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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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: December 22, 2021
BETWEEN:
HER MAJESTY THE QUEEN
— AND —
J.S.
Before: Justice Robert S. Gee
Heard on: October 21 and November 25, 2021
Reasons for Judgment released on: December 22, 2021
G. Settimi.............................................................................................. counsel for the Crown L. Humenik........................................................................................................ for the accused
Gee J.:
Introduction
[1] The accused, J.S. is the stepfather of the complainant E.S. The accused is alleged to have touched the complainant sexually on two occasions. The first time is alleged to have occurred sometime between December 1, 2019 and January 31, 2020. The second time is alleged to have happened on July 25, 2020. The complainant was 13 years old at the time of these two incidents. The accused is facing one count of sexual assault from the first incident and counts of assault, sexual assault, and sexual interference from the second incident.
[2] The Crown proceeded summarily. Three witnesses testified. The Crown called the complainant and Brianna Hache, who encountered the complainant shortly after the second incident. The third witness was the accused who testified on his own behalf. The only other source of evidence was an agreement between the parties that when the police arrived at the accused’s house on July 26, 2020, he met them at the door and said to them “okay, I know why you’re here lets go.” The evidence was heard on October 21, 2021 and the matter was adjourned for submissions on November 25, 2021. I reserved my judgment until today, and the balance of these reasons will explain why I will be finding the accused guilty of the charges.
Facts
[3] The accused was married to the complainant’s mother, who was alive at the time of these allegations but now sadly, is deceased. From the evidence presented at trial it seems around the time of the incidents that led to the charges and until her passing, the complainant’s mother faced some challenges, such as an alcohol addiction and mental health issues. The issues with the mother created issues within the family that led to significant conflict between the complainant and the accused.
[4] The situation in the home at the time of these incidents given the mother’s issues seemed volatile. In addition to her drinking, the accused was a regular drinker too, admitting in his testimony that he had similar issues but denied being an alcoholic. On a prior occasion, the mother had locked herself in the bedroom she shared with the accused. When she wouldn't let the accused in, he broke down the door and went inside and started emptying the dresser drawers and throwing the contents around. The complainant, who was present when this happened, said the accused did it because her mother had locked herself in the bedroom to hide from the accused. The accused admitted he did it, but said it was for other reasons. He said the mother had locked herself in the room and had threatened self harm. He broke the door to see if she was safe, to see if she was hiding and drinking alcohol and he said because the complainant had told him the mother had stolen $200.00 from her.
[5] I cannot say with certainty why this incident happened nor is it necessary for me to do so. I am inclined to think it happened likely for the reason the complainant stated as the issue over the $200.00 was not even put to her in cross examination. I only mention this incident though, as it illustrates the type of frightening environment this 13 year old complainant was living in at the time.
[6] The complainant testified the first incident of sexual touching, which is alleged to have occurred between December 1, 2019 and Jan 31, 2020, happened at the kitchen island one evening while she was doing her homework. The accused sat beside her and offered to help her. While doing so, the complainant said he reached over and placed his hand on her inner thigh and very close to her vagina and started moving it up. This frightened her so she got up and moved away from him. She stated she had been wearing jeans at the time and the touching was over the clothing and lasted between 10 and 15 seconds.
[7] Once she moved away from him, he left the room and the complainant immediately went upstairs to tell her mother what happened. According to the complainant, her mother said he did it because he loved her and was just trying to show her some love and affection. According to the complainant, this incident also happened near in time to an argument between her mother and the accused she overheard after the mother had caught the accused looking at stepdaughter/stepfather pornography. The complainant couldn’t recall if this argument over the pornography took place before or after the thigh touching incident.
[8] The accused testified he recalls helping the complainant with her homework as she described but he never touched her thigh. In the end he offered a firm denial, but initially in his testimony it was not so firm. When he first testified about this incident in direct examination he said “I don’t recall touching her. If I did, it was completely accidental.” In cross examination though he testified there were no circumstances that could have led to an accidental touching; he wasn’t drinking that night so he was sober, he didn’t stumble of fall into the complainant, there was no issue with the stool he was sitting on or the floor underneath that could have caused him to stumble into her or lose his balance. In cross examination he was more certain in his evidence that he did not touch her.
[9] The second incident is alleged to have happened on July 25, 2020. On this night, the complainant was at home in her bedroom upstairs in the house. On the upper floor where her bedroom was there was also another room used by the complainant. In that room there was a beanbag chair on which she liked to recline. It was in this room and on the beanbag chair that this incident took place.
[10] The accused came home from work at approximately 4:00 pm. The complainant was in her bedroom or the other room at that time. Between the time the accused came home from work and the when the incident occurred at about 10:00 pm, the accused never went up to the upper floor to see if the complainant was home and the complainant never came downstairs either. The complainant said she knew the accused had come home because she heard him in the house. However, the accused denied knowing the complainant was home until just before the incident occurred.
[11] The complainant said she never went downstairs because her mother was not home and she was still afraid of the accused as a result of the prior incident. The accused said he never checked the upper rooms because he had looked up, saw the doors closed and assumed no one was home.
[12] The absence of the complainant’s mother was the trigger for the incident that night. The complainant said sometime before the accused returned home, she had received a call from one of her mother’s friends who advised her that her mother was in the hospital. The complainant says that given the issues her mother was having at the time and the nature of the call from the friend, she was unsure if her mother was in fact in the hospital.
[13] The accused said when he came from work, he found what he thought was an empty house. He called and texted his wife to try to locate her without success. He said he became more concerned and even called the hospital to try to find her. He made himself dinner and continued in his efforts to find her all to no avail. At about 10:00 pm he headed up to bed when he heard the complainant was there. He said he went up to the room she was in, knocked and when he opened the door, she was on the beanbag chair.
[14] According to him, he asked her if she knew where her mother was and, she replied “I don’t fucking care about mom.” He stated he looked at her and replied “what the fuck is wrong with you? If you don’t like what’s going on here, you can certainly leave.” He stated he continued by saying she was a “selfish bitch who only cared about herself and instead of making the situation better, was making it worse.” He also said he told her “she was too stupid to realize that half the mental problem [her mother] has, that she probably has” too. He stated the complainant then started crying and he further said that if her mother ended up back in the hospital, that he was not going to stay and take care of the complainant and he told her to get out.
[15] At this point he said he turned around and the complainant went past him, kicked him in the leg and went out of the house through the front door. He said during this interaction his voice was raised and that when the complainant left, she was wearing a sweater and shorts and he was unsure if she had shoes on when she left.
[16] The complainant gave a different version of this interaction. She said the accused came to her door and asked her if she knew where her mother was. She told him she did not but never mentioned the call she received from her mother’s friend. When asked why she didn’t tell the accused about the call, she said she found the call odd and wasn’t convinced her mother was in the hospital.
[17] She said the accused responded to her by telling her she couldn't stay there anymore and he walked out. She was upset he had told her to get out so she tried contacting a friend to see if she could stay there but was not able to reach her. She heard him having a shower and when it ended, he returned to her room. He was yelling at her and asking where her mother was. She again said she didn’t know and since he was continuing to yell at her, she used her phone to start recording him. According to her when he realized she was trying to record him, he came over to where she was on the beanbag chair, grabbed her phone, threw it across the room and got on top of her by straddling her legs.
[18] The complainant said she became upset, started to cry, and repeatedly asked the accused to get off her. He began to fondle her breasts and when he wouldn't stop or get off her, she tried to use her hands to push him off. At this point he used both his hands to grab her by the wrists and pin her hands over her head. He then held both her wrist with one hand and used the other to try to remove her shorts. While doing this he was saying to her that he could do anything he wants to her, including having sex and no one would believe her because she was a liar.
[19] She continued to struggle and at one point told him she wasn’t wearing anything under her shorts hoping it would get him to stop. He continued to try to pull down her shorts and she was able to move herself off the bean bag chair and onto the floor. She was able to get to her knees and she said he then grabbed her in a sort of choke hold and again brought her to the ground on her back. He was again straddling her and when she started screaming, he covered her mouth with his hand. She struggled, told him she couldn't breathe and he responded he didn’t care. She told him she would show him she wasn’t wearing anything under her shorts. When she said this, he let her up.
[20] When she stood up, instead of showing him she stated she ran down the stairs and out of the house as fast as she could. She stated she ran as fast as she could and left the house barefoot, without her phone and wearing only her sweater and shorts. She continued running down the street crying and screaming until she got to the house of a friend of her mother’s. There she rang the doorbell and knocked to no avail. When no one answered she kept crying until she saw who turned out to be Ms. Hache. She went over to her and told her what happened and Ms. Hache took her to her house and called the police.
[21] Ms. Hache’s testimony was largely consistent with the complainant’s. She stated just after 10:00 pm that evening she and her younger sister were on the front porch at her sister’s house. She said as they sat there, they heard an odd shrieking sound. They were unsure what it was. When she looked down the street to her right, she saw a girl running down the street and they realized she was crying. She saw her run up to a door on the opposite side of the street and frantically start ringing the doorbell. Ms. Hache crossed the street and when she got to the end of the driveway, she asked the complainant if she was okay. She stated the complainant didn’t respond at first because she was clearly in distress, crying uncontrollably. When she asked again, the complainant came running to her and at that point Ms. Hache realized that she was young. She said the complainant came toward her and hugged her. She asked the complainant if she needed an ambulance and she said no, so she asked if she needed the police and the complainant responded she thought so.
[22] They returned to Ms. Hache’s sister’s house where they called 911. Before doing so the complainant had told Ms. Hache she had been home with her stepfather who kept asking her where her mother was. She told him she didn’t know and he came into her bedroom, held her down and tried to remove her shorts. Ms. Hache also confirmed when she encountered the complainant, she was barefoot, wearing only a sweater and small bicycle type short and she was without her phone.
Applicable Legal Principles
[23] In order to secure a conviction in this case, the Crown needs to prove beyond a reasonable doubt that the complainant‘s version is what occurred. This means my assessment of the credibility and reliability of the evidence of the witnesses will be determinative of the outcome of the case. If I am convinced by the evidence of the complainant, then findings of guilt, are inevitable. The issue of consent does not arise in this case given the complainant’s age and the relationship between her and the accused. Also the touching, if it occurred as described by the complainant, would have violated her sexual integrity. No suggestion to the contrary was suggested. On the other hand, if I were to believe the evidence of the accused, or if not believed, still have it leave me in a state of doubt, I would have to conclude the Crown has not proven the case and, acquit the accused.
[24] Making and articulating credibility findings is often the most challenging aspect of a judge’s duty. In addition to any physical or tangible evidence that may be presented there are also many intangibles and other impressions that go into the complex matrix when making credibility assessments. Articulating how these factors lead to a particular credibility finding can be a daunting task. The Supreme Court has recently recognized this in the case of R. v. G.F., 2021 SCC 20, as follows:
As Slatter demonstrates, a trial judge’s findings of credibility deserve particular deference. While the law requires some articulation of the reasons for those findings, it also recognizes that in our system of justice the trial judge is the fact finder and has the benefit of the intangible impact of conducting the trial. Sometimes, credibility findings are made simpler by, for example, objective, independent evidence. Corroborative evidence can support the finding of a lack of voluntary consent, but it is of course not required, nor always available. Frequently, particularly in a sexual assault case where the crime is often committed in private, there is little additional evidence, and articulating reasons for findings of credibility can be more challenging. Mindful of the presumption of innocence and the Crown’s burden to prove guilt beyond a reasonable doubt, a trial judge strives to explain why a complainant is found to be credible, or why the accused is found not to be credible, or why the evidence does not raise a reasonable doubt. But, as this Court stated in Gagnon, at para. 20:
Assessing credibility is not a science. It is very difficult for a trial judge to articulate with precision the complex intermingling of impressions that emerge after watching and listening to witnesses and attempting to reconcile the various versions of events.
Credibility findings must also be assessed in light of the presumption of the correct application of the law, particularly regarding the relationship between reliability and credibility. The jurisprudence often stresses the distinction between reliability and credibility, equating reliability with the witness’ ability to observe, recall, and recount events accurately, and referring to credibility as the witness’ sincerity or honesty: see, e.g., R. v. H.C., 2009 ONCA 56, 244 O.A.C. 288, at para. 41.
[25] This case is no different. Like noted above, both incidents took place in private, with only the complainant and the accused present. As such, the case turns to a significant extent, on the assessment of their evidence.
[26] As well, it should be mentioned, in this case it is the credibility of the witnesses that is germane. There was nothing that I concluded that would have impacted any witnesses’ ability to observe, recall, or recount the events accurately. Put another way, there was nothing that would cause me to believe they were incapable of being reliable witnesses. The complainant did acknowledge being on medication at the time for depression and anxiety. The defence suggested that her personality and the medication caused her to overreact and by implication misperceive the situation. The complainant denied this, and testified the medications actually had the opposite effect; they made her less stressed and better able to cope in stressful situations. Given this testimony by her, which I accept, and the lack of any other evidence presented on how these types of medications may affect memory and perception, I find that this is a non-factor in this case and did not have any affect on the complainant’s reliability.
[27] It is always important to remain cognizant of the interplay between credibility findings and the Crown’s burden of proof. All involved in this case can rest assured that I have done my best to apply the appropriate legal principles properly.
[28] First, it is always necessary to remain vigilant as to the Crown’s burden. In this, as in all cases, the accused is presumed innocent and the Crown bears the burden of proving the accused’s guilt beyond a reasonable doubt. Proof beyond a reasonable doubt is a particularly high standard. It is a much higher standard than proof on a balance of probabilities which is the standard in a civil case. Proof beyond a reasonable doubt lies much closer to absolute certainty than to a balance of probabilities. See R. v. Lifchus, [1997] 3 SCR 320.
[29] In R. v. W.D., [1991] 1 S.C.R. 742, the Supreme Court set out a useful framework for me to follow in a case such as this where an accused testifies and denies or gives different version of events from the complainant or other witnesses.
[30] The framework when followed, ensures that the burden on the Crown to prove the case beyond a reasonable doubt stays in focus when credibility assessments are being made. It reminds judges that this is not a simple credibility contest. It is not proper for me to choose which side has the more believable version. The side that tells the better or more believable version, is not by that fact alone, entitled to win.
[31] As well, if I do not believe a witness either entirely or on a particular point, it is not proper because of that disbelief, to simply conclude the other side’s competing version must be true or accurate.
[32] W.D. tells me to approach the case in this manner. First, I should ask myself if I believe the accused or any evidence presented at trial that is inconsistent with guilt. If I do, then the accused is entitled to an acquittal.
[33] The second part of the W.D. framework comes into play if I conclude I do not believe the accused or the evidence inconsistent with his guilt. If I do not, in order to remain focused on the Crown’s burden, I should ask if I am still left in a reasonable doubt by it. If I am, the accused is entitled to the benefit of that doubt and is again entitled to an acquittal.
[34] It is only after I have found that I do not believe the accused or the other evidence inconsistent with guilt, and this evidence does not leave me with a reasonable doubt that I should move on to the third part of the W.D. framework.
[35] This part of the framework reminds me that even if I have not believed the accused’s evidence and am not left with a reasonable doubt by it, that does not necessarily lead to a finding of guilt. I must then ask myself if based on the evidence I do accept, does that evidence convince me beyond a reasonable doubt the accused is guilty. That is the only pathway to conviction. I have to be convinced of the accused’s guilt beyond a reasonable doubt based on the evidence I do accept.
[36] Evidence of any witness, including that of an accused, can be rejected for many reasons. Some of the more obvious reasons are that the testimony given in court conflicts with statements made by the witness at prior times. This could be statements given to police, or things the witness said to others out of court. The testimony could be rejected because it changes as it’s given. For instance, when confronted with things in cross examination the testimony may change from what was given earlier. When the evidence defies logic or common sense, this is also a basis for its rejection.
[37] When the testimony of an accused does not have one of these flaws, it is still capable of rejection. This is what the Court of Appeal confirmed in R. v. J.J.R.D., [2006] O.J. No. 4749. In that case the Court stated an accused’s testimony can be rejected because it conflicts with other evidence that is accepted. Importantly, the accepted evidence relied on to reject the accused’s evidence can be that of the complainant. The court stated the principle in par 53 as follows:
[38] An outright rejection of an accused's evidence based on a considered and reasoned acceptance beyond a reasonable doubt of the truth of conflicting credible evidence is as much an explanation for the rejection of an accused's evidence as is a rejection based on a problem identified with the way the accused testified or the substance of the accused's evidence.
[39] More must be said of some of these principles. Starting with W.D., the framework does not require me to assess the accused’s evidence in isolation and to proceed through the three steps in sequence. As Code J. said in R. v. Thomas, 2012 ONSC 6653:
[23] In my view, this is a misreading of W.D. That case does not describe three sequential analytical steps that a trier of fact must pass through, one at a time. Rather, it describes three distinct findings of fact that a trier of fact can arrive at, when considering all the evidence at the end of the case, namely, complete acceptance of the accused’s exculpatory account (“step 1”), complete acceptance of the Crown witnesses’ inculpatory account (“step 3”), or uncertainty as to which account to believe (“step 2”). See: R. v. Edwards, 2012 ONSC 3373 at paras. 13-25 (S.C.J.), where the authorities on this point are discussed at some length.
[24] Mr. Gold’s approach is unworkable in practice. A trier of fact must look at all the evidence, when deciding whether to accept the accused’s evidence and when deciding whether it raises a reasonable doubt. It is at that same point in time that the trier of fact will also determine whether the Crown’s witnesses prove guilt beyond reasonable doubt and whether the accused’s contrary exculpatory account must necessarily be rejected. In other words, these decisions are all made at the same time on the basis of the same total body of evidence. The so-called “three steps” in W.D. are simply different results, or alternative findings of fact, arrived at by the trier of fact at the end of the case when considering the totality of the evidence.
[40] What Justice Code in Thomas and the Court of Appeal in J.J.R.D., are stressing, is that the evidence of the accused, notwithstanding the wording of the three step process in W.D., is not to be assessed in isolation. The evidence of the accused, and all witnesses for that matter is to be assessed in the context of the evidence as a whole. That’s why, even though at first blush it may seem counterintuitive to the second step in W.D., the evidence of an accused can be rejected, even absent obvious flaws, simply on the basis of the acceptance of other evidence, including that of the complainant, so long as that acceptance is considered and reasoned.
[41] Something also needs to be said about making credibility assessments based on common sense and logic. Although it is permissible, one must be careful that, when assessing how anyone might or might not behave in any particular situation, that those findings have their root in the evidence presented in the case. Making generalized assumptions about how people will behave in any given situation is fraught with danger and, history has shown, were in the past routinely applied especially in cases of sexual assault. There was a time when it was taken for granted that a victim will always cry for help during a sexual assault, will always struggle mightily, will always immediately report the attack, and would never associate with the abuser after the attack. If there was evidence that any of this did not happen, it was because the complainant was either lying or it was consensual.
[42] Thankfully, our current understanding of human behaviour, especially in the context of sexual violence is much more advanced. We now view these beliefs for what they are, myths. What we know now, and can say with certainty, is that there is no consistently predictable way a victim of sexual violence will react during the assault or behave thereafter.
[43] The Alberta Court of Appeal undertook a useful discussion of this kind of credibility assessment process in R. v. P.F.J., 2018 ABCA 322 as follows:
13 The trial judge was asked to draw inferences about the complainant’s credibility based on certain behaviours. The Supreme Court in R. v. Villaroman, 2016 SCC 33 at para 41 reiterated that inferences drawn from evidence must be assessed “in light of human experience and common sense”. There is a significant difference between assessing evidence in light of human experience and common sense, and relying on stereotypical myths. The latter is a form of impermissible reasoning and is the type of error committed in ARD, where the trial judge concluded that he “would have expected some evidence of avoidance” by the young complainant “as a matter of logic and common sense”, and that her lack of such behaviour was “significant enough to leave me in doubt about these allegations”. That reasoning was premised upon a stereotypical myth about how all sexual assault victims would behave and resulted in the conclusion that a failure to display such behavior rendered the complainant’s evidence of abuse less credible.
14 That type of stereotypical myth about sexual assault complainants is a form of prohibited reasoning and cannot be relied upon by triers of fact. However, triers of fact are entitled, indeed are required, to rely on common sense and human experience in assessing evidence and the credibility of witnesses, including reasonable assumptions about how ordinary people can be expected to act. That is what the trial judge did in this case. He declined to draw a negative inference about the complainant’s honesty from her behaviour because he recognized that there was an alternate explanation, that some behaviours could result from having been exposed to sexual abuse. That is not a controversial statement. In his weighing of the evidence, the trial judge decided not to draw any inference, positive or negative, from that behaviour, and he was entitled to come to the conclusion he did. Notably, he did not rely on the evidence of bad behaviour to bolster the complainant’s credibility, or to conclude that it made it more likely that she had been abused.
[44] What must be guarded against is reliance on labels such as “common sense” to mask what is really stereotypical thinking. I must caution myself against presuming I will know what a victim of a sexual assault will do in any given circumstance. Any findings I make need to have some supportive basis found in the evidence and should not be based simply on my own preconceived notions of human behaviour. The Ontario Court of Appeal discussed such a self caution in the case of R. v. J.L., 2018 ONCA 756 at paragraphs 46 and 47:
[46] The second basis for the trial judge's conclusion depended on an assumption about what a "young woman" will and will not do. As mentioned, the trial judge said: "I cannot accept that a young woman would go outside wearing a dress in mid-December, lie down in dirt, gravel and wet grass and engage in consensual sexual activity." In other words, the trial judge could not accept, or even have a doubt arising from, the appellant's evidence because the trial judge was of the view that young women would not do what the complainant was said to have consensually done. There is a real danger that this reasoning contributed to the trial judge's assessment of whether, on the whole of the evidence, the Crown had proven the appellant's guilt beyond a reasonable doubt. I do not share the trial judge's view that it can be taken as a fact that no young woman would consensually engage in the alleged behaviour.
[47] Although trial judges must exercise common sense when making credibility findings and resolving what actually happened in a case, relying upon assumptions about what young women will and will not do may impact a judge's objective deliberation of the reasonable doubt standard. In R. v. Mah, 2002 NSCA 99, at para. 75, Cromwell J.A. (as he then was) stated: "[A]ssumptions about the ways of the world appear to have contributed to the judge's failure to give proper consideration to the question of whether, on the whole of the evidence, he had a reasonable doubt." Here, by relying on an assumption regarding what young women will and will not do, as if it were a fact, and in light of the centrality of that assumption to the trial judge's reasoning, his finding of guilt was tainted by error.
[45] I mention these principles not only to demonstrate that I remained focused on the Crown’s burden, but that I am also trying to be careful not to delve into unsupported assumptions about the behaviour I would expect for the witnesses involved. It is important to remain vigilant about these principles in all cases but more so in this case because some questions by defence counsel were put to the complainant that could be interpreted as treading on myths.
Applying the Legal Principles
[46] Dealing first with the issues from the previous paragraph that may have bordered on myth type reasoning, under cross examination the defence asked the complainant in relation to the second incident on the beanbag chair, why she did not scream right from the start and she was also asked since she was “a fairly healthy and relatively strong young lady…” she didn’t struggle and fight back harder.
[47] Questions like this were historically put to a complainant to imply that if there wasn’t evidence of them yelling, screaming, or raising an alarm immediately or not fighting back forcefully, then their allegation that the incident happened or was non-consensual, should not be believed. The myth engaged here is that all victims will immediately scream and raise and alarm and will fight back with all their might. We now understand that that is not the case. There is no predictable way a victim will react during an attack. It is not that questions such as this could never be relevant, they could be if there is something that makes them so in the context of the encounter as revealed by the evidence. However, suggesting simply that a lack of screaming or not fighting back equates with concoction or consent is improper.
[48] In this case there was nothing in the context of this encounter as revealed by the evidence at trial that would make the lack of screaming or the lack of a struggle relevant. In relation to the lack of screaming, these were two people who both acknowledged they were alone in the house. As well, the complainant’s response to why she didn’t scream right from the start was very telling; she said she was trying to act calm in the hope he would realize what he was doing and would stop like a mature adult.
[49] As for the lack of a struggle, the context here as well demonstrated why this is irrelevant. The complainant was in the home of her mother and stepfather. She was a 13 year old child at the time and she was being confronted and attacked again by her stepfather, an older and stronger male who was an authority figure in her life. That she didn’t fight back under these circumstances is understandable.
[50] In turning to the accused’s evidence, I find I do not believe him, nor in the end did his evidence leave me with a reasonable doubt. When he testified, he did so in a calm and straightforward manner. He answered questions directly and without much hesitation. There were not any serious flaws in the manner he presented his testimony. For instance, no inconsistencies were revealed between what he testified to in court and what he may have said in any out of court statements. Were his evidence viewed strictly in isolation, and without trying to assess it with reference to all the other evidence presented in the case, it perhaps could be accepted or leave one with a doubt. No evidence though, including that of the accused is assessed in isolation from all the other evidence presented. As noted above, simply because his testimony was without obvious flaws does not mean it must be accepted.
[51] In this case I find I am unable to believe the accused based on my assessment of some distinct aspects of his testimony. Further, I am as well not left with a reasonable doubt by it based on those same distinct aspects of it and based on my acceptance of other, conflicting evidence.
[52] As mentioned, there were some distinct aspects of his testimony that left me unable to believe him. The first was in relation to the homework incident in the kitchen. When testifying in chief and when asked by counsel about touching the complainant’s thigh, he responded “I don’t recall touching her. If I did, it was completely accidentally.” Later in his testimony he was more direct, denying he that he touched her at all.
[53] In cross examination the context of that incident was explored in much greater detail. The accused denied being under the influence of alcohol, denied stumbling, and denied any issue with the stool that he was on could have caused him to lose balance. In essence, he testified to the absence of any scenario under which he may have accidentally touched the complainant as described. More importantly though, is the nature of the relationship between the accused and the complainant. He was her stepfather and she was his 13 year old stepdaughter. I find I am unable to accept that a stepfather would not recall if he reached over, placed his hand the inner thigh of his 13 year old stepdaughter for 10 to 15 seconds while moving up toward her vagina. Doing something like that is not something a stepfather would forget.
[54] Then there is the way he treated his stepdaughter during the second incident. Even on his own version, his behaviour toward her was despicable. He admits to being angry with her. He admitted swearing at her and calling her names, like a “stupid bitch.” He admitted he told her to leave the house. He knew she was very upset and crying. He admitted he watched her leave the house late in the evening. He stated he didn’t know when she left if she had shoes but he knew she was only wearing a sweater and shorts. So, did he go out and go after his 13 year old stepdaughter? No, he went downstairs, closed the door after her, and went to bed. He made no effort to look for her, made no calls to try to find her, nor did he call the police to help locate her. He went to bed and fell asleep. Even the next morning, when she was not in the house, he still made no effort to locate her, or check on her safety. He was content to let his 13 year old stepchild run off into the dark, late in evening and not lift a finger to help her or to keep her from harm.
[55] I find this provides a window into the accused’s character. Someone who could be so uncaring and treat his 13 year old stepchild so callously is someone whose testimony I would approach with caution.
[56] It is for these reasons I am unable to believe the accused. Further, I am not left with a doubt by his evidence again due to these same reasons and as a result of my assessment of his evidence in the context of the whole of the other evidence which I do accept, that being the evidence of the complainant and Ms. Hache.
[57] The complainant I found was a very compelling and straightforward witness, she testified calmly and directly. Her answers were always responsive to the questions asked and I did not detect any hint of embellishment or significant animosity directed toward the complainant, notwithstanding the manner in which he treated her. She was articulate and intelligent beyond her 15 years of age at the time of trial. Her answers were thoughtful and considered and she corrected them when she realized she made a mistake. I find she was truthful and doing her best to give an honest account as to what took place.
[58] She testified she left he house in such a state of upset that she didn’t even take the time to put on shoes or take her phone. This left her in a vulnerable state and would have made it difficult for her to seek out help for herself. That she felt it better to leave the house in this state, rather than take the time to gather even a few items that would make her night ahead less daunting, I find is compelling support for her testimony.
[59] I also find that the evidence of Ms. Hache corroborates the account given by the complainant. Ms. Hache testified the complainant was crying and in obvious extreme distress while running down the street. The circumstances in which she left the house, in such haste that she didn’t even put on shoes or more appropriate clothing, all of which was confirmed by Ms. Hache as well as the extreme upset and distress the complainant was exhibiting that night is consistent with the encounter as described by the complainant and inconsistent with an argument and a demand she leave the house as stated by the accused. This immediate, post incident demeanour of the complainant can be used to support her allegation and I do so here (see: R. v. P.R., 2014 ONCA 131, at paragraph 5 and R. v. A.J., 2010 ONCA 491, paragraphs 19-23, reversed on other grounds 2011 SCC 17, [2011] 1 S.C.R. 628).
Conclusion
[60] For all these reasons I find that I accept the evidence of the complainant as truthful and accurate and that the accused’s evidence is incapable of belief. Therefore, I find the Crown has proven the case beyond a reasonable doubt and findings of guilt will be made on all the charges.
[61] For clarity sake that means a finding of guilt will be made on the incident from December 1, 2019 to January 31, 2020 allegation of sexual assault that encompasses the incident at the island in the kitchen. That was the only charge the accused was facing in relation to that incident.
[62] In relation to the July 25, 2020 incident on the beanbag chair, the accused was facing three charges; assault, sexual assault, and sexual interference. The sexual assault and sexual interference relate to the touching of the complainant’s breast by the accused and his attempt to remove her shorts. The assault charge I am advised by the Crown, relates to the accused’s holding the complainant’s wrists and perhaps covering her mouth and straddling her. In most cases incidents such as this are viewed as one continual transaction and only the more serious, sexual related charges are laid, even though during the course of the incident like here, some non-consensual applications of force in a non-sexual manner may have occurred. In this case, subject to further submissions by counsel, as this incident is one continuing transaction, a conviction ought only to be registered in relation to one of the three charges laid. The Crown may advise which of the three it would request the conviction be registered.
Released: December 22, 2021 Signed: Justice R. S. Gee