Crown: C. Ponesse, Assistant Crown Attorney, Newmarket
Defence: Craig Penney, Toronto Criminal Defence Lawyer, Newmarket
[During the alleged offence, the complainant was aged 4 to 8; B.B., 12 to 16. At trial, the complainant was 12; B.B. was 20. Only the final portion of the judgment is reproduced.]
¶ 1 The onus is of course upon the Crown to prove each essential averment of the counts before me to the exclusion of a reasonable doubt. This substantial onus is to be applied in accordance with the well-known decision of the Supreme Court of Canada in R. v. W.(D.),  1 S.C.R. 742. In summary, if the Court accepts the evidence of B.B. then I must acquit. If I do not believe the evidence of the accused, but nonetheless find after considering the same in the context of all the evidence that I am left in reasonable doubt I must acquit. Even if I reject the evidence of the accused, I must find that there remains evidence that is sufficiently credible and reliable to prove each essential averment to the exclusion of a reasonable doubt before a finding of guilt can be made.
¶ 2 As submissions developed by both Crown and defence, it was clear the Court was being invited to consider primarily the third prong of the W.(D.) test; namely whether or not the complainant's evidence was sufficiently reliable to meet the evidentiary standard. In particular, it was clear from Mr. Ponesse's submissions on behalf of the Crown that the Crown considered there were serious reliability issues raised by the inconsistent evidence of the complainant in a number of respects that the Court would have to carefully consider. In my view the Crown was virtually inviting the Court to acquit.
¶ 3 Before I consider the third prong of the W.(D.) test as it relates to this case, and the testimony of [the complainant], I propose to briefly review the law as it pertains to the reception by Courts of the evidence of children.
¶ 4 It is clear that the evidence of children is to be subjected to the same careful objective standard as is the evidence of adult witnesses. As Justice Finlayson said in R. v. Stewart,  OJ. No. 811,
We should not expect them as witnesses to perform in the same manner as adults. This does not mean, however, that we should subject the testimony of children to a lower level of scrutiny for reliability than we would do adults.
¶ 5 In this case [the complainant] was testifying as a 12-year-old endeavouring to recall events that occurred for the most part when she was between approximately five and eight years of age. What was being asked of her is difficult. It wasn't helped by the many months that intervened between her examination in-chief and cross-examination. If her version of events to the police and to the Court in-chief and in cross-examination was virtually identical she could be open to the charge that she was testifying to a well-rehearsed but incredible story. On the other hand, if there were inconsistencies, it can be argued that this should cause the Court to conclude her evidence was not reliable. As a young child endeavouring to remember events that occurred years before, some inconsistencies in recollection are to be expected. At the end of the day, the Court is required by law to assess these carefully as against the reasonable doubt standard.
¶ 6 Before turning to consideration of [the complainant]'s evidence, I propose to comment briefly on the evidence of the accused young person. In doing so I have taken into account the evidence of the character witnesses who, for the most part, have significant regard for B.B. but on the whole were able to add little with respect to his reputation for honesty and integrity within the church community as there is little suggestion in any of this evidence that that subject ever came up in connection to B.B.. In addition, as Mr Penney conceded before calling this evidence, sexual abuse and sexual assaults rarely occur in front of witnesses.
¶ 7 B.B.'s evidence in substance is a general denial that any inappropriate touching occurred. Considering B.B.'s evidence in the context of all of the evidence in this case, I find that it is evidence that I do not accept and in addition I find that it does not have the effect of raising a reasonable doubt. I come to this conclusion giving every consideration to the report of Dr. Gojer and B.B.'s exceptionalities. In both examination in-chief and crossexamination, B.B. was treated by counsel with considerable deference. Even allowing for that and the report of Dr. Gojer and B.B.'s overall mental functioning, there are several matters in his evidence that cause me concern.
¶ 8 B.B. responded to many queries with answers that were essentially, "I don't remember." It was my impression that much of what he testified to was more in the nature of his belief rather than actual memory. In other words his denials often seemed to be based on a belief it didn't happen because he was not "that type of person." I acknowledge in stating this that this may also be a reflection of the general memory difficulties that B.B. is subject to as commented upon in Dr. Gojer's report. Nonetheless, the reality remains that much of what B.B. testified to was based more on belief than actual memory.
¶ 9 Concerning the piggyback incidents, B.B. testified in examination in-chief that he could not remember the number of times he gave [the complainant] a piggyback. He was asked the same question in cross-examination and he replied that he thought he gave [the complainant] piggybacks "about twice." He was asked if he gave that answer because it was essentially the same as the testimony of [the complainant]. His response to that was that he said "about twice by accident." This evidence caused me some concern.
¶ 10 As to the first alleged incident in his apartment, he was asked if he remembered asking [the complainant] if he could touch her pee-pee. His answer to this was essentially that he didn't remember but it was possible that he did. Even allowing for B.B.'s apparent easy suggestibility, this answer caused me some concern. Also, in line with what I just stated above, he was also asked concerning this alleged incident as to whether he told her that it would be their secret and that if she told anyone she wouldn't be the princess that he thought she was.
¶ 11 His evidence on this was in substance that he didn't recall saying either of those things and he didn't think that he did. These rather hesitant denials caused me some concern.
¶ 12 In coming to these conclusions I am also aware that when a defence is based on a general denial of allegations that there is, as a result thereof, little an accused person can say except to deny the allegations. In these circumstances there is not a great deal of evidence before the Court from an accused by which a Court can look to and assess objectively as to its credibility and reliability. These circumstances are not to be held against an accused when applying the reasonable doubt standard.
¶ 13 I now turn to an analysis of the evidence of [the complainant], on whose evidence the Crown's case rests. As I have stated, the Crown has acknowledged there are significant inconsistencies in her evidence that the Court is required to consider in determining whether or not the reasonable doubt standard has been met. These inconsistencies can be stated relatively briefly.
¶ 14 Considering the alleged piggybacks in examination in-chief, [the complainant] stated that they occurred "like two or three times." Her evidence in-chief then developed that there were only two occasions when the accused gave her a piggyback with "like three, four months" between them. She affirmed the fact of only two piggybacks when her cross-examination occurred. She also asserted in cross-examination that as to the first piggyback she thought it may well have been an accident but when it occurred on the second piggyback she knew it was no accident but was a deliberate touching of her vaginal area by the accused.
¶ 15 This evidence was materially inconsistent with her statement made to Detective Neill in June 16, 2011. On that occasion she asserted that the accused gave her piggyback rides "so many times." It is clear from her statement that she was in substance saying that there was simply too many piggybacks to estimate the number. She also went on to assert in this statement that through all of these piggybacks she always thought it was an accident and it was only when she got older and began to understand more that she realized that these touchings of her vaginal area were deliberate. She acknowledged in cross-examination that her evidence in Court was "very, very different" from her evidence given in her statement to Officer Neill.
¶ 16 As to the incident in the accused's bedroom (the first alleged incident), she testified in examination in-chief that the accused asked if he could touch her pee-pee and she said, "Yeah", not understanding what the accused meant by the question. She then went on to describe the accused touching her in her vaginal area. The touching was under her dress and underwear and inside her vagina. The accused then made the comment about essentially she was not to tell anyone or she wouldn't be the princess he thought she was. She left the room, returning to the room where the other kids were. In this narrative she never suggests the accused fondled her anywhere but in her vaginal area. In cross-examination on August 31st she acknowledged her evidence that the accused touched her only in her vaginal area in this incident. However, she told Officer Neill in her statement of April 6th, 2011, that the accused was touching her "everywhere", asserting that he touched her not only in her vaginal area but also on her butt and breast area. This assertion was repeated twice in that statement. She also told Neill that she was scared and she ran out of the room to her mother. While it is a minor matter whether she went to her mother or to the room where the other children were after the incident was over, the Crown has acknowledged that there is a material inconsistency in her Court testimony to the effect that the accused fondled only her vaginal area, whereas to Detective Neill she asserted that he also touched her butt and breasts.
¶ 17 As to the alleged incident that occurred on the couch in the youth room, in examination in-chief she said she first became aware of the accused when she heard footsteps entering the room and that the defendant was approximately half way across the room when she realized it was him. In cross-examination she agreed with her evidence in-chief in that the accused was about 10 feet away when she knew it was him. All of this was in contradiction to her statement to Officer Neill in April 6th, 2011 where she in substance stated that she was sleeping and that she was awakened to find the accused touching her. This clearly was different from her evidence in examination in-chief and cross-examination that she essentially saw the accused enter the room. Further, in cross-examination she said that the touching of her vaginal area was skin on skin. She also agreed that her evidence in examination in-chief was that she essentially told Mr. Ponesse that the accused tried to touch her vagina but, apparently, did not. She was now, in-cross examination, asserting that he in fact did. She also agreed that she failed to tell Officer Neill that the touching of her vagina was skin on skin and she agreed that she deliberately chose not to tell Officer Neill this. She explained the discrepancy by stating that she was older and did not want to be blamed for what occurred.
¶ 18 The Crown acknowledged in submissions that these are in substance inconsistencies of some significance that the Court must consider in assessing her reliability with respect to this incident.
¶ 19 As to the incident in [her friend's] home, she testified in-chief essentially that the accused put his hand beneath her stockings and underwear and touched her vagina. In-chief she said the accused did this twice and he was about to do it a third time when she adjusted herself, causing the accused to remove his hand and she then left the room. Later in-chief she said that the accused did it once and he was about to do it five minutes later and as a result she left to go downstairs. In cross-examination she acknowledged her evidence in-chief that the touching was beneath both her dress and underwear. In her statement to Detective Neill in June 16, 2011, however, she asserted that the touching was over the clothing. That is to say that the touching was under her dress but over her stockings and underwear. In cross-examination she acknowledged in effect lying to Neill with respect to that. She also acknowledged that, while knowing of this incident at the time she gave her first statement to Detective Neill, she chose not to tell him even though this incident, though traumatic, was arguably less traumatic than the first one.
¶ 20 The above is a summary of the principle inconsistencies in [the complainant]'s evidence from which it is argued the Court should, on the basis ofthe third prong of the W.(D.) test, have a reasonable doubt. As I have stated, the Crown, it seemed to me, was virtually inviting the Court to acquit. I have considered these inconsistencies carefully and in their totality, balanced against the difficult task facing [the complainant] of being a 12-year-old endeavouring to recall incidents that happened years previously. Counsel were clear that her credibility is not so much in issue as was her reliability. With this I agree. In considering the totality of these inconsistencies, as carefully as I can. I have come to the conclusion that they do have the effect of raising a reasonable doubt as to the reliability of [the complainant]'s assertions on these incidents. While the Court remains certainly suspicious that there was inappropriate touching visited upon [the complainant] by the accused, the inconsistencies in [the complainant]'s evidence are such that I find I am not able to conclude that the allegations have been made out to the exclusion of all reasonable doubt. Accordingly the accused will be acquitted on all counts.