COURT FILE NO.: CR-21-30000216 DATE: 2023-10-04
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: HIS MAJESTY THE KING – and – D. F.
Counsel: Jonathan Smith, for the Crown Richard Litkowski, Amicus D. F., on his own behalf
HEARD: July 29, 2023
RESTRICTION ON PUBLICATION: Subject to any further Order by a Court of competent jurisdiction, an Order has been made in this proceeding directing that the identity of the complainant and any information that could disclose such identity shall not be published in any document or broadcast in any way pursuant to s. 486.4(1) of the Criminal Code of Canada. This ban does not apply to publication of these reasons in law reports nor to a discussion of the underlying legal principles in other publications.
RULING ON FACTUAL ISSUES FOR SENTENCING
R.F. GOLDSTEIN J.
INTRODUCTION
[1] D. F. was indicted on two counts of sexual assault, one count of sexual interference, and one count of invitation to sexual touching. One count of sexual assault related to the complainant L.H. The other three counts related to the complainant E.Q. On September 22, 2022, the jury delivered its verdict. The jury acquitted Mr. F. on the sexual assault count in relation to L.H. The jury convicted Mr. F. on the three other counts related to E.Q.
[2] Mr. F. now comes before the court for sentencing. Before sentencing can take place, however, I must make factual findings. The indictment alleged assaults on E.Q. between October 1, 2002, and June 1, 2007. E.Q. described several different assaults of varying nature, duration, and location. The jury obviously accepted at least some of E.Q.’s evidence, and possibly all of it. Individual members of the jury were told, in the usual fashion, that they need not agree on the path to conviction or acquittal, so long as they were unanimous in the result. Thus, individual jurors may have accepted some or all of E.Q.’s evidence. Accepting E.Q.’s evidence regarding even one of the assaults over the almost five-year period covered by the indictment would have been enough to convict Mr. F. of sexual assault and sexual interference.
[3] My role as sentencing judge is different from the jury’s role. My duty is to determine the facts necessary for sentencing. I must apply two principles: first, I am bound by the express and implied factual implications of the jury’s verdict and must not accept any fact inconsistent with the jury’s verdict. Second, where the factual implications of the jury’s verdict are ambiguous, then I must make my own determination. I may make any factual findings that are necessary as disclosed by the evidence at trial: R. v. Ferguson, [2008] 1 S.C.R. 96, 2008 SCC 6 at paras. 16-18.
[4] As always, aggravating factors must be proven beyond a reasonable doubt; other factors must be proven on a balance of probabilities: R. v. Ferguson, at para. 18.
[5] I agree with my colleague Allen J.’s distillation of the principles a sentencing judge may apply when considering factual findings in R. v. J.P., 2019 ONSC 6298 at para. 10:
(a) The sentencing judge must not attempt to reconstruct the jury’s logical reasoning which recognizes that jurors arrive at a unanimous verdict for different reasons and on different theories of the case.
(b) It is speculative and artificial to attribute a single set of factual findings to the jury unless it is clear that the jury must have unanimously have found those facts.
(c) Where any ambiguity on this exists the trial judge should consider the evidence and arrive at his or her own findings of fact consistent with the evidence and the jury’s findings.
(d) The jury must be given the benefit of the doubt regarding the basis on which an accused was convicted by the jury.
(e) For the purpose of sentencing, in cases involving significant credibility and reliability issues, it is open to the sentencing judge to find the minimum consistent facts consistent with the jury verdict.
(f) The offender is not entitled to the most lenient interpretation of the jury’s verdict.
[6] The real gravamen of the sentencing is the seriousness of the sexual misconduct. Obviously all sexual misconduct involving children is serious: R. v. Friesen, 2020 SCC 9, [2020] 1 S.C.R. 424. I must determine the degree of seriousness. The more serious the conduct, the more aggravating. I am aware that when sentencing offenders for sexual offences against children, I must not assume that seemingly less serious conduct results in less harm.
Summary Of Factual Findings
[7] I make the following factual findings:
First, I find that there was no sexual activity in the main room of the F. apartment and that the hockey uniform incident did not include sexual touching or sexual activity;
Second, all the sexual touching took place in the bedroom. The implication of the jury’s verdict is that Mr. F. must have engaged in grooming E.Q. The sexual activity started with petting of the vaginal area. It moved on to E.Q. touching his penis at least once, and Mr. F. digitally penetrating E.Q.’s vagina. I also find that there was cunnilingus and fellatio. For reasons I will explain I do not find that Mr. F. tried to penetrate E.Q.’s vagina with his penis.
Third, I find that there was no sexual activity during car trips to Girl Guides;
Fourth, I find that there was no sexual activity during the car trips to Trenton to see Mr. F.’s children;
Fifth, I find that there was no sexual activity in the stairwell at 30 Carabob Court; and,
Sixth, I find that there was no sexual activity at the Royal Canadian Legion.
Relevant Testimony
[8] I summarized EQ’s testimony to the jury. I excerpt the salient parts from my jury instructions:
Growing up, E.Q. lived in an apartment at 20 Carabob Court in Scarborough. She lived there from about 1996 to 2014. Her grandmother lived in a nearby building at 30 Carabob Court. She often visited her grandmother.
E.Q. testified that Mr. F. and her aunt Denise became engaged around Christmas of 2002 when she was 6 years old. After they became engaged they were living at 30 Carabob Court, the same building as her grandmother. Mr. F. was very friendly and tried to be the favourite uncle. He would always say that others could go out and he could watch her.
E.Q. testified that she had two babysitters while her mother worked, Estelle and later Paula. She testified as well that Mr. F. would come to her grandmother’s place and take her to his apartment to play games.
E.Q. testified that the assaults started when she was in grade 2, in 2002 and continued until she was in grade 4 in 2006. The first incident that E.Q. remembered with Mr. F. was that the day before he married her aunt he put her on his shoulder and was touching her over her clothing. She testified that he started to groom her and touch her over and under her clothing in the vaginal area. She does not remember where it first happened but the majority of times it happened at his apartment.
E.Q. testified that the sexual touching started with patting her vaginal area. Later he would finger her and give her oral sex. She could not remember whether the penetration with his fingers happened before or after Mr. F. and her aunt Denise were married. She would wear a skort, a type of shorts with a skirt. He would pull it down. After the marriage E.Q. continued to go to Mr. F.’s apartment, although the amount of time she spent with him decreased. In the living room they would watch pornography together on a computer. Nobody else would be home. She was in grade 2 or grade 3 at the time. He would touch her while she sat on his lap. This touching was under the clothing and there was no penetration. While they were in the car or the Royal Canadian Legion Mr. F. touched her clothing over her vaginal area.
At some point Mr. F. tried to penetrate her with his penis. He was unable to do so. E.Q. testified that it was painful. It happened more than once.
E.Q. testified that sometimes her aunt Denise or her mother would be in the apartment and Mr. F. would ask if she could come up to his apartment as well. Sometimes when her aunt Denise would be in the apartment. He would bring her into the bedroom. He would say to her that they should go make a fort with chairs and clothing or organize stuff in the closet.
E.Q. testified that there was no lock on the bedroom door. There was, however, a chain on the door to the apartment so it would stop anyone coming in. The chain could not be removed from outside the apartment. E.Q. testified that when she and Mr. F. were alone in the apartment he would put the chain on. One time Denise F. tried to get in while the chain was on the door. Mr. F. hurriedly fixed himself and then went to the door to let her in, making excuses about putting the chain on as a matter of habit. In cross-examination, E.Q. stated that the chain was one factor that made her feel trapped. She remembered the chain partly because it made her feel fearful. She associated the memory of the sexual assault with the chain. The apartment always had the chain from the time of her earliest to her latest memory of Mr. F.’s apartment. She further stated in cross-examination that she was as certain about the chain as she was about being sexually assaulted.
Although the majority of the touching was in Mr. F.’s apartment, E.Q. testified that sometimes he would touch her in other places. He touched her in the stairwell of 30 Carabob. He would say that he had to go to his car and she would go with him. He touched her under her clothing with his fingers. She did not touch him in the stairwell. He also would touch her when they visited his children in Trenton, or when he was driving her to and from Girl Guides. She was in Girl Guides from grade 3 to grade 5 and then Pathfinders in Grades 6 and 7. She would sit in the back seat of his car in the middle or passenger seat. He would reach around with his right hand to touch her. In cross-examination E.Q. testified the assaults did happen while she was in Brownies. She could not recall where Brownies was at first but then recalled that it was a 30 minute walk to a school in the Huntingwood area and her mother would walk her. Her babysitter Estelle had a daughter in Brownies.
E.Q. testified that once or twice Mr. F. also touched her while they visited the Royal Canadian Legion. She testified that when she went to the bathroom he would ask her to go to his side and quickly pat her over her clothing. In cross-examination, she agreed that she did not mention the incidents at the Legion when she gave her police statement; she did not recall it until the preliminary inquiry in March, 2021. She also agreed that her mother and her aunt Denise were at the Legion on that occasion. She said that it occurred on Canada Day.
E.Q. testified that there was an occasion where Mr. F. dressed her in his hockey equipment and touched her. That happened in the bedroom of his apartment. In cross-examination, she agreed that she did not tell the police about this incident. She only recalled it at the preliminary inquiry as well. She disagreed with the suggestion that her memory has become worse over time. She belives her memory has improved over time. She agreed that she has had issues with bullying, and issues with her parents. She has had a therapist but the only thing that has helped over time has been going to the police.
E.Q. testified that the sexual activity happened on a weekly basis, on Wednesdays, Fridays, and the weekends. The sexual activity began in 2003 when she was in Grade 2, and ended in 2006 when she was in Grade 4. Mr. F. and her aunt Denise moved to Kingston in 2006, and later to Nova Scotia. Mr. F. and Denise moved back to Toronto in 2010. In April 2014 E.Q. and her mother Joanne moved in temporarily with Mr. F. and Denise. E.Q. stayed for about 1 ½ years and moved out. Her aunt Denise helped her get a job at a daycare.
[9] I also summarized the cross-examination of E.Q. for the jury. Again, I reproduce the salient points:
In cross-examination, E.Q. testified that she would talk to her mother about problems in her life but that her mother would brush it off and say that she over-reacted. During that time she was bullied in school. Her mother was unable to protect her from her father. She knew it was wrong for an adult to touch a child. She knew she should speak to an adult about being touched inappropriately but she did not know what to do. From 2007 to 2017 her mother had asked her if D. had ever touched her inappropriately. She always consistently said he did not. In 2017 she did tell her mother.
E.Q. agreed with the suggestion that she was at least partly concerned that disclosing the assaults would destroy the marriage between her aunt Denise and Mr. F.
E.Q. agreed in cross-examination that from 2003 to 2006 on most days she had dinner with her family. Sometimes that would include D. and Denise F. Sometimes they would be at her grandmothers until midnight. She saw her grandmother every day at that point. Her grandmother lived one floor away from D. and Denise F. at 30 Carabob.
From age 7 or 8 to age 12 E.Q. had a babysitter, Paula, who also lived at 30 Carabob. Her mom would drop her off at Paula’s in the morning and pick her up every day except Wednesdays. On Wednesdays, Mr. F. would pick her up from Paula’s. She and Mr. F. would be alone in the apartment on Wednesdays. She would sometimes be alone with him on a Friday as well. She specifically recalled that he would pick her up at daycare on Wednesdays and then drive her to Girl Guides.
In cross-examination, E.Q. also testified that there were times when Mr. F. assaulted her at his apartment when her mother and Denise F. were present. She would be in the bedroom with him, and her mother and aunt would be watching television in the living room. Once her mother walked in but she was not exposed and her mother brought her out into the living room. She also testified that when the stairwell incidents occurred her mother and aunt were in the apartment.
In cross-examination E.Q. stated, again, that the assaults began in 2002 and ended in 2006. She recalled that at the preliminary inquiry she stated that the assaults ended in 2007 but agreed in this trial that date was wrong. She remembered that in 2005 Mr. F. moved to Kingston. She believes that one reason he moved to Kingston was that her aunt Rosemary had a talk with D. and Denise. There was a phone call from Rosemary to her mother while her father was visiting. She could not recall if Mr. F. had already moved to Kingston or not.
Later in her cross-examination E.Q. agreed that she was in Brownies from age 7 or 8 and Girl Guides from age 9 to 12. She agreed that she only entered Girl Guides past the age of 9 making it impossible for Mr. F. to assault her on Wednesdays before the age of 9. She stated that the assaults happened when she was 9 or 10.
In cross-examination, E.Q. further testified that her mother could not pick her up from her babysitter Paula’s apartment because she was working. Mr. F. would pick her up and drive her to Girl Guides on Wednesdays. Between picking her up from Paula’s and driving her to Girl Guides he would assault her. He would have picked her up at around 5 pm. When E.Q. was in grade 4 or grade 5 her mother changed jobs and could not be home until 5:45 and 6 pm. She agreed that her mother had a period of unemployment when she was in grade 4. She also agreed that when she was in grade 2 and 3 she was working at a job that allowed her to be back home by 4:30. E.Q. agreed that in grade 2 and 3 her mother did pick her up from Paula’s. She agreed that Mr. F. could not have assaulted her at that time but stated that he did assault her at other times.
[10] I also summarized Mr. F.’s testimony for the jury. He testified that at no time did he ever sexually assault E.Q. or touch her inappropriately. On the point of the chain, Mr. F. stated that there was never a chain on the apartment door. He said that there were fixtures on the door. Mr. F. entered into evidence two photographs taken during the time that he lived in the apartment. There was no chain on the door in the photographs.
[11] Again, I reproduce the salient parts of my summary to the jury of Mr. F.’s evidence:
D. F. testified that he first met E.Q. in 2002, shortly after he started his relationship with Denise. At first E.Q. was shy, but then warmed to him. They played card games and other kinds of games such as hide and seek. Sometimes she would hide in the bedroom closet. He was too big to be in the closet. E.Q. loved playing with D. and Denise’s cats.
D. and Denise F. lived at 30 Carabob Court, Apartment 914. It was a large one bedroom apartment. Denise and Joanne, E.Q.’s mother, were always in the apartment when E.Q. was there. He was never alone with E.Q. At no time did he ever sexually assault E.Q. or touch her inappropriately. The bedroom door was always open. There was a lock on the bathroom door but it was never used. The reason for that was because the cats were allowed to roam anywhere in the apartment. They did not want the cats to be blocked from access to the kitty litter. Mr. F. testified that there was no chain on the door to the apartment.
Mr. F. testified that he may have been in the stairwell with E.Q. but it would have been with Denise and Joanne, E.Q.’s mother. Usually they moved around the stairwell between apartments, as his mother in law lived one floor above. At no time did he go up 9 floors in the stairwell with E.Q. She may have come down with him to the parking garage to his car but they would have used the elevator.
Mr. F. testified that he knew E.Q. attended Brownies, but did not know that she went to Girl Guides. He never gave her a lift to Girl Guides on Wednesday nights. Mr. F. was never alone in his car with E.Q. He never watched pornography on the computer with Ms. F. The computer screen faced the rest of the apartment and anyone around the apartment would have known what he was looking at.
Mr. F. also testified that he was a member of the Royal Canadian Legion and on the executive. He and Denise took E.Q. and her mother to a Canada Day celebration at the Legion. He was very busy that day with his duties around the Legion. He would not have had an opportunity to touch E.Q. that day, and he did not touch her inappropriately that day.
Mr. F. also testified that he did go to Paula’s apartment. Paula was E.Q.’s babysitter. Mr. F.’s daughter lived with him and Denise for a time and Paula babysat her. That was the only time he went to Paula’s apartment. He did not ever pick up E.Q. there on Wednesdays and take her to Girl Guides.
Mr. F. also testified about his schedule when he lived at Carabob Court and before he moved to Kingston. He worked at Remington Tire in Concord from 8 am to 5 pm Monday to Friday. Denise worked at Midland and Finch at a daycare from 8 am to 6 pm. He went from work to pick her up. They would then go home for dinner. On Wednesdays he and Denise would go to the Legion where he ran a dart league. He also played darts on Tuesdays and Thursdays. Mr. F. would drive to Trenton to pick up his children every other weekend. Denise F. accompanied him. He had three children. His car only held five people and it would have been impossible for E.Q. to have joined him in the car. E.Q. did come to Trenton at one point with her mother Joanne.
When his children were in Toronto they would do activities, and sometimes E.Q. and her mother would join them. He found E.Q.’s mom to be quite protective of E.Q..
In June 2006 Mr. F. and Denise moved to Kingston to take a new job, as he was promoted. In February 2008 they moved to Nova Scotia, also for Mr. F. to take a job. They moved back to the Toronto area in April 2010.
In cross-examination, Mr. F. agreed that E.Q. was accurate in describing the location of A&A Daycare in the church at Ionview, where Denise worked. She was also accurate in describing Mr. F.’s car, the event at the Legion, and the location of the washrooms at the Legion. She was also accurate that she tried on his hockey equipment and that they played a game with her feet on the ceiling. Mr. F. said that it was a fun game. He did not touch her inappropriately during the game. He maintained in cross-examination that every time E.Q. was in his apartment her mother Joanne was also there, as was Denise. If Denise was there, E.Q.’s mother might leave her at the apartment to go shopping, but that was it. He never offered to watch E.Q. while her mother was out, or at the mall, or shopping. There was never a discussion of whether or not he could watch E.Q. The subject simply never came up.
[12] Denise F. testified on behalf of her husband. I excerpt the key parts of my summary to the jury:
Denise F. testified that she had a good, normal relationship with her niece E.Q. She did not meet any of E.Q.’s friends. E.Q. was almost always with her mother. She would see E.Q. every week or two. They did not have regular times to see each other.
Ms. F. further testified that there was no chain on the door of their apartment. The fixtures were there for a chain, but there was no chain. They kept the bedroom door open because they did not want the cats to be trapped. The cats needed to get to their litter box. They got the cats in 2003.
Ms. F. testified that she did not recall E.Q. ever being alone with her husband. She could not recall a time where Mr. F. offered to watch E.Q. so that she and Joanne could go shopping. E.Q. was always asking to play at the apartment. The play was normal stuff, such as piggy back rides or playing airplane with Mr. F.’s feet on E.Q.’s belly. She did not appear to be apprehensive or afraid of him. Ms. F. stated that Mr. F. picked her up from work every day. She worked until 6 pm. Every Wednesday she and Mr. F. played darts at the Legion. Mr. F. never drove E.Q. to Girl Guides. In fact, Ms. F. could not remember a time where E.Q. was alone in the car with Mr. F. E.Q. never came to Trenton to pick up Mr. F.’s children as there was not enough room in the car.
Ms. F. did recall that E.Q. and her mother may have come to the Legion on Canada Day, or perhaps at a Christmas party or Remembrance Day. Ms. F. also testified that E.Q. went to her dad’s home every other weekend. In cross-examination, Ms. F. testified that on alternating Fridays they would go to a restaurant with her mother, E.Q., and Joanne. Sometimes they would go to her mother’s apartment afterwards depending on the time. On the other weekends they had Mr. F.’s children.
In cross-examination Ms. F. further testified that when E.Q. spent time in the apartment she would ask to play with Mr. F. They would go to the bedroom while Ms. F. and Joanne stayed in the living room. Joanne was always there when E.Q. was there. Sometimes Ms. F. would do crafts with E.Q.. There was never a time where E.Q.’s mother would go off to see their mother for a few moments. E.Q.’s mother, Joanne, had cancer and had her own issues. She further testified that because she is claustrophobic, she did not want the door closed. Ms. F. recalled seeing E.Q. in Mr. F.’s hockey gear.
Ms. F. also testified that E.Q. was involved in Brownies. Her mother was a leader involved with both Brownies and Girl Guides.
ANALYSIS
[13] I divide the sexual assaults into six different locations:
First, the main room of the F. apartment including the hockey uniform incident;
Second, the bedroom of the F. apartment;
Third, the car trips to Girl Guides;
Fourth, the car trips to Trenton to see Mr. F.’s children;
Fifth, the stairwell incidents; and
Sixth, the Royal Canadian Legion incidents.
Credibility and Reliability
[14] The credibility and reliability of the evidence of E.Q., D. F., and Denise F. is critical.
[15] I turn first to the credibility and reliability of E.Q.. E.Q. was 26 years old when she testified. She testified about things that happened when she was a very young child. McLachlin J. (as she then was) described the proper approach to an adult witness testifying about events that occurred in childhood in R. v. R.W., [1992] 2 S.C.R. 122, 137 N.R. 214 at paras. 24-25:
It is neither desirable nor possible to state hard and fast rules as to when a witness's evidence should be assessed by reference to "adult" or "child" standards — to do so would be to create anew stereotypes potentially as rigid and unjust as those which the recent developments in the law's approach to children's evidence have been designed to dispel. Every person giving testimony in court, of whatever age, is an individual, whose credibility and evidence must be assessed by reference to criteria appropriate to her mental development, understanding and ability to communicate. But I would add this. In general, where an adult is testifying as to events which occurred when she was a child, her credibility should be assessed according to criteria applicable to her as an adult witness. Yet with regard to her evidence pertaining to events which occurred in childhood, the presence of inconsistencies, particularly as to peripheral matters such as time and location, should be considered in the context of the age of the witness at the time of the events to which she is testifying.
[16] I turn next to the credibility of D. F. The jury rejected at least some of his evidence; they obviously must have rejected his denial that he had never touched E.Q.. As they convicted him of invitation to sexual touching, they rejected his evidence on that point. The jury had a reasonable doubt in relation to the single count of sexual assault in relation to L.H. There are four possibilities about what the jury may have believed in coming to that conclusion:
Some or all of the members of the jury might have believed D. F.;
Some or all of the members of the jury might have disbelieved D. F. but nonetheless have been left in a state of reasonable doubt by his evidence;
Some or all members of the jury may have disbelieved D. F. and not been left in a state of reasonable doubt by his evidence but nonetheless not accepted the evidence of the complainant, L.H.; or,
Some members of the jury may have not been sure who to believe, thus entitling Mr. F. to an acquittal on that count.
[17] I make that point simply to show that the jury may not have made a blanket finding regarding D. F.’s credibility.
[18] There is one express finding of the jury that I must make. Mr. F. was convicted of invitation to sexual touching. E.Q. testified as follows regarding that count:
Q. And you described certain occasions where you touched his penis. Can you tell us anything more about that?
A. I remember he got like excited one time and there was pre-cum on it and he had to fix himself to make sure that it didn’t go anywhere, so I -- there was nothing on the bed or anything.
Q. With what part of your body did you have to touch his -- did you touch his penis?
A. With my hand, and then sometimes in my vagina, he would rub up against.
E.Q. later testified:
Q. So you also -- you also told the jury about incidents where you touched his penis or performed oral sex on him. How did you know what to -- what to do?
A. He would tell me what to do.
[19] The jury must have accepted that evidence because it related specifically to the invitation to sexual touching count, and also involved a sexual assault and sexual interference. I am bound by the jury’s finding in that regard. It is obvious that the jury rejected the evidence of D. F. that he never touched E.Q. inappropriately. It is unclear whether they accepted some, none, or all the rest of D. F.’s evidence.
[20] It is obvious that the evidence of E.Q. cannot be reconciled with the evidence of D. F. or the evidence of Denise F., except in two respects: Denise and D. F. did agree that there were times that D. F. was alone in the bedroom with E.Q.; and Denise and D. F. did agree that there was an occasion where E.Q. tried on Mr. F.’s hockey equipment.
The main room of the F. apartment including the hockey uniform incident
[21] E.Q., Mr. F., and Mrs. F. all agree that there was an incident where E.Q. tried on Mr. F.’s hockey equipment. E.Q. testified that sexual touching occurred at that time. I am not satisfied that it did. The hockey equipment incident was not hidden. Mrs. F. saw E.Q. in the hockey equipment. Mr. F. testified that his children were present at that time of the hockey equipment incident. It is not clear whether they dressed in the bedroom and then E.Q. went into the main room of the apartment, or whether they dressed in the main room. What is clear is that E.Q., her mother, and Denise were present. It is also quite possible that Mr. F.’s children were present. I think it very unlikely that sexual touching occurred under those circumstances, and I find as a fact that it did not.
[22] E.Q. testified that many sexual assaults, other than the hockey uniform incident, took place in the main room of the apartment when she was alone with Mr. F. She described different sexual incidents, as well as pornography that would have played on the computer in the main room. E.Q. also described how Mr. F. put the chain on the door, and that at least one time he had to fix himself because Mrs. F. was coming in the apartment. He made an excuse about what he was doing.
[23] There are some serious problems with the reliability of E.Q.’s evidence about sexual assaults in the main room. It is difficult for me to see when Mr. F. would have had the opportunity. He testified he was never alone with her, although he admitted that he was alone with her at times in the bedroom when E.Q. came to visit. I think, based on the whole of the evidence that E.Q. is mistaken about Mr. F. baby-sitting her at times alone. It seems unlikely based on the timing of Mr. F.’s work, Ms. F.’s work, and E.Q.’s own schedule with her baby-sitters.
[24] The main problem with E.Q.’s evidence, however, is the evidence of the chain. Mr. F. testified that there were fixtures for a chain on the wall but that the door never had a chain. Photographs indicated that he was right – at least at the time the photographs were taken. In the photographs, there is no chain. It is certainly possible that the chain was on for part of the time that Mr. and Mrs. F. lived there, but the photograph had to be taken some time before 2005, when the F.s moved to Kingston. I find as a fact that there was no chain on the door and that E.Q. is mistaken. That is an important piece of evidence because E.Q. testified that she was as sure about the chain as she was about the sexual assaults. Even if that is mere hyperbole, it does cast doubt on the reliability of her evidence. Ordinarily, as a trier of fact, I would not be concerned about the chain. Under most circumstances it would be a peripheral matter and would not affect E.Q.’s overall reliability. The difference here, however, is that the chain is central to E.Q.’s memory of the sexual assaults. As a result, it causes me to question the reliability of her memory as it relates to alleged assaults in the main room of the apartment. I therefore find as a fact that the sexual assaults did not take place in the main room of the apartment when Mr. F. was alone with E.Q.
Incidents in the bedroom of the F. apartment
[25] E.Q. described sexual assaults in the bedroom and the bedroom closet of the F. apartment at Carabob Court in Scarborough. She testified that the assaults began with Mr. F. petting her vaginal area. She recalled that it was in the bedroom. She said that her aunt and her mother would be in the living room, and he would bring her in the bedroom to help him with the closets or take things out of the closet to make a fort. She testified that he performed oral sex on her and penetrated her vagina with his fingers. She also performed oral sex on him. She further testified that he tried to penetrate her vagina with his penis but was unable to do so.
[26] In my view, all the sexual touching must have taken place in the bedroom. Although the behaviour would have been extraordinarily risky, it must have occurred when E.Q. was visiting the F. apartment and she and Mr. F. were playing in the bedroom. Based on all the evidence, I think that is almost the only time Mr. F. would have had the opportunity. It is a necessary implication of the jury’s verdict that the sexual touching starting with petting of the vaginal area – in other words with grooming. It seems unlikely that Mr. F. would have been simply started with full on touching of the penis and attempted digital penetration of the vagina, for obvious reasons. The implication of the jury’s verdict is that Mr. F. must have engaged in some grooming of E.Q., which means starting with less serious assaults. I find that Mr. F. must have worked up to the touching of the penis and the digital penetration of E.Q.’s vagina. The incidents must have been hurried, given the circumstances, but based on the jury’s verdict I find that there was cunnilingus and fellatio, digital penetration, and touching of Mr. F.’s penis.
[27] I find it implausible that Mr. F. attempted to penetrate E.Q. with his penis. Again, the incidents must have been hurried and it would have required more elaborate physical activity. It is not a necessary implication of the jury’s verdict. I am concerned that E.Q.’s memory might not be as reliable on this point. I therefore do not accept this aspect of her evidence. I pause to note that when sentencing Mr. F., I must not assume that the sexual activity that did take place is less serious than it would have been had Mr. F. attempted vaginal penetration with his penis: Friesen, supra.
Car trips to Girl Guides
[28] E.Q. testified that she was in Brownies when she was 7 and 8 years old, and then in Girl Guides when she was 9 years of age and older. She walked to Brownies with her mother. She testified, however, that Mr. F. would drive her to Girl Guides. She testified that Mr. F. would bring her back to his apartment and then drive her to Girl Guides on Wednesday nights. She testified that Mr. F. would reach around behind him and touch her over her clothing.
[29] E.Q.’s memory was very good for some details, and not as good on others. She accurately remembered the place and times when she attended both Girl Guides and Brownies. She was clear that she walked to Brownies, but that Mr. F. drove her to Girl Guides. She was also clear that Mr. F. assaulted her in the car when he drove her to Girl Guides.
[30] The problem with that evidence, however, is that Denise and D. F. moved to Kingston in 2006, when E.Q. was 9 or 10 years old. Mr. F. categorically denied ever driving E.Q. to Girl Guides. There was no evidence from Ms. Quinney’s mother on this point. I think it is unlikely that Mr. F. did drive her to Girl Guides simply because of the timing. It is possible that there was overlap of a year between the time that E.Q. switched from Brownies to Girl Guides. E.Q. testified that she was in Girl Guides for at least three years, and then in Pathfinders. Ms. F. testified that she learned from her sister that E.Q. had started Girl Guides after she and Mr. F. moved to Kingston. While I do not question E.Q.’s honesty, I have some doubts about her reliability in this regard. I think it is clear based on her description of the car that she was in it at some point, but I find as a fact that Mr. F. did not sexually assault her in it while driving to Girl Guides.
Car trips to Trenton to see Mr. F.’s children
[31] E.Q. testified that she was with Mr. F. in in his car when he drove to Trenton to see his children. She would be alone with him either on the way there or the way back. It was at that point that he would sexually assault her in the car.
[32] Mr. F. testified that he had his children every other weekend. They lived in Trenton. On a Friday night he would drive to Trenton with his wife Denise, pick up the children, and bring them back to Scarborough – a 1 ½ hour drive. They would do activities with the children during the weekend. Sometimes E.Q. and her mother would join them. Sometimes E.Q. would come to the apartment while his children were there, and they would play. He would return his children to Trenton at the end of the weekend.
[33] Mr. F. testified that E.Q. never came with on the car trips to Trenton. One time she and her mother may have come with to a birthday party there but generally it never happened. Mr. F. testified that he had a very small car – a Toyota Echo. There was room for three people in the back seat – and Mr. F. had three children – and two adults in the front. Denise F. also testified that E.Q. never travelled to Trenton with her and Mr. F. She also testified that the car was too small. As well, there were times when they took the children to her mother’s trailer near Peterborough for the weekend.
[34] I have significant doubts about E.Q.’s reliability regarding the assaults in the car on the way to Trenton. Her evidence is contradicted by both Mr. F. and Mrs. F. More importantly, if Mr. F. had a Toyota Echo – and it seems to be common ground that he did – it simply would have been too small for E.Q. to join them. The evidence is that it is a very small car. As well, it seems pointless – and implausible – that E.Q. would have joined Mr. F., by himself and without Mrs. F., for what amounted to a three hour round trip to Trenton and back for no reason. I find that there were no assaults in the car on the way to Trenton.
The stairwell incidents
[35] I also have doubts about the stairwell incidents. E.Q. testified that they walked up the stairwell and sexual touching took place. That strikes me as very unlikely. The F. apartment was on the 9th floor. Mr. F. agreed that he may have been in the stairwell with E.Q. but it would have been with Denise and Joanne, E.Q.’s mother. His mother-in-law lived one floor above their apartment. They used the stairwell to move between apartments. I think it unlikely that E.Q. and Mr. F. walked up 9 floors in the stairwell together. As well, considering the proximity of the apartments I think it unlikely that they were alone in the stairwell. I find that E.Q. is likely conflating incidents, which is understandable given her age at the time.
The Royal Canadian Legion incidents
[36] Finally, I have doubts about the incidents at the Royal Canadian Legion. It strikes me that Mr. F. would have had little or no opportunity to assault E.Q. there. The bathroom areas were separate. Both Mr. F. and Mrs. F. testified that they were very busy with Legion activities. Again, I think it likely that E.Q. is understandably conflating events. I find that sexual touching did not take place at the Legion as she describes.
R.F. Goldstein J.
Released: October 4, 2023