His Majesty the King v. T.A.A., 2023 ONSC 5150

COURT FILE NO.: CR-22-000028-00

DATE: 20230913

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

His MAJESTY THE KING

– and –

T.A.A.

Accused

David Isbester, for the Crown

Ruth Roberts, for the Accused

HEARD: August 11, 12, and 13, September 13, 2023

REASONS FOR JUDGMENT

MUSZYNSKI J.

REASONS FOR JUDGMENT

OVERVIEW

1T.A.A. is accused of having sexual intercourse with his biological daughter, T.A., when she was between the ages of 6 and 12 years old. T.A. reported the allegations shortly after the last incident of alleged abuse. At the time of trial, T.A. was 15 years old.

2Mr. A. is charged with numerous offences related to these allegations, including sexual assault, sexual interference, and incest. There are eight counts on the indictment arising from four separate events:

a. The first time Mr. A. is alleged to have had sexual intercourse with T.A. in the basement bathroom of their family home (Counts 1 and 2);

b. An occasion when Mr. A. is alleged to have had sexual intercourse with T.A. in the upstairs bathroom of their family home (Counts 3 and 4);

c. A second time when Mr. A. is alleged to have had sexual intercourse with T.A. in the basement bathroom of their family home (Counts 5 and 6); and

d. An occasion when Mr. A. touched T.A.’s vagina over her clothing in a bedroom in the family home (Counts 7 and 8).

3During trial, several admissions were made including identity, jurisdiction, and that Mr. A. is the biological father of T.A.

POSITIONS OF THE PARTIES

4The Crown takes the position that the court should accept T.A.’s evidence that she was sexually assaulted by her father on a number of occasions. The Crown submits that T.A. was a compelling witness who gave both credible and reliable evidence. Specifically, T.A. provided specific and unique details about the assaults which enhance her credibility; she was quick to correct the investigating officer during her interview when there was a misunderstanding about details of the assaults; and T.A. readily admitted when she could not recall an event or a particular detail, which enhances her credibility. The Crown takes the position that the evidence of T.A.’s maternal grandmother, L.L., to some extent corroborates the evidence of T.A.

5The defence takes the position that a conviction would be unsafe due to both credibility and reliability issues with T.A.’s testimony. Mr. A. submits that T.A.’s evidence was implausible because Mr. A. lacked opportunity to commit the alleged assaults, T.A. did not report the alleged abuse to any trusted adults, there is no evidence of any injury to T.A. resulting from the alleged abuse, T.A. continued to visit with her father and testified that she enjoyed being with him despite the abuse, and there is a potential motive to fabricate the allegations.

ISSUE

6The sole issue in this case is whether the Crown has proven that Mr. A. is guilty of the sexual offences against T.A. beyond a reasonable doubt.

RELEVANT LEGAL PRINCIPLES

Essential elements of the offences

7Due to T.A.’s age at the time of the alleged offences, to find Mr. A. guilty of sexual assault (Counts 1, 4, 5, and 7 on the indictment) the Crown must prove:

a. That Mr. A. intentionally applied force to T.A.; and

b. That the force that Mr. A. intentionally applied to T.A. took place in circumstances of a sexual nature.

8Given the admission that T.A. is the biological daughter of Mr. A., to find Mr. A. guilty of incest (Counts 2, 3, and 6 on the indictment) the Crown must prove that sexual intercourse occurred.

9To find Mr. A. guilty of sexual interference (Count 8 on the indictment) the Crown must prove each of the essential elements of the offence charged beyond a reasonable doubt:

a. That Mr. A. intentionally touched T.A.; and

b. The touching was for a sexual purpose.

Presumption of innocence / decision not to testify

10Mr. A. is presumed innocent until the Crown has discharged its burden to prove his guilt beyond a reasonable doubt. A reasonable doubt is “a doubt based on reason and common sense which must be logically based upon the evidence or lack of evidence”: R. v. Lifchus, 1997 CanLII 319 (SCC), [1997] 3 S.C.R. 320, at para. 30.

11At the conclusion of the trial, if I am left with any reasonable doubt on any of the essential elements of the charges of sexual assault, incest, or sexual interference, I must acquit Mr. A. of that charge.

12As is his right, Mr. A. elected not to testify at the trial. As the burden of proof is on the Crown, this decision does not prejudice Mr. A., who has no burden to prove anything: R. v. Prokofiew, 2012 SCC 49, [2012] 2 S.C.R. 639, at para. 9.

Credibility / reliability

13Trials involving allegations of a sexual nature typically involve an assessment of credibility of witnesses. In R. v. G.(M.) (1994), 1994 CanLII 8733 (ON CA), 93 C.C.C. (3d) 347 (Ont. C.A.), at p. 354, the Court of Appeal for Ontario confirmed that:

Probably the most valuable means of assessing the credibility of a crucial witness is to examine the consistency between what the witness said in the witness-box and what the witness has said on other occasions, whether on oath or not. Inconsistencies on minor matters or matters of detail are normal and are to be expected. They do not generally affect the credibility of the witness. This is particularly true in cases of young persons. But where the inconsistency involves a material matter about which an honest witness is unlikely to be mistaken, the inconsistency can demonstrate a carelessness with the truth.

Myths and stereotypes

14In the not-too-distant past, myths and stereotypes about how sexual assault victims should behave, react, or disclose an assault played a role in how our criminal justice system adjudicated these cases. With legislative reform and guidance from courts across the country, it is now well accepted that there is “no inviolable rule on how people who are the victims of trauma like a sexual assault will behave”: R. v. D.D., 2000 SCC 43, [2000] 2 S.C.R. 275, at para. 65.

Demeanour

15Trial courts must approach the issue of demeanour with caution. The Court of Appeal has emphasized that while a trial judge is entitled to consider the demeanour of a witness, it should not be the “exclusive determinant of his or her credibility or of the reliability of his or her evidence”: R. v. Hemsworth, 2016 ONCA 85, 334 C.C.C. (3d) 534, at para. 45.

Motive to fabricate

16There is a subtle suggestion that T.A.’s credibility should be questioned as she had a motive to fabricate the allegations against her father because of a recent argument. Motive to fabricate is a complicated area. Its intricacies are “not easily digestible”: R. v. John, 2017 ONCA 622, 350 C.C.C. (3d) 397, at para. 97.

17It is important to note that Mr. A. has no obligation to prove anything in this trial. He is not obliged to provide an explanation as to why T.A. made the allegations.

EVIDENCE AT TRIAL

A busy household, 2014-2020

18At the time of the alleged assaults, T.A. lived in a single-family bungalow in a town north of Belleville with her family. For the most part, when T.A. was between the ages of 6-12 years old, she lived at the home with her mother, C.W., Mr. A., and four of her siblings. There was a period of approximately one year in which Mr. A. moved out of the house due to a marital separation. During that time, Mr. A. rented a bachelor apartment close to the house. At any given time, in addition to the family unit, other individuals would stay in the home. C.W. testified that her brother and other friends would stay with them frequently if they needed a place to crash. There would also be foster children living with the family, either through a formal Children's Aid Society (“CAS”) placement or informally.

19There were three bedrooms on the main floor of the home and two bedrooms in the basement. Besides Mr. A. and C.W., who always maintained the same bedroom in the basement, everyone else changed rooms with great frequency. Around the time that T.A. reported the allegations, she shared a basement room with her younger sister. There was one bathroom on the main floor and one bathroom in the basement. The family home was described as being “chaotic” but not necessarily in a negative way. It was busy.

20C.W. testified at trial. She describes having several different jobs over the years which took her out of the home. On top of that, C.W. would occasionally go out with friends without the children. C.W. testified that, for a period of 3-4 months, Mr. A. worked out of town from Monday to Friday and was home for weekends. After that job ended, Mr. A. worked various jobs closer to home.

21C.W. and T.A. both testified that C.W. was the disciplinarian in the household, and described Mr. A. as being an uninvolved parent. When he was not working or hanging out with his friends, Mr. A. would go to his “shack” in the backyard or work on cars in the garage. C.W.’s eldest three children are not biologically related to Mr. A. C.W. testified that there was tension in the house between Mr. A. and the older children. They did not get along.

22T.A. recalled the period when her mother and Mr. A. separated. T.A. remembers visiting her father, but only sleeping over at his apartment once. She testified that she was happy when Mr. A. moved back into the home and that she generally had a good relationship with her father.

T.A.’s allegations

23T.A. provided a statement to police on December 12, 2020, shortly after she first reported the allegations of abuse. On consent, the video statement was played in court, adopted by T.A., and entered into evidence pursuant to s. 715.1 of the Criminal Code, R.S.C. 1985, c. C-46.

24T.A. testified that, while she cannot recall exactly, she believes that her father started touching her sexually when she was around the age of six. At first, he would touch her vagina over her clothing. She was unable to provide specific details of the earliest incidents.

25T.A. recalls the first time that Mr. A. had sexual intercourse with her. She testified that her father called her into the basement bathroom. He told her to put on a long skirt. Both T.A. and C.W. testified that a friend of C.W. had given T.A. several long skirts. After T.A. got into the bathroom, he locked the door. She recalls that Mr. A. was wearing jeans and work boots. He pulled down his pants but kept his boots on. He put on a condom. T.A. was sitting on a plastic, yellow school chair when Mr. A. started touching her vagina with his hands. He then picked her up and put her onto the counter where she was sitting almost in the sink and put his penis into her vagina. She does not know whether her father ejaculated on that occasion but does recall seeing ejaculate in a condom at least once following sexual intercourse with her father. After the intercourse, Mr. A. told her to go and have a shower. He talked about giving her money and told her not to tell anyone about what had happened. T.A. had difficulty estimating the duration of the incident but, when pressed, testified that it lasted approximately 20 minutes.

26T.A. testified about another distinct memory of sexual intercourse with her father. T.A. testified that, at some point between Christmas 2019 and her report to the police, she had been sleeping on the couch in the main floor living room with her younger sister, when her father called her into the upstairs bathroom. He started talking to her about her grandfather, who had recently died. He then locked the door, walked over to the toilet area and put on a condom, put her onto the counter, and had sexual intercourse with her. T.A. recalls that she was wearing tights at the time and no underwear, as she was going to bed. She recalls one leg was completely out of her tights, and one leg remained in the tights, which were hanging around her ankle. She recalls Mr. A. was wearing jeans, that he pulled down around his ankles, when the assault was taking place. The assault ended when her younger sister and brother started arguing in the living room and called out for Mr. A. T.A. testified that Mr. A. took off the condom and flushed it down the toilet. With some difficulty, T.A. estimated that this incident lasted less than 30 minutes.

27T.A. reported another distinct incident of sexual intercourse, which also took place in the downstairs bathroom. By this time, the bathroom door lock had broken. Both T.A. and C.W. testified that the door lock was not functioning for a period of time because their dogs had caused damage to the door. Photos of the damaged bathroom door were entered into evidence. After calling T.A. into the basement bathroom, Mr. A. sat down on the floor and leaned his back up against the door to the hallway so no one would come inside. T.A. testified that she was facing away and squatting over Mr. A. when they had sexual intercourse. On that occasion, Mr. A. did not use a condom. T.A. does not recall how that incident came to an end.

28T.A. also testified that, shortly before she reported the allegations, she and Mr. A. were in either her bedroom or her parents’ bedroom – which were both located in the basement at that time – when Mr. A. picked her up and threw her onto the bed. He touched her vagina over her clothing until he was interrupted. There was no sexual intercourse on this occasion.

29T.A. testified that she saw her father’s penis during the assaults. She understood the difference between a hard and soft penis and testified that it was always hard except on one occasion.

30In total, T.A. testified that her father had sexual intercourse with her approximately 7-8 times. The sexual touching, over the clothes, went on for a few years. In her video statement, T.A. reported initially that the abuse happened “every day” but then corrected herself and said that it happened “every week or two”.

Disclosure of allegations

31T.A. testified that she had not disclosed the abuse to anyone before December 2020. She started dating someone that she trusted and finally confessed she had been raped by her father. T.A. testified that her boyfriend got incredibly upset and told her that if she did not come forward and report the abuse, then he would do so. Before going to police, T.A. talked to a close friend about the abuse and, eventually, she told her mother. At this time, T.A. wanted the abuse to stop. She wanted her mom to find out. When she finally disclosed the abuse, she was relieved that she would not have to deal with it anymore but scared about what was going to happen next.

32During cross-examination, T.A. confirmed that she had seen a counsellor at some point prior to coming forward about the abuse. However, T.A. testified that she did not trust the counsellor and did not feel like she could open up to them. Similarly, T.A. confirmed that CAS had some prior involvement with her family and that she believes that she had been interviewed by a social worker. She did not disclose the abuse to the CAS workers during those interviews

Lack of injury

33T.A. was questioned about whether she sustained any injuries as a result of the abuse. She testified that the intercourse hurt, but that she did not bleed or sustain any injuries. C.W. testified that T.A. did not report any injury that was suggestive of sexual abuse over the years.

Payment of money

34T.A. testified that her father would offer her money to keep quiet about the abuse, giving her $10, $20, or $50. He told her that, if anyone asked, she should say that she got the money for cleaning. T.A. agreed that Mr. A. gave money to other kids in the house as well. C.W. testified that she observed Mr. A. give money to all the children, but more often to T.A. C.W testified that T.A. could be trusted with money more than the other children, which could be the reason why she was given money more frequently.

Availability of condoms

35C.W. and T.A. testified that some of the older children in the home were sexually active, so C.W. made sure there were condoms around the home and available. The children would play with the condoms by blowing them up like balloons.

Argument between T.A. and her parents

36T.A. did not specifically recall getting into an argument with her parents shortly before disclosing the abuse but agreed that it was possible. She could not recall if she was grounded but agreed that her parents, usually her mother, grounded her with some regularity for making bad decisions.

37C.W. testified that a few weeks, or even a month, prior to the allegations being disclosed, T.A. was grounded for going out without permission, bringing home a vape, and wearing inappropriate clothing.

L.L.’s testimony

38L.L. is T.A.’s maternal grandmother. On December 15, 2020, L.L. received a call from C.W. revealing that T.A. had come forward with allegations that she had been sexually assaulted by her father. The same day, L.L. went to the police and gave a statement about something she had observed.

39Although she could not be sure of the date, at some point in the summer of 2020 or 2019, L.L. went over to visit C.W. and her family at their home. She walked in the front door of the home without knocking, as was her habit when visiting. Not noticing anyone, she called about and asked if anyone was home a few times. When she was about to leave, L.L. observed Mr. A. walk into the living room from the main floor bedroom hallway. A few minutes later, L.L. observed T.A. walking out of the same hallway. It appeared that T.A. was in distress as she was crying. L.L. asked what was wrong. T.A. did not answer. Instead, Mr. A said, “sometimes you have to have secrets” to T.A., following which T.A. asked her father if she could go to a friend’s house, and he said yes.

40L.L. testified that she followed T.A. out of the house and asked again if everything was alright. T.A. replied that everything was fine.

41L.L. did not mention this conversation to C.W. or anyone else until T.A. made the allegations against Mr. A.

Video surveillance

42T.A.’s older siblings were routinely getting into trouble at home. As a result, C.W. and Mr. A. installed surveillance cameras on the main floor to try and prevent theft and keep watch.

43After T.A. reported the abuse, police reviewed the available surveillance videos to see whether the most recent allegation of assault could be corroborated by capturing footage of T.A. and Mr. A. going into or exiting a room together.

44An agreed statement of facts was entered into evidence at trial that confirms that the available surveillance videos for the dates of December 5-7, 2020, were reviewed and did not reveal T.A. and Mr. A. entering or exiting a room together.

T.A.’s demeanour

45T.A. was 12 years old when she gave her video statement. During the interview with police, she was wearing a face mask. While T.A. was responsive to the officer’s questions, she obviously struggled and paused for long times when the subject matter became highly personal.

46T.A. was 15 years old at the time of trial. Much like the police interview, there were long pauses in T.A.’s testimony before she responded to questions that were highly personal. Unlike her police interview, T.A. was visibly distressed throughout her testimony, crying through the more difficult questions. Several breaks were required to allow T.A. an opportunity to compose herself.

ANALYSIS

47T.A.’s homelife was busy. It was chaotic. In addition to the five children that lived in the home, there were several foster children or neighbourhood kids that would be staying in the home at any one time. There were also adult visitors staying at the home frequently. The home was not large. The two bathrooms had to be shared and, often, children had to share bedrooms. The defence submits that it would be implausible for the abuse alleged to have taken place given the lack of privacy and the number of people around. I reject this submission. While this was a busy home, the testimony of L.L. is that she once walked into the house unplanned to find Mr. A. and T.A. alone. Further, T.A. testified that all incidents of abuse took place behind closed doors – often in the bathroom, behind the only doors that locked.

48Between 2014 and 2020, Mr. A. worked away from home during the week for a period of 3-4 months. At some point, when C.W. and Mr. A. separated, Mr. A. moved out of the house for about a year and lived elsewhere. The defence tried to minimize the amount of time Mr. A. was around the home with access to T.A., but this was rejected by both C.W. and T.A. While Mr. A. was not an active parent, he was living at the home and present on a daily basis most of the time between 2014 and 2020.

49I find that Mr. A. did have the opportunity to commit the assaults on T.A. as alleged.

50The defence points to alleged inconsistencies between the evidence of C.W. and T.A. as to how frequently T.A. visited her father’s apartment when there was a marital separation. T.A. recalled going to visit her father on weekends but was quite confident that she had only slept over on one occasion. C.W. testified that the children would go to the apartment on alternate weekends after she told Mr. A. he needed to step up and have the children more often. C.W. did not specify whether the children were sleeping over. I am not confident that C.W.’s evidence is inconsistent with T.A.’s evidence. Regardless, this is a peripheral issue that does not impact my assessment of T.A.’s credibility.

51The defence submits that T.A.’s evidence lacks credibility because she had opportunities to confide in her counsellor, a CAS worker, or other trusted adults about the abuse, but did not do so. I reject this submission. Firstly, T.A.’s evidence is that she did not trust her counsellor and there is no evidence that she had established a relationship with any CAS worker. Perhaps more importantly however, it has been well established in our caselaw that victims of trauma, including sexual violence, do not all respond in the same way. Delayed reporting alone should not detract from a complainant’s credibility. T.A.’s evidence is that she disclosed the assaults to her boyfriend as she finally felt like she had found someone that she could trust. I accept T.A.’s evidence and her delayed reporting does not negatively impact my assessment of her credibility.

52There is no evidence of injury to corroborate the assaults taking place. T.A. did not complain to her mother of pain. There was no bleeding. This sort of corroborating evidence is not required to sustain a conviction and does not, in my view, diminish T.A.’s credibility: Criminal Code, s. 274.

53T.A. testified that she and her father got along “fine”. She recalled him leaving the house for a period when her parents separated and testified that she was happy when he returned home. While the defence suggests that this evidence should undermine T.A.’s credibility, I find the opposite. T.A. struggled on the witness stand. It appeared that it was not easy for her to admit that she cared for her father and was happy to have him back at home. There is no right way for a victim of sexual assault to behave. This is particularly the case when the abuse is perpetrated by a family member. There are bound to be conflicting feelings. T.A.’s evidence about her relationship with her father, which she testified was generally positive, in my view bolsters her credibility.

54There is evidence that T.A. got into an argument with her parents a few weeks before she made the subject allegations. There was a suggestion that T.A. may have had a motive to fabricate the allegations against her father to get back at him for grounding her – or, perhaps, to impress her older siblings, who did not get along with Mr. A. T.A. testified that she did not specifically recall this one big fight with her parents but testified that they did argue frequently, and she often got in trouble or grounded. T.A. did not try to diminish the fact that she would butt heads with her parents or that she would be punished from time to time. T.A.’s fight with her parents a few weeks prior to the allegations coming to light does not impact my assessment of the credibility of her testimony.

55The Crown submits that I may consider T.A.’s demeanour when testifying to assess her credibility and that her distress, tears, and hesitation should be viewed as genuine. Most certainly I observed T.A. to be in distress while testifying. She had a particularly hard time talking about the most intimate details of the assaults. However, I am hesitant to consider T.A.’s demeanour to either bolster or diminish her credibility in any significant way.

56T.A. had challenges testifying about dates and time. When pressed by defence counsel, she estimated that one of the incidents of sexual intercourse lasted about 20 minutes while another lasted less than 30 minutes. The defence submits that it is implausible that an assault of this nature would last that long. T.A. very reluctantly offered estimates of time. Her testimony may not have been entirely reliable as to the duration of the assaults. Similarly, T.A. did not have a good sense of how many times the assaults took place. She could not recall whether the most recent assault took place in her bedroom or her parents’ bedroom. She could not situate the assaults in specific years or seasons. To the extent that T.A.’s memory is unreliable, I find it is on peripheral details. I am not troubled by T.A.’s inability to date and timestamp each assault. This is not unexpected or uncommon when abuse has been ongoing for years.

57I accept the submission of the Crown that T.A.’s corrections to the investigating officer about how the assaults took place bolster her credibility. For instance, T.A. corrected the officer’s misunderstanding on two occasions about how her body was positioned during the assaults.

58Further, I find that the precise and unique details in T.A.’s recounting of the abuse enhance her credibility. For instance, she recalled the yellow, plastic school chair in the downstairs bathroom, her father wearing work boots and jeans the first time that he had sexual intercourse with her, wearing leggings that remained only on one leg during one of the incidents of sexual intercourse, and being made to wear a long skirt.

59T.A.’s testimony was consistent with the testimony of C.W. with respect to the locks on the bathroom doors, T.A. being gifted a long skirt by a friend of C.W., and T.A. receiving more money from Mr. A. than the other children.

60There was no video footage from the security cameras on the main floor that showed Mr. A. and T.A. entering or exiting a room together between December 5-7, 2020. This evidence is not helpful whatsoever. T.A. was unclear about when exactly the last assault took place, but estimated it was within the week prior to going to police. She alleged that Mr. A. touched her sexually either in her bedroom or her parent’s room – both of which were in the basement at the time.

61I accept L.L.’s testimony that she observed Mr. A. and T.A. coming from the bedroom hallway around the same time, that she observed T.A. in distress, and heard Mr. A. tell T.A. that “sometimes you have to have secrets”. While she did not say anything to C.W. or raise any alarms at the time, the same day that L.L. heard about T.A.’s allegations, she remembered the incident and reported it to the police. We do not know what “secrets” Mr. A. was referring to, but L.L.’s observation is consistent with T.A.’s evidence that her father told her not to tell anyone about the abuse.

62For all of the above reasons, I accept and find credible and reliable the evidence of T.A. that her father sexually assaulted her in the manner she described. I find that Mr. A. had sexual intercourse with T.A. both with and without a condom in the upstairs and downstairs bathrooms. I find that Mr. A touched T.A.’s vagina over her clothing.

63Accordingly, I find Mr. A. guilty of Counts 1-8 on the indictment.

Muszynski J.