She said she was not talking softly. [ 29 ] The mother did not immediately report the abuse to the police. She gave several explanations for this. She stated she didn’t feel she had enough information to go about calling the police, regardless of what the accused had told her over the phone. She stated that she consulted with a colleague at work and was discouraged from making the call because “It wasn’t enough.” Again her thought was that nothing would happen if she went to the police.

Finally, the mother testified that she did not pursue charges “because I thought it was family and you’re not just hurting one person –he already hurt her –so I’m not there to hurt anyone.” The mother said she did not hate the accused or G.. She thought the complainant, and the accused needed counseling, and she told this to G.. Afterwards, the mother tried to get help for the complainant, and she continued to communicate with G.. In her words “I tried to help Leah without having to… get him in trouble.

I thought that by talking to his mother we could get counseling to assist them all.” She said that, although G. agreed about the counselling, but to the mother’s knowledge, nothing happened. [ 30 ] Most extraordinary of all, the mother did not terminate her relations with G.. She continued to talk to her. She stated “I didn’t hate him…I hated what had happened and I … I’ve tried talking to his mom to try to come to something with L., also to help G.….We were still friends. In my eyes we were still friends.

I still kept in contact with her.” Similarly, she stated she did not discuss the phone call with the complainant because “These people are not strangers. And I don’t want – I didn’t want L. …to feel any hate to anyone…” [ 31 ] The mother testified that after the complainant’s initial disclosure she ensured that the complainant no longer went to the father’s house. She encouraged the complainant to go to counselling, and she did go once but refused to continue.

The mother stated that her theme was always that what happened was not the complainant’s fault. [ 32 ] The mother stated that she “asked and kept on asking” the complainant for details, but, for over ten years, the complainant did not tell her precisely what had happened. Then, just before they went to the police in January, 2012, the mother was in the washroom and the complainant walked in, stood in front of the mirror, and said “Do you want to know what D. did to me?” Then the complainant told the mother about some of the sexual abuse.

Shortly before the trial , she told her more. [ 33 ] The mother described the last time the complainant defecated in her underwear. The complainant was in grade 8. The mother held a birthday party at her home and invited the accused and his mother. She stated that she invited them because she continued to talk to G. as friends and she didn’t hold anything against her. She stated she didn’t think it would do any harm. She stated that on that day, after the party, the complainant defecated in her clothes, and smeared her feces all over the stairs.

That was the last time this happened. [ 34 ] The mother never took the complainant to the police. She stated she left it up to the complainant to “come forward to deal with this”. She stated the complainant talked about going to the police in December, 2011, but she testified that she did not know the complainant was following through. She only recalled the complainant speaking to the police in January. [ 35 ] The complainant stated she first gave a detailed account of what had occurred when she went to the police. She never told her father.

She stated she only directly told her mother what happened when she was diagnosed with Crohn’s disease shortly before the trial. She said she used to blame her mother for leaving her at the accused’s home. She thought her mother knew. She stated mother apologized to her so many times. [ 36 ] The complainant had great difficulty controlling her emotions as she testified. Her testimony was marked by repeated outbursts where she loudly accused and berated the complainant, as well as G. who was seated in the courtroom.

While she did not blame the accused for her illness, she described how unwell she was with Crohn’s disease, and how “the stress and anxiety and thinking about the incident and seeing the accused in court and seeing him defended are making [her] sick.” She stated she had dreams about the basement in her father’s house, and of being chased by a robot, and that these dreams had stopped after she reported the incident. Her manner was tormented. She stated that “…I feel so worthless…Like I feel disgusting. It’s embarrassing and it hurts so much.” [ 37 ] The accused testified.

He stated during the period in question he was a regular high school student, active in sports. In his spare time he played video games, did his homework, and prepared for university. He was a good student and on the honour roll. [ 38 ] The accused stated that he saw the complainant when she came to stay for a night or two on weekends. He acknowledged that his mother was friendly with the complainant’s mother. He stated that sometimes the complainant slept in the basement, but not with him. He stated he was an older cousin and was not interested in hanging out with the complainant.

He denied all the allegations of abuse. He also denied the existence of any phone conversation about the abuse with the complainant’s mother. He denied being together at family events, and he denied ever seeing the complainant again after she stopped coming to the house. He denied being at the birthday party.

[39] The defence argues that the evidence of the accused was straightforward and unshaken, and the fact that it amounts to asimple denial is not surprising in the face of allegations that are so dated, and that occurred over such a lengthy time span. In any event,the defence submits that even if I do not believe the accused, and am not left in doubt by his evidence, that I should be left with areasonable doubt by reason of significant deficiencies in the Crown’s case.

The defence argues that the court should have a significantconcern about the reliability of the evidence, given the absence of disclosure by the complainant for over five years, and then thepassage of ten years before the complaint was made to the police. [40] The defence submits there is a lack of detail in the complainant’s evidence, that she described the sexual acts generically, anddescribed little more than those acts. Further, he points to discrepancies between the complainant’s statements to the police and her oraltestimony.

For example, in her descriptions of the frequency with which the alleged sexual acts occurred. The defence also points toinconsistencies between the mother’s testimony and the complainant’s, for example, about whether she cried when she went to theaccused’s home, and whether she stopped going there at age 9 or age 11.

Finally, the defence argues the complainant’s highly emotionalmanner of testifying should not be found to strengthen an otherwise weak Crown case. [41] As a reason to fabricate, the defence asks me to infer that the complainant told her mother she was abused in order to stop themother’s persistent questions about why she was wetting her bed or defecating in her clothes, or to defend herself from the mother’sconcerns upon finding her under the blanket with J. [42] With regard to the most damaging piece of evidence, the telephone call in which his client allegedly admitted his guilt, thedefence relies on his client’s denial that the call occurred.

However he argues that the mother’s purported reasons for not pursuingcharges in the face of the alleged admission, were illogical and incredible. [43] There is some merit to some of the defence arguments. First of all, I agree with counsel’s characterization of the difficultiesof an accused defending himself against allegations of historical sexual assaults. It is therefore important to state that I begin with thepresumption of innocence. The burden is not on the accused to prove his innocence.

The burden is on the Crown to prove his guiltbeyond a reasonable doubt. [44] Secondly, I agree that the Court, in its assessment of credibility and reliability, should not over-value the weight to be givento the demeanour of a witness. [45] Finally, I agree that there were inconsistencies between some aspects of the complainant’s testimony and some aspects of themother’s, and between some aspects of what she told the police, and some aspects of what she told the court.

I also agree there weresome areas where the complainant and the mother were unable to recollect times or dates, or the complainant’s age, when somethinghappened. [46] This case involves an assessment of the credibility of all three witnesses. In arriving at my decision, I have applied the law inRegina v. W. (D.). First, if I believe the evidence of the accused, I must acquit.

Secondly, if I do not believe the testimony of the accused,but still have a reasonable doubt as to his guilt after considering his evidence in the context of the evidence as a whole, I must acquit.Third, even if I am not left in doubt by the evidence of the accused, I must ask myself whether, on the basis of the evidence which I doaccept, I am convinced beyond a reasonable doubt by that evidence of the guilt of the accused. [47] The accused has testified. He was not shaken on cross-examination, nor was he inconsistent.

I accept that an innocent person,facing the allegations in this case, which arose over a span of five years, and which were not reported for over a decade, may have littlemore to say than “I didn’t do it,” and “It didn’t happen.” A criminal trial is not a credibility contest between the versions of events givenby the complainant and by the accused. Here I refer to the decision of the Ontario Court of Appeal in R. v. A.P., 2013 ONCA 344, [2013] O.J. No. 2291, at paragraph 41, where the Court states As the Supreme Court of Canada held in R. v.

C.L.Y., 2008 SCC 2, [2008] 1 S.C.R. 5, at para. 8: [The purpose of the W.(D.) analysis] was to ensure that triers of fact -- judges or juries -- understand that the verdict should not be basedon a choice between the accused's and Crown's evidence, but on whether, based on the whole of the evidence, they are left with areasonable doubt as to the accused's guilt… ...

An approach that emphasizes having to decide whether to believe either the Crown's evidence or the defence's evidence neglects thethird alternative that while the trier of fact may not believe the accused, they may still be left with a reasonable doubt as to the guilt of theaccused on the whole of the evidence: see R. v. S.(W.D.), (SCC), [1994] 3 S.C.R. 521, at p. 532. [48] Nonetheless, having considered the evidence of the accused in light of this jurisprudence, I find I do not believe the accused,nor am I left in reasonable doubt by his testimony. I rely upon the reasoning in R. v.

J.J.R.D., (ON CA), [2006] O.J.No. 4749, where Mr. Justice Doherty says The trial judge rejected totally the appellant's denial because stacked beside A.D.'s evidence and the evidence concerning the diary, theappellant's evidence, despite the absence of any obvious flaws in it, did not leave the trial judge with a reasonable doubt.

An outrightrejection of an accused's evidence based on a considered and reasoned acceptance beyond a reasonable doubt of the truth of conflictingcredible evidence is as much an explanation for the rejection of an accused's evidence as is a rejection based on a problem identified withthe way the accused testified or the substance of the accused's evidence. [49] I turn now to the evidence of the complainant. [50] As I have indicated, the complainant was between the ages of six and eleven, when the offences are alleged to have occurred.In assessing her credibility, and in considering the effect of her age on her ability to recall details, I find the reasoning of JusticeMcLachlin in R v.

W.(R.) [2] to be apposite:

Since children may experience the world differently from adults, it is hardly surprising that details important to adults, like time and place, may be missing from their recollection. [ 51 ] Similarly, since the complainant was twenty-two at the time she testified, in assessing her credibility as an adult, I have also relied upon the following: … Every person giving testimony in court, of whatever age, is an individual, whose credibility and evidence must be assessed by reference to criteria appropriate to her mental development, understanding and ability to communicate. But I would add this.

In general, where an adult is testifying as to events which occurred when she was a child, her credibility should be assessed according to criteria applicable to her as an adult witness.

Yet with regard to her evidence pertaining to events which occurred in childhood, the presence of inconsistencies, particularly as to peripheral matters such as time and location, should be considered in the context of the age of the witness at the time of the events to which she is testifying . (emphasis mine) [ 52 ] In this case, I have construed “the context of the age of the witness” to include not only the age of the child, simpliciter , but also the circumstances of the child which were reasonably likely to have impacted her recollection of events.

Thus, I have found it relevant that this child was subjected to many moves in her early years, and to many new schools, that her behaviour at school was difficult, she had few friends, and that her mother, although loving and supportive, held down two jobs, worked six days a week, and was raising two children. She was a child who was sent to a relative’s home on weekends to see a father who was often not there, an aunt with a new born child, a grandmother whose presence seemed remote in her life, and an older cousin who purportedly wanted little to do with her.

She was also a child who wet her bed until she was a teenager, who slept at the foot of her mother’s bed until she was fifteen, and who repeatedly defecated in her pants. Why would one expect that this child, between the ages of 6 and 9, or 6 and 11, would know, with certainty, where all the adults are sleeping in a crowded house?

Why would one conclude her evidence was unreliable because she remembers crying when her mother dropped her off at her cousin’s house, while her mother thought she “seemed o.k.” with it, and “completely normal.” And why would one expect this young child, who on her evidence, was being repeatedly sexually violated for years, to know, with certitude, the exact number of times these events happened, and the exact way they happened, on each and every occasion? The adult witness, recalling her impressions as a child, testified she “lost track of how many times.

It just happened repeatedly. [She] got used to it.” I find these statements credible and explanatory. [ 53 ] The fact that the witness gave inconsistent or confused testimony on peripheral matters did not affect my acceptance of her evidence in relation to the central events she testified to: what happened the first time, what kinds of sexual acts were performed, how they were performed, how the accused behaved, what details she remembered that were not contradicted in the accused’s evidence.

On the material points, her evidence was consistent and unshaken. [ 54 ] In addition, I do not agree with the defence contention that the absence of details is a reason to disbelieve the complainant. In my view there was not an absence of details. While I choose not to reproduce the graphic descriptions in this judgment, the record will bear out repeated instances in which the complainant described with detail the sexual acts perpetrated by the accused. [ 55 ] Furthermore, I cannot ignore the complainant’s demeanour in testifying- her anger and her torment.

I am cautious about concluding ipso facto that her current suffering stems from what she says was done to her as a child. It would be a reasonable inference, but the inference cannot be decisive. I have taken it into account. Other inferences are possible. However, her demeanour is a factor to be weighed with other factors.

I have applied a similar reasoning to the difficulties the complainant experienced as a child, difficulties which were occurring during the time in question, and which were corroborated by her mother: the sexual acting out, the anger and behavioural issues at school, the soiling and the bed-wetting. From this evidence of disturbing behaviour and acting out, one could draw an inference that the child might have been experiencing abuse. The mother did, eventually, draw that inference. Yet other inferences are possible.

In this context the history is a factor to be weighed in assessing the complainant’s credibility, and I have taken it into account. [ 56 ] Clearly, reliability is an issue in historic sexual assault cases, but, in this case, taking into account the age of the complainant at the time she says the events occurred, I find she was able to “observe, recall and recount the events at issue” [3] with sufficient particularity. Of course reliability is not just about particularity.

A trier of fact must be cautious about relying upon adult memories of childhood impressions, [4] because Memories become increasingly frail over time. Evidence that might have existed had the matter been dealt with earlier may have disappeared. Or it may become contaminated. Life experiences can colour and distort the memory of what occurred. [5] [ 57 ] The issue of reliability, and potential contamination of evidence, leads me to the evidence of the mother. The mother was not an eye witness, but she was an important witness.

She, like the complainant, was, vague or inconsistent on some details in her testimony, including dates of events, and the age of the complainant when particular incidents occurred. Nonetheless I found her a credible and reliable witness on material issues.

She and the complainant were roughly consistent about the general history of the complainant’s visits to the accused’s home, about the complainant’s difficulties, including the bed-wetting and the soiling, and about the circumstances of the complainant’s disclosure, and the steps she did and did not take as a consequence. [ 58 ] There was, in my view, no evidence that the mother’s questions had tainted, or contaminated, the complainant’s evidence. According to the complainant, she told no one about the details of the assaults until she spoke to the police.

According to the mother, the complainant only told her some, and then more details, many years after the events were alleged to have taken place. Although the

complainant, and the mother, acknowledged the mother’s repeated questions about whether something had happened to cause herconcerning behaviours, the complainant denied that the mother made any suggestions to her. The complainant spoke about the calm wayin which her mother had questioned her, and the mother indeed presented as a calm and thoughtful witness. The mother’s inaction afterthe disclosure, and the admission, is consistent not only with her lack of animus towards the accused, but also with the complainant’sstatement that she gave her mother no details.

The complainant’s statement, and the accused’s admission, were general. The mother didnot really know what had been done to her daughter. Considering the mother’s disposition, her patience, her lack of animus, and theaccounts given by the mother and the complainant respecting the disclosure, I did not find the complainant had a motive to fabricate. [59] In this case there is confirmatory evidence to support the complainant’s evidence. As I have noted, when the complainantstated she had been abused by the accused, the mother immediately telephoned G..

The mother had not suspected that the accused wasguilty of any wrong-doing. Her reaction to the complainant’s disclosure was immediate and spontaneous. In the ensuing conversation,the accused admitted his guilt to the complainant’s mother. At trial the accused denied that the phone call had taken place, yet there wasnothing in the evidence to suggest why the mother would fabricate this evidence.

Indeed, despite the fact that she believed what herdaughter had told her, and despite the accused’s admission of guilt on the phone, the mother did not report the abuse to the police. [60] It was the mother’s extraordinary lack of animus towards the accused and his family, that underscored for me the credibilityof her account of the phone call to G. and the accused. The mother wanted the accused, and her daughter, to take counselling. Shecontinued to talk with G. as a friend, despite the fact that to her knowledge no counselling took place.

She continued to regard theaccused’s mother, and the accused himself, as “family.” The mother said she hated what had happened, but she did not hate the accused,and she did not want the complainant to be full of hatred. I find nothing illogical or incredible about this testimony, as defence counselcontended. She left the decision to go to the police up to the complainant, and eventually the complainant chose to go. [61] As is apparent, I do not accept the accused’s denial of the phone call or its contents. I accept the mother’s evidence.

Theevidence is confirmatory of the complainant’s evidence that she was sexually abused by the accused. [62] In the result, on the basis of the evidence which I do accept, I am satisfied beyond a reasonable doubt that the accused isguilty, and I find him guilty on all three charges. Released: February 20, 2014. ____________________________ Signed: “Justice Marion Cohen” [3] R v H.P.S.2012 ONCA 117 , [2012] O.J. No.748 (Ont. C.A.) [5] R v H.P.S.2012 ONCA 117 , [2012] O.J No.748 (Ont. C.A.) at par. 38