ONTARIO SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 10-SA5041
DATE: 2012/04/02

ONTARIO

SUPERIOR COURT OF JUSTICE

INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION PURSUANT TO SECTIONS 486.4(1) AND 539 OF THE CRIMINAL CODE OF CANADA

BETWEEN:

HER MAJESTY THE QUEEN – and – M.K.

Lisa Miles, for the Crown
Israel Gencher, for the Accused

HEARD: January 9-13 and 16, 2012

REASONS FOR JUDGMENT

R. SMITH J.

[ 1 ] The accused, M.K., is charged with four counts, namely sexual touching of a person under 14 years of age, counselling to sexually touch, sexually touching a person in a relationship of dependency, and sexually assaulting T.R. (the “complainant”) between 2003 and March 10, 2010, including periods when she was under 14 years of age. The accused is also charged with one count of assault and one count of assault with a weapon, namely hitting T.R. with a broom handle.

[ 2 ] The accused testified and denied that he ever sexually touched T.R., or ever counselled her to touch him in a sexual manner, and also denied ever assaulting T.R. The complainant’s mother, J.R., who was the accused’s common law partner, and her younger brother, A.R., both testified that they did not believe her allegations of sexual touching by the accused or her allegations that she had been frequently assaulted by the accused.

Issue and Test

[ 3 ] The issue in this case is one of credibility and after considering the whole of the evidence, deciding if the Crown has proven the allegations beyond a reasonable doubt. In order to decide this issue, I must consider the evidence in accordance with the R. v. W.(D.), 1991 93 (SCC), [1991] 1 S.C.R. 742 decision of the Supreme Court. I must also instruct myself that when determining credibility, it is not a contest to determine who was more credible but rather to decide if the Crown has met its onus of proof beyond a reasonable doubt. The onus never shifts to the accused. In addition, an assessment of credibility involves an evaluation of both the honesty and the reliability of the witnesses’ evidence.

Background Facts

[ 4 ] The complainant was born on […], 1990 and had just turned 21 years old when she testified in court.

[ 5 ] The complainant is currently residing with her aunt and uncle S.N. and A.N. S.N. is the complainant’s deceased father’s sister. The complainant was born in Pakistan and her parents were originally from Afghanistan. The complainant’s father was killed in Pakistan when she was two and one half years of age.

[ 6 ] J.R. is the complainant’s mother. A.R. is her younger brother who is now 19 years of age and also lived with the complainant, their mother and the accused. The complainant also has an older brother T.R. (who has the same initials as the complainant and therefore will be referred to as T.). T. is now 24 years of age, and resides in London, England.

[ 7 ] After the complainant’s natural father was killed, her mother and the children moved to live with her deceased father’s family in Pakistan. The oldest son T. was sent to live with relatives in London, England. In 1999, the complainant, her mother and her younger brother A.R. moved to Canada from Pakistan with her uncle, K.R.

[ 8 ] When the complainant and her family first moved to Canada, they lived on Norbury Crescent, in the City of Ottawa with her mother, her younger brother, and her uncle K.R. They resided at this location for approximately six months.

[ 9 ] In the summer of 1999, the accused, M.K. began a relationship with the complainant’s mother. Shortly thereafter, the complainant moved with the accused, her mother and her younger brother to a friend of the accused’s home where the accused had been living and had rented a bedroom. The complainant was not aware of the romantic relationship between her mother and the accused at this time. She testified the accused initially treated both the children and her mother respectfully.

[ 10 ] Sometime in the year 2000, the complainant moved with her mother and her younger brother to a townhouse located on R1[…] Street. She lived there for approximately six years until she completed Grade 7 when she was 14-15 years of age.

[ 11 ] The complainant testified that the accused often stayed overnight with her mother when they lived on R1[…] Street. However, this evidence was denied by the accused, by J.R. and by A.R. The accused testified that he often visited the complainant’s mother at the R1[…] Street apartment, and when he occasionally stayed overnight he slept in the living room. The complainant’s mother testified that the accused never slept in her bedroom while she lived at R1[…] Street. She acknowledged that she had commenced having sexual relations with the accused before they moved to R1[…] Street but denied that the accused ever slept over with her while she lived on R1[…] Street for approximately six years. I find that the complainant’s mother’s evidence in this regard is not believable as it does not accord with the preponderance of probabilities to a practical and informed person.

[ 12 ] The complainant’s mother was receiving subsidized housing and social assistance through Immigration while she was living on R1[…] Street and the accused was prohibited from living with her as he was fully employed at this time. I find that the accused and the complainant’s mother were reluctant to admit that they broke the rules and this explains why they deny that they lived together as a couple on a full‑time basis at R1[…] Street.

[ 13 ] The accused acknowledged that he often attended the R1[…] Street apartment during this period. I find that the accused’s evidence that he did not engage in sexual relations with the complainant’s mother or enter her bedroom for six years while she lived on R1[…] Street and that of J.R. does not accord with common sense as they had commenced having sexual relations before they moved to R1[…] Street.

[ 14 ] The complainant testified that the accused frequently slept over with her mother in her bedroom during the six years that the family resided at R1[…] Street. I find that the complainant’s evidence accords with what a practical and informed person would find accords with the preponderance of probabilities and the evidence of her mother and the accused does not.

[ 15 ] The accused and the complainant testified that the accused acted in the role of the complainant’s stepfather. The accused agreed and testified that he was more than a father to the complainant.

[ 16 ] The complainant testified when she was approximately nine years of age, the accused started yelling at her and became very controlling towards her especially after he saw school pictures of her with other boys in her class.

[ 17 ] The complainant testified that her relationship with the accused changed when she attended Grade 6 for the second year. The accused became more aggressive and more controlling and insisted on knowing everything that she did. She testified that the accused started touching her in a sexual manner when she was 13 years old. She testified that she did not know that the accused’s conduct was wrong until her second year of Grade 6 when she was taught in health class that the accused’s touching was wrong.

[ 18 ] The complainant also testified that the accused would discipline her by hitting her on a regular basis with his hands, shoes, belt, or any other object that was close at hand. When this occurred, he would say that it was for her benefit. She testified that this happened when she lived on R1[…] Street and that her mother did not say anything when this occurred. She testified that she had bruises from time to time but never suffered serious injury.

[ 19 ] The complainant testified that when she turned 13, the accused would come and give her a hug at night and put his hands between her legs, under her underwear, and rub her vagina and ask her how it felt. She testified that when the sexual touching occurred her brother was in his bedroom and her mother was downstairs and both were unaware of what was happening. The complainant testified she would tell the accused to stop but he acted as if she was joking and would continue.

[ 20 ] The complainant also testified that the accused touched her on her chest area and on her breasts with his hand. The complainant testified that the second time she took Grade 6 she became aware that what the accused was doing was how girls became pregnant.

[ 21 ] The complainant testified that the accused would also put his tongue in her mouth to show her how lovers kissed. The complainant testified that when she was 14 to 15 years of age, she asked the accused to stop touching her in a sexual way. The accused did not stop but increased the touching and asked her when she would let him sleep with her. The complainant agreed to allow the accused to sleep with her when she reached the age of 18 and she understood that this meant she was consenting to having sex with him at that time. The complainant agreed to this when she was 14 to 15 years of age.

[ 22 ] The accused worked at a golf club during the summer months when the golf course was open but then collected Employment Insurance for approximately five months during the winter months.

[ 23 ] The complainant testified that she was 15 years of age when they moved to a house located on R2[…] Road in Manotick. The complainant also testified that the sexual touching continued when they lived on R2[…] Road in Manotick. The accused would continue to touch her chest, put his fingers between her legs and sweet talk her while doing this and a few times touched his penis to the skin of her vagina.

[ 24 ] The complainant’s evidence that the accused would come to her bedroom at night when they lived on R2[…] Road near Manotick was contradicted by her mother and her younger brother. Both J.R. and A.R. testified that the accused never went into the complainant’s bedroom at night. However, the accused contradicted their evidence as he admitted that he would enter the complainant’s bedroom at night to give her a hug. The accused also agreed that he would lie on the bed beside the complainant and talk with her however he denied ever touching her in a sexual manner.

[ 25 ] The complainant testified that when they lived on R1[…] Street, the accused did not put his penis in her vagina or lay on top of her. She testified the accused had forced her to hold his penis and kiss him while they were on R1[…] Street. She testified that the accused touched her vagina at night almost every night and would have her touch his penis approximately once every two weeks. The complainant testified that she never told her mother because the accused told her not to tell and she was afraid the accused would leave and her mother and brother would be forced to live on the street.

[ 26 ] The accused and J.R. agreed that they lived together and shared a bedroom when they resided at R2[…] Road in Manotick. The last time the complainant spoke to her mother was when she left her home on March 10, 2010 other than on one occasion when her mother contacted her at her school.

[ 27 ] When her younger brother A.R. started attending High School, the accused instructed him to watch the complainant very closely and to eat lunch with her every day and report back to him. The complainant’s evidence in this regard was confirmed by that of her brother A.R. and largely confirmed by the evidence of the accused and her mother.

[ 28 ] While the complainant was attending High School, the accused would perform checks on her to make sure she was still a virgin. He would direct her to pull down her pants and he would inspect between her legs. During these occasions, he would take this opportunity to put his penis inside her vagina. She testified these encounters would have lasted from five to thirty seconds and that the accused closed her bedroom door before this occurred.

[ 29 ] The complainant testified that she did not believe that the accused ejaculated and testified that she had been to see a doctor and was told that her virginity was still intact. The complainant further testified that the accused would use his mouth between her legs and on her chest areas when she lived on R2[…] Road but did not use his mouth on her vagina when they lived on R1[…] Street.

[ 30 ] The complainant agreed that she went on vacation to Germany to visit the accused’s parents and she also travelled to London, England with her mother and her brother for a three week vacation. The complainant confirmed that she did not mention the sexual abuse by the accused to any of the accused’s family or to her deceased father’s family on either occasion.

[ 31 ] The complainant testified that she told her two friends M.J. and R.P. about being beaten by the accused but not about the sexual touching. The accused told her that if she told the Children’s Aid Society (“CAS”) about the beatings, she and her brother would be taken away and she would lose contact with their mother. As a result, the complainant denied any abuse when interviewed by the CAS after her friend R.P. told the teacher that she had seen bruises on the complainant’s arms and the teacher had called the CAS.

[ 32 ] In January or February of 2010, she had asked her brother T. if she could come to live with him in England. Her request was confirmed in a note that she wrote to him that was introduced as Exhibit Number 7. The complainant testified that she prepared the note on February 12, 2010 and gave it to her brother the day he was leaving to return to London. The complainant testified that she was 19 years of age at this time and told T. that she was trying to get kicked out and needed to find a place to stay. The complainant testified that in her culture she could not simply walk out without a good reason.

[ 33 ] The complainant also testified that she had tried to record what the accused said to her in her bedroom with her cellular telephone, however when the recording was made, the telephone was under the blanket and the recording was not audible. The complainant testified that she had no memory of the accused touching her in a sexual way before the age of 13, even though the accused had told her that he started touching her in a sexual manner since she was eight years of age.

[ 34 ] The complainant testified she told her friend S.C. about one week before she left that she had to leave her home. She had not told anyone before this date. The complainant finally left her home to live with her aunt and uncle (S.N. and A.N.) on March 10, 2010. She contacted the police and asked the police call her mother to tell her that she was safe and that she was not returning home. The complainant testified that she gave a statement to the police on March 15, 2010.

[ 35 ] The complainant also testified that she wrote a note in her Grade 11 Mathematics textbook stating she feared her stepfather. She took Grade 11 Mathematics during the first semester when she was in Grade 12. The first semester would have commenced in September 2009 and terminated in mid‑January of 2010. In the margin of her Mathematics book, she wrote “if anything happens to me it’s because of my step‑dad”. She also added “see page 111” but the writing on page 111 has been erased.

[ 36 ] Mr. Gregory Boyd was qualified as an expert forensic document examiner. He examined the erased portions of page 111 of the Mathematics textbook and testified that the erased portions in page 111 contained the following words that he was able to identify “I mean if I die or …ing … it’s … T.R.” (her first name plus the first initial of the complainant’s last name). The initials T.R. are the complainant’s initials and when the two notes are read together, it is clear that she believed her life was in danger and if something happened to her, her stepfather was responsible.

[ 37 ] The note written by the complainant in her Mathematics textbook is very significant because it confirms the complainant’s state of mind sometime between September 2009 and mid‑January 2010 when these notes would have been written. Mr. Q., the complainant’s Grade 11 Mathematics teacher testified that the Mathematics textbooks were returned to him by the students at the end of the semester. Mr. Q. was able to recognize the complainant’s unique handwriting and identified the writing on page 85 as that of the complainant. He further testified that she was a good student, very obedient and was not a problem in any way.

[ 38 ] The timing of the note in the Mathematics textbook is also significant because it was written by the complainant before her brother T. returned to England on February 12, 2010 after he visited for three weeks. I find it highly unlikely that her brother T. could have influenced the complainant to write such a note in order to falsely implicate the accused as was suggested by the defence. I find the suggestion of collusion between the complainant and T. to have T.R. write such a note in her Mathematics textbook as part of a plan to implicate the accused is not believable as the notes would have been written before T. visited her in Canada.

... (continues exactly as in the original text) ...

R. Smith J.

Given orally on: April 2, 2012