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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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

Court File No.: Toronto Region

Ontario Court of Justice

Between:

Her Majesty the Queen

G. Brienza, for the Crown

— And —

R.L.

A. Sobcuff, for the accused

Heard: December 13, 2013, January 10, 29, March 7, 31, May 30, August 1, 12, September 2, November 28, 2014

FELDMAN J.:

Introduction

[1] R.L. entered not guilty pleas to four counts of Sexual Interference and four of Sexual Assault of four sisters, his nieces, said to have occurred between January 1, 2002 and January 1, 2010.

[2] The offences were alleged to have involved multiple sexual violations of the complainants, including digital penetration, mostly during their early and then pre-teen years while they slept over at the defendant's apartment.

[3] The Crown called the sisters, three of whom are triplets, as witnesses in support of its case. They are the children of a brother of the defendant's spouse. Mr. R.L. testified in his own behalf. In addition he called his wife, sister-in-law, two friends and a police officer as defence witnesses.

[4] I am mindful of the prosecution's burden of proof that will be determined by a weighing of the evidence and the credibility of the witnesses. In this regard, I take note of the direction by Wilson J. in G.B., A.B. and C.S. v. The Queen (1990), 56 C.C.C. (3d) 200 (S.C.C.) that trial courts should apply common sense when dealing with the testimony of young persons that may raise reliability concerns by not imposing "the same exacting standard on them as it does on adults" without lowering the standard of proof.

[5] Put another way, in assessing child evidence, it is important to take account of that individual's mental stage and intellectual level, comprehension and ability to articulate her recollection, while at the same time maintaining the traditional standard of proof. In R. v. W.(R.) (1992), 74 C.C.C (3d) 134 (S.C.C.), McLachlin J. (as she then was) said:

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

[6] Justice McLachlin made it clear, however, that every person giving testimony, of whatever age, must have his or her credibility and evidence assessed "by reference to criteria appropriate to [her] mental development, understanding and ability to communicate." She went on to add:

"In general, where an adult is testifying as to events which occurred when she was a child, her credibility should be assessed according to criteria applicable to her as an adult witness. Yet with regard to her evidence pertaining to events which occurred in childhood, the presence of inconsistencies, particularly as to peripheral matters such as time and location, should be considered in the context of the age of the witness at the time of the events to which she is testifying."

[7] This common sense approach to the testimony of children, that is, in viewing age as a relevant factor in assessing the significance of apparent shortcomings in a young complainant's evidence has been followed in Ontario: see R. v. Robinson, [2002] O.J. No. 2349 (Ont. C.A.); R. v. Ritchie, [2003] O.J. No. 4384 (Ont. C.A.); R. v. R.W.B., [2003] O.J. No. 3086 (Ont. C.A.).

The Evidence

Background

[8] Given the number of witnesses and their nicknames, this case requires a lineup. The triplet complainants are K.P., C.P.2 and C.P.1, all presently 18 years of age. Their 21-year old sister is C.P.3. Their parents are O.P. and B.S.. The grandparents are M.P., age 85, and S.D., who is in her 70's.

[9] The grandparents lived with their daughter, L.M., or aunt L.M., and her husband, R.L., the defendant, known as Uncle R.L., in an apartment at P[…] Ave. in Scarborough. L.M.'s younger sister, S.L.S, called aunt S.L.S, lived in the apartment with them from 2005 to 2008. I.P., or Uncle I.P., is O.P.'s brother. His wife is aunt T.. In 2009, another paternal sibling, B.P., or aunt B.P. died in Guyana. Her brother, C., also lived there. The last sibling mentioned in the evidence is R.R., or aunt R.R., who lived in Brampton.

[10] At various times during the currency of the purported time frame, two friends of Ms. L.M., A.F. and V.D.S., lived in the apartment on P[…] Ave.

[11] Toronto Police Service officers referred to or called as defence witnesses are P.C. Christine Collins, P.C. Agnes Fabiszewska and P.C. Anderson. Two friends of the defendant, C.Y. and H.B., were, as well, called as character witnesses.

[12] Finally, the complainants spoke about the allegations to their guidance counsellor, Ms. Hassan. It was she who called the police.

[13] This cast of siblings makes up a large family that was in conflict over ego, money, property and allegations of elder abuse about which more will be said as the evidence develops. The defence says it is within this context that the court should view the prosecution evidence as fabricated. The Crown suggests that this background has little relevance to the witnesses' credibility in testifying about the alleged offences.

[14] The family members are originally from Guyana. While there, the complainants lived with their grandparents who helped raise them and with whom they were close. The girls arrived in Canada in 2001 at age 4, the older sister, age 8. Mr. R.L. came to this country in 2002, his in-laws in 2003.

[15] The grandparents were to have resided with I.P. who sponsored them, but for reasons that are unclear he reneged on that commitment, causing tension within the family. Mr. R.L. took them in and supported them. They continue to live with him.

[16] The triplets are uncertain of precisely when they began to visit their grandparents. They say they stopping going when they were in grade 5 or 6, when they were 11 or 12 years old, the older sister prior to entering high school. The evidence indicates they were brought over almost every other weekend, most often one or more of them sleeping over. They recall the visits lasting 3-4 years before they abruptly stopped. Their recall of details and times given the number of allegations and passage of years, as well as their young age, inexperience and immaturity, sets the context in which their evidence, apart from their reliability as adult witnesses, is to be weighed.

[17] In 2004, Mr. R.L. and his wife applied for social assistance on behalf of the grandparents to assist in their support. I.P. became upset with them given his sponsorship undertaking to the government. In the course of that dispute, I.P. assaulted L.M. and was ultimately placed on a peace bond. The hypocrisy in his upset with his sister is apparent.

[18] Unbeknownst to most of the family, the grandparents, in seeming gratitude for their care, transferred their property in Guyana to aunts L.M. and S.L.S.. This was revealed in 2009 during a funeral in Guyana for aunt B.P. where the siblings were in attendance. L.M. alleges she was threatened and attacked with machetes by the complainants' father and his older brother, C., who was arrested. The police report referred to the incident as a "misunderstanding".

[19] Ms. L.M. told the court that her husband was investigated for elder abuse 5-6 times. Mr. R.L. made reference to one such investigation in 2008 that resulted in no finding. In 2011, R.R. visited the apartment in an attempt to get her parents to leave. They refused and denied being subject to abuse. Ms. R.R. had called the police in the past about her concerns.

[20] The result of all of these family fissures was that the siblings were estranged and in different camps.

[21] In March 2012, K.P. spoke to her guidance counsel, Ms. Hassan about the purported sexual violations. Ms. Hassan later spoke with all the complainants. She ultimately called the police on their behalf. The girls made videotaped statements to the police in April 2012.

The Complainants' Evidence

[22] K.P. believes her visits to the defendant's apartment to spend time with her grandparents may have started when she was in grade 4, although she is unsure if it was earlier. She says they occurred almost every other weekend and that she often slept over with one of her sisters, usually C.P.1.

[23] She testified that she thinks she was subject to unwanted violations by the accused almost every time she was there. She believes the visits stopped when she was in grade 6, possibly grade 7.

[24] Her first memory is of the defendant sucking on her breasts and placing his tongue on her vagina. At the time, she believes her sister was in the kitchen with her grandmother, her grandfather in his room watching television and her aunt L.M. not home, likely shopping, as she sometimes did.

[25] K.P. was the most detailed of the sisters and alleged a number of assaults. She told the court that when she was around age 10, after a shower, Mr. R.L. came into the washroom and lifted her up on the toilet seat, removing her towel and sucking on her breasts. She says at one point he just stopped on his own and left. Everyone was home.

[26] C.P.2 lends support to this rendition. She says that after her grandmother told her K.P. was taking a shower she opened the door and saw her sister standing on the toilet seat with the accused sucking on her nipples. She is not sure of the year but believes it occurred when she was in grade 3 or 4. She did not tell anyone until grade 9 when she informed K.P. about what she had seen at a time all the sisters discussed these matters in the basement of their home over the March break following a meeting with Ms. Hassan who had encouraged her to disclose the abuse. I observed that when C.P.2 was testifying about this she was crying.

[27] K.P. went on to describe other incidents. She spoke of a time she was sleeping on a bunk bed with her grandmother while C.P.3 was above her and her grandfather sleeping on a mattress on the floor. She said the accused came into the room, got on his knees, pulled down her pants and put his tongue on her vagina. She said no one else woke up.

[28] On another occasion she and one of her sisters were in the accused's room when he played a 'flipping' game with them, that is, they stood on his knees while holding his hands and flipped over landing on the floor. She said that during this manoeuvre the defendant felt her back and inner thighs. She indicated the defendant played this 'game' a number of times.

[29] K.P. also recalls a time when she was 9 or 10 and alone with the defendant in his room. She says he lifted up her shirt and kissed her breasts. When her grandmother came in he stopped but she asked why the complainant was in the position she was.

[30] The complainant went on to tell the court that on another occasion she was alone in the kitchen when the accused came in, put his arm tightly around her neck and then put his hand up her shirt and then down her pants.

[31] Finally, she says she was watching television in the living room covered by a blanket when the defendant put a hand under the cover on her inner thigh, stopping only when aunt L.M. entered the room.

[32] K.P. told the court that around age 10 she and C.P.1 decided to be together rather than alone in a room with the accused in light of the unwanted contact. She was upset and confused by the violations but had no experience with these body parts and did not know what to say, so she said nothing.

[33] She said she sought the advice of her guidance counsellor years later in March 2012, when she felt these experiences were affecting her relationship with her boyfriend. Ms. Hassan told her to discuss the issue with her sisters over the March break and then tell her parents. She did so, but her siblings refused to discuss these matters with their parents for fear they would be looked at differently by them and become over-protected.

[34] After March break, Ms. Hassan spoke to all the girls and encouraged them to disclose the abuse to their parents. She called the police. The girls spoke to their parents and then provided the police with videotaped statements. K.P. agreed she told the police these incidents occurred when she was 11-13 years old but upon reconsideration revised her estimate in her evidence to 8-10 years.

[35] K.P. testified she was aware of strains in the family between her parents, aunt L.M. and I.P., as well as of the transfer of property. She said she was not aware of the I.P. assault, the purported threats by her father and I.P. or aunt B.P.'s complaints to the police about elder abuse, although she heard that uncle R.L. had hit her grandparents which she found upsetting.

[36] She told counsel that in the March meeting her and her siblings talked about their unhappiness over the purported elder abuse and their wish to have their grandparents free from the defendant's control but says they were focused on how to deal with their own troubling experiences.

[37] In assessing K.P.'s evidence, I view it in the context of a young person testifying about uncomfortable, perhaps embarrassing facts concerning matters that occurred years before when she was quite young and immature. As well, I weigh the plausibility, internal consistency and reliability of her allegations taken together with all the evidence including supportive testimony of other witnesses.

[38] Finally, I consider her demeanour, although a limited factor in the weighing process, given counsel's suggestion that by occasionally smiling when describing an unwanted touching she indicated a lack of seriousness about her claims. K.P. was soft spoken and I perceived her rather to be quite shy. She explained that she felt awkward and embarrassed when speaking of sexual matters to strangers and was nervous about testifying in court. She said she sometimes smiles to mask the discomfort, overall, in the circumstances, a plausible explanation.

[39] C.P.2's testimony tended to materially support K.P.'s evidence in relation to the substantive allegations. She said she was very small, perhaps 7 or 8, when she first started sleeping over at Uncle R.L.'s apartment, usually with K.P.. She believes she stopped before turning twelve and while her parents indicated they could no longer visit, she recalls her and K.P. also did not want to go back because of their experiences. She said that prior to the visits ending the defendant would occasionally pick them up. Their mother sent them along despite their reluctance to go with him.

[40] She testified that while they visited on some weekends, they also went there at Christmas and March break. She said, likely incorrectly, that aunt L.M. was often at work. She stopped hugging the accused, as did the others, because of his behaviour and her dislike of him.

[41] C.P.2 also described the 'flipping' game during which at times she says the defendant put his hand down her pants and 'fingered' her. She believes that she was alone with Mr. R.L. when this occurred. In fact, she told the court that in her case, all of the unwanted violations she experienced occurred while she was alone with the defendant in his room, perhaps once or twice a month. She continued to go to his room, she believes, because she was then small and naïve.

[42] C.P.2 confirmed that during the March break discussion with her sisters the consensus was against disclosing to their parents to avoid their fear in the result of being kept in a 'cage'. She said there was very little detail of the abuse discussed as they were uncomfortable talking about it, merely sad all were victims of what had happened to all of them.

[43] She told Ms. Hassan about the fingering and having observed the shower incident. Her guidance counsellor let her know something similar had happened to K.P.. She agrees that ultimately Ms. Hassan persuaded them to tell their parents. Little detail was provided to them. She told her mother she was too small to fight back.

[44] She continued to be concerned about the allegations of elder abuse. At one point, after the visits had stopped, when she was in grade 8, her mother persuaded aunt L.M. to let them see her grandparents. She recalls telling her grandmother that she and her sisters would get her out of the apartment and that everything would be alright, meaning she would be safe. She had earlier seen her grandmother cry while denying having been assaulted by the defendant when confronted by aunt T.. Her mother told her that her grandparents denied being struck. C.P.2 said she did nothing as she did not know what to do.

[45] C.P.2 feels that Mr. R.L. is not a decent man because of the assaults and the elder abuse. When she spoke to the police her focus was on the assaults but she felt the need to raise her concern that the defendant was hitting her grandparents.

[46] She said she was aware only of the transfer of the home in Guyana as the source of conflict in the family. She told the court that she found it difficult to discuss the alleged violations and was disheartened that her sisters had also endured what she had gone through. She says that while they had opportunity they did not discuss the details of their own experiences prior to testifying.

[47] C.P.1 testified that she slept over at Uncle R.L.'s apartment in her grandparents' bedroom mostly on weekends and most often with K.P.. She recalls aunt L.M. always being there on those weekends. She does not agree that the defendant's room was out of bounds for them.

[48] In fact, her first bad memory is of lying beside the defendant on his bed watching television during which she says he put his hand up her shirt to briefly feel her breasts and then down her pants placing his finger in her vagina for a couple of seconds. She was shocked and afraid but said nothing. She describes herself then as feeling weird, quiet and sad. She recalls that earlier aunt L.M. had her lie down beside her uncle. While she knew that what her uncle had done to her was wrong, she said she felt too embarrassed to tell her aunt. She thinks she might have been 11 years old at the time.

[49] On another occasion in his room, C.P.1 told the court she tried to get away from the accused when he put his hand down her pants but she said he pulled her back and succeeded in putting his finger inside her vagina for a few seconds. She says she stopped going in grade 5 or 6 rendering her estimate of her age during the first incident questionable.

[50] As did K.P., C.P.1 recalls they had an understanding that when one was alone with the defendant, the other would join her sibling in that room.

[51] C.P.1 testified, as did the others, that it was not until they were in high school that all of them discussed the fact they had been abused and that they were as well concerned about the safety of their grandparents. She and K.P. would not agree to speak to their parents despite the urging of Ms. Hassan. She recalls they were crying and afraid of how their parents would react.

[52] It was only after a further meeting with Ms. Hassan that the girls agreed their guidance counsellor could inform their parents. She also gave permission to Ms. Hassan to call the authorities.

[53] C.P.1 later met with the police. When she was asked if the defendant had ever put his hand down her pants, she responded in the affirmative, adding on her own that he also put his hand up her shirt. Later at home she spoke to her parents but provided no details beyond agreeing she had been subject to unwanted touching.

[54] When Det. Anderson, who took her statement, inquired at the end of it if there were anything else of importance to tell, C.P.1 asked if they knew about her uncle hitting her grandparents. She felt it was important to say this and hoped some action might be taken against him as a result.

[55] C.P.1 was aware of conflict between I.P. and L.M. and that the transfer of the property in Guyana was a source of tension in the family. She had also heard that aunt B.P. had called the police about elder abuse. She agrees the abuse allegations may have affected her feelings towards uncle R.L. and aunt L.M..

[56] C.P.3 is the eldest sister. She told the court she was subject to many unwanted violations when alone with accused. She does not recall the first contact but believes it occurred when she was around 11 years old. She says she does remember the last occasion when she was in grade 8 and her mother had dropped her off at uncle R.L.'s after school.

[57] C.P.3 testified that in that instance while she was helping the defendant on the computer he came up from behind and put his hand around her placing it on one breast. She says she pushed him off and went into the kitchen to be with aunt L.M., not telling her, she says out of shame and embarrassment. She explained that looking back it was "easier said than done" for a young person to speak up in those circumstances. This makes common sense and is a compelling answer to the suggestion she might have spoken up at the time.

[58] The most serious incident she recalls was one summer weekend when she was 13 or 14. She says that aunt L.M. was at work, her grandmother out doing the laundry and her grandfather also out exercising by walking up and down the stairs in the building. C.P.3 told the court that Mr. R.L. touched her chest and that she pushed him away. But he came at her again, picked her up and lay her down on the bed in his room, although she said she told him to stop, and then put his finger inside her vagina. She was able to get up when her grandmother returned.

[59] On another occasion, when she was 12, C.P.3 said she was in bed sleeping between the defendant and aunt L.M.. She says she awoke to find the defendant touching her vagina underneath her night clothing. She said she went to the washroom and then returned to sleep beside her aunt.

[60] C.P.3 told the court that there were other such violations over the years, mostly touching her chest, but none as serious as the ones she referred to. When one of her sisters was there she made sure to sleep with her to minimize contact with Mr. R.L.. She said she continued to visit in order to see her grandparents to whom she was close and tried to stay away from the accused.

[61] She believes the visits stopped because of conflict between her parents and the defendant's wife prior to her attending high school. She was aware of other tensions in the family, one aspect of which involved the disputed transfer of property.

[62] C.P.3 testified that she never spoke to her sisters about these issues prior to the basement discussion. Before this she had determined to move on from these difficult experiences but when she learned her younger siblings had suffered similarly at the hand of the accused she was troubled by that and was determined to speak up in support of them so that, like her, they could learn to cope with the emotional fallout and move on.

[63] She said she did not discuss details with her sisters, only that something happened. She was similarly stingy with details in her statement to the police, only opening up as required to do at trial. She rejected counsel's suggestion that she fabricated her evidence and that she went along both out of loyalty to her siblings as well as to punish the accused for the alleged abuse of her grandparents.

Defence Evidence

[64] Mr. R.L. is 63 years of age. He has been in Canada for 12 years. He has always been employed. He says that he works sometimes on Saturdays and on some Sundays. In a letter from the defendant's employer, the officer manager wrote that prior to Nov. 13, 2006, the normal working hours of the day shift on Saturdays were 7 a.m. – 12 p.m. ("only scheduled as per production requirements"). The frequency is unclear. As well a letter from Ms. L.M.'s employer indicates that she does not work on weekends.

[65] Mr. R.L. testified that when the complainants were 6 or 7 years old they began to sleep over bimonthly on weekends and in the summer in different combinations usually in their grandparents' room where there was a bunk bed. He recalls the girls would spend time with their grandmother, watch television in her room or the living room where there was also a computer or go shopping with his wife.

[66] He was emphatic that the girls were not allowed in his bedroom that he says was locked all the time, nor did they watch television there or lie in his bed. He denies ever being in bed with them. He agrees he played the 'flipping' game with them, but only in the living room and at their request.

[67] Mr. R.L. testified that he was never alone with any girl. He said he was working for the most part, implying that he was hardly around when they were there. He believes they stopped visiting in 2005 as a result of problems within the family, including I.P.'s assault of L.M. in 2004 and the conflict arising from the transfer of the property. He points out that in 2008, the police found no evidence he had abused his in-laws as had a social worker in 2011. He denies all allegations of sexual assault and interference.

[68] L.M.'s testimony might be described as, in part, advocacy on behalf of her husband. She wholly parroted his evidence. She testified that she was home on weekends and always present when the defendant was there except when he worked on the weekends which was most of the time, a likely exaggeration given the content of the employer's letter that Saturday work, there being no mention of Sunday, was limited to production need. She said the complainants visited every other week, without indicating in what combination and if they slept over. She said they were in their grandparents' room most of the time, permitting the inference she intended to create the impression there was little opportunity for her nieces to have contact with the accused.

[69] She told the court her husband would hug and kiss the girls which was part of their culture. It would seem she hadn't noticed that sometime after they started visiting, as C.P.2 told the court, which on the evidence I accept, that the girls had shied away from this cultural imperative given the defendant's behaviour.

[70] Ms. L.M. testified that she never saw any of the complainants alone with the defendant in their bedroom that was in any case locked all the time, nor were they allowed to watch television there given that there were personal items and papers they wished to keep private. When it was pointed out that it was for the most part only her parents and previously her sister, with all of whom she was undoubtedly close, living in the apartment with them, the witness offered the weak excuse that she and her husband had gotten used to locking the door, particularly on weekends when she was purportedly at home. In my view of the evidence, this explanation makes little sense, is self-serving and is doubtful.

[71] Ms. L.M. also testified that she did not know why the girls stopped visiting. That might have made her the only one in the family to be unaware of the conflicts among the siblings that led to their estrangement. It is evidence that is hard to accept.

[72] She is supportive of her husband in relation to the elder abuse allegations. She insists the alleged offences never occurred. How she would know this with certainty is unclear.

[73] S.L.S is Ms. L.M.'s younger sister. She told the court that in light of the fallout from being one of the beneficiaries of the property transfer she is now only close with L.M. and her husband. She lived with them from 2005-2008 and so would not have seen her nieces at the apartment on weekends as the visits had apparently stopped by then.

[74] The defence called two of the accused's friends, C.Y., age 76, and H.B., age 74, as character witnesses. They got to know Mr. R.L. as they attended the same Church. They both told the court that the defendant is active in the Church and assists disabled persons and those in need. Mr. C.Y. has seen the complainants at the accused's apartment at least a dozen times, but not since 2005.

Positions of the Parties

[75] Mr. Sobcuff, for the accused, submits that the triplets colluded in fabricating false allegations of sexual assault motivated some 9 years after they stopped visiting the defendant's apartment by a collective animus to punish the defendant for abusing their grandparents in seeking to have the police remove him from his residence. He says the girls acted independently of their parents led by K.P. who concocted an unreliable chronology and buttressed by the elder sister, C.P.3, who jumped on board this conspiracy. In addition, he submits that their evidence is unreliable and that the Crown has failed to meet its burden of proof.

[76] Mr. Brienza, for the prosecution, submits that the family tensions, about which the complainants knew very little, had not much to do with the substantive allegations and that their evidence, particularly given their young age at the time of the events and the passage of time, was reliable.

Credibility Issues

[77] Each of the complainants described multiple incidents of unwanted touching over the likely course of about 3-4 years of their sleeping over bimonthly at the defendant's apartment. They did so with imprecision in relation to details, dates and frequency. They were at the same time very young, naïve and inexperienced. Assuming the violations occurred, it makes common sense given their stage of life that they were, as they indicated, ashamed, fearful and confused while still drawn to continue visiting their grandparents who helped raise them and with whom they were close.

[78] The passage of years and the frailties of youthful recollection sets the context for the lack of certainty and inconsistency in what are mostly peripheral matters. Of significance, I found that on the evidence the complainants were not seriously challenged on the material facts in issue.

[79] Their reluctance from embarrassment and fear of consequences to disclose the abuse to their parents is plausible and reasonably inferred by the fact that K.P. initially chose to confide in her guidance counsellor and relied on her to speak to her parents. It was only at the behest of Ms. Hassan that the girls met to discuss disclosure.

[80] On this evidence, I accept that their March break discussion was focussed, not on the details of their encounters, but rather on the emotional fallout and the need to support each other as they moved on. K.P. spoke of how she was moved to come forth because the internal impact of the events on her emotional wellbeing was affecting her relationship with her boyfriend. By contrast, C.P.3 tried to put the abuse behind her but was saddened that her younger siblings had similar experiences and felt she owed her sisters support to help them move on as she had. These are credible responses prompted by individual need and circumstance.

[81] In her statement to the police and in testimony K.P. was inordinately shy and uncomfortable in discussing the sexual allegations. I found her sincere, straightforward and without animus in her evidence, as I did C.P.2 who I observed did not embellish her evidence and who was candid in expressing concern about her grandparents' safety.

[82] C.P.1 appeared strong-willed but I found her to be straightforward as well. I view her uncertainty on details as a function of the passage of time. C.P.3 is older and seems more mature and level-headed. It is apparent she was better able to cope emotionally. She is clearly a private person who was reluctant to discuss the details of her own experiences. I accept the sincerity of her evidence that as the older sister she felt it to be her obligation to play a supportive role and while reluctant to discuss details did so in testimony.

[83] I view the uncertainties in recall and details of these witnesses and any reliability concerns in this context. The memory of the complainants and their evidence was only similar in detail but consistent in relation to the material facts in issue, their reliability enhanced by their testimonial demeanour, as described earlier. I accept their evidence as credible.

[84] In the circumstances, I reject the submission that their testimony was rooted in a conspiracy to concoct false allegations so many years later in order to separate their estranged grandparents from the defendant. I accept, as expressed by C.P.1, that they were motivated to have what was done to them acknowledged and to have closure.

[85] Mr. R.L. denies the allegations and says he worked many Saturdays and some Sundays suggesting that he would have little prospect of committing the offences. He insists his bedroom door was locked when the complainants visited or slept over.

[86] As indicated earlier, his employer's letter is unhelpful in determining how often the defendant worked on Saturdays prior to 2006 or whether he worked at all on any Sunday. It is to be noted that a number of the alleged offences occurred in the evening or at night so that, contrary to his implied assertion, there was no lack of opportunity available to him. I view his evidence and attempt to minimize his contact with the girls as contrived and would place little weight on it.

[87] In advocating for her husband's lack of opportunity, Ms. L.M. achieved the opposite. On the evidence, there was exaggeration in her suggestion that Mr. R.L. worked on weekends most of the time. Having testified that she was present whenever the defendant was home, she did not account at least for the times she was out shopping on the weekends. Her testimony that the bedroom door was locked out of habit was in my view of the evidence contrived and self-serving. Her evidence lacked any objectivity. I would not rely on it.

[88] Finally, it is recognized in the authorities that good character evidence advanced, as here, has little probative value as to morality and is diminished in cases of sexual assault upon children: R. v. Profit, [1993] 85 C.C.C. (3d) 232 (S.C.C.).

The Reasonable Doubt Standard

[89] The standard of proof beyond a reasonable doubt is bound up with the fundamental principle in criminal trials of the presumption of innocence. This standard has been described as proof to a near certainty: R. v. Starr, 2000 SCC 40. The burden of proof rests on the prosecution throughout the trial and never shifts to the accused: R. v. Lifchus (1997), 118 C.C.C. (3d) 1 (S.C.C.).

[90] Reasonable doubt is to be applied where credibility is at issue. In R. v. W.(D.) (1991), 63 C.C.C. (3d) 397 (S.C.C.), Cory J. laid down a 3-step analysis. With regard to the first two elements, the trial judge must acquit if the evidence of the accused is believed or if he or she is left in reasonable doubt by it even if the judge does not believe that evidence. The third element obliges the judge to ask him or herself, even if not left in reasonable doubt by the accused's evidence, whether on the balance of the evidence he or she does accept that the court is convinced to the requisite standard of the guilt of the accused.

[91] In this analysis, rejection of an accused's evidence may be derived from "a considered and reasoned acceptance beyond a reasonable doubt of the truth of conflicting credible evidence", but not on the basis of preferring the worth of one over the other: R. v. J.J.R.D., [2006] O.J. No. 4749 (Ont. C.A.); R. v. Maharaj (2004), 186 C.C.C. (3d) 247 (Ont. C.A.).

[92] The trier of fact is entitled to assess an accused's testimony in light of the whole evidence, including the testimony of the complainant, and in so doing comparing the evidence of the witnesses: R. v. Hull, [2006] O.J. No. 3177 (Ont. C.A.). In fact, the court made reference in this regard to the "positive duty to carry out such an assessment", given the possibility that the judge may be left in doubt about the guilt of the accused.

Conclusion

[93] Both in substance and demeanour I found C.P.2's evidence that she observed K.P. being assaulted in the bathroom credible and not a result of collaboration. I accept that she disclosed this for the first time at the March break meeting and that it tends to materially support K.P.'s evidence. As well, I accept as plausible the evidence of both K.P. and C.P.1 that they looked to be with each other from a young age when they were alone with the defendant, in the same manner C.P.3 testified she too looked to stay close to whichever sister accompanied her on weekend visits. There was nothing in the uneven recollection by the complainants of the sexual violations that permitted a hint of collaboration, unlike that of the defendant and his spouse who in their transparently coordinated testimony sought to minimize any contact with the girls or opportunity to take advantage of them. I don't accept their evidence in this regard. There was clearly ample opportunity available to the defendant.

[94] On all the evidence, I accept the testimony of the complainants and am not left in reasonable doubt that they were improperly touched for a sexual purpose at various times as they described during and prior to 2005 at Mr. R.L.'s residence, for the reasons noted and in part because of my rejection of the defendant's evidence on this material fact in issue.

[95] The defence evidence does not leave me in reasonable doubt that the accused lacked opportunity and that the abuse occurred as alleged. I am satisfied that the Crown has met its onus of proof in this regard. Mr. R.L. will be found guilty on all counts.

Released: January 15, 2015

Signed: "Justice L. Feldman"