WARNING

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

This is a case under the Youth Criminal Justice Act and is subject to subsections 110(1) and 111(1) and section 129 of the Act. These provisions read as follows:

110. IDENTITY OF OFFENDER NOT TO BE PUBLISHED — (1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act.

111. IDENTITY OF VICTIM OR WITNESS NOT TO BE PUBLISHED — (1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person.

129. NO SUBSEQUENT DISCLOSURE — No person who is given access to a record or to whom information is disclosed under this Act shall disclose that information to any person unless the disclosure is authorized under this Act.

Subsection 138(1) of the Youth Criminal Justice Act, which deals with the consequences of failure to comply with these provisions, states as follows:

138. OFFENCES — Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) . . . or section 129 (no subsequent disclosure) . . .

(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or

(b) is guilty of an offence punishable on summary conviction.

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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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

Ontario Court of Justice

Date: December 7, 2018

Between:

Her Majesty the Queen

— and —

R.H., a young person

Before: Justice A.T. McKay

Heard in: Goderich, Ontario on November 6, 2018

Reasons for Judgment released: December 7, 2018

Counsel:

• Ms. L. Grant — counsel for the Crown
• Mr. K. McNamara — counsel for the defendant R.H.

McKAY J.:

INTRODUCTION

[1] R.H. is charged with two counts of sexual assault, two counts of sexual interference, and one count of threatening. The complainant is his younger sister, H.H. At the time of trial, H.H. was 15 years old and her brother R.H. was 17 years old. The sexual offences are alleged to have occurred during the period from January 1, 2014 to May 3, 2015. The threatening offence was alleged to have occurred between November 1, 2017 and November 8, 2017.

[2] Briefly stated, the allegation is that on multiple occasions, R.H. came into H.H.'s bedroom at night while she was sleeping and touched her. On a number of the occasions, he lowered her pyjamas and underwear, turned her onto her stomach, and rubbed his penis between the cheeks of her buttocks until he ejaculated. It is also alleged that on one occasion while staying at their grandmother's residence, he touched her and digitally penetrated her.

[3] After some delay, the alleged assaults were reported by H.H. to her parents. No action was taken, so she reported the allegations to a school nurse. That led to the involvement of CAS, and the police, and the laying of these charges.

EVIDENCE

H.H.

[4] Ms. H. testified that the assaults took place while they were living in a two-bedroom apartment above a paint store. She slept in one of the bedrooms on a mattress which sat on the floor without a bed frame. Her brother R.H., her half-brother C. and her parents' friend K. slept in the second bedroom. Her mother and father slept in the living room.

[5] Her evidence is that on special occasions such as holidays, her brothers sometimes slept in her room. She testified that when she was 10 or 11 years old, during the Thanksgiving holiday period, her two brothers slept in her bedroom with her. At that stage of her life, she was afraid of the dark. She awoke during the middle of the night and found her brother Richard rubbing her hip. She then felt him pull her pyjamas down slightly and rub his fingers against her buttocks. She was half-asleep and originally thought that she might be dreaming. When she realized that it was actually happening, she became very frightened. She rolled onto the floor beside her brother C. She described her pyjamas being slowly pulled down a distance the width of three fingers, enough to allow R.H. to touch the cheeks of her buttocks and her anus. She testified that she was terrified and did not know what was going on. There was enough light in the bedroom that she was able to identify her brother R.H. as the one who touched her. Her brother C. was sleeping on the floor.

[6] Approximately two weeks passed. Then there were similar incidents on consecutive nights. The first of those incidents, she woke during the night and found R.H. rubbing her hips over the outside of her clothing. She asked why he was in her bedroom. He indicated that K. was replaying old episodes of a show which he did not want to watch. It was part of a pattern in which she would ask him what he was doing in the room, and he would provide various reasons for being there.

[7] The following night, she was awakened by the floor creaking. She heard a sound like a zipper and then a small bump which she assumed was the sound of pants being lowered to the floor. R.H. laid beside her and began rubbing against her side. She described feelings of fear, and of being frozen. R.H. hooked his fingers into her pyjamas and underwear and lowered them slowly down to her ankles. She was lying on her stomach. She felt something up against her which she assumed was his penis. He rubbed up and down against the cheeks of her buttocks for what felt like 25 minutes. She testified that she simply lay there "frozen". She testified that R.H. used her blanket "to wipe up what he left behind". She assumed that he had ejaculated. He pulled up her underwear and pyjamas and she watched him walk out of the room. After he left, she went to the bathroom. She indicated that she looked at her underwear and there was something on it which she described as "white and stuff". She used toilet paper to wipe it up.

[8] She testified that she sat in the washroom trying to figure out what to do. At that point, she felt that she could deal with the situation herself, although in retrospect she is not sure why she thought that.

[9] She indicated that she recalls the next event most vividly. On that occasion, she wore pyjamas which were one piece from her toes to her neck. She thought that would prevent R.H. from doing anything to her. She woke up in the middle of the night, feeling him caressing her thighs. She opened her eyes long enough to see that it was R.H. He lowered the zipper of her pyjamas, pulling them down around her ankles, and rolled her onto her stomach. He rubbed his penis up and down against the cheeks of her buttocks. She testified that he seemed to know more what he was doing, as if he was trying to penetrate her anus with his penis. After he finished, he wiped her with her green Christmas blanket, turned her over and zipped up her pyjamas. She indicated that there was more "stuff" on her underwear that night.

[10] After that incident, she used her father's old cell phone to do some research to see if that type of activity was normal. She searched types of sexual harassment and any other question that popped into her head. She learned that the behaviour was not normal, and she became angry. Following that, she awoke at night to R.H. caressing her hips. She swore at him and told him that if he ever came in her room again she would punch him. She demanded he leave her room. He left, and they never discussed the incidents again.

[11] On one occasion subsequent to that, they were at their grandparents during the Christmas holidays. She and her two brothers slept over one evening. They all slept in the same room. She woke during the night because she "heard a squishing gross noise" from R.H. He was attempting to get his hand inside the blanket she had wrapped around herself. He eventually got his hand inside the blanket and her pants, and penetrated her digitally. She pretended that she just woke up, got up and went to the bathroom. When she returned, she told R.H. that she was uncomfortable and moved to sleep in a chair. That was the last of the sexual assaults.

[12] She continued to feel scared and unsafe, but did not want to "rip their family apart". She described it as continuing to play the part of the good daughter. However, she began putting something in front of her bedroom door at night, such as a small rock. She felt that if she disclosed the assaults, her parents would hate her; would think that she was lying; and that she was not the daughter that they wanted. She confided in a friend, who told her that she needed to speak to her mother. She disclosed the assaults to her mother that day. After the conversation, her perception was that her mother was disappointed, but said that she would speak to her father.

[13] She followed up with her mother over the next two weeks, who indicated that she had not had an opportunity to discuss it with her father. She spoke with her father approximately two weeks after disclosing it to her mother. She indicated that she was too nervous to give her father specifics related to the allegations. Her father asked her if it was about the "thing" related to her brother. When she said yes, he told her to shut up and walked away. At that point she did not feel safe. She stayed at a friend's house for three days. When she returned home, her mother told her that she had to keep her bedroom door closed at night. As a result of the inaction by her parents, she eventually spoke with the nurse at her school. As a result of that, she was interviewed by the Children's Aid Society and police.

[14] She testified that the disclosure of the assaults did rip the family apart. Since the disclosure, she has been living with another family.

[15] After the police investigation was started, her father told her that he was not supportive, and did not believe her. Her mother told her that she did not believe that her brother would do it, but that she also did not think that H.H. would lie.

[16] Two days before she spoke with the nurse, she had overheard R.H. in a fight with his girlfriend. She confronted R.H. about that fight, and he made a statement to the effect that he would hit her with a baseball bat. That frightened her because he appeared to be serious.

[17] In cross-examination, she agreed that her bed was "really creaky". I am not certain of how creaky it could have been, given that it was a mattress sitting on the floor. She agreed that in her statement to the police, she indicated that the first event involving touching felt like a dream because she was half asleep. She qualified that by saying that it felt too real to be a dream, but agreed with defence counsel that it was possible that she might have been dreaming during that incident. However, she confirmed that she was awake during all of the other events which she described; she never thought any of those incidents were a dream. She also agreed that after living away from the apartment with his girlfriend for a period of time, R.H. and his girlfriend resumed living in the apartment with the family approximately 3 to 5 days prior to her disclosing the assaults to the school nurse.

[18] She maintained that after originally disclosing the assaults, she continued to act normal. She testified that she did so because she continued to live at the apartment, so she stayed in her room most of the time. She agreed that in her statement to the police, she told the police that she was "hiding in her room, occasionally coming out". It was not normal behaviour for her to stay in her bedroom. On the day that R.H. made the threat related to the baseball bat, she walked home with him from church because she was continuing to act normal. She agreed that during the relevant timeframe, her father had reprimanded her coming out of the bathroom after showering wearing just a towel. She indicated that the door to her bedroom was beside the bathroom, so she would simply walk from the bathroom to her bedroom with a towel wrapped around her. She also agreed that her parents complained about her sleeping with her bedroom door open without much clothing on during hot weather.

[19] She was also cross-examined on the statement she provided to police regarding the allegations of what took place at her grandmother's residence. She agreed that when she disclosed the allegations to the school nurse, she indicated that R.H. had "fingered me, he tried but never succeeded". She testified that what she told the nurse was truthful, and the reference to him not succeeding referred to incidents which took place at her family's apartment where she felt he was trying to penetrate her but did not succeed in doing so. She confirmed that she was digitally penetrated at her grandmother's house. When cross-examined about ejaculate being wiped off of her, she indicated that she assumed that he had ejaculated, and that he would wipe her from her vagina, up her bum to near her hips.

M.H.

[20] M.H. is the father of both R.H. and H.H. He testified that when R.H. and his girlfriend moved into the apartment, H.H. disliked them being there, and asked him to kick them out of the apartment. H.H. reported the assault allegations to him in the summer. He indicated to her that he would speak with R.H. His recollection is that H.H. indicated that the sexual assaults had taken place the same summer that she disclosed them to him. During that summer, R.H. was living in Goderich.

[21] He testified that there were no special holiday arrangements regarding where the children slept. He woke H.H. up every morning, and never noticed anything in front of her bedroom door. She did have a small rock which she would place against the door to stop the wind from blowing the door closed.

[22] He also testified that he supports both of his children, but does not believe his daughter. He maintained that the Crown placed him in a position of having to choose between his children. On the first occasion that his daughter disclosed the allegations to him, she was giggling and would not provide him with the details. He can tell the difference between her "goofing around giggle" and her nervous giggle. Approximately two weeks before her initial disclosure to him, H.H. came to him crying and said that she had seen a ghost. She also told him that someone had attempted to break into her bedroom once. He noted that the screen in her bedroom window was gone, but maintained that it had been removed from the inside of the building and noted that they lived on the third floor of the building.

[23] Two weeks after the original disclosure, his daughter spoke with him again, and told him that the sexual abuse had occurred that summer. He spoke to R.H. about it, and started sleeping near the hallway so that he could see the doors to both bedrooms. At the time, he owned a restaurant and left for work at 6 AM each day, and returned home by 4 PM. For the most part during that timeframe, his wife worked afternoon shifts from 3 PM to 11 PM.

K.K.

[24] Mr. K. is 28 years old. He lived with the family for a period of approximately two years. He shared a room with M.H.'s two sons. The boys had bunk beds, and he slept on a mattress on the floor. There were never any special sleeping arrangements during holidays. He was adamant that the boys never slept in H.H.'s bedroom on any occasion during the two year period that he lived with the family. During that time frame, the boys went to bed early because they were in elementary school. He is a very light sleeper and was certain that he would have awoken if he heard beds creaking. Ultimately, he conceded that he was unable to say that neither of the boys had ever left the room during the night while he was asleep.

R.H.

[25] R.H. rejected any suggestion that he had sexually assaulted H.H. In his words, "not a chance". He is upset with the allegations, and cannot believe that his sister would make those allegations. He rejects any suggestion that he touched her. He rejects any suggestion that he ever slept in her bedroom. With respect to the threatening charge, he testified that he cannot recall ever saying that he would hit her with a baseball bat, but then qualified it by saying "I could have said it".

POSITIONS OF THE PARTIES

The Crown

[26] The Crown submits that H.H.'s evidence is detailed, candid, fair and consistent. Any inconsistencies which might exist in her evidence should be assessed bearing in mind her age at the time of these events. The defence witnesses are aligned with the accused, and their evidence, along with the evidence of the accused, should be rejected. The Crown submits that it has proven the charges beyond a reasonable doubt.

The Defence

[27] The defence submits that on the basis of the W.D. analysis, the Crown has not proven the case. The youthful age of H.H. and the passage of approximately 3 to 4 years since the events allegedly occurred make the reliability of her evidence a significant issue. Three different witnesses testified that R.H. never slept in the same bedroom as H.H. The defence submits that there are inconsistencies in the evidence of H.H., particularly regarding the sequencing of events, and the details around ejaculate being wiped off of her, yet still being present on her underwear. The defence submits that impacts the credibility of H.H. The defence also points to the evidence of M.H. indicating that H.H. complained to him that assaults occurred during the same summer that she made the allegations. The defence also submits that R.H.'s evidence was not undercut in any way during cross-examination.

APPLICABLE LEGAL PRINCIPLES

[28] It is the Crown's burden to prove each element of each offence beyond a reasonable doubt in order to obtain a conviction. The court must conduct a W.(D.) analysis in order to determine whether the Crown has met that burden.

[29] The criminal trial is not a credibility contest. It is a trial to determine whether the Crown has proven the guilt of the accused, on the specific charges alleged, beyond a reasonable doubt. It is, therefore, wrong to decide criminal cases where there is conflicting evidence about whether the accused is guilty, simply by deciding which version of events is preferred. The decisive question is whether, considering the evidence as a whole, the Crown has proven the guilt of the accused on the specific charges alleged, beyond a reasonable doubt.

[30] The Supreme Court of Canada has directed trial judges to approach the evidence of child witnesses on a common sense basis, recognizing that every person giving testimony is an individual whose credibility and evidence must be assessed by reference to criteria appropriate to his or her mental development, understanding and ability to communicate. (See R. v. W.(R.), [1992] 2 S.C.R. 122)

[31] Appellate courts have given guidance to trial judges in cases such as R. v. J.J.R.D., [2006] O.J. No. 4749, and R. v. R.A., 2017 ONCA 714, [2017] O.J. No. 4772 with respect to the assessment of credibility and reasonable doubt. In doing so, courts have confirmed that a trial judge is entitled to reject the evidence of an accused "based on a considered and reasoned acceptance beyond a reasonable doubt of the truth of the conflicting credible evidence".

ANALYSIS

[32] The evidence of H.H. was detailed, consistent with respect to the material allegations, logical, and, quite frankly, compelling. She explained any ambiguity about the sequencing of the events which she described. There is nothing significant in terms of discrepancies in her description of what she believed to be ejaculate being wiped off of her, and some of it being left on her underwear. There is nothing damaging in her evidence regarding the delay in her reporting the assault. It is clear from appellate decisions that there is no logical or expected way for the victim of a sexual assault to behave. That is particularly true in the case of a child trying to understand something often beyond their comprehension, while at the same time trying to fit in within a family unit.

[33] The weight of the evidence of M.H. is impacted by his obvious personal evaluation of the validity of the allegations. He did not believe his daughter from the outset. Part of his rationale for not believing her appears to be that on one occasion, she told him that she saw a ghost, and on another occasion, she said that someone tried to break into her bedroom. It is obvious that he did not treat the allegations seriously. His evidence that, after hearing of the allegations, he slept in a location which allowed him to view both bedroom doors is of no assistance. At that point, the assaults had stopped. I do not accept his evidence that if something was happening in the bedroom, he would have heard it.

[34] With respect to the evidence of M.H. that his daughter complained to him that the assaults took place during the same summer in which she made the complaint, I can give that evidence no weight. The reasons for that are twofold. The defence called that evidence, yet did not cross-examine H.H. on that point, thereby violating the rule in Browne v. Dunn. Secondly, M.H. was so dismissive of the allegations that I cannot give any credit to his recollection of what his daughter told him regarding the timing of the offences. The final point with respect to his evidence relates to his observation that his daughter was giggling and laughing when she reported the allegations. While testifying, H.H. had a nervous mannerism of giggling or laughing at times during her evidence. I do not view that nervous habit as diminishing her credibility in any way.

[35] With respect to K.K., his evidence was of very little use to the court. It essentially amounted to an assertion that if R.H. had left the bedroom on any occasion during any night, Mr. K. would have awoken. I reject that assertion. It is not possible for Mr. K. to reliably assert that he would have awakened every time one of the boys left the bedroom. My assessment of Mr. K.'s evidence also leads me to believe that he was just as dismissive of H.H.'s allegations as her father was.

[36] As indicated, R.H. denied any type of sexual behaviour with his sister. I cannot say that his evidence was damaged during the brief cross-examination.

[37] Finally, I note that R.H., K.K. and M.H. all testified that neither of the boys ever slept in H.H.'s bedroom. It is possible that all three of them are mistaken. It is also possible that H.H. is mistaken in her testimony that they did so. However, the essence of her complaint does not relate to whether the boys slept in her bedroom. The essence of her complaint is that her brother R.H. entered her bedroom on a number of occasions during the middle of the night and assaulted her. If she is mistaken regarding her evidence that, on occasion, her brothers slept in her room, that does not go to the core of her allegations, nor does it significantly impact her credibility.

[38] I also note that during cross-examination, H.H. conceded that it was within the realm of possibility that she dreamt the first incident of sexual touching. However, even if that were the case, she rejected any suggestion that she dreamt any of the other events complained of. Her testimony outlined multiple incidents in which she was sexually assaulted, more incidents than are covered by four counts alleged.

[39] With respect to the threatening allegation, R.H. testified that he did not specifically recall threatening H.H., but he testified that it is possible that he may have done so.

CONCLUSIONS

[40] The evidence which I accept as accurate in this case is all consistent with the allegations made by H.H. There are no significant material inconsistencies in her evidence. The core of the allegations is not disturbed by any of the evidence led by the defence. I am satisfied that the Crown has proven those allegations beyond a reasonable doubt.

[41] I find that on at least five occasions, including the occurrence at their grandparents' house, R.H. engaged in sexual touching of H.H. which would constitute offences under either section 271 or 151 of the Criminal Code. Given that there are two counts of sexual assault, and two counts of sexual interference, there will be convictions on all four of those charges. There will also be a conviction on the threatening charge.

Released: December 7, 2018

Signed: Justice A.T. McKay