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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 212, 212, 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 at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant's sexual integrity and that conduct 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 complainant of the right to make an application for the order; and
(b) on application made by the complainant, the prosecutor or any such witness, make the order.
486.6 OFFENCE — (1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
ONTARIO COURT OF JUSTICE
Between:
Her Majesty the Queen
— and —
E.H.
Before: Justice P.T. O'Marra
Heard on: June 25, 26, 27, 28, 29, 2018
Reasons for Judgment released on: October 4, 2018
Counsel:
Ryan Morrow — counsel for the Crown
Breese Davies and Owen Goddard — counsel for the accused
P.T. O'Marra J.:
INTRODUCTION
1E.H. pled not guilty to two counts of sexual assaulting and two counts of sexually exploiting his girlfriend's two children, W.M. (1) and V.M. during a three (3) year period ending on or about 2004.
2At trial, the complainants, now adults, and their mother, W.M. testified for the prosecution. E.H. testified on his own behalf.
FAMILY BACKGROUND
3The two complainants are half-sisters: V.M. (D.O.B. […], 1989) and W.M. (1) (D.O.B. […], 1984). W.M. is their biological mother. Both V.M. and W.M. (1) have different biological fathers. B. is the twin brother of W.M. (1). V. is the father of W.M. (1) and B. W.M. separated from V. and subsequently divorced in 2001. V. was a harsh disciplinarian. On V.M.'s birthday V. knocked out W.M.'s front tooth which led to the separation. The family continued to reside in a five (5) level back split-level townhouse at M Crescent in the City of Brampton.
4Within a few months of W.M.'s separation she began to date E.H. At the time, E.H. worked at the local convenience store. Originally, E.H. came from Iraq. The majority of his family still resided in Iraq. At the time E.H. was a permanent resident in Canada living in Brampton. In addition to working part time at the neighbourhood convenience store, E.H. attended a two-year program at Sheridan College in business administration and accounting. Eventually E.H. graduated and found a full-time contract position at BOC Gases. Often W.M. brought her children to the store for candy and treats. After dating for a short period of time, E.H. began to stay overnight, but still maintained his own residence. V.M. did not like E.H. since he was the first man to date her mother after the divorce.
5At the time W.M. worked as a law clerk in a Toronto law firm. Often, she worked very late. When she started dating E.H., they often went out to a bar after work. Occasionally, the couple ended up going to E.H.'s residence which was not far from 12 Martindale Crescent. W.M. always returned home to her children before they woke up.
6V.M. slept on the bottom floor in her own bedroom which was a converted office. W.M. (1) slept on the top floor in a bedroom close to where her mother and E.H. slept. V.M. was approximately five (5) years older than W.M. (1) and as the 'big' sister she was always more outspoken at home. When V. was abusive to the twins she often stepped in in order to protect her siblings. With respect to her feelings towards E.H., V.M. (1) did not like her mother seeing him. V.M. called him names like "douche bag" and "a looser". She told E.H. that she did not like the kind of food that he made nor his accent. E.H. did get angry at V.M. (1) and asked her to stop making fun of him.
7When W.M. and V. divorced W.M. (1) was approximately five (5) or six (6) years old. Afterwards W.M. (1) recalled visiting the convenience store and meeting E.H. W.M. (1) liked E.H.
8According to W.M. E.H. stayed over approximately two or three times a week. They started dating in January 2002 and the relationship ended approximately in the summer of 2003 after E.H. left for Iraq. W.M. confirmed that the relationship between V.M. and E.H. was very tense but the relationship with W.M. (1) was normal. W.M. recalled that V.M had an overall disdain towards E.H. She detested him.
9The reason for the break up in the relationship according to W.M. was that E.H.'s family in Iraq did not approve of W.M. According to E.H., he never had strong enough feelings to marry W.M. However, he was crazy about her and wanted to spend a lot of time with W.M. But, E.H. never wanted to move in with W.M. and her family. He only kept a few articles of clothing – underwear, shorts and t-shirts at their house. According to E.H. he only stayed over on weekends, mostly on Saturdays. Fridays he spent with his aunt and uncle. E.H. confirmed that he had a bad relationship with V.M. He stayed away from her as she was always making fun of E.H. He had a good relationship with W.M. (1).
THE ALLEGED ASSAULTS
V.M.'s Evidence
10V.M. was twenty-eight (28) years old. She testified about events that happened to her when she was approximately thirteen (13) to fifteen (15) years of age. Currently, V.M. is a financial planner working full time.
11V.M. recalled that she was twelve (12) years of age and was going into grade seven (7) when her mother separated from her father V. Originally, she shared a room with her sister, W.M. (1) and approximately two years later V.M. moved downstairs and into her own bedroom, which was originally an office. All other bedrooms were above her level.
12V.M. first saw E.H. at the neighbourhood convenience store as a clerk. A few months later she saw him sitting in his car with her mother in the driveway of their townhouse. This was the first man that her mother started to date after the divorce.
13Within a few months E.H. started to stay overnight. V.M. believed that at first he would just stay for dinner and then he would leave. But eventually he began to stay over so often that it felt like he had moved in but he still kept his own place.
14Since V.M. was the eldest she was the last to go to bed. She slept on a single-twin bed with her bedroom light turned off. She slept in her underwear or shorts and a bra. Most times she fell asleep facing a window on her stomach or side with the covers bunched up beside her. Her bedroom door was closed most of the time and did not have a lock on the door.
15V.M. described that while she was asleep, or about to fall asleep, E.H. often came into her bedroom, laid beside or on top of her, scratched her back and played with her hair. The touching progressed to E.H. rubbing her breasts over and under her shirt. He went under her bra and fondled her breasts. He undid her bra. While he laid on top of her, E.H. simulated sexual intercourse and rubbed his erect penis on her buttocks. She described the action as 'dry humping'.
16V.M. stated that she often heard the door open and saw E.H. standing in the door way. She testified that she was initially dazed. Since there was not a lot of room on the bed she became more aware of her surroundings and what E.H. was doing. During the assaults she laid there in shock and wondered why was this happening? She was terrified and too scared to say anything.
17V.M. testified that she knew that it was E.H. in her room as she recognized his white t-shirt, 'tighty whities', and a gold chain that he wore. Later in her direct examination she described the shirt that he wore as a "muscle shirt".
18Since V.M. was not fully developed she recalled that E.H. would cup her breast with the palm of his hand.
19She recalled that during the first time that he did not go under her clothing. However, during the sexual assaults at a minimum, E.H. always touched her breasts and rubbed his erect penis on her buttocks.
20V.M. recalled that E.H. stated words to the effect, 'how does it feel or how does this make you feel?' V.M did not resist but pretended that she was asleep. However, she often rolled over onto her stomach and E.H. rubbed his erect penis on her buttocks.
21She testified that the assaults happened so often that they blended together. V.M. could not provide the exact number of occasions that she was sexually assaulted by E.H., however, she stated that some weeks the assaults were more frequent than other weeks. The sexual assaults occurred during the majority of her mother's relationship with E.H. and always in V.M.'s bedroom. However, V.M recalled one incident whereby E.H. got on top of V.M. while she was lying on the living room floor and dry humped her.
22The assaults concluded by E.H. simply leaving her bedroom. V.M. was certain that E.H. entered or left her bedroom with an erect penis. V.M. was not certain whether E.H. ejaculated. V.M. estimated that the assaults lasted no more than one (1) hour but not less than twenty (20) minutes.
23V.M. testified that she was too scared to tell her mother about the assaults. V.M. recalled a telephone conversation with her mother's friend that lived in the Beaches. V.M. was told that her mother was so smitten by E.H. that, if necessary, she would choose E.H. over her in a dispute. Although V.M. was "mouthy" she was still frightened. V.M. acknowledged that many of the disputes between her mother and E.H. were about V.M. Although this conversation was hearsay, it was relevant to her state of fear and trepidation. Nevertheless, she recalled one incident whereby she called E.H. a "creep or a pervert" in front of her mother and in response, E.H. threw a cellphone at her. She testified that she did this as a method of indirectly reaching out to her mother about what was occurring at night.
24In cross-examination, V.M. conceded that she did not hide from her mother the fact that V.M. disapproved of E.H. from the very beginning. V.M. told the police on September 15, 2010 that there was always tension in the house over the fact that they did not get along. However, in her cross-examination she seemed to suggest that was not always the case and that there were moments where she and E.H. got along. However, she acknowledged that she felt that he was a "looser" and that she did call him a "douche bag". She testified that she called him a douche bag "most likely after he molested" her. E.H. did not like her behaviour and often asked her to stop making fun of him.
25In cross-examination, V.M. agreed that when she described the 'first time' that E.H. had sexually assaulted her at the first trial of this matter on November 1, 2011 she told the court that he had also touched her buttocks. This fact was absent in her direct examination during this trial. She stated in her testimony that as the assaults increased over time the touching became more progressive, however, she did not tell the police that the assaults progressed over time. In fact, she told the police that in regards to the assaults that it was the "…same process every night". V.M. testified in her direct examination that during the first incident she laid in bed frozen, however in the previous trial she testified at page 36 of the trial transcript that she tried to "roll over a little bit onto her stomach, so that he was unable to touch my chest".
26In cross-examination, V.M. admitted that in her statement to the police in 2010 on page 11 that the assaults lasted 45 minutes. When questioned about the frequency of the assaults, V.M. stated to the police that they occurred two (2) or three (3) times a week, but later confessed that she did not really know. However, in cross-examination V.M. testified that the assaults averaged "once a week".
27V.M. testified that she disagreed with her mother's testimony that E.H. only stayed overnight every other week. According to V.M. he stayed over "more often than not".
28V.M. admitted in cross-examination that she was frightened about her mother's friend's conversation that left her with the distinct impression that her mother would pick E.H. over V.M. However, she was certain that if her mother became aware that E.H. did something inappropriate to V.M. that her mother would end the relationship. Nevertheless, V.M. did not say anything to her mother because she was ashamed.
29V.M. recalled an incident whereby E.H. and she had an argument about whether or not E.H. intentionally elbowed her in her breast and yelled about the incident to her mother. V.M. claimed that she neither intentionally flung herself at E.H. to cause the incident nor was this a part of her campaign to break up her mother's relationship to get rid of E.H. V.M. felt that there was nothing she could do to get rid of E.H. until her mother was ready.
30V.M. agreed in cross-examination that even after their break up, V.M. did not have the courage to tell her mother about the assaults as her mother was very upset about the dissolution of their relationship.
31In cross-examination V.M. rejected the defence suggestions that she was never sexually assaulted by E.H.
W.M. (1)'s Evidence
32W.M. (1) was 23 years old. She testified about events that happened to her when she was approximately six (6) to eight (8) years old. Currently W.M. (1) is a dental assistant.
33W.M. (1) recalled that her bedroom was on the top level of their black split townhouse. Her brother and mother's bedrooms and the washroom were located on that level as well.
34After her mother's divorce, W.M. (1) saw E.H. for the first time working at the neighbourhood convenience store. Shortly after that E.H. started to date her mother and visited the home. Eventually E.H. stayed overnight in her mother's bedroom "once or twice a week". Gradually the overnights increased as the relationship progressed.
35W.M. (1) testified that E.H. seemed nice and that she did not mind that her mother dated him.
36W.M. (1) described that E.H. entered her bedroom at night on four (4) occasions, when she was asleep or half asleep, and touched her inappropriately. Understandably, W.M. (1) could not provide any dates and times. However, she testified that E.H. was in the room for approximately five (5) minutes. She could not remember how the assaults commenced. She did recall that E.H. stood by her bed towards the middle, "his face was a shadow", he said "something to me" and then he started "doing stuff". Later in her direct examination W.M.(1) was unsure if he actually said anything but stated she thought that she heard his voice but was not "100% sure". W.M. (1) indicated that on these occasions E.H. touched her vagina both under and over her clothing and sometimes on her bum. However, W.M. (1) could not recall the number of occasions that her bum was "smacked and grabbed". She described the movement of E.H.'s hand on her vagina as an "up and down" motion and "all over". W.M.(1) believed that E.H. touched her buttocks and vagina separately while he stood. She claimed that he pulled down her pajama bottoms to her knees. W.M. (1) did not remember if E.H. ever fondled her above the waist.
37Although she testified that the events were akin to a dream because she was asleep, W.M. (1) was satisfied that they were real as she remembered "them physically happening to me". She did not tell anyone about the assaults as she did not quite comprehend what exactly had happened and was confused. Nevertheless, W.M. (1) did have an uncomfortable feeling about being in E.H.'s presence. W.M. (1) testified that after the break-up of her mother's relationship with E.H., she put the assaults out of her mind until she disclosed the assaults in 2010 when she was in high school.
38In cross-examination, W.M. (1) agreed that her memory of the occurrences was vague and that she did not remember very much. She testified that she never conceived of the possibility that assaults were just a dream. However, W.M. (1) agreed that she did state the following to the police in 2010:
W.M.: Mmm, I don't think so.
LAURYSSEN: You don't think they were always on you or you think they always were on you or …
W.M.: I think they were always on me.
LAURYSSEN: Okay. Now, you talk about him touching your bum.
W.M.: Mm-hmm. Was that every time or was that just on one occasion he touched your bum?
W.M.: I think it was just-, yeah.
LAURYSSEN: Yeah, what?
W.M.: One time.
LAURYSSEN: Okay. And did-, can you describe that time for me?
W.M.: Uh, I think-, I don't remember. I just-, I don't know. I don't, I don't, I don't remember.
LAURYSSEN: Okay. Now, have you always remembered this or is this something that you've just recently remembered?
18:37
W.M.: I don't know. I always had like dreams about it, so-, and I always thought it was just like dreams, but I knew it was real.
LAURYSSEN: Okay. So …
W.M.: I always thought it was a dream, but I don't know.
LAURYSSEN: What do you mean that you had dreams about it? Can you explain that to me?
W.M.: I don't know. I just had dreams about it. I thought it was like not real, and, yeah.
LAURYSSEN: What would make you think that it was real versus a dream?
W.M.: 'Cause I kn-, I knew it happened …
LAURYSSEN: Mm-hmm.
W.M.: … because I don't kn-, 'cause I couldn't like think of something like that and dream about it. I don't know. It's kinda weird.
LAURYSSEN: Okay. So correct me if I'm wrong. From what I hear you're saying is that you used to dream that this had happened …
W.M.: Like after. Like when I got older.
LAURYSSEN: Okay. Explain that to me.
18:38
W.M.: Like I don't know, I think around like grade five-ish, I had like dreams about it and stuff. But I know it happened for real, but I just had dreams about it.
39W.M. (1) agreed that she did not have any memory of when the assaults started. She acknowledged that when she was interviewed by the police that she did have difficulty remembering details beyond telling the police there was "touching…and stuff". Furthermore, when W.M. (1) was pressed for more details by the police regarding the location of the touching she motioned over her lap and stated "my private part" and "underneath". When W.M. (1) was interviewed by the police she could not describe the touching or how E.H. moved his hand, however, in examination in chief she recalled that E.H.'s hand move "up and down". As well, contrary to her testimony in this trial, W.M. (1) told the police eight (8) years earlier that she could not remember whether or not E.H. wore any clothing or if he said anything to her when he touched her. In her direct examination W.M. (1) recalled the assaults ended when E.H. left her bedroom, however, she told the police that she did not have a memory of E.H. leaving her room. W.M. (1) explained to the police that her clothing was always on her and were never removed, however she testified that her bottoms were always pulled down to her knees. W.M. (1) told the police that her buttocks was only touched once and could not recall how E.H. touched her buttocks, however she testified that she could not recall the number of times her bum was touched and described when her bum was touched by E.H. he "grabbed and smacked" it. On November 2, 2011, W.M. (1) testified that she "moved" when she was touched by E.H. W.M. (1) testified that she rolled over to avoid the touching.
W.M.'s Evidence:
40W.M. was fifty-three (53) years old. She was and still is a law clerk at a law firm in Toronto. She was divorced in 2001.
41I do not intend to spend a lot of time outlining W.M.'s evidence as will be explained further on in my reasons.
42W.M. was the recipient of W.M. (1)'s and V.M.'s disclosure that E.H. had sexually assaulted her daughters. I will expand upon her role in the disclosure process later in these reasons.
43W.M. described her relationship with E.H.in positive terms and was in love with him. After they initially dated she estimated that E.H. stayed over approximately once every week or every two weeks until the end of the relationship. W.M. acknowledged that there was friction between V.M. and E.H. but not with W.M. (1). W.M. remembered V.M. stating that she could not stand E.H., and that he smelled like garlic.
44W.M. testified that when E.H. stayed over that they would always go to sleep together but he would go to the washroom first and then say 'good night' to her daughters. W.M. testified that she never woke up without E.H. beside her. However, she also testified that she was a heavy sleeper. W.M. stated that she thought that it was sweet that he wanted to tuck in the kids, but she did not observe E.H. ever doing that. In cross examination, W.M. was confronted with the fact that she had never told the police or the court in the original trial of this matter that E.H. said the he was going to say good night to the children before going to bed. It was at this stage of the cross-examination that W.M. felt that as time had gone by she remembered more and more about her relationship with E.H. and more or less conceded that she has a different perspective on the relationship since the allegations against E.H. came to light. In other words, W.M. now sees everything through a different lens.
45W.M. further stated that E.H. never put the children to bed.
46When it came to offering a description of her daughters' personalities during this period of time, W.M. testified that W.M. (1) was the follower and peacemaker but V.M. was the 'boss'.
47W.M. testified that she recalled an incident whereby V.M. called E.H. a "pervert" and claimed that he "always touches my arm". W.M. testified that she felt that she should have listened to her daughter but she was in love with E.H.
48According to W.M. the relationship ended when E.H. returned to Iraq in the summer of 2003. She believed that E.H. travelled to Iraq to discuss W.M with his family. But, when he was in Iraq he called W.M. and broke off the relationship. He claimed that his family would not accept her.
49In cross-examination, W.M. acknowledged that V.M. had witnessed her former husband, V. assault W.M. As well, V. was physically abusive to V.M. In fact, on one occasion V. smashed a picture over V.M.'s head. V.M. agreed that V.M. was very much the type of teenager that did speak her mind. She claimed that when V.M accused E.H. of being a pervert and touching her arm, she had a discussion with E.H. and he stated that "maybe I go in and massage her back".
50In cross-examination, W.M testified that it was not common for E.H. to stay over through the week because of her job and the kids were asleep. She agreed that E.H. was busy working and going to school during the week. She denied that they often went out together to a bar when the twins went to bed.
51In cross-examination, W.M. testified that near the end of her relationship with E.H., V.M. hated E.H. and became more and more outspoken about her abject disdain. W.M. admitted she asked E.H. to be more understanding towards V.M.
52In cross-examination W.M. did not recall an incident that V.M. accused E.H. of brushing up against her breast.
53W.M. disagreed with the suggestion by counsel that she wanted the relationship more than he did and perhaps a life together. They did talk about marriage and became so close that he wanted to try moving into the house. W.M. admitted that she was heartbroken when they broke up but V.M. was very happy.
E.H.'s Evidence:
54Currently E.H. is a project manager for a company. E.H. testified that he came alone to Canada in 1996 from Iraq. The only family at the time in Canada were his aunt and uncle that lived in Brampton. He took English courses and attended Sheridan College. During this time he worked at a Petro Canada Gas station and a convenience store. He testified that initially he dated W.M. in the summer of 2003 but corrected that later in his testimony.
55After he met W.M. and found out that she was not married, he asked her out on a date. During their first date E.H. asked W.M. if she would be his "best friend". According to E.H. that expression in his culture meant that they could have a sexual relationship but with no commitment and no monogamy. E.H. testified that he was not looking for a committed relationship. He was not looking to get married at this stage in his life but his plan was when he was prepared to marry, he would only marry a woman from the Assyrian culture.
56E.H. testified that when he dated W.M. he was so busy working at the store part time and working full time on a contract at ODC Gases that he only stayed over at W.M.'s house on the weekends. He stated that this occurred usually on Saturday nights as he maintained that every Friday night he visited his uncle "all night".
57E.H. testified that after dating for approximately two months he was invited to W.M's home for dinner. E.H. met the twins, B. and W.M. (1), V.M. was in Edmonton with her father. E.H. testified that he estimated that he ate dinner at the house on average two (2) or three (3) times a week and slept over "three (3) times a month on average". But later in his evidence he stated that the frequency of staying over changed from twice a month to four (4) times a month. He also estimated that they went out to a bar or night club approximately three (3) times a month. According to E.H. they broke up in April 2003 and did get back together at the end of September or October 2003. He absolutely denied that he ever tested out a co-habitation arrangement by moving in for consecutive days. E.H. was adamant that he never wanted to move in. He did acknowledge that he kept some articles of clothing at the house such as t-shirts and shorts. E.H. did not think that during their relationship that he ever went to the house, spent time with the children and stayed over. The next question asked by counsel was whether he ever stayed over after eating dinner? E.H. responded "never". He explained that he never stayed over because he was too busy taking courses in the evening and working.
58E.H. testified that there were two occasions when he was called upon to look after the children. On one occasion he babysat the children when W.M. had a birthday party to attend. The children played on the driveway and he took the kids to watch the airplanes land and take off. The second occasion was when E.H. was asked to pick up the other children after B. broke his arm at school.
59E.H. described having a good relationship with W.M. (1). She was very quiet and kind. He testified that they joked around and W.M. (1) told E.H. riddles. Often W.M. (1) wanted to sit beside E.H. on the couch. However, he denied ever going into her bedroom by himself. But, there was one occasion that W.M. brought E.H. into W.M.(1)'s bedroom and proudly showed him how W.M. (1) re-arranged the furniture in her bedroom.
60E.H. recounted in his testimony that his relationship with V.M. was strained. V.M. often made fun of his accent and his eating habits. V.M. detested E.H. and he was aware of it. Once he yelled at V.M. to stop but that only caused more friction between V.M. and himself. E.H. testified that it was rare that V.M. ate dinner with the family, if he was present. E.H. testified that he entered V.M.'s bedroom twice with W.M. The first occasion was to see her walls that were covered in magazine pictures that he had bought her. The second occasion was to see an item or items in her room. The evidence, or the transcription of previous evidence coupled with E.H.'s accent made it impossible to figure out the reason that he entered her V.M.'s bedroom. Both counsels agreed that it was not an important point.
61E.H. testified that V.M. did call him a pervert but he denied that he threw a cellphone in response. E.H. claimed that he did not even understand the word and that W.M. had to explain the meaning of the word. W.M. talked to V.M and he was told that it was nothing to worry about.
62E.H. denied that he ever admitted to W.M. that he massaged V.M.'s arm. He did not think that W.M. ever discussed the fact that it was alleged that he touched V.M.'s arm. However, E.H. did recall an incident in the kitchen when he attempted to put a glass away after dinner and V.M. accused him of touching her breast.
63E.H. testified that occasionally they argued about V.M.
64E.H. denied the sexual touchings described by V.M and W.M. (1).
65In cross-examination, E.H. conceded that the couple argued about whether they should marry or move in together. W.M. was more committed to the relationship than E.H. But he also said at the same time that he wanted to spend a lot of time with W.M.
66In regards to whether or not W.M. wanted to leave her children alone at night so E.H. and she could go out, E.H. was contradicted on the frequency that this occurred. In previous testimony he indicated that most of the time W.M did not want to leave her children. However, he testified that "only in the beginning" she did not want to leave her children.
67E.H. struggled to recall the specifics about dates, events and timelines during the relationship. He testified that sixteen (16) years later his memory has generally faded, however, he stated that specifics and important points became clearer as time went by. Since being charged he has looked at the relationship and interactions with the children through a different lens.
68In cross-examination, E.H. agreed that he ate dinner at the house with the family approximately two to three times a week, and often after dinner he watched television with the family as well. Afterwards he went home rather than staying the night.
69In cross-examination, E.H. claimed that he kept t-shirts and different coloured underwear at the house, including a toothbrush that W.M. provided. He recalled that he might have worn white coloured underwear. With respect to the t-shirt it had short sleeves. He agreed that he wore a cross around his neck. However, the cross was visible when he wore a dress shirt but hidden when he wore his t-shirt.
70E.H. was questioned about his relationship with the twins. He testified that they loved him. He agreed that he had a particularly strong relationship with W.M. (1). He was questioned if he had ever taken W.M. (1) to the beach which he denied. However, that answer seemed to be contradicted by his testimony at the first trial whereby he acknowledged that he had taken the "kids to the beach" in the past. E.H. felt that he answered the question truthfully as the question seemed to import that notion whether or not he only took W.M. (1) to the beach alone.
71E.H. conceded in cross-examination that he was considered a part of the family. However, the relationship with V.M. was not very good and they kept their distance from each other especially after the incident in the kitchen whereby V.M. claimed that E.H. touched her breast.
72E.H. claimed that although his work at BOC gases was closer to W.M.'s house than his own, he never slept over and then drove to work. Again, he maintained that he only stayed over two or three times a month and never on a week night nor two nights in a row. He maintained that although both he and W.M. (1) wanted to spend a lot of time together he never considered sleeping over on a week night and then driving to work. He testified that "85% of the time" he slept over after going to a bar on a weekend.
73When he did stay over, E.H. testified that he only left the bedroom at night to use the washroom after having sex with W.M. However, that position seemed to be somewhat inconsistent with his testimony in the first trial whereby E.H. testified to the following:
Q. Now, were you, were you doing your own laundry there?
A. No, I, I was doing my own laundry at my place.
Q. I see. Okay. Now, let's go back to the nights that you would, would sleep there. Did you ever have to wake up in the middle of the night for any reason, when you were sleeping there?
A. Not really. We were – I don't think we got up and like, because were sleeping late and until morning we were sleeping together, so I don't remember we were get up in middle of night to go to anywhere outside the room.
Q. Now, you're saying we. I'm asking just about you. Did you ever have to get up in the middle of the night?
A. No.
Q. Never?
A. I don't remember if I ever left the room in middle of night.
Q. And is it your evidence that you – sorry, and during this time when you guys would go back and you would stay over, your evidence to defence counsel was that you never left the room.
A. I don't remember ever I left the room.
Q. You would just go, go to sleep and that's it till morning. Right?
A. Yes.
Q. Not one time did you ever leave that bedroom in two years?
A. That' what I remember. Never.
74E.H. was adamant that he never participated in putting the children to bed. Furthermore, he never woke up in the middle of the night and went to the bathroom.
The Disclosure Process:
75In 2010, W.M. (1) was in grade nine (9) in high school. She was fifteen (15) years old and had a very difficult time concentrating while at school. She was very depressed which led to her skipping school. Eventually her mother discovered that W.M. (1) and her twin brother conspired to hide the absences. W.M. (1) in fact missed most of the school year. W.M. was very angry with her daughter to the extent that W.M. was "flipping out" and "yelling". This was a major catastrophe in the family. W.M (1) was generally a well behaved child and never had done anything like this before. W.M. was so angry with W.M. (1) that she threatened significant punishment such as the loss of her IPhone which according to W.M. (1) was akin to a "jail sentence".
76According to W.M. (1) during the midst of her mother's tirade she began to message and commenced a conversation with her sister, V.M. over Facebook. W.M. conceded that when she spoke to the police, she withheld the fact that her disclosure to her mother regarding the touching occurred in the context of her being in big trouble over her truancy. In her Facebook message to her sister, W.M. (1) indicated that "something happened" to her. Her sister asked W.M. (1) "what?" W.M. (1) typed "E....touched me". According to W.M. (1), her sister asked her "are you serious?" Her sister followed up with "the same thing happened to me". At no point did W.M. (1) tell her sister about the trouble she was already in with their mother. W.M. (1) recalled that W.M. received a telephone call shortly afterwards. W.M. came back into the room crying and accused W.M. (1) of lying. W.M. (1) testified that she heard her mother ask V.M. on the telephone what had happened. It was obvious her mother wanted more details. W.M. (1) testified that she did not hear what V.M. told her mother. Once the dust had settled, according to W.M. (1) her mother was anxious to report the matter to the police. W.M. (1) attended a police division on June 4, 2010 and provided her statement. In cross-examination, W.M. (1) denied that when W.M. talked to V.M. on the phone that she asked her mother what V.M. said to her mother. W.M. (1) denied that she said to her mother "did V. say that she just laid there?"
77In re-examination, W.M. (1) testified that at the time of her disclosure, she never provided "details" to her mother during the conversation. W.M. (1) explained that at the time that her and her mother had the argument over school she felt the need to talk to "someone" and that was why she reached out to V.M. W.M. (1) testified that when she wanted to talk to V.M. the thought of E.H. was "really bugging" W.M. (1), however, W.M. (1) did not have a clear recollection of how she felt at that moment in time.
78V.M. testified that the disclosure of the sexual assaults occurred when she lived in Edmonton, Alberta. She lived with a roommate, K.L. The roommate was not called to testify in this trial. V.M. confirmed that the disclosure occurred in the context of W.M. confronting W.M. (1) over her truancy and wanting to know the reasons.
79V.M. testified she asked W.M. (1) the reason for her absences and W.M. (1) responded that she was having nightmares about "E." (E.H.). According to V.M. her roommate, K.L. was in the room during the conversation with W.M. (1) and decided to call W.M. and told W.M. that "something happened to V." In cross-examination, V.M testified that the conversation with W.M. was "hazy" however the information about the sexual assaults came out through V.M, but, V.M. never provided W.M with the explicit details. W.M. did not recall if she asked V.M. whether or not E.H. penetrated or put something inside V.M. However, V.M. testified that if had she asked that question V.M. would have answered "no".
80In cross-examination, V.M. recalled that W.M. (1) told her that she had dreams but did not recollect that W.M. (1) mentioned the dreams were about E.H. However, in her testimony at the previous trial she testified that W.M. (1) told her during the conversation that her dreams were about E.H. V.M. testified that she and her sister have never discussed the details of the sexual assaults with each other since this was a "very tough subject with the family". V.M testified that after that telephone conversation, W.M. did call her back only to advise V.M. that E.H. had been charged with sexual assault. V.M. candidly stated that this has been the "hardest thing" that she has had to deal with. She has been overcome with guilt that her little sister who was only eight (8) at the time was sexually assaulted. It was at this point in her evidence that V.M. became very emotional.
81Finally, in cross-examination V.M. "strongly disagreed" with the defence's suggestion when V.M found out that W.M (1) was allegedly molested she only came forward in order to protect her younger sister and shift the narrative onto herself.
82W.M testified that the initial disclosure occurred in the context of her learning again that W.M. (1) was skipping school and that her son and W.M. (1) worked together to keep this fact from her. W.M. (1)'s truancy started at the beginning of the school year and became worse. W.M. (1) was attending a new school and had a difficult time adjusting and making new friends. Finally, a teacher called. W.M. discovered that her son erased the voicemail messages that were left from their school, which enraged W.M. W.M. (1)'s grades were awful and when W.M. confronted W.M. (1) about both her grades and truancy, W.M. (1) was confrontational and defensive. W.M. was at her wits end as she tried to figure out the reason for the deterioration of her daughter's grades. During the confrontation, according to W.M.'s previous testimony that she had "totally lost it" on W.M. (1). W.M. agreed that this was the first time that she really yelled at her youngest daughter. W.M. sent her daughter to her bedroom and threatened to take away her cellphone, laptop and computer privileges. W.M. agreed with counsel's suggestion that this was like "capital punishment" to W.M. (1). W.M. testified that it was at this point in time that W.M. (1) asked to speak to V.M. V.M. testified that W.M. (1) did not want her mother around when she Facebook messaged V.M. W.M. (1) went into W.M.'s bedroom and logged onto W.M.'s computer. W.M. admitted that she wanted to see what W.M. (1) messaged to her older sister. W.M. testified that she could see what her daughters were typing. She could not recall the exact words, however she did recall observing "do you know E.?" or "do you remember E.?" W.M. was certain that W.M. (1) had been touched by E.H., however she was unsure if she learned this from seeing the Facebook messages or that was something that K.L. said to her on the telephone. Within five (5) minutes V.M.'s roommate K.L. called the house. According to W.M. the phone call from K.L. "changed our lives". It was at this point in her evidence that W.M. became teary. After W.M. spoke to K.L. she had a conversation with V.M. and could not fathom that the very same thing had happened to her had happened to W.M. (1). W.M. testified that V.M. was "really mad and shocked". V.M. testified that she immediately asked V.M. why she never said anything to her. V.M. did ask V.M. what had happened. W.M. testified that "neither girl wanted to talk about it". During the conversation with V.M., W.M. recalled W.M. (1) stating "oh my god the same thing happened to her (V.M.)". W.M. testified that she did not get into "deep details" with both daughters and it was a difficult subject to discuss. However, W.M. learned that essentially the same thing happened to both daughters. W.M. testified that she never relayed whatever happened to one daughter to the other. With respect to the actual telephone conversation between V.M. and W.M, W.M. stated that it was not over a speaker phone. She was uncertain in her examination in chief if W.M (1) was beside her or in another room during the conversation.
83W.M. testified that to this day she has not discussed the details with her daughters as it was too painful.
84In cross-examination W.M. testified that W.M. (1) told her that when she was younger that she thought it was all a dream, however, she realized that the touching was real. According to her W.M., W.M. (1) told her that E.H. came in at night, touched her privates while she laid in her bed. W.M. testified that V.M. never mentioned that she was touched in the "private area". V.M told W.M. that she could not believe that the same thing had happened to my "little sister". W.M. testified that W.M. (1) said the same thing to her as well. In cross-examination W.M. admitted that in her previous testimony that she remembered W.M. (1) said to her "mommy, did V.W. just lie there just the way I did?"
Positions of the Parties:
The Crown:
85The Crown submitted that the evidence of each complainant should be applied on a count-to-count basis by applying the similar fact approach. The Crown urged the court to apply the evidence for the following purposes:
(i) To establish the occurrence of the actus reus.
(ii) To demonstrate a pattern of behaviour.
(iii) To rebut any notion of recent fabrication.
(iv) To the argument that the likelihood of both complainants independently concocting such similar allegations was remote.
(v) To add to the narrative especially in relation to the family dynamics between the parties.
86The Crown argued that the evidence was probative and highly relevant. It simply defied common sense that the high degree of similarities in the circumstances of the complainants' allegations were mere coincidences. Furthermore, the important task is to not focus the analysis of the similarities on the distinctive nature of the acts themselves, but in the circumstances in which those acts occurred. See: R. v. Gilbert, [2015] O.J. No. 6873 (C.A.) para. 63.
87The Crown submitted that the defence did not allege that there was another culprit that was in the vicinity that could have perpetrated these crimes. Therefore, in cases where the identity of the culprit is not in issue, the degree of similarity and the distinctiveness is not as high. The Crown argued that it was improper to impose a more onerous requirement that requires a level of striking similarity especially in child abuse cases. See: R. v. Cresswell [2009] O.J. No. 1805 (C.A.) paras. 8 and 9 and R. v. B. (C.R.) [C.R.B.] [1990] S.C.R. No. 31.
88The Crown outlined the similarities to include the following:
Both complainants were pre-teen or very young teenage girls.
Both complainants were members of the same family.
Both complainants shared the same relationship with E.H. More precisely put, E.H. was in the same position with respect to both complainants.
Both complainants occupied the same home.
It was alleged by both complainants that the sexual assaults were committed in the evening.
It was alleged by both complainants that E.H. attended their bedrooms while they were sleeping or falling asleep.
It was alleged by both complainants that E.H. committed the sexual assaults while their mother was asleep in another bedroom.
It was alleged by both complainants that E.H. sexually assaulted them while they were in their beds.
Both complainants alleged that their buttocks were touched.
Both complainants alleged that the touching was over and under clothing.
Both complainants alleged that E.H. undid clothing. V.M alleged specifically that her bra was undone. W.M. (1) alleged that her pajama bottoms were pulled down.
Both complainants' evidence was within a range of conduct so that none of the allegations, set against the other, was inflammatory.
89The Crown conceded the following dissimilarities included:
That E.H. touched one of the complainant's vagina (W.M. (1)).
That E.H. touched one of the complainant's breasts (V.M).
That both complainants' evidence varied on the length of time that the sexual assaults lasted.
That both complainants' evidence on E.H.'s position on the complainants'' beds during the assaults.
That both complainants' evidence differed on the frequencies of the sexual assaults.
90The Crown submitted that any dissimilarities in the occurrences are not fatal to the Crown's application as they are immaterial and are overborne by the unique similarities. In R. v. U.C. [2009] O.J. No. 1805 (C.A.) the accused had sexually assaulted his companion's daughters by touching and fondling but he also had sexual intercourse with only one of the daughters. In this and other similar cases, even this dissimilarity did not defeat the legitimacy of the inference sought to be drawn. (See also: Cresswell, supra (a single incident of abuse with some complainants and multiple and repeated acts with others) and R. v. B. (R.), [2003] O.J. No. 4589 (C.A.) (no anal intercourse with two of the complainants)).
91The Crown argued that any variation in the number of occurrences (W.M. (1) stated four (4) times vs V.M. multiple occasions) could be attributed to the location of complainants' bedrooms. For example, V.M. was on the very bottom floor which afforded E.H. more opportunity and time for extensive touching, fondling, and simulation of sexual intercourse. Whereas W.M. (1)'s bedroom was on the same floor as the master bedroom where detection could have occurred more easily and would not have afforded the opportunity to increase the number of occasions for fondling and sexual intercourse simulation.
92The Crown submitted that there was no existence of collusion. The disclosure of the sexual abuse was a natural and logical progression based on familial events. When the disclosure was made the details were "exceptionally limited". The Crown stated that W.M. was never aware of the abuse until it came out in the course of the conflict over W.M. (1)'s truancy. W.M. (1) never told anyone about the sexual abuse before the conflict in 2010. V.M. never told anyone other than her roommate K.L. in a very general way and without specifics. It was obvious that when the disclosure occurred W.M. was in the middle of it. The only specific detail of any cross-disclosure was the issue of "touching". On the evidential record, the details of the sexual abuse were not explored and the conversation and messaging was for a matter of minutes. The Crown pointed out that W.M. (1) thought that it was V.M. that called her mother on the telephone. If there was collusion why would W.M.(1) not be aware that it was not her sister that called but V.M.'s roommate K.L?
93The Crown submitted that E.H.'s evidence is not capable of being believed and does not raise a reasonable doubt. The Crown argued that as with W.M.'s evidence after the allegations were made, E.H. gained a clearer perspective of events. Since the defence pointed out the same defect in W.M.'s evidence, then the court should not place any weight on E.H.'s evidence. The central problem with E.H.'s testimony was his deliberate minimization of his presence in the house. He sought to completely downplay any opportunity to commit these offences. This made E.H. not credible. The crown recommended that the court examine the inconsistencies in E.H.'s evidence, for example, whether he was truthful about the number of times he slept over, and precisely whether he slept over on the weekends or the weekdays or both.
94The Crown argued that on the whole of the evidence, including the complainants' testimony, no reasonable doubt exists as to guilt.
95The Crown noted that the complainants testified as adults regarding events that occurred when they were children. The court must assess all witnesses, regardless of their age, and their ability to understand and communicate. The court ought not to apply a lower threshold to assess the credibility of a youthful witness. However, with respect to peripheral issues such as times and precise details, the evidence of adult witnesses must be assessed in the context of their age when the events transpired. W.M. (1) recalled events when she was just approximately six (6) or seven (7) years of age. V.M. recounted her version of the events when she was only twelve (12) or thirteen (13) years old. The Crown cited the passage of time between the alleged sexual abuse and the procedural history provides an innocent explanation of variations in the complainants' evidence.
96Crown counsel submitted that V.W. testified in a balanced and thoughtful manner. However, it was conceded by Crown counsel that V.M. had limitations to her memory often she stated "I didn't think that" or "I didn't remember saying that" on matters that contradicted her internal thoughts.
97V.M. acknowledged and admitted to conduct as a teenager that reflected poorly on her character which the Crown submitted was the hall mark of her even handedness in her testimony of the events. For example, V.M. recognized that she was a "mouthy" teenager and would speak her mind at home if she was not happy. She may have called E.H. "a creep", a "pervert" and or "a douche bag". However, she admitted that at the very beginning of his relationship with her mother, she disliked E.H. She found E.H. irritating. She candidly admitted that she made fun of his accent and the way he ate.
98The Crown noted that V.M. admitted that she had memory gaps but was adamant that she would not just fill the gaps with any evidence. V.M was clear that she would not testify to something if it was untrue.
99Crown counsel submitted that V.M.'s testimony had a logical flow. She testified that she was approximately twelve (12) years old when the alleged abuse occurred. According to her evidence the incidents happened approximately once or twice a week. She recounted that E.H. crawled into her bed each time, laid next to or beside her. She clearly identified the clothing that he wore each time: White underwear, a t-shirt and his gold chain. E.H. corroborated her evidence on this point when he admitted that he customarily wore briefs, a tank top to bed and a chain. V.W. recounted that E.H. scratched her back, played with her hair and then worked his way to her breasts over and under her clothing. E.H. unclipped her bra to gain access. E.H. groped her buttocks. V.M felt E.H.'s erect penis rubbed up against her from behind to simulate sexual intercourse. V.M. admitted that she did not recall the words verbatim that he whispered but she paraphrased that he said "how does that make you feel?" V.M. pretended to be asleep and meekly turned away. V.M. testified that she acted out at home as a call for help to her mother, however, W.M was not receptive at the time.
100The Crown asserted that any inconsistencies in V.M.'s testimony was attributed to the passage of time and her age.
101Finally, the Crown argued that V.M.'s evidence standing alone was enough to find E.H. guilty of the offences.
102With respect to W.M. (1)'s evidence, the Crown submitted that she was a more reserved and quieter witness than her older sister. She testified in a thoughtful and considered manner. W.M. (1) conceded that there were limitations on her memory. She confined her testimony to four (4) discrete events of alleged sexual abuse.
103The Crown urged the court to reject the defence theory that W.M. (1) did not distinguish between her dreams and reality. W.M. (1) did admit to the police and to the court that she was plagued by nightmares for years after what had happened to her. W.M. (1) emphatically stated that she could distinguish between her dreams from reality as she testified that she recalled that the events "physically happened" to her. The Crown submitted that she recalled the events in grade five (5) but she repressed the memories and did not want to think about the horrible events.
104Crown counsel submitted that any challenges to her evidence, for example that she was not forthcoming enough, must take into consideration the circumstances under which she gave the police her statement. When W.M. (1) was interviewed by the police she was sixteen (16) years old and had never spoken to anyone about the specific details involved in the alleged sexual abuse. The Crown argued that her responses and answers to the police were consistent and reflective of both her timidity and hesitancy to talk.
105W.M. (1) told the police that she recollected that E.H. "touched" her. The Crown pointed out that was the type of language a teenager would recall. W.M. (1) used simple and consistent language that lacked embellishment or any indicia of contrivance. W.M. (1) explained that E.H. entered her bedroom when she was asleep or falling asleep. He stood next to her bed. He pulled down her pants and touched her vagina and buttocks. W.M. (1) never penetrated her vagina.
106The prosecution submitted that W.M. (1)'s testimony had the ring of truth and was credible.
107It was conceded by both the Crown and the defence that W.M.'s evidence had significant limitations due to her inability to recall conversations and specific events. The Crown urged that the court should not accept her evidence unless it was corroborated or supported by other testimony from other witnesses or by common sense. The Crown suggested that there were some aspects of her evidence that the court can accept that pertained to the sleeping arrangements and her schedule.
108The Crown re-iterated that since the disclosure of the alleged sexual abuse, W.M. admitted that her perspective both on the relationship and towards E.H. had changed.
109The Crown stated that as a general observation W.M. testified emotionally at times and was not very well-equipped to deal with the strain and vagaries of testifying. Notwithstanding her emotional testimony, it did support the fact that W.M. was not aware of what was occurring when E.H. stayed overnight. Moreover, her evidence corroborated V.W.'s contention that she was reluctant to disclose the abuse to her mother as there would be a certain degree of unpredictability in W.M.'s response.
110The Crown submitted that the court can accept from her testimony that she was very much in love with E.H. This was an important detail as V.M. was aware of her mother's strong feelings toward E.H. and the seriousness of the relationship. This level of awareness provided the contextual basis for how V.M. viewed both the relationship and E.H. W.M.'s evidence that V.M. did not have a lock on her bedroom door supported V.M.'s testimony on this point. W.M. testified that that there was no lock since V.M. slept in a converted office. W.M.'s testimony did corroborate V.M.'s evidence that their arguments did not last very long nor did the punishments. W.M.'s testimony suggested that there was always a strong familial bond and the bond was strengthened after the disclosure of the alleged abuse. According to the Crown this was not a sign of collusion but rather a signal that the family would stick together and get through this horrible period of time.
111The Crown submitted that the complainants were credible witnesses and that on the whole of the evidence no reasonable doubt existed as to the guilt of E.H.
The Defence:
112The defence forcefully argued that this case was inappropriate for the court to allow the similar fact evidence to be admitted count-to-count. The defence submitted that the probative value of the complainants' evidence was weakened by the collusion. Furthermore, the defence argued that there was a lack of sufficient similarity in the alleged occurrences such that the probative value did not outweigh the prejudicial impact its admission would have on trial fairness.
113The defence raises three (3) issues in regards to collusion.
114First, there was a motive to collude, but not a financial one unlike in the seminal decision of R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908. In this case, the defence argued that W.M. (1) was in the biggest trouble in her young life over her failing grades and truancy. In order to deflect her mother's wrath, W.M. (1) reached out to her protective older sister, V.M. who despised E.H. It was at this moment that the sisters hatched the plan to come forward and blame E.H.
115Second, defence counsel argued that there were conversations that took place between the complainants and their mother at the moment of disclosure. The complainants denied that at that time the specific details of the alleged abuse were discussed. However, the defence pointed out that W.M.'s testimony belied the complainants' assertion. At trial, W.M. testified that she was in the middle of the conversation both over the telephone and on Facebook. It made sense that undoubtedly details were shared while V.M. talked to her mother on the phone while W.M. (1) asked questions and gathered information.
116Third, the complaints were more than a coincidence. The defence argued that the similarities did not extend beyond the information that was shared between the complainants. In other words, the substance of the similarities was that they were touched in their bedrooms at night, they laid still, never really moved, E.H. either did not say much or anything at all. However, once the defence probed into the details and broke the web of collusion the following dissimilarities emerged:
The frequency of the acts: V.M. claimed that she was allegedly sexually abused by E.H. two (2) to three (3) times a week. W.M. (1) testified that she was sexually abused by E.H. on four (4) occasions.
The length of the acts: V.M. testified that the alleged abuse lasted 45 minutes. W.M. (1) testified that the four (4) transactions lasted five (5) minutes.
The location of E.H. during the abuse: V.M testified that E.H. was "lying on the bed with me". W.M. (1) claimed that E.H. was "standing next to the bed".
Whether E.H. stroked, caressed, rubbed any other part of the complainants' bodies: V.M. agreed that E.H. rubbed her back and stroked her hair. W.M. (1) told the police that there was no lead into the abuse, and in her testimony W.M. (1) could not remember if there was any stroking or caressing before the incidents.
The location on the body where the touching occurred: V.M. was only touched in the breast area. W.M. was touched in her vagina.
Whether any part of their clothing was removed: V.M. testified that none of her clothing was removed or taken off. W.M. (1) testified that E.H. pulled down her pajama bottoms and underwear.
117According to defence counsel the allegations when compared were 'completely different. Basically, V.M. stated that E.H. came in two or three times a week in his underwear and t-shirt, got into bed, rubbed her back, squeezed her bum, stroked her arm, scratched her back, fondled her breasts and while she was faced down, got on top of her, simulated sexual intercourse and asked her if she liked it. Whereas W.M.(1) description was very different: E.H. visited her on four occasions for a five minute period each time, stood next to her bed, smacked her buttocks, touched her vagina, but never felt his penis and never said a word. W.M. (1) could not recall what clothing E.H. wore.
118Finally, the defence argued that just because the complainants made the allegations together that did not make the allegations more likely true or more probative.
119The defence submitted that E.H.'s evidence was straightforward and not argumentative. He, of course, denied all of the allegations. The defence argued that his evidence was logical and sensible. Furthermore, the Crown exposed no contradictions in cross-examination.
120The defence in its submissions emphasized the importance of the presumption of innocence and to hold the Crown to the burden as set out in R. v. W.(D) (1991), 63 C.C.C.(3d) 397 (S.C.C.).
121The defence submitted that the Crown has not proven beyond a reasonable doubt that V.M. and W.M. (1) were reliable and credible witnesses.
122The defence submitted that E.H. did not have to prove any motive to fabricate. However, in this case the complainants did have a motive to lie. V.M. despised E.H. from the very beginning of his relationship with her mother. V.M. was the protective older sister that had every reason to believe that E.H. had done terrible things to her younger sister. W.M. (1) felt that the incidents were a dream for several years. Despite that "the dream-like" quality of her memory she came forward with her accusations at a time in her life that she was in the most trouble of her life. She was caught in a web of lies regarding her failing grades and truancy and needed to come up with an excuse.
123With respect to W.M. (1)'s evidence, the defence argued that her vague and dream-like memory of the incident was not reliable. The defence submitted three (3) reasons why the court cannot be satisfied beyond a reasonable doubt on her evidence.
124Firstly, W.M. (1) admitted that she overheard V.M. call E.H. a "creep" and a "pervert" during the relationship and therefore exposed W.M. (1) to those rumours and tainted her view of E.H.at a young age.
125Secondly, W.M. (1) told the police and her mother that for a long time she thought her memories of the incidents were dreams.
126Thirdly, W.M. (1) provided to the police an account of the incidents that had a "vague and dream-like quality" to it. For example, W.M. (1) described her perspective in this way:
"I don't really remember much."
"I don't know. I just remember him doing things, touching me and stuff. I don't know. I was, like, I don't know. I think I was sleeping or something."
127When the officer pressed on whether or not she recalled more details W.M. (1) responded, "Touching me". She could not describe the nature of the touching other than his hand was "moving", however, at trial she described how his hand was moving- "up and down". W.M. (1) told the police that she was uncertain if E.H. had put a finger inside her vagina. She did not recall if E.H. spoke to her. In her direct examination W.M. (1) only had a vague memory of a "shadowy figure" coming into her bedroom and absolutely no memory of that person leaving her bedroom. However, W.M. (1) was clear that person was E.H.
128The defence asserted that the dream-like qualities evolved at the trial. For example, W.M. (1) testified that E.H. grabbed or smacked her buttocks which was similar wording used by V.M. when she described the touching. However, she told the police that she could not remember the specific details of the touching.
129W.M. (1) used similar terminology that her sister used when she described how she laid still and was "frozen" and unable to move as she was touched. But at the original trial W.M. (1) testified "I'd move, and try to move away".
130W.M. (1) testified that E.H. would sometimes remove or take down her pajama bottoms to her knees. However, she told the police that E.H. always left on her "pants".
131W.M. (1) testified in chief that she thought that E.H. said something first and then started the touching, and she could not remember the kind of statements that he made. However, she told the police that she did not think that E.H. said anything during the alleged assaults.
132W.M.(1) testified that she could not recall if there was any "lead up" to the sexual touching such as stroking or caressing other parts of her body however, at the original trial the defence pointed out she testified "Not that I remember".
133The defence submitted that W.M. (1) was not a credible witness since she made the allegations against E.H. while she was involved in the worse fight in her life with her mother and needed a way out. The disclosure occurred approximately six (6) years after the incidents. The defence correctly pointed out that there is no adverse inference that should be drawn due to delayed disclosure of an allegation of sexual abuse. However, the defence argued that W.M. (1) was not credible in her refusal to acknowledge the real reason for disclosure. That she was in trouble and she thought that the incidents were just a dream.
134Turning to V.M.'s credibility the defence raised three (3) arguments.
135Firstly, V.M. was always her younger sister's caretaking while they grew up together. She often prepared dinner and babysat W.M.(1). She was the protective older sister. She told her mother what had happened to her younger sister in the midst of the worse family fight. The defence argued that this was another example, whereby V.M. shifted the attention on her when her younger sister was in so much trouble. V.M. testified at the original trial that often there were times that there was aggression towards her younger siblings and she did something to switch it over and brought onto herself. She stated that for the longest time this occurred. So, of course when she heard about what E.H. had allegedly done to W.M. (1) she was devastated, grief stricken and guilt ridden. V.M. blamed herself for what happened to her sister, especially after having such a dislike for E.H.
136The defence submitted that the crown has not proven beyond a reasonable doubt that V.M.'s motivation for coming forward was to support and make it easier for W.M. (1) to do the same thing and to exact her revenge on E.H. for what she believed he did to her little sister.
137Second issue with V.M.'s credibility was the fact that she told no one (except K.L) for six years. Again, the defence agreed that fact alone should not draw an adverse inference. However, V.M.'s reasons for not coming forward were problematic with her credibility. She was an "in you face" and "mouthy" teenager that called E.H. horrible names. If E.H. did something inappropriate to V.M., V.M. would be the first person to call him out on it. According to the defence it did not make sense that V.M. remained silent given her strong personality and disdain for E.H. V.M. testified that when she was 12 years old a family friend told her that if her mother had to choose between V.M. or E.H., she would choose E.H. Her fear was if she rocked the boat her mother would disown V.M. From a common-sense perspective, the defence argued that it was difficult to imagine an adult friend would have said this to V.M. Furthermore, V.M. could not provide any context to the story or the person's name. W.M. testified that she did not have any idea the name of the adult friend from "downtown". Finally, W.M. testified that the opposite was true, that she loved her family very much and would do anything for her children.
138The defence argued that V.M made up another story to account for her reason for not telling anyone about the sexual abuse. That was the incident in the kitchen when she claimed that she called E.H. a pervert and he threw a phone at V.M. V.M. testified that W.M. was in the kitchen and witnessed the incident. However, W.M. did not recall the kitchen incident that same way. W.M. recounted that V.M. did not call E.H. a pervert on that occasion and that he did not throw a phone at V.M. However, she did recall another moment when V.M. did call him a pervert and she admonished her daughter. W.M. also testified that she questioned V.M. whether or not E.H. had touched her inappropriately. V.M. told her mother that he had not. It defied common sense that if a telephone was thrown in W.M.'s presence that she would not have told the court about it. The defence argued that these stories were designed to explain why V.M. did not report the incidents. The Crown has the obligation to prove beyond a reasonable doubt why the fail-to-report was not a problem.
139The third issue in V.M.'s credibility was implausibility of V.M.'s allegations. According to the defence there was no ring of truth to the allegations. The Crown does not have to establish that E.H. groomed the complainants leading up to the incidents. The defence argued that the opposite actually occurred. For example, there was open hostility between E.H. and V.M. from the commencement of the relationship. V.M. made it known to everyone that she did not like E.H. It would seem that if the court accepted V.M.'s account concerning the hostility, then the court would similarly have to accept that E.H. was bold beyond belief to enter into her bedroom and sexually assault V.M. It would be inconceivable that he would do this as the risk of detection was astounding.
140As well the defence argued that V.M. thought that E.H. believed that she was asleep throughout the incident. The defence submitted that it was inconceivable that according to V.M., E.H. got on top of her, simulated sex for approximately 45 minutes with his full weight on her and believed that she was asleep.
141The defence submitted that V.M.'s allegations were implausible when taken together with her motive to fabricate allegations of sexual abuse against E.H. and her incredible reasons for her delayed disclosure. The court should be left in a state of reasonable doubt.
Analysis:
General Principles:
142As mentioned in my introduction E.H. is charged with sexual assault and sexual interference, criminal offences under the Criminal Code of Canada, R.S.C., 1985, c. C-46. As such, E.H. is presumed to be innocent unless and until the Crown has proven his guilt beyond a reasonable doubt. The presumption of innocence is a cornerstone of our criminal justice system, originally embedded in our common law tradition and now guaranteed as a fundamental legal right under our constitution.
143As Justice Malloy recently wrote in R. v. Nyznik, 2017 ONSC 4392, [2017] O.J. No. 4138:
The presumption of innocence, and along with it the standard of proof beyond a reasonable doubt, are important safeguards to ensure that no innocent person is convicted of an offence and deprived of his liberty. Without these protections, there would be a serious risk of wrongful convictions -- an outcome that cannot be accepted in a free and democratic society.
The concept of proof beyond a reasonable doubt is not an easy one to define. It is clearly more rigorous than the balance of probabilities standard applied in civil cases. The balance of probabilities requires the party bearing the onus to establish that the proposition they advance is "more likely than not" -- i.e. better than 50/50. In R. v. Lifchus, the Supreme Court of Canada held that the following definition would be an appropriate instruction for a criminal jury:
A reasonable doubt is not an imaginary or frivolous doubt. It must not be based upon sympathy or prejudice. Rather, it is based on reason and common sense. It is logically derived from the evidence or absence of evidence.
Even if you believe the accused is probably guilty or likely guilty, that is not sufficient. In those circumstances you must give the benefit of the doubt to the accused and acquit because the Crown has failed to satisfy you of the guilt of the accused beyond a reasonable doubt.
On the other hand you must remember that it is virtually impossible to prove anything to an absolute certainty and the Crown is not required to do so. Such a standard of proof is impossibly high.
In short if, based upon the evidence before the court, you are sure that the accused committed the offence you should convict since this demonstrates that you are satisfied of his guilt beyond a reasonable doubt.
This instruction, commonly referred to as "the W. (D.) Instruction, with very little modification, is now the standard instruction on reasonable doubt given to criminal juries throughout Canada. The same standard is applied by judges sitting without a jury on criminal trials. The bottom line is that probable or likely guilt is insufficient. If all I can say is that the defendants in this case are likely guilty, I must acquit. It would not be safe to convict someone of a criminal offence with only that degree of confidence. Before I can find the defendants guilty, I must be sure that they committed the offence charged.
144Using this analysis I must be certain that E.H. did sexually assault and sexually exploit the complainants.
145Sexual assault trials often involve an assessment of the credibility and reliability of the witnesses.
146Assessing credibility is not a science. Often times it is difficult for a court to articulate with precision the complex intermingling of impressions that emerge after observing and listening to witnesses and attempting to reconcile the various versions of the events.
147It is clear that what is required is that my reasons show that I have seized the substance of the issue or issues and that I have directed my mind to the decisive question of whether evidence presented, including the evidence as a whole, raises a reasonable doubt as to the defendant's guilt.
148If the evidence is contradictory or confusing, I have to deal with these contradictions.
149This does not necessarily mean that I must reconcile every fragility in the evidence or allude to every relevant principle of law. Reasonable inferences need not be spelled out.
150However, I must at least recognize the most helpful factors when assessing credibility which includes the following:
(i) The consistency of a witness' evidence within itself.
(ii) The consistency of a witness' evidence with other witnesses.
(iii) The consistency of a witness' evidence in the overall picture that evolved at trial.
(iv) The objectivity of a witness' evidence.
(v) The frankness of a witness.
(vi) Was the witness clear and consistent in his or her description of the events?
(vii) Was there a tendency to overstate?
151I can believe none or some of a witness' evidence. (See: R v R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3 at para. 65). I am entitled to accept parts of a witness's evidence and reject other parts. As well, I can attribute different weight to different parts of the evidence that the court has accepted. (See: R. v. Howe, [2005] O.J. No. 39 (C.A) para. 44.)
152The general legal principles applicable to a case of this nature were summarized in Justice Hill's decision in R. v. J.F. [2010] O.J. No. 3415 (S.C.J.) which includes the following:
(1) 114 The vast majority of sexual assault prosecutions turn on the evidence of the two principals - the complainant and the accused: R. v. M.(S.C.), [1997] O.J. No. 1624 (C.A.) at para. 3. However, a verdict of guilty may, in appropriate cases, be safely founded on the evidence of a single witness, regardless of the offence or offences charged: The Queen v. G.(A.), 2000 SCC 17, [2000] 1 S.C.R. 439 at 453-4; Vetrovec v. The Queen (1982), 67 C.C.C. (2d) 1 (S.C.C.).
(2) 117 The court must be satisfied beyond a reasonable doubt on the issue of credibility where the case turns on the evidence of two conflicting witnesses: R. v. Selles (1997), 101 O.A.C. 193 (C.A.) at 207-8; M.(N.) v. The Queen, [1994] O.J. No. 1715 (C.A.) (affirmed, [1995] 2 S.C.R. 415). Where there are significant inconsistencies or contradictions within a complainant's testimony, or when considered against conflicting evidence in the case, the trier-of-fact must carefully assess the evidence before concluding that guilt has been established: R. v. S.W. (1994), 18 O.R. (3d) 509 (C.A.) at 517 (leave to appeal to S.C.C. refused [1994] S.C.C.A. No. 290, [1994] 2 S.C.R. x); R. v. Oziel, [1997] O.J. No. 1185 (C.A.) at para. 8, 9; R. v. Norman (1993), 87 C.C.C. (3d) 153 (Ont. C.A.) at 172-4.
(3) 119 To the extent that credibility assessment demands a search for confirmatory evidence for the testimony of a complainant, such evidence need not directly implicate the accused or confirm the complainant's evidence in every respect - the evidence should, however, be capable of restoring the trier's faith in the complainant's account: Kehler v. The Queen (2004), 2004 SCC 11, 181 C.C.C. (3d) 1 (S.C.C.) at 5-6; R. v. Betker (1997), 115 C.C.C. (3d) 421 (Ont. C.A.) at 429 (leave to appeal refused [1997] S.C.C.A. No. 461, [1998] 1 S.C.R. vi); R. v. Michaud, [1996] 2 S.C.R. 458 at 459.
(4) 120 The fact that a complainant pursues a complaint cannot of course be a piece of evidence bolstering his or her credibility -- otherwise it could have the effect of reversing the onus of proof: R. v. A.(G.R.) (1994), 35 C.R. (4th) 340 (Ont. C.A.) at para. 3; R. v. Islam, [1999] 1 Cr. App. R. 22 (C.A.) at 27.
(5) 121 It may be that in the circumstances of a particular case, the defence wishes to raise the issue of delayed complaint as counting against the veracity of the complainant's account of assault. The significance or evidentiary relevance, if any, of the complainant's failure to make such a complaint is contextual and will vary from case to case depending upon the trier of fact's assessment of the evidence relevant to the failure to make a contemporaneous complaint: The Queen v. D.(D.) (2000), 2000 SCC 43, 148 C.C.C. (3d) 41 (S.C.C.) at 64-7; R. v. M.(P.S.) (1993), 77 C.C.C. (3d) 402 (Ont. C.A.) at 408-409.
(6) 122 The testimony of a youthful witness cannot be said to be inherently unreliable. Otherwise, a negative stereotype improperly supplants abolition of the corroboration rule in the testimonial competence regime. The testimony of a young witness is to be understood with an eye to common sense as exactitude and detail may be missing from a child's recall as the world is experienced differently from an adult: B.(G.) v. The Queen (1990), 56 C.C.C. (3d) 200 (S.C.C.) at 219-220 per Wilson J.; Marquard v. The Queen (1993), 85 C.C.C. (3d) 193 (S.C.C.) at 201 per McLachlin J. (as she then was); R. v. H.C. (2009), 2009 ONCA 56, 241 C.C.C. (3d) 45 (Ont. C.A.) at para. 42. The same approach is warranted respecting a mature witness testifying to events experienced as a child.
(7) 124 Whatever enlightened approach is taken respecting a child's ability to perceive and recall, the standard of proof cannot be reduced below that of cases involving adults: B.(G.) v. The Queen, supra at 219; The Queen v. W.(R.), supra at 143; R. v. Markell, [2001] O.J. No. 1813 (C.A.) at para. 1-2; R. v. Keeper, supra at para. 4.
(8) 128 The existence or absence of a motive by the complainant to fabricate is a relevant factor to be considered: The Queen v. K.G.B. (1993), 79 C.C.C. (3d) 257 (S.C.C.) at 300 per Lamer C.J.C.; R. v. Greer, 2009 ONCA 505, at para. 5; R. v. Prasad, [2007] A.J. No. 139 (C.A.) at para. 2-8; R. v. K.(A.), supra at 173; R. v. Jackson, [1995] O.J. No. 2471 (C.A.) at para. 4, 5. I make this observation, sensitive to the fact that the burden of production and persuasion is upon the prosecution and that an accused need not prove a motive to fabricate on the part of a principal Crown witness. Evidence of a witness' motive to lie may be relevant as well to the accused qua witness: R. v. Laboucan, 2010 SCC 12, at para. 12, 15, 22; R. v. Murray (1997), 99 O.A.C. 103 (C.A.) at para. 11-14 per Charron J.A.
(9) 130 Recognizing that "[c]oincidence, as an explanation, has its limitations", similar fact evidence may be admitted in a criminal trial: R. v. Handy (2002) 2002 SCC 56, 164 C.C.C. (3d) 481 (S.C.C.) at para. 45. That said, such evidence is presumptively inadmissible and is only "exceptionally" admitted where the Crown discharges its burden of establishing the case for admission: Handy, at para. 60; R. v. B.(C.R.), [1990] 1 S.C.R. 717 at 732. Similar fact evidence is therefore admitted by exception where its probative value exceeds its prejudicial effect and the test for admission is the same whether the evidence is extrinsic or arises from the proof of other counts in the indictment: R. v. Moo, 2009 ONCA 645 at para. 97.
(10) 132 Mere proof of general disposition or discreditable character at large amounts to moral prejudice only. "The issues in question derive from the facts alleged in the charge and the defences advanced or reasonably anticipated": Handy, at para. 74. For example, is the evidence proffered to prove the identity of the person who committed the offences, to prove the actus reus, to rebut or refute coincidence or innocent explanation or mistake, etc.? Where properly admissible, the evidence may "show a pattern of similar behaviour that confirm[s] each complainant's testimony": R. v. B.(T.) (2009), 2009 ONCA 177, 95 O.R. (3d) 21 (C.A.) at para. 22; R. v. Thomas (2004), 72 O.R. (3d) 401 (C.A.) at para. 43.
(11) 133 The "principal driver of probative value ... is the connectedness (or nexus) that is established between the similar fact evidence and the offences charged": Handy, at para. 76. Can it be said that a sufficiently "high degree of similarity between the acts renders the likelihood of coincidence objectively improbable"? (R. v. Arp, [1998] 3 S.C.R. 339 at para. 43). "[T]he search for similarities is a question of degree": Handy, at para. 122. The cogency of the evidence, derived from the improbability of coincidence, increases as the fact situation moves further to the specific end of the spectrum - also described as an "observed pattern of propensity operating in a closely defined and circumscribed context": Handy, at paras. 87, 90, 110. Where the acts do not have the high degree of similarity that would render the likelihood of coincidence objectively improbable, the evidence will be inadmissible: Last, at para. 34; Arp, at para. 43.
(12) 134 To found admissibility, the prosecution cannot hope to rely upon an impermissible general disposition inference (R. v. Perrier, 2004 SCC 56, [2004] 3 S.C.R. 228 at para. 18; U.C., at para. 41), similarities of a "general character" (R. v. Chapman (2006), 204 C.C.C. (3d) 449 (Ont. C.A.) at para. 24), "generic" similarities commonly seen in the commission of the alleged crime(s) (R. v. Cresswell, 2009 ONCA 95, at para. 8; R. v. R.B. (2003), 68 O.R. (3d) 75 (C.A.) at para. 49, 64, 69 (aff'd 2004 SCC 69, [2004] 3 S.C.R. 503)), or facts at the "vague end of the spectrum": Handy, at para. 85. However, where the evidence gives rise to an inference of a specific disposition, for example, "a specific disposition to sexually abuse his companion's two young daughters" (U.C., at para. 41) or "to show the appellant's specific propensity to engage in sexual misconduct with boys in his care who came to him in a vulnerable condition" (R. v. B.(R.) (2005), 77 O.R. (3d) 171 (C.A.) at para. 11), the evidence may support a legitimate chain of reasoning and a "persuasive degree of connection" justifying a similar fact ruling in favour of the prosecution: R. v. L.T. (2005), 196 O.A.C. 394 (C.A.) at para. 16.
(13) 136 Similarity assessment requires attention to the existence of material dissimilarities between the transactions: Handy, at para. 123. Where the similarities are particularly strong or numerous, attendant dissimilarities may not defeat the legitimacy of the inference sought to be drawn - see, for example, U.C. (two sisters sexually abused - fondling and touching of both but sexual intercourse with only one); Cresswell (single incident of alleged abuse with some complainants and repeated acts with others); B.(R.) (2005) (no anal intercourse with two of the complainants).
(14) 137 It is generally accepted that where the Crown seeks to have the court admit proffered similar fact evidence as relevant to the identity of the person who committed the offences, an elevated degree of similarity is warranted. Where the similarity amounts to a unique trademark of signature the evidence is "automatically" considered to reach the threshold of being "strikingly similar" and therefore highly probative and admissible: Arp, at para. 45. Even if not at the level of signature sameness, "[i]n the same way, a number of significant similarities, taken together, may be such that by their cumulative effect, they warrant admission of the evidence": Arp, at paras. 45, 50; R. v. McCormack (2009), 2009 ONCA 72, 241 C.C.C. (3d) 516 (Ont. C.A.) at para. 51. In general, evidence linking the accused to each alleged similar act should not be part of "the similarity evaluation: Arp, at paras. 49, 56, 80. However, "[t]he line between evidence that relates to the manner in which the offence is committed and evidence that shows the involvement of an accused is not always easy to draw. The rule that requires segregation of the evidence indicative of involvement is a general, but not an absolute rule": McCormack, at paras. 45, 80.
(15) With regard to similar fact evidence, the "existence of collusion rebuts the premise on which admissibility depends" (Handy, at para. 110) as the probity of such evidence arises from the improbability of two or more witnesses independently or coincidentally giving the same evidence: U.C., at para. 40. Where there is some evidence of actual collusion, or at least an air of reality to it, the Crown must satisfy the trier of law as a condition precedent, on a balance of probabilities, that the evidence of similar acts is not tainted with collusion: Handy, at para. 112.
(16) 141 Dictionary definitions of collusion raise notions of secret agreement, plotting or conniving, or conspiring together for a fraudulent or underhanded purpose.
(17) 142 To the extent that the jurisprudence dealing with collusion speaks of collusion "or some other form of tainting" (U.C., at para. 40; B.(T.), at para. 22), or of other non-collusive conduct (B.(R.) (2005), at para. 5 (no evidence complainants colluded with each other "or even discussed the appellant's misconduct with each other")), the court, in deliberating upon the admissibility issue, should be alive to instances of witness contamination of a sufficiently serious nature as to threaten the true existence of coincidence.
(18) 143 The evidence may disclose limited contact between complainants as in R. v. L.G., 2009 ONCA 895 at para. 5. Opportunity for collusion may well be the context "in many cases alleging sexual abuse with multiple complainants" (Handy, at para. 111) and communication among sister complainants is "almost inevitable": R. v. Shearing (2002), 2002 SCC 58, 165 C.C.C. (3d) 225 (S.C.C.) at para. 43. But "[t]he issue is concoction or collaboration, not contact. If the evidence amounts to no more than opportunity, it will usually be best left to the jury": Handy, at para. 111.
Findings of Facts:
153The paramount issue in this case, like many sexual assault cases, was that of the credibility and reliability of the witnesses.
154There was no question that the complainants, described actions of E.H., as a touching of a sexual nature and their inability to consent to such activity as defined in section 150.1 of the Criminal Code of Canada, if accepted, would constitute a sexual assault as defined in section 271 of the Code and coupled with their ages during the time frame particularized in the information, sexual touching as defined in section 151 of the Criminal Code of Canada would constitute the offence of sexual interference.
155By way of overall observation, both complainants testified as mature adult women about events that occurred when they were children. In my view, W.D. (1) was measured but more subdued in her testimony. V.M. was thoughtful and balanced in her testimony. V.M. conceded that there were limitations on her memory. Both complainants' were emotional at times.
156E.H. was a guarded witness and appeared uneasy. He was combative and flippant to a certain degree during his cross-examination.
157The court does not draw any adverse inference from the fact that there was delayed disclosure and does not accept the defence submission that there were nefarious reasons for the disclosure. With respect to the former point the court adopts the comments by Justice Hill in J.F., supra at para. 152:
I am satisfied that the delay on the part of the complainants in bringing their allegations forward, and in particular to the authorities, is not worthy of an adverse inference against any of the complainants. Without in any way assuming the accused's guilt, in considering the perceptions and circumstances of youngsters who are sexually touched by family members one cannot presume that they will report what occurred, or if so, in a timely way. For such individuals, understanding what happened, why it did, whether it was to be accepted given the touching was by an adult and a trusted family member, embarrassment, or fear of being disbelieved or disciplined, can reasonably provide context for the reactions of children.
158I reject the notion that the complainants made up the allegations for the purposes as suggested by the defence. With respect to V.M.'s motive to fabricate, E.H. had not been in a relationship with their mother for nearly six (6) years. The family had no contact from E.H. during that period of time. It made no sense that once she learned that W.M. (1) was touched that being the protective sister she would hatch a plan to create these false allegations. She testified that the animus towards E.H. had long dissipated. Even E.H.'s evidence suggested that he stayed out of V.M.'s way. He testified that he did not discipline V.M. except on one occasion. Since he testified that he was always polite and loving towards W.M. (1) it seemed peculiar that years later, when V.M. made her disclosure that W.M.(1) conspired and tacitly agreed to concoct a similar story.
159Furthermore, V.M. testified that her step-father and W.M. (1)'s biological father, V. was a harsh disciplinarian that used corporeal punishment on the children and was physically abusive towards W.M. V.M. described a horrible incident where her step-father knocked out W.M.'s front tooth. I believe that V.M. was candid when she testified that although she did not consider V. abusive but he was strict. In my view, V.M. did not colour her view of her stepfather. Therefore, I find that it would be illogical for her to harbour a seething rage against E.H. for all these years after he left the relationship. V.M. did not like E.H. because she disapproved that he dated her mother. That, of course ended years ago. It begs the question: why try to get back at E.H.?
160V.M. was a strong minded and opinionated teenager, however, I do not accept that just because she was an "in you face" teenager that should have made her more inclined to disclose the alleged sexual abuse. This was close to the stereotypical reasoning in sexual assault cases that courts strive to avoid in engaging. The defence promoted the idea V.M always stood up for herself and in fact was extremely disrespectful and rude to E.H., so why did she not disclose the allegations? Whether as a teenage girl V.M. was insecure about her relationship with her mother or whether both complainants were not emotionally equipped to deal with the sexual abuse and to tell anyone about it, was neither here nor there. The delay in disclosure standing alone does not give rise to an adverse inference against credibility. Abrams J. in R. v. S.R.W. [2015] O.J. No. 6943 stated the following;
I remind myself that the timing of disclosure of sexual assault signifies nothing. Rather, the timing of disclosure depends upon the circumstances of the particular victim. There is no inviolable rule on how people who are victims of trauma like sexual assault will behave. Any rules once believed to be sound were based on what we now understand to be stereotypes and myths. In assessing the credibility of this complainant, the timing of the complaint is simply one circumstance in the factual mosaic of the case. A delay in disclosure, or the fact that a complainant remains in an abusive relationship, standing alone, will never give rise to an adverse inference against the credibility of the complainant.
161Notwithstanding, V.M's. insecurity in her relationship with her mother and her reluctance to disclose the allegations of sexual assault to her mother at the time, in my view, when she called E.H. a "pervert" or "creep" during the kitchen incident was quite telling. I agree that there was no confirmatory evidence that E.H. threw a telephone in response. However, W.M, V.M. and E.H. agreed that the word "pervert" had been used at some point in time. I accept as a fact that at the time V.M. was reaching out to her mother.
162The defence argued that given that there were open hostilities between E.H. and V.M. it defied credulity that E.H. was that intrepid to enter V.M.'s bedroom during the night. On its face it was an intriguing argument. However, another reasonable inference could be that E.H. had engaged in a regular routine of abuse and since V.M. did not complain it may have emboldened him.
163The defence argued that V.M.'s credibility was weakened by her testimony that she believed that E.H. thought that she was asleep as E.H. simulated sexual intercourse while on top of her for approximately 45 minutes. The defence argued that this was absurd. I have difficulty with this argument as I do not believe that the premise of the argument was entirely accurate. Firstly, V.M's testimony was not that simulated sexual intercourse occurred throughout the assault. Secondly, V.M. testified that she slept on her side the majority of the time. Thirdly, V.M. testified that she rolled over and pretended to be asleep on her stomach after E.H. fondled her breasts. Understandably, she did pretend to be asleep and "hoped that he would just go away".
164I found that V.M. was candid with the court when she admitted that she did have gaps in her memory and was not prepared to fill the gaps with untruths. V.M. also admitted to unflattering aspects to her personality when she was a teenager. In my view, the name calling was not just indicative of a jealous teenage girl but had borderline racist overtones. V.M detested the foods which he ate and the way he prepared meals. In addition, she made fun of his accent. In my view, these admissions enhanced her credibility.
165I also have difficulty with the defence companion theory that W.M. (1) was in so much hot water with her mother and was on the cusp of losing phone and computer privileges that she chose the "nuclear option" and concocted a scheme, with her sister to point the finger of blame at E.H. W.M. questioned W.M. (1) if she was being bullied at her new school or if there were any other problems. It seemed logical that she could have escaped her mother's wrath by availing herself to other excuses or explanations in order to get out of trouble. Moreover, W.M. (1) had no credible reason years later (absent the allegations) to hate E.H. that much and falsely accuse him of sexual assault. W.M. (1) testified that she was ambivalent towards E.H. notwithstanding that she was cognizant of the fact that V.M. did not like E.H.
166In my view, the defence submission that W.M. (1) picked E.H.as the scapegoat is untenable when compared to E.H.' testimony regarding his relationship with W.M. (1). E.H. testified that W.M. (1) did not dislike him. In fact, he testified that W.M. (1) loved him and there were no problems in their relationship when he broke up with W.M. I agree with the Crown's submission that it made no sense that even though W.M. (1) was aware of V.M.'s hatred towards E.H. that years later, according to the defence, W.M. (1) exacted her revenge.
167W.M. (1) was a timid and shy witness. She testified about events that happened 16 years ago. She told her story to the police a few weeks after the disclosure in 2010. At the time she was a teenager. I recognized that W.M. (1) testified to facts that she did not tell the police. For example;
(i) Her bum was grabbed and smacked.
(ii) E.H. did not say anything during the assaults.
(iii) Her pants were removed.
168There was some variation between W.M. (1)'s first trial testimony and her testimony in this trial. For example;
(i) She testified originally that she moved around during the assaults whereas the defence pointed out that in the trial she adopted similar language her sister used when she stated that she remained "frozen".
(ii) She originally testified that when she was asked about whether or not there was any lead up, W.M. (1) answered, "not that I remember" as opposed to her testimony in this trial that she could "not recall".
169In my view these were minor inconsistencies that did not detract from W.M. (1) as a reliable witness. She did not intentionally withhold information or details from the police. Moreover, the omissions to the police were reflective of a fifteen (15) year old speaking about events that occurred when she was seven (7) or eight (8) year old for the first time. It may be expected that she was uncertain or even wrong about whether or not her pants were pulled down, words were said, if her bum was grabbed or other precise details. Given the gaps in time and her age it was demonstrative of her reluctance to talk to the police and her timidity.
170With respect to her variations in her evidence from trial-to-trial, they were slight and inconsequential in my overall assessment of W.M. (1)'s reliability and credibility. W.M.(1) testified that she did lay still and pretended to sleep which in anyone else's vocabulary would be equivalent to lying 'frozen' with fear. In addition, stating "do not recall" and "not that I remember" were not unequivocal answers and as such I do not consider those responsive as dispositive of anything.
171The defence emphasized W.M. (1)'s dream-like and vague memory. She did admit that she told the police and to her mother that she had experienced dreams. I believe that W.M. (1) was plagued by nightmares about the incidents. She repressed the memories. However, I was impressed with W.M. (1)'s answer to the conundrum of discerning fact from fiction. W.M. (1) emphatically stated that she knew that the events "physically happened to me". It was a reasonable and measured answer under the circumstances.
172Turning to E.H.'s testimony, in many respects E.H. appeared to be motivated by an attempt to distance himself from any likely opportunity to have committed these offences. Specifically, E.H. minimized his presence in the house and transparently distanced himself from being alone with the complainants in their bedrooms. I found his evidence unconvincing. He was neither a credible nor a reliable witness. He testified that he only stayed overnight at the house approximately two (2) or three (3) times a month and 85% of the time when he stayed over after coming home from a bar with W.M. Since W.M. had very strong feelings towards E.H. and was very committed to the relationship and wanted to spend as much time with W.M. as possible, in my view, it was inconsistent that he did not want to spend more time at the house. Despite the fact that E.H. often ate dinner at the house two (2) or three (3) times a week, watched television with the family and W.M. but did not stay over more frequently, was hard to believe. Furthermore, E.H.'s residence, his places of employment, and the college that he attended were in close proximity to each other. It was difficult to accept that never once given all the circumstances, as he testified, E.H. slept over on a week night even though he admitted that he wanted to spend as much time as he could with W.M. I find that the fact that E.H. kept clothes including underwear, a t-shirt to sleep in and a toothbrush suggested that he stayed over more than he was prepared to admit too. V.M.'s testimony that E.H. stayed over on both weekends and weeknights contradicted his evidence on this point.
173Another inconsistency and implausible denial was in E.H.'s absolute rejection that he ever took W.M. (1) to the beach. When he was confronted with his testimony in his previous trial that in fact he admitted that he had taken the entire family to the beach, however, in my view, he 'double downed' when he responded that he was asked if he only took W.M. (1) to the beach. While this may have been a clever response, which perhaps technically may be accurate to the specific question posed, it was an unpersuasive answer that was intended to not fully answer the question. In my view, if E.H. wanted to be open and honest in his evidence he should have fully answered the question, rather than focusing on a slight language distinction to cover the fact that he did not recall whether or not he took W.M.(1) to the beach.
174I also found that during the entirety of the relationship E.H.'s claim that he never left the bedroom at night other than when he went to the washroom after sex difficult to accept. His previous trial testimony, which was put to him, made it clear he never left the bedroom after going to sleep. However, in his current testimony when he said that he did leave the bedroom after sex he did go to the washroom. There was a defence objection that the Crown's question was about not leaving the bedroom after sex. However, E.H. admitted that he never left the bedroom at all. I simply find this hard to believe. In my view, it was another transparent example of E.H. denying that he had an exclusive opportunity to carry out the acts alleged.
175I found E.H.'s ability to recall details that he could not have possibly known would be relevant sixteen (16) years later defied belief. For example, E.H. had a specific recollection that there was a lock on V.M.'s door. He recalled an incident whereby V.M. ran into her bedroom and locked herself in her room. V.M. demanded that she unlock the door, after V.M. could not unlock it from the outside with a pin. Eventually the incident ended by V.M. unlocking the door. I found it odd that E.H. recalled such an insignificant event so many years later. In my view, this was another attempt to demonstrate limited access to a bedroom. However, V.M. testified that she did not have a lock on her door as she slept in a converted office.
176E.H.'s evidence that he did wear a t-shirt to bed while W.M. (1) claimed that E.H. wore a tank top, seemed to be in slight conflict. However, it was a slight distinction with very little difference. E.H. admitted that he normally slept in the nude at home, however, when he slept over at the house, W.M. would leave out a t-shirt and his white underwear briefs to wear to bed. In addition, E.H. acknowledged that he wore his cross around his neck, but self-servingly stated that he wore the cross under his t-shirt. Nevertheless, W.M. (1) described that during the assaults E.H. wore the same kind of underwear, a tank top (similar to a t-shirt) and gold chain around his neck. In my view, W.M. (1) could have only observed the described clothing unless E.H. was in her bedroom at night.
177I do not accept E.H.'s evidence that he did not sexually assault the complainants as they described. Again I accept the complainants' evidence. The whole of the evidence does not leave me in a state of reasonable doubt. I am satisfied beyond a reasonable doubt as to the credibility of the complainants. E.H.'s evidence is not believed and it does not give me a reasonable doubt. As I have previously stated the complainants were impressive witnesses. Any frailties or gaps in the complainants' memories were understandable given the passage of time. However, they had the ability to recall the layout of their five (5) level back split, the contents of their bedrooms, lighting conditions, how they usually slept, whether their bedroom doors were open and locks on doors.
178Although I have concluded that standing alone and independent to each other, the complainants' evidence was proof beyond a reasonable doubt, I still would have granted the crown's application to admit the evidence count to count as proof of the actus reus and identity.
179I reject the notion that the complainants colluded and there was motive to fabricate. Ostensibly, when any two complainants disclose a sexual assault allegation to a third party there will always be an "opportunity' to collude. However, the mere opportunity is not enough to render the evidence admissible. (See: R v. Dorsey, [2012] O.J. No. 1377 at para 29 (C.A.) The law recognizes that where family members are the complainants there will always be the opportunity for communication even to a certain degree about the allegations. But that is not sufficient. The focus on the enquiry is whether or not the concoction and collaboration actually tainted the evidence, not the mere possibility that it could be tainted.
180In my view, the complainants stopped short of discussing further details of what had occurred beyond the sharing of information that E.H. had inappropriately "touched" the complainants. I agree that notwithstanding there were some variance in the alleged conduct from complainant-to-complainant, such as the location of the touching, the kind of touching and the frequency of the touching. In my view, if there was collusion and concoction, I would have expected more consistency.
181It is reasonable to accept that the complainants and W.M. did not discuss the incidents since the disclosure of the allegations as the crown submitted "there was a chasm of guilt and shame that as a family they could not overcome". This is not uncommon in these type of cases. (See: J.F, supra)
182As I have previously stated I rejected the motive to fabricate. I believe there was no air of reality to the defence suggestion that W.M. (1) concocted her story to deflect her mother's anger over her truancy and that V.M. the protective sister sought to save her younger sister by creating a false narrative about E.H. while at the same time exacting her final revenge on E.H. for dating her mother.
183The connectedness between the complainants' evidence, was far beyond the ambiguous and obscure details that afford sufficient probative value on the issues of actus reus and identity in his case. The similarities were set out in paragraph 88 were persuasive. I do not propose to repeat them here.
184The differences described in the assaults that were conceded by the Crown, such as the location of the touching, the length the assaults lasted, the frequency of the assaults and E.H.'s location on the beds during the assaults could be explained by the location of the complainants' bedrooms and body development. Nevertheless, these dissimilarities did not detract from the high degree of similarities in their ages, the timing of the assaults, the complainants' relationship with E.H., and finally, the inappropriate touching that occurred to both complainants, while they slept in their respective beds.
185The facts disclosed by the complainants rendered the likelihood of a coincidence improbable. Since this was a judge alone trial there is very little risk of moral or reasoning prejudice. Therefore, I would have granted the Crown's similar fact application.
186In conclusion, stand up E.H. I am satisfied beyond a reasonable doubt on the whole of the evidence that E.H. is guilty of counts 1, 2, 3, and 4.
187I welcome any submission with respect to whether the Kienapple principle should apply in these circumstances?
Released: October 4, 2018
Signed: Justice P. T. O'Marra