R. v. A.R.A., 2023 ONCJ 420

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

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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (

a) any of the following offences: (

i) an offence under

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

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

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

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

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

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

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

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

summary conviction. ONTARIO COURT OF JUSTICE CITATION: R. v. A.R.A., 2023 ONCJ 420 DATE: 2023 09 29 COURT FILE No.: Toronto Region 4810-998-21-45001923-00 BETWEEN: HIS MAJESTY THE KING — AND — A.R.A. Before Justice Christine Mainville Heard on April 18, 19, 21, May 10, 11, June 14 and August 17, 2023 Reasons for Judgment released on September 29, 2023

Paul M. Alexander.............................................................................. counsel for the Crown Sourena Sarbazevatan.................................................................. counsel for the accused Mainville J.: [ 1 ] Mr. A. is charged with several counts of sexual interference, sexual exploitation, sexual assault and invitation to sexual touching in respect of his two nieces, who are also sisters.

The sisters were respectively 19 and 22 years old at the time of testifying in relation to events having occurred when they were between the ages of approximately 12 to 14, and 15 to 17 respectively. Given that the sisters have the same initials, I will refer to them respectively as R.O. and R.A., or as the younger (R.O.) and elder (R.A.) sister. Overview of Allegations Allegations relating to the younger sister R.O. [ 2 ] R.O. alleges various instances of sexual touching at the hands of Mr. A., such as sneakily touching her chest and buttocks over her clothes during family gatherings or when they were alone. Mr.

A. is specifically charged with having sexually touched her, as a young person, with his hand between May and December 2015. I will refer to these incidents as “opportunistic touching ” . [ 3 ] She further states that in the summer, when her uncle and his family were moving from the 8 th floor of their then-building to the ground floor of another nearby building, he tried to kiss her as she was helping with the move (the moving incident).

This count is charged as having occurred between January 1 and December 31, 2017, but the evidence revealed that this would rather have occurred in the summer of 2016. [ 4 ] R.O. further testified that in March of 2017, at her aunt S.H.’s apartment, her uncle grabbed her forearm in what she believed was an attempt to drag her to the bedroom, and she began having a panic attack (the arm-grab incident). There was some evidence that Mr. A. was present for this reaction.

Her aunt S.H. eventually attended to her and no further touching occurred. [ 5 ] Finally, R.O. testified to an incident that would have occurred later in 2017 (specifically, after April 2017 and before 2018) in Mr. A.’s apartment, which at that point in time was on the 14 th floor, back at the previous address where the accused and his family had returned. On this occasion, Mr. A. forced her to touch his penis under his pants, while sitting on the couch in the living room (the penis incident). R.O.’s then six-year-old cousin, and Mr. A’s son, was present on this occasion.

Allegations relating to the elder sister R.A. [ 6 ] The elder sister also testified to numerous occurrences of unwanted and opportunistic touching that would have taken place after her uncle moved to Canada in May of 2015, and prior to her aunt L. becoming aware of allegations of unwanted touching sometime in 2017. [ 7 ] R.A. indicated that Mr. A. would try to grab or rub her thighs and breasts in the car or during family visits, when no one was around to see. He would also try to touch her private parts – her vagina – many times.

She indicated that this touching would happen above her clothes if it was to happen quickly, but he would try to touch her under her clothes if they were alone for a long time. [ 8 ] R.A. did not recall any specific time when they were alone in the home as there were always people around, especially at her house. She stated that there were fewer people around at his home. R.A. testified that most incidents took place in Mr. A.’s car.

She would be asked to accompany him or he would give her rides at her mom or her aunt’s request. [ 9 ] She testified that she once drove with him to Vaughan Mills mall at her aunt’s request, so that she would serve as interpreter to buy a stroller given her uncle’s lack of proficiency in English. In the mall parking lot, he quickly attempted to grab her breast, but this incident did not last long given the location. She said “no”, pushed him off, then they got out to go to the mall. [ 10 ] R.A. testified that Mr.

A. would also sometimes show up in his car when she was out and walking, especially to Fairview Mall, and offer to drive her home. She testified that he sometimes tried to reach over to her while he was driving, and she was seated in the passenger seat. Her aunt – Mr. A’s wife – was occasionally seated in the back seat with her baby cousin.

She would push his hand away on these occasions. [ 11 ] R.A. more specifically recalled the following four incidents, all of which would have occurred fairly close together in 2017, according to the evidence adduced as part of her police statement. [ 12 ] First, based on a Snapchat photo she took of a beverage she bought at Starbucks, she points to August 8, 2017, as an occasion on which Mr. A. pulled into an empty parking lot, parked the car, and tried to grab her breasts and touch her thighs (the “same as usual”, as she stated). He asked her to kiss his penis or put her mouth on it once.

She was fighting back really hard, grabbing her Starbucks cup and telling him that she would hit him with it if he didn’t stop, and telling him that she would call her other uncles to tell them. Eventually, they drove off. [ 13 ] Sometime after this incident when she believes they were driving back from her cousin’s home, Mr. A. parked on a side street near Graydon Hall. He touched or attempted to touch her breasts, and while she tried to fight him off, he put his other hand down her pants and inserted his finger inside her vagina. This was the only time he succeeded in penetrating her in any way.

[14] On another occasion, they were in the car when he stopped in an empty space near a construction site around Seneca College.There, Mr. A. again tried to grab her breast and her thigh area and private parts. He again told her to touch his penis. While not entirelyclear from her testimony, it appears that on this occasion she believes she texted a friend to tell the friend to call her. The friend calledand they were on the phone for so long that eventually her uncle drove off. [15] Finally, R.A. recalls that the very last time he touched her was in her own bedroom.

She was on her bed when her uncle came into get his older son/her cousin. While he grabbed his son, he quickly put his hand under her tank top to grab her breasts. [16] The Crown applied to have the evidence of each sister admissible across all counts as constituting similar fact or admissible“other disreputable conduct” evidence. The application was argued at the close of the Crown’s case and it was agreed that I would ruleon it at the end of trial. I will address this application below. Principles to be Applied [17] Mr. A. is presumed innocent.

There is no obligation on him to do anything to establish his innocence. The presumption ofinnocence remains in place, unless and until the Crown has proven each essential element of these offences beyond a reasonable doubt.Reasonable doubt is based upon reason and common sense. It is logically connected to the evidence or the lack of evidence. It is notenough for me to believe that Mr. A. is probably or likely guilty. Reasonable doubt requires more than mere probability.

Although itcannot be described with mathematical precision, reasonable doubt is a high standard, consistent with its role as a safeguard againstwrongful convictions. At the same time, reasonable doubt does not require proof beyond all doubt, nor is it proof to an absolute certainty. [18] In assessing the evidence of the witnesses in this case, I must consider their credibility and reliability. Credibility relates to thehonesty of the witness, including whether the witness was trying to tell the truth and whether the witness was candid, sincere, biased,evasive or prone to exaggeration or minimization.

Reliability relates to the accuracy of a witness’ testimony and involves a considerationof the person’s ability to accurately observe, recall and describe the events in issue. Any witness whose evidence on an issue is notcredible cannot give reliable evidence on the same point. However, credibility alone does not establish reliability, as a truthful witnessmay give unreliable evidence. [19] Testimony can be assessed through a non-exhaustive list of factors, including (

a) the plausibility of the evidence; (

b) the presenceof independent supporting or contradicting evidence; (

c) the external consistency of the evidence; (

d) the internal consistency of theevidence; (

e) the “balance” of the evidence, meaning the witness’ apparent willingness to be fair and forthright without any personalmotive or agenda; and to a limited extent, (

f) the witness’ demeanour while testifying. [20] In assessing the credibility and reliability of the witnesses, I do not simply choose one conflicting version of events over another.Instead, I must apply the framework set out by the Supreme Court of Canada in R. v. W.(D.), (SCC), [1991] 1 S.C.R.742: (

i) If I believe the evidence that is inconsistent with the accused’s guilt, I must acquit. (ii) Even if I do not believe the evidence that is inconsistent with the accused’s guilt, if I cannot decide whether that evidence is trueor if it raises a reasonable doubt in my mind, then I must acquit. (iii) Even if I entirely disbelieve the evidence inconsistent with guilt, the mere rejection of that evidence does not establish guilt.Instead, I must be satisfied that the evidence I do accept proves the accused’s guilt beyond a reasonable doubt.

Elements of the Offences [21] The central issue in this case is whether the acts alleged occurred. There is no dispute that the elements of the offences chargedare made out if I accept the complainants’ evidence in relation to the incidents alleged, so long as I accept that any unwanted touchingwas for a sexual purpose. [22] There is, for instance, no dispute that the age of the complainants at the relevant time meets the age element of the offences ofsexual interference. The evidence also clearly establishes that Mr.

A. was in a position of authority in respect of his nieces at the time ofthe alleged incidents, such that the offence of sexual exploitation would be established for the applicable time periods. [23] There are some discrepancies as it relates to the timeframe of some of the acts charged, but those can be addressed as necessary. Analysis The defence evidence [24] Mr. A. testified and denied the allegations.

While he generally allowed for the opportunity to commit the various incidentsalleged, admitting to the possibility that they hypothetically could have occurred as described – for instance, he would give rides to bothsisters and could be alone in the car with either of them – he adamantly denied that he touched them inappropriately. He added that whilethe opportunistic touching could hypothetically have occurred, in the context of a gathering, someone would have noticed if it happenedas alleged. [25] He explained that he was like a father figure to his two nieces and that he had always been very close to them.

They had no issuesand he was astounded when he first heard the allegations. [26] Mr. A. also testified that he had never been to Vaughan Mills mall, though he did acknowledge that the older sister had

accompanied him to stores to assist him with translation. [ 27 ] He testified that the younger sister was not involved in the 2016 move to another building, instead being in her own apartment taking care of his young son with others. He said he was moving boxes and other items by foot and with a dolly, along with his nieces’ father and other family members. His wife was inside the apartment they were moving out of, bringing some boxes to the elevator. Everything had been packed up already so they did not need R.O. to assist with that. [ 28 ] Mr. A. also denied witnessing any distress on R.O.’s

part in her aunt S.H.’s apartment in 2017. He recalled going up to have tea in S.H.’s apartment on this occasion, but then left without incident. It was a week later that S.H. informed him that the younger sister had made an allegation against him at this time. [ 29 ] Given that Mr. A. testified and denied the allegations, I must determine whether I accept his evidence. I do not. [ 30 ] While Mr. A. was at times not being entirely responsive to the questions asked, I cannot otherwise point to any issue with his manner of testifying. However, his evidence was at times implausible or nonsensical.

It was also occasionally confusing and muddled as he seemed to walk back answers initially given. For instance, this occurred when he was first asked about the incident at S.H.’s home and he stated that the aunt, S.H., was not there, yet he subsequently indicated that he only knew about that incident because S.H. had told him about it a week later. [ 31 ] Mr. A. also contradicted himself on when he first heard of allegations of unwanted touching against him. His evidence on this point was also contradicted by S.H., who was called by the defence. In his examination in chief, Mr.

A. testified that he first learned about these allegations when the police were told and he was arrested. That occurred in 2021. When specifically asked by his counsel whether he learned about any allegation before the day the police contacted him, he said no. [ 32 ] Later, in re-examination by his counsel on some vague reference to an incident involving his niece’s aunt, he testified that a week after he went to have tea at S.H.’s apartment, S.H. told him that on that day, the younger sister told S.H. that he had touched her. He stated that he was astounded.

He did not at that time discuss the allegation with anyone, including the complainant or her father. [ 33 ] When confronted with this contradiction, he explained that his initial answer was in reference to the first time he learned of the police complaint, or of the fact that his nieces had raised the issue with others and made a complaint to the police. [ 34 ] I reject this explanation. It is abundantly clear that his counsel specifically clarified at the outset of his evidence whether he had gotten wind of any allegation prior to the police contacting him. [ 35 ] Further, Mr.

A.’s account of the tea incident is inconsistent with S.H.’s own account. Mr. A. testified that he left her apartment without incident, and only heard of the allegation a week later from S.H. He testified that he had not even seen S.H. return to the apartment after he had his tea there. [ 36 ] S.H. however testified that she returned to her apartment shortly after having sent Mr. A. there to have a cup of tea. When she arrived, the younger sister told her – in front of Mr. A. – that he had touched her. She described Mr. A. holding his tea and getting upset, stating “how could I ever do things like that?”.

She then spoke to Mr. A. about the allegation in the garage, immediately thereafter. [ 37 ] S.H.’s account of this incident is more akin to that of the younger sister, although the younger sister, in her state of panic, believed that Mr. A. was perhaps no longer present when she stated that he had touched her.

R.O. explained that she had a blurry recollection of what transpired once she began having a panic attack, given her emotional state. [ 38 ] Though S.H. denied that R.O. was in distress when she made the allegation of unwanted touching, she explained that R.O.’s behaviour was not normal in that it was as though she was mimicking a small child. She stated that R.O.’s demeanour quickly returned to normal and that it was as though she had forgotten about it, returning to play with her cousin. S.H. also claimed that it was just a remark made in passing such that they all forgot about it and moved on.

I do not believe that at all. This is inconsistent with the reaction she describes Mr. A. as having had to the allegation. I set out below why I also reject many aspects of S.H.’s testimony. I do, however, accept S.H.’s basic account of when R.O. disclosed to her unwanted touching by Mr. A. [ 39 ] I therefore find that Mr. A. was informed of R.O.’s allegation on this occasion in 2017, not when he was arrested by the police in 2021. [ 40 ] Importantly, there is also evidence from both sisters that there were several family meetings to discuss these allegations shortly before they went to the police, and that Mr.

A. was present on those occasions. I accept this evidence and do not believe that this is something Mr. A. could realistically have forgotten or in respect of which he could be mistaken. [ 41 ] I therefore find that Mr. A. gave false evidence about when he first became aware of the allegations against him. I do not infer guilt from this, however, as he may be innocent and misguidedly been dishonest with the court. In other words, there is no finding that he fabricated this evidence to avoid liability, which could then be considered as circumstantial evidence of guilt: R. v.

U.K. , 2023 ONCA 587 , at paras. 71-78 . [ 42 ] As indicated, Mr. A.’s evidence was also at times nonsensical and implausible. He testified that the older sister asked him for $1000 on three occasions, positing that this may have been the reason for fabricating the allegations. This suggestion remained vague in his examination in chief. [ 43 ] In cross-examination, Mr. A. explained that the older sister never told him why she was requesting this money, nor did he seem particularly concerned about it in his interactions with her.

He nevertheless agreed with the Crown that he became increasingly concerned about these requests, though he was certain that she did not have any problems in her life that would explain why she wanted the money. Despite becoming very concerned about these requests – one of which was merely a whisper wherein the sister simply stated “a thousand” – he did not inquire about any issues she may be having, nor did he explicitly inform her parents of the requests. Instead, he

twice told her father, that “children should not be without any money, nor should they have access to a lot of money”. He explained thathe remained vague so as to not impugn R.A.’s character with her parents. [44] Mr. A. also agreed that his niece’s other uncles would have had more money than him at the time, and that this was known toR.A. He believed that she had come to him instead of them because she knew she could trust him with keeping secrets from her parents.And yet, Mr. A. was very close to his niece’s father.

And despite the fact that, according to him, R.A. would confide in him, she did notdo so at this time. She did not tell him why she wanted money, nor did he press her to tell him why. [45] There was also no suggestion of any threat or blackmailing attempt accompanying these demands for money, even though theywould have taken place at least a year or two after the misconduct alleged. Nor was there any suggestion that R.A. would have informedhim that she or her sister would make up allegations if he didn’t pay up. [46] I conclude that none of this occurred. I can only conclude that Mr.

A. made up this claim to impugn his niece or provide someexplanation as to why she would be making up an allegation, and that he was making up the details of these interactions as he was beingquestioned. This significantly undermines his credibility. [47] In R. v. G.(M.) (1994), (ON CA), 93 C.C.C. (3d) 347 at 354, the Ontario Court of Appeal explained that “…where the inconsistency involves a material matter about which an honest witness is unlikely to be mistaken, the inconsistency candemonstrate a carelessness with the truth.

The trier of fact is then placed in the dilemma of trying to decide whether or not it can relyupon the testimony of a witness who has demonstrated carelessness with the truth.” In my view, the same analysis applies in the presentscenario where the evidence is otherwise problematic. [48] In light of the issues identified above, I do not think Mr. A. is a credible witness. [49] As indicated, the defence also called S.H., the nieces’ aunt and accused’s sister-in-law, to give evidence. I found much of S.H.’sevidence to lack objectivity and to have been biased towards the accused.

She acknowledged in cross-examination that if the allegationswere true, it would be a great shame in their family – “more than what you think, yes”, she told the Crown. She was clear that she couldnot believe the allegations, having informed the younger sister when she first made the claim that “This is not something that hashappened.” She added “Nobody’s going to believe you. This is a heavy thing, heavy burden on the shoulders of the family, so – and I’mtelling you, nobody else would believe that”. [50] It is apparent to me that S.H. would be incapable of accepting that such actions were committed.

This view was partly groundedin her own observations of the accused’s interactions with his nieces and in how she assessed his character, but it was clear to me that shewould not be able to bring herself to acknowledge the possibility of abuse regardless of those considerations. In other words, shegenerally testified in a way that was intended to try to persuade the court that Mr. A. was innocent, as opposed to stating the facts plainlyand objectively. A person’s general character is in any event of limited value in the context of sexual offences, which typically occurbehind closed doors.

I must therefore be cautious in relying on S.H.’s evidence. [51] I am, however, able to place some weight on her evidence where it is corroborated by others or where it did not in fact serve toassist the accused. I therefore place some weight on her account of how R.O. first brought up the allegations against Mr. A., in herapartment in 2017. As indicated above, it largely aligns with R.O.’s own account of that incident, and is to some extent confirmed by theevidence of the discussions that that prompted, as recounted by Mr.

A. and R.A. [52] Returning to the W.(D.) frame of reference, I therefore do not accept the evidence that is inconsistent with the accused’s guilt.However, I cannot at this juncture speak of “total rejection” of this evidence. As clearly explained in R. v. J.E., 2012 ONSC 3373, atpara. 20, this would signify that it could not rationally be used as a basis for finding reasonable doubt, under the so-called second branchof W.(D.). [53] The W.(D.) framework does not impose an analytical sequence, such that I am not obligated – nor is it necessarily advisable – toaddress the three steps in turn: R. v.

J.M., 2018 ONSC 344, at paras. 15-19. Rather, the W.(D.) instruction was intended to account for thepossibility that a jury would neither entirely accept the evidence of the accused or that of the complainant: that it would be unable toresolve the conflicting evidence and, accordingly, be left in a state of reasonable doubt: J.E., at paras. 17-20, citing R. v. Challice (1979), (ON CA), 45 C.C.C. (2d) 546 (Ont. C.A.), R. v. Nimchuk (1977), (ON CA), 33 C.C.C. (2d) 209(Ont. C.A.), and R. v. Morin (1988), (SCC), 44 C.C.C. (3d) 193 (S.C.C.).

When conducting a credibility analysis, theevidence is always considered as a whole: J.M., at paras. 17-19; J.E., at paras. 24-25. [54] In determining whether the accused’s evidence raises a reasonable doubt in my mind and whether the Crown has proven theaccused’s guilt beyond a reasonable doubt, I therefore next address the complainants’ evidence, and the Crown’s other disreputableconduct application.

The Crown evidence: General credibility and reliability findings [55] I begin with general credibility and reliability findings in respect of each complainant. [56] The younger sister, R.O., initially came across as a most credible witness. While some reliability issues arose in respect of someaspects of her evidence, I had little reason to doubt her credibility. [57] That changed to some extent when questions began being asked about her sister and in particular her sister’s whereabouts. Thesequestions were asked given that R.A. initially avoided service and did not wish to testify at this trial.

When R.O. testified, R.A.’swhereabouts were unknown. [58] During this line of questioning, R.O. became at times evasive, was vague in her answers, and I had real concerns about whethershe was being upfront with the court. For instance, it is apparent to me that she can call her sister up anytime and had a good channel ofcommunication with her. She did just that after testifying and being asked these questions about her sister. According to R.A., her

younger sister phoned her after completing her testimony to relay that her absence was being taken seriously. The gist of R.O.’s testimony regarding her ability to promptly communicate with her sister did not align with the ease with which she did so immediately after completing her testimony, with the result that her sister almost immediately agreed to attend court. [ 59 ] There may well have been several reasons for not answering questions regarding her sister in an open and straightforward manner. R.O. indeed gave some reason for being hesitant, although the explanation remained ambiguous.

She may simply have been concerned that her sister would get in trouble for not attending court to testify. [ 60 ] Whatever the case may be, this example suggests that R.O. may not have testified in a fully candid manner on other occasions as well, if she did not feel comfortable answering certain questions or did not want the court or others to be aware of certain facts. The fact that she displayed discomfort when asked about her sister also raises some concerns having to do with the dynamics of their sisterly relationship, in respect of which I obtained differing answers from each sister.

I address this further below. [ 61 ] Altogether, then, while I believe R.O. was generally credible, I have some reservations regarding certain aspects of her testimony. [ 62 ] The reliability of R.O.’s evidence was also at times put into question. For instance, as set out below, she acknowledged “mixing up stories”. In my view, however, these reliability issues may impact on particular events or incidents, but it cannot be said that she would have been mistaken altogether about what she said her uncle did to her.

This was primarily a case about credibility. [ 63 ] The older sister, R.A., testified in a more straightforward manner and I never had the impression that she was withholding information from the court. She spoke in a candid manner and was directly responsive to questions asked. I believe she was also being truthful when she explained her confusion surrounding the use of certain words.

Her explanation as to why she didn’t initially attend court and ultimately changed her mind about doing so, also seemed credible. [ 64 ] Some credibility and reliability issues nevertheless did arise on certain points as the evidence unfolded, which I will address below. Other disreputable conduct (count-to-count similar fact) application [ 65 ] The Crown applied to have the evidence of each sister admissible across all counts as constituting similar fact or admissible “other disreputable conduct” evidence. [ 66 ] Similar fact evidence is presumptively inadmissible.

The reasons for this were summarized as follows in R. v. R.C. , 2020 ONCA 159 , at paragraph 55 : An aspect of the presumptive rule against admitting similar fact evidence is that evidence on one count cannot be used to prove guilt on another count where the counts do not arise out of the same events: R. v. T.C. , 2019 ONCA 898 , at para. 42 .

This rule aims to prevent the jury from either: (1) placing more weight than is justified on the evidence of similar facts (known as “reasoning prejudice”); or (2) finding the accused guilty based on forbidden propensity reasoning (known as “moral prejudice”), that is, “reasoning that a person who has engaged in disreputable conduct alleged in one count has a propensity or disposition to do the type of act charged in another count”: T.C. , at para. 43 ; see also Handy , at para. 31. [ 67 ] The crucial question when determining the admissibility of similar fact evidence is whether, in the specific context under consideration, the probative value of the similar fact evidence in relation to a particular issue outweighs its potential prejudice, thus warranting its reception: R. v.

C.K. , 2015 ONCA 747 , at para. 36 . The Crown bears the onus of showing on a balance of probabilities that the probative value of the similar fact in relation to a particular issue outweighs its potential for prejudice: R. v. Handy , 2002 SCC 56 , at para. 55 .

The “issue in question” [ 68 ] A critical step in determining whether the evidence is admissible is to identify the issue to which the evidence relates, or what inference the Crown seeks to have drawn from the proposed evidence. [ 69 ] The Crown in this case submits that the evidence would both serve to rebut the presumption of innocent association, and show “an observed pattern of propensity operating in a closely defined and circumscribed context” or “a particular distinctive propensity demonstrated by acts constituting particular manifestations or exemplifications of it”: T.C. , at para. 50 . [ 70 ] The first proposed inference has limited application to this case.

Mr. A. is the sisters’ uncle. They are part of a close-knit family that spends a lot of time together. There is nothing in dispute or unusual about Mr. A.’s general interactions or associations with his nieces. Nor is there any real suggestion that the conduct alleged could be interpreted as being innocent or accidental, such that the repeated incidents might serve to defeat such an

interpretation. The only exception is in respect of the arm-grabbing incident. The arm grab is different: the other alleged incidents may assist me to infer the accused’s intent in respect of that particular incident.

I will return to the arm grab incident below. [ 71 ] I also recognize that each sister’s evidence can be relevant to understanding the context in which the alleged offences occurred and shed light on the nature of the accused's relationship with his nieces. [ 72 ] Limited in these ways, the first proposed use of the evidence would not be overly prejudicial to the accused. [ 73 ] The second purpose put forward by the Crown, however, goes much farther.

I understand it to relate to the ultimate issue of whether the actus reus occurred, as explained in C.K. , at paragraphs 33 and 34 : The trial judge identified the issue in question as the actus reus of the alleged offences in light of the appellant’s blanket denial that there was ever any inappropriate activity between him and his grandsons. As long as its probative value outweighs its prejudicial impact,

similar fact evidence may be admitted for the purpose of proving the actus reus of the offence charged and to assess the credibility of ablanket denial: R. v. Shearing, 2002 SCC 58, [2002] 3 S.C.R. 33, at para. 46. This case is distinguishable from R. v. R.B. (2003), (ON CA), 68 O.R. (3d) 75 (C.A.), relied on by the appellant. Asnoted by Simmons J.A., at paras. 52-54, the trial judge in that case had erred by framing the issue too widely as the credibility of thecomplainant and the accused. That, in turn, led to the threshold for admitting similar fact evidence being set too low.

Here, the trial judgeproperly confined the issue in question to whether the actus reus of the offences had occurred. [74] Similarly, in Shearing, the appellant’s defence at trial was that the alleged sexual assaults had never taken place.

At paragraph 46of his decision, Binnie J. identified the “central issue” on which the similar fact evidence bore as “the actus reus and whether theappellant’s blanket denial in that regard is credible.” [75] In Handy, at paragraph 42, Binnie J. explained the import of such similar fact evidence in cases involving children andadolescents: The “common sense” condemnation of exclusion of what may be seen as highly relevant evidence has prompted much judicialagonizing, particularly in cases of alleged sexual abuse of children and adolescents, whose word was sometimes unfairly discountedwhen opposed to that of ostensibly upstanding adults.

The denial of the adult, misleadingly persuasive on first impression, would meltunder the history of so many prior incidents as to defy innocent explanation. That said, there is no special rule for sexual abuse cases. In any case, the strength of the similar fact evidence must be such as to outweigh “reasoning prejudice” and “moral prejudice”. Theinferences sought to be drawn must accord with common sense, intuitive notions of probability and the unlikelihood of coincidence. [76] In R. v.

T.B., 2009 ONCA 177, at paragraph 22, the Court of Appeal identified the purpose of the similar fact evidence as being“to show a pattern of similar behaviour that confirmed each complainant’s testimony”.

It reasoned that “in the absence of collusion orsome other form of tainting, none of which was found in this case, given the similarities in the evidence of R. and M. regarding therespondent’s conduct, it was unlikely that the conduct was the result of coincidence.” [77] This second inference proposed by the Crown may thus be permissible, but its probative value hinges not only on the similaritiesbetween the various allegations, but also on there being an absence of collusion or tainting.

In T.C., the case primarily relied on by theCrown in support of an inference that the actus reus occurred, there was no suggestion of collusion or collaboration. [78] As stated in Handy, at paragraph 104, “if collusion is present, it destroys the foundation on which admissibility is sought, namelythat the events … are too similar to be credibly explained by coincidence”: see also para. 110 and Shearing, at para. 40. [79] In other words, the probative value of other disreputable conduct may outweigh its potential for misuse where similarcircumstances defy coincidence or other innocent explanation: Handy, at para. 42.

In considering the probative value of the evidence,where it is a live issue, a trial judge must resolve the issue of collusion – whether deliberate or inadvertent – as a condition precedent tothe admissibility of the evidence. Not doing so constitutes an error of law: Handy, at paras. 104 and 106; R. v.

Wilkinson, 2017 ONCA756. [80] As such, where there is at least an air of reality to an allegation of collusion, the Crown is required to satisfy the court, on abalance of probabilities, that the evidence was not tainted with collusion for the disreputable conduct evidence to be deemed admissible:Handy, at para. 112. [81] In the present case, given the real potential for collusion and the fact that I do not deem the allegations to be sufficiently similarto assist me in determining whether the actus reus of the various allegations occurred, I conclude that the evidence of one sister’sallegations cannot be used in respect of the allegations that relate to the other sister.

Collusion [82] The sisters did deny any deliberate collusion but acknowledged discussing the allegations prior to attending the police stationtogether.

One might argue that this represented no more than an opportunity to collude, with no evidence of actual collusion. [83] In my view, however, there is at minimum an air of reality to the defence’s allegation of collusion given the discrepanciesbetween the two sisters’ accounts of how much and what they discussed regarding the alleged offences, and of the nature of theirrelationship and interactions. [84] In her statement to the police, which was adopted in chief, R.O. stated that she and her sister were discussing the events after shereturned from a second hospital stay in June of 2021.

This hospital stay immediately preceded the report to police by both sisters. Indeed,the allegations were reported to the police in June of 2021. [85] In her testimony in chief, R.O. stated that she and her sister spoke about the trial “just a little bit”, and that they did not talk aboutthe things their uncle had done. She specified that she and her sister only spoke about the allegations twice: the first time when shedisclosed to her while in the hospital in 2020 (i.e. during her first hospital stay), which was “pretty short”, and the second time shortlythereafter for maybe 10 minutes.

When asked if they had spoken since about the actual events, she said no. [86] R.O.’s own evidence, then, is that she and her sister began discussing the events over a year prior to attending the police station.Still, she testified that there were only two discussions and very limited talk about the substance of the allegations. She pointed to thosediscussions being in 2020, during and shortly after her first hospital stay. [87] For her part, R.A. confirmed that they first discussed it in 2020, when her sister first went to the hospital.

By contrast, however,R.A. testified to numerous communications with her sister about the alleged incidents. She also testified to various details that wereexchanged. While she stated that they would avoid going into too many details on the specifics given the embarrassment of discussingthese details, she indicated that they definitely talked about it afterward at home – that they would talk “a lot” about it, “in detail and

everything”. [88] On another occasion, she stated “we started talking about it.

Like, she would tell me, yeah, he did that to me too, but it was, like,we don’t have the exact same experiences.” She added: “Like, she would tell me that he attempt to, like, touch her as well whenever – Ican’t tell you exactly what she went through, but she would tell me that, yeah, he did that to me too, like, he would try to touch me.” R.A.testified they discussed that it had been going on for several years. [89] R.A. also described in some detail the one incident where her younger sister explained having been touched at their aunt’s home,and her aunt found out when she began crying. [90] It is apparent to me that there was some discussion of specific acts of touching and the circumstances surrounding these acts.There were also discussions of uncharged conduct over which this court has no jurisdiction, given that they would have taken placeabroad.

I am unaware of the details of those allegations. [91] The evidence was clear that these discussions took place prior to the sisters attending the police station to report the allegations,which they did together.

They would have occurred over the course of at least a year prior to the report to police. [92] While it is entirely natural to expect that allegations such as these would be discussed among family members, and in somecircumstances little can be made of it, I am bothered here not so much by the number of discussions that occurred, but by thediscrepancies between the various accounts of these discussions. [93] Moreover, R.O. testified in chief that over the month prior to this trial, she and her sister had not had a lot of contact and whenthey did meet up, there would barely be any talking.

In cross-examination, however, she said she spoke to her sister several times a weekand explained that when she testified in chief, she believed the questions related to them discussing the incidents. While the questionsleading up to the question about contact related to the trial and these events, I believe R.O. was minimizing the extent of her contact withher sister at that time. I find that she also minimized knowledge of her sister’s whereabouts, and was evasive with respect to these issues. [94] Indeed, it is clear to me that the sisters are close. The younger sister agreed that they are very close.

They speak several times aweek. And yet, the older sister minimized this closeness. She acknowledged that they were pretty close when this was happening, but notrecently and not when R.O. went to the hospital. She said that they currently do not communicate that often, though indicated it wasmore frequent than once a month, if there is something specific or important to discuss.

Yet, later in R.A.’s testimony, when asked howclose she was to her sister in 2017 – when these events would still have been occurring – she stated that they were not very close. [95] While differing perspectives might explain this further discrepancy, the sisters’ evidence differed on details relating to the natureof their relationship and how frequently they talk. Again, the younger sister confirmed that they speak multiple times a week. [96] One example is that, upon being asked about her sister’s whereabouts including her activities, R.O. initially seemed unsure thatR.A. was in school.

Yet R.A. said that while she doesn’t communicate that much with her sister at the moment, what she does tell herwhen they speak is that she is dealing with school or work. [97] Further, R.A. acknowledged that she went to the police and ultimately testified to help her sister. She stated that she told her sistershe would go to the police with her if it would help her.

She also ultimately came to court because she was told it was serious if shedidn’t show up, and because she understood that it would help her sister. [98] R.A. testified that she had no idea court was going to happen when this trial began, until R.O. reached out to her following hertwo-day testimony to inform her that her absence was being taken seriously. Yet R.O. testified that she texted her sister in the morningprior to her first day of testimony, to inform her that today was the day she was going to court. [99] R.A. only referenced her sister texting her after she had testified.

When asked if R.O. had told her about the questions andanswers at trial, she indicated that R.O. told her “they” were concerned about where R.A. was and what she was doing, and that R.O.couldn’t answer them because she doesn’t know that much about it. R.O. told R.A. that she had said she didn’t know because of theirlimited communications right now about what R.A. is doing. What R.O. relayed to her sister was part of what she had just testified to attrial. [100] Ultimately, I cannot be confident that the evidence is not tainted by collusion.

Aside from the details that I find were discussedbetween the sisters, and the discrepancies in the evidence in that regard, I do not believe that the sisters were always transparent aboutthe nature of their relationship and level of closeness. R.O.’s demeanour also changed when the evidence turned to her sister. [101] I note that it is not incumbent on the defence to prove collusion. I also recognize that at the admissibility stage, the Crown needonly satisfy me on a balance of probabilities that the evidence was not tainted with collusion.

However, once admitted, I must still makean ultimate determination of its worth. The distinction between the admissibility stage and the ultimate use stage need not be as starkwhere the trier of fact is the judge, as opposed to a jury.

As acknowledged by the Crown in submissions, it is open to me to find that theproposed inference is not one that is useful to me in deciding the case. [102] Here, even if I were to admit the evidence on the basis that it is more likely than not that there was no advertent collusion, I amnot satisfied that the proposed similar fact evidence assists me in resolving the live issues in this trial.

The probative value of theevidence is to my mind too impacted by the potential for collusion and the similarity weaknesses, to overcome its prejudicial effect as itrelates to the issue of whether the acts alleged occurred. [103] I turn now to those similarities and dissimilarities. Similarities and dissimilarities [104] The Court of Appeal in R. v. Blake, (ON CA), [2003] O.J. No. 4589 (C.A.), at paragraph 64, affirmed by the

Supreme Court at 2004 SCC 69, cautioned against a generalized approach to determining similarity: The risk in relying primarily on generic similarities to support an inference that the actus reus occurred is twofold. One, the initialinference arising from the prior conduct becomes so general, that it approaches bad personhood.

Two, because of their non-specificcharacter, generic similarities may mask underlying dissimilarities that could be important in a particular case. [105] In the present case, the similarities between the two sets of allegations relate primarily to the opportunistic touching – not themore specific instances of arguably more serious conduct.

Indeed, while each sister refers to furtive attempts to grab their breasts, theirallegations differ in almost every other respect. [106] The Crown urges me to look more at the circumstances and the nature of the relationship between the accused and eachcomplainant, rather than at the specific acts alleged, as was done in T.C. Here, both were his nieces, and being three years apart in age,both were around the same general age range when the incidents are said to have occurred, around the same timeframe. Mr.

A. hadaccess to them as a member of the family and is said to have exploited that access and that relationship in both instances. According tothe Crown, the power dynamic and the relationship is of the same nature and evinces a pattern of conduct from which I can draw theabove-mentioned inference. [107] Be that as it may, in order for me to draw the requested inferences, at least as it relates to the actus reus, the nature of thetouching – i.e. the actus reus – is necessarily significant.

The Court of Appeal has made clear that general touching, including of thegenital area, is not sufficient to establish distinctive or peculiar conduct sufficient to ground specific propensity to commit the crimealleged. [108] Indeed, the Court in Blake, at paragraph 61, found that the generic sexual touching of young children does not meet the test fordistinctiveness: [I]n finding the proposed discreditable conduct evidence admissible, the trial judge relied primarily on generic similarities between theproposed evidence and the allegations of the complainant.

In describing the similarities as generic, I mean that the identified similaritiesdescribe general, rather than specific, aspects of the conduct and contain limited detail, with the result that the identified similarities arelikely to be present in most incidents of sexual touching involving children. [109] Here, the similarities that relate to the “opportunistic touching” are fairly generic, relating to the furtive touching of the chest area.And the circumstances surrounding this opportunistic touching differed in significant respects. For R.A., this touching typically occurredin the car.

Indeed, she testified that she could not recall being alone with her uncle at one of their residences, given how many peoplewere usually around – although she acknowledged there were typically fewer people at her uncle’s house. Moreover, the touching mostfrequently targeted her genital area.

For R.O., there was no alleged touching of her genital area, and the touching occurred in familyresidences, not in the car – even though she would also sometimes be alone in the car with the accused. [110] The dissimilarities are even starker as it relates to the more specific acts alleged and the circumstances in which they took place.In particular, the eldest sister alleges more intrusive acts that are said to have taken place in private, when she was alone with her uncleoutside the family residences – mostly when he picked her up to give her rides.

She indicated he would do this sometimes apparently byfollowing her when she was out and offering her a ride. She described how her uncle would try to touch her vagina, and on one occasionsucceeded in penetrating her with his finger. Her uncle would ask her to kiss or put her mouth on his penis. There is no suggestion of himattempting to kiss her. [111] To the contrary, the acts alleged by the younger sister were not as intrusive of her own sexual integrity and were never outside thehome. The allegations of touching of her own body are of an attempted kiss and of fondling. There is no suggestion that Mr.

A. sought totouch her genital area or go underneath her clothes, nor was there any effort to have her engage in oral contact of his own genital area.The one more significant allegation involved him taking her hand and placing it on his penis. [112] These differences cannot be explained by the fact that different opportunities presented themselves in respect of each sister.

Forinstance, the evidence was that the younger sister would also find herself alone in the accused’s car, and the older sister would also bearound the accused at family gatherings. [113] Aside from the differences in terms of modus operandi, there is also a significant difference in terms of whether any words wereuttered by their uncle. R.A. described things he would say repeatedly, in particular that she would enjoy it if she tried it. R.O., on theother hand, described complete silence and did not attribute any words to Mr.

A. during the alleged incidents. [114] It is true that the incidents overlapped in time, and both were said to have occurred over many years. Both witnesses pointed tocertain incidents that displayed a propensity for risk-taking or brazenness, which, if believed, could demonstrate “a degree of extendedconsistency in behaviour”: Shearing, at para. 51. It is also true that the similarities do not need to amount to a “signature” for similar factevidence to be admissible where it is directed at the actus reus: R. v. J.W., 2013 ONCA 89, at para. 54. But in the circumstances of thiscase, as in R. v.

L.T., (ON CA), [2005] O.J. No. 139 (C.A.), at paragraph 16, the similarities are insufficient to establishthe “persuasive degree of connection” that is required to justify a similar fact ruling favourable to the Crown. [115] I therefore decline to use the evidence of one complainant across counts relating to the other. I will assess their evidenceindependent of one another. [116] I make one final observation on the issue of similar fact, and the interplay between the analysis of collusion andsimilarity/dissimilarity.

One might argue that the dissimilarities I point to here are in fact indicative of an absence of collusion. If I hadbeen confident that there was no collusion or contamination of evidence, the similarities between the two accounts of abuse wouldcertainly have been more probative. But in the face of potential collusion, I cannot reason that the dissimilarities undermine such afinding. [117] At the end of the day, on the facts of this case, I do not know how much and what exactly was discussed. The collusion could

have been present but limited in terms of the details. This would explain the similarities in the general allegations of abuse directed at the sisters’ uncle, and at the same time explain the dissimilarities in the specifics of those allegations. Ultimately, dissimilarities do not assist in discarding the potential for collusion, and they do not serve as a basis to admit into evidence prior disreputable conduct. The probative value of any such evidence lies in its similarity to the acts charged. [ 118 ] I therefore turn to considering each set of allegations separately.

Counts relating to the younger sister [ 119 ] The younger sister’s video statement to the police was admitted into evidence pursuant to s. 715.1 of the Criminal Code . In her testimony before the court, she endorsed her statement as being truthful, and confirmed she had nothing to change after having listened to it. [ 120 ] While under cross-examination, however, R.O. did revise the details of certain incidents and acknowledge that she made some mistakes and had mixed stories up.

She explained that she was not in a good mental state when she went to the police and didn’t know how much time she had, so was trying to speed through everything. [ 121 ] While this is entirely plausible and fair, the concerning point is that she did not identify these errors or seek to correct her statement in any way when she reviewed it in court and was asked whether it was truthful and whether there were any changes to be made.

R.O. testified that she has a very clear recollection of events that she was mistaken about in her statement to police, which was closer to the events. [ 122 ] An important change in R.O.’s evidence related to the more serious allegation that would have taken place later in 2017, in Mr. A.’s apartment on the 14 th floor of the first building where he resided. R.O. situates this incident in time as having occurred a few months after the incident at S.H.’s apartment, when Mr. A.’s children (R.O.’s cousins) were respectively a baby and six years of age. R.O. was there to babysit her cousins. Mr.

A. would have sat beside her, opened his pants, taken her hand and placed it on his penis. She described touching it for 15 to 20 seconds. [ 123 ] R.O. testified that her cousin had been in his room when she arrived and was still there when Mr. A. first put her hand inside his pants. She indicated that the touching stopped when her six-year-old cousin came and sat beside Mr. A. She added that her cousin came into the living room while her hand was in Mr. A.’s pants. The cousin was on his phone when he walked into the living room. She described the video he was watching, indicating that he later showed it to her.

The cousin would not have witnessed the touching because Mr. A. quickly took her hand out and left. She added that no words were uttered during this incident, that it was complete silence. [ 124 ] In her police statement, however, R.O. indicated that she was in the living room with her cousin and they were both on their phones when her uncle entered the room. Her uncle sat beside her and opened his pants. She specified that he did not take his pants off because her cousin was there . Mr. A. told her to play with it or touch it.

He stopped when her cousin came to sit beside them. [ 125 ] When these glaring inconsistencies were put to her, R.O. indicated that Mr. A. did not in fact utter words at that time, nor was her cousin in the room when the touching began. She explained that she had mixed up two separate incidents in her statement to the police. In other words, she conflated two incidents or attributed something to one occurrence when it would in fact have taken place during another incident. [ 126 ] These discrepancies are quite significant, and not ones I can simply brush aside.

R.O.’s police statement was closer to the events in question and yet at that time, the younger sister appeared to have a clear recollection of where her cousin was and what he was doing. That recollection changed in significant respects by the time she testified at trial. [ 127 ] I am also left in some doubt regarding this incident given that it is said to have occurred after the arm-grab incident. I accept the evidence that Mr. A. had been confronted during the arm-grab incident and that R.O. had immediately reacted to his touching and reported unwanted touching to her aunt.

According to R.A., R.O. informed her that there were no further incidents after R.O. had the crying incident and disclosed to their aunt in 2017. Irrespective of the statement’s truth, I accept that R.O. said this to her sister, which is inconsistent with her later testimony that another, even more serious incident, occurred after the disclosure to her aunt. [ 128 ] It is also noteworthy that in her police statement, R.O. explained that after she told her aunt about how her uncle “used to touch her”, her aunt said that she was going to go tell him to stop and after that, the touching “kinda stopped”.

What R.O. described as happening after that point in time were instances where he would watch her in an undressed state at the family cottage. [ 129 ] Finally, after the confrontation and disclosure to S.H., Mr. A. would have been on notice that his conduct might be scrutinized and that R.O. might again react and report any misconduct on his part. This makes the subsequent and even-more serious allegation less plausible. [ 130 ] Altogether, I am simply left with too much doubt regarding this incident.

An acquittal on this count will follow. [ 131 ] The above concerns lead me to be left in some doubt regarding the earlier moving incident as well. On this occasion, R.O. and Mr. A. would have been alone in his apartment as he was putting things in boxes and she was waiting for him to do so to move things from the 8 th floor to the 1 st floor of the nearby building. At that time, Mr. A. would have pinned her to the wall and tried to kiss her on the mouth. [ 132 ] I note that Mr. A.’s evidence was that R.O. was not in fact involved in this move, as she was in her own family’s apartment taking care of his son.

He explained that he was not packing boxes since everything had already been packed up and that he was moving items between apartments with other family members. He also stated that his wife remained in their old apartment during the move, where the incident is said to have taken place. [ 133 ] Despite my concerns with Mr. A.’s evidence overall, I find his account of how the move unfolded to be more plausible than what

R.O. described. I am unable to fully discount it and it serves to raise a reasonable doubt in my mind about whether the alleged incident occurred. As stated by Paciocco J.A. in Doubt about Doubt: Coping with R. v. W.(D.) and Credibility Assessment , (2017) 22 Can. Crim. L. Rev. 31 at 44, “some elements of the evidence of the accused may raise a doubt, even though the bulk of it is rejected”. [ 134 ] The above issues with R.O.’s evidence also prevent me from finding beyond a reasonable doubt that the instances of opportunistic touching occurred. Mr.

A. testified that he believed someone would have seen such touching, given the number of people around at their family gatherings. While R.O.’s sister, R.A., acknowledged that there generally weren’t as many people in her uncle A.’s residence as in her own, it is telling that when she spoke of him trying to touch her when there was nobody else around, she could not recall a time when she was alone with him in either of their residences. [ 135 ] On these incidents, I remain in what Paciocco J.A., in his

article on doubt and W.(D.) , called “the middle ground of indecision about whether to credit, or act on, evidence that is inconsistent with guilt” – in reference to the second prong of W.(D.) .

He cited Challice , at page 566, in referring to “the legitimate possibility of [the decision-maker] being unable to resolve the conflicting evidence and, accordingly, being left in a reasonable doubt”: Doubt about Doubt , supra , at pp. 43-44. [ 136 ] At page 44 of that same article, Justice Paciocco explained: “I may not have confidence that the exculpatory account found in the evidence is an accurate rendition of what happened, but I may reasonably be left unsure about that.

If so, I have a reasonable doubt about whether the allegation made by the Crown is true.” That passage captures the state of certainty – or rather uncertainty – that I have regarding R.O.’s allegations of touching generally. [ 137 ] The evidence relating to the final incident charged – the arm-grab at S.H.’s apartment – however, is much more compelling. The circumstances surrounding this incident alleviate my above-stated concerns regarding R.O.’s evidence and allow me to be confident that it occurred. [ 138 ] In her police statement, R.O. described having a panic attack upon Mr. A. grabbing her arm.

Things then became blurry but she recalled holding her little brother’s hand wanting to go, and it seemed like Mr. A. suddenly was gone and her aunt S.H. was shaking her. At that time, R.O. would have cried out “he touched me, he touched me”, and her aunt asked what she was talking about and took R.O. to her bedroom where R.O disclosed some allegations and how he “used to” touch her. [ 139 ] The events that unfolded immediately after the alleged touching are largely corroborated by S.H. She explained that R.O. made an accusation against Mr. A. at that time – in front of Mr. A. – and she was not acting normally.

She explained that it was as though R.O. was mimicking a young child. [ 140 ] While she did not describe R.O.’s reaction as a panic attack, the way R.O. did, I accept that R.O. was distraught in some way and was not acting like herself. The distraught condition of a sexual offence complainant shortly after an alleged assault may be used as circumstantial evidence supporting the allegations: see R. v. J.A.A. , 2011 SCC 17 , at paras. 40-41 and 60-64 ; R. v. Dinardo , 2008 SCC 24 , at paras. 38-39 , citing R. v. G.C. , [2006] O.J.

No. 2245 (C.A.) . [ 141 ] But while I accept that this incident occurred, what is alleged is that Mr. A. took R.O.’s arm or wrist. I must go on to consider whether this was done for a sexual purpose. [ 142 ] R.O. believed that this was done to drag her into a bedroom, but Mr. A. did not say anything from which his intent could be inferred, nor did they discuss it at any other point in time. [ 143 ] This is where similar fact evidence could become quite relevant and probative. However, in this case, none of the other incidents alleged involved similar conduct. Indeed, there is no pattern of Mr.

A. dragging either R.O. or R.A. into another room to abuse them. [ 144 ] R.O. testified that she believed she knew her uncle’s goal on this occasion “because that’s what he did every time – every other time, he would drag me to a different room. That’s how he would do it.” Yet this does not align with the other incidents of touching she described. [ 145 ] Significantly, this is not a case where all of R.O.’s allegations of abuse are before me. There were several references made during the trial to alleged incidents that would have taken place abroad, prior to the family’s arrival in Canada.

While these incidents were properly not before the court and were not admissible in evidence without either the Crown or defence applying for their admission, I cannot ignore the fact that these other alleged incidents might plausibly explain R.O.’s reaction to the arm incident in 2017. [ 146 ] In other words, in assessing the weight to attribute to R.O.’s reaction to her uncle grabbing her arm, I cannot exclude the possibility that he abused her abroad, but not in Canada. It would explain her reaction on this occasion.

But given the nature of the contact – the touching of her arm – I would still need to consider whether the touching was for a sexual purpose. Given the lack of similarity between the arm incident and the other allegations that are before me, I am unable to infer Mr. A.’s intent during this incident to the degree required to convict.

And I cannot evaluate the weight to be given to R.O.’s reaction if it was in fact motivated by the details of events that are not before me. [ 147 ] Further, as stated above, I am left in some doubt regarding whether the other incidents that are said to have taken place in Canada in fact occurred, at least as described.

And I cannot deduce from R.O.’s reaction during the arm-grabbing incident that the other charged assaults must therefore have occurred, as that would entail circular reasoning. [ 148 ] Finally, I note a further inconsistent statement regarding this incident (which was the only one where R.O. would have disclosed to her aunt). R.A. testified that her sister later reported this incident to her, and said she was taking food for her uncle when he tried to grab her breast, at which point she dropped the food and started crying.

Yet R.O. – despite referencing that she dropped a plate of food (her own) – did not refer to her breast or chest area being touched on this occasion. Nor did R.A. report an arm or wrist grab or an attempt to drag R.O. into the bedroom. [ 149 ] At the end of the day, I must be satisfied beyond a reasonable doubt that what is said to have taken place in Canada indeed

occurred. While I am reasonably confident that Mr. A. is guilty, I cannot have confidence in the accused’s guilt beyond a reasonable doubt. Counts relating to the elder sister [ 150 ] R.A., the eldest sister, initially avoided coming to court to testify and evaded service. When she did attend to testify, she offered a highly plausible explanation for this.

I am inclined to accept it but am also cautious given her initial unwillingness to attend court to testify about the events under oath, and her ultimate decision to attend to help her sister and avoid getting into trouble. [ 151 ] Once R.A. attended court, her video statement to the police was admitted into evidence pursuant to s. 715.1 of the Criminal Code . [ 152 ] As indicated above, while R.A. testified in a credible manner, some important inconsistencies also manifested themselves in her evidence. [ 153 ] First, R.A. told the police that she didn’t know about her sister’s abuse until her sister told her in 2021 – the same year they reported the incident to the police.

She was clear that she never knew before that. Yet in her testimony in chief, she said that when her aunt reached out to her in 2017, her aunt told her what her sister had reported, and asked whether Mr. A. had done the same to her.

Moreover, she testified that her sister in fact told her directly after her first hospital stay in 2020, and that they had many discussions about it over the course of the following year and prior to reporting the matter to the police. [ 154 ] In terms of incidents involving R.A., she testified in chief to opportunistic touching of her thighs and breast, over her clothes, whenever there was no one around. [ 155 ] In her police statement, she said that he would touch her over her clothes when he was trying to do it quickly or didn’t have much of an opportunity, whereas he would try to go under her clothes when they were alone for a long time.

R.A. also told the police that Mr. A. would always try to put his hands “inside” of her. She explained in her in-court testimony that she meant he was always trying to put his hands under her clothes, as opposed to inside her body. She explained that she was very stressed and messing up her words, and that because she was overwhelmed, she didn’t remember at the time what above and under meant. [ 156 ] I accept this explanation as it is clear to me from the remainder of her police statement that she was confused over that wording.

Nevertheless, there is a discrepancy between her account at trial of him touching her over her clothes, except on the one occasion where he succeeded in penetrating her with his finger, and her claim in her police statement that he would always try to touch her under her clothes. [ 157 ] Moreover, in her police statement, R.O. stated that the opportunistic touching occurred “any chance he got” but that most of the time it happened in his car.

Indeed, while she indicated in her testimony in chief that he would try to touch her for instance if she was washing the dishes in the kitchen if there was no one else around, she could not recall any specific time when they were alone in the house, especially her own home, because there were always a lot of people at her home. [ 158 ] R.A. testified that he would also touch her in the car when her uncle’s wife was seated in the back seat to take care of the baby. She sat up front and he would try to put his hands on her thighs.

While not impossible, this evidence does not strike me as being particularly plausible. [ 159 ] Although she stated that she recalled four or five car incidents more specifically, R.A. explained in her police statement that it happened many more times than that in the car. She also stated things like she would “always” go in the car when he would ask, but that “towards the end” she found that he was scared of the phone so she would take out her phone and make him believe she was recording.

He would “always” tell her to put the phone away. [ 160 ] Yet when asked in cross-examination how many times incidents happened inside the car, she said she didn’t know exactly but would say four or five times. She made no reference to there being many more car incidents than the ones she more specifically recalled. [ 161 ] Of the three car incidents that she went on to recall more specifically, she described one as having occurred near Graydon Hall. [ 162 ] In her statement to the police, she explained that Mr. A. pulled down her zip up sweater and took off her bra, saying her breast looked nice.

He put his hands on her breast. As she was trying to take his hand off of her, he put his hand in her pants and then put his fingers inside of her. She was trying to push him off but he kept fingering her, and pushing his fingers inside of her. She said it went on for a really long time, he kept doing it. At one point she got weaker and was fighting back less, and let him stop. He was doing it really fast for a long time. [ 163 ] In her testimony before the court, however, she described the incident as him attempting to grab her breasts. She said stop it and don’t touch me.

When asked specifically what he was saying during this incident, she indicated that he said things such as “just let me do it” or “you will enjoy it, you’re going to like it” – “as usual”. She fought him off and while she fought off the hand that tried to grab her breasts, he put his other hand down her pants and inserted his finger inside her vagina. [ 164 ] In cross-examination, she specifically explained that he was attempting to grab her breast and that she was pushing his hands away so that he could not do so.

She did not mention anything about him succeeding in touching her breasts, removing her bra, or making a comment about her breasts. There was also no reference to her ceasing to push back. Her testimony was in fact that she always fought back. [ 165 ] These discrepancies are quite significant. [ 166 ] Another incident involved her throwing a Starbucks cup at her uncle after he tried to touch her breasts and thigh, while in his car. R.A. was able to specifically pinpoint this incident in time based on a text message sent and a photo she said she took of what she had purchased at Starbucks.

She indicated that this incident occurred on August 8, 2017. R.A. also testified that all three car incidents that

she more specifically recalled happened close together in time. [ 167 ] And yet, as stated above, R.A. was clear in her testimony that there were no further incidents as of shortly after March 2017, after R.O.’s crying incident and once her aunt L. would have found out about the unwanted touching. R.O. testified that her aunt L. found out a few nights after she told her aunt S.H. in March of 2017 – R.O. was in the master bedroom when she overheard her cousin telling her aunt L. [ 168 ] I cannot know for a fact who learned about the allegations when and through whom.

Much of that would be hearsay given that the sisters were often reporting second- or third-hand information. But I cannot overlook these prior inconsistent statements when assessing the weight to afford the Crown’s evidence. [ 169 ] I am also of the view that R.A. was not truthful in cross-examination when she was asked about why she thought that coming to court to testify would help her sister. In her examination in chief, she readily stated that a worker with the Victim Services office said that it would help her sister.

She backed away from this and was evasive when the source of her belief was addressed in cross-examination, insisting that she didn’t know how she came to think that, and that it was common sense. [ 170 ] The above issues with R.A.’s evidence give me some pause in respect of all allegations relating to her. [ 171 ] I have considered in my assessment in respect of each sister that there is no evidence of any motive to lie, in particular given my rejection of the accused’s evidence relating to R.A.’s requests for money. Mr. A. testified that he had a very good relationship with his nieces, and that they were close.

There is no suggestion of prior animus. But absence of any evidence of a motive to fabricate the allegations does not amount to proof that there is no such motive. While it remains a factor that I may consider in assessing the credibility of the complaints made, in this case it does not serve to alleviate my lingering doubts. [ 172 ] Under W.(D.) , I must ultimately consider whether the evidence I am prepared to credit is “compelling enough” to prove guilt beyond a reasonable doubt: Doubt about Doubt , supra , at p. 45. To my mind, although the evidence is quite compelling that Mr.

A. abused his nieces at least at one time or another, the problems highlighted above make it insufficiently compelling to convict the accused on the charges before me. Conclusion [ 173 ] The accused is therefore acquitted on all counts. Released: September 29, 2023 Signed: Justice C. Mainville