Court File and Parties

COURT FILE NO.: CR-21-30000468 DATE: 20231127 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING – and – S.S. Accused

Counsel: Rhianna Woodward, for the Crown Yonatan Eshetu, for the Accused

HEARD: April 25, June 1 and 2, July 27 and 28, 2023

Pinto J.

Non-Publication order under s. 486.4

An order is in place directing that any information that could identify the victim or witnesses shall not be published in any document or broadcast or transmitted in any way.

Reasons for Judgment

Overview

[1] This 5-day judge-alone trial concerned the question of whether S.S. involved his biological daughter B in sexual activities when she was between the ages of 5 and 8 years old.

[2] Given the nature of the proceedings and the non-publication order under s. 486.4 of the Criminal Code, I shall refer to the complainant, the defendant and the witnesses by their initials.

[3] All three charges against S.S. relate to the approximate 3-year time period from April 1, 2017 to April 30, 2020, in the City of Toronto, and are summarized as follows:

1. That S.S. did, with a part of his body, for a sexual purpose, directly or indirectly touch the body of a person under the age of 16, namely B, contrary to s. 151 of the Criminal Code (“Sexual Interference”).
2. That S.S. did, for a sexual purpose, invite a person under the age of 16, namely B, to directly or indirectly touch with a part of her body, namely her hands, the body of S.S. contrary to s.152 of the Criminal Code (“Invitation to Sexual Touching”); and
3. The S.S. did make available sexually explicit material to a person, namely B, who was or was believed to be under the age of 16, for the purpose of facilitating the commission of an offence under s. 151, s. 152, and/or s. 271 of the Criminal Code, contrary to s. 171.1(1)(b) of the Criminal Code (“Making Sexually Explicit Material Available to a Child”).

[4] S.S. is separated from B’s mother A.F. They were never married.

[5] B spent weekends or alternate weekends with her father via an informal parenting arrangement. In May 2020, when B was 8, she became reluctant to spend time with her father. One night, she told her mother that her father made her masturbate him. Subsequently, she said that her father placed his penis in her mouth, made her watch pornographic videos and, on one occasion, licked her vagina.

[6] S.S. denies the allegations. He submits that B’s allegations were fabricated and motivated by her desire to spend more time with her mother. S.S. argues that B’s knowledge and graphic description of sexual activities were gleaned from an occasion when she entered a bathroom without knocking and saw him masturbating; and from other occasions when she used his cell phone without permission and stumbled upon pornographic videos.

[7] It is imperative to keep in mind that a criminal trial is not a credibility contest, in which I pick the version of events I prefer. Nor is it a matter of which account I think is more likely. At all times, the Crown’s job to establish S.S.’s guilt beyond a reasonable doubt. Again, my task is not to choose between the two competing versions of events: R. v. S. (J.H.), 2008 SCC 30, [2008] 2 S.C.R. 152, at para. 9. If after a careful consideration of all the evidence, I am unsure if S.S. committed the offence, then I must find him not guilty.

[8] At trial, B and her mother A.F. testified on behalf of the Crown. S.S. and his mother, K.S., testified for the Defence.

[9] For the reason that follow, I find S.S. guilty of the offences as charged.

The Evidence at Trial

Evidence of A.F.

[10] A.F., now 29, is B’s mother. She works at an outpatient clinic. For the past year and a half, she has lived with her partner, his parents and B in a house.

[11] She testified that she has known S.S. since 2009 when they met in high school. They were a couple from 2009 until the summer of 2013, about one year after their daughter B was born on April 2, 2012. They lived together with A.F.’s mother and brother for about 6 months after B was born. Then, S.S. moved out to live with his mother and his two brothers.

[12] After they separated, S.S. came by whenever he wanted to see B. This occurred a couple of times a week, nothing was really structured until about two to two and a half years after their separation. Thereafter, B would be dropped off at her father’s place every weekend starting on Friday. Sometimes, S.S. checked in during the week to see how B was doing. A.F. communicated with S.S. via his mother’s cell phone.

[13] A.F. described her relationship with S.S. after their separation as young parents trying to learn to co-parent. Sometimes, S.S. would ask if he could pick B up after daycare during the week to make up for parenting time. A.F. was fine with that. There was no court order in place to direct their parenting arrangement. However, there has been a court order that governs parenting time since 2021.

[14] A.F. testified that, until the time of B’s allegations, she felt good to have S.S. on her side because B had been struggling with a few things, and she could rely on S.S. and his mother to help her out.

[15] A.F. testified that “before the Winter of 2020”, B started getting upset about going to her father’s place. This went on for months and got considerably worse.

[16] At the beginning of 2020, B was 7 years old. B had been complaining about some stomach pains and some issues with school and her friends. The school started her on to some counselling around February or March 2020, before the Covid-19 pandemic began.

[17] Around this time, B’s parenting arrangement changed via B remaining at her mother’s place on Friday and only going to her father’s place on the Saturday and returning, as usual, on the Sunday. The reason was that B felt that she was not spending enough time with her mother. A.F. had a long commute to work, so she would only have the weekday mornings and evenings to spend with B. As B became increasingly upset about having to visit her father, the parents decided to have B spend alternate weekends with him.

[18] A.F. testified that she first learned of B’s allegations on a Tuesday in May 2020. B started to complain about going to her father’s place. It was unusual for her to start complaining about this so early in the week. After some prodding, B told her that sometimes S.S. would go into the bathroom and say that he was going to “do his thing.” B mentioned something about a rubbing motion. And she mentioned that her father would watch videos of men putting their private parts in women’s mouths. A.F. testified that B was afraid of getting in trouble because her father told her not to say anything. A.F. called the police because she knew it was not something that she could do anything about. The police attended her residence and took statements from her and B. The next day, May 7, 2020, A.F. and B gave formal statements to the police.

[19] Subsequently, in June 2020, B told her mother that there were more things that happened with her father: S.S. had put his private part in her mouth and stuff would come out; he blindfolded her; once she was sitting on his lap and he told her that she was to bounce up and down and say “Twerk that booty”; and he would put her head near his private part. B also wrote down that her father licked her private part.

[20] A.F. contacted Yvonne Gibbs from the Toronto Children’s Aid Society (“CAS”). A.F. and B gave second statements to the police on June 16, 2020.

[21] A.F. testified that she and B only had two conversations about S.S.’s illicit activities, once in May, the other in June 2020.

[22] A.F. produced a series of text messages from S.S. to her sent from his mother’s phone on May 7, 2020. One of the messages said, “[A.F.] I’m fucking begging you pleeeasse” and another said, “They are going to kill me [A.F.]! They said I’m going to be arrested. Pleeeeaseee.”

[23] A.F. testified that when B was around 4 or 5 years old, she had disclosed to A.F. that she sometimes felt S.S.’s penis near her bum. At the time, A.F. spoke to S.S., S.S.’s father and to B. B said that she was joking and made the allegation because she really did not want to go to her father’s place that weekend.

Evidence of B

[24] At the time of trial, B was 11 years old and completing Grade 5. She provided her testimony from a CCTV room with a testimonial aid.

[25] B testified that when she spoke to her mother in May 2020, it was the first time that she told anyone about what was happening with her father.

[26] B’s two video statements dated May 7 and June 16, 2020 were played in court, adopted by B, and entered into evidence pursuant to s. 715.1 of the Criminal Code.

[27] B testified that she was feeling a little nervous and sad the first day she spoke to the police. She stated that she did not tell the police about her father placing his penis in her mouth or licking her vagina at the first meeting because she did not like “telling my business to like random strangers and I felt really nervous that day.”

[28] B testified that she has always lived with her mother A.F. She agreed that she loves and trusts her mother and has always had a great relationship with her.

[29] At trial, B testified that when she was alone with her father, he told her that he was going to “do his thing.” This meant that he was going to rub his privates. She clarified that this meant his penis. He asked her to come into the bathroom and rub his privates with her hands. She recalls that she did this using one hand. In court, she demonstrated what she did by moving her cupped hand up and down in a vertical motion. She testified that something white came out of the end of his penis every time she did this. Initially, she said that this happened in the bathroom in the basement of her father’s residence. When this happened, she and her father were standing. Their clothing was on, but her father would “let his privates out.”

[30] In cross-examination, she stated that she rubbed her dad’s privates not only in the bathroom, but also one or two times on the bed in the basement.

[31] She testified that her father also made her rub his penis when they were in the bedroom of her father’s previous residence.

[32] She testified that her father also placed his penis in her mouth. She testified that “white stuff” came out of his penis and went into her mouth. When this happened, he was standing up and she was sitting on a bed. This oral activity also occurred at her father’s previous house. She testified that when her father’s penis was in her mouth, her father did not move but she moved her head back and forth.

[33] She testified that her father sometimes blindfolded her using a T-shirt. This happened in the basement of her father’s current house, and once in his previous house. After he blindfolded her, he put his penis in her mouth. He did not use the blindfold every time he made her perform orally. He did not tell her why he put the blindfold on her.

[34] She also testified that her father showed her videos of men putting their privates in people’s mouths. She did not remember how often she saw such videos.

[35] She remembered one time when her father was sitting on the couch and she was sitting on the bed and she saw such videos. Another time, they were both sitting on the couch and her father held his phone and showed her the videos. One time, her father showed her such a video and said that “his friend’s girlfriend was doing the movements” to his friend.

[36] She also recalled watching a show on TV and her father calling her and showing such a video. She testified that her father would give her a “mad, confused face” that made her feel scared.

[37] She testified that one time, while she and her father were lying in bed, her father licked her vagina. Her pants were off and she was not wearing any underwear. This happened just once when she was seven or eight years old. She was laying on her back and her father was right in front of her. He was wearing his clothes. She does not remember how long the incident lasted. She testified that she told her mother about the “licking” incident at the same time that she told her about the other sexual activities. She told her mother because it “just made [her] like really sad and angry and [she] couldn’t hold it in anymore.”

[38] She testified that there was a password on her father’s phone that she did not know. Her father put his password into his phone and let her use it. She did not have her own phone at the time. She only used her father’s phone to play games. An example of a game that she played was Subway Surfer, which she accessed by pressing an app.

[39] B stopped going to in-person school for a while starting mid-March 2020, due to the Covid-19 pandemic. Her mother started working from home. Prior to that, her mom would be at work for the day. She agreed that she did not really get to spend a lot of time with her mother during the school week.

[40] She testified that, back in Grade 2 during the 2019-20 school year, some of her friends had been mean to her and she started getting stomach pains. She told her teacher that her stomach hurt. She agreed that she started to get stomach pains whenever her classmates were being mean to her.

[41] In cross-examination, she testified that one of the times that she saw a video of “girls putting their mouths on male private parts”, she was on the bed watching a movie that her father had put on for her to go to sleep. She turned and saw a video on his phone with the oral activity. She agreed that, on that occasion, she accidentally saw the video and she only looked at it for a few seconds. But she added that, on other occasions, her father would get her to watch these videos.

[42] B did not remember accidentally walking in on her father when he was in the basement bathroom. She denied accidentally walking into a bathroom and seeing her father touching his private part with his hand.

[43] She denied that the last time that she was at her dad’s house she got into trouble for using her dad’s cell phone without his permission.

[44] She denied knowing the password to her father’s cell phone.

[45] She acknowledged knowing how to use a cell phone since she texted her dad using her mom’s cell phone, but she denied ever using her father’s phone other than to play games on it. In cross-examination, she was shown text messages between her and one of S.S.’s brother and the brother’s girlfriend. She agreed that, on that occasion, she was using S.S.’s phone to text but claimed that when she sent the text messages to S.S.’s brother, it was the only time.

[46] Ultimately, B testified that that it was more than 6 times that she touched her dad’s privates.

Evidence of S.S.

[47] S.S., 29, was born on February 3, 1994.

[48] He has no children other than B. For the last 14 years, he has been working at his father’s company in construction building houses. He has lived at his present residence, a bungalow on E street, for the last 7 years. He lives there with his mother and two brothers.

[49] Prior to that he lived in a 2-storey residence on D street. He lived there for about a year and a half to two years.

[50] S.S. testified that once he moved to E street, he switched to parenting B every weekend. This arrangement continued until mid-March 2020 and the start of the Covid-19 pandemic. That was when he and B’s mother agreed to bi-weekly weekend visits. This is because B had started complaining about not being able to see her mother since she got home very late from work.

[51] S.S. testified that he and B did arts and crafts together, went to parks or played basketball. They went for bike rides or B played on her own scooter. In summer, they went to recreational water parks, or skating in winter. They also watched YouTube channels.

[52] S.S. denied that he ever did anything sexual or inappropriate with his daughter. In particular, he denied:

• Exposing his penis to her
• Asking her to come into the bathroom to touch his penis
• Asking her to put his penis in her mouth
• Intentionally showing her pornographic videos
• Blindfolding her
• Licking her vagina

[53] He acknowledged that he used the phrase “I’m going to do my thing” in front of B, but he testified that it is something that he says to everybody such as when he is going out or leaving to smoke a cigarette.

[54] He testified that although B had her own bedroom on the main floor of the bungalow on E street, her bedroom was completely filled with her items and B refused to sleep in her own bed as she was too scared. In his bedroom in the basement, there was a futon in front of his bed that B was supposed to use, but she would get scared and jump into his bed.

[55] In his previous residence, she would also sleep in his bed.

[56] S.S. testified that, for the most part, B was a very good girl. But leading up to the time of his charges, he was taking a position on her behaviour and attitude as “she had a lying issue” and a “problem with going into people’s rooms without asking them and going to bathrooms.”

[57] He testified that, between 2017 and 2020 while his daughter was visiting him, he masturbated about once or twice a month in the basement bathroom adjoining his bedroom. B was either upstairs with his family, or in bed.

[58] S.S. testified that on just one occasion, B walked into the bathroom while he was masturbating. He believes it was wintertime, anywhere from November 2019 to March 2020, because it would get dark earlier and there was snow on the ground. He recalled that he had put on a movie for B, and she was supposed to fall asleep, but he had his phone in the washroom. He finished masturbating and cleaned up and when he turned to the side, he saw B peeking around a lamp near the bathroom door. He yelled at her and told her that she was not supposed to be in there. She started crying and said that she had heard a noise at the back entrance to the basement, and that she got scared and came into the bathroom. He told her not to do that again or he was going to tell her mother, and then told her that it was time to go to bed.

[59] S.S. testified that the very last time B stayed over, it was from a Saturday to a Monday. He stated that B got into some kind of trouble because he caught her using his phone when she had no permission to do so. It was either on the Sunday or Monday, close to lunch time. He had taken a shower and when he got out, he saw B on his phone. She put his phone down really quickly and made a surprised face. He asked her what she was doing, and she said “nothing.”

[60] He saw what B viewed on his phone which was that he had been watching pornography. He testified that, the previous night, after he was done masturbating, he cleaned up and put his phone down onto the countertop of the sink. He believes that he must have gone to bed but forgotten to take whatever he was looking at off his browser. He had a number of porn videos in his history. He forgot to close the tab. He believes that as soon as B would have pressed his phone, the porn videos would have popped up. The videos were of oral and vaginal sex. He testified that B got into his Samsung phone because she knew his password. His phone had no data service, and he would usually use his mother’s phone. But he used his phone whenever he had Wi-Fi. He would only use his phone for watching movies, Instagram and certain social media with his friends.

[61] Concerning B’s lying, S.S. testified that she had lied about taking one of his brother’s headphones when she went into his room, and had also lied when she was five or six years old by telling her mother that he had put his penis on her bum. He suggested that, if B felt his penis near her bum, it must have been unintentional when he rolled over fully clothed, as they slept together in bed.

[62] S.S. testified that, one or two months before he got charged, he and A.F. started arguing because they were trying to figure out what was going on with B’s school.

[63] He agreed that he had no problem, in March 2020, with reducing his weekend visits to every other weekend because B was saying that she needed more time with her mother.

[64] He described his relationship with B as having been good prior to the criminal allegations. They laughed and had lots of fun. She always told him that she loved him.

[65] He disagreed that it was irresponsible for him to masturbate on the other side of an unlocked bathroom door with his 8-year-old daughter in the next room. He said she was supposed to knock before she came into the room and she has her rules and knows what’s right and wrong.

[66] Ultimately, he disagreed with Crown counsel that B could not have come up with such detailed sexual allegations on her own.

Evidence of K.S.

[67] K.S., 51, is S.S,’s mother. She lives with S.S. in the bungalow on E street. She is not employed and is on disability. B is her only grandchild.

[68] K.S. saw B very weekend and latterly every other weekend.

[69] She has a very good relationship with B.

[70] She testified that, on one occasion, S.S. came upstairs and told her that B had just walked in on him in the washroom. She understood that to mean that B had seen his private parts. She indicated that the timing of this incident was “November, December to March 2020 – it was cold out.”

[71] She also testified concerning a different incident involving B that occurred on the last weekend that B visited S.S.’s house. It was a Saturday morning and S.S. had just gotten out of the shower. He had yelled at B, so she went downstairs to the basement right away. She asked what was going on and S.S. said that B was on his phone and looking at bad stuff. She said, “what?” and S.S. said pornography. She said, “oh no, that’s not good.”

[72] She testified that she did not talk to B about what B had apparently seen on her father’s phone. S.S. told her that 15 or 20 minutes later he told B that if she ever did that again, he was going to tell her mother, and they left it at that. She felt that B’s parents had their own lives and she was not going to interfere that much.

[73] K.S. testified that, while B had not walked into her room unannounced, B had done that to S.S.’s two brothers, and they had to tell B to knock before she goes in.

Position of the Parties

The Crown’s Position

[74] The Crown submits that it has proven all three charges beyond a reasonable doubt. The court should not be surprised that B's evidence came out in a piecemeal fashion. Such delayed or bifurcated evidence has not dissuaded other courts from convicting where the evidence has warranted it. It is well known that complainants in sexual assault or sex related matters often delay or parse out their allegations given the daunting challenge of confronting the perpetrator. Here, there are the additional circumstances of an 8-year-old child who finally decided to confront her biological father. It is not surprising that she delayed in doing so, or that her trial evidence given when she was 11 years old did not line up perfectly with her previous descriptions of the incidents.

[75] The Crown submits that B's detailed evidence could have only arisen from her being actually subjected to her father’s criminal conduct. It could not have arisen from the two incidents raised by S.S. which, in any event, were internally incoherent. Moreover, the Defence's central position, that B made up all the allegations to get more time with her mother, does not make sense given the cooperative relationship between B’s parents. It would make no sense for B to fabricate such serious allegations against her father when she could have simply requested more time with her mother.

[76] The Crown submits that S.S.’s evidence was self-serving, fabricated and contrived. The Crown pointed to discrepancies between S.S.’s evidence at trial and what he told the police. The Crown submits that, ultimately, S.S. provided an illogical and unbelievable explanation of how B was able to describe the various sexual incidents.

[77] The Crown described A.F., B's mother, as a fair and truthful witness who did not go out of her way to impugn her former spouse. By contrast, K.S., S.S.’s mother, was a witness whose testimony should receive little weight since K.S. depended entirely on what she had been told by her son.

[78] In sum, the Crown submits that B's evidence is credible and reliable and consistent with the preponderance of the evidence. The overall evidence is sufficient to convict S.S. of the charges beyond a reasonable doubt.

The Defence Position

[79] The Defence submits that the Crown has not proven the offences beyond a reasonable doubt as B's evidence is not credible or reliable. The Defence focuses on several inconsistencies in B's description of the alleged offences as between her May 7 and June 16, 2020 statements and her trial testimony. B added more complaints of her father's sexual impropriety as the criminal proceeding progressed.

[80] The Defence points out that in B's May 7, 2020 statement she only referred to her father asking her to rub his penis in the bathroom. She did not mention anything about being made to watch pornographic videos or perform fellatio. In fact, when given an opportunity to furnish more details in May 2020, she declined to do so. Then, in her June 16, 2020 statement, although B provided more incidents and details such as having to perform fellatio, she still held back on details that only emerged some 3 years later at trial. Notably, during her June 2020 interview, B was provided with multiple opportunities to fully describe what happened, but she apparently did not do so. In fact, she repeatedly confirmed that there were no further allegations. It was only at trial that B testified that "white stuff" came out of her father's penis, that he licked her vagina, and that he placed his penis against her bum. In both statements, B stated that her father only made her rub his penis in the bathroom, but at trial she testified that it also happened once or twice in bed.

[81] The Defence submits that there were further inconsistencies between what B told her mother, as described by her mother at trial, and B's own testimony. According to B's mother, B had complained in June 2020 that her father pushed her head toward his private part and that he told her when she was sitting on his lap to bounce up and down and say, "Twerk that booty." Yet, when B was cross-examined, she denied that her father did such things. Also, her mother testified that B said she was only joking about her father putting his penis against her bum when she was younger, yet B testified that she was being serious about this allegation.

[82] The Defence asserts that S.S. testified in an honest manner and that he provided a credible explanation about how B could have inadvertently gained knowledge of the various sexual acts. S.S.'s evidence of B surreptitiously entering the bathroom and observing him masturbating would explain where she learned of the sexual details underlying her allegations. Similarly, S.S.'s evidence of his coming out of the shower and catching B watching pornographic videos on his phone, because he had inadvertently left a browser open, also support his evidence that B obtained her knowledge accidentally and not from any inappropriate encounters with her father.

[83] The Defence maintains that B's motivation to fabricate the sexual allegations was to spend more time with her mother. The Defence submits that it is not necessary for the Court to find that B knew that her allegations would blow up into criminal charges. Notably, B told her mother of the allegations against her father a few days before Mother's Day 2020 which, in the normal course, she would have had to spend with her father.

[84] In closing, the Defence reminded the court about the high standard of proof required for conviction. A finding that S.S. may be guilty or is probably guilty is insufficient to satisfy the exacting criminal standard of beyond a reasonable doubt and should result in S.S.’s acquittal.

Relevant Legal Principles

Elements of the Three Offences

[85] On count 1, S.S. is charged with sexual interference of B. I must find him not guilty of sexual interference unless the Crown has proved beyond a reasonable doubt that:

a) B was less than sixteen years old at the time; b) S.S. intentionally touched B, either directly or indirectly; and c) the touching was for sexual purpose.

[86] It is uncontested that B was less than 16 at the material time, and that the nature of the alleged touching (placing his penis in her hand(s), placing his penis in her mouth and licking her vagina), if touching occurred, was for a sexual purpose. The only real issue is whether the incidents of touching took place at all in the manner that B described.

[87] On count 2, S.S. is charged with the offence of “invitation to sexual touching” contrary to s. 152 of the Criminal Code. The essential elements of this offence are that:

a) The person S.S. communicated with was under 16 years old; b) S.S. incited, counselled or invited the complainant to touch him; and c) The communication for touching was for a sexual purpose.

See R. v. Walls, 2023 ONSC 200, at para. 34.

[88] As with the offence of sexual interference (s. 151), the offence of invitation to sexual touching includes both a physical element (actus reus) and a mental element (mens rea). For the actus reus, it is important to note that invitation to sexual touching is an offence of communication, not assault. Actual touching is not necessary to satisfy the actus reus.

[89] With respect to the mens rea requirement, the Crown must prove beyond a reasonable doubt that the accused knowingly communicated with a child under the age of 16 for a sexual purpose, and intended either that the child would receive the communication as an invitation, incitement, or counselling to sexual touching or that there was a substantial and unjustified risk of such: R. v. S.O., 2021 ONSC 8410, at para. 43.

[90] On count 3, referring to the offence of “Making Sexually Explicit Material Available to a Child”, section 171.1(1)(b) of the Criminal Code states:

171.1 (1) Every person commits an offence who transmits, makes available, distributes or sells sexually explicit material to

(b) a person who is, or who the accused believes is, under the age of 16 years, for the purpose of facilitating the commission of an offence under section 151 or 152, subsection 160(3) or 173(2) or section 271, 272, 273 or 280 with respect to that person; or

[91] Given that B is S.S.’s daughter and that he knew her true age, there is no defence available that he reasonably but mistakenly thought her age to be 16 or greater. Hence, the actus reus question is whether the Crown has proven beyond a reasonable doubt that S.S. transmitted, made available, distributed or sold sexually explicit material to B. The mens rea question is whether S.S. knowingly as opposed to accidently did so, and whether he did so for the purpose of facilitating one of the listed offences.

Testimony of Child Witness

[92] One of the most prominent aspects of this case is that the complainant is a child. In R. v. D.F., 2023 ONCA 584, the Ontario Court of Appeal summarized how trial judges should approach such testimony:

[36] Finally, it is well established that the evidence of child witnesses must be approached in a common-sense manner, taking into account the age of the witness and the fact that children experience the world differently than adults. In particular, although children may not be able to recount precise details such as the when and where of an event with exactitude, “this does not mean that they have misconceived what happened to them and who did it.”: R. v. B.(G.), [1990] 2 S.C.R. 30, at p. 55.

Cases involving Sexual Allegations

[93] In R. v. T.A.A., 2023 ONSC 5150, Muszynski J. dealt with a case where the accused was charged with having sexual intercourse with his biological daughter. The trial judge made some general remarks at paras. 13 to 15 about cases involving sexual allegations that I find applicable to the present case:

Credibility / reliability

[13] Trials involving allegations of a sexual nature typically involve an assessment of credibility of witnesses. In R. v. G.(M.) (1994), 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

[14] In 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

[15] Trial 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.

W.D. Analysis, Reasonable Doubt and Credibility Assessment

[94] I am also mindful that I must comply with the analysis in R. v. W.(D)., [1991] 1 S.C.R. 742 (“W.D.”), at p. 758:

First, if you believe the evidence of the accused, obviously you must acquit.

Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.

Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

[95] I also accept that, in deciding whether the accused’s evidence leaves me with a reasonable doubt, I cannot consider the accused’s testimony in isolation from the rest of the case: W.D. at para. 27.

[96] In R. v R.D., 2016 ONCA 574, 352 O.A.C. 350, an important point was made about a judge not treating a trial as a credibility contest, but rather conducting a credibility assessment under the W.D. analysis and based on the reasonable doubt standard.

[19] In J.J.R.D., Doherty J.A. placed his point about the sufficiency of reasons in the context of the evidence as a whole and the reasonable doubt standard. The accused’s denial in that case, when “stacked beside” the complainant’s evidence and her diary entries, “did not leave the trial judge with a reasonable doubt.” And so Doherty J.A. explained that “an outright rejection of an accused’s evidence” may be “based on a considered and reasoned acceptance beyond a reasonable doubt of the truth of conflicting credible evidence…” (emphasis added [by the Ontario Court of Appeal]). In doing so, he addressed the need for the trial judge to be convinced that the conflicting credible evidence established the accused’s guilt beyond a reasonable doubt.

[20] The burden of proof point: a trial judge who says only “I reject the accused’s evidence because I accept the complainant’s evidence” risks being held by an appellate court to have chosen which of the two parties to believe and failed to determine whether, on all the evidence, the accused’s guilt had been proved beyond a reasonable doubt. That risk is what Cronk J.A. cautioned about in O.M. But, as O.M. also shows, a trial judge can still reject an accused’s evidence because either the complainant’s evidence or other evidence establishes the accused’s guilt beyond a reasonable doubt. Thus, J.J.R.D. and O.M. are entirely consistent.

Motive to Fabricate

[97] The final area of legal principles that I must be cognizant of is in the area of motive to fabricate. In R. v John, 2017 ONCA 622, 350 C.C.C. (3d) 397, Watt J.A. laid out the governing principles that I must follow:

[93] The law maintains a distinction between absence of evidence of a motive to fabricate and absence of a motive to fabricate. The former is not the equivalent of the latter, nor is the latter the same as the former: R. v. L. (L.), 2009 ONCA 413, 244 C.C.C. (3d) 149, at para. 44. Said in another way, it does not logically follow that, because a witness has no apparent reason to lie, the witness must be telling the truth: R. v. B. (R.W.) (1993), 24 B.C.A.C. 1, at para. 28. The fact that a witness has no apparent motive to fabricate does not mean that the witness has no motive to fabricate: L. (L.), at para. 44.

[94] Second, in the context of a witness’ motive to fabricate, evidence of a good relationship between the witness and the prospective accused does no more than reinforce the absence of evidence of a proven motive, not prove the absence of motive: L. (L.), at para. 45.

[95] In instructing juries on motive to fabricate, trial judges must avoid making any suggestion that:

i. an accused has an onus to demonstrate that a complainant or witness has a motive to fabricate evidence; ii. the absence of a demonstrated motive to fabricate necessarily means that there was no motive to fabricate; or iii. that the absence of a motive to fabricate conclusively establishes that the complainant or witness is telling the truth.

See, R. v. Batte (2000), 145 C.C.C. (3d) 449 (Ont. C.A.), at para. 121; L. (L.), at para. 48.

Discussion

[98] The starting point of my analysis is that S.S. is presumed to be innocent, unless and until the Crown has proven the offences against him beyond a reasonable doubt. It is not enough for me to believe that S.S. is possibly or even probably guilty. I must be convinced of his guilt beyond a reasonable doubt. As a standard, reasonable doubt does not require proof beyond all doubt, nor is it proof to an absolute certainty. At the same time, reasonable doubt lies far closer to absolute certainty than it does to a balance of probabilities.

The parents’ cooperative and amicable relationship

[99] I note that, after their separation, B’s parents had a relatively cooperative relationship concerning their parenting arrangement. Initially, after their separation, there was little structure to S.S.’s parenting time of B. He came by whenever he wanted to see her. This went on for up to 2-1/2 years after their separation. Then, roughly in 2016 or 2017, when S.S. moved into the bungalow on E street, B was dropped off at her father’s place every Friday for a weekend visit. B’s parents would have been in their early 20s. They did not involve family law professionals in their parenting issues. In fact, until the time of B’s allegations, A.F. felt good to have S.S. on her side and relied on him and his mother to help her out.

[100] At the beginning of 2020, when B was still 7 years old, she began to complain of stomach pains and had some issue with school and her friends. I find that there is no evidence that B’s stomach pains were related to her sexual abuse allegations. In any event, B’s school started providing her with some counselling, which began shortly before the onset of the Covid-19 pandemic in March 2020.

[101] Around this time, B’s parents mutually recognized that her mother’s long work hours and the weekly drop off at her father’s meant that B was not spending enough time with her mother. Significantly, S.S. did not put up any fight with respect to dropping one of B’s weekend visits with him and switching to alternate weekends.

S.S.’s contrivance of B’s lying issue

[102] S.S. testified that, for the most part, B was a very good girl. On his weekend time, they did a number of fun activities together. However, S.S. identified that B “had a lying issue” and a problem with “going into people’s rooms without asking them and going to bathrooms.”

[103] I find S.S.’s examples of lying to be revealing. The only examples that he could come up with were that she lied about taking one of his brother’s headphones and that she lied about telling her mother that he had put his penis on her bum. Whereas I was expecting a number of examples of B lying, I consider the first example entirely innocuous and the second surprising in terms of it being quite distanced in time from B’s 2020 allegations. S.S.’s inability to come up with more or better examples of B’s supposed “lying problem” is one factor that leads me to conclude that S.S. invented or exaggerated his two concerns about B to bolster his evidence at trial.

[104] I was struck by how upset S.S. seemed to be when he testified about B supposedly breaking the house rules by entering rooms or bathrooms unannounced. S.S. insisted, unreasonably in my view, that his 5- to 8-year-old daughter, “had her rules and knew what was right and wrong.” S.S.’s umbrage at B’s alleged conduct seemed contrived given that I consider it fairly routine behaviour for a young child to walk into a room or bathroom without knocking. Similarly, that S.S. had to reach back to an incident from 3 or 4 years earlier (telling her mother that he had put his penis on her bum) to explain how B had a lying problem, also seemed incongruous and contrived to me.

[105] Since I find that B’s lying problem was either invented or exaggerated, I find that, in reality, S.S. considered B to be a very good girl overall. As well, I find that, prior to B’s allegations, her parents had an amicable and cooperative relationship in terms of her parenting. My findings undercut one of the central pillars of the Defence position that B fabricated the sexual allegations against her father in order to spend less time with him and more time with her mother. The evidence suggests that there was no impediment to B, who had a good relationship with both her parents, to simply ask for more time with her mother. Unlike many separated couples, B’s parents were not in a dispute over the allocation of parenting time. In fact, about two months before B’s abuse allegations, her visits with her father had moved from a weekly to biweekly weekend arrangement. The willingness to be flexible went both ways. B’s mother was fine with S.S. visiting B during the week and, once again, all of this was done without the involvement of family law professionals. Accordingly, I disagree that there was a reason for B to fabricate a narrative that would result in her spending less time with her father.

B’s piecemeal allegations do not undermine her credibility and reliability

[106] I will move on then to the allegations themselves. I find that B described the allegations in a piecemeal fashion in her two police statements in 2020 and at trial, but the cumulative allegations are not inconsistent such that that they raise a reasonable doubt as to whether S.S. engaged in the prohibited conduct.

[107] As B’s mother explained, B started to get upset about going to her father’s place “before the Winter of 2020” when. This went on for months and got much worse. Initially, on May 5, 2020, B complained on a Tuesday about going to her father’s place at the end of the week. A.F. described B as upset and agitated. She kept on asking B what was wrong. B spoke of her father going into the bathroom and saying that he was going to “do his thing.” She mentioned a rubbing motion, and that her father would watch pornographic videos. I find that three reasons why B did not provide more details on that occasion are that her mother did not ask her anything further, that B was very upset and afraid of getting into trouble, and that her father had told her not to say anything further. A.F contacted the police and B gave her first statement on May 7, 2020. B’s first statement in May 2020 is consistent with what she told her mother a few days earlier.

[108] Subsequently in June 2020, B divulged more information to her mother including that her father made her perform fellatio, that he blindfolded her and that he licked her vagina. With respect to the licking allegation, B could not bring herself to describe it verbally and resorted to typing it into her mother’s cell phone.

[109] I find the Defence suggestion that B made up such serious allegations just to get out of spending time with her father to make little sense. First, accepting the Defence position at face value, it makes little sense that B would level a second and more serious set of allegations at a time when she had already been successful in her purported objective, to stop visiting her father. To be fair, it may have been the case that once B set down a path of fabrication, she felt compelled to continue. Or that she felt the termination of parenting time with her father was only temporary. However, there was absolutely no evidence that she was worried about having to revert to parenting visits with her father. The evidence is that by June 2020 the police were already involved, the visits with her father had stopped, and the whole matter was being taken very seriously. I fail to see, once again looking at the situation through the prism of fabricated allegations, what more B could have gained by a second and more serious set of allegations.

[110] Second, assuming the allegations were fabricated, why not launch them together for maximum effectiveness rather than spread them out? Third, again assuming B’s allegations were untruthful, why would B choose to verbally tell her mother about her father placing his penis in her mouth but write out the allegation that her father had licked her vagina. I find it far more likely that the licking actually happened and that this is why B was only able to describe this highly invasive incident in writing.

[111] I disagree with the Defence’s characterization of B’s evidence as inconsistent and therefore unreliable. I have summarized B’s allegations and the timing of them in chart form:

Allegation	First Statement May 7, 2020	Second Statement June 16, 2020	Trial in 2023
He rubs his private part in front of her		X
Gets her to rub his private part	X	X	X
Tells her not to tell her mother	X	X	X
Put his private part in her mouth		X	X
Blindfolds her with his T-shirt		X	X
He intentionally made her watch porn videos		X	X
He said H puts her dad’s private part in her mouth		X
White stuff coming out of end of his private part			X
He licked her vagina			X
He touched her bum with his private part			X

[112] In my view, there were no real inconsistencies in B’s evidence. At no point did she resile from her allegations that her father forced her to masturbate him, fellate him, and watch pornographic videos. The Defence claim that B did not mention anything about “white stuff coming out” of her father’s penis, or her father licking her vagina in her second police statement, yet mentioned these allegations at trial, should be placed in context with the fact that B told her mother about these incidents earlier in June 2020.

[113] The fact that B said in her second statement that the masturbation only occurred in the basement bathroom, but at trial testified that there were also one or two similar incidents in bed, is exactly the kind of excusable difference that brings to mind the Supreme Court’s comment in R. v. B.(G.), [1990] 2 S.C.R. 30, at p. 55, that “while children may not be able to recount precise details and communicate the when and where of an event with exactitude, this does not mean that they have misconceived what happened to them and who did it.”

[114] I am also not left in reasonable doubt about S.S.’s guilt by B’s failure to disclose all the details of her father’s sexual abuse on June 16, 2020 despite being repeatedly asked whether anything else happened. A review of B’s June second police statement indicates that she had disclosed a number of allegations that, if true, must have been bewildering for her to have experienced and humiliating for her to have disclosed. To use the words of the Ontario Court of Appeal in R. v. P. (D.), 2017 ONCA 263, I find it “perfectly plausible” that B would not cover every single allegation in her second police statement and that it would take B “more than one occasion to shed a burden that had been weighing on [her] for years.”

[115] I acknowledge that there were some inconsistencies between what B told her mother, as described by her mother at trial, and B's own testimony. At trial, B denied that her father pushed her head toward his private part, or that he told her when she was sitting on his lap to bounce up and down and say, "Twerk that booty." Yet she made such allegations in her second statement. Conversely, whereas B previously told her mother that she was only joking about her father putting his penis against her bum when she was younger, at trial she testified that this, in fact, happened. Given B’s conflicting evidence on these points, I cannot say with sufficient confidence that these incidents happened. However, B’s inconsistencies do not give me pause and introduce reasonable doubt about her core allegation (masturbation, fellatio, made to watch pornography). First, the allegations that give rise to the inconsistencies are at the less serious end of the spectrum; second, the nature of the allegations – her head towards his private part, bouncing up and down on his lap while being told to say, “Twerk that booty”, and her father’s penis touching her bum - are incidents which may or may not have occurred for a sexual purpose depending on the context. Third and finally, the inconsistencies could be a product of her foggy memory in the context of her being a child witness.

B’s evidence was compelling, logical and detailed

[116] Speaking of B’s evidence, I find that her narrative of what her father did was compelling, logical and detailed. I will address in further detail why I disbelieve the Defence contention that B could have come by her knowledge of sexual activity accidentally, but some of the factors that lead me to conclude that B was being truthful include:

a) B described and demonstrated in court what is easily recognizable as a masturbatory gesture by moving her cupped hand up and down in a vertical motion. She said that she did this to her father with one hand. b) She described that something white came out of the end of her father’s penis every time she did this. She is obviously referring to ejaculation. c) In her first police statement, she stated that when she rubbed her father’s private part it normally lasted “until like six or four minutes.” I took this evidence to refer to how long B said it took for S.S. to climax. This length of time does not seem unusual, such as if B had said a few seconds or over an hour. d) She referred to her father placing his penis in her mouth and that, while he did not move, she moved her head back and forth. The configuration that she described – him standing up and her sitting on a bed – is consistent with the sexual activity alleged. e) She also referred to the “white stuff” coming out of his penis both when she masturbated her father and when she was forced to perform orally. At trial, she did not remember where the “white stuff” went because she usually did it with her hands and did not really see. Once again, given the nature of ejaculation, this is an answer that comports with reality. f) At one point in her second police statement, B indicated that sometimes she said no when her father asked her in the bathroom to put his penis in her mouth, but then her father would say, “can you at least do it with your hand?” Again, I find this detail consistent with what an adult male may say when fellatio is declined. I struggle to understand how B could have made this up even if she did view some pornographic videos.

[117] There are other indications of B’s credibility in the evidence.

[118] In B’s second statement she referred to her father pretending that her friend H was involved in similar sexual activities with H’s father. Officer Hood asked B what her father said about H. B answered that her father said that H puts H’s dad’s private part in her mouth. I find this answer revealing. First, the nature of the deception seems beyond the ken of an 8-year-old and more consistent with an adult inveigling a minor, no less his own daughter, into sexual activity by suggesting that this is something that her friend was also doing with her own father. Second, I fail to see how B could have been inspired to come up with the idea to involve her friend H by inadvertently catching her father masturbating or by watching pornography on her father’s phone. In other words, B’s evidence regarding what her father said about her friend H is much more consistent with him actually having told her this, rather than it being something concocted by B.

[119] B consistently testified that her father told her not to tell her mother about their sexual activities. It would again seem improbable that B would have the wherewithal at 8 years old to fabricate this detail knowing that it would cast her father in a very negative light.

[120] While I do not place too much stock on demeanour, I do not discount it entirely. B provided her evidence in a manner that was consistent with the difficult and embarrassing sexual allegations made against her father. She was not glib or overly dramatic in her testimony. She did not hesitate for long periods of time before answering. She did not appear to be feigning her ignorance when she stated that she did not know what “masturbation” or “pornography” meant. She paused and became emotional when giving descriptions of particularly invasive behaviour such as when she said her father licked her vagina.

[121] As I conclude my assessment of B’s evidence, I must remind myself that:

a) It does not logically follow that, because B had no apparent reason to lie, she must be telling the truth. b) The evidence of B’s good relationship with her father does no more than reinforce the absence of evidence of a proven motive to fabricate. It does not prove the absence of motive. c) S.S. has no onus to demonstrate that B had a motive to fabricate evidence. The burden remains on the Crown to prove the essential elements of the charges beyond a reasonable doubt.

A.F was credible and reliable as well

[122] Before I move to my analysis of S.S.’s evidence, let me make a few observations about B’s mother A.F. and her testimony. I find A.F. to be a credible and reliable witness. Defence counsel did not suggest that she testified inconsistently. Rather than castigate S.S.’s parenting, A.F. testified that it was good to have S.S. and his mother on her side. Upon learning of B’s allegations in May 2020, A.F. promptly contacted the police to conduct an investigation and, upon learning of further incidents from B in June 2020, she contacted the CAS. There was no suggestion from the Defence that B was put up to any of this by her mother. I accept A.F.’s evidence that she only had two conversations with B about the allegations against her father.

S.S.’s testimony was problematic

[123] I find that there were major problems with S.S.’s testimony.

[124] In his statement to the police concerning how B apparently entered the bathroom while he was masturbating, he described B as having “stormed right into the washroom.” Yet at trial, he described B as “sneaking into the bathroom and peaking around a lamp.” When given the opportunity to explain this discrepancy, he explained that the police officer’s questions were “brought to [him] very fast and quick” and that he had no time to think of the answers. Later, he agreed with the Crown that storming in is an accurate description of B sneaking in and “in different words that’s just the way I speak.”

[125] I find that “storming in” and “sneaking in” have very different meanings and that S.S.’s inconsistency in describing the scenario was more likely the result of him having invented the entire incident.

[126] Also regarding the “masturbation incident”, S.S. was asked questions about the configuration of the basement bathroom and about where he was standing relative to where B entered the bathroom without his knowledge. The bathroom door did not have a lock. S.S. confirmed that he was facing the toilet area, which would mean that his back was facing the entrance to the bathroom. I find that it would have been virtually impossible for B to have observed the front side of S.S.’s body and the fact that he was masturbating. Leaving aside what knowledge B may have obtained from viewing pornographic videos, S.S.’s evidence of where and how he was standing in the bathroom suggests that B would have had great difficulty seeing “white stuff” coming out of the end of his penis. I find S.S.’s narrative of B being inspired to fabricate allegations of sexual abuse because of what she learned in a single bathroom encounter to be highly improbable.

[127] S.S.’s testimony at trial about how he came out of a shower and observed B on his phone contradicted the evidence that he gave in his police statement. In the statement, the officer advised S.S. that B had mentioned watching some adult stuff on a cellphone and questioned what he knew about it. S.S. answered that he told B that she can’t just be going into people’s phones.

[128] When the officer asked S.S. what he actually saw on the phone, he stated twice that he did not know. Next, the officer commenced a question, “Do you...” and S.S. interjected “I just shut it down quick. Boom.” Yet, at trial, S.S.’s evidence was that when he emerged from the shower B made a surprised face, so he immediately knew she was on his phone. He asked her what she was doing, and she said, “nothing.” He checked his phone and saw what B had viewed on his phone. He had 5 to 10 adult videos in his history. The videos contained images of oral and vaginal sex.

[129] I find S.S.’s answer at trial, that he checked and knew what was on his phone, to be very different than the answer he gave in his police statement, which was that he did not know what was on the phone and that he “shut it down. Boom.” Notwithstanding S.S.’s testimony that he had just caught his 8-year-old daughter watching pornography on his phone, his evidence was that he did not change his password because he had already spoken to B about the issue. S.S.’s suggestion that B’s surreptitious use of his phone, in combination with the one-time “masturbation incident”, provided her with the knowledge to fabricate sexual allegations against him beggars belief. The inconsistencies in S.S.’s evidence involved material matters about which an honest witness is unlikely to have been mistaken.

Conclusion

[130] Harkening back to the W.D. analysis, I disbelieve S.S.’s testimony that he did not sexually abuse his own daughter. I am not left in reasonable doubt by S.S.’s evidence and, based on the evidence that I do accept, I am convinced beyond a reasonable doubt of SS’s guilt concerning the essential elements of the three offences involved.

[131] I find S.S.:

• On count 1, guilty of sexual interference of B;
• On count 2, guilty of invitation to sexual touching; and
• On count 3, guilty of making sexually explicit material available to a child, namely B.

Pinto J. Released: November 27, 2023