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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 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 from time to time before the day on which this subparagraph comes into force, if the conduct alleged 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 victim of the right to make an application for the order; and
(b) on application made by the victim, 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: 2021 04 27 Court File No.: Central West Region 998 18 N4979
Between:
HER MAJESTY THE QUEEN
— AND —
R.D.
Before: Justice J. De Filippis
Heard on: February 25 – 26, March 4 & 25, 2021 Reasons for Judgment released on: April 27, 2021
Counsel: Ms. A. Woolf, counsel for the Crown Mr. G. Walker, counsel for the defendant
De Filippis, J.:
Introduction
[1] The defendant was tried on an Information alleging sexual assault and sexual interference. Jurisdiction, date, and the identity of the parties are not in dispute. The admissibility of a statement made by the defendant to the police is conceded.
[2] The complainant disclosed the allegations shortly before her 11th birthday. The defendant is her 71-year-old step-grandfather. I heard from the complainant, her mother and stepfather, the defendant and his wife. The background leading up to the allegations is not controversial. I will begin with a summary of that evidence.
Non-Controversial Evidence
[3] T.B. is the mother of the complainant and an American citizen. At all material times she lived, studied, and worked in Niagara Falls and Buffalo, New York. She met E.D online in 2013. She visited him in Ajax, Ontario, where he lived at the home of his parents. Afterward, E.D. moved from Ajax to Niagara Falls, Ontario. In August 2015, he took up residence at an apartment building known as the “Pink Palace”. Several months later, T.B. and E.D. married. They have three boys (now five, four, and two years old). The complainant is the daughter of T.B. by a previous relationship. The boys resided with the defendant in Niagara Falls, Ontario. The complainant lived with her grandmother in Niagara Falls, New York. T.B. frequently travelled from the U.S.A. to Canada to be with her E.D. and their children (a 12-minute drive). On occasion she brought the complainant with her.
[4] The defendant and his wife are the grandparents of the three and step-grandparents to the complainant. They were known to these children as “dada” (grandpa) and “dado” (grandma). After E.D. moved to Niagara Falls, Ontario, his parents relocated to Windsor, Ontario. In June 2016, they moved to a house in Niagara Falls, Ontario. In December of that year, T.B. and E.D. also purchased a house in this city.
[5] T.B. maintained a hectic pace of study and work in the years that she gave birth to the three boys. She completed a college program while working at two jobs. She was only able to manage this because the primary responsibility for the care of the complainant fell to her mother and that of the boys to E.D. and his mother. T.B. would cross over into Canada whenever she had a free day – but these were irregular and averaged once a week. The complainant often accompanied her mother on these trips to Canada. Whether, and how often, the complainant was left alone in Canada is a matter of dispute.
[6] E.D. operated a tattoo business from his apartment. As such, it was his mother who shouldered the burden of caring for the children. After she and her husband moved to Niagara Falls, Ontario, she was driven to and from the Pink Palace by the defendant five or six days a week for this purpose. Whether, and how often, the defendant was present inside the Pink Palace while the complainant was there is also a matter of dispute.
[7] In September 2019, the complainant told her mother that the defendant had inserted his finger in her vagina on numerous occasions and had also licked her breast. The complainant disclosed this after her mother scolded her for allowing strangers into the home and had her watch a reality show about predatory people.
[8] E.D. was shocked by the disclosure of misconduct on the part of his father. He supported his wife’s decision to report this to the police. However, the parties later separated and T.B. obtained a restraining order preventing him from contacting her or the children. As such, E.D. has been estranged from his parents and siblings and lost contact with his wife and children. Without a permanent place to live he has relied on the generosity of friends.
[9] For several years, T.B. has unsuccessfully attempted to obtain permanent resident status in Canada. As of the date of this trial, she continues to pursue this objective.
Other Evidence
The Complainant
[10] The complainant is now 12 years old and lives in Canada with her mother and three step-brothers. She provided a video recorded statement to the police. That record was received by me, pursuant to s. 715.1 of the Criminal Code. At trial, the young girl adopted the statement as true and accurate. It includes the following questions and answers
Q: Do you know why you’re here?
A: That I don’t really want to talk about it. But I have to. And I don’t like that I’m being recorded.
Q: Tell me about why you’re here today…
A: Um, I don’t know exactly what my mom said it was, but I think she said that I was molested, is the word?....she asked me if I was ‘cause I was grounded, so she forced me to watch like, whenever I’m like in trouble, I like, she makes me watch shows of like, you know, things that like have, the thing that happened to me, so like I learn not to get in trouble with anymore, ‘cause I got grounded for opening the door for a stranger. So, she asked me and I said yes.
Q: Tell me what she asked you?
A: If I was molested like she was as a little girl and I just nodded my head….she had me tell her what happened, even though I didn’t want to. And then she called my dad and then when he got home, she had me tell him. And they were both mad, and mom was crying. But my brothers were in the other room, so they were fine.
Q: Would you tell me what happened to you?
A: So, like when I was little and I first moved to Canada, like when I was six or seven, um, my mom would be working and my dad would be working, so my grandpa, that we called dada, and my grandmother we called dado would watch us.
Q: When you first moved to Canada you were six or seven?
A: Like when I first started coming over on the weekends….So back then my bother [XXX] was born, I think. So whenever dada (sic) was putting him to bed, um it would just be me and him…So he, he would always be sitting on like a big chair we had in the living room, and he would call me over to him and I, he would have me sit on his lap.
Q: Then what happened?
A: So then he would put his hand down my pants into my underwear and he would put his finger in my vagina….So, he would do that, whenever I would look over at him he would kiss me on the cheek and he did this usually every time, I – that she put him to bed, but it only like happened for like a year. And when da- when he heard the door – dado like open the door ‘cause [XXX] was finally asleep, um, he would tell me to get off.
Q: Do you remember where you were living then?
A: The Pink Palace. I don’t remember exactly which room number, but I know it was there.
Q: Tell me, did this happen one time or more than one time?
A: Multiple times….It was like about a year…If it was over a year, then it was probably for like one or two months, um over a year, and if it was, it was, it was under a year, than maybe eight or nine months, 10, 11.
Q: Tell me, was there anything else that happened that you can remember?
A: Yes, So, so, one day we, we, uh, dad dropped me and my brother off at their house and, well, not my brother I don’t think. But dado went to get a lottery ticket, ‘cause she gets lottery tickets, the bedroom, he lifted up my dress and he licked my boob, but that only happened once.
Q: Did he ever say anything to you….
A: Well, one time I asked him what he was doing and he said he was tickling me….
Q: Did he ever say anything to you when he was, um, kissing your boobs?
A: No…he was licking them.
Q: Sorry, thank you.
A: Just one…
Q: And he never said anything at all?
A [shakes head no]
Q: …you said your mom made you watch a show, ‘cause you got grounded there. Do you remember what show you were watching?
A: Um, I think it was called Predator.
Q: Was it scary?
A: It was just like what happened to me, and, you, know, stuff like that…It’s on Netflix.
Q: How long was the show?
A: Um, it was like 30 minutes each, but mom asked me in the 10 minutes, during it. So, I didn’t have to watch it, ‘cause I, like had to watch, she said I had to watch it for two hours, but it ended up only being like 5, 10 minutes.
Q: Oh, so you didn’t watch the whole thing?
A: No, ‘cause, you know, she had me tell her.
Q: Okay, so you were 5, 10 minutes into it?
A: Yeah.
[11] In trial testimony, the complainant repeated that during the events in question, she was in school in New York State but lived with her father on weekends at the Pink Palace, “a big house separated into units” and that dado and dada visited and acted as baby-sitters. The “10 to 15” incidents occurred on a big chair with arm rests on it in the apartment. She did not tell anyone because it was embarrassing to talk about and added that she was not sure it was wrong. When her mother had her watch the Predator show, the complainant said, “that he did it”. After she disclosed the incidents, her mother revealed that “she had also been molested”.
[12] The complainant recorded the allegations in a journal. She did this at the suggestion of her mother in advance of the police interview. Defence counsel was provided with excerpts of the journal as part of disclosure and put it to the complainant. The complainant wrote that the defendant “would have me sit on his lap and slip his finger in my vagina” and that he did this “multiple times at the Pink Palace and at his house”. The complainant conceded that in trial testimony she said it only happened at Pink Palace. In re-examination, the complainant explained that what she meant is that the molestation happened at both places, but only the “licking of my boob” happened at the defendant’s home.
[13] The complainant understands that she does not have status in Canada; she is on an extended visitor visa and has been in Canada on and off and since 2015. In 2015 and 2016 she lived with her grandmother in Niagara Falls, New York and attended school there during the week, while her mother worked in Buffalo. The complainant denied the suggestion she resented the fact that her mother did not live with her during the week: “I was happy living with my grandma, I didn’t care, why would I, I had my grandma”. On weekends she joined her mother at the Pink Palace in Canada.
[14] The complainant denied the suggestion that only her step-grandmother babysat her and only on Sundays. She maintained both step-grandparents were present in the Pink Palace to care for her and the boys on the weekends that she came to Canada. The complainant agreed that her mother had made her watch the Predator show on other occasions when she had misbehaved but insisted her mother’s disclosure about her sexual abuse came after the complainant’s report.
The Complainant’s Mother
[15] T.B. testified that the complainant stayed at the Pink Palace three or four times a month. They would cross into Canada on Fridays and spend the weekend. However, on occasion, T.B.’s work commitments meant she had to return to Buffalo on Saturday and the complainant would be left at the Pink Palace until Sunday, when her mother would return and pick her up.
[16] According to T.B., the defendant and his wife lived in Windsor when she and E.D. first rented accommodation at the Pink Palace and nine months later they relocated to a house in Niagara Falls, about 10 minutes away from this apartment. T.B. said that for those first nine months, the defendant and his wife often visited to help with the children and after they moved to Niagara Falls, they were “always there”. She added that their help was “much needed”.
[17] On December 5, 2016, T.B. and E.D., now her husband, purchased a house in Niagara Falls, Ontario. The complainant lived there and attended a nearby school. Shortly before the complainant disclosed the present allegations, T.B. had allowed her to walk to and from school on her own. T.B.’s work schedule meant that she would be home about 15 minutes after the complainant arrived from school at the end of the day. Around this time, T.B. had posted an offer for a free piece of furniture on an online marketing site. As she was driving home, the complainant telephoned her to say people had arrived to pick up the furniture. T.B. was “shocked”. She had told her daughter many times never to let strangers in the home. When T.B. arrived, she saw two college age women in her house. They complied with her request to leave.
[18] T.B. was “furious” with the complainant and lectured her “for a good hour”. As part of her scolding, she decided to show her daughter a show called “To Catch a Predator”. T.B. described this as a reality show about people preying on young girls in which a house for “sting operations”. She sat with her daughter watching this show and noticed, within five minutes, that the complainant was “squirming”. T.B. stopped the program and asked, “if anyone has ever done anything to you”. T.B. testified that her daughter “said yes and my heart dropped”. When T.B. asked “who”, the complainant replied, “dada” and reported that he had placed his finger in her vagina and licked her breast. When T.B. asked how many times this happened, her daughter said, “too many times to count”.
[19] T.B. testified that she had previously told the complainant about “what could happen to young girls”. On a few occasions, T.B. had asked her if anyone had touched her. She did so, for example, when she took her daughter to a doctor about a vaginal rash. This occurred while they lived at the Pink Palace. T.B. called her husband and he came home immediately. He was “torn about what to do” but agreed that the police should be called.
[20] T.B. separated from her husband in November 2020 and they are now in court over custody and support decisions. She added that they are “not on good terms” and “the police became involved over a restraining order” that she had obtained.
[21] T.B. agreed that because of her “complicated work schedule”, the care of the first two boys fell to her husband and his parents. She rejected the suggestion that from her wedding in October 2015 until June 2016 (when the defendant and his wife moved from Windsor to Niagara Falls), her in-laws never visited at the Pink Palace. Although she cannot recall specific dates, she insisted that they did so because their help as babysitters was needed. T.B. also conceded that her in-laws frequently called her “greedy and an unfit mother because she would not give up work time for parent time”. T.B. acknowledged that it was true she never decreased her workload to be with the complainant.
[22] T.B. gave birth to her third son on […], 2016, one week before the defendant and his wife bought their home in Niagara Falls. Although she cannot recall the exact dates, T.B. insisted that in the summer months that followed, she took the complainant to the Pink Palace and that her in-laws were “often around”. She also insisted that the complainant had visited them at their newly purchased home in Niagara Falls.
[23] After the complainant told T.B. about the present allegations, the latter told her daughter about of her own sexual abuse at the hands of her step-father. She explained that she did so to help her daughter feel comfortable talking to her. When pressed on this point, T.B. said she “did not go into details”. She denied the suggestion the complainant fabricated the present allegations based on what T.B. had told her about her own experience.
[24] When asked how she has managed to remain in Canada, T.B. replied; “It has been difficult. I have filed multiple spousal sponsorships and been denied citizenship”. She added that she is expected to leave Canada soon and that the separation from her husband and COVID has adversely affected her requests for an extension of time to remain in Canada while she pursues permanent residency status.
The Complainant’s Step-father
[25] As already noted, E.D. and T.B. have three boys together. Like his wife, he also has a child from a previous relationship. E.D. confirmed the testimony of T.B. with respect to how they met, their wedding, the birthdates of their children, and the dates and places where they lived. He added that “[T.B.] was at school or work all the time”. E.D. accepted the suggestion, in cross-examination, that his wife “did not help much with the boys”.
[26] At all material times, E.D. was self-employed as a tattoo artist. While he lived at the Pink Palace he operated this business out of the kitchen. He testified that the complainant lived with her grandmother in the USA and would be taken to the Pink Palace by T.B. “maybe, four or five times a month, on weekends”. She did not come during the week; “this was the case even in summer” [when the complainant was not in school].
[27] According to E.D., his parents “would come to Pink Palace for a few days, like a weekend and then overstay for another day or two”. He said this happened on three occasions. In cross-examination he noted that this happened twice. At this time his parents live in Windsor, Ontario. However, after they relocated to Niagara Falls, Ontario [in June 2016], his mother babysat the children five days a week while E.D. pursued his tattoo business. E.D. testified that his father “popped in and out, he would play with the boys”. The complainant “visited on and off and at some point, came to live [with him] full time”. E.D. added that when not working at the Pink Palace, he occasionally left the children in the care of his mother so he could go to a bar or play basketball.
[28] E.D. testified that T.B. worked Sunday to Thursday and that his mother babysat the children during most of the time. She was driven to and from the Pink Palace and, later to E.D’s new home, by the defendant. He agreed his mother did not babysit on Fridays and Saturdays and that his mother sometimes came in on Sundays if T.B. “had an overtime shift in Buffalo”.
[29] In December 2016, E.D. and T.B. bought their own home in Niagara Falls, Ontario. Almost three years later, in September 2019, the complainant disclosed the present allegations to her mother. Prior to this, the couple were experiencing marital difficulties. E.D. said they had separated for three weeks in the summer. After three weeks in the USA, T.B. and the complainant returned to live with E.D. in Canada. However, their marital problems continued and on December 24, 2019 T.B. obtained a restraining order against her husband. E.D. tearfully noted that “I haven’t seen my kids for 103 days, my relationship with my parents and brother has been affected, I cut my parents off, I am alone and it is hard”.
The Defendant
[30] R.D. testified that the events in question never happened.
[31] The defendant was born in 1949 in Pakistan. He studied accounting, political science and history and worked in his native country for 18 months before settling in Canada in 1973. He has been married to his present wife for 47 years and they have two sons, one daughter and several grandchildren. The defendant worked for federal government from 1981 until his retirement in 2009.
[32] The defendant testified that he and his wife saw the first son born to E.D. and T.B. on […], 2015 in the USA. In August of the same year they travelled from their home in Windsor, Ontario to visit their grandson again, this time at the Pink Palace in Niagara Falls, Ontario. After a few days, at the request of T.B., they took the infant with them to their home, returning to Niagara Falls on September 10. The defendant cannot recall how long they stayed at the Pink Palace but he is certain that the complainant was not present. The next time they came to Niagara Falls was for the wedding of E.D. and T.B. on October 20, 2015. They arrived the day before the wedding and left the day after. The defendant testified that he cannot recall visiting the Pink Palace again until they purchased their home in Niagara Falls on June 15, 2016. However, in cross-examination, he conceded that they might have might have done so, perhaps, three or four times.
[33] On week after the defendant and his wife relocated to Niagara Falls, T.B. gave birth to another son. His wife now became the primary care giver to the two boys. The defendant testified that she babysat them at the Pink Palace from Monday to Thursday, and occasionally on Fridays. He drove his wife to and from the apartment and would sometimes join her inside and assist in baby-sitting.
[34] The defendant agreed his wife was the one who always put the children to bed for their daily naps and that he could be alone in the apartment at these times. He insisted, however, that the complainant was never present from Monday to Thursday and that he never entered the apartment on Fridays. He explained that this pattern was due to acrimony between he and his wife over the amount of time she cared for the children. The defendant said he only agreed to help his wife babysit on Monday to Thursdays and, thus, would not go inside with her on Fridays. Accordingly, he was never at the Pink Palace on the weekends when the complainant might be there. The defendant also testified that he cannot recall the complainant being at his Niagara Falls home.
[35] When asked about his opinion of T.B., the defendant provided answers that clarify he neither understood nor respected her. He said that because of T.B., “we are crucified for caring for our grandchildren”. The defendant testified that they once argued because he told her she should give up one of her jobs – “bartending” – to spend time with her sons. On another occasion, T.B. told the defendant he consumed too much alcohol. He replied that this was none of her business.
[36] The defendant said he got along well with the complainant. He described her as “a good kid” and he treated her “as a grandchild”. When pressed about why he never entered the Pink Palace on weekends, the defendant replied, “I was retired and did not want to be a slave for someone else”.
The Defendant’s Spouse
[37] S.D. was born on […], 1948 in Pakistan, where she worked as a midwife. After arriving in Canada, she sponsored the immigration of the defendant. They married in Canada. She is proud of the fact that, like her husband, she worked hard her entire life. S.D.’s testimony was passionate and emotional. On one occasion, it was necessary to take a break. She blames T.B. for ruining her son’s life and jeopardizing that of her husband.
[38] It is common ground that on August 15, 2015, S.D. and the defendant left the Pink Palace and returned to Windsor with their grandson. S.D. testified that “she [T.B.] asked my son to ask me to take the baby to Windsor, she didn’t have the guts to ask me herself…they were arguing and my son asked and I did so because I love him…this woman made my son’s life miserable…this woman is working two jobs and asks my son to take her infant”. S.D. and the defendant returned the baby to his parents on September 10. They departed immediately for Windsor and did not return until the wedding of T.B. and S.D. in October. By this time, T.B. was pregnant again. T.B. had given birth to another son six days earlier, on […]. S.D. said that T.B. “was home for two and one-half months and goes back to work… she would bring the child to my home with her breast milk, this is the kind of person she was”. As of this time, S.D. babysat the children full time, first at the Pink Palace until the end of 2016, and then at a home her son and T.B. purchased. S.D. said she undertook this duty at the request of her son.
[39] S.D. testified that she babysat the children from Sunday to Thursday and that the defendant joined her from Monday to Thursday. She said that she never babysat on Friday and Saturday and would see T.B. and the complainant on Sundays. She never babysat the complainant – “I only pay attention to my two grandkids”. S.D. added that defendant drove her to and from their home to the Pink Palace but that he never came inside on Sundays.
[40] S.D. agreed that once a day, she would bring the children to the bedroom for a nap. The following exchange occurred in cross-examination:
Q: Where was your husband?
A: He left.
Q: Every single time?
A: [angry] Not every time – but my son was in the kitchen working
Q: So, he [defendant] was occasionally in the living room while you were in bedroom with the child?
A: Yes
Q: Why would he [defendant] not stay on Sunday?
A: He had things to do.
Q: Did your husband ever come into the house on Sunday to say hi to his grandkids when he dropped you off and pick you up?
A: He never entered the house on a Sunday.
Q: Not once?
A: No
[41] S.D. was asked if she babysat the boys at her home in Niagara Falls [i.e. after she and the defendant moved there in June 2016]. She replied, “sometimes”. This exchange followed:
Q: Was [the complainant] sometimes there?
A: No, no, no.
Q: Why not?
A: Because she is not my granddaughter, that’s why.
Q: Didn’t you babysit her on Sundays at Pink Palace?
A: I said no, how many times do you want to know.
Q: Was [the complainant] there?
A: Yes, but I don’t do anything for her, I told her [T.B.], my responsibility is for my grandkids, I was only present to make sure [the complainant] is okay
Q: At six years old could she take care of herself?
A: At six years old she could say [the allegations] about my husband?
Legal Principles
[42] The Crown must prove its case beyond a reasonable doubt if the defendant is to be found guilty. This means that if the defendant has called evidence, there must be an acquittal: (i) where the testimony is believed, (ii) where the testimony is not believed, but leaves the trier of fact in reasonable doubt, (iii) where testimony is not believed and does not leave a reasonable doubt, but the remaining evidence fails to convince, beyond reasonable doubt, that the defendant is guilty: R. v. W.D., [1991] 3 S.C.R. 93. The application of this principle does not mean the defendant's evidence is to be viewed in isolation, divorced from the context or other evidence in the case: F. v. R.D..
Submissions
[43] Defence counsel acknowledged that S.D. is biased but points out that there is no reason to reject the testimony given by the defendant. With respect to the Crown’s case, counsel submits that there is good reason to doubt the complainant’s evidence: “[T.B.’s] work pattern and quest for money were obtained at the expense of [the complainant] … she was pushed from pillar to post”. The Defence argued that it is significant the complainant disclosed the allegations after her mother became furious that she had allowed strangers into the home and “scared” her with the predator show. In these circumstances the complainant “had to come up with something”.
[44] Defence counsel submitted that it is not clear when T.B. told her daughter about her own sexual molestation and that she provided the complainant “with background information that forms basis of the allegations and she just carried forward with that information”. Counsel cemented this point by noting that T.B. testified she had no difficulty talking to the complainant about anything, including her own painful childhood experience. As such, I should be concerned about the timing of the complainant’s disclosure and wary of her explanation that she was previously embarrassed to tell anyone. Counsel asserted that the complainant’s journal revealed inconsistency with trial testimony and some phrases suggested coaching by T.B.
[45] In response to the Defence submissions, the Crown argued that the complainant’s embarrassment is evident from the manner in which she provided the video-recorded statement to the police. Counsel also pointed out that both T.B. and the complainant denied the suggestion that there was collusion. Moreover, T.B. had nothing to gain by doing so, and much to lose, because of her need for the childcare services provided by S.D. and the defendant.
[46] The Crown points out that T.B. testified her daughter was in Canada almost every weekend and that E.D. confirmed she was often there. As such, even if the defendant’s version of events is accepted – i.e. that while living in Windsor he was at the Pink Palace only on a few occasions – it is probable that this overlapped with complainant’s attendance and had the opportunity to “commit an offence that takes a matter of seconds”. The Crown adds that the defendant’s assertion that after moving to Niagara Falls, Ontario, he was never in the company of the complainant cannot be believed. In this regard, the supporting testimony by his wife should be rejected because she was “angry, evasive, and had an agenda”. Counsel notes, by way of contrast, the compelling evidence of E.D., the complainant’s step-father and the defendant’s son. In part, at least, because of the present case, E.D. is estranged from his wife, children, and parents. He confirmed that there were occasions in which the defendant was in the company of the complainant at the Pink Palace when neither he nor T.B. were present.
Conclusions
[47] The period in which these offences are said to have occurred is from August 1, 2015 to December 4, 2016. For much of this 16-month period, the complainant’s step-father lived at the Pink Palace. The complainant visited often from her home in the USA and eventually took up residence there. She disclosed the allegations to her mother in September 2019.
[48] The defendant protests his innocence. He also pleads a lack of opportunity. That is, he declares he did not commit the offence and could not have done so. I must reject the latter assertion.
[49] The defendant’s wife claims the defendant never entered the Pink Palace when the complainant was there. He drove his wife to and from that apartment many times over many months but only went inside during the week when she was not present. He never went inside if he took his wife there on a Friday or Sunday. Not once. Quite apart from the fact that this testimony conflicts with that of all others, including, the defendant, S.D.’s unyielding defence of her husband and animus toward T.B. is such that her evidence cannot be relied upon.
[50] The defendant conceded there were a few occasions between October 2015 (his son’s wedding) and June 2016 (when he moved to Niagara Falls) in which he and his wife were at the Pink Palace on weekends. However, like his wife, he insisted that after the move to Niagara Falls, he never entered the residence on weekends. E.D. confirmed that mother never babysat on Fridays or Saturdays but that she was there on Sundays. The complainant was often present on weekends, including Sundays.
[51] It is especially odd that the defendant refused to enter the Pink Place on Sundays because he described the complainant as “a good kid” and said he treated her “as a grandchild”. When pressed about this he explained that “I was retired and did not want to be a slave for someone else”. This explanation fails. Of course, the defendant entered the Pink Place on Sundays. Just like he did during the week. There was no reason not to do so. His assertion that he did not cross the threshold on Sundays because he disapproved of his wife babysitting at that time cannot be believed. If he had such strong opinions on the matter, why drive her there? I find the defendant was not truthful about his opportunity to commit the offences.
[52] The complainant, her mother, and step-father all testified that the defendant was present at the Pink Palace on weekends. Indeed, E.D. testified that his father “popped in and out” and that the complainant “visited on and off and at some point, came to live [with him] full time”. E.D. added that when not working at the Pink Palace, he occasionally left so he could go to a bar or play basketball.
[53] I agree with the Crown that E.D.’s testimony is compelling. I also have confidence in the evidence given by T.B. She provided a candid account of what she knew. She did not shy away from uncomfortable questions about whether she worked too much and parented too little. In this regard, I reject any suggestion that T.B. had some ulterior motive, such as immigration issues, to falsely implicate the defendant.
[54] The complainant’s testimony was straightforward: On up to 10 or 15 occasions she found herself alone with the defendant at the Pink Palace when S.D. put her brother to bed. The defendant would have her sit in his lap and he inserted his finger in her vagina. Having done so, he sometimes kissed her on the cheek. On one occasion, at the defendant’s new home in Niagara Falls, he licked her breast. There are three bedrooms on the main floor of that home and this happened in the middle bedroom.
[55] Delayed disclosure of sexual offences does not mean the statement is false or inaccurate. However, I am puzzled by the reasons given by the complainant for doing so. She testified that she did not mention the incidents before because it was embarrassing and she did not know it was wrong. However, well before the disclosure, the complainant did know it was wrong because her mother had previously told her about “what could happen to young girls”. Moreover, “on a few occasions”, her mother had asked, “if anyone had touched her. One such occasion was when she took her daughter to a doctor about a vaginal rash. This occurred while they lived at the Pink Palace, almost three years before the disclosure. Moreover, it is clear that the timing of the disclosure shifted a heated discussion between mother and daughter from one of censure to one of concern. That it was the heated discussion and not the television show that prompted the disclosure is supported by the fact that T.B. had exposed the complainant to the Predator show on previous occasions as a form of education.
[56] I have found that the defendant, like his wife, attempted to mislead me about his opportunity to commit these offences. However, my rejection of the Defence evidence does not allow me to convict in this case. He may have lied because he is guilty. Or, he may have lied because he feared the truth would make him look guilty. In any event, having found the defendant had the opportunity to commit the offences, I cannot find him guilty solely on the testimony of the complainant.
[57] Well before the complainant disclosed the present allegations, on more than one occasion, her mother had inquired about whether she had been inappropriately touched. After the disclosure, T.B. told her she had been molested by her step-father and instructed the complainant to write down what had happened in preparation for the police interview. I am concerned that the well-intentioned inquiries and instruction by T.B. may have influenced the complainant. I do not suggest this was deliberate; as the Crown pointed out, T.B. lost much needed babysitting services because of the defendant’s arrest. Moreover, I do not say the complainant lied to me. However, I am troubled about the reliability of her statement describing what happened when she was six or seven years old and disclosed years later, when she was being severely reprimanded by her mother.
[58] Like many allegations of sexual misconduct, there are no third-party witnesses or forensic evidence to assist me in coming to a verdict. That does not mean an acquittal must follow. However difficult, the Court has a duty to do its best to arrive at a just result.
[59] The primary issue in this case is whether the Crown has discharged its burden of proof. In a criminal trial it is not sufficient to show that the defendant is probably guilty. The Crown must prove guilt, beyond a reasonable doubt. I have given this matter careful and anxious consideration and, at the end of the day, I am not convinced the Crown has crossed that line.
[60] The charges are dismissed.
Released: April 27, 2021 Signed: Justice J. De Filippis