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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 171.1, 172, 172.1, 172.2, 173, 210, 211, 212, 212, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant's sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

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

(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 10, 2017

Court File No.: Newmarket 15 08839

Between:

Her Majesty the Queen

— and —

D.H.

Before: Justice David Rose

Heard on: November 6, 7, 8, 9, 10, 2017

Reasons for Judgment released on: November 10, 2017

Counsel:

S. Kumaresan — counsel for the Crown

W. Doodnauth — counsel for the accused D.H.

Judgment

David Rose J.:

Introduction

[1] D.H. is charged with Sexual Touching and Sexual Assault against both of his granddaughters M.H. and L.H. M.H is the sole daughter of D.H.'s son P. L.H. is the daughter of D.H.'s other son B.

Evidence of Complainants

Counts 3 and 4 - L.H.

[2] L.H. testified that when she was 3 years old she was picked up by her grandfather, D.H., in his car from her day care. At that point in her life she was sleeping over at her grandparents' house in Markham at least once per month. One day D.H. came to the day care alone. She thought that was strange. L.H. testified that when D.H. arrived alone she thought that her grandmother was either busy or at work. When she got into her grandfather's car he asked if she wanted to sit in the front seat. She did because she thought it was something that big kids did. When they were travelling from L.H.'s day care to D.H.'s house he put his hand on her knee and then worked it up her thigh. She told him to stop because it hurt. He then put his hand up her underwear. She testified that the touching hurt. She did not remember if D.H. penetrated her digitally or what she was wearing. D.H. was using his free hand, which was his left hand.

[3] When L.H. arrived at her grandparents' house she found her grandmother M. She said something to M. about doing something, as long as it isn't anything like what just happened in the car. That caused her grandmother to be upset, but nothing happened.

[4] L.H. testified that she did not say anything to anyone else about the incident. She testified that she did not know it was a big deal until her grandmother became upset.

[5] L.H. testified that her grandmother slept in the master bedroom and her grandfather in another room. She testified that her grandfather was trying to manipulate her by saying that she favoured her grandmother over him. That caused her to not want her grandfather to sleep alone and she went into her grandfather's bedroom to sleep with him in his bed. When she did that he touched her in her genital area. She called out for her grandmother but she never came. During the assault she was trying to kick and scratch him. She was desperate but didn't want to hurt him. At one point the accused put a pillow on her head, and she couldn't breathe. The assault went on for what appeared to be a long time, but she was not sure the exact time. She remained in her grandfather's bed the whole night. The next morning she told her grandmother, who told her that she shouldn't have gone in there.

[6] L.H. testified about another incident when she was playing in the foyer of her grandparents' house. When she did that D.H. was there wearing only his bath robe. He hiked up his robe to expose himself. M. then appeared and told D.H. to fix his robe. L.H. was, in her evidence "lippy", or defiant, and she also told him to fix his robe. That caused her grandfather to make a menacing face and a gesture by which he threatened to strangle her. L.H. testified that her grandfather told her that he would kill her if she said anything.

[7] After these incidents L.H. continued to go back to her grandparents' house. She testified that on another visit when D.H. was driving her back to his house she was sitting in the back seat behind the passenger seat. He reached back from the driver seat and touched her knee. She moved to the rear seat behind the driver. He told her to scoot over to the other side of the car and when she didn't he threatened to leave her on a rural area. She told him no thank you.

[8] L.H. testified that her grandmother used D.H. as a weapon. M. would say to L.H. that if she misbehaved by, for instance blowing bubbles into her chocolate milk, she would have her grandfather sent after her. It was not uncommon for her grandparents to use bartering, by for instance saying that if she ate at McDonalds then she must do as they say. L.H. described physical abuse including being hit with a belt and being hit in her genitals. That was in the spare bedroom of the house when L.H.'s grandmother was present. The punishment was because she had been blowing bubbles into her drink, and doing anything she shouldn't have been doing. L.H. described the sexual abuse as being a punishment and that if she didn't do as she was meant to, L.H.'s grandmother would have her grandfather abuse her.

[9] L.H. described being in the bathroom having a shower when her grandmother was in the bedroom. She was 8 or 9 at the time. She testified that her grandfather came into the bathroom and went to the toilet but nothing went into the toilet. D.H. pulled back the sliding panel in the bathtub and L.H. tried to close it. He looked over the top of the sliding door and D.H. was pleasuring himself. He then threw his ejaculate over the top of the sliding door.

[10] L.H. gave evidence about an incident which occurred when she was 8 or 9. Her grandparents had exercise machines and her grandfather told her to sit on the machine while it was on and without her underwear. Her grandfather was sitting on a chair when it happened. She testified that she did what he said for fear of getting hurt or beaten.

[11] L.H. testified that her grandfather would make her touch his genitals with her hands and make her put his genitals in her mouth. That happened more than 5 times. She was 4 years old at the time. In her evidence she said that her grandfather said this is how she was to give oral and she would be the first of her friends to do it and that this is how you keep your boyfriend happy.

[12] L.H. never told her parents about the abuse while it was going on. She testified that she remembered all the abuse while she was at a cottage with her family. Everything had been repressed until she was 14 years old. The memory came back to her after being asleep in a bed and she then remembered more and more things. She didn't know if it had been a dream and wanted to know what to make of it all. L.H. testified that she now knows that it wasn't a dream but rather a real memory. In L.H.'s evidence, after the repressed memory came out it made sense about why she was afraid of people and thought things were dangerous.

[13] L.H. testified that her grandparents live next to a school and she was concerned about her grandparents luring children to them using video games. The neighbourhood she said, isn't safe. In L.H.'s evidence the only thing that her grandparents were interested in is money and she wanted to hurt them the same way they hurt her. That said, she didn't want their money, but just wanted other people to be safe.

[14] In cross-examination L.H. testified about what she did with her grandparents. It included going to McDonalds, shopping, baking, going to the movies and hanging around the house. She travelled with her grandparents south.

[15] L.H. admitted that she is closer to her mother, and described her father as abusive to her mother. She said that she did not know how her parents felt about her grandparents. Even still, she admitted to knowing a fair bit about "family drama", which included a law suit.

[16] When L.H. went to the police in 2015 she said that her grandfather had grabbed the bottom of a woman while he was in the US. She also told them that he had been accused of touching children in the park and that he was exposing himself in the park.

[17] She testified that her grandmother also sexually assaulted her, but she wasn't exactly sure how.

[18] In cross-examination she also described hearing her cousin M.H. scream at her grandparents' house. Her grandmother went in M.H.'s room to shut her up.

[19] She testified that she didn't discuss the allegations with her broader family between March of 2015 and her attendance at trial. She said that she told her father, but not her mother. She spoke of the allegations with her friends.

Counts 1 and 2 - M.H.

[20] The complainant M.H. is the daughter of D.H.'s second son P. She was born in 2002. By way of background, she testified that there were issues between her parents and her grandparents. Her family moved from Newmarket to Vancouver in 2012, and then to Alberta where she lives now. She testified by way of a video link from there. M.H. is close to her cousin L.H., with whom she spoke to as recently as a few days ago.

[21] M.H. would see her grandparents each Christmas, Thanksgiving and Easter. When she saw her grandparents she would sleep over at their house with her brother. She never slept over at the same time as her cousin L.H. They would sleep in a guest bedroom, and her grandparents would sleep in their own bedroom. When they visited their grandparents they would watch TV, go outside, and use her grandparents' computer in the computer room. That room had a workout bicycle.

[22] One day, when she was 8 years old she was having trouble with the computer and asked for help. It was the afternoon but she was wearing pyjamas. L.H. was standing at the computer and D.H. was sitting in a chair. He then put his hand under M.H.'s pyjamas and touched her butt cheek. He rubbed it. It went on for a minute or two. She wasn't wearing underwear and he didn't say anything. She didn't know how to react. No one else was home other than her brother and grandmother. After it stopped he went downstairs. She felt uncomfortable about it.

[23] M.H. admitted to talking to her cousin L.H. about a year or two ago. She gave a statement to the police in October 2015 but that was before she spoke to L.H. When asked why she disclosed to the police she said she wanted to tell the truth to help her cousin, and she had found out about the incident with L.H. before she went to the police.

[24] In cross-examination M.H. admitted to making a prior statement to the police which should be quoted.

Cst. Norum: And he's sitting there, so he's on the computer and your standing beside him.

M.H.: Yeah, on the – left side.

Cst. Norum: Okay, so tell me what…

M.H.: Yeah

Cst. Norum: …happens then.

M.H.: Nothing – don't really remember.

Cst. Norum: No, but you said he…

M.H.: Yeh, but like, I was just like…

Cst. Norum: How old do you think you were?

M.H.: Um, I think that I was like, um, eight.

Cst. Norum: Eight? Okay. So, is that grade 2?

M.H.: No, I think that's grade 3.

Cst. Norum: So in – okay.

M.H.: Or four

Cst. Norum: Oh yeah, in grade 3, 'cause if you're ten in grade 5, but then you be – depends when your birthday is, right? Its all about birthdays. Okay, so he touches your bottom, which you said is your butt cheek.

M.H.: Yes.

Cst. Norum: Okay, did he touch it, um tell me more about that.

M.H.: Just rubbed it.

Cst. Norum: Right, so…

M.H.: Yeah.

Cst. Norum: …and what were you wearing?

M.H.: My pyjamas.

Cst. Norum: Oh, those pajamas? Okay, did you have under your pajamas? Okay, so you don't wear your underwear, its just your pajamas, okay. So, now, where's his hand? I know its on your bum and he's rubbing your butt cheek, right?

M.H.: Yeah

Defence Evidence

[25] D.H. himself testified. He is 78 and admitted that his memory was "so so". From his appearance in Court he appeared to me as not being in particularly good health. He completely denied the allegations against him. He said that his son P. and P.'s family became estranged in 2012 when he refused to give them $250,000 for P.'s wife Dentistry school tuition. P. and his wife never complained about anything untoward regarding their daughter M.H. or anyone else.

[26] D.H. explained that he and his wife have a good relationship with their son B. B. has MS and relies on them for help. B separated from his wife a few years ago and is now divorced. Neither B. or his ex-wife T. ever confronted D.H. or his wife M. about the allegations heard before me.

[27] D.H. explained that he spent time with both of his sons' families over the years. They went on holidays together and spent time at the cottage. He described those holidays as giving rise to pleasant memories. His granddaughter L.H. did stay over at his house a couple of times per year. He denied that he ever picked L.H. up in his car without his wife M. being present. When L.H. stayed over she slept with M. and never him.

[28] He denied ever threatening L.H. or touching her inappropriately. He denied ever putting a pillow over her head and she never kicked him or scratched him. He denied ever asking her to sit on an exercise machine naked. Nothing inappropriately ever happened between M. and M.H.

[29] In cross-examination he admitted that he has Alzheimer's which has affected his ability to remember. He said that he doesn't remember things like he should. He said that he remembers things that are of interest to him. He said that he hasn't slept in the same room as his wife for 10 – 15 years because he has a condition which makes his legs move while he is sleeping. That keeps his wife awake. He described his memories of family holidays with both of his sons and their families as being general memories. That said he had some detail about his dealings with both complainants. He remembered that L.H. liked to play video games on a Game Boy. In the penultimate line of cross-examination he was pressed by Ms. Kumaresan with the proposition that if his memory is as failing as he admits then it is possible that the allegations did in fact happen and he simply doesn't remember. He admitted that that was possible.

[30] The defence called D.H.'s wife M. She testified to being married to the accused for 57 years. Her husband suffered memory problems after he fell off their cottage. She said there has been no diagnosis, but just a loss of memory. She described her marriage to D.H. as being wonderful. She confirmed that there was a falling out with her son and his family over money matters. She described being estranged from her son B.'s ex-wife because, after they separated, his ex-wife sued D.H. and M. for property they had occupied. M. confirmed that before she and D.H. were estranged from family members there were good memories from family holidays. She confirmed that L.H. never stayed over at their house with her cousin M.H. None of the grandchildren ever admitted to being uncomfortable in their house. To the contrary, she testified that they loved being at the house and never wanted to leave. M.H. and her brother always cried when they had to go home to their parents. M. denied that D.H. was ever alone with his granddaughters, and was adamant that L.H. always slept with her. That was because grandmothers and granddaughters always bonded. She said in her evidence that she was always home when D.H. was home with his grandchildren. She testified that they had a car seat for their grandchildren which L.H. used until she was 7 or 8. There was no rule, but L.H. was always picked up by both D.H. and M.

Analysis

[31] D.H. denied the allegations in his evidence, and his wife M. also gave evidence which was entirely exculpatory. She denied that L.H. ever slept with D.H. and testified that she always slept in the same bed as herself. She denied that there were any threats toward her grandchildren, that there was any abuse, that D.H. ever picked up L.H. alone in the car and that anything untoward happened. Therefore the test for competing versions of evidence under R. v. W.D., [1991] 1 S.C.R 742, reaches M.'s evidence as well as D.H.'s, see R. v. D.(B.), 2011 ONCA 51.

[32] With this in mind, I make the following findings. M. was not moved in cross-examination as regards her evidence that nothing untoward happened. She had a recall of the events at her house when her grandchildren visited which is commensurate with common sense. The uncontradicted evidence is that M. and D.H. had the type of marriage which has lasted 57 years. When she testified that she was always nearby her husband in the home and that they picked up their granddaughter together in a car with a car seat it has the ring of truth, as does her evidence that she never abused or molested L.H. It also has the ring of truth that when L.H. was in the house she slept with her and never D.H. Her evidence was slightly at odds with D.H.'s insofar as D.H. testified that his memory problems were the result of Alzheimer's and M. said that his memory problems began when he fell from a roof. That said, she agreed that her husband currently has cognitive deficits. M.'s evidence is completely exculpatory as regards L.H. and I accept it.

[33] As regards D.H. the reliability of his evidence is tempered by his failing memory. That said his evidence that he remembers what is important is consistent with many of the details which he could give about his life with his wife and extended family. It is not a matter of D.H. having no memory at all or even limited memory. He remembered that he had pleasant memories of his grandchildren, and described the things he did with them – things that are consistent with everyday human experience. His memory was largely consistent with the evidence of his wife M. Mr. D.H. bears no burden of proof. It would be dangerous to find that his inability to remember things that he said didn't happen renders his evidence less than exculpatory. That would reverse the onus of proof and I will not do that. I find that D.H.'s denial that he did anything wrong itself raises a reasonable doubt about all charges.

[34] In this case, given the evidence and issues at play go further than the first two limbs of the W.D. analysis and make the following findings regarding the two Crown witnesses.

Frailties in L.H.'s Evidence

[35] The witness L.H. has frailties which include the following:

i. She testified that her grandfather molested her with his left hand while driving. This would have the driver reaching his left hand over his right into the passenger seat to touch her. This is the kind of physical act which is not impossible just improbable.

ii. L.H. testified to a level of discussion with her grandmother which, if accepted, would have L.H. as a three year old engaging in an assertive insightful discussion with her grandparents about acceptable and unacceptable activity. It strikes me as inconsistent with what a 3 year old is capable of. That is not impossible but it is somewhat unlikely, particularly where the memory of it was only recovered many years later. It gives me concern that her evidence on this point is not a recollection of what happened but her adult analysis of what happened many years before.

iii. L.H. testified that her grandmother was using D.H. as a weapon. This is a level of analysis which crosses the line from giving narrative evidence into ascriptions of motive and character. It is an adult analysis of something which she believes happened many years ago. I have concerns that portions of her evidence are not the product of an eye witness account, but rather after the fact analysis.

iv. L.H. gave evidence that she didn't tell her parents about the abuse because she didn't want to tell anyone. This is inconsistent with her evidence that she said that she told her grandmother.

v. L.H. testified that she had no memory of the abuse that happened to her until she was 14, when it occurred to her in a dream. She testified that her mother even asked her if it was a dream or not, and she was adamant that it was a recovered memory and not a dream.

A witness who testifies to events which were recovered years later requires careful examination. In R. v. P.C., 2017 ONSC 4435, Andre J. considered the evidence of a witness with a recovered memory. At par. 48 he quoted with approval from an extra-judicial speech from the late Rosenberg J.A.:

In my view, the particular frailties of repressed memory of childhood events require that, as a matter of practice, the trier of fact be warned that it is dangerous to act upon the recovered memory alone. So far as I am aware, there are no scientifically accepted internal criteria or standards by which a trier of fact can distinguish between accurate recollections and false or mistaken allegations. Accordingly, the trier of fact must be warned to look for objective evidence and that otherwise there are no means to distinguish reliably between a memory of an actual event and a fantasy. The objective evidence need not be corroboration in the strict sense, but there should be some evidence that restores the trier's trust in the reliability of the witness's memory.

In R. v. Sanichar, 2012 ONCA 117, a majority of the Court of Appeal found that a trial judge may consider the following issues when dealing with evidence which has obvious reliability problems:

43 The concerns flagged in McGrath are important here. Had the trial judge conducted a proper reliability analysis with them in mind, he might have been more attentive to (i) the need in these circumstances to look for some confirmatory evidence where such evidence should have been available, particularly given the inconsistencies and contradictions in the complainant's testimony; (ii) the concern that an abundance of detail in cases involving distant events may not necessarily imply an accurate memory; 3 (iii) the absence of evidence to support the complainant's testimony in key areas; and, (iv) the worry that the simple vicissitudes and influences of life over a long period can have an impact on such things as motive and reliability.

The majority opinion from the Court of Appeal in Sanichar was not adopted by the Supreme Court of Canada as a requirement at law, see R. v. Sanichar, 2013 SCC 4. Rather, the considerations outlined by Blair J.A. at paragraph 43 (supra) are only things that may be considered. Failure to charge a jury in this manner is not, according to the Supreme Court, reversible error.

I find that the recovered memory aspect of L.H.'s evidence calls for special caution in this case as Blair J.A. outlined in Sanichar.

vi. L.H. said that she did not know how her parents felt about her grandparents This seems odd given that her mother was suing them and her father was being supported by them when he was undergoing surgery for MS.

vii. L.H. testified that her grandmother also sexually assaulted her, but she wasn't exactly sure how which lends to a sensational and therefore less believable quality to her evidence.

viii. L.H. testified to hearing her cousin M.H. scream at her grandparent's house. Her grandmother went in M.H.'s room to shut her up. This is inconsistent with all the other evidence in the case, including her cousin's, that M.H. never stayed over at her grandparent's house at the same time that L.H. did. L.H. also said in evidence that her cousin M.H. was being abused but that was something that she gleaned and assumed. In her words "it is a crime of convenience" and probably happened to every kid in the house. Given, that L.H.'s evidence on this point is about sexual abuse which can't have happened because L.H. and M.H. were never in the house together on M.H.'s evidence it is a significant inconsistency. It is also suggestive of animus on the part of L.H. which detracts from her credibility.

ix. L.H. testified that she had concerns about her grandparents luring children to their house with video games. There was no basis for her say that, and that portion of evidence leads to a conclusion that L.H. is simply fabricating portions of her evidence in order to influence the outcome of this case.

x. There were other external inconsistencies in L.H.'s evidence. These included her evidence that when she was in the car with D.H. he squeezed her leg but in her police statement she said nothing about her leg being squeezed and nothing about it hurting. The inconstancies also include her evidence that when she was assaulted in D.H.'s bed she was kicking and scratching and had a pillow forced over her head but in her police statement she made no mention of kicking and scratching or of the pillow over her head. It was a new narrative introduced at trial. When pressed about that omission she replied that "…you could assume that someone in that position would not simply sit back". Her attempt to explain the omission was self-serving and evasive. Lastly, at trial she introduced for the first time a grooming narrative by testifying that D.H. asked her if she wanted to know what big girls do, which she did not speak of in her police statement.

[36] Given the frailties in L.H.'s evidence I would not accept it to the standard of proof required to prove the charges beyond a reasonable doubt. Ms. Kumaresan argued that there is confirmatory evidence, but I find that there is insufficient evidence about the "key areas" referred to in Sanichar (supra) which might support the reliability of L.H.'s evidence. Ms. Kumaresan is correct that the general relationship between D.H. and the complainants is confirmed in the evidence. There is no dispute that the complainants were the granddaughters of D.H. and that they visited their grandparents at their house and stayed overnight. That is uncontroversial. What is key in this case is what happened in those visits. If those visits were something more than the routine visits grandchildren pay to their grandparents everywhere there is no evidence to confirm the complainants' testimony. There doesn't have to be, in law, but this is a case where the various frailties of L.H.'s evidence cry out for some confirmation. And it simply isn't there.

Concerns Regarding M.H.'s Evidence

[37] As regards the evidence of M.H. the statement taken by the RCMP in October 2015 was not videotaped. She was in 13 when she was interviewed. If there is some visual explanation for the questions asked and answers given in the passage noted above it is not available on the evidence. I am left with a statement which is extremely leading. M.H. did say that she had discussed this with the police beyond the passage outlined above, but there is no evidence beyond that from which I can assess what is on its face a leading series of questions put to a child witness. Therefore, on the evidence before me the complainant M.H. gave a statement to the police in October of 2015 which was quite leading and therefore suggestive on the part of the interviewing officer.

[38] I also have concerns that M.H. has an interest, as she told me in her evidence, to help her cousin L.H. – with whom she has been in fairly regular contact up to the commencement of this trial. She did say that she wanted to tell the truth, but L.H. gave evidence that M.H. was sexually assaulted in a manner which M.H. did not adopt. The two were simply not in the same house together for L.H. to give that evidence. There is a potential for collusion as between M.H. and L.H. which I cannot ignore. It is a frailty in M.H.'s evidence.

[39] M.H.'s evidence speaks to Counts 1 and 2 which is narrower in scope than Counts 3 and 4. M.H. testified about a single incident in the computer room. Similar to L.H.'s evidence regarding Counts 3 and 4 there is no confirmation about the assault. M.H.'s evidence is stronger than L.H.'s but on its own I would have concerns about whether it was sufficient to found a conviction.

[40] If I did not find in favour of D.H. on the first two limbs of the W.D. analysis I would have found that L.H.'s evidence was on the whole unreliable and rejected it. I would have found that M.H.'s evidence was insufficient to form a conviction.

Conclusion

[41] For these reasons the charges against D.H. are dismissed.

Released: November 10, 2017

Signed: Justice D.S. Rose