Crown:  M. Gardiner, Assistant Crown Attorney, Toronto
Defence:  Craig Penney, Sexual Interference Lawyer, Toronto

¶ 1  THE COURT:  These are my oral reasons for judgment in the matter of E.Q. I start by thanking both counsel for a very fair and thorough approach to the case on both sides. It was very helpful. Mr. E.Q. is charged with the sexual assault and sexual interference of his niece. [The complainant]'s evidence is that her uncle, Mr. E.Q., would sexually assault her on a regular basis whenever she would be at his house. He would put his hand under her shirt, and towards the end, down her pants. This would usually happen in Mr. E.Q.'s basement. [The complainant]'s young cousins and sister would be in the basement as the assaults occurred. She estimated that they occurred maybe 200 times, and on almost all occasions her sister and cousins were there. [The complainant] insisted that one of the many occasions was at her cousin's birthday party on June 21, 2003. I note that there was significant defence evidence suggesting [the complainant] had not been at the house on that day. The abuse was eventually disclosed to [her doctor], who informed [the complainant]'s mother. This led to the laying of the charges.

¶ 2   Mr. E.Q. testified at trial. He denied any sexual abuse of his niece. The defence argues that in the face of Mr. E.Q.'s denial and the circumstances of the case, there cannot be a conviction. In particular, the defence asserts that it is highly improbable so many acts of sexual assault could take place in the presence of other children without someone noticing, and that it is improbable that Mr. E.Q. would have chosen to sexually assault his niece that many times in front of so many others. I must admit, I found that improbability to be the most difficult part of the case.

¶ 3  I found [the complainant] herself to be a credible witness. She testified in a straightforward manner, and I did not find that she was shaken in cross-examination. The one area that was a little confusing was her disclosure to [her doctor]. However, I did not find the inconsistencies particularly significant. Similarly, the problems that led her to [her doctor], namely, her attempts to harm herself, cut both ways. They might be indicative of a child who is troubled and apt to mislead, or they might be seen as the result of a child coming to grips with this kind of sexual abuse. Based on [the complainant]'s testimony alone, I would conclude that it is more probable than not that the offences occurred. However, the ultimate test is whether the Crown has proven on all of the evidence beyond a doubt that they occurred.

¶ 4   Mr. E.Q.'s evidence was rather neutral. He denied the allegations, but I cannot say that I believe him, or that his denial alone raises any doubt for me.

¶ 5   In the end, I am left with the following. Firstly, [the complainant]'s evidence of repeated sexual abuse, that I am inclined to believe. Secondly, Mr. E.Q.'s denial of any sexual abuse, which I am inclined to disbelieve. Thirdly, defence evidence suggesting that [the complainant] had not been at the E.Q. home at one of the important dates alleged. Fourthly, the improbability that so many incidents of sexual abuse would have been perpetrated in front of other children and without anyone noticing.

¶ 6  I need to be mindful of the Court of Appeal's direction in regards to cases of this type. In R. v. Stewart, 18 O.R. (3d) 509, a case where a niece alleged that her uncle sexually abused her up to 200 times, the court stated as follows. "As frequently happens in sexual offences, particularly by family members against young children, there is no confirmatory evidence of the alleged's criminal acts in the case on appeal. Thus, the burden of establishing that a crime has been committed and that the appellant is the perpetrator, rests on the testimony of one young witness. My concern in this case is that the trial judge, having made a positive finding of credibility in favour of the complainant, does not appear to have given serious consideration to the possibility that on the whole of the evidence there is a reasonable doubt that the alleged acts did, in fact, occur."

¶ 7  The Court of Appeal goes on to cite the case of R. v. K. where Wood, J.A. stated the following: "I have already alluded to the danger in a case where the evidence consists primarily of the allegations of a complainant and the denial of the accused that the trier of fact will see the issue as one of deciding whom to believe. Earlier in the judgment I noted the gender related stereo typical thinking that led to assumptions about the credibility of complainants in sexual cases, which we have at long last discarded as totally inappropriate. It is important to ensure that they are not replaced by an equally pernicious set of assumption about the believability of complainants, which would have the effect of shifting the burden of proof to those accused of such crimes."

¶ 8  The Court of Appeal continued and quoted the case of R. v. J., [1989] O.J. No. 2724, where Galligan, J.A. stated, "While there is no scale upon which conflicting evils can be weighed, it should be remembered that revolting as child sexual abuse is, it would horrible for an innocent person to be convicted of it. For that reason, I think the courts must be vigilant to punish child sexual abusers does not erode the rules which the courts have developed over the centuries to prevent the conviction of the innocent."

¶ 9  And then in the case of R. v. Norman, 16 O.R. (3d) 295, the Ontario Court of Appeal refers to the British Columbia Court of Appeal in Faryna v. Chourney, [1952] 2 D.L.R. 354, at 357, as follows, "The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether the personal demeanor of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions."

¶ 10  Having regard to all of the above, I conclude that while it is likely the sexual abuse occurred in this case, the Crown has not proven its case beyond a reasonable doubt. And for that reason, the charges are dismissed. Mr. E.Q. is free to go.