R. v. T.S., 2023 ONCJ 6

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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (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. T.S. , 2023 ONCJ 6 DATE: 2023 01 04 COURT FILE No.: Pembroke 21-Y036 BETWEEN: HIS MAJESTY THE KING — AND — TS Before Justice J.R. Richardson Heard on July 8, 12, 2022 Reasons for Judgment released on January 4, 2023

Caitlin Downing.................................................................................. counsel for the Crown Celine Dostaler................................................................................ counsel for the accused Richardson J.: Introduction [ 1 ] TS, a young person at the time of the offences, is charged with Sexually Assaulting CLW and Sexually Interfering with CLW between the 31 st of March 2012 and the 31 st of March 2013. [ 2 ] The Crown has elected to proceed by indictment. [ 3 ] TS did not testify or call evidence.

This case therefore involves an assessment of credibility and reliability of the Crown’s case. Evidence of CLW [ 4 ] CLW was 17 at the time that she gave her evidence. She had completed Grade 11 and was going into Grade 12 in September 2022. Her date of birth is […], 2005. [ 5 ] Her mother is AW. Her grandfather is WW. LL is her Great Aunt on her mother’s side. AS is a person who her mother had an on-again off-again relationship with and then they became family friends. TS is his daughter. [ 6 ] She said that the incident in question took place when she was seven years old. She was living with her grandfather.

She lived there for about ten months. Her mother lived somewhere else. At the time she lived with her grandmother AS also lived there. His children, including TS, would come and visit from time to time. [ 7 ] She described her grandfather’s house as a one story house with a finished basement. She had a room in the basement. When AS stayed there, he also stayed in the basement. Her grandfather slept upstairs. [ 8 ] She said that the incident took place in May or June. It was hot outside. She could not remember if it happened on the weekend or on a weekday. She said that the incident took place in the evening.

She was doing her math homework upstairs in the Living Room. She said that the Living Room was unfinished. There was a TV on the floor and she and TS were sitting in front of it. The TV was not on. [ 9 ] Defence counsel cross-examined CLW about her recollection that the incident occurred in May or June after CLW made a reference to summer. CLW repeated that the incident took place in May or June because it was hot outside. She said that she did not go to summer school. She also said that her reference to it being summer related to the days being longer.

She agreed it could have happened on a day that she was off school for a PA day. [ 10 ] TS was supposed to be helping CLW with her math homework. No one else was in the living room. CLW thought that her Grandfather was “in the bush with AS”. Her grandfather came home after the incident. [ 11 ] In cross-examination, CLW said that her Grandfather asked TS to help her with her homework while he went into the bush with AS. [ 12 ] CLW said that she and TS started talking about how TS was a Lesbian.

CLW explained that she was seven and she did not understand what a Lesbian was and she asked TS, “What’s a Lesbian.” At that point, TS said, “I’ll show you”. [ 13 ] At this point in her evidence CLW became extremely upset. The proceedings were adjourned briefly for a short while. When we resumed, she was not able to testify and the matter was adjourned to the next day. [ 14 ] Upon resuming, the Crown asked her, “What happened when she said I will show you?”. CLW said, “I don’t exactly remember what happened.

I just know she ended up touching my vagina with her fingers and that’s the most I remember about that.” [ 15 ] She related that the incident took place on the floor because there was nowhere to sit in the unfinished Living Room. [ 16 ] She recalled that she was wearing her brother’s red Lightning McQueen shirt. She was wearing camouflage patterned pants. She could not say if they were on or off. [ 17 ] She could not recall how she was sitting when the touching took place.

She said, “I think I was laying down.” When the Crown asked her how she was laying, she stated, “On my back I think.” The Crown asked, “Where was [TS]?” She said, “I don’t know if she was beside me. I am not really sure.” Later in cross-examination, she did say that TS was beside her. She said that there were no chairs in the room for her to sit on. She could not remember whether TS asked her to lie down. [ 18 ] She could not remember how many hands TS used to touch her. She could not remember if TS was saying anything when she touched her.

She could not say if the touching took place on top of her clothing or under it. She said that when the touching took place, “I think I started crying”. She could not say whether TS’ fingers penetrated her or not.

[ 19 ] The next thing she remembered was when her grandfather came home. They ended up downstairs in the kitchen. The Crown asked CLW, “When your grandfather came home was [TS] still touching you?” CLW replied “I think she stopped.” She could not remember how it stopped. [ 20 ] She could not remember if TS said anything to her other than that she was a Lesbian and TS would show her what that meant. She could not remember if TS touched her anywhere else. [ 21 ] She said that she did not think TS did anything else to her. She did not touch TS.

She said that she did not think there was any kissing. [ 22 ] The Crown asked her if she was still crying when her Grandfather came home. She said that she did not know. [ 23 ] The Crown asked her how she came to disclose what happened. She said that she told her Mom. She also said that her Aunt was encouraging her to go to the Police. She said that they would discuss the incident, but not in detail. She did not remember telling anyone back then. She essentially repeated this in cross-examination. She said that she was afraid of getting trouble if she told her mother. “I only told her when I was older,” she said.

She also indicated that she told her Aunt what happened a few years later. “I didn’t tell her the details or anything,” she said. [ 24 ] She said that although she was living with her Grandfather, she would see her mother. Sometimes she would visit her mother at her house; sometimes she would visit at her Aunt’s. Her Aunt provided transportation. [ 25 ] She recalled seeing her Aunt and her mother at most a couple of hours after the incident. [ 26 ] She remembers complaining that her vagina was sore. She said that her Aunt and her Mom checked her out.

In-chief, she was pretty sure that took place in her Aunt’s bedroom. She said that her Aunt and her Mom checked her at the same time. In cross- examination, she thought that they checked her in the bathroom just before she had a shower. She said that by “checking her”, she meant that they “just looked”. She did not recall whether she was standing up or sitting down. She said that neither her Aunt nor her mother touched her. She could not recall whether they asked her to spread her legs. She did not remember whether she had a rash. [ 27 ] After they checked her she had a shower.

She said that she had a shower because she felt dirty and she had not had a shower for a week. She remembered telling her Aunt and her Mother that. In cross-examination, she said that she used this as an excuse because she “felt dirty”. She wanted to have a shower that day. She said that her grandfather made her have a shower every two days. [ 28 ] Not long after the shower she returned to her Grandfather’s house. She was not privy to any discussion about going anywhere else.

In cross-examination, she denied going to the Mattaway Park. [ 29 ] She believes that her mother and her Aunt were always with her at the same time. She does not remember doing anything else the day she disclosed to her Aunt and her mother. In cross-examination, she indicated that she believes she went to her mother’s house after she had lunch at her Aunt’s. [ 30 ] When she disclosed, she was living back and forth between her Grandfather’s house and her Mother’s house.

She said that she moved a lot and lived in a lot of different places. [ 31 ] She recalled that when the incident occurred, AS lived with her grandfather on and off. He would sometimes go live with his brother or he would live on his own. For a while, he lived in a trailer. Then he would come back to live with her grandfather. [ 32 ] She last saw TS about five or six years ago. She said that she stayed in the car so that she did not have to actually see her. [ 33 ] In cross-examination, CLW testified that she knew TS pretty well.

She said that TS was a frequent visitor when AS was staying there, which he was at the time. She did not know that TS is autistic, nor did she know that TS herself struggles with math. She was not aware of the age difference between her and TS. She recalled that they did not go to the same school. “She was like a teenager and I was a kid”, she said. [ 34 ] She agreed that since the incident she had spoken to her Aunt and her mother about the incident. She does not remember whether there was any talk of going to the hospital, nor does she remember going to the hospital. Evidence of LL [ 35 ] LL works as a PSW.

She has done so for thirty years. CLW is her Great Niece. She has known her for CLW’s entire life. AW is her niece. She has known her for AW’s entire life. WW is her former brother-in-law. [ 36 ] LL says that she has a great relationship with CLW. She told me that just before court they were laughing and talking about college. She sees her often. She drops in to say hello or she gives them a drive to Wal-mart for groceries. [ 37 ] Her relationship with AW is okay. She also knows TS. She used to play darts with AS, TS’ father and she met all three of the children.

She correctly identified the names of AS’ other two children. She says that TS was about eight years old when she first met her. She said that was fifteen or twenty years ago. She would see TS when she was invited over to AS’ residence to play darts. Sometimes she would see TS in downtown Renfrew. She has not seen AS in some time. [ 38 ] She told me that CLW disclosed something that happened to her about ten years ago when CLW was six. The discussion took place at her house. Only her and CLW were present. CLW was at her house in order to have a visit with her mother AW.

AW was there when CLW disclosed. [ 39 ] She explained that she and AW were in her kitchen having coffee at her kitchen table. CLW was playing with her toys. She remembered that CLW came and told her that TS put her fingers in her. She asked CLW to show her and CLW put her fingers between

her legs. In cross-examination, LL stated that when CLW showed her, she showed her over the clothes. She did not say one way or the other as to whether TS touched her over the clothes or under the clothes. She only showed LL once. She did not show her a second time. [ 40 ] She told AW to take the child to the hospital and “make sure that what she was telling us was true.” She indicated that AW told her later that she called the Children’s Aid Society and they told her not to take the child to the hospital.

She said that she did not have any direct discussions with the Children’s Aid Society about taking CLW to hospital. [ 41 ] She said that AW proceeded to check for injuries. She was present when AW checked. This took place on the couch in her living room. CLW was “red down there”, referring to inside her vagina. She said that she again told AW to take CLW to the hospital to check. She said that CLW told her mother not to touch it. [ 42 ] She described CLW’s demeanour as very serious and she emphasized the word “very” when she spoke. She testified that she first said, “No” to CLW.

CLW said, “Yes, I was touched. [TS] did it.” She said that CLW was kinda scared and withdrawn for a while. Then she played with CLW and talked to her and CLW came over and told her. [ 43 ] At the time of the disclosure CLW was living with her grandfather WW. She said that she lived there for about a year and a half. LL told me that she went to WW’s place to pick CLW up. She recalled AW being there when she went. She was aware that CLW slept downstairs in the spare bedroom. She did not know where AS slept. She also believed that TS was staying there because she had seen TS there four or five times.

She did not know where TS slept. [ 44 ] In cross-examination, LL stated that when CLW was living with WW, the CAS was involved with the family. She lived there for about a year and a half approximately ten years ago. She stated that it was not her role to supervise AW’s time with CLW. She said that AW was entitled to her visits with CLW and to do what she wanted. She did not remember whether CLW went with AW to a park. [ 45 ] LL stated that the disclosure happened later in the day when CLW was supposed to go back to her Grandfather. She agreed with Defence counsel that for most of the visit, she was not present.

She had no recollection of CLW wanting to take a bath or a shower. Nor does she remember CLW ever complaining that she had not had a shower or a bath in a week. She stated that not once in the one and half year period did CLW ask to take a bath or shower in her house. [ 46 ] She stated that AW’s call to CAS did not take place while CLW was there. When she returned CLW to WW’s house, CLW, AW and her were in the car. AW had a cell phone but she did not call from the vehicle. She said that there was no conversation with AW about calling CAS before going to WW’s.

Her prime concern was that CLW be taken to the hospital. [ 47 ] LL stated that she has not discussed this with CLW since the incident. [ 48 ] LL stated that she was not aware that CLW spent the day playing in the sand. [ 49 ] LL was not aware that TS had issues with her father. When Defence counsel suggested to her that TS was not seeing her father often, LL said, “That’s a lie because she was seeing her dad a lot.” [ 50 ] With respect to when CLW disclosed, LL explained that AW had to go and get some groceries. While AW was getting the groceries CLW disclosed.

When AW returned, she and AW had coffee and she told AW. Evidence of WW [ 51 ] WW is CLW’s grandfather. He has known her since she was about two and a half. He has known AS for about fifteen years. He was aware that AS and AW were in an on-again off-again relationship. He indicated that AS has four children, two daughters and two sons. TS is the youngest of the daughters. [ 52 ] WW indicated that AS lived with him “back and forth” for 15 years. CLW was living with him for about a year. She was about eight years old. She went to [name removed] school when she lived with him.

He thought that she was in Grade Two or Three. While she lived there, AS lived there sometimes. [ 53 ] When AS lived there his daughters would come and visit. For about a week and a half TS lived at his home as well. He said that AS sent her back. WW said that TS might have come out a couple of other times. He was not exactly sure. [ 54 ] WW described his house as a bungalow. He stated that there is a basement and an upper floor. He recalled that there were two bedrooms in the basement but one has a bunch of junk in it. He said that TS was sleeping on the couch in the Living Room. CLW slept upstairs in a bedroom.

He could not remember whether AS slept downstairs in one of the bedrooms or whether he went to sleep in a trailer somewhere else. He stated that when he first built the house, everyone slept downstairs. They then moved upstairs. [ 55 ] He said that the house has two living rooms, one in the basement and one upstairs. He stated that the upstairs living room had two TVs. When CLW was there, he was sure that there was at least one TV and a VCR. One TV was on a stand and one was built into a wall. When there was just one TV, it was on a stand. [ 56 ] He remembered when TS assisted CLW with some homework.

He recalled seeing this when he walked by them to go to the bathroom. He said that they were sitting on the couch in the upstairs living room. He said that there was also a couple of chairs in that room. [ 57 ] In cross-examination, he clarified that when he walked by he saw TS and CLW looking at books. He can’t remember what kind of books. He said that it was possible that they were sitting on the floor. He couldn’t remember back that many years. [ 58 ] His recollection was that CLW went to see her mother every second weekend. He said he would have to check with Children’s

Aid to make sure. She would also see her mother if there was a holiday that fell on a weekday. His recollection is that CLW was to return to his home after the visit on the first day of the weekend and then they would pick her up again in the morning at 7:30. He said he would have to check with Children’s Aid. [ 59 ] He said that LL sometimes picked her up for the visits. Another woman, whose name WW could not think of, also assisted with transportation.

When asked whether there were times when CLW went to her mother’s home for just the afternoon, he stated, that when her access first started, it was only for a couple of hours. [ 60 ] He said that his sister LW told him about an incident which took place between CLW and TS. He said that he was the last one to know about what happened. He said that his sister told him about it a day or two days after the incident. He said that he recalled discussing taking CLW to the hospital with someone from the CAS.

He could not remember the name of the person he dealt with. “There were four different ones I talked to”, he said. Analysis [ 61 ] The Crown must prove the elements of the offences beyond a reasonable doubt. The Crown bears the onus of establishing them. The onus never shifts to the accused. A reasonable doubt is not an imaginary, far-fetched or frivolous doubt. It is not a doubt based on sympathy for or prejudice against anyone. It is a doubt that is based on reason and common sense.

It is a doubt that logically arises from the evidence or the absence of evidence. [ 62 ] In assessing the evidence in this case, I can believe or disbelieve a witness, but still be left with a reasonable doubt after considering all the evidence. Further, when considering the testimony of a witness, a court can accept all, some, or none of a witness’ testimony. Frailties and inconsistencies in a complainant’s evidence do not necessarily mean that her evidence should be rejected. [ 63 ] Assessing credibility and reliability is key in this case.

Credibility relates to whether a witness is speaking the truth as she believes it be. Reliability relates to the actual accuracy of the testimony. The witness’ ability to accurately observe, recall and recount the events must be assessed.

A credible witness may give unreliable evidence. [1] The credibility and reliability of a witness must be “tested in light of all the other evidence presented.” [ 64 ] In assessing each witness’s account of what happened, I have considered the account’s internal consistency, it’s consistency with previous accounts, the significance of any inconsistencies, whether the account is inherently logical and whether the witness has an interest in the outcome of the proceedings. [ 65 ] To assess reliability, I consider the circumstances of the observer, the quality of their recollection given the passage of time, whether their evidence has been influenced by other sources, their mental capability and limitations and their level of sophistication. [ 66 ] Some inconsistencies are important; other less so.

Where an inconsistency involves something material about which an honest witness is unlikely to be mistaken, the inconsistency may demonstrate a carelessness with the truth which is a cause for concern. [2] [ 67 ] CLW was 17 when she was testifying about an incident which took place when she was seven or eight.

A court may not automatically discount a child’s evidence; otherwise it will have fallen into error. [3] As Justice McLachlin (as she then was) further noted in W.(R.) , “it may be wrong to apply adult tests of credibility to the evidence of children.” [4] She stated: It is neither desirable nor possible to state hard and fast rules as to when a witness's evidence should be assessed by reference to "adult" or "child" standards -- to do so would be to create anew stereotypes potentially as rigid and unjust as those which the recent developments in the law's approach to children's evidence have been designed to dispel.

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. [5] [Emphasis mine] [ 68 ] I agree with the Crown that inconsistencies such as what room CLW was in when she was examined by her mother and her Aunt, whether CLW had a shower when she was at her Aunt’s home and the perfect retracing of her steps after she went to her Aunt’s are peripheral matters that I am not surprised, given the passage of time, that CLW has forgotten about. [ 69 ] I agree with the Crown that CLW remembered other peripheral matters such as the colour of her shirt and her pants, the sparsely furnished nature of her grandfather’s house where she was staying, the fact that she was doing some homework, and the fact that she went to her Aunt’s within hours of the incident taking place.

She remembered that she lived with her grandfather for about ten months. She remembered that AS was also residing there at the time and that his children, including TS would be occasional guests. Many of these details were corroborated or partially corroborated by the evidence of WW or LL.

In my view, this bolsters her credibility and reliability. [ 70 ] I agree with Defence counsel that there are some details related to the actual incident that are missing, such as whether CLW was lying down, whether TS used one hand or more than one hand, whether TS actually penetrated CLW’s vagina, and whether CLW’s pants were on or off. [ 71 ] Defence counsel argues that these are more than peripheral matters – these are matters that go to the heart of CLW’s reliability and her inability to recall them ought to result in a reasonable doubt. [ 72 ] I disagree. CLW, even at 17, was not a sophisticated witness.

For example, she did not know what “penetration” meant until the Crown asked her about it. Then, the Crown had to explain the meaning of the word so that CLW could answer her question. Once

again, given that she was seven or eight when this took place, I am not surprised that CLW cannot remember these details. What she remembers is that her body was invaded by TS and TS used her hand to do so. She also remembers the discussion with TS immediately before the touching. She was not shaken on any of this. [ 73 ] I also accept the evidence of LL that CLW showed her how TS touched her by placing her hand on her vagina.

LL also told me that when CLW’s vagina was examined by AW, with LL looking on, it was red, to the point that LL thought the child should be taken to the hospital. [ 74 ] Even though CLW says that she did not disclose to her mother until much later, I accept the evidence of LL that CLW disclosed to LL and I find that this disclosure was within hours of the incident occurring. Although he complained that he was “the last to know”, WW clearly recalled hearing about it and being concerned about the Children’s Aid Society being contacted. This cannot be possible unless CLW disclosed.

WW was not shaken on this. [ 75 ] I am not surprised that CLW may have been confused about the timing of her disclosure. It is clear that at the time that this took place, there was a lot of upheaval in CLW’s life. She was temporarily residing with her Grandfather. She was seeing her mother for short visits and those visits were facilitated by her Aunt or someone else. The Children’s Aid Society was clearly involved. [ 76 ] CLW does recall going to her Aunt’s after the incident.

As I said above, particularly given her age, I am not surprised she does not remember much of what happened at her Aunt’s or that some of her Aunt’s evidence, which I do accept, is contradictory to hers. [ 77 ] I find therefore that the Crown has proven beyond a reasonable doubt that TS sexually assaulted CLW by touching her vagina with her hand. I find that the sexual assault was likely of short duration because it was interrupted by WW returning home.

I find that the Crown has not proven beyond a reasonable doubt whether the touching was over the clothes or under the clothes, nor has the Crown proven beyond a reasonable doubt that there was penetration. Released: January 4, 2023 Signed: Justice J.R. Richardson