R. v. G.L., 2020 ONSC 1511

COURT FILE NO.: CR-18-1137

DATE: 2020 03 10

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

I. Singh, for the Crown

• and -

G.L.

A. Bigioni, for the Defendant

HEARD: October 21, 22, 23, 24 and December 13, 2019

RESTRICTION ON PUBLICATION

By court order made under subsection 486.4(1) of the Criminal Code, information that may identify the person described in this judgment as the complainant or a witness may not be published, broadcasted or transmitted in any manner.

REASONS FOR JUDGMENT

Doi J.

Overview

1The accused, G.L., is charged under ss. 271 (Sexual assault), 151 (Sexual interference), 152 (Invitation to sexual touching) and 266 (Assault) of the Criminal Code in respect of sexual offences that allegedly occurred between 2008 and 2017. The complainant, Y.K., is G.L.’s step-daughter who claims that the offences started when she was six years old.

Background

2Y.K. was a toddler when G.L. started dating her mother. On November 26, 2005, G.L. married her mother when Y.K. was three years old. Y.K. grew up believing that G.L. was her biological father until her mother told her in 2014 that she was born from another relationship and that G.L. was her step-father.

3Shortly after they married, G.L. and Y.K.’s mother moved into a four bedroom house in Brampton where they lived with Y.K. and the maternal grandparents. Several months later, Y.K.’s maternal aunt, uncle and niece moved in with them. G.L. and Y.K.’s mother shared a bedroom, Y.K. had a second bedroom, the grandparents shared a third bedroom, and the maternal aunt, uncle and niece occupied a fourth bedroom. Each room was on the second level of the home.

4In 2010, G.L. and Y.K.’s mother relocated to a three bedroom house in Mississauga. G.L. and Y.K.’s mother took the master bedroom, Y.K. took a second bedroom, and the grandparents occupied the third bedroom until 2016 when they moved out. The maternal aunt’s family moved to their own home in 2010 and did not reside in the Mississauga house.

Summary of the Crown’s Case

5The complainant, Y.K., is about 17 years old. At trial, she adopted a videoed statement she gave to police on July 23, 2017. She also testified at a preliminary inquiry and at trial.

6Y.K. claims that G.L. regularly involved her in various sexual encounters over a nine year period that started when she was six years old. These encounters allegedly occurred at home several times each week, mainly upstairs in Y.K.’s bedroom or in G.L.’s bedroom behind a locked door. Some encounters allegedly occurred on the main floor of the home and in the basement, and in G.L.’s car when he gave Y.K. a ride.

7According to Y.K., she did not understand as a young child that anything was wrong with the sexual encounters. As she matured, and as her encounters with G.L. occurred more frequently, she came to realize that the encounters were inappropriate but did not know what to do. She typically acquiesced to the encounters that G.L. initiated but occasionally refused to engage in them, particularly as she grew older.

8Y.K.’s first sexual encounter allegedly occurred when she was six years old. During that encounter, which purportedly occurred in the master bedroom in the Brampton home, she claims that G.L. told her to put her hand on his penis and play with it. After she did so, G.L. put his hand down her pants and touched her vagina. He removed her pants, cupped her buttocks, and lifted her up and down along his penis that was inside his pants as he sat in a chair.

9Y.K. allegedly went on to have regular sexual encounters with G.L. at least two or three times each week. She could not remember specific details of her encounters, apart from later encounters that took place shortly before she disclosed her history of abuse. Y.K. claims that her sexual encounters with G.L. followed a pattern or routine which she generally described as having involved oral sex and other sex acts that fell short of sexual intercourse. From her evidence, it was not always clear which specific encounter Y.K. was describing because she tended to combine events in her testimony about the encounters. According to the Crown, the conflated nature of Y.K.’s recollection is not unexpected given the frequency and similarity of the various encounters that she claims to have experienced as a child. The Crown submits that Y.K.’s evidence is credible and reliable.

10The Crown submits that G.L. groomed Y.K. to believe that the sexualized activities that he allegedly introduced to her were normal. Relying on Y.K.’s evidence, the Crown claims that G.L. groomed her by sending sexually suggestive pictures, by showing pornography, and by trading humorous profane banter, all in an alleged effort to bond and connect with Y.K., to lower her inhibitions, and to normalize his interactions with her. As Y.K.’s step-father and guardian, G.L. is also alleged to have used his position of trust and authority to perpetrate the sexual abuse and avoid detection by convincing Y.K. to keep it a secret.

11Y.K. claims that her last sexual encounter with G.L. occurred on Tuesday, July 18, 2017 when he came home from work, entered her bedroom naked, had her perform fellatio, turned her over on her bed, removed her shirt, and ejaculated on her back. Using tissues, he purportedly wiped her back before retiring to his room to watch tv.

12On Thursday, July 20, 2017, Y.K. claims that she reached her breaking point and disclosed her history of sexual encounters to her friend A.P., and to other friends, before telling her mother about the encounters the next morning on Friday, July 21, 2017.

13On Saturday, July 22, 2017, Y.K. disclosed her sexual encounters with G.L. to her extended family. On Sunday July 23, 2017, Y.K. disclosed the encounters to police.

Summary of the Defence’s Case

14G.L. denies the allegations against him. He claims that Y.K. fabricated the alleged sexual encounters to remove him from her life because he limited her independence, disciplined her for not following household rules, and restricted her social life with her friends. He claims that Y.K. is not a credible or reliable witness given a number of inconsistencies and gaps in her evidence that, in his submission, raise serious doubts with her testimony.

15Over the past 16 years, G.L. has worked on an assembly line at a car seat factory. He described a fairly consistent daily routine when he lived in the Brampton and Mississauga homes. During the week, he purportedly left for work before 5:00 am when others at home were still sleeping. He returned home between 5:00 pm to 5:30 pm, except for Fridays when his shift ended early and he came home between 3:00 pm to 4:30 pm. Infrequently, G.L. worked a 10-hour overtime shift on Saturdays when scheduled to do so.

16According to G.L. he typically came home from work and tended to a few outdoor chores. He then washed the dishes from his lunch bag, showered upstairs, prepared his lunch bag for the next day, ate dinner, washed the dinner dishes, and played computer games or watched tv. He went to bed around 8:30 pm and fell asleep by about 9:00 pm.

17On weekends when he was not working at the factory, G.L. claims that he worked at home on basement renovations, washed his cars, attended to his gardening, cleaned his garage, and did some indoor housework. Most of his remaining free time is said to have been spent with Y.K.’s mother watching tv, going for walks and shopping. He went to church with Y.K.’s mother about two or three times per month, and they were joined by the grandparents when they lived together. As a younger child, Y.K. attended church with her family but she later stopped going to church regularly as she grew older.

18G.L. claims that Y.K.’s mother and grandparents (i.e., until they moved out in 2016) were almost always in the house when he came home from work. He testified that Y.K.’s mother and grandparents were devoted caregivers who actively looked after the child.

19G.L. described Y.K. as a precocious child with an independent personality. At various times, she bristled at having to eat her meals, finish her school work, and return home after playing outside or spending time with friends. G.L. came to assume the responsibility of disciplining Y.K., usually by confiscating her mobile phone, when she did not follow household rules or directions from her parents or grandparents. Over time, G.L.’s relationship with Y.K. worsened, particularly after she learned in 2016 that he was not her biological father, after which Y.K. reportedly became more disobedient.

20G.L. denies the alleged sexual encounters with Y.K. and, among other things, takes strong exception to Y.K.’s claim that the last sexual encounter was on Tuesday, July 18, 2017 because he has a video clip that shows him interacting with Y.K. and her friend, A.P., at the time of this alleged encounter. I will return to this encounter later in these reasons.

General Principles

21An accused is presumed to be innocent unless and until the Crown proves their guilt beyond a reasonable doubt: R v. Lifchus, 1997 CanLII 319 (SCC), [1997] 3 S.C.R. 320 at para 27.

22Reasonable doubt applies to credibility. I do not need to firmly believe or disbelieve any witness, but may accept parts of a witness’ evidence and reject other parts, and accord different weight to parts that I do accept: R. v. Howe, 2005 CanLII 253 (ON CA), [2005] OJ No 39 (CA) at para 44.

23If I believe the defence, I must acquit. Should I disbelieve the defence, I nevertheless may be left with a reasonable doubt after considering that evidence as a whole. Even if I am not left with a reasonable doubt by the defence evidence, I must consider whether the remaining evidence as a whole proves the accused’s guilt beyond a reasonable doubt: R. v. W.D. (1991), 1991 CanLII 93 (SCC), 63 C.C.C. (3d) 397 (S.C.C.). I need not consider these principles in strict order, but must apply the basic elements of the test: R. v. Minuskin, 2003 CanLII 11604 (ON CA), [2003] OJ No 5253 (CA) at para 22. In the final analysis, I must be satisfied on the evidence as a whole that the accused is guilty beyond a reasonable doubt. Only then can there be a conviction.

24As is true in many sexual assault prosecutions, much of this case turns on the credibility of the complainant, Y.K., and the accused, G.L.. A finding of guilt may, in appropriate cases, be safely based on the evidence of a single witness: R. v. B.B., [2009] OJ No 2991 (SC) at para 53. Where a complainant’s evidence has significant inconsistencies or contradictions, or is considered against conflicting evidence, a trier of fact must carefully assess the evidence before finding that guilt is proven: B.B. at para 56, citing R. v. Selles (1997), 1997 CanLII 1150 (ON CA), 101 OAC 193 (CA) at 207-8.

25Delayed disclosure of sexual abuse does not automatically count against a complainant’s credibility given the psychology and circumstances that may lead to delay: R. v. J.M. 2018 ONSC 344 at para 67, citing R. v. D.(D.), 2000 SCC 43 at para 65. But delay may impact a complainant’s credibility when disclosure is made coincident with an impetus of a motive to fabricate: J.M. at paras 67-68. In this context, credibility must be assessed against a careful examination of the evidence.

26Every witness, regardless of their age, should have their evidence and credibility assessed with regard to their cognitive development, understanding and ability to communicate, which is a flexible standard: R. v. M.(A.), 2014 ONCA 769 at para 9. Inconsistencies in a witness’ testimony about events that occurred as a child, especially on peripheral matters such as time and location, should be considered in the context of the witness’ age at the time of the events: M.(A.) at para 11, citing R. v. W.(R.), 1992 CanLII 56 (SCC), [1992] 2 SCR 122 at 134. The evidence of a youthful witness is not inherently unreliable but should be understood with an eye to common sense, given that accuracy and detail may be missing from the recollection of a child who experiences the world differently: B.B. at paras 60-61.

27In assessing the credibility of a child witness’s testimony, the following principles have been held to apply:

• A common sense approach is required when dealing with the testimony of young children;

• The exacting standard imposed on adults is not to be imposed on young children;

• The standard of proof required for a case involving children is not lower than the standard of proof for a case involving adults;

• A flaw, such as a contradiction, in a child’s testimony is not to be given the same effect as a similar flaw in the testimony of an adult; and

• The inability of a child to recall precise details and communicate the location and timing of events with exactitude, does not mean that the child has misconceived what happened and who was involved.

R. v. B.(G.), 1990 CanLII 7308 (SCC), [1990] 2 SCR 30 at para 48; R. v. W.(R.) at para 24. These principles have been applied to child witnesses who ranged from 2 and 10 years of age when the incidents occurred, who were 3 to 4 years older when the incidents were reported, and who were 9 to 16 years old when they testified at trial: R. v. W.(R.) at para 2; R. v. Nakogee, 2017 ONSC 4885 at para 58.

28A valuable means to assess credibility is to consider a witness’ testimony against what s/he said on other occasions, whether or not under oath: M.(A.) at para 12, citing R. v. G.(M.) (1994), 1994 CanLII 8733 (ON CA), 93 CCC (3d) 347 (ONCA) at 354, leave to appeal to SCC refused [1994] SCCA No 390; R. v. Khan, 2017 ONCA 114 at para 32. A material inconsistency over something that an honest witness is unlikely to be mistaken about may show a carelessness with the truth for which the trier of fact should be concerned: M.(A.) at para 13.

29A complainant’s motive to fabricate is a relevant factor to be considered, as is evidence of an accused’s motive to lie: B.B. at para 64, citing R. v. K.G.B. (1993), 1993 CanLII 116 (SCC), 79 CCC (3d) 257 (SCC) at 300, and R. v. Murray (1997), 1997 CanLII 1090 (ON CA), 99 OAC 103 (CA) at paras 11-14.

Analysis

30This case turns largely on the credibility and reliability of Y.K. and G.L., respectively. As explained below, I have difficulty with certain aspects of the evidence that each gave.

a. Defence Evidence

i. Sexualized Images

31G.L. testified that he did not appreciate that images he sent to Y.K. contained sexualized content. I do not believe him.

32G.L. sent Y.K. several images featuring sexualized content, including an emoji of an eggplant representing a penis, a photo of a zucchini and other food items grouped to depict a penis, and a selfie photo of himself gesturing with a middle finger. G.L. claims that he sent Y.K. the images to share some humour, although he was evasive when asked why the images were funny. He also claims that he did not initially appreciate that the images had sexualized content, and only came to understand the sexual nature of the images after he was criminally charged and the content of the images was explained to him.

33I do not believe that G.L. was this naïve. The images depict male genitalia and clearly have a sexual nature. Although G.L. cloaked these images in humour when he shared them with Y.K., I do not believe that he considered them to be free of any sexualized innuendo. G.L. also bantered with Y.K. using vulgar and profane images and language. In my view, the images and banter introduced a sexualized aspect to their relationship that raised her tolerance to these images and conversations and lowered her inhibitions. But given the limited nature of the evidence on this point, I am not prepared to accede to the Crown’s submission that G.L. shared the images to “groom” Y.K. for a sexual purpose. That being said, the images were inappropriate to share with a child, particularly by a parent.

ii. G.L.’s Vasectomy

34Y.K. testified that G.L. encouraged her to have vaginal sex with him on multiple occasions, and said that she did not need to worry about becoming pregnant because he had a vasectomy. Y.K. also claims that G.L. told her that people her age are having sex all the time. Y.K. further claims that she declined G.L.’s advances and engaged in other sexual activities with him short of intercourse to avoid having full intercourse with him.

35G.L. denies that he sought to have sexual intercourse with Y.K., and claims that he mentioned his vasectomy to Y.K. after she asked her parents for a sibling.

36After the grandparents had moved out, G.L. claims that Y.K. became lonely and asked her parents for a sibling. This conversation purportedly came up over dinner one evening at home. G.L. claims that he told Y.K. that he could not have any more children because he had a vasectomy. Importantly, G.L. claims that Y.K.’s mother was at the dinner table when he mentioned his vasectomy. But Y.K.’s mother testified that she did not remember him saying this. She also testified that she did not discuss G.L.’s vasectomy with Y.K. because it was an inappropriate adult topic for Y.K., who was still a child.

37I do not accept that G.L. told Y.K. about his vasectomy over dinner with her mother. Not only did Y.K.’s mother not remember G.L. doing so, but I find it unlikely that G.L. would have raised such an adult topic in a conversation with Y.K. and her mother, who was protective of her child. Since the topic of his vasectomy was an age-inappropriate subject to discuss with Y.K., I also find that Y.K.’s mother likely would have remembered if G.L. had mentioned his vasectomy to Y.K. in her presence.

b. The Complainant’s Evidence

i. The Complainant’s Memory

38In my view, key portions of Y.K.’s evidence are unreliable or problematic. Some of this can be attributed to Y.K.’s apparently shifting memory of events which was limited, lost or regained, depending on the point in time in her narrative of this case. I find other parts of Y.K.’s evidence to be suspect, as explained below.

39Y.K. concedes that she does not have a good memory of the sexual encounters. She claims that her encounters with G.L. regularly happened about two or three times per week, and with increased frequency after her family moved from Brampton to Mississauga. But on July 23, 2018 when she disclosed the sexual encounters to police, Y.K. disclosed only a few encounters in limited detail with a focus on her first alleged encounter with G.L. when she was 6 years old. At trial, Y.K. admitted that she did not remember the assaults well when she disclosed them to police and stated that her memory had not improved.

40Y.K. testified at trial about her first sexual encounter with G.L. but could not recall any details of her other encounters with him before she turned 10 years of age. Although Y.K. claims that G.L. sexually abused her during this period, she could not remember any details of the abuse at trial. Y.K. also conceded that she could not remember any of these encounters when she disclosed her alleged history of abuse to police. She further testified that her disclosure to police and her evidence at the preliminary inquiry did not address her encounters with G.L. from when she was 11, 12 or 13 years old because she could not remember them.

41Over the years, Y.K. claims that her sexual encounters with G.L. occurred literally hundreds of times, and increased in frequency as she grew older to the point where they happened almost every day. But when she testified at trial, Y.K. could not recall details of any specific incidents apart from general or generic memories of many sexual encounters with G.L. that involved touching of a sexual nature.

42Y.K. further testified that she clearly remembered her sexual encounters with G.L. from when she was 14 years old (i.e., around the time of her disclosure to police) because her memory from that period is clearer. More specifically, Y.K. testified that her memory of her last sexual encounter with G.L. was really clear. I will say more about the alleged last sexual encounter later in these reasons.

43Given the apparent challenges with Y.K.’s memory of events, I have reservations with respect to the reliability of her evidence of her alleged historic sexual encounters with G.L. that are said to have occurred before she turned 14 years old. In arriving at this, I recognize that few witnesses have perfect recall and that many give more than one account of the same event which gives rise to inconsistencies. These features are also expected in a child’s testimony and, in general, a trier of fact is to be forgiving of problems in a child or youth witness’ evidence on peripheral or insignificant matters as the exacting standards imposed on adults are not imposed on young children: B.(G.) at para 48. I also recognize the difficulty that child complainants in sexual assault cases may have in giving a full account of events: R. v. C.(G.), 2006 CanLII 18984 (ON CA), [2006] OJ No 2245 (CA) at para 22. But on the particular facts of this case, I find that the gaps and inconsistencies in Y.K.’s evidence of those alleged encounters are significant flaws and heavily impact the reliability of her testimony: Selles at 207-8; B.B. at para 56. Given the serious nature and extent of these flaws, I find that Y.K.’s evidence of these historic events is unreliable and dangerous to rely upon in determining what occurred before she turned 14 years old.

ii. First Sexual Encounter

44In her July 23, 2018 disclosure to police, Y.K. claimed that the first sexual encounter took place in G.L.’s room as he was watching a movie on television. She claims that she held his penis at his direction, that he removed her pants, that he put his hand down her pants and in her vagina, and that he held her buttocks while lifting her up and down on his lap.

45At the preliminary inquiry, Y.K. did not mention that G.L. had put his hand on her vagina, held her buttocks, or lifted her up and down. At trial, Y.K. testified that she did not remember these parts of the encounter at the preliminary inquiry but somehow had regained those memories by the time she testified at trial.

46During cross-examination at trial, Y.K. gave fresh details about the first sexual encounter. She claimed that it occurred after she came home with her grandmother from a local park where a child had pulled down her pants while she was playing on a slide. Y.K. claimed that she was “pretty sure” that is how the encounter began, but then explained that she did not know how else it would have started. She described these as “new” memories.

47When she testified at trial about the first encounter, Y.K. initially omitted several details from her earlier disclosure to police, namely that G.L. had put his hand down her pants and in her vagina, and that the encounter ended when her grandmother came upstairs. Under cross-examination at trial, Y.K. testified that these details had slipped her mind. She also conceded at trial that she no longer had any memory of these details.

48I recognize that the inability of children to testify about the exact details of when or where an event occurred, particularly peripheral matters such as time and location, does not necessarily mean that they have misconceived what happened to them, or who did it: R. v. B.(G.), 1990 CanLII 7308 (SCC), [1990] 2 SCR 30 at 54; R. v. W.(R.), 1992 CanLII 56 (SCC), [1992] 2 SCR 122 at para 26. I am mindful of the difficulty that a child complainant may have in providing a full account of events in a sexual assault case: R. v. C.(G.) at para 22. But Y.K.’s evidence at trial added important new details that went beyond merely peripheral issues by going to the central allegations in this case that she did not mention in her prior disclosure to police, which calls into question the reliability of her testimony: R. v. Khan, 2017 ONCA 114 at para 28; R. v. Dinardo, 2008 SCC 24 at paras 37-38. Her testimony at trial also omitted details that she earlier disclosed for which she no longer has any memory. Given the extent of the gaps and discrepancies in Y.K.’s evidence, I find that I have serious reservations with the reliability of her evidence regarding her alleged first sexual encounter with G.L..

iii. Other Previously Undisclosed Sexual Encounters

49I have similar concerns with Y.K.’s evidence at trial about allegations or matters that she previously did not disclose.

50During her cross-examination at trial, Y.K. disclosed for the first time that she remembered an occasion when G.L. came into her room in the Brampton home and put her face against the boxer shorts that he was wearing. Y.K. described this as a completely new memory which came to her not long before she testified at trial. She claimed to have no idea of why she could remember this at trial, and it is unclear how or why this new memory apparently surfaced.

51Y.K. also testified in cross-examination that she had sexual encounters with G.L. in the basement, and in her grandparents’ room when they were shopping or at church. She claimed that the encounters typically involved sexual touching and/or oral sex that Y.K. and G.L. performed on each other. But when Y.K. testified at the preliminary inquiry, she could not recall a specific occasion when a sexual encounter happened in any of these places despite claiming that she had sexual encounters with G.L. in those parts of the house.

52During cross-examination at trial, Y.K. also testified about a previously undisclosed memory that G.L. would move his hand up and down her leg below the table when they were eating dinner alone in the Mississauga house sometime after the grandparents moved out. Moments later, however, Y.K. testified that she did not remember exactly where G.L. allegedly touched her.

53Y.K. testified at trial about one encounter that started when G.L. was watching tv in his room and she was on the floor playing with an iPod when he told her to perform oral sex on him. But when Y.K. disclosed this incident to police, she had stated that she had been sitting and playing with her iPod when G.L. removed her pants and put his mouth on her vagina. When asked about this in cross-examination, Y.K. clarified that there had been two instances in which she had played with her iPod just before a sexual encounter. She went on to give previously undisclosed details of an incident in which she had used an iPod before an alleged sexual encounter with G.L. in which she performed fellatio before he went to the bathroom to masturbate, ejaculate, and then return to watch tv with her. Y.K. claimed that this was typical of the sexual encounters that she and G.L. had together.

54Y.K. also testified that the iPod incident she disclosed to police actually had occurred when she was in Grade 4, although she may have told police incorrectly that she had been in Grade 5 or 6 at the time. During cross-examination at trial, Y.K. testified that she had been playing a game on her iPod and sitting in a chair when G.L. put his mouth on her vagina and performed oral sex. At trial, Y.K. could not recall exactly where this sexual encounter occurred. When told that she had testified at the preliminary inquiry that G.L. had gone to her room after dinner to tell her to come to his room where he performed cunnilingus as she sat on the floor, Y.K. claimed that there actually had been two separate incidents. She conceded that she could not recall if the incident that she had described at the preliminary inquiry was the same incident that she had disclosed to police, but later claimed that it indeed was the same incident.

55Applying a common sense approach, and mindful that the exacting standard imposed on adult witnesses is not imposed on young child witnesses, I find that Y.K.’s evidence of the above-mentioned encounters is unreliable. Y.K.’s evidence gave important and central new allegations against G.L. that she did not mention previously. Aspects of her evidence also were inconsistent, for which Y.K referred to new encounters to explain away certain inconsistencies although not all inconsistencies in her testimony could be explained in this fashion. Y.K. also expressed an inability to recall particulars about central aspects of her allegations against G.L. when asked for details. Having carefully considered her evidence, I find that the reliability of Y.K.’s testimony is called into serious question: Khan, at para 28; Dinardo at paras 37-38.

iv. Alleged Sexual Encounters in G.L.’s Car

56Y.K. claims that G.L. sexually touched her in his car when they were alone. She recounted an occasion when he did so while driving her to a NoFrills store to buy a bag of chips. She claims that G.L. put his hand between her legs and moved it up and down. To stop him, Y.K. claims that she pulled his hand away.

57In her disclosure to police, Y.K. did not mention that she had pulled away G.L.’s hand. At the preliminary inquiry, Y.K. claimed that she did not use her hand to move G.L.’s hand but instead tried to move his hand by closing her legs. When asked about the discrepancy in her accounts, Y.K. testified that she had meant to include the part about using her hand to stop G.L. in her disclosure to police. She also testified that she likely did not recall that she had used her hand to move G.L.’s hand when she testified at the preliminary inquiry.

58To avoid being touched, Y.K. claims that she sat in the back seat of the car.

59Y.K. testified the sexual assaults in the car started when she was 11 years old and occurred maybe less than 100 occasions. She claimed that the incidents in G.L.’s car did not occur as often as the sexual encounters at home, although they increased in frequency as she got older. She later testified that the car incidents did not occur more than 75 times, but went on to guess that they happened about 50 times a year (i.e., or about 200 times over 4 years).

60G.L. claims that he only drove Y.K. to piano lessons and occasionally to the store if she wanted to purchase items. He also claims that Y.K. regularly sat in the back seat of his car because it gave her more privacy to use her mobile phone, which she regularly used during car rides. G.L. denies that he sexually touched Y.K., and submits that it would have been quite difficult for him to do so from the driver’s seat while Y.K. sat behind him.

61From the evidence, I have reservations with Y.K.’s account of the alleged sexual encounters in G.L.’s car. In my view, there is a real discrepancy in Y.K.’s account as to how the alleged touching occurred which is central to understanding how the sexual encounter unfolded. Y.K.’s account also calls into question her memory of events, and in particular what memories she may have lost or (re)acquired over time. Y.K. also gave changing estimates as to how frequently the alleged encounters occurred in the car. These factors must be assessed within the broader factual context of the case. In my view, the opportunity for G.L. to sexually touch Y.K. in the car likely would have been limited given that Y.K. sat in the back seat while G.L. occupied the driver’s seat, as they both stated in their evidence. I would add that G.L. flatly denied the alleged encounters in the car without anything in his responses or demeanour to call into question the plausibility of his denial.

v. The Last Alleged Sexual Encounter

62I am particularly concerned about a significant discrepancy in Y.K.’s evidence regarding her last alleged sexual encounter with G.L.. Y.K. claims that her last encounter took place only two (2) days before she made a major decision to disclose the history of sexual abuse to her best friend, A.P., and to several other friends. Over the next three days, Y.K. further disclosed the abuse to her mother, to her extended family and to police.

63At trial, Y.K. testified that her last sexual encounter with G.L. took place on Tuesday, July 18, 2017 after he arrived home from work at 5:00 pm or 5:30 pm. When he came home, Y.K. claims that G.L. unpacked his lunchbox in the kitchen before going to Y.K.’s room where she performed fellatio at his request. Y.K. was unsure about whether G.L. showered before this encounter, which purportedly ended when he ejaculated on her back and went to his room. Y.K. claims that she and G.L. were alone in the house when this happened.

64G.L. exchanged a series of text messages with Y.K. beginning at 5:56 pm that day just before he pranked Y.K. and A.P. by bursting in on them as they played a game in the basement. Importantly, G.L. recorded a video as he burst in on the girls, which shows them all howling with laughter afterwards.

65G.L. made his video at about the same time that Y.K. claims her last sexual encounter with him took place, just two (2) days before she disclosed the alleged history of sexual abuse. I find this discrepancy to be striking.

66Initially, when she was confronted with G.L.’s video, Y.K. testified that maybe her last sexual encounter happened a day earlier on Monday, July 17, 2017. That explanation is troubling. Having finally reached a major decision to disclose 9 years of alleged sexual abuse by her step-father, I have serious difficulty believing that Y.K. would have mixed up the date of her very last sexual encounter with her abuser.

67Moments later in her testimony, Y.K. offered a different explanation. Recalling that July 18, 2017 fell in the summer, Y.K. testified that G.L. would have come home from work earlier than usual, around 4:00 pm or 4:30 pm, because she remembered that his factory shifts ended earlier in the summer. Y.K. then suggested that there would have been enough time on July 18, 2017 for G.L. to come home from work and have the sexual encounter with her before A.P. came to play in the basement. Y.K. added that she was pretty sure that her last sexual encounter happened on this day before A.P. came over to play. According to Y.K., the girls were playing for about an hour, or just over an hour, before G.L. pranked them in the basement when he made the video.

68Y.K.’s second explanation calls for a relatively tight chronology. In my view, Y.K.’s account that her alleged sexual encounter with G.L. happened before A.P. came over to play is unlikely given the minimum amount of time realistically needed for G.L. to have unpacked his lunchbox and engaged in the sexual encounter with Y.K. before her playdate with A.P. started that afternoon. The improbability of Y.K.’s account for that afternoon is further apparent if additional time is factored into the chronology for G.L. to have showered after unpacking his lunchbox, which he claimed he did and which was part of his usual routine when he came home from work.

vi. Y.K.’s Disclosure of the Alleged Historic Sexual Abuse

69Y.K. disclosed the alleged historic sexual abuse by texting A.P. and some of her other friends on the evening of Thursday, July 20, 2017. The events leading up to her disclosure are somewhat telling.

70Earlier that afternoon, Y.K. went over to A.P.’s house after being invited for a sleepover. Around dinnertime, G.L. texted Y.K. to ask about her whereabouts and to tell her to come home. Y.K. explained that she was eating dinner with A.P.’s family and planned to stay overnight for a sleepover. She refused to return home. Y.K. and G.L. grew confrontational, which reflected their strained relationship that had worsened progressively.

71I accept that Y.K. was embarrassed and angered by the prospect of having to return home after accepting A.P.’s invitation for a sleepover. I find that Y.K. had bristled at her limited ability to spend time with friends. Y.K. valued her time with friends and her independence.

72Y.K.’s parents did not allow her to attend sleepovers, other than with her extended family. Moreover, Y.K.’s mother and G.L. both were concerned, unsurprisingly, about Y.K.’s poor grades at school. As a result, and despite the fact that it was summer, they wanted Y.K. to come home in an effort to guide her into a more structured routine that would allow her to focus on schoolwork.

73After her argument with G.L. escalated, Y.K. reached her mother at work who arranged to pick up Y.K. at A.P.’s house and bring her home after her shift ended. When Y.K. came home that evening, G.L. confiscated Y.K.’s mobile phone to discipline her for not following his earlier direction to return home.

74I accept that losing her mobile phone seemed onerous for Y.K. because it took away her ability to communicate with friends, which was important to her. I also find that Y.K. was angered and embarrassed by having been required to return home that evening instead of being allowed to stay for a sleepover at A.P.’s house.

75Anticipating that her mobile phone would likely be confiscated (i.e., as that was a regular form of discipline that G.L. typically used), Y.K. came home with another mobile phone that she had borrowed from A.P. that evening. Y.K. used this phone to disclose her alleged history of sexual abuse to A.P. and several other girlfriends. The next morning, Y.K. disclosed the abuse to her mother. The following day, Y.K. and her mother visited her elder maternal aunt and Y.K. recounted her disclosure of the sexual abuse. The day after that, Y.K. disclosed her allegations to police.

76Evidence of Y.K.’s prior disclosures of her alleged sexual encounters with G.L. constituted prior consistent statements. They were not admitted at trial for their truth, but instead were adduced as narrative and to assist in assessing the credibility and reliability of her in-court testimony in light of the defence’s claim that her alleged sexual encounters were fabricated: R. v. Khan, 2017 ONCA 114 at paras 26-31.

77The defence claims that Y.K. fabricated the allegations of her sexual encounters with G.L. because she harboured personal animus or ill will towards him as he enforced household rules and imposed discipline. The timing and circumstances of Y.K.’s disclosure of her alleged sexual encounters with G.L. offer some support for this position.

78This position is also supported by evidence that Y.K. previously asked her mother to divorce G.L. because he was getting into fights with her mother and herself, although Y.K. claims that she had raised this with her mother in an effort to stop G.L. from perpetrating the sexual abuse against her.

vii. Y.K.’s Earlier Denial that G.L. was Molesting Her

79Several years earlier when Y.K. was in grade 9, her mother discovered that Y.K. had tried smoking marijuana. Her mother responded by having Y.K. attend a family meeting to discuss her marijuana use. On their way to the meeting, Y.K.’s mother cautioned Y.K. about the problems associated with using marijuana, and encouraged her to stop using it. Searching for a reason to explain Y.K.’s marijuana use, her mother pointedly asked her if G.L. was sexually molesting her. Y.K. responded that G.L. was not molesting her.

viii. Other discrepancies

80There are other discrepancies in Y.K.’s evidence. More recently when she was 14 years old (i.e., sometime before she disclosed her history of sexual encounters), Y.K. claims that G.L. tried to have full sexual intercourse with her as she sat on his bed in his room. To stop him from doing so, Y.K. claims that she kicked G.L. in the stomach, and that he slapped her across the face. She disclosed this incident to police.

81Y.K. also testified that G.L. tried to have intercourse with her on four or five occasions, but then expressed uncertainty about the actual number of times. She could not recall when they occurred or any other particulars about the incidents, but she claimed that G.L wanted intercourse with her more frequently as she grew older.

ix. Y.K.’s Shower Habits

82Although she could not remember a specific incident, Y.K. testified that a pattern of sexual activity would occur after she finished showering. Around the time that she was 11, 12 or 13 years old, Y.K. used the shower in the ensuite bathroom in G.L.’s room (i.e., the master bedroom) because her grandparents used the main second floor bathroom. While she showered, Y.K. claims that G.L. regularly monitored the length of time that she took to shower, and would yell at her to stop. When she left the bathroom to go to her bedroom, Y.K. claims that G.L. would ask her to remove her towel, touch her sexually, and ask her to put her mouth on his penis. These encounters allegedly took place in the master bedroom, which G.L. would lock for privacy. Y.K. claims that G.L. had the tv on in the master bedroom when these encounters occurred.

83G.L. acknowledges that he regularly asked Y.K. to take shorter showers but denies that it reflected a sexual preoccupation. Instead, G.L. claims that he worried about damage to the bathroom windows and wood fixtures from the moisture caused by Y.K.’s habit of taking long and extended hot showers, which created excessive steam even with an open window and the bathroom fan in use. He also claims that Y.K.’s mother often was in the master bedroom watching tv with him when Y.K. finished her showers. He flatly denies that he monitored Y.K.’s showers for a sexual purpose, and claims that Y.K.’s mother frequently was in the master bedroom when Y.K. emerged from her shower.

x. G.L.’s Suicide Attempt

84On July 23, 2017, G.L. attempted suicide. The Crown claims that this supports an inference of guilt. The Defence claims that the suicide attempt was consistent with G.L.’s profound shock and embarrassment at being accused of serious crimes that he did not commit.

85On the facts of this case, I find that G.L.’s suicide attempt is circumstantial evidence that arguably supports the inferences suggested by both parties: R. v. Sodhi (2003), 2003 CanLII 52179 (ON CA), 66 OR (3d) 641 (CA) at paras 52-54. In my view, the suicide attempt is consistent with G.L. having been consumed with guilt or remorse, or alternatively the embarrassment of being accused of crimes that he did not commit. In this regard, I regretfully note that Y.K.’s mother also made her own near contemporaneous suicide attempt after Y.K. disclosed the allegations because of how awful she perceived the situation to be for her family.

86In light of the foregoing, and having carefully considered the evidence, I find that G.L.’s suicide attempt is not particularly indicative of either guilt or innocence.

Outcome

87Having carefully considered all of the evidence in its totality, I am left with reasonable doubt as to whether the alleged sexual encounters occurred.

88As mentioned earlier, there are significant gaps and inconsistencies with Y.K.’s evidence regarding the alleged sexual encounters that individually and cumulatively detract from the reliability of her testimony. This must be assessed within the broader context of the other evidence in this case.

89I am particularly concerned with the apparent discrepancy in Y.K.’s evidence regarding her last alleged sexual encounter with G.L. on July 18, 2017, which I find is unlikely to have occurred on that date as explained earlier. I have serious difficulty believing that Y.K. would have inadvertently disclosed the incorrect date of this encounter, which purportedly occurred just two days before she made the major decision on July 20, 2017 to disclose her alleged history of sexual abuse. I also have reservations with the timing and circumstances of Y.K.’s disclosure of her alleged sexual encounters given the evidence of her resentment towards G.L. for enforcing household rules and imposing discipline.

90Accordingly, I find that I am left with reasonable doubt as to G.L.’s guilt. There are aspects of G.L.’s evidence that I disbelieve, and other aspects of Y.K.’s evidence that are uncontradicted. But taking into consideration the case as a whole, and after making reasonable allowances for Y.K.’s age and the passage of time, I find that it would be impermissible to conclude that her evidence is sufficiently credible and reliable to remove reasonable doubt as to G.L.’s guilt.

91I find G.L. not guilty as charged.

Doi J.

Released: March 10, 2020

CITATION: R. v. G.L., 2020 ONSC 1511