WARNING

A non-publication order in this proceeding has been issued pursuant to subsection 486.4(1) of the Criminal Code .

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

Tara Brun for the Crown

• and -

E.K.H.

Jeff Berman for K.H.

• and -

E.J.H.

David Goodman for J.H.

HEARD: January 9-11, 2012

Thorburn J.

REASONS FOR JUDGMENT

I. Overview

[ 1 ] The Complainant, D.S. claims she was sexually and physically abused by K.H. over a period of approximately ten years. She claims she was also sexually and physically abused by K.H.’s brother J.H. in 2001.

[ 2 ] D.S. is K.H.’s sister-in-law. Until 2009, K.H. was married to D.S.’ sister M. who is 14 years older than D.S.

[ 3 ] When D.S. was nine years old her mother died. Approximately six months before her mother’s death, K.H. and M. moved in with D.S. and her mother. D.S. continued to live with K.H. and M. until she was eighteen years old. M. gave birth to twins in April 1999.

[ 4 ] The indictment contains fourteen charges against K.H. and J.H..

[ 5 ] K.H. is charged with:

a) one count of sexual assault between November 1, 1993 and November 30, 1994,

b) three counts of sexual assault and two counts of sexual touching with his penis between November 1, 1998 and November 30, 1999,

c) one count of assault between November 1, 1998 and November 30, 1999, and

d) one count of invitation to sexual touching when in a position of trust between November 1, 2004 and November 30, 2005.

(The Crown seeks a directed verdict of not guilty on two additional counts involving K.H. on the grounds that the evidence adduced at trial could not support a conviction on those counts.)

[ 6 ] J.H. is charged with one count of sexual assault, one count of sexual touching, one count of invitation to touch his penis, and one count of assaulting D.S. between May 1 and August 31, 2001.

[ 7 ] In 2001 (when D.S. alleges J.H. committed offences against her), J.H. occasionally visited D.S.’ home and stayed overnight.

[ 8 ] D.S. and her sister testified on behalf of the Crown. K.H. and J.H. chose not to testify. The parties filed an agreed statement of facts on behalf of B.H., D.S.’ niece and daughter of K.H..

II. The Position of the Parties

The Defence Position

[ 9 ] The Defence position is that there are a number of inconsistencies between D.S.’ testimony at the Preliminary Inquiry and her testimony at trial, between her testimony and that of her sister M. at trial, and between D.S.’ testimony and the statement given by her niece B.H.. In addition, there are occasions wherein D.S. could not recall details of the allegations. These inconsistencies and memory failures taken together should lead the court to conclude that there is a reasonable doubt as to both accused’ guilt on all of the charges.

[ 10 ] The Defence need not establish a motive for D.S. to come forward. However, the Defence suggests that D.S. may have made up a story of abuse and sexual abuse after she discovered K.H. had called the police. K.H. told police M. had threatened to kick their twelve year old son out of the house after he was late being returned home by K.H..

[ 11 ] M. testified that her sister D.S. told her that, “If K.H. wants to play with fire (by calling the police) I can play with fire too”. The following morning M. sent an email to K.H. saying, “We need to talk. Otherwise this thing will get very bad.” Six days later, D.S. made these allegations.

[ 12 ] The Defence claims the timing and manner of D.S.’ disclosure of these assaults suggests she had a motive to fabricate evidence in order to assist her sister in her custody dispute with the accused, K.H.. J.H. was implicated as he was K.H.’s brother and the brothers were very close.

The Crown’s Position

[ 13 ] The Crown’s position is that the evidence adduced by the Crown is sufficient to satisfy the Court beyond a reasonable doubt of K.H. and J.H.’s guilt on all of the charges.

[ 14 ] The uncontradicted evidence of the Crown witnesses is that K.H. and J.H. had the opportunity to commit the offences as K.H. lived in the same house as D.S. and J.H. stayed overnight at their home at the time he is alleged to have committed the offences.

[ 15 ] The Crown points out that these allegations involve incidents that allegedly took place when D.S. was a child. Young children may not be able to recount the precise details but this does not mean they misconceive what happened to them. Although D.S. did not recall all of the surrounding details, she clearly remembered what was done to her and by whom. Any minor inconsistencies in her testimony should be attributed to the passage of time, the strain of subjecting young people to the process (though she is now 22 years old), the fact that the assaults were ongoing and perpetrated by two different individuals, and it is not always easy to remember each incident with specificity.

[ 16 ] The Crown submits that D.S.’ story has the ring of truth about it and that her sister M. corroborated her testimony on several important points.

III. Overview of the Applicable Legal Principles

[ 17 ] Assault is established by proof of touching without consent. Sexual assault is established by proof of touching of a sexual nature and the absence of consent. As D.S. was between four and fourteen years old at the time of the alleged assaults, there can be no consent. The touching of a sexual nature is determined objectively and is the only element that must be proved in this case. [1]

[ 18 ] An invitation to sexual touching is established where the accused invites, counsels or incites someone to touch his body and the touching is for a sexual purpose. [2] To “invite” means to request or ask, by words, gestures or both. To “counsel” means to advise someone to do something, suggest or recommend that she do it. To “incite” means to urge someone to do something.

[ 19 ] The touching must be intentional physical contact with any part of a person’s body. Force is not required. Touching is done for a sexual purpose if it is done for the sexual gratification of the person touching, or to violate the sexual integrity of the person touched. [3]

[ 20 ] An accused person is presumed innocent and the burden is on the Crown to prove each of the essential elements of the offence beyond a reasonable doubt. [4] The threshold that must be met in order to establish guilt on each count is very high: it is less than absolute certainty but more than probable guilt. [5] Only the evidence relevant to the charge may be considered in applying the burden of proof.

[ 21 ] There must be a meaningful assessment of the evidence before determining whether guilt has been established. [6] Parts of a witness’ evidence may be accepted and others rejected and different weight may be accorded to different parts of the evidence. [7] A guilty verdict may be founded on the evidence of a single witness [8] where that evidence constitutes the bulk of the testimony on that issue. [9]

[ 22 ] To the extent that credibility assessment demands a search for confirmatory evidence for the testimony of a Complainant, such evidence need not directly implicate the accused or confirm the Complainant’s evidence in every respect as long as it maintains the trier's faith in the Complainant’s account. [10]

[ 23 ] The existence or absence of a motive to fabricate is also a relevant factor to be considered. [11] The burden of proof is upon the prosecution and an accused need not prove a motive to fabricate on the part of a principal Crown witness.

IV. The Evidence

D.S.’ Evidence Regarding the Alleged Assaults

[ 24 ] There were only two witnesses at the trial, both of whom testified on behalf of the Crown: the Complainant and her sister (K.H.’s former wife) M..

[ 25 ] D.S. claimed that the incidents involving K.H. occurred when she was between the ages of four and fourteen years of age as described below:

(a) Count 1 (sexual assault): D.S. testified that the first sexual assault by K.H. occurred when she was four years old. She was visiting her sister and K.H. in their basement apartment on Perth Avenue. She said K.H. asked her to play with him and she agreed. She was on her hands and knees and K.H. came up behind her on his hands and knees and moved his genitals on her behind until there was a twitching in his genital region whereupon he stopped. Both she and he were clothed. K.H. called this “horsey”. D.S. said this happened in her sister’s apartment about five to ten times. It always took place when no one else was there. D.S. didn’t say anything to anyone because K.H. told her she could not tell anyone or she would get in trouble.

(b) Counts 3, 4, and 9 (two counts of sexual assault and one count of sexual touching with a penis): D.S. claims that when she was nine to eleven years old K.H. approached her as she was getting ready for school and told her she had to give him a “release”. By this, D.S. said K.H. meant that she had to play horsey with him until he ejaculated. When she fought back, he would hit her. She wore underwear but no trousers. Over her objection, he put his genitals between her thighs and rubbed his genitals until he ejaculated. Sometimes he lubricated his genitals with Vaseline and ejaculated into a towel. D.S. said this happened many times. D.S. testified that when she was 10 or 11 years old, K.H. stopped wearing anything over his genital area. D.S. said that she sometimes told K.H. she was going to say something and he told her that if she did, she wouldn’t have a family because everything would fall apart.

(c) Counts 5 and 6 (One count of sexual assault and one count of sexual touching with a penis ) : When she was ten or eleven years old, D.S. said K.H. came on top of her. She started to scream and he put his knee on top of one of her arms so that she would stop moving and with his other arm he tried to take off her pants. He got them halfway down. She was wearing her pyjama top and bottoms and he was wearing nothing. She thought he was trying to have sex with her. In the end, he got off of her, she got on her hands and knees and he put his genitals between her thighs and rubbed his genitals against her thighs until he ejaculated.

(d) Count 7 (assault): When D.S. was ten or eleven years old, she said she tried to leave the apartment and K.H. got up from the living room couch. He asked her to give him a “release” because her sister was never home. When she refused, K.H. started to punch her. They moved to the kitchen and she fell to the floor and hit her head on the cupboards. He was punching her face. She had bruises and scrapes on her face. She looked bloody and had torn skin on the side of her face. She felt she was unable to go to school looking like that. Her sister was not home during the incident. When her sister returned and asked her what had happened D.S. says she had been in a fight with children.

(e) Count 10 (invitation to sexual touching): D.S. said that when she got into high school, she started giving K.H. “hand jobs” and no longer played “horsey”. D.S. said she told K.H. he could no longer touch her. He masturbated in front of her and he’d ask to touch her while looking at his penis. He did this often, sometimes in the living room when her niece and nephew were playing outside. D.S. said this was possible as he wore track pants or trousers with a zipper that could be pulled up quickly.

[ 26 ] D.S. said that during the months of May through August 2001, the following incidents took place with J.H.:

(a) Counts 11 and 14 (sexual assault and touching for a sexual purpose): In the Spring or summer of 2001 J.H. came into her room at night and told her he knew what was happening with K.H. and wanted to do the same thing with her. D.S. objected and J.H. threatened to tell her sister what was going on with K.H.. She therefore permitted J.H. to come at her from behind, put his penis in between her thighs and rub his genitals until he ejaculated. D.S. said she and he were clothed the first few times. After the first few times, her underpants were off and he rubbed his penis between her thighs and ejaculated into a towel. This happened during the night or during the day when no one else was home. It usually took place in D.S.’ bedroom.

(b) Count 12 (invitation to D.S. to touch the accused’ penis with her hand): D.S. said she sometimes pleaded not to do “horsey” and would give him a “hand-job” instead until he ejaculated.

(c) Count 13 ( assault): On the occasions where she resisted, D.S. said J.H. pushed her down and slap her in the face though not as hard as K.H. did. On the first such occasion, he punched and slapped her on her face such that her face was bruised. J.H. would call her “slut”, “whore” and other nasty names.

Termination of the Assaults

[ 27 ] One day, in or about August 2001, D.S. testified that her niece B.H. asked D.S. if it was wrong that her uncle J.H. “put his penis on her butt”. (In her statement, B.H. had no recollection of this event.) D.S. said she became very angry. The next day she saw J.H. and told him she knew what had happened with B.H.. D.S. said she told him she would no longer play “horsey” with him. D.S. testified that J.H. became very angry and accused her of lying. D.S. said K.H. came in and she told K.H. what J.H. had done to his daughter. K.H. and J.H. began discussing it in the living room and then J.H. left. After this there were no further incidents with J.H..

[ 28 ] When D.S. got into high school, she said she stood up for herself and told K.H. he could not touch her any more. He did however continue to masturbate in front of her.

[ 29 ] When she was fifteen or sixteen D.S. said she had a general discussion with her sister and told her K.H. had touched her inappropriately. She did not discuss the details of these allegations at the time.

[ 30 ] When she was 18 years old, D.S. moved in with her brother and sister in law as they lived closer to the college she was attending. She said she felt like a different person after she left the house she shared with K.H. and she realized how “messed up” her life was. She was trying to protect her niece and nephew but did not feel good about her niece and nephew staying there.

Delay in Disclosing Alleged Assaults

[ 31 ] D.S. said she did not tell anyone about these sexual assaults for the following reasons:

(a) K.H. told her not to tell or the family would be torn apart;

(b) J.H. told her if she did not permit him to sexually assault her he would tell her sister what she was doing with K.H.; and

(c) she felt ashamed.

Impetus to Divulge the Sexual Assaults

[ 32 ] D.S. said that on December 22, 2009 she called her sister M.. M. told her K.H. called the police and told them she had thrown their son out of the house. D.S. was angry when she found this out. D.S. said she could not believe K.H. was going to the police after all of the things he had done to her.

[ 33 ] On December 29, 2009, D.S. gave a statement to police and told them that K.H. and his brother J.H. had abused her.

[ 34 ] M. testified that D.S. says that if K.H. wanted to play with fire, she would play with fire too. D.S. did not recall saying this.

V. Analysis of the Evidence and Conclusion

[ 35 ] There were no witnesses to any of the alleged offences. There was no forensic evidence. Only two witnesses testified: both testified on behalf of the Crown. K.H. and J.H. had the opportunity to commit these offences.

[ 36 ] The question is whether the court is satisfied beyond a reasonable doubt that K.H. and J.H. did commit some or all of these offences.

[ 37 ] D.S.’ sister M. was an exemplary witness. M.’s evidence was given in a forthright manner. She was honest about what she did not recall and did not attempt to paint herself in a favourable light.

[ 38 ] On the evidence before me, M. was not always aware of what was happening at home as she worked two full-time jobs for an extended period to support the family, while being in charge of the household and being the legal guardian for D.S. She was often not home until late at night. K.H. on the other hand was often out of work and sometimes chose not to attend work when he was employed. As such he was home more often.

[ 39 ] M. testified that one evening in December 2009, her twelve year old son called her from his father’s car to ask if he could go to his aunt’s house to use the computer. She said no because it was too late at night. She said his father could take him the next day. Her son called again a few minutes later to say they were on their way to his aunt’s home. She was angry and told her son that if he did not want to live by her rules he could go and live with his father. She later allowed her son to stay over with his father until ten a.m. the next day.

[ 40 ] K.H. called the police who in turn contacted the Children’s Aid Society. He claimed M. had thrown her son out of the house. M. says she was exonerated by the police and Children’s Aid Society.

[ 41 ] Notwithstanding all of this, M. exhibited no bitterness about K.H. or the period they spent together. When asked why the relationship with K.H. broke up she simply said they had “a different idea of living”.

[ 42 ] M. corroborated D.S.’ testimony that K.H. was critical of D.S., that D.S. complained that K.H. touched her and that this made her upset. She also confirmed that D.S. said B.H. had told her J.H. had touched her leg. On the other hand, M. did not witness any physical or sexual assaults or any inappropriate touching by either accused.

[ 43 ] D.S. was also a credible witness. There were however some inconsistencies between her testimony and that of her sister M., and the statement given by her niece B.H..

[ 44 ] I agree with the Crown’s submission that young children may not be able to recount the precise details of things that happen and this does not mean they misconceive what happened to them. [12] It is also important to remember that it is not always possible to recount matters with precision particularly when there are multiple events over a prolonged period.

[ 45 ] Minor inconsistencies such as the specific years when her sister M. was working specific hours at the various jobs she held, can be attributed to the passage of time, the strain of the process and the fact that the assaults were alleged to be ongoing and perpetrated by two different individuals. However, the following inconsistencies are material:

(a) D.S. testified that on one occasion, K.H. punched her in the face and kicked her. She had torn skin on the side of her face, blood on her face, bruises and scrapes. She was bleeding from her nose and mouth. She said the injuries were so bad she could not go to school. When her sister got home and asked her what happened, D.S. said she had gotten into a fight with other children. When she went back to school the school authorities questioned her. D.S. testified that K.H. often physically abused her such that she had marks and bruises on her. Once she said she had a black eye. She sometimes missed school because of these injuries.

• M. testified that she did not ever remember bruising or other injuries on her sister’s face. She did not recall asking her sister what happened or her sister ever getting into fights with other children at school. M. remembered D.S. missing school a couple of times. She found out because the school left a message at her home. When she asked D.S. why she had missed school D.S. told her she had gone with friends to the park. She did not recall D.S. ever telling her she had gotten into any fights with other children.

(b) D.S. testified at the Preliminary Inquiry that when she was fifteen or sixteen, she started to tell her sister that K.H. had behaved inappropriately to her as a child. M. and K.H. would then get into arguments and K.H. would leave for periods.

• M. said she does not recall D.S. ever telling her that K.H. had behaved inappropriately toward her. Once when she came home from work, D.S. complained that K.H. would push her. She did not like it when K.H. “smushed” her shoulder. She told M. and M. told him to stop.

(c) D.S. testified that J.H. never came around nor did he stay over at her home after September 2001.

• M. said J.H. was a frequent visitor and he and K.H. were very close. J.H. slept over at their home occasionally until they moved to their new home in 2007 (I note that both D.S. and M. claimed that the event that precipitated M.’s decision not to allow J.H. to come over any more was the allegation that he had touched B.H.. The discrepancy was when that event occurred.);

(d) D.S. testified that her niece told her that their uncle J.H. put his penis on her butt. In September 2001, D.S. confronted J.H. and told him that B.H. had asked her if it was wrong that J.H. put his penis on her butt. She and J.H. started yelling and K.H. came in. K.H. and J.H. had an argument and J.H. left. He never came over again.

• B.H. said in her statement filed with the court that she did not remember telling D.S. that.

• M. said she tried to ask her daughter about this but B.H. said she didn’t remember the incident.

• According to M., D.S. told her J.H. had touched B.H.’s leg.

[ 46 ] I listened carefully to D.S.’ testimony. I found her account of the assaults to have the ring of truth to them. She did not exaggerate what had happened and in fact omitted that she had to give K.H. “hand jobs” until she testified at trial.

[ 47 ] I found her explanation that she was afraid to speak up and was ashamed of what had happened to be believable, particularly in the way she recounted it. D.S. had suffered the loss of her mother and father, the death of an older brother and was raised by an older sister who through no fault of her own, had little time for D.S. She was a young girl alone in the world. No evidence was lead to contradict the picture of a difficult home life with little parental guidance.

[ 48 ] Her account of why she decided to come forward was also compelling. According to D.S., she decided to break her silence after she had moved away and realized how “messed up” her life was. She had also just come to realize that the person she says had committed crimes against her was invoking the law to his advantage and to the detriment of the only person who was there to care for her niece and nephew.

[ 49 ] On the evidence adduced at this trial, K.H. was not a good role model. He did little to support his wife or D.S. financially or emotionally.

[ 50 ] My task is not to decide whether K.H. and J.H. are probably guilty. Nor is it to determine if they are unsavory people. My task is to decide whether the evidence in this case leads me to be satisfied beyond a reasonable doubt, that is, to be almost certain that K.H. and or J.H. committed the offences with which they have been charged.

[ 51 ] Taken together, the inconsistencies I have noted above, in view of the fact that there is no third party or forensic evidence to corroborate D.S.’ testimony, leave me with a reasonable doubt as to K.H. and J.H.’s guilt on all counts. I have come to this conclusion because the threshold for a finding of guilt is extremely high.

[ 52 ] I therefore find K.H. and J.H. not guilty on all counts.

[ 53 ] In view of my decision that the accused are not guilty of any of the charges, I need not determine whether the Crown may amend the indictment to reflect the evidence of D.S. as to the time within which some of these offences occurred.

[ 54 ] The Crown seeks to amend the indictment as the dates for two counts do not accord with the evidence presented by D.S. at trial and the dates are not an essential element of the case. The Crown relies on the decision in R. v. B. (G.). [13] When the time of the offence cannot be determined with precision or the information conflicts with the evidence, unless time is an essential element of the offence or crucial to the defence, a conviction may result although the time of the offence is not proven, if the rest of the Crown's case is proven beyond a reasonable doubt.

[ 55 ] The Defence argued that the indictment should not be amended by citing R. v. P. (M.B.) . [14] That case can be distinguished from the case before me. In that case, one of the key reasons for not allowing the Crown to adduce new evidence to refute the alibi evidence was that the year in which the offences were alleged to have occurred was crucial to the defence. The focal point of the evidence was the weekend when the two most serious sexual assaults took place. The defence was a denial bolstered by an alibi which the defence could establish independently of the Crown's evidence. Once the time frame was changed to include the year, the accused lost the ability to put forward an independent assertion of his innocence to the charge contained in the indictment.

[ 56 ] No such prejudice exists in this case. Here, the time within which the offences were alleged to have occurred was not crucial to the defence. No alibi evidence was proffered to refute an allegation that an incident occurred or did not occur during a particular timeframe. The position of the accused K.H. in this case was that none of the events took place. Some leeway is to be granted to the Crown, absent the denial of a significant procedural safeguard so that the technical rules of pleading do not frustrate a conviction where one is called for on the evidence adduced at trial.

[ 57 ] As such, had acquittals not been entered on all counts I would have permitted the proposed amendment to the indictment.

Thorburn J.

Released: February 23, 2012

DATE: 20120223

ONTARIO SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN - and - E.K.H. - and – E.J.H.

REASONS FOR JUDGMENT
Thorburn J.

Released: February 23, 2012