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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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: November 19, 2014

Court File No.: Gore Bay 12-475

Between:

Her Majesty the Queen

— and —

D.M.

Before: Justice A.L. Guay

Heard on: April 30, July 24, 2014 and August 11, 2014

Reasons for Judgment released: November 19, 2014

Counsel:

• Stacy Haner, counsel for the Crown
• James Weppler, counsel for the accused D.M.

GUAY J.:

The Charge

D.M. is charged with sexually assaulting his daughter, K.T., on or about April 29, 2012. K.T. alleged that on that date, after bringing her home from an all-night party, D.M. came to her room and sexually assaulted her.

Background

[1] K.T.'s room is located in the basement of the family home. So too is that of her brother N.. K.T. alleges that when D.M. came into her room, she awoke and, noticing him, asked him to pass her a glass of juice which was located on a nearby table. According to K.T., D.M. then came over to her bed and asked her to move over, which she did. She said that he then lay down beside her on her bed, spread her legs and rubbed her vagina, making contact with her clitoris. Then, she said, while both of them were lying on their backs, he took her hand with his right hand and brought it into contact with his penis under his clothing. She described her reaction as being surprised and not knowing what to do about what was happening. She further testified that she told him to stop when he started to do these things, but he did not do so.

The Evidence

[2] It was D.M.'s evidence that he was wearing his pajama bottoms during the morning of the incident. The evidence indicated that he generally wore only his briefs to walk around the home when he awoke from sleep. K.T. indicated in one part of her testimony that he was not wearing clothing when he was in her bed but later agreed that he was, although she did not describe the clothing he had on as pajama bottoms.

[3] It must be recalled that during this alleged episode, her brother N. was in his room nearby and that both his bedroom and K.T.'s bedroom had curtain doors. K.T. indicated that her brother N. could be heard sleeping when the alleged events took place. K.T. testified that the whole episode ended when D.M. got up and left her bedroom.

[4] While a specific time for these events was not given, the evidence indicated that the alleged events took place somewhere between 5:00 and 7:00 on the morning of April 29, before her mother, B.T., left for work that day. The evidence further indicated that D.M. had gone to pick up K.T. from an all-night party at some time around 5:00 that morning and that her mother went to work around 7:00. It was K.T.'s evidence that she did not tell her mother what had happened before she left for work because she believed her to have left the home when she decided to tell her about the incident. D.M. testified that this was not correct because his wife's vehicle could be seen from the window in K.T.'s room, so she would have known that her mother had not left for work when she had the chance to tell her. K.T., however, testified that when all of this happened, the curtains and blinds in her room were closed. K.T. also testified that she did not tell her mother about what had happened when she did come home from work later that day because family matters overtook the daily routine in the home. K.T. did testify that she told her mother about what had happened a week or so later, saying that she had felt weird when her father abused her.

[5] In her evidence, K.T. easily denied that there had been a great deal of conflict between her and her father. Her mother, B.T., agreed that there had been some conflict between the two earlier when K.T. made them aware that she was bisexual. B.T. indicated that D.M. had not been pleased with this situation. Neither B.T. nor K.T., however, believed that K.T. and her father were in a state of conflict generally and at the time the alleged offence took place. Her brothers agreed that this was so and testified that they had not noticed any animosity between the two. The fact that D.M. would willingly go to pick up K.T. from an all-night party where he knew that she had likely been consuming alcohol and drugs perhaps tells us more than anything about his relationship with his daughter at the time of the alleged offence. It appeared to be a normal father–daughter relationship.

[6] In her testimony, K.T. referred to her father as "Dad". She did not appear to view him in a hostile manner. When questioned about alleged conflict between their sister and their father, her brothers seemed unaware of such conflict and had not witnessed alleged, negative behaviour on her part towards him. While her attitude on the night of his arrest seemed somewhat indifferent, it does not appear to have been unlike that of her three brothers, who were also present on that occasion. The family member most upset by D.M.'s arrest was, in fact, B.T.

[7] Much was made of alleged threats by K.T. against her father on four occasions to have him charged with rape if he did not give her money for drugs. K.T. testified that her parents knew that she was using marijuana, allegedly to calm herself. She acknowledged that she been admitted to the Sudbury Algoma Hospital in 2012 and 2013 as a result of emotional and psychological difficulties and that she had subsequently refused to take the medication prescribed for her by the doctors there. Given, however, the circumstances in which she consumed these illicit substances, it is clear that she was not doing so for medical reasons only and that her use was more for personal stimulation than for medicinal purposes.

[8] D.M. testified that he had witnessed K.T. smoke marijuana in the basement of their home. He also alleged that she had done so there with her friends and that it had upset him. When asked about this, her brothers testified that they were unaware K.T. had done so or that she in fact used marijuana. D.M. related that he had suffered from substance abuse problems earlier in his life and that it upset him K.T. was now making use of such illicit substances.

[9] D.M.'s sister, Y.K., testified that she had heard her niece, K.T., threaten to allege that her father had raped her and that, because of his past record for sexual assault, no one would believe his denials. What should be noted here, however, is that the allegations made by K.T. giving rise to the present charges were not that that she had been raped by D.M., but rather that he had come into her room and inappropriately, sexually touched her on a specific occasion. The timing of her disclosure to her mother and its circumstances do not suggest that K.T.'s allegations were fabricated. There is a very big difference between an allegation of rape and an allegation that someone has been sexually touched by her father on a specific occasion. One can reasonably deduce from the evidence that K.T.'s brothers, and N. specifically, were aware of their father's history. Their response, including that of K.T., to him seems to have been that of unappreciative and disrespectful adolescents. Notwithstanding their negative attitude toward their father, K.T. and her brothers seemed to enjoy a more solid and less problematic relationship with their mother, B.T.

[10] In his defense, D.M. denied that he had gone down to K.T.'s room on the morning of April 29, 2012. He suggested that he did not have the physical ability to do what K.T. alleged he had done to her. He said he suffered from crippling arthritis and rheumatism and that an injury to his left shoulder and previous flesh-eating disease in his right arm made it difficult for him to move, lift things and get up and down. He demonstrated to the court the difficulty he encountered going from a sitting position onto the floor and back up again. While it seemed obvious that he did have some difficulty manipulating his left arm and hand, this was not the case with his right arm and hand which, notwithstanding earlier surgery to remove infected muscle tissue therein, still seemed to have noticeable musculature and flexibility. While D.M. suggested that he did not have much feeling in his right hand, the evidence disclosed that he was able to hold and manipulate cigarettes and operate light machinery with it. It should be recalled here that K.T.'s evidence was that her father had touched her inappropriately with his right hand.

[11] D.M.'s wife, B.T., did not think him so physically incapacitated as to be unable to enjoy reasonable mobility overall. She testified that D.M. had perfect mobility in his right arm, noting, with respect to his left arm, that he also had some use of it, even though he would occasionally drop things when he held them with his left hand.

[12] D.M. alleged that his physical condition inhibited him from going down to the basement bedrooms of his two children, K.T. and N.. He maintained that it was painful for him to do so. There was, however, clear evidence that he had done so in the past and that he was able to move about the family home on a daily basis without assistance or difficulty.

[13] While it is clear that K.T. had on a number of occasions threatened to make rape allegations against her father, D.M., maintaining that he would not be believed because of his prior criminal record for sexual assault, one must question whether these "threats" were taken seriously by him. B.T. was aware of his record, but D.M. never spoke to her about any concerns he had with the fact that K.T. was making threats to falsely accuse him of raping her. True, Y.K., D.M.'s sister, had heard K.T. make these threats and, on one occasion, told her not to do so. Neither of them, however, were concerned enough about these threats, given what they knew of K.T.'s past emotional and psychological difficulties, to discuss them with B.T.. While Y.K. explained why she had failed to do so (she did not, she said, want to cause trouble for her brother's family), D.M. could not say why he himself had not done so. When asked why she had not brought these threats to the attention of the police after her brother was charged, Y.K. had explained that she was compromised and at a loss about what to do.

[14] It should be recalled that B.T. testified D.M. did not give the children much money. She was the principal wage earner in the home and testified that she was the one who took care of the children's financial needs. Those needs did not appear to include money to purchase drugs. Given that D.M. seemed to manage some of the family income, including the money he earned from occasional work of cutting and selling logs, it was not surprising that the children and, in particular, the oldest child, K.T., would try to "extort" money from him. Again, I note the adolescent disrespect of the children in referring to their father as a "bum", perhaps on the basis that he was not employed full time and was around the house far too much for their adolescent liking. This disdain, as noted earlier, was evident once their father had been arrested and taken away by the police on the evening of May 9, 2012. The alleged comment by N. about all of them getting money from the Criminal Injuries Compensation Fund as a result of his sister's abuse was, if it was made (he denied it), thoughtless, inconsiderate, adolescent talk which fit in with the children's attitude towards their father. He, from all appearances, appeared to treat them well and had done many activities with them as they were growing up.

[15] When K.T. was examined and cross-examined, she was able to provide quick, reasonable explanations for the questions put to her and to offer the kind of details and answers one would expect to obtain from someone who made the allegations she made. Her testimony had an air of reality to it. D.M., on the other hand, often appeared lost and unable to explain why he had done or not done certain things. I found D.M.'s evidence evasive. It was, I find, an attempt to portray himself as a person physically unable to commit the offence his daughter alleged against him. While D.M. does indeed suffer from a number of debilitating physical problems, he appears quite ambulatory on a day to day basis and certainly physically capable of committing the offence with which he was charged. K.T.'s evidence rang true, notwithstanding her bad, adolescent behaviour towards her father.

Conclusion

[16] In summary, I did not believe D.M.'s evidence and where it conflicts with that of K.T. and B.T., I reject it. I do believe K.T.'s evidence as well as the evidence of B.T. and I accept their evidence. I accept the evidence of K.T.'s brothers with respect to the state of their sister's relationship with their father. While I also accept Y.K.'s evidence about threats made by K.T. against her father, I do not characterize those threats as anything more than impudent remarks by a disrespectful adolescent against a parent from whom she was trying to obtain money. While these remarks may have troubled her, they did not seem to have troubled D.M., her brother, enough for him to have a serious discussion with his wife, K.T.'s mother about them. I find that these threats were far too public to have real meaning or intent. I find that someone who makes such threats in the presence of others really does not have a very serious intention to carry them out.

[17] I find that in his evidence, D.M. did not raise a reasonable doubt with respect to his conduct in this matter. I find further that on the whole of the evidence, the Crown has, as it has the primary obligation to do, established beyond a reasonable doubt that D.M. sexually assaulted his daughter K.T. on the morning of April 29, 2012.

Released: November 19, 2014

Justice A.L. Guay