WARNING

The court hearing this matter directs that the following notice 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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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

Ontario Court of Justice

Date: 2014-04-02

Court File No.: Town of Halton Hills 10-3631

Between:

Her Majesty the Queen

— And —

P.G.G.

Before: Justice Stephen D. Brown

Heard on: April 9, June 25, July 4, August 30, September 3, and December 19, 2013

Reasons for Judgment released on: April 2, 2014

Counsel:

• Kelly Frew, counsel for the Crown
• David Bayliss, counsel for the defendant P.G.G.

BROWN J.:

Introduction

[1] P.G. is charged that between August 16, 2010 and August 31, 2010 he committed two sexual assaults against T.B.

[2] He is further charged that between August 28 and September 6, 2010 he committed a further sexual assault against T.B.

[3] The Crown proceeded by way of summary conviction and the trial was held before me over five days.

[4] At the time of the allegations, P.G. was the boyfriend of K.B., the mother of T.B., and resided with T.B., her younger sister R.B. and K.B. at the time of these events.

[5] The complainant was born in 1994, making her 15 years of age at the time.

[6] She made these complaints against the defendant and gave a police statement on October 27, 2010.

[7] The police issued a warrant for the arrest of the defendant who at the time had returned to Australia where he was born. He returned and surrendered to police and was released on a recognizance of bail on August 29, 2012. K.B., the mother of the complainant, is his surety. She remains supportive of him and testified as a witness for the defence at this trial. She believes that her daughter has fabricated these allegations.

[8] The complainant, after having received independent legal advice, signed a sworn affidavit on April 4, 2012 recanting the allegations against the defendant. She said that she made the allegations because she was angry with the defendant, that he made rules in the house that she did not want to follow, that he picked on her, that he argued with her mother too much and that he would not let her wear certain kind of clothes.

[9] She swore in the affidavit that she had not been influenced by anyone in making her statement and that she wished that the defendant could come back to Canada without fear of being arrested and that she be able to start family counselling with him and her mother.

[10] This affidavit was forwarded to the officer in charge of the investigation on April 4, 2012 and further materials were forwarded to the Crown's office as requested by the lawyer for the complainant.

[11] On May 19, 2013 the complainant advised her lawyer that the affidavit that she had sworn was false and the allegations that she had made against P.G. were, in fact, true.

1.0: Evidence at Trial

1.1 Evidence of T.B.

[12] T.B. was 19 years of age when she testified before me. She adopted the video statement that she made to the police on October 27, 2010 as part of her evidence in-Chief pursuant to s. 715.1 of the Criminal Code.

[13] The complainant at the time that she testified was currently working. She lives with her father and his wife full time and rarely sees her mother. Her sister, R.B., currently resides full-time with her mother and she sees her every second weekend when R.B. spends the weekend at her father's.

[14] The complainant is a bright young girl having obtained an 87 per cent average in her last year of high school. She started university but did not finish because of the stress that she was under as a result, no doubt, of these proceedings and other issues that she has.

[15] She is, in fact, a very troubled girl.

[16] She indicates that she has tried to commit suicide seven times, five times by attempting hanging, once by slashing her wrists and once by a drug overdose.

[17] These troubles began when her parents separated and thereafter engaged in a very acrimonious and bitter war that had a devastating effect on her. Counsel brought a s. 278 records application which I denied in earlier oral reasons.

[18] The complainant testified that she first started cutting herself in October 2010 and later started cutting deeper to end her life, but said that she could not cut too deep because she has a low pain threshold.

[19] A couple of months after this she took some painkillers that remained from when she had broken her ankle, and she testified that she took four Advil and two Tylenol but she woke up the next morning and did not tell anyone about it.

[20] This attempt was followed by five unsuccessful attempts at hanging herself, which commenced around April 2011 and occurred twice at her mother's home, twice at university and once at her father's home.

[21] Although she lived with her mother after the events when she went to the police, she left her mother's residence to reside full-time with her father in May 2012, shortly after signing the affidavit recanting the allegations.

[22] She indicates that her relationship with the defendant was a good one at the start when he was not fighting with her mother and they got along quite well. He did criticize her, however, about wearing what he felt were too revealing clothes that her father had bought her. She said that she looked at him like a father figure and at some times liked him better than her actual father. She had told him on some occasions that she wished that there were boys like him that were her age. She thought that he was a "cool" guy.

[23] Regarding the allegations, they fall into several distinct events.

[24] In the first instance, T.B. describes that a couple of weeks before school started in September 2010 her mother (who is a primary school teacher) was at school setting up her classroom.

[25] The complainant was downstairs in the family room watching TV before she had to go off to gymnastics training. Her mother was not home, but her sister was upstairs in her room. She was in her pyjamas that consisted of a T-shirt and sweat pants. The defendant came and sat down beside her on the couch and they talked about things such as her anxiety about going back to school and how she felt about her body weight.

[26] He assured her that she was not fat and said that she was a pretty little girl. He put his hand on her leg. He then started touching her chest over her clothes. She moved away from him and he moved to follow her. He kept touching her. She started pushing his hands away and then said she was going to get ready for gym and left.

[27] She went upstairs to get changed and then her sister, R.B., came downstairs and passed her on the stairs. She went to her room and he came in and hugged her closely and grabbed her buttocks and then went back to touching her chest. She said to him that "You're mom's boyfriend not mine" and asked him to stop it. He said that he did not trust that she would not tell her mom because she would say things to hurt people when she got mad and she assured him that she would not tell on him. He promised her that it would not happen again.

[28] The second event occurred later that same week. He was downstairs in his office and he asked her to come and see a YouTube video. She complied and sat down on his lap by the computer and she gave him a hug. He pulled her over and touched her breasts again and tried to get under her shirt, but she stopped him. She pushed his hands off and said that she was going to bed and left.

[29] On the third occasion he is alleged to have come into her bedroom around 10:00 or 11:00 p.m. after a fight with her mother and said he wanted to say goodnight. Her mother was in her room on the same floor and her sister was in her room right beside the complainant's. In her statement to police she said that he sat down in her room, but on cross-examination she agreed that there was nowhere to sit in her room with the exception of a bean bag chair because her room was small and she had a bunk bed with the bottom bunk removed and a ladder leading up to the top bunk. She then said that he was complaining about her mother and their troubles and said he wished she were 15 years older because he would leave her mother and date her because she was nicer to him than her mother was. He then kissed her on the lips and put his hand in between her legs and manipulated her vaginal area. She pushed him off and said she had to go to bed and he then left.

[30] The final occasion was about a week later when she and her sister had come from spending a weekend at their father's home. The complainant, her sister and mother and the defendant were down in the basement. They played a game of Wii together. T.B. stayed downstairs to clean up and was on the bed looking at some wildlife posters and the defendant came and sat down beside her and then started fondling her breasts and then felt her crotch area. She then got up and left and went upstairs.

[31] In cross-examination she stated that while this was happening she yelled up to her mother jokingly words to the effect that "your boyfriend is doing something" but her mother did not reply. It is to be noted that the first time that she said this was in cross-examination and it was not in her statement to police or mentioned in direct examination.

[32] When asked why she did not tell anyone about the abuse for some time, the complainant said that she was afraid to. She stated the following in her evidence on June 25 commencing at page 24:

Q. Okay. And why didn't you tell her for a couple months?

A. Well, I was – part of me wanted to pretend that the whole thing never happened. The other part of me I was scared because P.G. is a pretty big guy. He was ex-special forces and Kyokushin national champion, which is a type of karate, and he was still training in karate locally in Georgetown, so I was a little frightened.

Q. Okay. But you did eventually tell her?

A. I did.

Q. Okay. And what brought you to the point where you eventually told her?

A. It got to the point where I wasn't really eating or sleeping and I was getting physically ill and school was getting really difficult to focus and everything and I kind of hit a breaking point and I just – I couldn't keep it to myself anymore.

[33] In cross-examination she expanded on why she was scared of the accused. She stated that on one occasion when they were moving out of the first house that they lived in the defendant and her mother were having a very loud argument and she and her sister intervened and he then pushed the both of them out of the room and they almost fell down the stairs. She explained that he may have not intended to push them down the stairs, but that there was a possibility that she could have stumbled at the time and fallen down the stairs.

[34] She also testified at about the same time that she saw the defendant push her mother onto the bed and on another occasion she saw him rip the phone from her mother when she was calling the police on him and pulled some of her mother's hair out when he did this.

[35] T.B. was cross-examined over a two-day period in a vigorous and somewhat brutal fashion. She was portrayed by Mr. Bayliss as an incredible witness who ultimately fabricated this evidence so that she could avoid a conflict with her mother over having secretly opened a Facebook account again after she had been prohibited from doing so.

[36] It was suggested that she was an attention seeker and that she was sexually suggestive to the defendant by her wanting hugs and affection that she did not get from her father that were nobly rebuffed by the defendant time and time again.

[37] It was suggested that she misled the court in that she testified that she had only seen the affidavit that recanted the allegations on the day that she signed it. It was pointed out to her that she had made some changes to the affidavit that she had received several weeks before she signed it.

[38] It was brought out that her father had asked her if the defendant had done anything inappropriate to her and that she had denied this.

[39] Mr. Bayliss virtually scoffed at her testimony that she had tried to kill herself the number of times that she had said that she had and had not been successful.

[40] He pointed out the social media sites that she had that contained information that seemed to contradict this evidence.

[41] He suggested that she had admitted to her grandfather that she had lied about these allegations, although the defence in this trial called no evidence from her grandfather supporting this important and critical accusation.

[42] Throughout this prolonged and brutal attack on her character she maintained a grace and composure that was exceptional to witness in light of her youth and her troubled past.

1.2 Evidence of P.G.

[43] P.G. is 39 years of age. He has no criminal record. He was born and raised in Australia and has three younger brothers who still reside in Australia. His mother lives there and his father lives in England. His parents are divorced.

[44] He obtained a Bachelor of Arts degree from the University of New South Wales and has had a 20-year career as a swimming coach. He had a military career joining the reserves in 1996 and was honourably discharged in 2004. During that time he was posted to a naval specialist diving unit and later to a commando unit posted in Sydney.

[45] He first came to Canada in August 2007 to become an Olympic swimming coach under a person named Cecil Russell. It appears that Cecil Russell was a disreputable individual that was at the time under a lifetime ban from coaching swimming. It also appears that Mr. G., although quick to describe himself as an "Olympic" coach, was simply a coach that was qualified to coach competitive swimming athletes up to and including Olympic swimming. There is a dearth of evidence to support him being actively involved in high level swimming coaching despite his eagerness to be classified as such. He relates that Mr. Russell was a tyrant who would regularly verbally abuse him and that he was sorry that he did not "Google" his name before relocating halfway across the world to work with him. Instead, he relied on people whom he trusted that said that this was a good opportunity for him.

[46] He met the complainant's mother in October 2007 and began an exclusive relationship with her in November 2007. It has been a tempestuous and volatile relationship from the beginning.

[47] He moved into what was then the matrimonial home with her and her daughters in March 2008.

[48] He returned to Australia in June 2009 because of difficulties that they were having in their relationship. He and the complainant's mother remained in touch and settled some of their differences and he returned to Canada on April 23, 2010 and recommenced living with the family.

[49] After a while things again deteriorated in his relationship with K.B. and he ended up returning to Australia on October 20, 2010. A few days after his return he learned that one of K.B.'s daughters had made a sexual assault allegation against him when he was in an online chat with her mother. He said he was shell shocked by the allegations.

[50] During the following months, the defendant and K.B. realized that they loved each other and he decided to return to Canada to face these allegations. As well, with these allegations outstanding, he could not continue his job as a swim coach.

[51] In his evidence he vehemently denies ever sexually assaulting T.B.

[52] He flatly denies that the first or third incident ever happened.

[53] About the second incident, he recalls with vivid exactitude and precision details that can only be illustrated by reproducing in its entirety this feat of amazing memory. In direct examination he states as follows, commencing at page 19 of the August 30 transcript:

Q. And when she testified in her evidence, she actually indicated that she had sat on your lap during that occasion and that you touched her inappropriately again. Now, did you, did you touch T.B. inappropriately on...

A. No.

Q. ...that occasion?

A. No, never.

Q. Does the event that she describes have some, in, in other words, does it sound like any, any event that did, did occur between yourself in T.B.? Any, any other event not related to any sexual activity?

A. Yes, it does.

Q. Can you tell the court about that please?

A. There's only been one time where I've shown T.B. anything on YouTube and that evening coming back from karate, there was a discussion at karate about Steven Seagal being a police officer with two other colleagues.

Q. Okay. So just to contextualize that a little bit, you, you were - you, I, I understand, take karate training?

A. Correct.

Q. And you teach karate...

A. Yes.

Q. ...I understand? Was T.B. with you at karate on, on the occasion you're now describing?

A. Yes, she was.

Q. Okay. And how did she end up being there?

A. A couple hours before I went to training, her and her sister - they're, they're constantly needling each other and it's usually over when K.B.'s spending money on one or both. That evening in particular, because R.B. had begun equestrian, K.B. had to purchase equipment for her and it was going to cost: helmet, boots, jodhpurs, the whole lot. For some reason, T.B. - as soon as the light's taken off T.B. all hell breaks loose. So K.B. disciplines T.B., we get home, K.B. tells T.B. that she no longer wants to see her for the rest of the evening at all. You know, get out of my sight, words to the effect. I'm upstairs grabbing my karate stuff, packing it in the bag, ready to leave. And T.B. comes upstairs crying and saying to me, oh, can I come with you, mum doesn't want me in the house for the right of the night. Not that that's what K.B. said, but again, T.B. choosing - twisting her words.

Q. Okay.

A. So I said fine, you can come but it'll be boring so you'll have to sit down and, and not be able to, you know, do anything because you'll just have to sit and watch.

Q. All right. So she went to karate with you?

A. Yes, she did.

Q. Did you walk or drive or....

A. We drove. Always drive.

Q. All right. And the conversation about Steven Seagal, how - was T.B. privy to that conversation?

A. Yes, she was.

Q. Okay. How did that, how did that happen there?

A. Whilst we were still on the mats at the end of training around about 9:00 when training would finish, I was two - speaking to two of the other male colleagues there and they were the ones that brought it up. T.B. was seated on the sidelines, probably no further than from we are now to each other, five metres, four metres apart. And then she made a comment before we walked downstairs from where the training area was, that she wanted to see it when we got home. And I said sure, no problems. Things - her mood changed because she seemed to have this spark of wanting attention from the owner's son. But aside from that, we got home. Her mood had changed somewhat. She was pretty angry because I told her that you - I don't want you being around that particular boy. And - so she went into the computer room, which is the living space where K.B. and R.B. was, and seated herself down there so obviously things had calmed down. Whilst I then stayed in the front room and then tried to access the computer to find this particular clip of Steven Seagal making an arrest. By that stage it would have been about 9:30 we got home, so a couple hours later K.B. and R.B. have gone to bed. T.B.'s getting ready to go to bed as well. And then I yelled out to her, during that period when K.B and both R.B. were there, that I found the clip. So after T.B. returns from getting into her pyjamas, she tries to sit on my lap. And she's tried to do this many, many times. Whether it's at the computer desk or at the couch and every time I push her away. And in doing so it creates a reaction and she doesn't like it.

Q. All right. What's the next thing that happened?

A. So I grab her wrist and I turn her around and say, you know, words to the effect, darling, calm down. You wanted to see this. I need you to see this because you've been telling me and your mum that you want to be a police officer. And I said, I'd like you to see an effect of an arrest by a person who's almost a 30 year veteran in this and he's not great. So she watched the clip and I said do you understand? I said - and I, and I wasn't trying to be mean or anything about her height. I was simply stating a fact. I said, darling, you're 4'11. This gentleman's six foot at 200 pounds. And I said you can see how it takes a person of Steven Seagal's calibre to deal with a person who is armed and dangerous. So she accepted that but she was still frustrated and angry because I wouldn't give her the affection that she's so looking for. And she returned to bed upstairs and that was the end of that.

Q. All right. Did anything, from your perspective, anything inappropriate happen between you...

A. No.

Q. ...and T.B. on that occasion?

A. Never.

[54] Regarding the final allegation, Mr. G.'s recall about that incident is eerily precise considering that really nothing untoward happened on his account considering the living hell that he was enduring on a frequent basis due to conflict in this family. His account is set out commencing at page 26 of the August 30 transcript and is as follows:

Q. Okay. Is, is the event that she's talking about, did something like that happen in terms of the situation being in the basement and the cleaning up of the basement by you and K.B.?

A. Yes.

Q. Okay. Can you just describe that, that for us?

A. There was only one time in the new home that that basement was cleaned. And that was at the end of August of 2010.

Q. Okay.

A. It was the weekend that both girls were with C. It was a Sunday, took us almost four or five hours.

Q. When you say us, who actually cleaned?

A. K.B. and myself. We, we did it together and it was a slog because there was a lot of stuff in there that had to be done and it hadn't been done at all.

Q. All right. And she describes it as the weekend before school. Do you agree with that...

A. No.

Q. ...as for the timing?

A. No.

Q. Okay. When do you believe it was?

A. Well, of the weekends before school, I believe that would place it as being the long weekend. You guys call it Labour Day weekend or something here.

Q. Mm-hmm.

A. So if that's September 5th, say, then it's the week before that which places it, exactly as I've just stated, end of August 2010.

Q. Okay. And perhaps you could describe for the court then, what, what you recall about that event? And just take it from when you and K.B. are finishing up cleaning down in the basement.

A. The girls returned home earlier that night. They're usually - the, the lock time is supposed to be 8:00 that they're supposed to be home, but they were home before 8:00. And T.B. was the only one that came downstairs to the basement. I've noticed that she says that it was both her and her sister, no. T.B. came down to the stairs to the basement where K.B. and I were there finishing cleaning up. So we literally, like, completed everything and K.B. was putting pillow slips on the pillows back on the bed that was down there. And I was picking up bits of whatever was left on the floor and placing it into a box. In that time space, because T.B. seemed to be in cheerful happy mood, she grabbed the pillows and then a pillow fight ensued between both of us. And K.B. was there, a witness to that....

Q. Right. When you say between both of us you mean you and T.B.?

A. T.B. and myself, yes.

Q. Mm-hmm.

A. All I was doing was what you do. You, you join in. You just - that's, that's part and parcel with how you interact with people, I guess, rather than being sort of stand-offish [sic]. But anyway, K.B. then said I'm going to go and check on R.B. because she found it odd that R.B. hadn't come down. K.B. was only gone, if that, 15 seconds. Now, people say 15 seconds is not a long time. Well, being an Olympic coach, I'll tell you now, 15 seconds is an eternity.

Q. Mm-hmm.

A. But K.B., nonetheless, walked to the top of the stairs and was obviously speaking to R.B. up there to see how she was doing and T.B. and I continued with the pillow fight. K.B. then called out because T.B. was laughing her head off. I mean she found it hilarious. And K.B.'s words to the effect were be careful, you two. And then K.B. was back. And then she said, okay, that's enough you two. You know, time to go upstairs.

Q. All right. And did you go upstairs?

A. Yes, we did. All three of us did.

Q. Okay. That would be you, K.B.....

A. T.B., myself and K.B., yes.

Q. Okay. And did, did anyone go down in the basement again on, on that occasion?

A. We did. After returning to the upstairs to the ground landing, to the living room, all four of us were seated in that living room until around about 9:00.

Q. All right.

A. And then we returned to the basement to play Wii.

Q. Okay. And tell us how that went.

A. We'd only just - well, the girls had just purchased a new game which was the Super Mario Bros. Olympic whatever it was, and so R.B. wanted to partner up with me. So I partnered up with R.B. and T.B. didn't like that. She made that pretty clear.

Q. What did she say?

A. Well, she made a comment, you know, directly to, to K.B. saying, oh, I have to be with the old biddy again. But it was the way she said it. It was the tone. It wasn't the actual, you know, syntax, it was the actual tone that made it pretty unpleasant and, and had K.B. - it upset K.B. But, you know, after maybe 10, 15 minutes of playing, T.B. was then already needling and attacking her sister R.B. And it just exploded. So R.B. ended up leaving because T.B. had taken R.B.'s chair and there was plenty of chairs to be seated. But it upset R.B. and so obviously from whatever was happening earlier for R.B. to have not come down to the basement, had, you know, strike two for R.B.. She's upset again. So she left and then it set K.B. off. She was, she was absolutely livid, because, you know, there you go again T.B. - words to the effect - and know, you just ruined another night. You know, every time you come back from your father's there's always trouble.

Q. Okay. So how, how, how did that all end then?

A. We all - well, I walked back upstairs and I ended up going either to the bedroom or to the living room but I was no longer in the basement and, and then, you know, T.B. then stomps her feet up the stairs and up to her room and that was the end of that.

[55] In cross-examination the defendant went into more florid detail as to where people were standing and seated and other details of this event that were exceptional in their ordinariness.

[56] P.G. gave similarly detailed evidence that explained in a calculated and exculpatory way the complainant's allegations of him pushing her and her sister out of the room and pushing her mother onto the bed and of him taking the phone from her mother when her mother was calling the police and ripping some strands of hair out of her head while he did so.

[57] This remarkable clarity of memory was shaken to its foundations, however, when he was confronted with his lie that he had not communicated with the lawyer of T.B. when he was in the process of drafting an affidavit that recanted her allegations.

[58] The following exchange shows him being boxed in during cross-examination, and is found at page 96 of the August 30 transcript:

Q. Okay. And did you ever speak to Philippe Benayon?

A. Sorry, to....

Q. Philippe Benayon. He was the lawyer that K.B.....

A. Oh, Mr. Benayon?

Q. Yes.

A. No.

Q. You never had a conversation with him?

A. No, ma'am.

Q. So if Mr. Benayon has an e-mail in his file indicating that he had a conversation with you, he would be mistaken about that?

A. No, he would have an e-mail but that's only because from what I understand is K.B. disseminated information to me saying that he requested as much information as possible from me.

Q. Yeah. And, and he has those e-mails in his file but there is an e-mail in his file where he's writing to K.B. indicating that he just had a conversation with you?

A. No. He's - we - that, that's not true. I don't know, I don't know where you get that from. He - I have never spoken to Mr. Benayon. Not, not even - no. No, no, no. No texts, no e-mails, no phone calls, no indirect communications from a stranger. K.B. said to me at one point that he needed information, as much information as possible. And so I gave that information to K.B. and it was then, what I understand Your Honour, sent to Mr. Benayon. I was very aware, ma'am, that Mr. Benayon was the counsel representing T.B.

[59] Court was adjourned and on the following day of trial it was agreed that the file of the lawyer for T.B., Mr. Benayon, contained a note to the effect that he had spoken to the defendant. This occurred in October 2011 when the defendant was still in Australia but very much aware of the charges and Mr. Benayon's role as counsel for the complainant.

[60] The Crown had concluded her cross-examination and Mr. Bayliss did not have any re-direct on the preceding day. It was agreed, however, that the re-direct could be opened and the Crown would be able to cross-examine on this issue because of the omission in the agreed evidence of the complainant's lawyer that had occurred on the previous day to the surprise of the defence and Crown and indeed to P.G.

[61] Mr. G.'s evidence should be reproduced in its entirety, as it is essential to his credibility. The following is his evidence from that day commencing at page 4 of the September 3 transcript. It reads as follows:

EXAMINATION IN-CHIEF (Reply) BY MR. BAYLISS:

Q. Good morning, Mr. G. So you had a chance to review the latest exhibit just now before you took the witness box.

A. Yes.

Q. Is that right? Okay. Now, you had been asked in cross-examination by Ms. Frew about whether you had ever had a conversation with Mr. Benayon.

A. Correct.

Q. Do you recall that and you indicated that you had not?

A. Correct.

Q. Okay. Just reading - and by the way, had you ever seen this document before...

A. No.

Q. ...that you read today? Okay. And just for the record, it's dated October the 11th of 2011. Having reviewed that, does that change your opinion about whether you ever spoke to Mr. Benayon?

A. Your Honour, I have no recollection of ever making a call to Mr. Benayon, not indirectly, text, e-mails phone calls. But again, I accept what he's put in his e-mail, but I just - I have no recollection.

Q. And does that surprise you, that you don't recall that call to him...

A. Yes.

Q. ...in the context - okay. How would you say your mental functioning was, if we can put it, since you've been charged as opposed to before you were charged?

A. Your Honour, I do things like even leave the kitchen stove on to the point where it's caught fire a couple of times, left keys in the car running. I mean, I'm forgetting things now even more and more. I accept that. After all, I do have reactive depression.

Q. All right. And, and so just to finalize it then, do, do you now, having seen this document, do you recall ever speaking to Mr. Benayon?

A. No.

Q. All right. Okay. Thank you, the Crown may have some questions.

CROSS-EXAMINATION (Reply) BY MS. FREW:

Q. So, Mr. G., you'd agree with me that, you know, placing a phone call to the lawyer of T.B. at the time,...

A. Mmhmm.

Q. ...that would have been a significant step in trying to rehabilitate yourself, your name...

A. Mmhmm.

Q. ...in Canada. Is that fair?

A. Mmhmm.

Q. Okay. So this would....

A. Yes.

Q. Yes, thank you. So this would have been sort of a big deal calling T.B.'s lawyer?

A. Given the time line and the stress that I was under, ma'am, I have no recollection. I don't, I don't, I don't believe that I made the call at all because I don't recall it.

Q. So you don't believe you called him?

A. No. I just - I don't recall it at all. I've got no recollection.

Q. Okay.

A. And the stress that I was under, ma'am, at the time, I mean even now, it's just, it's not ending.

Q. Okay. So the stress you were under, that affected your memory is what you're saying?

A. Hmmm.

Q. Okay. So, so is it that you don't believe you actually made the call, or you don't remember making the call but you believe you made it?

A. I don't remember making the call ma'am. That's - I'm looking you dead in the eye. I don't remember making that call.

Q. But you've just told the court that you don't believe you made the call. So is it that you don't believe you made the call, or you believe you do but you don't remember it?

A. I don't know. I don't remember making that call. I have no recollection, Your Honour.

Q. Okay. And you're saying it's because of the stress of these charges that caused you to potentially forget making this call. Is that what you're saying?

A. It's possible, yes.

Q. Okay. And you recalled some incredible details about these allegations...

A. Yes.

Q. ...and the dates in question.

A. Yes.

Q. Is that right? Okay. And, and these details are all coming to you after you found out about the charges. Is that right?

A. Yes.

Q. Okay. So is it possible that your memory is wrong about some of those details as well?

A. No, because when I got accused of that stuff back in 2010, Your Honour, I was in the chambers with my barrister and I was writing everything down and I did not leave until he was done. And the stress that I've had from that point of time at the end of 2010 to the supposed telephone conversation in 2011, Your Honour, that's a long time. And there are a lot of phone calls that I've, that I've made in that time that yeah, I won't remember.

Q. So what you're saying is you made notes about what happened?

A. I was asked to ma'am.

Q. Okay. And when you were making those notes, and I don't want you to tell me about any conversations you had with your, your barrister, or anything of that nature, I'm not trying to get into that, but when you were making those notes did you have T.B.'s statement?

A. No.

Q. Okay. So how did you know which dates you were thinking about?

A. This is after the fact when K.B. had told me on several phone conversations, and so I was trying to piece together what I was doing because at the time, as I've said, Your Honour, I was working at Air Canada Cargo in security, so I have a very clear map of where I was, what I was doing from the 15th of August all the way through to the day I left Canada in October of 2010. I can definitively tell you exactly where I was every single day. MS. FREW: Court's indulgence, please?

MS. FREW: Q. And on Friday when I was asking you questions, you had said something to effect of you would never had called Mr. Benayon because that was T.B.'s lawyer?

A. Mmhmm.

Q. Okay. Does your answer change now knowing that Mr. Benayon indicates you did phone him?

A. Again, ma'am, I don't have a recollection of that phone conversation, and unfortunately, yes, I agree. I have to accept that what Mr. Benayon has said in his e-mail.

Q. And you said that you made extensive notes with your barrister about what happened in...

A. Mmhmm.

Q. ...August leading up to the time?

A. Yes.

Q. Okay. Have you shown those to K.B.?

A. No, never.

Q. She's never seen those?

A. No. I was directed by my counsel at the time that that was to never be the case in terms of her ever sighting them.

MS. FREW: Q. Could I have the court's indulgence for a minute, please? And are you still having these memory problems that you've described?

A. Yes, ma'am.

Q. Okay. But you testified in this courtroom without the aid of any notes or anything on the stand. Is that right?

A. Correct. I mean just the other day, ma'am, I left my keys in the car running at the car park, went in to get groceries and someone came out and actually gave me my keys. I, you know, I usually don't do things like that, but....

Q. You'd agree with me that leaving your car, your keys in your car is a little bit different than calling the lawyer of a supposed complainant of a sexual assault by you. Is that right?

A. No, I think it all, it all comes down, sorry ma'am, I think it all comes down to memory. I mean I've been seeing - I've seen Dr. Phillip, who's a psychol - psychologist here in Toronto, and he said to me that this is inevitable, part of the reactive depression. I mean I've been accused of something that is absolutely heinous.

Q. Mmhmm.

A. It is, it is beyond far-fetched. I mean anyone in their right mind that's normal is going to be suffering significant trauma, whichever way you look at it. It's not a stressor; this is trauma.

Q. Okay.

A. And I'm accep - and I'm accepting that, ma'am, and so I'm trying to remember as much as I can and that was one of the reasons why when I went to counsel in Australia. He was really clear to me saying, P.G., I need you to write down as much as you can remember, please, before you go.

Q. And you're not a doctor. Is that right?

A. No, I'm not, ma'am.

Q. You're not a psychologist?

A. No.

Q. You're not a psychiatrist?

A. No.

Q. Okay. You don't have a psychologist or psychiatrist here?

A. No.

Q. Okay. And all I was asking you, sir, is that would you agree there's a difference between leaving your keys in a car and forgetting about a phone call you placed to the lawyer of a supposed sexual assault victim?

A. Mmhmm.

Q. You'd agree there's a difference in that?

A. I do, yes.

Q. Okay. And you've read over the file that we all received from Mr. Benayon. Is that right?

A. Yes, ma'am.

Q. Okay. And you see in there that you're sending e-mails to K.B., you know, saying give this to the lawyer, give this to the lawyer?

A. She was asking me to. It wasn't me as a matter of offering it, Your Honour, K.B. was asking me for things.

Q. But you agree with me there's e-mails in here from you to K.B. saying make sure you give this to Phillip, right?

A. Yes. Because an example would be, Your Honour, when K.B. had asked me specifically of something in relation to Mr. Benayon, I would send an e-mail. And then sometimes I'd forget, thinking I need to give something else to add as an addition to that e-mail.

Q. Okay. But what I'm getting at is when you testified earlier that you've never had any conversations directly or indirectly with him,...

A. Mm-mm.

Q. ...you'd agree with me that going through K.B. is indirectly giving things to Mr. Benayon?

A. Not through, not through my volition, but through hers, yes.

Q. Okay. But - and I don't.....

A. Because she's being requested directly by Mr. Benayon, ma'am. I'm not offering up the information. She simply said, well, he's requested this.

Q. Okay. But - and I don't want to be unfair to you, but I'm just looking at Exhibit 13.

MS. FREW: Thank you. Yeah, and so those last two pages that are attached to 13 should have actually been attached to...

MS. FREW: ...Exhibit 10. Let me get those back. Thank you. So just for counsel's benefit, I'm going to be showing him an e-mail from November 29th, 2011.

MS. FREW: Q. I'll just give you a second to look at that. It's an e-mail from you, p.gn.g.@gmail- .com. that's you?

A. Correct.

Q. Okay. And b.k.@gmail.com, that's K.B.?

A. Correct.

Q. This is K.B.'s. And this one sent, "After I supposedly did whatever it is I'm being accused of, notice my e-mails before yours, meaning I was mentally priority over you, her mom. Another subtle trait that indicates that I did not touch T.B.. P.S. Please make sure you print and send these to the lawyer. These are critical, along with everything else I have supplied thus far..."

A. Correct.

Q. ...xoxo. You see that?

A. Yes, ma'am.

Q. Okay. So you'd agree with me that's you saying K.B., please make sure you give this to the lawyer, these are critical to my defence?

A. Yes, ma'am.

MS. FREW: Okay. Thank you, I have no further questions.

A. Thank you, ma'am, Your Honour.

[62] This exchange, in my view, is illustrative of the concerns that I have with the evidence of the defendant that I will highlight later in my analysis.

1.3 Evidence of K.J.

[63] K.B. when she testified was then divorced from her husband C.B. and had reverted to her maiden name, K.J.

[64] She is an elementary school teacher and has been teaching for 10 years.

[65] She indicated that her husband left the family in January 2007. She says that she met the defendant in the middle of November 2007 and that they started cohabiting in March 2008. I note that this evidence is contrary to the defendant's exquisitely detailed account of how they met on Halloween in 2007.

[66] His evidence is so replete with detail that it goes on about this issue from pages 44 to page 48 of the August 30 transcript saying how he recalls that it was Halloween night in 2007 that they first spoke on the phone and he then met with her on the Friday night following this conversation. This would have put their first meeting in early November according to him. It is a small point, but it is one worth mentioning because of the defendant's habit of giving his evidence with absolute certainty that I found off-putting on more than one occasion.

[67] They lived together in the matrimonial home until March 2009 when they moved to another residence in Georgetown. She has resided there since.

[68] She also lives with her daughter R.B. and did live with the complainant T.B. until Mother's Day in 2012 when she moved out to live with her father shortly after signing the affidavit recanting her allegations.

[69] K.J. states that she is constantly in touch with the complainant by text and phone and that she stays over with her at times. This is in contrast with the complainant's evidence that paints a much more strained relationship with her mother and says that she has only seen her once or twice since she moved out of the residence.

[70] This witness described the relationship between the defendant and the complainant. She said that she took to him immediately, called him dad at times and looked to him for affection that she was not getting from her own father.

[71] She said that the defendant was uncomfortable with this and said to both girls that he was not their dad and that they needed to get hugs from their dad.

[72] K.J. has an abiding hatred for her ex-husband that is evident throughout her testimony. When she was asked in direct examination about the defendant disciplining her children her response immediately veered off topic so that she could get a dig in at her ex-husband. She stated at page 18 of the September 3 transcript as follows:

Q. Okay. What about discipline? Did P.G. play any role in discipline in the home?

A. He tried. I, basically, wouldn't back him up. His discipline was proper discipline. But from where I was at that point in time, I was afraid of my ex-husband and afraid of my children moving in with him because I had been strongly warned by a psychiatrist to never let them live with him.

[73] She stated that the defendant would be appalled by the clothes that C.B. would buy for the girls, T.B. in particular, and he would make comments like she has to wear shirts that come to her collarbone like her mother and sister.

[74] She observed that the complainant was always bubbly with the defendant and that she did not observe any changes in her attitude towards the defendant at any time.

[75] She testified that she became aware of the allegations against the defendant on October 25, 2010 when she was driving her daughter home after her gymnastic workout. Her daughter R.B. had told her that T.B. was on Facebook again. She had been told not to use this earlier by her mother because her mother thought that she was posting inappropriate pictures of herself in her gymnastics uniform on Facebook.

[76] According to her, when she said to her daughter "I understand that you are on Facebook again" the response was "mom I have something to tell you, P.G. touched me".

[77] She then related this starting at paragraph 24 of the September 3 transcript:

A. I was, as I said, taken aback. And I just grabbed her arm as I was driving and said if this has happened you've done nothing wrong. He's the adult and he should know better. And she said to me, really, I didn't think you'd believe me. And I, I asked why? And she said because I've done this before, that she'd told her dad when she was in grade one or two that a boy had cornered her on the playground and asked to see her vagina, and it turned out that that was a story and she just wanted dads attention.

[78] I note that this version was never put to the complainant in her cross-examination.

[79] She then continues:

Q. All right. So carry, carry on from there.

A. So I just asked what had happened and she said that he touched her on top of her clothes and on her breasts. She said boobs, and I just drove. And when we got home she went to her room, I went to mine and my head's spinning because it was, you know, disgusting. The next morning I asked her if that was everything and then she said well, no, he went like this, and she motioned with her hand, palm up, and pointed to her vagina.

Q. Okay. So I have to describe what you've demonstrated there. You took your right hand and you held it out with the palm facing up?

A. Yeah.

Q. And then you, with your other hand, you pointed to your crotch area?

A. Yes.

Q. Okay. So carry on.

A. And I said, you know, is that everything? And she said yeah. And then I went to shower before I went to work and I'm in gags. It was just disgusting. I then went to work and at my first break I spoke to my principal and told him what T.B. had told me, and I said I think I need to go the police and he said yes, you do, I will get a supply teacher in for you. And at that point in time I left the school and I went to the Georgetown Police 11 Division and spoke to a female officer.

[80] On the following day, they met in the evening with Constable Newham and she was asked to leave while her daughter gave her video statement.

[81] Right afterwards she expressed her doubt about her daughter's statement in private to Constable Newham after he advised her that they would put out a warrant for the defendant's arrest.

[82] On page 24 of her statement she gives the following evidence:

Q. Okay. At some point did you come to have doubts about what T.B. was saying?

A. Yes.

Q. When was that?

A. On the 26th, Tuesday evening, I was kind of reviewing in my mind and thinking about how T.B. behaved and how P.G. behaved and that there was no change in behaviour from T.B. towards P.G. after the time that she said that this had happened. In fact, P.G.'s birthday was after that and she came running in and happy birthday, gave him a big hug. And so I started thinking about those things and came to realize that P.G. is black and white. There is no grey with him. There's right and there's wrong and that there was no way that he would have crossed that line.

Q. All right. When did you first express those doubts?

A. I expressed them to Officer Newham after T.B. had made her statement.

Q. And at the time you expressed those doubts to Officer Newham, what was the status in your mind of your relationship with P.G. at that time?

A. It was done. We had no relationship.

[83] She also testified that after her daughter gave a statement to the police she "added to her story" by saying the defendant had tried to kiss her. She phoned Constable Newham and told him this and suggested that they give her daughter a lie detector test. She said that Constable Newham 'dressed her down' and said that she was not to be speaking to her daughter about the incident.

[84] K.J. said that in the middle of the night when she was lying in bed with her daughter in August 2011 the complainant calmly told her that she wanted to go to the police and tell them that she had lied.

[85] Before this on many occasions she said that when she and T.B. would be having an argument she would yell, "well then fine I will go to the police and tell them I lied. Will that make you happy?" When asked what would elicit that kind of response from her she said it was when she said she knew her daughter was not telling the truth.

[86] She did not contact a lawyer because of pressures at work until October 2011.

[87] She said at that point in October 2011 she did not think that there would be a relationship with the defendant and that they were in limbo. She said that she was gun shy because of living with him in the past.

[88] She described the incident where she was in a confrontation with him the night before they moved out of the first house. She said that she was the aggressor that night and that she hit him because she was frustrated and upset because the children were not helping and the waterbed would not empty. She acknowledges hitting him in the mouth and then when she rushed at him to hit him again he redirected her and she landed on the bed. She acknowledges that her daughters would have seen what they would have thought was a push. This generally corroborates the defendant's version of the event.

[89] She indicated that after this happened she saw the defendant picking up her daughters and putting them outside of the bedroom because "they were in the way", but that she saw nothing inappropriate with that. This conflicts with the defendant's version of the event where he indicated that he put the children out of the room first, was then hit by her and redirected her onto the bed and then the children came running back into the room thinking that he had pushed her.

[90] She also related another incident when just before he left in October 2010 she was calling the police on him and he took the phone out of her hand and a few of her hairs came with it. She acknowledges that her girls saw this and that she made a big deal out of it but, in hindsight, it was not. This corroborates her daughter's evidence that what she saw appeared at the time to be physical aggression towards her mother who was calling the police on the defendant. No doubt that would have had the impact on T.B. that she described and may have been a factor in delayed disclosure.

[91] In October 2011 she contacted and retained Philip Benayon to assist her daughter with recanting her allegations to the police. He was unknown to her and, in fact, she never saw him until he showed up at her home.

[92] The trail of emails between K.J. and Mr. Benayon clearly indicates the clear bias that this witness shows to her daughter. They also, in my view, show how actively the defendant was in marshalling a defence to these accusations in conjunction with K.J.. They are contained in Exhibits 7, 10 and 14.

[93] Exhibits 12 and 13 are a series of transcripts of email chats between K.J. and the defendant that took place shortly after the allegations are made while the defendant was in Australia.

[94] Notwithstanding that K.J. had testified that when she expressed her doubts to Constable Newham that her relationship with the defendant was "done" and they "had no relationship", these email conversations reveal quite the opposite.

[95] Even though the witness sent an enraged email to the defendant on the night that she was advised of the allegations by her daughter, being October 25, 2010, one week later she sent the following email to the defendant as set out in Exhibit 12:

P.G., I have been told that it is a lie, that you didn't touch my girl. I still love you even if you did. Please tell me you still love me.

Be online please at 10 pm my time tonight (Oct 31 here)

[96] First, her statement that she had been told it is a lie, according to her evidence, only would emanate in screaming matches with her daughter when she accused her of lying. Secondly, what sort of person would write that she would still love him even if he did touch her daughter? That to me is clear evidence as to what type of mother this witness was to her daughter.

[97] A further snippet of email chat shows again this witness' bias. She states in Exhibit 13, that appears to have been sent on November 10, 2010, as follows:

Have we parted? Are we over?...I can't stop thinking about you, your smile, your touch, your bitable ass, your gorgeous eyes.

I can't stop hoping that something will happen to have us back together again.

[98] These series of emails contained in these exhibits show nothing other than a mother intent on discrediting her daughter in an effort to resume her flawed relationship with this defendant.

[99] In direct examination the following question and answer found at page 40 of the September 3 transcript is telling:

Q. If, if I were to say to you that we've heard that she attempted to take her life seven times, what would you say about that?

A. That would be false unless it's happened at her dad's, but not while she was living with me.

[100] In the remainder of her evidence in-Chief K.J. attempted to corroborate the story of the defendant concerning the last incident in the basement when they were playing the Wii game and said that she would have heard her daughter cry out if she had done so.

[101] She also confirmed that the complainant and the defendant could not have been looking at wildlife posters as the complainant had testified. She said that her ex-husband got all of the Robert Bateman wildlife posters except one that she got for her birthday.

[102] In cross-examination K.J. gave evidence about the fact that the defendant was somewhat uncomfortable with the girls giving him hugs. This was subtly different from that given by the defendant who had tried to import a sexual overtone to the type of hugs that the complainant had given to him and had said that he mentioned this to her mother.

[103] She states as follows at page 47 of the September 3 transcript:

A. P.G. would tell me that when T.B. came to him for hugs, he felt it was inappropriate, that she should be getting her hugs from her father.

Q. Okay. So it was nothing about the physical hugging, it was just that she was hugging him instead of her dad?

A. Yes.

Q. Okay. So it wasn't as though T.B. was hugging him in a different way than he would hug, or than she would hug her dad, it was that she should be hugging her dad not me?

A. Yes.

Q. Okay. So he never said to you, you know, she hugs me differently. It makes me uncomfortable. I think there's more going on?

A. No.

Q. No. He never said, you know, I'm concerned about her, her sexual overtones towards me?

A. No.

Q. And did you guys ever sit down and have a conversation with T.B. about any of that?

A. Who is you guys?

Q. You and P.G.

A. Together?

Q. Yes.

A. Not to my recollection, no.

Q. And did P.G. ever have a conversation with T.B. about hugging him with you present?

A. I know he has said to her that he thinks that he should be more of an uncle rather than a father. She had to get that affection from father.

Q. Okay. Were you present when he had that conversation?

A. In the room.

Q. Right.

A. I wasn't sitting down and having the conversation with her.

Q. Okay. And did you ever hear P.G. telling T.B., you know, the way in which you hug me makes me uncomfortable?

A. No.

[104] Some rather absurd evidence emerged early on from this witness in her cross-examination. Part of her interaction with Constable Newham was recorded and the Crown put that to her in an attempt to have her admit that she had played down the defendant's physical aggression with her.

[105] Commencing at page 60 of the September 3 transcript the following exchange takes place:

MS. FREW: Q. So you remember saying to Constable Newham, at the bottom of that page there, "That when he was working for C., he was abused and he was beaten down and then he turned into my C." You're talking about C.R. there, right?

A. Yes.

Q. Okay. And then at the very end of that paragraph you say, "He would, you know, stop me from doing that. Sometimes he would grab me and throw me onto the bed and, um, I would make excuses."

A. Yes.

Q. Okay. So it seems to me that here, back in October, 2010, you're telling the officer, you know, he was physical with me and I would make excuses for it, fair?

A. Yes.

Q. Okay. So now you're telling the court something different?

A. No, I'm not.

Q. Okay. Explain that for me, please.

A. Okay. At this point in time, my abuse that I had received emotionally and the manipulation I had abused - had been used to for 20 years from my ex-husband was affecting me here.

Q. So you're lying to the officer?

A. No. My, my perception of what was happening was not accurate because of where I was, personally, with the abuse that I had from C.B.

Q. But, ma'am, you'd agree with me that you're saying, "He would throw me onto the bed and I would make excuses."

A. Yes, and that's what I was referring to is that incident where I was attacking him.

Q. Mmhmm.

A. He's never thrown me on the bed. He had diverted my, my approaches to him.

Q. And what has led you to this realization, I'll call it?

A. I'm from under C.B.

Q. Okay. But you hadn't been with C.B. in three years...

A. No.

Q. ...at that time, right?

A. But I'm out from under him, and I've been through lots of counseling, and I realized that it's not me, that I had been abused by him for 20 years and making things that I was the problem. And at this point in time, I was completely messed up because of what I had been through with my ex-husband, and he was still trying to manipulate and control me even though I wasn't involved in a relationship with him.

Q. Okay. So somehow some abuse by an ex-husband led you to tell the officer that it was P.G. who was the....

A. It's called transference.

Q. Sorry, just let me finish my question then you can answer, okay?

A. Mmhmm.

Q. So somehow some abuse you suffered at the hands of an ex-husband led you to telling the police officer that P.G. was at fault for the aggression. Is that what you're telling the court?

A. Yes, it's called transference.

Q. But you just....

A. From what I've experienced with my ex-husband, that the abuse that I was used to having transferred, and I was blaming P.G. for an abuse that was really me.

Q. Mmhmm. You're not a psychiatrist are you?

A. No, but I've been seeing one.

Q. You're not a psychologist are you?

A. No.

Q. You don't have any....

A. I have a degree in psychology.

Q. You have a degree in psychology. A bachelor's, I take it?

A. Yes.

Q. Okay. You don't practice in that field? No?

A. Not officially, but as a teacher yes, you do.

Q. Okay. You told us you're an elementary school teacher?

A. Mmhmm.

Q. Grade three?

A. Mmhmm.

[106] The rest of this witness' evidence in cross-examination was replete with inconsistencies and evidence that showed her undying willingness to put this flawed love affair with this man above the best interests of her daughters.

[107] This absolute determination and the willingness to do anything or say anything to support the defendant by this witness even spilled over into submissions on December 19, 2013.

[108] I had to chide K.B. about her conduct in the court during Crown submissions. This only points to the bias that I found her to have towards any criticism of her boyfriend, the defendant, or of herself.

[109] The context of this is best set out in the following excerpt from the Crown submissions commencing at page 55 of the December 19 transcript:

MS. FREW: Thank you, Your Honour. Just picking up where we left off – I was addressing counsel's submissions, and Mr. Bayliss made much of the fact that K.J. doesn't believe her daughter, and that says, you know, that should be very telling for Your Honour, but ultimately, that is the ultimate issue that Your Honour is to decide, and so I don't think it's as persuasive as counsel stresses it to be to Your Honour. Ms. J. was not present in the room for any of these offences and her skepticism about it, and the reasons that she put before Your Honour, are something for you to consider but her opinion on it, I don't think, is anything that you can draw from. And, counsel says, you know, with respect to the suicide attempts, there's no way that these could have happened in her home, and Ms. J. would have known about it – 'of course a parent knows what has happened; a parent would have noticed something was wrong' – but she did notice something was wrong; she testified before you and said that T.B. was coming to her – I think her evidence was two or three times – and said she was depressed, and they would talk about things. And she said both of her daughters were coming to her, telling her she was sad; she did notice something was wrong. And that's after the allegations come out, and I just ask you to keep in mind that these are after the allegations have come out already, and T.B.....

THE COURT: Ms. J., if you're going to sit in the back and shake your head while Crown submissions are going to be made, I'm going to ask you to sit outside. Understand that?

MS. J. FROM THE BODY OF THE COURT: Yes, sir.

2.0: Analysis

[110] The central issue in this case is credibility. To arrive at my decision, I have analyzed the evidence presented in this case with the following principles in mind.

[111] One, the accused is presumed innocent unless and until proven guilty beyond a reasonable doubt. The burden of proof remains on the prosecution throughout the trial. The accused has no burden to disprove any elements of the charges. The standard of proof that the Crown is required to meet in any criminal trial is a very high one indeed.

[112] The standard more closely approaches absolute certainty than the standard of proof on a balance of probabilities. In R. v. Starr, 2000 SCC 40, Mr. Justice Iacobucci stated for the majority at paragraph 242:

242 In my view, an effective way to define the reasonable doubt standard for a jury is to explain that it falls much closer to absolute certainty than to proof on a balance of probabilities. As stated in Lifchus, a trial judge is required to explain that something less than absolute certainty is required, and that something more than probable guilt is required, in order for the jury to convict. Both of these alternative standards are fairly and easily comprehensible. It will be of great assistance for a jury if the trial judge situates the reasonable doubt standard appropriately between these two standards. The additional instructions to the jury set out in Lifchus as to the meaning and appropriate manner of determining the existence of a reasonable doubt serve to define the space between absolute certainty and proof beyond a reasonable doubt. In this regard, I am in agreement with Twaddle J.A. in the court below, when he said, at p. 177:

If standards of proof were marked on a measure, proof "beyond reasonable doubt" would lie much closer to "absolute certainty" than to "a balance of probabilities". Just as a judge has a duty to instruct the jury that absolute certainty is not required, he or she has a duty, in my view, to instruct the jury that the criminal standard is more than a probability. The words he or she uses to convey this idea are of no significance, but the idea itself must be conveyed....

[113] In this case, the defendant has testified. I am mindful of the dictates of the Supreme Court of Canada in R. v. W.(D.). There, Mr. Justice Cory for the majority indicated that in a case where credibility is important, the trial judge is required to instruct the jury or himself, if it is a judge alone matter, that the defendant must be acquitted if the defendant's evidence is believed.

[114] The defendant is entitled to an acquittal even if the trier of fact disbelieves his evidence but his evidence raises a reasonable doubt with respect to his guilt.

[115] Thirdly, even if the trier of fact is left in no doubt by the evidence of the accused, the trier of fact must, nevertheless, ask himself, on the basis of the evidence which he does accept, if he is convinced beyond a reasonable doubt by that evidence of the guilt of the defendant.

[116] In assessing a witness' credibility and reliability, I must consider the witness' perception, memory and sincerity. I must consider the witness' ability to observe, store, recall and report evidence accurately, reliably, and truthfully. I must consider the witness' interest or bias, if any, including animosity. In assessing evidence of a witness, I try to listen carefully to their testimony and make observations of the witness while they are on the stand. I have to take into account that appearing and testifying in court can be a very stressful occasion for many persons and that witnesses can exhibit this in many different ways.

[117] As a result, I do not place as much weight on a witness' appearance or demeanour on the stand than the analysis of their evidence. I prefer to apply a threefold test to the testimony of the witness. I look to see if the testimony is internally consistent; that is, does the evidence fit together and is one piece of their evidence consistent with another? Secondly, is the testimony of a witness externally consistent? Does it fit with other known or accepted facts? Does it fit in with other evidence or testimony that is accepted or believed? Finally, does the testimony have a ring of truth to it? Does it stand the test of common sense?

[118] In short, the real test is in determining if the evidence of the various witnesses is credible. The question is, is it in harmony with the preponderance of the probabilities that a practical and informed person would readily recognize as reasonable in that place and in those conditions.

[119] I can accept some, all or none of a witness' evidence and I am required to weigh all of the evidence. This is not a credibility contest where I have to pick the version of one witness and, by doing so, reject that of another.

[120] Simply because I have not averred to a submission made by counsel or a piece of evidence in this proceeding does not mean that I have not considered it in arriving at my conclusion. This was one of the most difficult judgments that I have had to write in my judicial career.

[121] This trial was a full-scale attack on the credibility of a disturbed and vulnerable teenager who has endured many hardships in her life and yet continues to move ahead in an admirable manner. Taken on its face, it is a trial concerning allegations of a supposedly attention-starved disturbed teenager who makes sexual assault allegations about a man when he is on the other side of the world and who then recants those allegations, under oath, after having received independent legal advice.

[122] At first blush it seems to be a very shaky case. Yet, when examining the evidence of all the witnesses as a whole and applying common sense to the totality of the evidence, I am left with the firm opinion that the Crown has proven these allegations beyond a reasonable doubt.

[123] I found T.B. to be a very credible witness despite her weaknesses and flaws.

[124] Looked at it objectively, dispassionately and logically, the complainant's evidence, in my opinion, had the ring of truth to it and was not eroded or destroyed despite what can only be described as a no holds barred cross-examination by a skillful and aggressive counsel. In my opinion, it was strengthened by her responses and her grace under fire.

[125] The evidence of these assaults is somewhat generic in nature in that she could not recall or relate an extraordinary amount of detail about the assaults. He touched her breasts and grabbed at her crotch during some of these events. These are not high-level sexual assaults that are being alleged when compared to allegations that are frequently seen of digital or penile penetration or touching under the clothes. That said, they are very serious as is any sexual assault, but especially so when they occur in the context of a domestic living arrangement where the frailties of the victim are apparent to the accused.

[126] Also, her essential allegations of the assaults remained consistent and unchallenged after a vigorous and prolonged cross-examination.

[127] The hard questions remain. Why would she go down and sit on the lap of a man who sexually assaulted her a few days before and give him a hug?

[128] Why would she send him friendly emails and emails that stated that she did not want him out of her life after the sexual assaults occurred, ending with the phrase "love you xo"?

[129] Why would she delay in disclosing these events until he had left the country and moved half a world away?

[130] Why would she tell her own father that he had never inappropriately touched her when he asked her directly?

[131] Why would she swear a false affidavit after having independent legal advice saying that she had wrongfully accused him of these acts because she had motives to dislike him and his disciplinary role in the household?

[132] Was she misleading the Court when she said that she had not seen the affidavit until the day she signed it when, in fact, she had an electronic copy of it for some time before the final paper copy was given to her?

[133] Why would she state that she had called up to her mother during the last event in a joking manner that her boyfriend was doing something to her?

[134] Why did a mother who had testified that she could hear everything in the house, even in her bedroom from the upper floor, not hear this?

[135] Why would the defendant be so bold or reckless as to sexually assault her within mere metres of her own mother's bedroom when her mother was there?

[136] Why would she say to the defendant that she wished she knew someone like him who was her age? Was this an attempt to initiate some inappropriate behaviour on her part?

[137] How could a young woman with serious psychological issues be believed when she is cutting herself and attempting to kill herself?

[138] How would a mother not know that her daughter was so seriously disturbed that she allegedly attempted to commit suicide on numerous occasions?

[139] All of these questions raise serious concerns and seem at first blush to be an insurmountable hurdle for the Crown considering the standard of proof beyond a reasonable doubt that I hold them to.

[140] Even given that, the defendant's denials and her mother's testimony seem to have a logical explanation for every event. They paint the complainant as a misguided attention-seeking girl who is a chronic liar and whose evidence cannot be relied upon.

[141] My editorial comments while summarizing the evidence so far may give the reader a hint of my opinions in this case. They could not help but come out.

[142] I find the evidence of both the defendant and his girlfriend, the mother of the complainant, to be utterly incredible for the reasons that have been particularized in my summary of the evidence.

[143] The defendant testified like a video recorder, knowing and relating every miniscule detail of what were mundane events with a precision that was surreal and at the same time contrived. He had obviously put considerable effort in an attempt to mislead this Court.

[144] He intentionally lied under oath when he was asked whether he had in any way communicated with Mr. Benayon and stated positively that he had not. When he was confronted with the evidence that he had called his accuser's lawyer from Australia, his attempt to wiggle out from that lie was pathetic and enlightening to me.

[145] He went from a precise witness who would remember every mundane detail of events that occurred years ago to someone who was trying to salvage his credibility by saying that he recently forgot his keys in his car because of the trauma that these accusations have caused him. He even went so far as to suggest that his doctor said that he got throat cancer caused by this stress.

[146] He cried at one point when discussing that he had coached a girl in Australia that had been raped and then committed suicide. This excerpt is found at page 114 of the August 30 transcript. This response was, in my view, made to solely elicit sympathy. It was staged and dramatic and insincere. I viewed his crying as being nothing more than crocodile tears. They have large crocodiles in Australia.

[147] K.J. was such a biased and unbelievable and unpleasant witness that she ranks in my top ten of witnesses in my entire career both as a lawyer and a judge that I can say that I do not believe a word that she says.

[148] She relentlessly pressured her daughter to recant her allegations until she was successful in that quest. She constantly said to her "I know you are lying". She hired a lawyer and fed him all sorts of information, in conjunction with her scheming with the defendant, that would paint her daughter in the worst possible light, all in an effort to resume a flawed and poisonous relationship that allowed her to pick up this relationship with her hero while throwing her own daughter's welfare to the wind.

[149] She would say anything to paint her boyfriend in a positive light and her daughter in a negative one. She was utterly despicable, in my view, and a totally unbelievable witness.

[150] Regarding T.B., I will answer my initial concerns that one might have about her testimonial weaknesses as follows.

[151] Her evidence did not waiver in her essential allegations. Although much was made about her leaving out the YouTube incident in her police interview as being something sinister because it was suggested that she would not have gone down and sat on the lap and hugged a man who had recently sexually assaulted her, I think that a fair interpretation of the evidence is that Constable Newham's method of questioning her lead her to omit that incident from a question that he posed. She was a vulnerable 15-year-old girl faced with a video interview with a male police officer who was in a way misstating or summarizing her evidence. She felt intimidated and did not want to correct him. That is not unreasonable, in my view.

[152] To suggest, as Mr. Bayliss does, that she could have requested a female officer if she felt intimidated, to me, misses the point. She was intimidated and I accept that. She was not about to dictate to the police who would or could or should interview her. Very few mature adults would do that, certainly not a girl of her age and vulnerability.

[153] To answer the more difficult question as to why she would go and sit on the defendant's lap and give him a hug when he had recently sexually assaulted her, I agree that this is facially illogical.

[154] However, when taken in the context of the life that she had at that time it does become understandable. This was a child who was a victim of a vicious separation and divorce, an uncaring and somewhat deranged mother who constantly yelled, screamed and caused havoc in the household. She had seen the defendant as a cool guy, younger by 19 years than her father and someone who could give her the affection that she craved.

[155] That she would do as she did is understandable to me looking at the circumstances as a whole. During the first sexual assault he promised her that it would not happen again. She, in my view, naively had taken him at his word for that and wanted to return to some semblance of an affectionate and caring relationship. That is why she sat on his lap and gave him a hug, I believe. I reject his evidence that he chastised her for this and find that it is contrived and convenient to his defence.

[156] Regarding the emails sent to the defendant by her after the assaults, I consider this to be a further part of the pattern. She wanted normalcy in her life, a loving and caring father figure, and she knew that if she changed her behaviour towards the defendant that it would either raise suspicions or incur his wrath. This girl craved normalcy in her chaotic life. This is, I believe, also an explanation for her delayed and incremental disclosure of these events and I believe her explanation for this as given in her evidence. It makes sense in her unique circumstances and I accept it.

[157] Regarding her calling up from the basement indicating to her mother that the defendant was doing something to her at first instance troubled me. This is because it did not appear in her statement to the police and she did not mention it in her direct examination. As well, she used the term "jokingly" which I found to be an odd description. However, again I find that she may very well have done so and her mother did not hear it. It may have been said in a joking manner so that it was intended to have him stop what he was doing as opposed to having him confronted with an allegation of serious criminal behaviour.

[158] This was not fully explored in cross-examination or in direct. In the only scintilla of evidence that I think might have some factual basis to it that was uttered by K.J., I do note that she did think that her daughter was changing her story because she stated at one point that she did call out during this incident.

[159] This softens Mr. Bayliss' suggestions that the first time that she said this was in cross-examination. True, she did not mention it in her police statement or in her direct examination, but she did mention it to her mother well before the trial commenced.

[160] Regarding the issue of why she would have said to her father that the defendant did not sexually assault her, I find that this response was a totally understandable one. She had a complex and conflicted relationship with her father and I do not find it unusual that she would feel uncomfortable and uneasy discussing this with her father. She would have been embarrassed in disclosing these incidents to him, much in the way she was embarrassed in disclosing them to Constable Newham.

[161] She gave the evidence of her signing a sworn affidavit recanting the allegations after receiving independent legal advice in an honest and straightforward and believable manner. She went along with her mother's overwhelming persistent and unrelenting pressure to recant.

[162] I find that to be obvious from her mother's testimony and the emails that she sent to the lawyer. Her mother was obviously the driving force behind this and it was clear to me that her mother saw this as a way to clear the path for the return of her boyfriend and his ultimate exoneration. He, as well, was much more active in the genesis of this affidavit than he was willing to admit under oath.

[163] I find it inconsequential that she said the first time she saw the affidavit was when the lawyer showed up at her home and she signed it. That is the first time that she did see the actual physical affidavit and I do not import any deceit or attempt to mislead in the fact that she had received an electronic copy several weeks before and had made some minor changes from time to time. I am certain that any input that she had into the creation of that affidavit was simply to comply with her mother's most obvious wishes.

[164] The part of this trial that was most distasteful to me was the evidence of the complainant's emotional and psychological problems. Her Instagram account showed her having carved words on her arm, being in a hospital and being challenged on how often she had attempted to commit suicide and why, if she had tried to hang herself so many times, that she was not successful. She satisfactorily explained all of these attacks in cross-examination. The fact that she had tried to hang herself several times, she stated that she had a low pain threshold and would abort the attempt. She was then cross-examined as to why she did not have any marks on her neck. Why did she just go to school the next day? Why did not anyone notice her physical marks or low mood? The complainant answered all of these questions satisfactorily and honestly, in my opinion.

[165] Mr. Bayliss seems to have missed the point that a troubled teen can attempt suicide by briefly putting a ligature around their neck and within seconds abandoning the attempt. That does not make it any less of a suicide attempt. It does not necessarily leave marks. The fact that she does not cut deep enough does not make it any less of a suicide attempt. The fact that it she only takes 6 over the counter pills does not make it less of a suicide attempt at the time in her mind. It makes it fortunately, an unsuccessful suicide attempt or a half-hearted one. This was not to be mocked or belittled as it was to show that she had no credibility. That reasoning would suggest that if only she had succeeded at killing herself would she be credible.

[166] Weighing all of the evidence in this case and after careful consideration of all counsel's submissions, I find that I do not believe the evidence of P.G. or of K.J., nor does their evidence raise a reasonable doubt in my mind about whether he committed these acts as described by T.B.

[167] Even though I have rejected the defence evidence as being contrived and unbelievable, I still have had a hard look at the evidence of the complainant, which at first may seem problematic. Considering that I found her to be a very credible witness even after a prolonged and intensive cross-examination, I found that her explanations and evidence were logical and truthful and made sense to me in the madness of what was her life at the time.

3.0: Conclusion

[168] Looking at the evidence as a whole, I am satisfied that the Crown has proven beyond a reasonable doubt all the essential elements of the charges before me and I will therefore make a finding of guilt on all three counts.

[169] For the above reasons the defendant is found guilty of all charges.

Released: April 2, 2014

Signed: "Justice Stephen D. Brown"