COURT FILE NO.: CR-21-827 DATE: 2023 01 12

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING A. Heath for the Crown

– and –

H.P. B. Hundal, for the Accused

HEARD: November 14-17, 2022

REASONS FOR JUDGMENT

J.M. Woollcombe J.

Introduction

[1] The accused, H.P., is charged with five sexual offences in relation to the same complainant, his step-daughter K.T. The offences are alleged to have taken place between June 1, 2018 and February 10, 2020. The accused is charged with:

• Count 1: Sexual assault contrary to s. 271 of the Criminal Code;
• Count 2: Sexual exploitation contrary to s. 153(1)(a) of the Criminal Code;
• Count 3: Sexual interference contrary to s. 151 of the Criminal Code;
• Count 4: Invitation to sexual touching contrary to s. 152 of the Criminal Code; and
• Count 5: Sexual exploitation contrary to s. 153(1)(b) of the Criminal Code.

[2] H.P. pleaded not guilty to all counts and had a four day trial before me.

[3] The Crown brought a number of applications to be heard before the commencement of the trial. The defence consented to these applications. More specifically, defence counsel conceded that H.P.’s statement was voluntary such that the Crown would be entitled to use it for cross-examination. Counsel also conceded that the complainant’s videotaped statement, made on February 12, 2020, was admissible pursuant to s. 715.1 of the Criminal Code. Counsel further conceded that the videotaped statement of a second Crown witness, S.S.1., made on February 11, 2020, was admissible under s. 715.1 of the Criminal Code. Finally counsel conceded that S.S.2 should be permitted to testify by video, pursuant to s. 714.2 of the Criminal Code.

[4] By way of overview, K.T. testified that beginning when she was 15, the accused repeatedly came into her bedroom during the night when she was asleep. She said that he touched her sexually – on her breasts and vagina - both over and under her clothes. She testified that he also wanted her to touch his penis and that he had her do so both over his underwear and after he removed it. He would take her hand and put it on his penis. There was one instance in which he digitally penetrated her and one time she said that he lay on her and tried to force her to have sex. K.T. testified that H.P. would tell her to be quiet and that she will like it. When she resisted, or said “no”, he would get angry and touch her more.

[5] The Crown also called S.S.1., a friend of the complainant’s, and S S.2, S.S.1’s mother. Their evidence related largely to the timing of the complainant’s disclosure. The evidence as to what they were told by the complainant is hearsay and not admissible for its truth.

[6] The accused testified and denied all of the allegations.

Legal Principles

[7] The accused, H.P., is presumed innocent of the charges he faces. The burden of proof is on the Crown. It is for the Crown to prove beyond a reasonable doubt that H.P. is guilty of the offences charged. There is no onus on the accused to prove anything.

[8] The standard of proof beyond a reasonable doubt is an exacting one. It is more than probable or likely guilt. Indeed, proof beyond a reasonable doubt falls much closer to absolute certainty than it does to proof on a balance of probabilities. I may find the accused guilty only if I am sure that he committed the offences alleged.

[9] In order to prove the offences, the Crown must prove beyond a reasonable doubt both the actus reus and that the accused had the requisite mens rea.

[10] The actus reus of sexual assault requires proof of three elements: touching, the sexual nature of the contact and the absence of consent. The absence of consent is subjective and determined by reference to the complainant’s state of mind about the sexual touching at the time that it occurred. The only source of direct evidence as to the complainant’s state of mind is her evidence. Sexual assault is a general intent offence. To prove the mens rea, the Crown must prove that the accused intended to touch the complainant when he knew or was reckless or wilfully blind to a lack of consent on her part.

[11] Sexual interference and invitation to sexual touching require the Crown to prove that at the time of the allegations the complainant was under the age of 16. The actus reus for sexual interference is the touching of a person under 16. The actus reus of invitation to sexual touching is the inciting, counseling or inviting a person under 16 to touch another person for a sexual purpose. The mens rea for both offences is the specific intention to touch or invite the touching for a sexual purpose.

[12] Sexual exploitation is an age and relationship offence. It is an offence committed on a “young person”, defined as a person aged 16 or older, but under the age of 18. The accused must be in a position of trust or authority toward the victim or the victim must be in a relationship of dependency. The offence may be committed by the accused touching the young person for a sexual purpose (153(1)(a)) or inviting the young person to touch for a sexual purpose (153(1)(b)).

[13] The question of whether touching is for a sexual purpose can be established by direct evidence, circumstantial evidence or from the nature of the touching. All of the circumstances surrounding the touching may be considered, including the words used by the accused. As the Alberta Court of Appeal held in R. v. Morrissey, 2011 ABCA 150 at para. 21:

Touching is done for a sexual purpose, if it is done for one's sexual gratification or to violate a person's sexual integrity. In determining whether touching takes place in circumstances of a sexual purpose, we are of the view that a trial judge can in assessing the mens rea of the accused, consider whether the sexual context of the touching would be apparent to any reasonable observer. The "sexual purpose" may be proven either by direct evidence, or it may be inferred from circumstantial evidence or from the nature of the touching itself (ie. the only reasonable inference to be drawn from the circumstantial evidence or from the nature of the touching itself is that the accused committed the touching for a sexual purpose).

[14] See also: R. v. Langevin, 2016 ONCA 412 at para. 24; R. v. D.M., 2022 BCCA 120 at para. 34.

[15] The issues in the case are, first, whether the Crown has proven beyond a reasonable doubt that the sexual activity described by the complainant took place and second, whether if they did, she was under the age of 16 at the time. The Crown’s case turns on the credibility and reliability of the complainant’s evidence.

[16] It is important to avoid any assumptions and stereotypes as to how victims of sexual abuse should or do behave: R. v. A.R.J.D., 2018 SCC 6; R. v. A.B.A., 2019 ONCA 124. Credibility findings are not to be made on the basis of my own understanding of “common sense and logic” as this may mask improper reliance on prejudicial generalizations.

[17] Further, it is critical to remember that there is no rule on how or when a person who has been sexually assaulted will complain about what occurred. There are many reasons why complainants often delay reporting - for hours, days, weeks, months or even years. In assessing the credibility of a complaint of sexual assault, therefore, timing of her complaint is simply one circumstance to consider: R. v. D.D., 2000 SCC 43 at para. 65.

[18] It is important to be cautious about reliance on the complainant’s demeanour in the witness stand. Through much of her evidence, the complainant was highly emotional, frequently breaking down in tears. At times, her whole body seemed to shake as she testified. Her demeanour in her police statement revealed similar trembling. She needed many recesses to compose herself so that she could continue to testify. While demeanour evidence may be a factor in assessing the credibility of a witness, care must be placed on the reliance of this evidence: R. v. W.H., 2013 SCC 22 at para. 41; R. v. N.S., 2012 SCC 72 at para. 22. It is important that undue weight not be given to demeanour because of its “fallibility as a predictor of the accuracy of a witness’s testimony”: R. v. Hemsworth, 2016 ONCA 85 at para. 44.

[19] The law recognizes that one of the most effective means of assessing a witness’s credibility is to consider consistency between what the witness said when testifying and what that witness has said on other occasions: R. v. M.G., [1994] O.J. No. 2086 at para. 23; leave to appeal refused, [1994] S.C.C.A. 390. Inconsistencies in a witness’s evidence vary in their nature and importance. Some relate to material issues, others to peripheral issues. Where an inconsistency is about a material event about which an honest witness is unlikely to be mistaken, that inconsistency may be more indicative of a carelessness with the truth.

[20] The accused testified and denied all of the allegations made by the complainant. I remind myself, therefore, of the important principles of R. v. W.D., [1991] 1 S.C.R. 742. First, if I believe the evidence of the accused that none of the sexual activity described by the complainant took place, he must be acquitted. Second, even if I do not believe the accused’s evidence denying all sexual activity with the complainant, if his evidence leaves me with a reasonable doubt, he must be acquitted. Third even if I am not left with a reasonable doubt by the evidence of the accused, he may be convicted only if, based on the evidence that I accept, I am convinced beyond a reasonable doubt of his guilt.

Chronological summary of the important facts

[21] I will briefly summarize the relevant evidence.

[22] The complainant was born in July 2003. The complainant is a triplet, with two sisters. Their parents divorced in about 2014. At the time of the allegations, the complainant’s sisters and father lived in Florida.

[23] K.T. lived in Canada with her mother, her step-father, H.P., and her half sister, A.1, who was born in October 2014. The complainant turned 15 in July 2018. It appears to be agreed that over the period from July to October 2018, the family rented a home in Caledon. After that, in October 2018, they moved to a new home in Brampton.

[24] K.T. described sexual touching that began when they were in the rental home in Caledon. While at one point in her statement she said that the touching began about a year earlier, she later confirmed that she had been 15 and that it had been in the fall of grade 10, which would have been 2018. She thought it had happened a couple of times in the rental home and that she would have been 14 or 15.

[25] Asked what had happened in the rental house, the complainant said in her police statement that she recalled the accused touching her vagina and her breast. She did not recall him making her touch him.

[26] K.T. said that she told her mum about what was happening for the first time when they were in the rental house in the summer and early fall of 2018. At another point, she said that she first told her mother about what the accused was doing a few months before December 2019. K.T. thought her mother had talked to the accused, but said that he did not say anything to her at that point.

[27] In her statement, K.T. described how the sexual assaults unfolded in the new house. She said that the accused came into her bedroom while she was asleep during the night. She said it would be at 12:00 or 1:00 am or sometimes at 3:00 or 4:00 am. He would lift her shirt and touch her breasts. He would touch her vagina with his hands and also kiss it. Sometimes he took her pants off, which she estimated happened about five times. She would say no and he did not stop. This touching was both over and under her clothes. She also testified that the accused made her touch him on his penis, both under and over his clothes. He would take her hand and force it to his penis and put it back when she tried to take it away.

[28] At the beginning, K.T. described the touching as mostly once a week, usually on a weekend. By October or November 2019, she said it was happening more frequently. She described how she would say no to him and that he would tell her to be quiet and that she was going to like it. He mostly said this when she said “no” and tried to fight back. She elaborated that at the beginning, she often tried to fight back but he did not stop and after a while she did not have it in her to fight. When she fought back, she felt that the accused would be angry and do more to her.

[29] K.T. thought that the accused had ejaculated after being in her bedroom. She usually heard him go into the bathroom after being in her room.

[30] K.T. said that she told her friend S.S.1 was what happening. At one point in her statement she said she first told S.S.1 about what was happening a few months after it started. At another point, she said that she told her friend “a long time after it started happening”. Under cross-examination, K.T. said that the first time she told S.S.1 anything was a month or two before going to the police.

[31] In terms of what she disclosed to S.S.1, K.T. testified that she told her that it was getting bad and that she felt she had no way out and did not know what to do. She did not give her friend details as to what the accused was doing other than that he was kissing and touching her in places that he shouldn’t.

[32] K.T testified that around October 2019, when things were getting bad, S.S.1 suggested that she should try to make a video of what the accused was doing to her. K.T. explained that she tried to, but that he would always come in and check her devices and turn them off.

[33] On November 3, 2019, K.T. used a voice memo App on her phone to record what happened in her bedroom. She said the App allowed her to record audio with the phone shut. She concealed the phone in her night table drawer. She made an audio recording of the accused in her bedroom. She provided her recording to the police officer during her interview and played a portion of it. Asked during that interview what the accused had been doing, K.T. said she thought he was kissing her and that he might have been touching her too.

[34] I have listened to this recording both in court and multiple times outside of court. It is difficult to hear, although there are parts of it which, when amplified, were clearly audible. Both the complainant and the accused were asked about this recording as it was played and re-played in court.

[35] The recording was first played during the complainant’s examination in chief. She said that it recorded the accused in her room when he was kissing her in places where he should not have, including her lips and breasts and vagina. She also testified that in the recording, the accused told her he loved her and that at one point, on the recording, she told him to stop because he was touching her breasts under her shirt and was kissing her mouth and breasts.

[36] The complainant was cross-examined about the audio recording. She had testified to having hurt her ankle before making the November 3 recording. It was suggested to her that on the recording, when the accused said, “you ok”, he was referring to her ankle injury and the pain. She disagreed. She also disagreed that the kissing sounds on the recording were the accused kissing her forehead, although she did agree that he kissed her forehead sometimes and that she had told her mum that him doing so made her uncomfortable. She also agreed that the accused saying “I love you”, which can be heard on the recording, was part of his bedtime routine.

[37] The accused was also asked about the audio tape.

[38] In examination in chief, the accused said that about an hour before the recording, K.T.’s ankle had been sore and that he had given her a foot massage and “treatment” for it in the family room. He said that when he went into her room, it was to ask if she was ok, because of the pain she had been in earlier.

[39] The accused testified that the sounds of kissing on the recording were him kissing the complainant twice on her forehead. Under cross-examination, after listening to the recording, the accused agreed that there were five kisses. He agreed that he had said that he loved her, but testified that this was something he always said and that it was routine for him to say this to both K.T. and A.1 when he said good night to them. When it was suggested to him that there was ruffling or moving on the bed recorded, he said that he had left before the full 11 minutes elapsed. He denied that K.T. was moving as he sexually touched her.

[40] H.P. was asked whether he heard the complainant say “stop” on the recording. He said it was not clear and he did not hear it. Asked whether she might have said “stop”, he said that she might have because he kissed her on the forehead. He denied having heard her say “stop” when he was there. He agreed that he had said “you okay baby”, but denied having heard her say “no”. He was consistent that him asking her if she was “okay” was about her ankle injury.

[41] Other than the incident that was recorded, the complainant also described another specific incident in November 2019. The accused came to her room wearing his underwear and a t-shirt, lay on top of her, kissed her and tried to force her to have sex. She said no and told him to stop. He came off her but then kissed her, touched her breast and vagina. Both of them had clothes on during this. He took off her pants and put his finger inside her vagina. She said she kept trying to move his hand away and told him to stop but said that he would not do so until “after he was done”. She said that it hurt.

[42] In December 2019, K.T. said that she told her mother about the sexual touching for the second time. She said that she did not know what else to do and thought that if she told her mother what was happening, and played the recording, her mother would do something. She played the part where the accused was kissing her and they were talking, including where the accused was saying he loved her and where she told him to stop. In very emotional testimony, the complainant explained that she had expected that when she gave her mother proof of what the accused was doing, and could hear him on the recording, her mother would believe her.

[43] K.T. said that her mother told her she was sorry that she had gone through this. She said that her mother got angry at the accused and that she kicked him out of the home for one night. She said that after that, he talked to her and said that he was sorry and that he would stop. She thought, at the time, that he meant he was sorry and that she could trust her mum.

[44] It was suggested to the complainant that while the accused left the home for a few hours, it was because he was upset that she did not want him saying goodnight to her. She disagreed.

[45] The accused said that after the complainant shared the recording with her mother, his wife A.2 had played it for him. He said that this had been five or six days after November 3, and not in December as K.T. had said. The accused said that he was upset and wanted to know what it was for. He said that he had never known that K.T. was uncomfortable with him kissing her or saying goodnight to her. He described what is on the recording as “routine”. He went on to say that K.T. had asked for him to give her first aid for her ankle and that it seemed like something inappropriate was being alleged.

[46] Under cross-examination, H.P. denied that A.2 had confronted him about kissing K.T. in the night. He said that she had just asked what the recording was about and that he had reminded her that it had been she who had asked him to check on K.T. that night. He said that A.2 never asked him about inappropriate touching and that all she asked about was the kissing. His evidence was that he had not been told at that time that K.T had alleged that he had touched her inappropriately. He denied ever having apologized and said that A.2 had told him that because of this, he did not need to say goodnight to K.T. His evidence was that he was upset and so left and went for a drive. He denied that A.2 had kicked him out.

[47] K.T. was asked about a lock that was put on her bedroom. She said that after she disclosed the allegations to her mum for the second time in December 2019, her mum agreed that she would be safer if she had a lock on her door. She said that there were two keys: she had one and her mother kept a spare key in her bedroom. After that, K.T. said that she usually locked her door, though not always, particularly if she was watching TV or on her laptop and fell asleep.

[48] Over the Christmas break of 2019-20, the family went to Florida. The complainant returned towards the second week of January. She was cross-examined abut her decision to return to Canada, when she could have stayed in Florida with her father and sisters. Asked whether she wanted to come back to Canada, she explained that she both did and she didn’t want to. She said that the accused had apologized and she believed the abuse would stop. She also said that her whole life was in Canada, including her school. She agreed with the defence suggestion that she had told her mum that she wanted to come back to Canada.

[49] While the complainant agreed that she could have stayed in Florida, she also said that her mother was telling her that she should come back to Canada and that her life was here. She said her mother made her feel guilty by telling her how strong a mother’s love was. While she agreed that she wanted to come back for her mum, she did not agree that she wanted to come back and live with the accused, although she knew he lived with her mum. She agreed that she had previously testified that neither her mother nor the accused told her she had to come back. She disagreed with the suggestion that she had no issue coming back because the accused had never touched her. She said that after her return the sexual touching started happening again.

[50] K.T. said that the weekend before her police statement, on the Friday night (February 7, 2020), the accused made her touch his penis with her mouth, over his underwear.

[51] K.T. also testified that the last sexual touching had been the night before she gave her police statement (February 10, 2020). She described the accused coming into her room while she was sleeping, taking off her blanket and then touching and kissing her. She also said that he made her put her hand on his penis.

[52] The evidence of S.S.1 and her mother S.S.2 was that S.S.1 and K.T. were friends for a number of years before 2020. In summary, S.S.1 testified that K.T. disclosed to her that she was being sexually abused by the accused and that she had disclosed the allegations to her mother, who had not believed her. S.S.1 told her mother S.S.2. S.S.2 spoke to K.T. about the allegations and then called A.2, K.T.’s mother. A.2 came to her home and, in front of S.S.2, K.T. related to her mother what had happened to her. S.S.2 testified that A.2 did not want to listen and left abruptly with K.T. After that S.S.2 decided that K.T. needed help that she was not getting from her mother and so she decided to go to the police. This evidence is admissible only as part of the narrative that led to the police reports them made on February 11, 2020 and that K.T. made the next day.

[53] It was suggested to the complainant that after she made her police report, she had said that she wanted to go back and to tell them the truth that nothing happened. It was her evidence that this was not true and that it was her mother who wanted her to do this. She denied that she told her mum she had made the allegations to get the accused out of the house. She also denied that she had made a false accusation because she felt the accused treated her mother badly and wanted him out.

[54] The accused denied each and every allegation of sexual touching made against him by the complainant.

[55] During his examination in chief, H.P. was asked why he thought the complainant had falsely made these allegations against him. He testified that on five occasions, he had found drugs hidden in the house and told his wife A.2, who had then approached and disciplined K.T. K.T. got upset and defensive. It was his evidence that K.T.’s mother told her that he had found the drugs and for that reason she falsely accused him.

[56] K.T. was cross-examined about the accused finding drugs and blaming her for them. She agreed that the drugs he had found had been hers. It was her evidence that she was using them because she felt that she had no way out and that she felt at the time that it was her only way to survive, function and manage school, given that her mother didn’t believe her. She said that she admitted to her mother that the drugs had been hers. She agreed that her mother’s punishment, of taking her phone and saying that she could not drive, see her friends or get a job was harsh, but disagreed that she made false allegations because of any of this.

[57] In terms of the complainant’s motive to falsely accuse him, H.P. also suggested that there had been an incident in the car in which K.T. had told her mother that she thought that her father still loved her and could not get over her. H.P. said that he felt insulted by K.T. having said this in front of him. He told A.2 later that he thought that K.T. wanted her mother to get back with her ex-husband. The complainant agreed that she had been upset when her parents split, but testified that she had accepted it and that she did not make the allegations with the hope of getting her parents back together.

Analysis

A. Conclusions regarding the evidence and its legal effect

[58] After considering the evidence as a whole, I am satisfied beyond a reasonable doubt that the complainant is telling the truth about what happened. I accept her version of events as to how and when the sexual activity took place and reject the accused’s denials of sexual activity. Nor does his evidence leave me with a reasonable doubt that what happened was as K.T. described.

[59] I will set out below a summary of my factual and credibility conclusions.

i) The Complainant’s Credibility

[60] Generally, I found that the complainant’s evidence was compelling and reasonable. Her evidence as to how the sexual abuse took place made sense. In reaching my view that the complainant’s evidence was credible and reliable, I note the following:

• I found her evidence to be balanced, measured, even-handed and fair. For instance, when it was suggested to her that she had not liked it when her parents split up, she candidly replied that “like any kid”, she was upset, but then explained that after a while she was fine with it and accepted it. Similarly, she candidly acknowledged that she had hidden drugs because she had not wanted her parents to find them, She also acknowledged that she had been using drugs, that she knew that the accused had found them and that she did not like the harsh restrictions her mother had imposed as punishment. However, she was clear that this was not a reason for her to fabricate her allegations as was suggested to her.
• While there is no one way a complainant is expected to respond to sexual abuse, when K.T. was asked if she had ever considered screaming out for her mother when the accused was in her room, she offered what I found was a reasonable and fair explanation. She said that it had never crossed her mind to scream because she was scared and had now known how to react. I accept this.
• The complainant conceded when there were things that she did not recall. For instance, she conceded under cross-examination that she had told the police that the first time something happened was in grade 10 but testified that she could not recall the first time. Similarly, she conceded that she could not recall if the accused had found her drugs in the washroom just before she went to the police. She agreed she could not recall if he found drugs in the garage, though she admitted that there were drugs there.
• The complainant was extensively cross-examined as to why she came back to Canada after her Christmas 2019 holiday in Florida. The implicit suggestion was that she would never have agreed to come back, or wanted to come back, had the abuse been taking place. In my view, the complainant’s explanation as to what she was thinking and feeling was both understandable and internally consistent. For second time, she had told her mother about the abuse in December, the accused had apologised and said it would not happen again. While she knew she could stay in Florida with her father and sisters, she also felt pulled back to Canada, where she was at school and where her mother, who was pressuring her to come home, lived. I accept her balanced evidence that she felt conflicted about coming back because although she did not want the abuse to continue, her life, school, sister and mother were in Canada and she hoped that the abuse would stop. I found no material inconsistencies in her evidence about this decision;
• Where there were areas of inconsistency in the complainant’s evidence, I found her explanations to be reasonable.
  • For instance, there was some inconsistency about when the sexual abuse started. In her statement (of February 12, 2020) the complainant initially said that the sexual touching “probably started like a year ago”. At a later point, when she was asked what made her think it had started a year before, K.T. said “it’s been happening for a long time…so a year ago”. The officer then asked how many Christmas’s it was over, and K.T. said, “maybe like two” (presumably 2019 and 2018). She then elaborated that it had been happening before they moved into the current home (in about October 2018) and had happened in their rental accommodation (July-October 2018). She was clear that things had been happening in the rental home. Under further questioning, K.T. agreed that she could not recall the first time touching happened but said she was pretty sure it had been in the beginning of grade 10 when she was around 15 (the fall of 2018). The time at which the touching started was also the subject of cross-examination. She agreed that she did not recall the first incident of touching, but also said that she was in grade 10 for sure. In the end, I am satisfied that when it is considered as a whole, there was no material or important inconsistency in the complainant’s evidence relating to the timing of the start of the sexual abuse and that it began in the summer or fall of 2018;
  • The complainant was cross-examined on the fact that in her police statement, she said that during the recording, the accused was kissing her and “maybe” touching her. It was suggested to her that at the time of the statement, she had not been sure. She said that she was sure what was going on at the time. The defence submits that the complainant was not sure about what was happening in the recording when she spoke to police. I found the complainant’s evidence on this point to be compelling. She said that while she had been sure what was happening, she did not recall that situation specifically at the time. It was suggested to her that things had been fresh when she gave the police statement. She responded that the statement had been in February, but the recording had been made on November 3, 2019, so it was less fresh in February. Moreover, as she explained, the entire recording was not played during her police statement. It seems to me reasonable that the complainant did not recall everything that had happened in the recording when she gave her police statement and provided the recording to the police;
  • During cross-examination of the complainant, it was suggested to her that she never told the police that on the day before she gave her statement, the accused had kissed her, and that what she had said was that he had her put her hand on his penis. In response to the suggestion that she had not mentioned the kissing, the complainant testified that she was not in the right state of mind to tell all her details and had not been in a good state of mind. In his submissions, counsel suggested that on this basis, her statement is unreliable. I do not accept this. While the complainant admitted that she did not recall all details, this seems to me to be fair in the circumstances, given that she was 16 and was recounting what had happened over the previous 18 months. Significantly, however, a careful review of the complainant’s police statement reveals that she did, in fact, disclose to police that there had been kissing in that incident the day before.
• Throughout the cross-examination of the complainant, the defence put to her its theories about her having fabricated her allegations and suggestions as to why she had done so. She provided clear, coherent and reasonable responses to each of these allegations. For instance:
  • It was suggested to the complainant that after she gave her police statement, she said that she wanted to go back to the police and tell them the truth, and that nothing had happened. She disagreed and said that her mother wanted her to recant but that she never had wanted to. There is no evidence that she ever had any intention of recanting. To the contrary, as she explained in re-examination, she had conversations with her mother in which she was told that she could go to the police or a lawyer and recant and that they could deal with the abuse allegations as a family, rather than through the criminal trial;
  • The complainant denied ever having said that she gave her statement to police to try to get the accused out of the house. She denied that she felt that the accused used her mother for money. While she testified that her mum’s family didn’t agree with the person she had chosen to marry and felt that the accused used her mother financially, K.T. testified that she did not want to get him out. I accept this;
  • It was suggested to the complainant that the allegations were fabricated by her because she wanted to get her parents back together. Her evidence in response to these suggestions was, in my view, fair and credible. She agreed that she had been upset when her parents had separated, but testified that she had become fine with it. She disagreed that she made these allegations against the accused in the hope of getting her parents back together. She agreed that she had been shocked that her mother had a baby and married so fast, but said that she was glad that her mum was happy. Her evidence made sense;
  • It was suggested to her that she fabricated the allegations because she was angry at the accused because he found drugs in the house and blamed it on her. K.T. agreed that the drugs he found were hers. She explained that her mother had not believed her allegations and that she was in the home with her abuser and that taking drugs had been the only way she was able to manage and function and go to school. She said she had owned up to the drugs being hers to her mother, agreeing that she had hidden them because no kid wants their parents to find out about them. While K.T. agreed that she thought her mother’s punishments were harsh in that she took her phone and didn’t let her drive or get a job or see her friends, she denied that this was the reason she wanted the accused out of the home, clearly saying that she wanted him out because of the abuse. I found her evidence logical and persuasive;
  • The timing of the allegations coming forward strongly suggests that the allegations were not made against the accused in retribution for him having found the drugs. The complainant explained in a compelling way that in early 2020, she was struggling with her mental health and felt betrayed by her mother after having reported to her twice what was happening and playing the recording for her. Despite promises that it would stop and a lock on her door, the sexual abuse continued. She shared what was happening with her friend S.S.1, who passed along information to her mother. When S.S.2 spoke to K.T., she convinced her to have a meeting with her mother. It was as a result of A.2’s reaction that S.S.2 decided to go to the police. In no way does this this chronology appear to me to support a position that K.T. set out to falsely accuse H.P. because he found her drugs.

[61] In summary, I found the complainant’s evidence to be internally consistent and compelling. She provided detailed evidence about certain incidences that she recalled and gave more general evidence about what usually occurred during the sexual abuse. Her credibility was not effectively challenged. I found her evidence credible and reliable.

ii) H.P.’s Credibility

[62] I turn now to H.P.’s evidence. I did not find him to be a credible witness. There are a number of aspects of his evidence that are particularly troubling:

• H.P. seemed to me intent on trying to unfairly to paint K.T. in a bad light. For instance, he testified at length about finding her drugs, recounting in unnecessary detail each of five occasions on which this had happened, even though she had conceded that her drugs had been found by him in the house. The accused went so far as to suggest that what he had found had looked like crack. The allegation that there had been crack was never put to K.T. Her evidence was that the only drug she had was marijuana.
• The accused’s evidence about the significance of the complainant’s use of drugs was also troubling. He said that him finding the drugs and the repercussions of this was her motivation for falsely accusing him. I find this makes no sense as a reason for K.T. to fabricate the allegations:
  • On the one hand, the accused said that the fact K.T. was angry at him for having found the drugs was the reason she had fabricated the allegations. Yet, on his evidence, her mother never punished her for the fact that drugs had been found, creating the impression that the drugs were not a big deal and would never have been a motivation for a false allegation. He testified that all A.2 did was threaten to send K.T. to Florida. His evidence about this seemed to me highly improbable on its own and causes me to have concerns about the reliability of the accused’s evidence. K.T.’s evidence was that she was punished by having her phone taken, and not being able to see her friends or drive or get a job, all things that she agreed were upsetting to her. I found the complainant’s account as to how her mother responded to the drugs having been found to make more sense and to be much more reliable;
  • Moreover, the chronology of events does not support a conclusion that the complainant fabricated her allegations in response to the accused finding drugs. On K.T.’s evidence, her use of marijuana went on for some time. H.P. testified that he had found drugs later in the summer of 2019. He also said that it had gone on for about a year (although this was clearly an exaggeration as his arrest was only 6 months later). K.T. disclosed what was happening to her mother in December 2019. There is no evidence that there was any ongoing concerns about K.T.’s drug use being expressed by A.2 at the point at which she made the allegations. Indeed, S.S.2 specifically denied that she had been asked by A.2 to speak to K.T. about drug use the week before K.T. made her disclosure and said that A.2 had made this request a year earlier. The timing of K.T.’s disclosure does not support the defence theory that she fabricated allegations because her mother was upset about her having drugs and she wanted to get back at the accused for having found her drugs.
• H.P.’s evidence that A.2 never told him that K.T. had alleged inappropriate touching of her by him defies belief. This aspect of his evidence leads me to have significant concern about his credibility:
  • K.T. testified that in December 2019, she told her mother what the accused was doing and played the recording for her. While he disputed the timing, H.P. agreed that A.2 played the recording for him. I find it inconceivable that if she played the recording for him, in which he was in K.T.’s room at night, whispering to her and telling her he loved her, knowing that her daughter alleged that he was sexually abusing her, A.2 would not have also shared with him that her daughter had alleged that he sexually touched her. Yet, he says this never happened. On its own, this aspect of his evidence is incredible;
  • Further, H.P.’s own police statement, upon which he was cross-examined, demonstrates both that he knew the allegations K.T. had made against him and that he had discussed them with A.2. He told Officer Smith that he thought K.T. was a liar and that A.2 did as well. He was clearly trying to bolster the strength of his denials of having done anything improper or sexual with K.T. Yet, the only way he could know this is if he had discussed the allegations against him with A.2 before giving his statement, which I find he must have. I reject counsel’s submission that what H.P. was saying in his statement was that he believed that A.2 would disbelieve K.T.’s allegations, rather than that he knew that she did. It makes far more sense that A.2 told him about the allegations of K.T. when she played the recording for him. His police statement, which he was unable to adequately explain, reveals his evidence that A.2 never confronted him about the sexual touching to be false;
  • Moreover, it would make no sense that A.2 would have agreed that K.T. could have a lock on her door for any reason other than for K.T.’s safety from him, as she explained in her evidence. H.P. knew that the lock was put on her room. He also knew that K.T. had been repeatedly caught hiding drugs. No parent would permit a lock on the door of a child who was hiding drugs unless there was more significant concern for her protection. H.P. knew that the reason for the lock on K.T.’s door was because A.2 was much more worried about K.T.’s safety from him than about anything else, including K.T.’s drugs. He was not forthright about this.

[63] Apart from his evidence relating to the audio-recording, about which I have additional and significant concerns, I found the accused’s evidence to be implausible and fabricated by him. These specific examples lead me to have doubts about the credibility and the reliability of his evidence as a whole and about his denials of having committed the acts alleged.

iii) The audio-recording

[64] The audio-recording made by the complainant on November 3, 2019 is, in my view, objective, compelling and persuasive evidence that wholly supports the complainant’s credibility and reliability and further demonstrates that the accused’s evidence is not believable.

[65] I have listened to the recording multiple times in court and out of court. There is no question that parts of it are difficult to hear.

[66] However, I find that the complainant’s evidence as to what took place is logical and accords with what can be heard on the recording. The accused’s evidence about what he heard in the recording and what was going on in K.T.’s bedroom when it was made was inconsistent, self-serving and, in my view, not credible. In reaching this view I note:

• There is no dispute that this recording captures the accused in the complainant’s room during the night;
• There are sounds of rustling in the initial part of the recording. I cannot say what those were, though the complainant’s evidence that this was the accused touching her makes sense and fits with the rest of the recording;
• At 2:53 of the recording, there is a quick noise that could be the sound of a zipper. The complainant testified that he came to her room in his underwear. The accused denied that this was him unzipping his pants. I cannot conclude that this was him unzipping his pants;
• While it is somewhat difficult to hear, the complainant testified that at 3:08-3:19, she said “stop” while the accused was touching her. I am able to hear her say “stop” softly. The accused testified that he was unable to hear this. He then said that K.T. might have said “stop” because he kissed her on the forehead and that it had nothing to do with anything of a sexual nature. Asked whether she had actually said stop, he said “no”, and then continued that she said that because he kissed her on the forehead twice. Finally, when asked whether she told him to stop he said that he did not hear that. The accused’s evidence was both inconsistent and self-serving. He would not acknowledge hearing the complainant tell him to stop, but seemed to suggest that if it could be heard, it was in relation to two forehead kisses. He then claimed not to hear it. There is no sound of kissing at all in this part of the recording, though what is agreed to be kisses are audible later on. I accept the complainant’s evidence that she said “stop” to try to stop the sexual abuse that was occurring. I reject the accused’s suggestion that she was asking him to stop kissing her on the forehead;
• Immediately after K.T. said stop, the recording captures the accused responding, at 3:10-3:14, “okay”, “okay baby” and “you okay baby?”. She says “no” very softly. His tone is important. He was whispering. He sounds to me like a person communicating in a quiet way so as to not be overheard. His tone suggests that he is speaking in an intimate and sexual way. There is no reference to her ankle or to any injury on her. It was suggested to the accused that at 3:06-3:16, he said “ok baby” and that she then said, “no”. H.P. denied being able to hear her say “no”. Asked if it had happened, he said that he had asked her twice if she was ok from the foot massage he had given her earlier but that he did not hear her say “no”. I cannot accept this evidence. H.P.’s whispering manner of speaking, and the words he chose to use, and not to use, do not convey that he was asking as a concerned father about her ankle. I reject his evidence that he was asking about her ankle because neither the tone nor the words he used support his claim. I conclude that he fabricated his explanation in order to try to explain what appears to be his whispered question to K.T. as he sexually assaulted her;
• After this, H.P. can be heard again whispering to K.T. asking if she is “ok”, to which she responded, “yeah”. At 3:23, the accused can be heard whispering “I love you”, a phrase he repeats immediately after in a whisper and then repeats for a third time at 3:36, after the first kiss. It was his evidence that when he kissed the girls goodnight on the forehead, he would tell them that he loved them. When this part of the recording was played, he heard himself say “I love you” and testified that this was “routine”. I reject the accused’s evidence that his communication on the recording was just part of a usual bedtime ritual with his 16 year old step-daughter. Having listened carefully to his tone and the manner of speaking that was recorded, including the hushed whisper he spoke with, I find it highly improbable that this was just a routine thing he was saying as a concerned and loving parent as he said goodnight. It makes far more sense that he said this to K.T. three times as he sexually assaulted her;
• H.P. testified in chief that in the recording, he can be heard kissing the complainant twice. He said that these were kisses on her forehead. Under initial cross-examination, he confirmed that there were two kisses. When the passages at 3:30-3:41 were played, he agreed that there were two kisses. He then agreed that there were three additional kisses in the periods 4:05-4:08 and 5:10-5:20. He agreed that there had been five kisses in total, not the two he had initially said. The accused’s evidence of two kisses appears to have been intended to minimize his conduct so he could justify them as goodnight kisses. That explanation is far less plausible when it is five kisses spread over almost 2 minutes. I reject his evidence that these were the perfunctory kisses on K.T.’s forehead he claimed. He offered no explanation for why he had kissed her five times, and did not seem to me to dispute that he had. It is inconceivable to me that if he went in to check if she was alright, that he would have told her he loved her three times in the quiet, whispered tone that he did, and then kissed her four more times between 3:38 and 5:17. This is a period over a minute and a half. The complainant’s evidence that he continued to sexually assault is the only logical explanation for what was happening.

[67] Despite the difficulties with its audibility, I am satisfied that the audio recording provides cogent confirmation of what the complainant said happened on November 3, 2019. The accused’s evidence was demonstrably false and contrived and makes no sense. His description of having been a concerned father who was asked by his wife to check on K.T. does not square with the tenor and tone of the words that the audio recording captured in K.T.’s bedroom. I find that the recording reveals that his evidence was false and a poor attempt to explain what was recorded as he sexually assaulted K.T.

Conclusions

[68] For the reasons set out, I am persuaded that K.T. provided a highly credible and accurate account of the sexual abuse she suffered at the hands of the accused.

[69] I have considered the accused’s denials of ever touching K.T. in a sexual manner or having her touch him. For the reasons I have explained, I do not accept his evidence. Nor does it leave me with a reasonable doubt. I have considered each count and set out now my conclusions respecting why the Crown has proven each of the essential elements of the offences beyond a reasonable doubt.

Counts 3 and 4 – Sexual interference and invitation to sexual touching

[70] Counts 3 and 4 relate to activity alleged to have occurred between June 2018 and July 2019, when the complainant turned 16.

[71] I accept her evidence that the sexual touching began when the family was living at the rental home in Caledon, which was between July and September or October 2018. During this period, K.T. was 15 years old. She testified and I accept that during this time, the accused touched her breasts and vagina. The accused did not ask her to touch him while they were at the rental home.

[72] Once they moved to the Brampton house, K.T. described the accused continuing to touch her. She described the accused touching her in many ways including touching her breasts and vagina and kissing her. For the reasons I have already set out, I found her evidence persuasive and compelling. On the basis of it, I have no hesitation in finding beyond a reasonable doubt that he touched her in a sexual manner multiple times in the period before she was 16. I find the accused guilty on count 3, sexual interference.

[73] The complainant’s evidence respecting the invitation to sexual touching offence was also compelling. I accept the truth of what she described. In her statement, she described that when they moved to the new house, the accused would, in addition to touching her, also make her touch him. She said that this was usually on top of his underwear, though sometimes under it. Asked about the frequency of being made to touch the accused, K.T. said that it happened “like almost every time”. She described the accused taking her hand and putting it on his penis. She described removing it and him telling her to do it.

[74] On the basis of the complainant’s evidence, I find that the Crown has proven all of the elements of invitation to sexual touching, count 4, beyond a reasonable doubt. I find H.P. guilty of count 4.

Counts 2 and 5 – Sexual exploitation

[75] The complainant’s evidence was that the sexual abuse continued from the time they moved into the new house in October 2018 until the night before she gave her police statement. She described what happened generally, and also testified about specific instances of sexual abuse including that which occurred on November 3, 2019 in the incident that she recorded, on a later date in November 2019, on February 7, 2020 and on February 10, 2020. For the reasons I have already set out, I accept the complainant’s evidence as to what occurred generally and what occurred on these specific dates. The conduct she described falls squarely under both s. 153(1)(a) and s. 153(1)(b) of the Criminal Code, as charged in counts 2 and 5.

[76] Sexual exploitation requires the Crown to prove that the allegations took place when the complainant was between the ages of 16 and 18 and that the accused was in a position of trust or authority toward her or she was in a relationship of dependency. There can be no issue either as to her age over the relevant period or that as her step-father, living in the home with K.T., H.P. was in a position of trust towards her.

[77] The Crown has proven beyond a reasonable doubt the essential elements of both counts 2 and 5.

Count 1 – Sexual assault

[78] I turn now to the sexual assault count. As I have set out, I find beyond a reasonable doubt that the accused touched the complainant in a sexual manner without her consent. The sexual assaults began in the summer of 2018 and continued until February 2020. This case was never about consent. I understood the defence position to be that if I was satisfied beyond a reasonable doubt that the accused did that which the complainant alleged, there was no issue there had been sexual assaults.

[79] In view of my factual findings, I find the accused guilty of count 1, the sexual assault.

[80] At the sentencing hearing, counsel may make submissions on which, if any counts ought to be conditionally stayed on the basis of the principles in Kienapple.

Woollcombe J.

Released: January 12, 2023