COURT FILE NO.: CR-20-40000175-000 DATE: 20231027

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING – and – J.S.M.

Counsel: I. Sutherland, for the Crown A. Shakeel, for J.S.M.

HEARD: June 19, 20, 21, 2023

SUBJECT TO ANY FURTHER ORDER BY A COURT OF COMPETENT JURISDICTION, AN ORDER PURSUANT TO S. 486.4 OF THE CRIMINAL CODE HAS BEEN MADE IN THIS PROCEEDING DIRECTING THAT THE IDENTITY OF THE COMPLAINANT AND ANY INFORMATION THAT COULD DISCLOSE SUCH IDENTITY, INCLUDING THE NAMES OF OTHER CROWN WITNESSES, SHALL NOT BE PUBLISHED IN ANY DOCUMENT OR BROADCAST IN ANY WAY.

REASONS FOR JUDGMENT ON TRIAL

R. MAXWELL J.

I. Overview

[1] The accused, J.S.M., is charged with sexual assault, sexual interference, and invitation to sexual touching. The charges relate to his stepdaughter, S.G. The accused had a judge alone trial before me and entered pleas of not guilty.

[2] The offences set out in the indictment are alleged to have taken place between July of 1998 and July of 2002. It is alleged that between those dates, the accused engaged in frequent sexual assaults on the complainant in the family home when she was between the ages of 9 and 13 years old.

[3] The complainant reported the matters to the police on August 18, 2019. The accused was arrested in relation to the charges on October 8, 2019. At the time of the trial, the complainant was 33 years old.

[4] The Crown called the complainant. The Crown also brought a mid-trial application to introduce evidence of other disreputable conduct through the complainant’s common law partner, I.B. In reasons released on June 21, 2023, I granted the application and allowed the Crown to call I.B. to testify about an incident which occurred between the complainant and the accused in or around 2018, when the complainant was an adult. I concluded that the evidence of the complainant, and the evidence of I.B. concerning this incident was relevant to understanding what prompted the complainant to disclose the sexual assaults and to properly assess the defence arguments about potential motives to fabricate allegations.

[5] The defence did not call any evidence.

[6] At the conclusion of the evidence and argument, I reserved my decision. In brief oral reasons for judgment delivered on July 28, 2023, I found the accused guilty on all counts, with written reasons to follow. These are my reasons for judgment.

II. Issues to be Determined

[7] As noted, the accused is charged with sexual assault, sexual interference, and invitation to sexual touching, spanning a period of 1998 to 2002. The alleged sexual acts included performing oral sex on the accused, manually masturbating him, letting him touch her sexually by sucking on her breasts, allowing him to perform oral sex on her, rubbing lubricating substances on her in order to slide his penis between her legs and vaginal area or buttocks, and the accused using sex toys on himself while masturbating in her presence.

[8] There is no question that the conduct described by the complainant meets all the requirements of the offences of sexual assault, sexual interference, and invitation to sexual touching.

[9] The issue in the case is whether the Crown has proven beyond a reasonable doubt that the alleged acts which form the basis for the charges actually occurred. As is the case with most cases of this sort, there are no witnesses to any of the incidents. Therefore, the complainant’s credibility and reliability are the central issues in this case.

III. Background to the Allegations

[10] The complainant lived in a townhouse in Toronto with her mother, the accused, her older brother, her two younger half-sisters (the accused’s biological children with the complainant’s mother), and her maternal uncle, H, who often acted as a babysitter to her younger sisters and, for the most part, lived at the house.

[11] The townhome had four bedrooms on the 2nd floor. The complainant had one bedroom, her brother had a bedroom, her mother and stepfather shared a bedroom, and her two younger sisters shared the fourth bedroom. There was also a bathroom on the second floor.

[12] The complainant had a difficult childhood. Both her mother and the accused were alcoholics. She described a situation of neglect in a household where she was generally left to fend for herself. Although she had her own bedroom, she often slept in different places within the home because her bedroom was infested with cockroaches. She often left the house alone. She would eat when her younger two sisters were being fed. She described her mother as someone who was always focused on herself and did not protect her. Her mother worked for a time as a loan administrator at Scotiabank, but lost her employment. She also, at one point, took a course at Sheridan College.

[13] She described the accused as a “worker, a drinker, and a newspaper reader” growing up. She was sometimes teased by her peers, who referred to her him as a “hillbilly” because he wore his hair in a ponytail and always dressed in jeans. The accused worked at various trades and was the primary breadwinner in the home. He worked five days a week until about 5pm and was paid every Friday. She was aware that the accused earned approximately $1000 per week because her mother frequently mentioned it.

[14] The complainant testified that growing up, she believed that the accused was her biological father. Throughout her childhood, she asked her mother if the accused was her biological father because neither she nor her brother resembled the accused. When she was approximately 14 years old, her maternal grandmother revealed to her that the accused was not her biological father.

[15] The complainant testified that from about the age of 9 until age 13, the accused sexually abused her on a regular basis.

[16] The complainant testified that, as a child, when she wanted something like a pen, a diary, lip gloss, or other “kid things”, she asked her mother or the accused for money to purchase the items. Her mother would sometimes give her money. However, more often than not, her mother directed her to ask the accused for money.

[17] The complainant testified that the first time she asked the accused for money to buy an item, he told her that if she wanted money, she would have to “do stuff” for it, meaning engage in sexual acts with him.

[18] The specifics of the alleged abuse will be discussed in greater detail below, but the context in which the incidents of abuse occurred was always the same – the accused asked her to perform sexual acts on him, or that he perform sexual acts on her, in the family home, in exchange for money.

[19] The complainant testified that after the first incident, the instances of sexual touching occurred as often as she asked for money. She testified that she could not recall any occasion when the accused gave her money without requiring her to engage in sexual acts.

[20] The complainant would hide the money she received from the accused and sometimes spent it. She recalled being approximately 10 years old and taking her bike to the Fairview Mall. She purchased items such as lip gloss, make up kits, gel pens, and toys. She sometimes used the money to buy candy in bulk from the Bulk Barn and would use the candy to try to gain friends at school.

[21] When the complainant was 13 years old and in grade 7, she and her family moved in with her maternal grandmother. The complainant testified that after the move, the accused initially continued to proposition her for sexual acts, but she began to refuse. She stated she was “fed up” with having to perform sexual acts with the accused in order to get money to go out with friends. By then, she also had a boyfriend. There were also a large number of family members living in the home (as many as 20), leaving fewer opportunities to get the complainant alone.

[22] The complainant eventually moved out of her grandmother’s house to live on her own at the age of 16. The accused and the complainant’s mother eventually separated and he left the household. They did not see each other for 10 years.

[23] The complainant’s mother began a new relationship. However, when the complainant’s mother’s new partner became ill, the accused became more present in the complainant’s mother’s life. When her mother’s partner died, the accused appeared, from the complainant’s perspective, to be working his way back into her mother’s life. He eventually moved back in with her mother.

[24] In August of 2019, the complainant disclosed the abuse to the police. Some of the events which precipitated her disclosure will be discussed in greater detail later in these reasons when I discuss the defence theory of the complainant’s motives to fabricate allegations.

IV. Position of the Parties

[25] On behalf of the Crown, Mr. Sutherland argues that the complainant is a credible and reliable witness who testified in detail about numerous incidents of sexual assault.

[26] He submits that the regularity of the abuse that occurred over the years explains the complainant’s inability to distinguish one incident from another and does not undermine the credibility and reliability of her evidence because she was able to remember specific details about events which were memorable or unusual. He argues that the complainant’s evidence was not shaken in cross-examination.

[27] On behalf of the accused, Ms. Shakeel argues that the complainant is neither credible nor reliable. She submits that it is not plausible that the accused would have had the opportunity to commit the abuse, given his work schedule and the presence of others in the house. She also points out that while there may not be significant inconsistencies in the complainant’s evidence, there is a lack of detail and an inability to recount the events surrounding the alleged assaults or place them in context.

[28] Ms. Shakeel further argues that the complainant had motives to fabricate the allegations, including that she was angry to learn that the accused was not her biological father, she was upset that the accused was attempting to rekindle his relationship with her mother, financial motivations, and a desire to maintain a better relationship with her brother.

V. Analysis

(i) General Legal Principles

[29] The accused is presumed to be innocent of the charges. The onus rests on the Crown to prove his guilt beyond a reasonable doubt. Proof beyond a reasonable doubt is a high standard: R. v. Lifchus, [1997] 3 S.C.R. 320.

[30] A reasonable doubt is not a far-fetched or frivolous doubt. It is not based on sympathy or prejudice against anyone. It is a doubt based on reason and common sense and one that logically flows from the evidence or the lack of evidence. Likely or probable guilt is not enough to meet the standard of proof beyond a reasonable doubt. The standard is much closer to a certainty. However, it is nearly impossible to prove something to an absolute certainty.

[31] With respect to reviewing and assessing the evidence, Thorburn J. (as she then was) provided a helpful summary of the law and the rules to be followed in R. v. Chauhan, 2014 ONSC 5557, at paras. 38-42, as follows:

All of the evidence should be considered together, rather than assessing individual items of evidence in isolation. (R. v. Morin, [1988] 2 S.C.R. 345 at paras 41, 44 C.C.C.(3d) 193). This is particularly true where the principal issue is the credibility and reliability of witnesses. (R. v. Gostick, (1999), 121 O.A.C. 355 (C.A.), 137 C.C.C. (3d) 53 at paras 14-18 and R. v. B. (R.W.), (1993) 40 W.A.C. 1, [1993] B.C.J. No. 758 (C.A.) at para 28);

The court must be satisfied of two things beyond a reasonable doubt: (1) that the complainant is a credible witness, and (2) that her account is reliable. (R. v. J.W., 2014 ONCA 322, 316 O.A.C. 395 at para 26);

Credibility is the witness’ willingness to tell the truth. Reliability is the accuracy of the witness’s testimony. Accuracy is affected by the witness’s ability to accurately observe, recall, and recount events (R. v. C.H. (2009) 2009 ONCA 56, ONCA 65, 244 O.A.C. 288, at para. 41);

A witness whose evidence is not credible cannot give reliable evidence. However, a credible and honest witness may still be unreliable. (R. v. Morrissey, 22 O.R. (3d) 514, [1995] O.J. No. 639 (CA) at para 33). The reliability of the evidence is what is paramount. (R. v. Norman (1993), 16 O.R. (3d) 295 at para 47, 87 C.C.C. (3d) 153 (C.A.) at para 47.)

[32] Every witness, irrespective of age, is an individual whose credibility and evidence should be assessed according to criteria appropriate to his or her mental development, understanding, and ability to communication: R. v. A.M., 2014 ONCA 769, 325 OAC 365, at para. 9.

[33] At the time of the allegations, the complainant was between the ages of 9 and 13 years old. She is now 33 years old.

[34] When assessing the evidence of an adult recounting historical events that allegedly occurred when they were a child, it is important to apply a nuanced approach to the evidence. The credibility of an adult witness testifying to events which occurred during childhood should be assessed according to the criteria applicable to adult witnesses, however the presence of inconsistencies, especially on peripheral issues like time and location, should be considered in the context of her age at the time of the events about which she is testifying: A.M, at para. 11; R. v. C.K, 2016 ONCA 66, reversed 2016 SCC 41; R. v. W.R., [1992] 2 S.C.R. 122, at p. 134.

[35] The important questions in that context are whether the deficiencies, if any, are minor or significant and whether the deficiencies mean that events were misconceived. However, this does not mean that the testimony of children or young adults is subjected to a lower level of scrutiny for reliability than other testimony. In other words, the standard of proof is not relaxed in cases dependent upon the testimony of children and young adults.

(ii) Credibility of the Complainant’s Evidence

[36] I find that the complainant was an honest witness who told the truth to the best of her ability. Although she became frustrated and somewhat combative as her testimony extended over two days, she was, overall, unshaken in cross-examination about her memories. I find there to be very few inconsistencies in her evidence and any inconsistencies which are present were either minor or reasonably explained. I will address those inconsistencies later in these reasons.

[37] There was no hint of overreach or embellishment in her evidence. For example, she was clear in her evidence that, to the best of her recollection the accused never penetrated her vagina except with his tongue when he performed oral sex on her. She did not suggest any additional violence or threats beyond the touching.

[38] It is also quite telling that she did not attempt to absolve herself from the role she played in the abuse. She expressed feelings of guilt and shame for her involvement in sexual acts with the accused for money. She did not attempt to put all the responsibility on the accused. She testified that she “should have told someone”, or told him “no”, rather than continue to engage in sexual acts with the accused in exchange for money. She used terms like “we did these things”. Given her very young age and the very vulnerable position she was in, her self-blame is entirely misplaced, however her acknowledgement of the general circumstances surrounding the sexual relationship with the accused reflects her honesty and candor about the events.

[39] Moreover, the credibility and reliability of her account is borne out by the detailed and vivid recollections she has of the sexual acts that occurred. She had limitations in her memory for certain details, which I will address when I turn to the reliability of her evidence. However, the details she was able to recall provide a compelling and credible account of the sexual assaults.

[40] The complainant described a multitude of sex acts which occurred on a very regular basis, for approximately four years. She provided detailed information about the different ways in which the accused assaulted her.

a. Performing Oral Sex on the Accused

[41] The complainant testified that she remembers the incidents of performing oral sex on the accused the most because it happened more often than any other sexual act, or as the complainant put it, “whenever the opportunity arose.” More than the frequency of the incidents of performing oral sex, the explicit detail she was able to recall about this particular sexual act was highly credible.

[42] She testified that the first time the accused asked her to perform oral sex on him, she did not know how to do it. She testified that the accused told her that she should not just put his penis in and out of her mouth. He instructed her that she had to “suck it like a spaghetti string”. This is exactly the kind of instruction that would be given to someone of that age and is, in my view, a very clear and distinct memory of the complainant’s initiation into oral sex with the accused.

[43] She testified that the accused offered her $60 to perform oral sex on him and offered to pay her more if she agreed to allow him to ejaculate into her mouth and swallow it. She specifically recalled the ejaculate smelling and tasting like creamed corn. She testified that, for this reason, she is unable to eat creamed corn to this day. I accept all of her evidence on these points.

[44] I also accept her evidence that the accused did not ejaculate in her mouth every time because she did not like it. If she spat it out, or if he ejaculated on other parts of her body, she would be paid $60 or $70, but did not receive additional money. If she did not wish to swallow, or if the accused ejaculated on another part of her body, she went to the bathroom to spit it out or clean herself. If she initially refused, the accused would increase the offered amount until she agreed to engage in sexual acts.

[45] She recalled all of the incidents of oral sex occurred in the family home apart from one incident. I accept her evidence that the family once stayed at a chalet in Collingwood, owned by the accused’s boss. There was a sauna on the property. She testified that during the visit, she and the accused went into the sauna. She recalled him sitting on the bench inside the sauna with his legs spread. She specifically recalled that she was not lying down in the sauna and that she performed oral sex on the accused. She recalled the smell of the sauna and can no longer go into saunas now. She testified that this is the only incident of sexual contact she can recall which occurred outside the family home.

[46] This is a clear and distinct memory and I accept that this incident occurred. While it is true that the complainant failed to mention the chalet incident in her statement to the police in December of 2019, I am satisfied that the complainant simply omitted this incident when she gave her statement.

[47] In cross-examination, the complainant acknowledged that she did not mention the incident at the chalet when she gave her statement to the police in August of 2018. However, I find that her recounting of this incident was a vivid and I am satisfied that it is a real and distinct memory of an incident which occurred.

b. Accused Performing Oral Sex

[48] The complainant’s account of the accused performing oral sex on her was equally vivid and clear in its detail. Although the complainant was unable to recount how often the accused performed oral sex on her, she was confident that it happened more than once because she recalled that, on several occasions, she had no reaction to the accused performing oral sex on her. However, on one occasion, she experienced an orgasm. I accept that the incident was memorable because it was the first time she experienced an orgasm. I accept her evidence that the experience of having an orgasm with the accused ruined the experience for her later in life when she had a boyfriend.

[49] I also accept her evidence that the accused used his tongue to penetrate her vagina and that he also used his mouth to suck on her breasts “as soon as I got them”. Her testimony that she had only started to grow breasts and was not yet wearing a bra was credible.

c. The Accused Using Lubricants During Sexual Touching

[50] Similarly, the complainant’s testimony about how the accused used lubricants during incidents of sexual touching was credible in its level of detail. The complainant testified that during some of the incidents of sexual assault, she lay on her stomach or on her side and the accused rubbed his penis between her legs or buttocks, near her vagina. The accused used baby oil as a lubricant. She testified that when there was no baby oil, the accused directed her to get butter or margarine from the kitchen to use as a lubricant. She described in detail her memory of seeing the wrapper of the butter up against the headboard of the bed and the accused scooping butter out with his hand. She recalled the margarine tub as a “no-name” brand that was white and turquoise in colour.

[51] She testified that during the touching, the accused’s penis was erect and she worried that the accused would slip his penis into her vagina. She placed her hand over her vagina while the accused slide his penis between her legs to prevent him from penetrating her. She testified that the accused assured her he would not “put it in”, but she felt he was “pretty close” to inserting his penis into her vagina.

[52] She testified that sexual touching with lubricants happened “well over 20 times for sure”.

[53] She also testified that, as a result of the lubricating substances he used, she developed itchiness in her vaginal area, which she scratched to the point of causing a cut. She told her mother about the itchiness (but not how it happened), and she brought her to the doctor. She testified that the accused gave her a “pep talk” before she saw the doctor, telling her that she should not tell the doctor about the things they were doing because he could get in trouble. She recalled the doctor using a swab during the examination which felt as though something was being ripped off of her. She hoped the swab would reveal the abuse to the doctor, but nothing arose from the visit to the doctor, in terms of disclosing the abuse.

[54] I accept the complainant’s evidence on all of these points. In my view, the specificity of her recollection of the lubricants, the packaging, the fear of being penetrated, and the irritation to her vaginal area lend a high degree of credibility to her account that these acts happened in the way she described.

d. Other Acts of Sexual Abuse

[55] Finally, I accept the complainant’s evidence that the accused anally penetrated himself with a sex toy or “dildo” while manually stimulating his penis in the complainant’s presence. She testified that this occurred multiple times and that the accused used different “dildos” on different occasions. This is a very particular memory which I accept is something the complainant would remember and is credible.

[56] I accept her evidence that she also gave the accused “hand jobs”, or manually stimulated his penis with her hands. The complainant did not provide evidence about how often she performed “hand jobs” on the accused, but in the context of the multitude of other acts of sexual assault which took place, I find it reasonable to conclude that she manually stimulated the accused during some of the incidents.

e. The Complainant’s First Memory of Having Money from Performing Sexual Acts

[57] A further part of the complainant’s evidence which I find was highly credible was her testimony about her first memory of having money from performing sexual acts.

[58] She testified that when she was a grade 3 student at Crestview Elementary School, she brought a $100 bill in her backpack to school. She testified that earlier in the day, her uncle found money in her closet and accused her of being a thief. She stated that she put $100 of money she had received from the accused for sexual acts in her backpack because she did not want anyone to take it and she planned to go shopping at a plaza after school.

[59] She testified that she hung her backpack on a hook in the hallway near her classroom. Sometime later, she heard a commotion and a student say, “I found $100.” She testified that she knew it was her $100 because she looked in her backpack and the money was gone.

[60] She testified that she recalled the incident because the student who found the money was not in her class, but was always in the hallways getting into trouble. She also recalled this occurred when she was in grade 3 because she remembered her teacher, Ms. Z. She testified that she had Ms. Z as a teacher twice, once in grade 1 and again in grade 3. She testified that she believed this incident occurred when she was in grade 3, not grade 1.

[61] The teacher took the money to the principal’s office and the complainant never saw the money again.

[62] She recalled that the $100 was money she had “earned” for sexual acts with the accused. She could not recall what specific sexual acts she engaged in to earn $100 or the circumstances surrounding the sexual acts. However, she recalled that the money which was taken from her was money that the accused paid her for sexual acts.

[63] In my view, it is believable that the complainant, being so young, would not have appreciated the risk of bringing such a large amount of money to school. It is also believable that she would have thought the money would be safer on her person than in the home, given the incidents of her uncle finding and confiscating the money. Finally, it is very believable that she would still remember the feeling of unfairness in having suffered the indignity of performing sex acts with the accused, but then having the money she collected taken from her. I accept that this incident happened and marked the complainant’s first memory of having money from performing sex acts with the accused.

(iii) Defence Arguments Concerning the Credibility of the Complainant

a. Lack of Opportunity

[64] Ms. Shakeel argues that the complainant’s evidence is implausible because there was little to no opportunity for the accused to have committed the offences. She points to the evidence that the complainant attended school from 8:30am to 3:30pm each weekday and, in some years, had after school activities, and the evidence that the accused was away from the home from the early morning until dinner time each weekday for work. He also worked occasionally on a weekend.

[65] Ms. Shakeel also argues that it is implausible that the abuse would not have been detected by anyone, given that there were multiple people living in the home during the relevant period.

[66] I do not accept these submissions.

[67] It is not implausible that the abuse occurred after the accused returned home from work and the complainant was home from school or activities, or that it occurred on weekends. I accept the complainant’s evidence that the accused was home in the evenings and on most weekends and was able to get her alone in his bedroom. I also accept that, notwithstanding the fact that there were other children and adults in the house, no one questioned why the complainant and the accused, who occupied a father-figure position in her life, were alone together.

[68] Further, I accept the complainant’s evidence that there were a number of reasons why the abuse was not detected. I accept her evidence that that sometimes the abuse occurred when no one else was in the house, either because her uncle had taken her younger siblings to the park or somewhere else, or her mother was working. I accept her evidence that if others were in the house, the sexual acts happened quickly and the accused sometimes just pulled down his pants to his ankles and moved her underwear to the side, or her pants were lowered to her ankles.

[69] Finally, I accept her evidence that she feared getting “caught” because she believed she would be in trouble. The example she provided in her evidence reflects a reasonable basis for her fears. The complainant recalled one occasion when she and the accused were almost “caught” by her uncle. Her uncle knocked on the accused’s bedroom door when she and the accused were engaged in sexual acts. She testified that the accused pretended to be taking a nap and she hid in the closet. They remained quiet until her uncle left the area. A short time later, the accused left the bedroom. Shortly thereafter, her uncle came into the room and found the complainant hiding in the bedroom closet. He accused her of being a thief.

[70] When put in the context of the dysfunctional household the complainant lived in, it is not at all implausible that the abuse took place as often and for as long as the complainant described without the abuse being detected by anyone.

b. Inconsistencies

[71] Ms. Shakeel also argues there are inconsistencies in the complainant’s evidence which should raise concerns about the reliability and the credibility of her evidence.

[72] She points out that the complainant gave somewhat inconsistent evidence about where the incidents of sexual abuse took place. In examination in chief, the complainant recalled most of the incidents occurring in her parents’ bedroom. She stated that if no one was home, it could have happened anywhere in the house and possibly occurred in her bedroom or in the bathroom. However, she went on to testify that it is possible that all the sexual acts occurred in her parents’ bedroom and no sexual acts actually occurred in either her bedroom or the bathroom.

[73] In my view, this is not a significant inconsistency because I accept the complainant’s evidence that when she initially stated that some of the incidents occurred in the bathroom or her bedroom, she was likely remembering the bathroom as somewhere she went to clean up afterward, or spit, and her bedroom as somewhere where she hid the money after an incident of abuse. I accept her evidence that, to the best of her recollection, all of the assaults occurred in her parent’s bedroom. Moreover, the specific location of the assault is not a significant detail, in that it does not alter the core of the complainant’s evidence.

[74] Counsel also points out that the complainant testified that she remembered she was in grade 3 the first time that she received money for sex because she remembered her teacher at the time. However, she acknowledged in cross-examination that she had the same teacher in grade 1. Again, I do not consider this to be a significant inconsistency, given the specificity of the complainant’s evidence about the incident. She remembered the student involved, the teacher involved, and how much money she lost.

[75] She also argues that the complainant was inconsistent in her evidence when she testified that she stopped bringing her son to her mother’s home when she learned that the accused had moved back in. In cross-examination, she acknowledged that on the day of the incident at her apartment when the accused propositioned her, her son was at her mother’s home. I accept that this was an inconsistency in her evidence and that she was still bringing her son to her mother’s home after the accused moved back in. However, I accept that she, at some point, stopped bringing her son to her mother’s home. On her evidence, there were multiple reasons for this decision. Her son did not like going to his grandmother’s home. He also once walked in on the accused and the complainant’s mother unclothed and in bed. Whatever the reason or reasons were for not bringing her son to her mother’s home anymore, I do not find this point to be significant in assessing the credibility or reliability of the complainant’s evidence.

[76] Finally, the complainant was confronted with her statement to the police in which she stated that the accused would sometimes “sit” on the headboard of the bed in his bedroom during sexual acts. It was suggested to her in cross-examination that it is unlikely the accused sat on the headboard because the bed was positioned near a window, such that he might have been seen had he been sitting on the headboard during sexual acts.

[77] The complainant testified that the accused generally lay on the bed (which had a headboard), or he sometimes leaned on furniture, in particular a dresser with a mirror, during sexual acts, but that he did not sit on the headboard of the bed.

[78] The complainant may have misspoken when she said in her statement that the accused sometimes sat on the headboard of the bed during sexual acts. It would not make sense, as the complainant acknowledged, that he would sit on a headboard which backed on to a window, creating a risk of being seen. However, I accept the complainant’s clarification that the accused positioned himself in different ways within the bedroom, including against furniture and on the bed, which had a headboard.

[79] Accordingly, I do not find there to be any significant inconsistencies in the complainant’s evidence that would detract from the credibility or reliability of her evidence.

c. Motive to Fabricate

[80] Turning to the Defence arguments that the complainant had a motivation to fabricate allegations, I begin by noting several relevant legal principles.

[81] The accused has no onus to establish that the complainant had a motive to fabricate the allegations: R. v. L.L., 2009 ONCA 413, at para 53; R. v. T.M., 2014 ONCA 854, at paras. 38-43; R. v. Lebrocq, 2011 ONCA 405, at paras. 18-21.

[82] As a matter of common sense, a proven motive to fabricate is an important factor in assessing the credibility of a witness: R. v. Batte, [2000] O.J. No. 2184 (C.A.), at para. 120.

[83] Where there is no apparent motive to fabricate, but the Crown fails to prove that there is no motive to fabricate, it is impermissible to move from an apparent lack of motive to fabricate to a conclusion that the complainant must be telling the truth: R. v. Bartholomew, 2019 ONCA 377, 375 C.C.C. (3d) 534, at para. 21; L.L., at para. 16.

[84] Ms. Shakeel suggested numerous potential motives for the complainant to fabricate allegations of abuse.

[85] She argues that the complainant resented her mother for many reasons, including that she did not tell her that the accused was not her biological father until she was 14 years old, her deficiencies as a parent in neglecting her, and her alcoholism throughout her childhood. The Defence also argues that the complainant was motivated to make false allegations against the accused as an act of revenge for not telling her that he was not her biological father.

[86] There is no question that the complainant had a difficult and complex relationship with her mother and the accused. She acknowledged that she felt neglected by her mother and that she was treated as an outcast in her family, labelled a liar and a thief. She testified that she resented her mother and the accused for not encouraging her to pursue swimming (for which she had a talent) and for “lots of other things”. She acknowledged that it was upsetting to her that her mother took her brother’s biological father to court to fight for child support, but she did not do the same for her regarding her biological father. The complainant also acknowledged that she felt betrayed by both her mother and the accused for not telling her that the accused was not her biological father.

[87] However, I do not accept that the complainant made up false allegations because she resented her mother or the accused. There is nothing to suggest that, after nearly two decades of living with the fact that these things happened to her as a child, the complainant was motivated to make false allegations against the accused out of raw spite or revenge. As she testified, she tried to suppress the memories and move on with her life. I accept her evidence that she sank into severe alcoholism in adulthood, in part, because she was trying to cope with what happened to her and suppressed the memories. The complainant’s evidence reflects that she was somewhat “resigned” to accepting that she suffered much unfairness and indignity in her childhood, not that she was waiting for an opportunity to get back at the accused or her mother.

[88] Ms. Shakeel also argues that when the complainant’s mother decided to resume her relationship with the accused, it jeopardized her relationship with her mother, which saw some improvement in the 10-year period that her mother had separated from the accused. The Defence suggests that the complainant may have made false allegations of sexual abuse against the accused to dissuade her mother from reunited with the accused.

[89] I do not accept this submission. It overstates the strength of the complainant’s relationship with her mother. I accept the complainant’s evidence that her relationship with her mother has always been, and will always be, “broken”, even if at times when the accused was not part of her life, they spent more time together. That is hardly a level of reconciliation that would motivate the complainant to make false allegations against the accused.

[90] However, even accepting that the fact that the complainant’s mother and the accused were getting back together played a role in the complainant’s decision to disclose the abuse to her mother, I do not see this as undermining the credibility of her evidence. On the contrary, I found her explanation for why she told her mother when she did to be very reasonable. She told her mother because she felt that she needed to know about the abuse she experienced as a child in order to make an informed decision about reuniting with the accused.

[91] I accept the complainant’s evidence that the decision to tell her mother was additionally influenced by the fact that, years after the abuse had stopped and she attempted to move on with her life, the accused again propositioned her for sex. The complainant testified that she was in her late 20s and living with I.B., when the accused, during a visit to her apartment, asked if he could perform oral sex on her. I.B. was not home at the time. I accept the complainant’s evidence that the incident in adulthood brought the memories back and made her feel like “the same little girl crying in her bedroom”.

[92] I.B. testified that when he came home, he found the complainant in the apartment, very upset. After a conversation with the complainant in which he learned what happened, he confronted the accused and directed him to leave their apartment.

[93] I accept the evidence of both the complainant and I.B. that the accused was intoxicated at the time.

[94] Ms. Shakeel suggests that I should have doubts about the credibility and reliability of the evidence that this incident occurred. She notes that the complainant was inconsistent in her evidence about when the incident occurred. She testified that she believed it was in 2019. However, she was taken to her statement to the police given in August of 2019, in which she stated the incident at her apartment occurred “2 years ago”. I.B. was also unsure of when precisely the incident happened, but he estimated it happened in 2019.

[95] I accept that the complainant and I.B. were both unclear as to when this incident occurred. However, their respective accounts about the accused being present at the apartment, intoxicated, and the complainant’s distraught state, were consistent. I have no doubt that this incident occurred and, in the context of her mother’s decision to rekindle her relationship with the accused, prompted the complainant to disclose the abuse to her mother. I accept that whether the incident happened in 2019 or 2018, or even as early as 2017, it was a factor in her decision to tell her mother about the abuse she experienced as a child so that her mother could make an informed decision about reuniting with the accused. I do not accept that breaking up the relationship was the goal, in and of itself. It was clear from the complainant’s evidence that she did not believe she had that sort of influence over her mother.

[96] Ms. Shakeel also submits that the complainant’s relationship with her brother improved after disclosing the assaults and suggests that her desire to have a better relationship with her brother may have provoked false allegations. I do not accept this submission. As the complainant testified, as adults, she and her brother enjoyed a good relationship. Each was present for important milestones in the other’s life, both before and after she disclosed the abuse to him. I do not see a correlation between the complainant’s relationship with her brother and her disclosure of the sexual abuse.

[97] Finally, it was suggested that the complainant was aware of potential compensation available to victims of crime prior to reporting the matter to the police. The complainant acknowledged being aware of funds available to victims of crime, however I do not accept that this raises concerns about the credibility of her allegations. The complainant was candid “anyone can benefit” from money, but that money does not change the impact these events have had on her life. There is no basis on the evidence to conclude that money played any significant role in her decision to disclose the allegations. In closing submissions, Ms. Shakeel did not strenuously pursue the argument that the complainant’s motivation was financial in nature.

[98] I therefore reject the suggestions that the complainant reported false allegations against the accused out of animosity toward her mother or the accused, to protect her relationship with her mother and/or her brother, or for financial consideration. In my view, the complainant’s explanation for why she disclosed the abuse to her mother, and then to the police, makes sense. Having lived her adult life without the accused in it for the most part, the events in her apartment when the accused propositioned her, and his return to her mother’s life prompted her to tell her mother about what the accused had done to her in childhood.

[99] I have no difficulty finding the complainant to be an honest witness who did her best to tell the truth throughout her evidence.

(iv) Reliability of the Complainant’s Evidence

[100] The complainant was candid in her evidence that she has difficulty with her memory, particularly for dates, times, and numbers. She was unable to recount the incidents of sexual assault in a chronological order and, by and large, could not recall the circumstances surrounding most of the incidents or what led up to a particular incident of sexual assault. She testified that, in general, she does not have a good memory for details. She acknowledged that she struggles to answer questions that require her to calculate back in years, to estimate dates or ages. She attributes this to having left school early and that she is “not good with numbers”. She also accepted that, while she is now sober, her years of alcohol abuse have not helped her ability to remember details.

[101] However, the question to be addressed is whether the limitations in her memory undermine the overall reliability and credibility of her evidence. In my view, they do not.

[102] It is important to note that the complainant does not have “recovered memories” in the sense that she has forgotten that these things happened to her. The complainant was very clear in her evidence that the memories were always there, she just chose to suppress the memories because they were disturbing. This is not a circumstance (nor did Ms. Shakeel assert) that the complainant’s memories are the product of suggestion that the complainant now believes to be real memories. There is also no evidence that anyone or anything contributed to the complainant’s memory of the things that happened to her. She is the sole source of the memory of things that happened to her.

[103] What is also important to recognize, in assessing the complainant’s evidence, is that the abuse was so consistent and regular, that it became normalized in her life. It was something that happened as a matter of routine, every time she wanted or needed money for something. She testified that she could not say how often the sexual acts occurred, but estimated it was on a weekly basis, unless her mother was willing to give her money on a given week and she did not have to ask the accused for money.

[104] I accept that as the abuse continued over the years, it was often not only one sexual act that took place during an incident. She described the incidents of sexual abuse as “like a ‘husband and wife’ thing” often involving foreplay and a combination of sexual acts. She testified, “Every single time things happened, it was like husband and wife. You get going and there’s foreplay – licking vagina, giving blowjobs, touching, sliding his penis between my legs. It happened as fast as possible, unless no one was home.”

[105] When put in context, it is not surprising, given the regularity of the assaults over a four-year span and the passage of time that the complainant is now unable to distinguish between one incident and another or recall each incident of sexual assault in a chronological or linear fashion. I accept the complainant’s evidence that the passage of time and her efforts to suppress the events in her memory for the past 20 years have made it difficult for her to remember precise events by date or details of the circumstances surrounding each incident of sexual assault. As she described it, her memory comes back to her in “flashes”, and “in bits and pieces” like “video clips” or “vine clips” and are now “all mashed up”.

[106] However, the details she can remember are detailed, coherent and very vivid and, in my view, are reliable and credible evidence of what happened to her. I have already reviewed the evidence in detail and will not repeat it in its entirely, but areas of her evidence which I find to be particularly compelling, credible and reliable, and which I accept, include:

• the complainant’s account of being unaware, at the age of 9, of how to perform oral sex and the accused’s instruction that she should “suck it like a spaghetti string”;
• the specific terms of payment set out by the accused ($60-70 if she performed oral sex on him, but more money if she swallowed his ejaculate;);
• her recollection of the taste;
• her recollection of the specific brands and packaging of the butter and margarine the accused’s used as lubricant during sexual contact;
• her recollection of having her first orgasm during an incident of sexual abuse with the accused;
• her recollection of developing itchiness in her vaginal area, resulting in her mother taking her to see a doctor;
• her recollection of being “nearly caught” by her uncle during an incident of sexual abuse, hiding in the closet, and being found by her uncle;
• her memory of having some of the first monies she received for sexual acts being taken from her at school, when a school mate “found” a $100 bill which she brought to school;
• her recollection of sometimes hiding the money she received inside a teddy bear, as she has seen on a television show;
• her recollection of being singled out and wondering why she was the only one in the family who was being targeted with the abuse.

[107] In my view, there is a strong basis to conclude that the complainant’s memories are reliable. Although she may be unable to remember every incident as distinct from the other, there are multiple examples of memories she can remember that contain unusual, distinct, or memorable details. I find, notwithstanding her memory limitations, that the complainant’s evidence is reliable.

VI. Conclusion

[108] I am satisfied that the Crown has proven, beyond a reasonable doubt, that the incidents of sexual assault occurred, in the manner described by the complainant.

[109] I find the accused guilty on all counts.

R. Maxwell J.

Released: October 27, 2023

COURT FILE NO.: CR-20-40000175-000 DATE: 20231027 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – J.S.M.

REASONS FOR JUDGMENT Justice R. Maxwell

Released: October 27, 2023