WARNING

The court hearing this matter directs that the following notice should be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:

486.4 Order restricting publication — sexual offences.

(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences:

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,

(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or

(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i) to (iii).

(2) Mandatory order on application.

In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and

(b) on application made by the complainant, the prosecutor or any such witness, make the order.

486.6 Offence.

(1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

Court Information

Date: November 30, 2012

Court File No.: Central East Region-Newmarket 09-10788

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

P.G.

Before: Justice Peter C. West

Evidence heard on: December 13 and 14, 2011; June 15, 2012; July 11 and 13, 2012

Oral Submissions heard on: October 30, 2012

Judgment Released: November 30, 2012

Counsel:

• Mr. R. De Chellis for the Crown
• Mr. L. Kinahan for the accused P.G.

WEST J.:

Introduction

[1] P.G. commenced his trial on a charge of sexual assault involving his step-daughter, when she was 12 to 15 years of age. The offence against P.G. is alleged to have occurred over a three and a half year period ending May 31, 2007.

[2] Originally P.G. elected to be tried by a judge and jury and a preliminary inquiry took place in the Ontario Court of Justice. When the matter was judicially pretried in the Superior Court it was consented to by all parties that P.G. re-elect his mode of trial to be tried by a judge in the Ontario Court of Justice.

[3] P.G.'s trial commenced, before me on December 13, 2011, with K.B., the complainant testifying in-chief. Her evidence in-chief continued on December 14 and the cross-examination had only just begun when Mr. Kinahan, on behalf of P.G., quoted from the complainant's personal diary, which he had possession of. The complainant became visibly upset, started to cry, and then asked if she could take a break. A short recess was called and the Crown provided the court with the decision of R. v. Shearing, 2002 SCC 58, [2002] S.C.J. No. 59; 3 S.C.R. 33, which dealt with a very similar circumstance, relating to the defence, in that case, coming into possession of the complainant's diary and its subsequent admissibility and use in cross-examination.

[4] The matter was adjourned on December 15, 2011 (a date originally scheduled for the trial) to May 7, 2012 for argument on the admissibility of the three diaries of the complainant in the possession of the defence. On June 7, 2012, I permitted cross-examination on specific portions of the diaries. The cross-examination of the complainant continued on June 15, 2012 and July 11, 2012. After the evidence of the complainant the Crown closed his case. Mr. Kinahan called P.G.'s wife, M.G., the complainant's mother. P.G. then testified on his own behalf.

[5] I have carefully reviewed my notes of the evidence of the witnesses, together with the transcripts of their evidence. I have also reviewed the exhibits that were filed and the oral submissions of counsel.

[6] This is essentially a "she said/he said" sexual assault case without any significant supporting or corroborating evidence. Credibility is the main issue in this case because the complainant and the defendant have given diametrically opposed evidence about the essential facts and circumstances surrounding the events that led to the charges against the defendant.

Factual Background

[7] The complainant's birthday is […], 1992. She has one sister, who was born on […], 1999. Her biological parents separated in January 2000. P.G. started dating the complainant's mother approximately a year to a year and a half after her father moved out of the family home. P.G. moved into the house where the complainant, her mother and sister lived in Pickering.

[8] P.G. and the complainant's mother were married in 2004 and the family moved to a bungalow […] McCowan Road in Whitchurch-Stouffville. It is alleged by the complainant that P.G. began coming into her bedroom on the main level of the house. He sat on her bed and she felt him touching her. Initially she thought she was dreaming and she was not sure if it was P.G. who was coming into her room where she was sleeping.

[9] As a result, the complainant described waking up earlier than her normal time of 6 a.m. and trying to see who was touching her.

[10] The complainant would squint her eyes and she saw that it was P.G. who was coming into her bedroom, sitting on her bed and touching her breasts under her clothes. He would do this for 10 to 15 minutes. She then began lying on her stomach to prevent P.G. from touching her breasts, but she would feel P.G. put his hands between the bed and her bed clothes, ultimately putting his hand under her clothes and touching the nipples of her breasts. P.G. would touch, grab and squeeze her breasts. He would also move his hand lower and he touched the complainant's pubic hair. P.G. was attempting to put his hand under her underwear to the top of her vagina. In order to get P.G. to stop, the complainant would fidget and she tried to give him signals that she was waking up. He never penetrated her vagina with his fingers.

[11] When P.G. did these things to the complainant, she never said anything to him and he never said anything to her. The complainant did not know any of the specific dates that P.G. came into her bedroom and touched her as she never recorded them, but she believed it started when she was in grade seven, when she was twelve. Most of what was happening occurred before the complainant moved to her father's house in May 2007.

[12] The complainant did not tell her mother about what P.G. was doing because she did not have a solid relationship with her mother and she believed that it would have been another thing that her mother would not show any interest in.

[13] The complainant testified that P.G. touched her breasts 10 to 12 times and touched her pubic hair three or four times. She was not keeping score, she did not take notes each time it happened and this is just a "guesstimate". It was not something that only happened one or two times.

[14] The complainant moved to her father's house in 2007 because she and her mother were not getting along; they were having a lot of fights. In the summer of 2008, she was visiting at her mother's house and she decided to stay. Around Halloween she was in the house alone with P.G. and he asked to speak to her in his car. He told her that he could not talk in the house because there was a recording device. In the car P.G. told her that he had overheard her talking to one of her girlfriends about a boy that she was seeing. P.G. told her that he thought "she looked so good that night at the party that he would've fucked [her]." He also told her that he had read her diary, which upset the complainant and freaked her out. The complainant testified she kept the diary hidden when she lived at her mother's house and that she changed the spots she hid it in all the time.

[15] In answer to a question by the Crown, the complainant testified that she never wrote in her diary about the sexual abuse done to her by P.G., as she did not want to recall what happened. The complainant gave this answer not knowing that P.G.'s defence counsel had possession of her diaries.

[16] The complainant told of an incident when she and her sister were fooling around and her sister pulled the complainant's tube top down. P.G. was sitting either next to her or he was in the room and he grabbed the top and told her to leave it there as he wanted to see. He did not want her to pull up her top.

[17] The complainant did not tell anyone what P.G. had done to her until her father's sister was visiting from overseas at Christmas 2008. The complainant was staying with her father during the Christmas break and she confided in her aunt about what P.G. had done to her. She asked her aunt not to tell anyone and her aunt agreed that what the complainant had told her would be kept in confidence between them.

[18] On February 6, 2009, the complainant was picked up after school by her father and he drove her to York Regional Police. During the car ride he would not tell her where they were going, he only said "it was because of P." She met with a detective who asked her if she had a conversation recently with her aunt. The detective asked if anything had happened with P.G. and the complainant testified she lied to the detective and said nothing had happened. She told the detective that her father and her aunt had ulterior motives for making up this allegation up. She testified that she lied because she was not ready to disclose that P.G. had abused her. She had been dragged to the police station by her father and she was not ready to talk about what had happened. She was not ready to talk about what P.G. had done to her with her mother and she was not ready to talk to a police officer or anyone else.

[19] The complainant testified that she told her mother the next day what P.G. had done to her previously. She told her mother that she had lied to the police when she told them nothing had happened. Her mother did not believe that P.G. had sexually abused the complainant and called her daughter a liar.

[20] Her mother and P.G. had planned a cruise, after the complainant's father had taken her to the police station in February 2009, to celebrate P.G.'s birthday. The complainant testified that she went on the cruise because everyone had their own room and there were eleven family members who went. She testified that after they returned from the cruise, it was difficult living with her mother and P.G., so she went to stay for a short time with her father. She was still upset that her father had taken her to the police without talking to her first. Eventually, in the summer of 2009, she moved in with her boyfriend's family. She disclosed to her boyfriend and his parents that she had been sexually abused by P.G. and they arranged for her to be seen first by a psychiatrist and then by a counsellor.

[21] As a result of her meetings with her counsellor, the complainant decided that she would speak to the police to tell them what had occurred when she was twelve to fifteen years of age. The complainant testified that she never told her counsellor the specific details concerning the sexual abuse by P.G. On November 10, 2009, the complainant met with a female York Regional Police detective and provided a second statement where she disclosed details of the sexual abuse by P.G.

[22] The complainant also testified that during the period of time P.G. was sexually abusing her, he would leave money on her pillow. He would leave her a $50 bill. This happened on a number of occasions. When she was older, she viewed this money as "hush" money.

[23] In cross-examination, the complainant testified that her relationship with her mother was not a healthy one. Further, she agreed that she probably expressed her anger about her mother a few times. This was in answer to a question by Mr. Kinahan that she considered her mother to be "the bitchiest, slut, whore, fucker, witch, two-faced lying bitch [you'd] ever fucking met." The complainant testified that she did not hate anyone; she did not agree with the way her mother was parenting her. Mr. Kinahan then had this exchange with the complainant:

Q. As far as you're concerned she could go to fucking hell and rot – rot there in misery. Right?

A. Not necessarily, no.

Q. Pardon me?

A. I don't agree with that, no.

Q. You were going to kill her.

A. No, I was not going to kill her.

Q. You were going to kill her and then you were going to kill yourself.

A. That's not true.

Q. Doesn't ring a bell at all?

A. No.

Q. The answer I was getting that from is actually getting it from your diary. Those are your words, ma'am. Ask (sic) me if this rings a bell to you, "Mom, I've come to realize it's not my mom I should be hating, it's me I should be hating. If I wouldn't…

A. Okay, can I take a break please?

Q. …answer back so much I would actually have a conversation with her."

[24] It was agreed by the Crown and Mr. Kinahan that an application would be brought by the defence respecting the admissibility and use to be made during the complainant's cross-examination of the three diaries, which were in the possession of the defence. The Crown advised that the authorization to retain a lawyer to represent the complainant had been given and May 7, 2012 was set for this issue to be argued.

[25] Cross-examination of the complainant continued on June 15, 2012 and July 11, 2012. The complainant testified that the times she could recall the sexual abuse clearly occurring were at the house on McCowan Road.

[26] The complainant agreed in cross-examination that she lied to the police officer in her November 6, 2009 statement when she told him that P.G. did not touch her at any time in her bedroom. The complainant agreed that she told the officer that P.G. always knocked before he came into her bedroom but this was a lie. It was the complainant's position that she provided extra information to make the original lie believable.

[27] She agreed that she told the officer that she and her father did not have a good relationship and that this allegation was all his doing to get back at her mother. She testified that it was easier to put the blame on her father as he was the one that took her out of school and brought her to the police station.

[28] The complainant agreed that the sexual abuse by P.G. occurred prior and subsequent to her going on a cruise with P.G. and his daughters in December 2005. The complainant testified that she was close to Mr. Gennaro's oldest daughter, A. Her mother did not go on the cruise with them. She testified that she felt comfortable going on the cruise because she was staying in a room with P.G.'s two daughters.

[29] The complainant agreed that she was excited about going on the cruise with P.G. and his daughters in December 2005. She did not remember if she was also kind of sad. She did not remember there ever being talk about P.G. moving out. She agreed that it would not make a lot of sense that she would be sad that the person molesting her was moving out. It would not make sense for her to wish the best for P.G. Mr. Kinahan then wanted to cross-examine the complainant about an entry contained in one of her diaries dealing with this issue; however, counsel for the complainant was not in attendance and it was necessary to obtain her position on whether the complainant would assert a privacy interest concerning this segment of the diary. Consequently, this area of cross-examination was adjourned for the Crown to ascertain Ms. MacEachen's position.

[30] Mr. Kinahan continued his cross-examination of the complainant on other areas. He referred her to the preliminary inquiry transcript, where she had indicated that the first time she realized that it was P.G. who was touching her, in her bedroom, it was the morning and the sun was already up. Her evidence during the trial was that the sun was coming up and there was light in her bedroom and she was able to squint her eyes and see that it was P.G. touching her breasts. It was K.B.'s evidence that the more occasions it happened she would be expecting that something was going to happen and she would wake up before he came into her bedroom. It was the complainant's position that P.G. did not do the exact same things at the exact same time on every single occasion he touched her. Her most vivid memory was his hands being on her breasts. These events occurred more than three years previously and the evidence she gave at the preliminary inquiry was two years ago, so she could not recall exactly what she had said then.

[31] The complainant testified that Mr. Kinahan's questions were assisting her in remembering some of the things that she observed P.G. do, like standing in her room before he would come to the bed and begin touching her. Mr. Kinahan then had this exchange with the complainant:

Q. And is that recollection because of what I just read to you that you said back in 2010?

A. It could have brought back some things, yeah.

Q. Could have brought back some things?

A. Brought back the memories that I've been trying to shove out of my mind for the last eight years, yes.

Q. Or could it be just that oops, I said it before so I better agree with it now?

A. Right, of course.

Q. Pardon me?

A. I said right, of course.

[32] In my view, the last two responses by the complainant were said in a very sarcastic tone and were not an acknowledgement of Mr. Kinahan's suggestion.

[33] In her evidence in-chief, K.B. related an incident where she and her sister were fooling around and in the course of this K.B.'s tube top was pulled down exposing her breasts. She testified P.G. was in the same room and he actually reached out and grabbed the top and pulled it down. This was a vivid recollection that she had. Mr. Kinahan then pointed out to K.B. that in her statement to Detective Waite, on November 10, 2009, she said that P.G. came into the room after her sister pulled down her top and, when she was attempting to pull it up, P.G. said to her to leave it so he could see. She agreed that she had not told Detective Waite that P.G. had actually physically prevented her from pulling the top back up and that this was a pretty big part to leave out.

[34] The number of times she testified that P.G. came into her room and touched her is a guesstimate. She did not remember each occasion in detail nor did she recall the specific dates that each incident occurred. She agreed that she did not call out for her mother and she did not jump up and run out of her bedroom. She agreed that she never said anything to P.G. and he never said anything to her.

[35] On July 11, 2012, Mr. Kinahan resumed his cross-examination concerning entries in K.B.'s diary surrounding the cruise she took with P.G. and his daughters after Christmas 2005. At the time Mr. Kinahan first asked her questions about these entries she did not recall what she had written. She had an opportunity to re-read those portions and she now knows what she was referring to in those entries.

[36] The following is the entry in K.B.'s diary on December 8, 2005:

I'm going on a cruise. O.M.G. I'm so excited like there are no words to describe 23 days – 23 days and I'll be on a great big ship with A. surrounded by beauty and elegance and I cannot wait to leave this pit of shit LOL. On a sadder but in a positive note, [P.'s] moving out after the cruise so it'll probably most likely be the last time I see him ever again. But it's a good thing for him and I only want the best for his well-being. He's gone through so much abuse in his life to take on something like mom if he wants to live another ten or twenty years.

[37] She agreed that she made the above entry. She testified that she did not know at the time if she was thinking that it was sad that P.G. was leaving due to the importance of him being there in a financial way. Her mom always made it clear that it was important for P.G. to be there for them to survive. It was K.B.'s position that it would have been sad for that reason but it was positive because P.G. was molesting her.

[38] She testified that she could not know what was going through her head exactly when she wrote those words, and maybe that was not how she would have articulated it back then, but that is basically how she felt. She disagreed that she was sad about P.G. leaving other than being sad her family would not be financially secure anymore.

[39] She agreed that nowhere in that entry did she even remotely allude to having been molested by P.G. She agreed that she found money on her pillow that she now looked upon as a form of "hush" money. She testified that sometimes she would put in her diary that P.G. gave her money. On March 15, 2005 she wrote an entry that she won a bet for $50 from P.G. Another time she worked at P.G.'s shop and got paid $140, which she put in her diary. According to K.B.'s evidence, there were a few times that she worked at P.G.'s shop. It was K.B.'s position that she did not record every time she received money from P.G. in her diary.

[40] When P.G. asked her to go into his car there was no one at home. This was when he spoke to her about how she was dressed for Halloween, in 2008. She agreed that the suggestion by Mr. Kinahan that P.G. had told her words to the effect: "the way she was dressed that night, [he] would have fucked [her] if [he] saw [her] on the street," were similar to what she testified P.G. said but they were not the words he said to her. It was K.B.'s evidence that she confronted her mother about his comment right after it happened. Her mother then confronted P.G. The complainant disagreed that P.G. told her mother what he had said and her mother then confronted her about it. It was K.B.'s recollection that her mother and P.G. slept in separate rooms for a few days or a week, with her mother sleeping on the couch.

[41] Mr. Kinahan suggested to K.B. that a more accurate account of what P.G. said in the car to her concerning her Halloween costume was, "If I didn't know you and I saw you on the street I would want to fuck you." She maintained that P.G. told her, "She looked so good that night at the party that he would've fucked [her]."

[42] The complainant agreed that she called her mother from the police station on February 6, 2009 to tell where she was and why she was late coming home from school. She agreed that her mother thought she had been caught stealing and that was why she was at the police station. When she got home she told her mother that it was about P.G. and she needed to get some sleep and went straight to bed. She spoke to her mother either the next day or couple of days later. When she told her mother what P.G. had been doing to her, her mother did not believe her. K.B. disagreed that she did not tell her mother that P.G. had been molesting her. It was K.B.'s evidence that they were sitting in the kitchen and K.B. told her everything about P.G. molesting her. Her mother told her that she did not believe what K.B. was telling her.

[43] Prior to Halloween, K.B. elected to stay at her mother's house with P.G. while her mother went to Vancouver with her sister. This was in August 2008. It was her evidence that she spent most of the time with her boyfriend when her mother and sister were away. She agreed that on the Friday night, when her mother was in Vancouver, P.G. took her to her father's home and the three of them talked about K.B. moving back in with her mother, P.G. and her sister. This was at the end of August 2008 before school started. She agreed that she may have gone out to dinner with P.G. because he often took her out to dinner.

[44] In the summer of 2009, K.B. moved into the home of the parents' of her boyfriend, C.P.

[45] The complainant agreed that there were occasions that P.G. took her to the hospital because of panic attacks. She would be hyperventilating, fainting, and not present. Her mother never took her to the hospital. She would call P.G. because he had a car. She could not recall if P.G. had to carry her to the car from the house. She would have one of the attacks and then find herself in the hospital.

[46] K.B. testified that she always had a really bad relationship with her mother; there was always a lot of yelling, a lot of arguments and it was always a violent atmosphere when she was around her mother. It was not like that with P.G., who was quiet and easy going and he never made a fuss about anything. It is hard for K.B. to say he is a good guy or a bad guy because he is a molester. She agreed that on February 6, 2009 she told the police that P.G. was a really good guy.

[47] In a suggestion by Mr. Kinahan that P.G. only came into her room on one occasion and touched her to wake her up, K.B. testified that she did not think somebody would touch another person the way P.G. did just to wake them up. K.B. testified that a shake is very different from the touching P.G. was doing.

[48] K.B. denied telling her mother months after her first statement to the police that what she told them was untrue, that P.G. had molested her. She was not living with her mother months after her father took her to the police in February 2009. It was her position that she told her mother the next day, or a couple of days after her father took her to the police, that she lied to the police when she said that P.G. had not molested her.

[49] She disagreed with Mr. Kinahan's suggestion that P.G. never apologized to her in his car for what he had done to her.

[50] M.G. was married to P.G. in September 2004. She was previously married to N.B. and they had two daughters, K. and A. K.B. is currently 19 years old and A. is 13. M.G. first lived with P.G. and her daughters in Pickering for about a year and a half. The family then moved to […] McCowan Road in Stouffville in 2003. The first house on McCowan Road was 700 square feet. They lived in this house for six or seven years and then they renovated it and tore down the original house. The new house is 5000 square feet.

[51] M.G. works for P.G.'s company, P-M-G Die Cutting, which does paper die cutting for the advertisement industry. She has worked for P.G. since they first met, 10 or 11 years.

[52] M.G. testified that she first met P.G. at an auction where she was buying furniture. When she kicked her ex-husband out of the house, he took everything and she had no furniture and all the bills. She and her daughters slept on the floor for eight months until she finally got a job selling organic vegetables. Her separation from her ex-husband was not pleasant.

[53] M.G. testified that the relationship between K.B. and P.G. was good, as it was between P.G. and A.B. M.G. believed her relationship with K.B. was good before she married P.G. The complainant's relationship with P.G. was always better than between M.G. and K.B. As K.B. grew up their relationship went from good to not good to bad.

[54] M.G. described her marriage to P.G. as good and bad; they have fights but they love each other, it is a good marriage.

[55] K.B. lived with P.G. and M.G. until she was 13 when she moved in with her father. K.B. stayed at her father's house for about a year and then moved back with M.G. for about a year, but M.G. cannot be precise as to the length of time or the years.

[56] In the fall of 2008, M.G.'s relationship with K.B. was not good. M.G. recalls K.B. going to a Halloween party in 2008 wearing an extremely skimpy outfit. The outfit looked as if K.B. belonged on Jarvis Street, it was very low cut. M.G. was ashamed of what K.B. was wearing and did not approve of what she wore but did not say anything to her because it would only have resulted in a fight and argument between them. K.B. went to the party dressed in that outfit. M.G. could not recall how she got to the party.

[57] P.G. came to M.G. sometime after K.B. went to this Halloween party and told her that he did an awful thing. P.G. told M.G. that he had said to K.B. that he would have fucked her. M.G. could not recall if K.B. had said anything to her about P.G. making an inappropriate comment to her. She was furious with P.G., although she knew he was right, but he cannot say things like that to K.B. because she is still a kid. P.G. told M.G. that he was upset with how K.B. was dressed and M.G. believed he was trying to drive home the point of how indecent she looked. M.G. testified that this did not cause any difficulty between her and P.G. She did not recall if she ever spoke to K.B. about P.G.'s comment.

[58] She went to Vancouver once with her daughter A. in 2008 or 2009. They went to Vancouver for A. to take some acting classes for commercials and modelling. She did not offer the trip to anyone else in the family because it cost $10,000. K.B. stayed at the house with P.G. but she could have stayed with her father if she had wanted to.

[59] It was M.G.'s evidence that on February 6, 2009 K.B. did not come home on the school bus at the end of the day. She finally called in the evening to say that she was at a police station. M.G. testified that she said the following to her daughter: "Kathy, what on earth did you do? Did you steal anything?" Her daughter told her that she did not steal anything and that her father had taken her there. She was driven home some time later by her father and did not want to talk about what had happened and went to bed. The next day K.B. talked to her mother in the kitchen and told her that her father had taken her to the police station and two police officers had questioned her about whether P.G. had ever touched her inappropriately. She told M.G. that she told the police that P.G. had never touched her. M.G. testified that she was in shock and that at no time did K.B. ever tell her in the kitchen that what she told the police was a lie. M.G. testified that the trip to the police station was never brought up again.

[60] In February or March 2009 the whole family went on a cruise, 11 of them, to celebrate P.G.'s birthday on February 28.

[61] Mr. Kinahan then directed M.G. to the spring of 2009 and asked whether the February 6, 2009 trip to the police station was ever discussed. M.G. then testified that at some point in the spring of 2009 she was in her car with K.B. and K.B. told her that she had lied to the police in February and that P.G. had molested her. M.G. told her, "Kathy I don't believe you." M.G.'s relationship with her daughter was not good at this time; they were clashing on everything, from small things to big things. M.G. testified that she did not believe K.B. because she had lied on many prior occasions.

[62] M.G. testified that K.B. had a clock in her bedroom, which she set to wake herself up. If she was not getting up then either M.G. or P.G. would wake her up.

[63] In cross-examination M.G. testified that K.B. would get upset with her whenever M.G. did not do what K.B. wanted her to do, like taking her to the mall or to the movies or to a friend's house. If she did not do what K.B. wanted then she was the wicked witch of the west. If K.B. was putting on clothes that M.G. did not think were appropriate she would tell her to change them.

[64] Prior to February 2009 when K.B. went to the police station, M.G. testified that her relationship with K.B. was just the usual, not extremely bad, not extremely good, it was normal. After the cruise K.B. told M.G. when they were in the car that P.G. had molested her and M.G. told her that she did not believe her. M.G. denied telling K.B. that she was trying to rip the family apart; she only said to her, "I don't believe you, I can't believe you and I don't believe you." K.B. was still living at the McCowan Road house when this conversation took place. M.G. denied asking her daughter to leave the house.

[65] M.G. denied that K.B. told her on February 7, 2009 that P.G. had touched her inappropriately. When Mr. De Chellis suggested to M.G. that K.B. had told her about P.G. touching her inappropriately the next day after she was at the police station, M.G. said, "Why do you want to confuse me?"

[66] Around Halloween 2008, P.G. came and told her something he had said to K.B. that made M.G. very upset. She could not remember if K.B. spoke to her about P.G.'s comment first. She could not remember whether she ever spoke to K.B. about what P.G. said. She testified that she never kicked P.G. out of their bedroom because of his comment to K.B. M.G. agreed it was not appropriate for P.G., who was a father figure to K.B., to say "I would have fucked you" because of the way she was dressed; although, she thought K.B. looked like a hooker on Jarvis Street.

[67] M.G. disagreed with Mr. De Chellis' suggestion that P.G. had told K.B., when commenting on her Halloween costume, "You look so good even I would have fucked you." When Mr. De Chellis suggested that she would remember if her daughter had come to her and told her that P.G. had said this horrendous statement, M.G. then said that he was right and in that case it meant that K.B. never came to her and told her what P.G. had said.

[68] M.G. denied speaking to her daughter about P.G.'s comment; even after he told her what he had said to K.B. M.G.'s evidence, in cross-examination, was that she did not talk to K.B. about P.G.'s comment. When she was asked whether that was something a mother should have done, her response was that she did not have prior experience concerning such things. She testified that she was probably too ashamed. It was M.G.'s position that it was P.G.'s fault so he should fix it.

[69] M.G. testified that she talked with P.G. after he was charged by the police. They both believed the allegations were preposterous, that they were not true. M.G. testified she asked P.G. directly if he had ever molested K.B. and he told her that he had not.

[70] M.G. found K.B.'s diaries when they were unpacking boxes after the renovations and building of the addition on their house. She knew when she saw them that they were K.B.'s diaries. She did not give them to K.B. because she did not know where K.B. was living. She was the one who gave the diaries to P.G.'s lawyer because it was something written by the complainant. M.G. testified that she opened the first page and read the first two or three sentences of what K.B. had written. It totally disgusted her so she stopped reading and gave it to the lawyer to be used against her daughter, to help undermine what K.B. was saying against P.G. She does not believe what K.B. alleges P.G. did.

[71] M.G. did not agree that she would do or say anything to help P.G. She understands that a diary is a personal thing. She understands that a diary is typically an expression of a person's innermost thoughts. She had no idea how K.B. would feel about M.G. providing the diary to P.G.'s lawyer. She finally agreed that she knew her daughter would not be okay with M.G. giving the diaries to P.G.'s lawyer. She gave the diaries to the lawyer to show that K.B. was always upset with her and not P.G.

[72] M.G. agreed that without P.G.'s business none of the bills of the house could be paid. M.G. has worked for P.G. since she first met him.

[73] M.G. maintained that she usually gets up first in the morning, before P.G. She then testified that she always gets up before P.G. She would go into the kitchen to get P.G.'s breakfast ready and make coffee. Then P.G. wakes up and has his breakfast and takes his coffee to go. M.G. usually gets up around 6:15 or 6:30 a.m. M.G. described herself as a light sleeper, so if P.G. gets up in the middle of the night to use the washroom, she wakes up. However, P.G. never gets up in the middle of the night as he does not have a prostate problem.

[74] She disagreed that it was impossible for her to say that P.G. had never gotten up before her and left their bedroom.

[75] M.G. denied that she would lie about anything K.B. may have said to her about P.G. She denied that she would do anything to ensure that the provider of the family did not go to jail and become a sex offender.

[76] She agreed that when K.B. called her from the police station her first thoughts were not, "Are you okay, did somebody hurt you?"; rather, her first thought was "What did she do?"

[77] In re-examination M.G. testified that when she found the diaries and opened one of them she did not open it at the first page, she opened it kind of in the middle.

[78] P.G. testified that he first lived with M.G. and her two girls in a house in Pickering. He had a good relationship with both K.B. and her sister. He observed that as K.B. got older she was always arguing and clashing with her mother regarding make-up, dress code and behaviour.

[79] P.G. is self-employed and owns a company that does die cutting for the graphic and printing industry. He has owned this company for 22 years. His business is located at Highway 7 and Woodbine in Markham.

[80] P.G. normally got up at 6:45 a.m. every morning. He would go upstairs, have a quick shower and shave and M.G. would be right behind him and when he came out of his shower he would have bagels and coffee that M.G. prepared. M.G. and P.G.'s bedroom was in the basement at the McCowan Road house. He did have occasion to wake up K.B. in the mornings. He would knock on her bedroom door, which was on the main level, and he would yell outside the door, "K., it's time to get up, are you going to school?" She would answer, "Yes, I'll be up in a minute." He would then leave her alone.

[81] If she did not respond he would yell louder, knock again on the door and then enter her room and try to shake her shoulder or shake the bed until she responded. Then he would leave her room. This happened on occasion. He would only shake her for a second or two, just to get her attention.

[82] P.G. denied ever fondling K.B.'s breasts. He denied ever touching or putting his hands around her vaginal area. He never went into K.B.'s bedroom between 5 and 6 a.m. to touch her. It is possible that on one occasion he accidentally touched K.B.'s breasts. He remembered one occasion when she was not responding to his knocks on her door so he went into her room. K.B. was wrapped up in her blankets, head to toe, and he shook her but did not know if he touched her shoulder or her breast as he was not even sure the way she was laying down. Her face was covered as well. He touched her solely for the purpose of waking her up.

[83] P.G. denied ever reaching under her covers to touch K.B. He never reached under her clothes to touch her.

[84] He did give K.B. money. He also gave her sister money. He has left money on K.B.'s pillow for the tooth fairy, change, money for the loss of a tooth. He would leave two, three or four dollars. He never left $50 on her pillow. He has given her $50 for a bet they made about a TV show and who the particular actor was who starred in it. He loaned her $50 once and he has given her more than $50 for working for him at his business. He never gave K.B. money to keep her quiet because he was touching her inappropriately.

[85] When they moved to McCowan, K.B.'s relationship with her mother was "pretty bad." They were always clashing, yelling and arguing.

[86] In 2008 M.G. went to Vancouver with K.B.'s sister. K.B. stayed at the house on McCowan with P.G. On the Friday night of M.G.'s time away, he and K.B. went to visit her father in the city concerning K.B.'s school. They also went out to dinner together on two of the evenings M.G. was away. M.G.'s relationship with her ex-husband, N.B., was very bad.

[87] During Halloween 2008, K.B. was living with P.G. and M.G. on McCowan Road. She went out for Halloween and P.G. drove her to the party, which was in King City. She was wearing a very revealing costume. P.G. also picked her up from the same friend's house the next day.

[88] A day or two after the Halloween party P.G. had a conversation with K.B. about what she was wearing at the party. P.G. was in the barn next to their house and he picked up the phone. He overheard K.B. speaking to a friend of hers. He heard K.B. tell her friend that her boyfriend was mad with her because she was talking to another guy at the party. P.G. did not hang up when he realized K.B. was on the phone. P.G. also overheard K.B. thank her friend for covering for her so her parents never found out that K.B. was actually at another party. P.G. decided to speak to K.B. about this.

[89] The next day after hearing the call, P.G. asked K.B. to come outside and speak to him in his car as M.G. was home. He confronted K.B. about what she had done and told her it was not right for her to use him and M.G. as puppets to drive her here and there any time she was going somewhere else.

[90] He denied telling K.B. that the reason he wanted to speak to her in his car was because there were listening devices in the house. He also admitted telling K.B. that if he had not known her and he saw her on the street that he would have fucked her. He said this to her because of the way she was dressed and it was the first thing that came out of his mind, which he knew was the wrong thing to say as soon as he said it. K.B. was upset by what he said and she got out of the car and went into the house. P.G. went into the house and told M.G. what he had said to K.B. M.G. was very upset at him and told him that he should not say those things to a 13 or 14 year old. M.G. agreed that K.B. was not dressed properly, but told P.G. that he should not have said what he did and told him to apologize to K.B. He apologized to K.B. for what he said.

[91] P.G. denied ever apologizing to K.B. for ever touching her inappropriately.

[92] P.G. testified that at the end of 2005, leading into 2006, his relationship with M.G. was pretty shaky. The family was supposed to go on a cruise, he and M.G. and the two girls, but P.G. also wanted to take his kids too. M.G. thought it would be too expensive and P.G. decided to take just K.B. and his kids. M.G. was not happy with him. They had talked about separating. It was because M.G. and P.G.'s kids never clicked together, they never got along. There was always friction between M.G. and P.G. over his kids. K.B. knew that P.G. and M.G. were thinking of separating after the cruise because P.G. told her. K.B. felt bad because P.G. and M.G. could not make it work as they had a good life but he had to do what he had to do. The marriage did not end however.

[93] K.B. was very excited about the cruise. The cruise was excellent. He had one room with two bunk beds.

[94] In February 2009, K.B. lived with M.G. and P.G. on McCowan Road. She usually came home from school on the bus. On February 6, 2009, M.G. called P.G. at work and told him that K.B. had not come home on the bus. When P.G. arrived at home, M.G. told him that K.B. had called from the police station. K.B.'s father drove K.B. home later that evening. M.G. was trying to find out why she was at the police station but K.B. said she did not want to talk about it as she was tired and she went to her room. P.G. was not present for any other conversation that K.B. had with M.G. about why K.B. went to the police station.

[95] There was never an incident where K.B. and her sister were wrestling and A. pulled down K.B.'s tube top. He was never present when something like that occurred. He never said for K.B. to keep it down so her breasts were exposed. There was never an occasion when her top was down and P.G. physically stopped her from pulling it back up.

[96] There were at least three occasions that K.B. called him to take her to the hospital because she was sick. On one occasion she was dressed in pyjamas and another time she was only wearing her bra and panties and she was lying on the floor, sick to her stomach.

[97] P.G. denied ever touching K.B.'s breasts intentionally. He denied fondling them. He never reached between K.B. and the mattress to rub K.B.'s breasts. He never put his hand near her vaginal area.

[98] It was P.G.'s evidence in cross-examination that from the time they moved to the McCowan Road house until K.B. left in June or July 2009, his relationship with K.B. was very good. They only had fights over silly things such as not driving her to the store or he would not buy her the cosmetics she wanted. They never fought. K.B. had arguments with her mother that got out of hand. P.G. testified that he always got along with K.B.

[99] When P.G. left his bed in the morning his wife was right behind him. Most of the time she would walk right behind him. Sometimes he got up before her or she got up before him. There was no routine.

[100] He drove K.B. to the Halloween party and picked her up at the same friend's house the next day. He listened in on her call the next day. P.G. had no explanation for why he did not just hang up the phone when he realized that K.B. was talking to her friend. He agreed that her call was none of his business. He does not know why he did it but he did. He disagreed that the only reason he would listen in on a 16 year old girl's phone call was because he saw her as belonging to him. He agreed that he should have hung up immediately but he did not.

[101] It was the next day he asked her to come outside to speak to him in his car. He wanted to talk to her about the fact that she had been lying to her mother and P.G. about where she was going. He also wanted to let her know that the way she was dressed was very disgusting. He thought K.B. had already had arguments with M.G. about the way she was dressed.

[102] He did not want to speak to her inside the house because M.G. was home and he did not want to have to tell M.G. what he found out about the party. The reason he asked K.B. to sit inside his car instead of just standing outside was he just wanted to be sitting down. P.G. wanted K.B. to know it was not appropriate for her to be lying to M.G. and him. He spoke to her about how she was dressed because he had it in his mind and he just mentioned it to her. P.G.'s comment changed slightly to: "If I didn't know you and I saw you on the street I would want to fuck you."

[103] P.G. did not tell K.B. that he would not drive her to the Halloween party the way she was dressed. He had promised to drive her so whatever the circumstances were he drove her. She had an argument already with M.G. over the way she was dressed so P.G. did not want to upset K.B. anymore or push the issue.

[104] P.G. testified that he could tell when K.B. left his car after he said to her, "If I didn't know you and I saw you in the street I would fuck you," that she was appalled by what he had said.

[105] He agreed that he has known K.B. since she was a little kid. It was not an appropriate thing for him to say to K.B. but he did. It was after he said it that he knew it was an inappropriate thing to say. He did not agree that a father figure would only say such a thing to a female child if he saw the child as a sexual being. He denied that he had always seen K.B. sexually throughout his relationship with her and that was why he had touched her breasts and tried to touch her vagina.

[106] He denied that he took the opportunity in the morning when M.G. was sleeping to satisfy his sexual desires with K.B.

[107] P.G. agreed that it was inappropriate for him to have made a bet with a child and then actually pay out that bet when he lost. He then testified that it was not inappropriate for him to pay out on the bet because he had lost.

[108] The time he went into her room when she was covered head to toe and shook her and possibly touched her breast accidentally did happen. He does not know why he did not just shake the bed. He shook her and she said, "Okay, okay, I'm getting up now."

[109] He disagreed that he apologized to K.B. for touching her because he knew it was wrong. He never apologized.

[110] He agreed that M.G. has worked exclusively for his company for the past ten years and all the money that pays for their bills and built their new house came from his business.

[111] He was aware that M.G. found K.B.'s diaries. He was not aware that it would be upsetting to K.B. that M.G. provided the diaries to P.G.'s lawyer.

Position of the Parties

[112] Mr. De Chellis argues that there are six reasons why I should disbelieve the evidence of P.G. denying the allegations.

• P.G. testified after all of the witnesses testified and he tailored his evidence to conform to their evidence.

• P.G.'s testimony that he may have accidently touched K.B.'s breast on one occasion when he went into her room to wake her up for school, after she did not respond to his knocking on the door, and she was completely covered in her duvet cover. This evidence is contrived and implausible.

• The bet over a TV show was implausible and if it did occur this was another example of P.G. looking for an opportunity to give K.B. money so she would keep quiet.

• P.G.'s comment concerning K.B.'s Halloween costume demonstrates that P.G. saw K.B. not as a child under his care, but as someone to be sexually touched. The comment was completely beyond the realm of appropriate commentary and demonstrates the real character of P.G.

• No motive for K.B. to fabricate allegations against P.G. P.G. testified that he always got along well with K.B. Why would K.B. fabricate allegations to get back at her mother if she always got along with P.G.?

• P.G. listened in on a conversation K.B. had with her friend concerning the Halloween party. P.G. listened in to her conversation in order to control her.

[113] The Crown argues that I should reject the evidence of P.G. and that I should not be left in a state of reasonable doubt after considering his evidence in the context of the evidence as a whole.

[114] According to Mr. De Chellis, M.G. was a completely biased witness who was willing to say anything to help her husband, P.G. Her evidence that P.G. never got out of bed without her waking up is nonsensical and does not accord with human experience. I should reject her evidence as being completely unreliable.

[115] Mr. De Chellis submits that I should accept the evidence of K.B. and that her evidence was given in a straightforward and honest manner. Her evidence alone should satisfy me beyond a reasonable doubt of P.G.'s guilt.

[116] The defence argues that I should not accept the evidence of K.B. because she has admitted to lying to the police in her first statement. She told the police that P.G. had never touched her inappropriately, he always knocked before coming into her bedroom and that she had a good relationship with him.

[117] K.B.'s recollection of the alleged incidents and her interactions with P.G. and M.G. are very selective. There is only one negative entry in K.B.'s diaries concerning P.G. and her entry in December 2005 concerning P.G. separating from M.G. is completely inconsistent with someone who has been repeatedly sexually abused. Mr. Kinahan submits that K.B. has proven that she has no difficulty lying and misleading authority figures. If K.B. is able to lie to police in her first statement, how can I be sure that she is not lying in her second statement or in her evidence to the court?

[118] Mr. Kinahan urges me to accept P.G.'s evidence as he was not shaken in his cross-examination and he made admissions against his own interest that he did not need to make. What more can P.G. do but take the witness stand and testify that he did not touch his step daughter inappropriately?

[119] Further, it is the position of the defence that even if I do not accept P.G.'s evidence, either in part or all, I should still have a reasonable doubt when I consider the totality of all the evidence.

[120] Mr. Kinahan concedes that there are credibility and reliability issues with M.G.'s evidence; however, he argues that P.G. should not be found guilty because M.G. is a bad mother.

The Law

[121] Both Mr. De Chellis and Mr. Kinahan agree with the following statements of the law surrounding sexual assaults involving children.

[122] The incidents alleged by K.B. occurred when she was 11 to 15 years of age. She was testifying when she was 19 years of age. Mr. De Chellis drew my attention to R. v. W.(R.), [1992] 2 S.C.R. 122 the decision of the Court was given by McLachlin J. (as she then was) where she stated, at paras. 23-26:

…The law affecting the evidence of children has undergone two major changes in recent years. The first is removal of the notion, found at common law and codified in legislation, that the evidence of children was inherently unreliable and therefore to be treated with special caution. Thus, for example, the requirement that a child's evidence be corroborated has been removed: s. 586 of the Criminal Code, R.S.C. 1970, c. C-34, which prohibited the conviction of a person on the uncorroborated evidence of a child testifying unsworn, was repealed… The repeal of provisions creating a legal requirement that children's evidence be corroborated does not prevent the judge or jury from treating a child's evidence with caution where such caution is merited in the circumstances of the case. But it does revoke the assumption formerly applied to all evidence of children, often unjustly, that children's evidence is always less reliable than the evidence of adults. So if a court proceeds to discount a child's evidence automatically, without regard to the circumstances of the particular case, it will have fallen into an error.

The second change in the attitude of the law toward the evidence of children in recent years is a new appreciation that it may be wrong to apply adult tests for credibility to the evidence of children. One finds emerging a new sensitivity to the peculiar perspectives of children. Since children may experience the world differently from adults, it is hardly surprising that details important to adults, like time and place, may be missing from their recollection….

As Wilson J. emphasized in B. (G.), these changes in the way the courts look at the evidence of children do not mean that the evidence of children should not be subject to the same standard of proof as the evidence of adult witnesses in criminal cases. Protecting the liberty of the accused and guarding against the injustice of the conviction of an innocent person require a solid foundation for a verdict of guilt, whether the complainant be an adult or a child. What the changes do mean is that we approach the evidence of children not from the perspective of rigid stereotypes, but on what Wilson J. called a "common sense" basis, taking into account the strengths and weaknesses which characterize the evidence offered in the particular case.

It is neither desirable nor possible to state hard and fast rules as to when a witness's evidence should be assessed by reference to "adult" or "child" standards -- to do so would be to create anew stereotypes potentially as rigid and unjust as those which the recent developments in the law's approach to children's evidence have been designed to dispel. Every person giving testimony in court, of whatever age, is an individual, whose credibility and evidence must be assessed by reference to criteria appropriate to her mental development, understanding and ability to communicate. But I would add this. In general, where an adult is testifying as to events which occurred when she was a child, her credibility should be assessed according to criteria applicable to her as an adult witness. Yet with regard to her evidence pertaining to events which occurred in childhood, the presence of inconsistencies, particularly as to peripheral matters such as time and location, should be considered in the context of the age of the witness at the time of the events to which she is testifying. (Emphasis added)

[123] In R. v. D.D., 2000 SCC 43, [2000] 2 S.C.R. 275, the majority judgment by Major J. held, at paras. 62-63 and 65:

62 Today and for some time, the rationale in Kribs has been repeatedly subjected to criticism, is not followed, and has been overruled. The Report of the Federal/Provincial Task Force on Uniform Rules of Evidence (1982), at p. 301, as cited by Sopinka, Lederman and Bryant, supra, at p. 322, states:

The expectations of medieval England as to the reaction of an innocent victim of a sexual attack are no longer relevant. A victim may have a genuine complaint but [page304] delay making it because of such legitimate concerns as the prospect of embarrassment and humiliation, or the destruction of domestic or personal relationships. The delay may also be attributable to the youth or lack of knowledge of the complainant or to threats of reprisal from the accused. In contemporary society, there is no longer a logical connection between the genuineness of a complaint and the promptness with which it is made.

In response to this criticism, Parliament chose to abrogate the authority of Kribs and Timm by statute (see s. 275 of the Criminal Code, R.S.C., 1985, c. C-46).

63 Application of the mistake reflected in the early common law now constitutes reversible error. See R. v. W. (R.), [1992] 2 S.C.R. 122, per McLachlin J. (as she then was) at p. 136:

Finally, the Court of Appeal relied on the fact that neither of the older children was "aware or concerned that anything untoward occurred which is really the best test of the quality of the acts." This reference reveals reliance on the stereotypical but suspect view that the victims of sexual aggression are likely to report the acts, a stereotype which found expression in the now discounted doctrine of recent complaint. In fact, the literature suggests the converse may be true; victims of abuse often in fact do not disclose it, and if they do, it may not be until a substantial length of time has passed.

The significance of the complainant's failure to make a timely complaint must not be the subject of any presumptive adverse inference based upon now rejected stereotypical assumptions of how persons (particularly children) react to acts of sexual abuse: R. v. M. (P.S.), 77 C.C.C. (3d) 402 (Ont. C.A.), at pp. 408-9; R. v. T.E.M., 1996 ABCA 312, 187 A.R. 273 (C.A.). (Emphasis added)

65 A trial judge should recognize and so instruct a jury that there is no inviolable rule on how people who are the victims of trauma like a sexual assault will behave. Some will make an immediate complaint, some will delay in disclosing the abuse, while some will never disclose the abuse. Reasons for delay are many and at least include embarrassment, fear, guilt, or a lack of understanding and knowledge. In assessing the credibility of a complainant, the timing of the complaint is simply one circumstance to consider in the factual mosaic of a particular case. A delay in disclosure, standing alone, will never give rise to an adverse inference against the credibility of the complainant.

[124] As in any criminal case, Mr. P.G. is presumed innocent until proven guilty. I have reminded myself that I need not firmly believe or disbelieve any witness and that I can accept all, some or none of a witness' testimony. I have also reminded myself that the Crown must prove the essential elements of the offence beyond a reasonable doubt, as this term has been defined and explained by the Supreme Court of Canada in R. v. W.(D.), [1991] 1 S.C.R. 742; R. v. Lifchus, 118 C.C.C. (3d) 1 (S.C.C.) and R. v. Starr, 2000 SCC 40, 147 C.C.C. (3d) 449 (S.C.C.). Proof of a probability of guilt does not amount to proof of guilt beyond a reasonable doubt. Proof of guilt to a near certainty is required in criminal proceedings.

[125] I recognize that the rule of reasonable doubt applies to the issue of credibility. Accordingly, I must acquit the defendant if I accept his evidence or if it raises a reasonable doubt after considering it in the context of the evidence as a whole. If I reject his evidence, or it does not leave me with a reasonable doubt, I must go on to ask whether the evidence that I do accept convinces me of the guilt of the defendant beyond a reasonable doubt.

[126] A determination of guilt or innocence must not, however, devolve into a mere credibility contest between two witnesses. Such an approach erodes the operation of the presumption of innocence and the assigned standard of persuasion of proof beyond a reasonable doubt: W.(D.) supra, at 409, per Cory J.; Avetsyan v. The Queen, 2000 SCC 56, 149 C.C.C. (3d) 77 (S.C.C.) at paras. 20-22, per Major J; and R. v. C.L.Y., 2008 SCC 2, [2008] 1 S.C.R. 5, at paras. 8-9, per Abella J.

[127] As the Ontario Court of Appeal in R. v. Hull, [2006] O.J. No 3177 at para 5 noted:

W.(D.) and other authorities prohibit triers of fact from treating the standard of proof as a credibility contest. Put another way, they prohibit the trier of fact from concluding that the standard of proof has been met simply because the trier of fact prefers the evidence of Crown witnesses to that of defence witnesses.

[128] I must assess the evidence of the complainant and the defendant in light of the totality of the evidence, which includes and permits comparing and contrasting the evidence of those witnesses. The Court of Appeal in Hull continued:

However, such authorities do not prohibit the trier of fact from assessing an accused's testimony in light of the whole evidence, including the testimony of the complainant, and in so doing comparing the evidence of the witnesses. On the contrary, triers of fact have a positive duty to carry out such an assessment recognizing that one possible outcome of the assessment is that the trier of fact may be left with a reasonable doubt concerning the guilt of the accused.

[129] It is important to note that the steps set out in W.(D.), supra, need not be religiously followed or articulated. Cory J. made this very clear in W.(D.):

…the failure to use such language is not fatal if the charge, when read as a whole, makes it clear that the jury could not have been under any misapprehension as to the correct burden and standard of proof (at p. 758).

See also R. v. Boucher, 2005 SCC 72, [2005] 3 S.C.R. 499, at para. 29, per Deschamps; and R. v. C.L.Y., supra.

[130] Proof beyond a reasonable doubt means what it says. Thus there is nothing illogical in rejecting the defendant's evidence but still not being sufficiently satisfied by the complainant's evidence to find that the case has been proven. A state of uncertainty at a trial like this, where the court has heard two conflicting versions from the two parties involved, is not uncommon. Ultimately, if I have a reasonable doubt on the whole of the case that arises from the evidence of the Crown witnesses, the evidence of the accused or the evidence of any other defence witness, or the absence of evidence, the charge must be dismissed: Lifchus.

Analysis

[131] In applying these principles to the case at bar I must assess the evidence of P.G. in light of the totality of the evidence, including the evidence of the complainant. As I indicated previously, this is basically a she said/he said sexual assault case.

[132] I recognize that K.B.'s delay in disclosure, standing alone, does not lead to a presumptive adverse inference against her credibility. Further, the presence of inconsistencies in her evidence relating to matters such as time and location should be considered in the context of her age when the events are alleged to have occurred. Mr. Kinahan spent a considerable amount of time cross-examining K.B. on when certain events took place and contradicting her testimony with evidence she had given previously or what she had said in her statement to the police on November 10, 2009, in an attempt to attack her credibility.

[133] An example of this line of questioning related to when M.G. went to Vancouver with K.B.'s sister and K.B. remained in the family home alone with P.G. Mr. Kinahan suggested that the Vancouver trip took place in 2009 and K.B. answered that she did not think that was when it happened. Mr. Kinahan then put K.B.'s previous testimony to her from the preliminary inquiry where she had agreed with that suggestion. K.B. became confused as to whether the trip occurred in 2008 or 2009 but maintained that the Halloween party occurred a few months after the Vancouver trip. Both M.G. and P.G. testified that the Vancouver trip was in August 2008. The observations of McLachlin J. (as she then was) in R. v. W.(R.), supra, are apt and I do not draw any adverse inferences as a result of inconsistencies in K.B.'s evidence relating to the timing of these historical allegations or events that occurred when she was a young teenager.

[134] Similarly, cross-examination as to whether the sun was up when the alleged sexual assaults occurred or whether it was just starting to get light out, or whether P.G. stood in K.B.'s bedroom for any length of time prior to touching K.B.'s breasts or attempting to touch her vaginal area, were not particularly helpful in assessing K.B.'s credibility.

[135] I found K.B. generally to be a good witness; her answers were responsive to the questions that were put to her. Her explanation as to why she lied to the first police officer in February 2009 made logical sense and was reasonable. Her explanation as to why she was able and ready to provide a second statement to the police was also reasonable, in that she had the support of her boyfriend's family with whom she was living and she had received counselling from a therapist. She did not attempt to embellish her evidence by overstating the number of occasions that she alleged P.G. sexually abused her. In my view, K.B. was, in many respects, a persuasive witness who answered questions in a candid fashion and despite the sarcastic manner in which defence counsel often asked his questions, K.B. was able to maintain her composure and respond appropriately.

[136] There are, however, two areas of her evidence that are troubling. The first is her entry in her diary in December 2005 concerning her going on a cruise with P.G. and his two children.

I'm going on a cruise. O.M.G. I'm so excited like there are no words to describe 23 days – 23 days and I'll be on a great big ship with A. surrounded by beauty and elegance and I cannot wait to leave this pit of shit LOL. On a sadder but in a positive note, [P.'s] moving out after the cruise so it'll probably most likely be the last time I see him ever again. But it's a good thing for him and I only want the best for his well-being. He's gone through so much abuse in his life to take on something like mom if he wants to live another ten or twenty years.

[137] Initially in cross-examination she agreed that it would not make sense for her to be sad that her molester was going to be moving out. Further, she agreed that it would not make sense for her to wish the best for the person who was molesting her. The matter had to be adjourned to allow K.B. to speak with her counsel to provide instructions as to whether she wanted to assert a privacy interest over this particular entry before I would permit Mr. Kinahan to cross-examine her on it, as it was not included in my original ruling on which portions of K.B.'s diaries would be admissible.

[138] Mr. De Chellis was advised by K.B.'s counsel that she was not asserting a privacy interest in respect of this entry. Mr. Kinahan was then permitted on the return date to cross-examine K.B. on this entry. Her evidence changed as to the meaning of this entry. It was now K.B.'s evidence that she was sad that P.G. was moving out because he was the financial support for their family but she also viewed his moving out as positive because he was molesting her. It was her evidence that she did not recall this entry when she testified originally but now that she had an opportunity to re-read it she knew what she was referring to.

[139] There is no doubt that those words are capable of being interpreted as K.B. testified and I discussed this possibility with Mr. Kinahan in the absence of the witness; however, her earlier answers, in my view, do raise concerns. I am also concerned that in K.B.'s evidence she indicated that she did not know exactly what was going on in her head when she wrote this entry and maybe she would not have articulated it the same way then.

[140] The second area of concern dealt with K.B.'s evidence relating to her sister wrestling with her and pulling down her tube top in the presence of P.G. In her evidence in-chief K.B. testified that P.G. actually prevented her from pulling up her top by using his hand to grab the top and told her to leave it so he could look at her bare breasts.

[141] In cross-examination she testified that she had a "vivid recollection of P.G. sitting there and actually reaching out and physically grabbing [her] top and pulling it down." However, when she gave her statement to Detective Waite on November 10, 2009 she did not tell the officer that P.G. physically grabbed her tube top and pulled it down. It was her sister that pulled it down and P.G. came into the room and, when she tried to pull it back up, he told her to leave it because he want to see. K.B. agreed that what she told Detective Waite was different from what she testified to in court and not telling the officer that P.G. had physically restrained her from pulling up her top is a pretty big part to leave out.

[142] I do not believe the evidence of M.G. It is my view that she would say anything to assist P.G., even lie. Her evidence that P.G. never left their bed without her waking up, even if he got up in the middle of the night to go to the washroom, does not accord with common sense. I found her testimony to be evasive and on many occasions she would answer that she could not recall when the answer related to something K.B. said to her or whether M.G. had said something to K.B. In fact, Mr. Kinahan conceded that there were problems with M.G.'s evidence.

[143] M.G. testified that P.G. came to her shortly after Halloween 2008 and told her that he said something inappropriate to K.B. P.G. told her that in commenting on her revealing Halloween costume he said to K.B. that "If I saw you on the street, I would want to fuck you." M.G. testified that she was very upset with P.G. but she could not recall what she said to him or how she reacted to what he said to her young teenage daughter. Further, she could not recall if K.B. spoke to her about what P.G. said or if she spoke to K.B. about what P.G. said. In my view, this was an offensive and shocking comment and I find it difficult to accept that M.G. has no recollection of ever speaking to her daughter about it, nor any recollection of her reaction towards P.G. for saying it.

[144] Further, in cross-examination, M.G. testified that when she found K.B.'s diaries, she only read the first two or three sentences on the first page and was totally disgusted, so she stopped reading. In re-examination, M.G. changed her evidence and testified that she did not open it at the first page; rather, her evidence now was that she opened the diary in the middle. In my view, M.G. was not being candid with the court concerning her review of K.B.'s diaries. Further, in her evidence in-chief she testified that she gave it to the lawyer because she wanted him to see what was in the diaries. In my view, this answer demonstrated that M.G. had read the diaries in their entirety or a large portion of them. The first few pages of the diary related to K.B.'s relationship with her boyfriend, which would not have been viewed by M.G. as disgusting. Her assertion that she wanted the lawyer to see what was in the diaries only makes sense if she had read the diaries. M.G. knew that the diaries contained K.B.'s innermost thoughts and feelings yet she gave it to the lawyer instead of her daughter because, in her words, she wanted the lawyer to be able to use the diaries against her daughter.

[145] P.G.'s evidence is also troubling in a number of areas and I will deal with only two. His admission that he listened in to K.B.'s telephone call with her friend the day after the Halloween party and then asked her to come outside to sit in his car so he could talk to her. His comment on the way K.B. had been dressed the night before was completely inappropriate having regard to his position of trust as her stepfather. The comment can only be described as shocking, appalling and inexcusable. I agree with the Crown that it reflects P.G.'s perception of K.B. as a sexual object rather than a child under his care.

[146] It is my opinion that the reason he asked K.B. to come outside and sit in his car was so he could say what he said to K.B. and not be overheard by M.G. He told M.G. about the comment because of K.B.'s reaction and his concern that K.B. would tell M.G. what he had said.

[147] Further, in his evidence P.G. testified that he never went into K.B.'s bedroom; rather, he would knock on her door and ask her to wake up for school. Yet, later in his evidence in-chief he testified that if K.B. did not respond to his knocking and asking if she was getting up for school, he would knock louder and then yell for her to wake up for school and if she still did not answer he would go into her room and shake the bed or her shoulder in order to wake her up. He testified that he did this on a number of occasions. Later in his evidence in-chief he testified that he specifically remembered one occasion where he might have accidently touched K.B.'s breast when she did not respond and he entered her bedroom and saw she was completely wrapped in her duvet cover. P.G. testified that he shook her to get her to wake up but he did not know where he shook her and there was a possibility that he touched her breast. I find it very difficult to accept that P.G. would specifically recall one incident where he might have possibly touched K.B.'s breast by accident. I agree with the Crown's submission that this evidence was contrived and implausible.

[148] Mr. Kinahan argued that P.G. was not shaken from his denials in cross-examination by the Crown and consequently, that should end the matter. Applying the W. (D.) analysis, if I cannot reject the accused's evidence based on some perceptible flaw within his or her evidence then applying the first two branches of the test should mandate an acquittal. However, to always acquit an accused solely because his testimony has withstood cross-examination and betrays no internal or external flaws, improbabilities or inconsistencies would be legally incorrect. The court is entitled, in appropriate cases, to reject an accused's evidence and "barren denial" of allegations on the basis of a considered and reasoned acceptance beyond a reasonable doubt of the truth of the conflicting evidence of the Crown's witness. This approach was approved by the Ontario Court of Appeal in R. v. J.J.R.D., [2006] O.J. No. 4740 at para. 53:

An outright rejection of an accused's evidence based on a considered and reasoned acceptance beyond a reasonable doubt of the truth of conflicting credible evidence is as much an explanation for the rejection of an accused's evidence as is a rejection based on a problem identified with the way the accused testified or the substance of the accused's evidence.

[149] After considering all of the evidence, I strongly suspect that K.B. was telling the truth. In my opinion, K.B. was a more believable witness than P.G. and M.G. If the burden of proof was on a balance of probabilities I would find P.G. guilty of the offence of sexual assault. However; as I indicated earlier, a finding of guilt cannot be based on a strong suspicion or a balance of probabilities or by the court treating the trial as a credibility contest between the accuser and the accused. The only issue before me, as in any criminal case, is whether the Crown has established the guilt of the accused beyond a reasonable doubt. The burden of proof upon the Crown is very high. While I am troubled by P.G.'s testimony, I am left in some doubt by it. Even if I were not left in some reasonable doubt by P.G.'s evidence, the reliability concerns with respect to the complainant's evidence, which I have discussed earlier, would prevent me from concluding that the Crown had proven the charge beyond a reasonable doubt. While I am of the view that K.B's explanation for why she lied to the police in her first statement is a reasonable one, I cannot be sure that she did not lie in her second statement or in her evidence in court.

[150] After a thorough and considered review of all of the evidence led during this trial, I am not persuaded that P.G.'s guilt has been proven beyond a reasonable doubt. Consequently, the charge of sexual assault is dismissed.

Released: November 30, 2012

Signed: "Justice Peter C. West"

Footnotes

[1] A preliminary inquiry was held respecting these charges and during a judicial pretrial in the Superior Court it was agreed by the Crown and defence for the matter to return to the Ontario Court of Justice.

[2] Ms. MacEachen, counsel for K.B., advised the Crown that K.B. was not asserting any privacy interest surrounding the entries in her diary dealing with the cruise after Christmas 2005.

[3] Mr. Kinahan originally submitted that I had discussed this interpretation of this passage in the presence of K.B.; however, it was clear from the transcript that the complainant left the courtroom while we addressed an objection by Mr. De Chellis during which this possible interpretation was raised.