SUPERIOR COURT OF JUSTICE

COURT FILE NO.: P147/06

DATE: 20120125

*AN ORDER WAS MADE PURSUANT TO S. 486.4 BANNING PUBLICATION OF THE NAMES OF THE TWO COMPLAINANTS

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

GRANT SHENG

Kim Walker, for the Crown

John Struthers, for the Defence

HEARD: November 28-30, December 2 and 5- 8, 2011

m.a. cODE, j.

REASONS FOR JUDGMENT

A. OVERVIEW

[1] The accused Grant Sheng, (hereinafter, Sheng) is charged with two counts of sexual assault and two counts of sexual interference against J.H.[1] and T.H.. The two complainants are the daughters of W.T.. The accused Sheng was involved in an intimate relationship with W.T. at the time of the alleged assaults on her two daughters. The assaults generally involved touching of the two girls’ genitals at night, while they were asleep or after they awoke.

[2] The offences are alleged to have taken place between 1990 and 1994 in Toronto at a residence where W.T. was living with her two daughters. Two separate complaints were made to the authorities by the two girls in 1994. They were very young, about age ten and twelve, when the Children’s Aid Society (the CAS) and the Toronto police investigated the matter in February 1994 and again in October 1994. The authorities concluded that the allegations were unfounded and no charges were laid. The two girls were interviewed on both occasions in 1994. Various police and CAS notes of the interviews, as well as audio-tapes of the interviews, have either been lost or destroyed.

[3] Over ten years later, in 2005, the police re-opened the investigation and the present charges were laid. At a trial held in this Court in late 2006 and early 2007, the trial judge found the accused guilty but stayed the proceedings due to a breach of s. 7 of the Charter of Rights and Freedoms, resulting from the lost evidence of the 1994 interviews.

[4] On a Crown appeal, the Court of Appeal reversed the trial judge’s decision and ordered a new trial. Laskin J.A., giving the judgment of the Court, held that there was no s. 7 violation. He concluded that the evidence was not lost as a result of unacceptable negligence. Furthermore, he held that the loss of the 1994 interviews was not so prejudicial to the right to make full answer and defence that it justified a stay of proceedings. The CAS had preserved some notes of the interviews as well as thorough reports that summarized and quoted from the interviews. This secondary evidence was available and could be used in cross-examination to challenge the two complainants’ credibility and reliability. Although the lost evidence did not justify a stay of proceedings, it should have been taken into account in relation to the merits of the case, that is, in assessing the two girls’ credibility and reliability and in deciding whether there was reasonable doubt. For all these reasons, the Court of Appeal ordered a new trial. See: R. v. Sheng (2010), 2010 ONCA 296, 254 C.C.C. (3d) 153 (Ont. C.A.).

[5] The re-trial took place over eight days in November and December, 2011, without a jury, and I reserved judgment. These are my reasons for judgment.

B. FACTS

(i) Introduction

[6] The Crown called four principal witnesses, namely, the two complainants and their parents. In addition, the Crown relied on a surreptitious tape recording that was made of a conversation between J.H.[1] and the accused Sheng in 2003. In the taped conversation, she confronted him with her allegations, some two years before she went to the police.

[7] The defence called the accused Sheng and he denied the allegations. The defence also relied heavily on the remaining records of the 1994 joint police and CAS investigations. These records were used extensively in cross-examination of the Crown’s principal witnesses.

(ii) J.H.[1]’s account of sexual abuse at the Wood Street apartment

[8] J.H.[1] is now twenty-nine years old. She has a degree in broadcast journalism from R[..] University, she is married and works in Beijing as a television journalist. She is the oldest of three children born to W.T. and J.H.[2]. Her parents were immigrants from Taiwan. The three children – J.H.[1], T.H. and P. – were all born and raised in Toronto.

[9] When J.H.[1] was seven years old her parents separated. She described the relationship between her father and mother as abusive, both emotionally and physically. She witnessed fights where her father would beat her mother. After one particular beating, J.H.[1]’s mother left her father and moved into a shelter for battered women, together with the three children, in the summer of 1990.

[10] The accused Sheng was a close friend of J.H.[1]’s father and had been best man at his wedding to W.T.. Sheng would visit the family home. His visits became more frequent as the marriage was falling apart and he eventually became a companion to W.T..

[11] In September of 1990, as J.H.[1] was turning eight and entering grade three, her mother and the three children moved out of the shelter and into a small one bedroom apartment on Wood Street in downtown Toronto. Sheng helped them find the apartment and he began visiting more frequently. The two sisters initially slept in a bunk bed that was located in the living room, while W.T. and P. slept in a queen bed in the bedroom. However, within a short period of time, the bunk bed was moved into the bedroom and all four members of the family slept there. At some point, the top bunk was taken away and J.H.[1] slept on the remaining bottom bunk while her mother, T.H. and P. all slept in the queen bed.

[12] J.H.[1] acknowledged loving her father and being sad at the break-up of her family and the resulting separation from her father. However, she felt that it was for the best because of the fighting between her parents. She and her father J.H.[2] remained very close and he would visit on weekends. In a letter that J.H.[1] later wrote to Sheng in 2004, setting out her allegations, she stated that she was “pretty traumatized by [her] parents’ separation and all the physical abuse my dad put my mom through …I was anxious and hurt that my father was no longer around. He did not like you, might have blamed you to us for his problems with mom, but I was old enough to form my own judgments.”

[13] J.H.[1] testified that her relationship with Sheng was fine, at the early stages, as he was helping her mother. However, J.H.[1] knew that her father did not like Sheng and that he was very angry and upset that his best friend was effectively moving in with his wife. J.H.[1] also agreed that her father was protective of her and had cautioned the girls that they were vulnerable to “perverts”, or “yellow foxes” as he called them. In cross-examination, J.H.[1] denied that her father called Sheng a “yellow fox” or “pervert”. She insisted that she did not resent Sheng for injecting himself into the family.

[14] J.H.[1] testified that Sheng began sleeping over on his visits to the Wood Street apartment, after the family had been living there for about a month. This is when the night time sexual assaults began. The bunk beds had been moved into the bedroom and all four members of the family were sleeping in the bedroom. Sheng would sleep on the couch in the living room.

[15] It was apparent to J.H.[1] that Sheng was now her mother’s boyfriend and he was acting like a step father. He made household rules about cleaning up, about dress, and about behavior, and he acted as the disciplinarian in the home. J.H.[1] agreed that she did not think Sheng’s rules or his discipline were called for. He was much stricter than her mother or her father and he would spank the children. J.H.[1] denied that T.H. was openly resentful of Sheng. She agreed that there was one particular incident where the girls had melted wax crayons in a pot on the stove and Sheng had disciplined them. He may have spanked them on this occasion.

[16] J.H.[1] agreed that her father had not gotten over the separation from her mother but she denied the suggestion that her father wanted Sheng out of the house or that her father was on a mission to get his wife back. J.H.[1] agreed, however, that she witnessed a serious fist fight between her father and Sheng, in the hallway outside the Wood Street apartment, shortly after the family had moved there from the shelter. She also agreed that she would not tell her father that Sheng was visiting so that her father would not feel betrayed.

[17] J.H.[1]’s recollection of the first sexual assault at the Wood Street apartment was when she was eight years old. All four members of the family and Sheng had been watching a scary movie on the VCR in the living room. She believed that the movie was “The Exorcist”, although it could have been some other scary movie. They were all seated on the couch and J.H.[1] must have fallen asleep. She awoke and found that her one piece jumper had been unzipped and pulled down around her ankles. Her legs had been pulled apart and Sheng was punching her in the vaginal area. She could see lights flashing and heard a clicking sound and believed that he was taking pictures of her genital area, as he assaulted her, although she did not actually see a camera. It hurt when his fist landed on her vagina but she did not cry out or say anything. She was shocked and she stifled the pain. She estimated that the assault lasted five to ten minutes. She pretended to be asleep and kept her eyes closed and her head back, squinting and looking out through the bottom of her eye lids until he had finished. Although Sheng repeatedly punched her during this assault, she had no physical injuries and she did not see a doctor.

[18] J.H.[1] testified in chief that Sheng must have carried her into the bedroom and put her on her bed, after the assault was over, because she was not on the living room couch in the morning when she awoke. In cross-examination, she testified that she now recalled Sheng picking her up from the couch and carrying her into the bedroom, after the assault. Her mother was asleep in the bedroom. At the preliminary inquiry, in January 2006, she had testified that the bunk beds were still in the living room at the time of this first assault. At the first trial, in November 2006, she testified that this was a mistake and that she could not fully remember where the bunk beds were located. She assumed that Sheng must have carried her back to her bed, although she had no actual recollection of this. She thought that her bed might have been in the bedroom as this would explain why she fell asleep on the couch rather than in her own bed. She insisted, in cross-examination at the present trial in November 2011, that she now had an actual recollection of Sheng picking her up from the couch and carrying her to her bed, which was in the bedroom. He must also have put her jumper back on, after the assault, as she was dressed in the morning when she awoke. He put her down on the bed and she fell asleep. None of the assaults took place while the bunk beds were still in the living room.

[19] In the morning, when she got up, nothing was said. She was scared and pretended that nothing had happened. She explained that Asian culture is very repressive in relation to sexual matters and that she would be told to look away when there were scenes merely involving kissing on the television. She was afraid to say anything about this “disgusting secret” of being sexually assaulted. She thought that she would be shunned by her parents if she said anything. J.H.[1] agreed that “The Exorcist” is a very frightening adult horror movie. She later learned in high school that it has a scene where a ten year old girl assaults herself in the vagina with a crucifix. She recalled the whole family watching the movie, including her six year old sister T.H.. There was no discussion in the morning about the scary movie they had watched or about nightmares.

[20] The second sexual assault that J.H.[1] recalled took place while she was asleep on the bottom bunk in the bedroom. T.H. would also have been asleep, either on the top bunk or in the queen bed where she sometimes slept with her mother and brother. The head of the bunk bed, where J.H.[1] slept, faced towards the queen bed. There was a space of about one and a half metres between the two beds.

[21] J.H.[1] awoke to find herself on her knees with her head and chest on the bed and her buttocks lifted up in the air. Sheng was forcefully inserting his finger in and out of her vagina. The assault lasted for five to ten minutes. Her mother must have been asleep on the nearby queen bed. She did not cry out. She did not want Sheng to know that she was awake. She described feeling like she was in a movie, as if she was not present but had flown out of herself and was watching this “atrocity” from a corner of the room.

[22] The above two assaults were vivid memories that “pop out at her”. However, there were many other incidents. She remembered one at about age nine or ten, when she was sleeping on the top bunk. Sheng came into the bedroom and put his hand under her nightie and penetrated her vagina with his finger. It felt like it lasted for five to ten minutes. T.H. was asleep on the lower bunk and her mother and P. were asleep on the queen bed. There were many other similar incidents of night time genital fondling under her pajamas. It seemed like Sheng would sleep over every other night, at the Wood Street apartment, although he would also go away on business trips for periods of time. J.H.[1] dreaded the times when he slept over. It felt like there were countless times that Sheng sexually abused her.

[23] In cross-examination, J.H.[1] agreed that there could have been hundreds of these incidents. The family lived at the Wood Street apartment for four years and Sheng slept over approximately half the time. The numerous night time assaults were not “fuzzy” in her memory; they simply became part of the household routine. J.H.[1] agreed that her mother was always asleep in the bedroom, during Sheng’s nocturnal visits, and that she did not wake up.

[24] J.H.[1] recalled one incident where she awoke and found that her pajamas were down and her vagina was exposed. She was not being touched when she awoke. She heard voices in the bedroom, including the voice of a woman. She assumed that it was her mother as she saw Sheng talking to a woman. She could “feel a vision” of voices and people and images moving back and forth across the room. As a result of this one incident, she became suspicious that her mother was aware of Sheng’s assaults. She later confronted Sheng with this suspicion in the 2003 tape recorded conversation. J.H.[1] agreed that Sheng stayed up later than the other family members, watching television or reading in the living room. She did not recall Sheng ever coming into the bedroom in order to invite her mother to come out and join him in the living room. J.H.[1] was always asleep when Sheng entered the bedroom.

[25] Aside from the incidents involving genital fondling and digital penetration, J.H.[1] recalled times when she would be sleeping on the bed and would feel something wet on her mouth. She would awake and see that it was the tip of Sheng’s penis. He never inserted it in her mouth as she would turn away and pretend to be asleep. She recalled two or three incidents like this, always at night and always when everyone else was asleep in the bedroom.

[26] J.H.[1] described two incidents that happened during the day time when everyone was awake. One was at the swimming pool at the Wood Street apartment building. Sheng would take the children swimming but he did not always get in the pool. On one occasion, he was in the pool and he was holding J.H.[1]. She was about age nine. He slipped his hand under her black and pink bathing suit and touched her bare bottom.

[27] The other daytime incident was the most disturbing to her. It happened one morning when the entire family was sitting on the queen bed. It must have been a weekend or a holiday as no one was rushing off to school. J.H.[1] was now age ten or eleven. Her mother, T.H. and P. were all seated on one side of the bed. J.H.[1] was sitting on the other side of the bed, at the head of the bed, and she was under a duvet. Sheng was seated at the bottom of the bed on the same side as J.H.[1]. It was a happy occasion as everyone was laughing and talking, as if at Christmas time. She felt Sheng’s hand touching her vagina, under her clothing and under the duvet. She remembered moving closer to him, as if she was surrendering or was stimulated and was trying to give him better access to her. It did not last long and none of the others on the bed seemed to be aware of what was happening. This incident was the most disturbing to her as it made her feel like a “dirty whore”. She did not throw off the duvet and expose the assault as it would have revealed what she regarded as her own disgusting act. Accordingly, she kept it secret.

[28] At some point, when J.H.[1] was about age 10 or 11, she asked her father J.H.[2] to build a partition in the bedroom at the Wood Street apartment. She just told him that she badly wanted her own room. He bought some wood and came over and constructed a rudimentary wall between J.H.[1]’s single bunk bed and the large queen bed. There was a make-shift door and opening in the partition wall so that she could get in and out. She now had her own private space. Her father also bought a lock with a key and a hasp so that she could secure the door. He thought that it was a fun weekend project to build the partition. She slept in this new partitioned room alone but it did not last for long. After about a month, it was taken down. She could not recall why it came down or who took it down or any discussion about it. Sheng did not touch her while she was sleeping behind the partition wall but she thought she remembered hearing the sounds of pushing against the locked partition door in the night.

[29] J.H.[1] cried uncontrollably while testifying about the above incidents at the Wood Street apartment. In cross-examination, she agreed that she never cried when the assaults were actually happening. She also never said anything or called out to her mother or her sister. Sheng never said anything to her during the assaults but he made implied threats during the daytime to the effect that you better not do anything to harm me.

[30] J.H.[1] never saw Sheng touch T.H. inappropriately. However, she did recall one incident when her mother was not at home. Sheng picked the two girls up from school and took them home. He told them that their mother had told him that they had some illness or infection and that he had to inspect their anuses. J.H.[1] did not believe that she had any illness or infection and she refused to comply. However, T.H. did comply and went into the bathroom with Sheng. He closed the door and J.H.[1] did not see what happened but she felt that she had not protected her little sister.

(iii) J.H.[1]’s account of the CAS and police investigation in February 1994

[31] All of the above incidents happened prior to the initial CAS and police investigation in February 1994. At this time, the family was still living at the Wood Street apartment and J.H.[1] had not said anything to anyone about the assaults on her, due to her feelings of shame and embarrassment. J.H.[1] recalled that the CAS investigation was initiated because T.H. made a disclosure one morning to her mother. J.H.[1] did not recall a fight between T.H. and Sheng on the night prior to T.H.’s complaint, although she did not deny such a fight. All that J.H.[1] could recall was that T.H. did not want to get out of bed and go to school one morning. She was holding herself and saying that she was sick. J.H.[1] went to school on her own and when she returned home at the end of the school day her mother was upset. It was her mother who then told J.H.[1] that Sheng was touching T.H.. This is what J.H.[1] had already suspected.

[32] J.H.[1] was eleven years old and was in grade six at Kensington Public School at the time of T.H.’s initial complaint. J.H.[1] had a friend named Valerie at school and she told Valerie about T.H.’s disclosure. She vaguely hinted to Valerie that Sheng was also touching her. Valerie told J.H.[1] to disclose the matter to a teacher who everyone trusted, named Nancy, so J.H.[1] did. She told Nancy much the same thing that she had told Valerie, namely, that Sheng was “touching” the two girls and that it made them “uncomfortable”. She did not go into any details. She just wanted the abuse to stop, without having to talk about the details. Nancy advised that she would have to report the matter to the CAS. By the time J.H.[1] disclosed to Nancy, and the CAS was called, a few weeks had passed since the morning when T.H. first made a complaint to her mother.

[33] Nancy Steele, a retired teacher, testified and confirmed that J.H.[1] made the initial complaint to her in early 1994. She had no notes and could not remember specifically what J.H.[1] said. However, she remembered that J.H.[1] disclosed something to the effect that her mother’s boyfriend was touching both J.H.[1] and her sister in ways that they did not like. It was sufficiently disturbing that Ms. Steele felt she had to pass the matter on to the school principal. He then called the CAS.

[34] J.H.[1] could not recall what she told the CAS worker who interviewed her. What she recalled was simply that she wanted the abuse to stop but she did not want her secret to get out. She felt that what Sheng had done to her was disgusting and she would not, for example, have said anything about penetration of her vagina. At this point, her father J.H.[2] was also told about the sexual abuse. The family continued to live at the Wood Street apartment until the summer of 1994, that is, they remained in the apartment both during and after the initial CAS and police investigation in February 1994.

[35] J.H.[1] was cross-examined extensively on the contemporaneous CAS records that remained from the investigation. The CAS worker, Pamela Pasquill, described J.H.[1] as “friendly, sophisticated and talkative” and stated that she “gives detailed narratives but said nothing that would indicate that T.H. was sexually abused”. Ms. Pasquill’s account of her interview with J.H.[1] in February 1994 is as follows:

J.H.[1] told me that one morning T.H. did not get out of bed. She usually has trouble getting up but that morning she looked at J.H.[1] “with those eyes” and she was pale and looked like something was wrong. She told J.H.[1] she wanted a dog and that her tummy hurts. J.H.[1] allegedly heard T.H. telling her mother she’s not sure if “it” was a dream. I asked J.H.[1] what “it” was. J.H.[1] then recounted the following story:

“I (J.H.[1]) was asleep on the green chair over at the other end of the room. My sister was asleep on the couch. Grant will usually carry us in the bedroom if we sleep on the couch because when he sleeps over, he sleeps on the couch. T.H. said when she was “dizzy” she saw his big eyes (Grant wears glasses) and her legs were up”.

J.H.[1] said she told a teacher, Nancy (not her own teacher but a teacher from Horizon P.S.) that her (J.H.[1]’s) nose was bleeding and she took her underwear off and wiped her nose with it. Then she hid the underwear because she did not want her mom to find them because when she gets her period her mom gets mad if she does not wear a pad. Later, her mom found them and thought she might have been molested. This led into talking about T.H.’s behavior that morning.

J.H.[1] explained that her mom thought T.H., “might have been molested because she looked the way some women on T.V. look when they get raped. I thought it couldn’t be my mom or my brother P., so maybe it was Grant”.

I asked J.H.[1] if Grant had ever done anything to make her uncomfortable and she said no. I asked her if she liked him and she said she did because he is kind and he takes them to movies but he makes them rush to get ready. “He doesn’t understand what it’s like to be a woman” she explained.

[36] When the above passages from the CAS report were put to J.H.[1], she did not recall any of these details. In particular, she did not recall telling the CAS worker that Sheng had done nothing to make her feel uncomfortable and she did not recall discussing only T.H.’s complaint with the CAS worker. In relation to T.H.’s complaint, J.H.[1] denied over-hearing it. She went to school that morning and only learned later from her mother that T.H. had made a disclosure, after J.H.[1] returned from school at the end of the day. In particular, J.H.[1] did not recall T.H. telling her mother that she was not sure whether the incident of alleged touching was a dream, although J.H.[1] agreed that she may have said this to the CAS.

[37] Given J.H.[1]’s inability to recall the CAS interview, and her denial of certain parts of the available records, the defence was obliged to prove the prior record of J.H.[1]'s CAS interview. Crown counsel took the reasonable position that the above account from the available records would not be improved by calling Ms. Pasquill to testify. I admitted the records as the best evidence of the February 1994 interview but only for the non-hearsay purpose of proving what was said.

[38] J.H.[1] agreed that she was withholding the truth from the CAS worker, because she was afraid to disclose the assaults on herself. She did not think of it as a lie as she was simply trying to protect herself. She agreed with the CAS report to the effect that she was “sophisticated and talkative” at the time. However, she disagreed with her mother W.T.’s statement to the CAS to the effect that W.T. “had no control over her daughters and … they gang up on her”. J.H.[1] also disagreed with Ms. Pasquill’s assessment that “both girls have never been very fond of Grant and have done everything they could to manipulate W.T..” J.H.[1] agreed that she felt her mother had not been supportive and she felt hurt by this. She also agreed that her father was still very much in their lives and was taking them out every weekend. However, J.H.[1] denied that her father was slandering Sheng.

(iv) J.H.[1]’s account of the family’s move to the Queen Street house and the further CAS and police investigation in October 1994

[39] By September 1994, when J.H.[1] turned twelve and started grade seven, the family had moved out of the Wood Street apartment and into a three bedroom townhouse on Queen Street East. J.H.[1] had her own bedroom on one of the lower floors and her mother and her two siblings had two bedrooms on the floor above her.

[40] J.H.[1] put a chain lock on the inside of her bedroom door because Sheng was still sleeping over on the couch, although his visits were less frequent. The allegations of sexual abuse against Sheng were now out in the open. Although J.H.[1] had not disclosed any details, both T.H. and J.H.[1] had told their father and their mother something to the effect that Sheng was “trying to touch them”.

[41] J.H.[1] did not think that Sheng ever touched her at the Queen Street house. However, she recalled two incidents where he came into her room at night, in spite of the chain lock. On one occasion she saw him stand in the corner of her room with his pants down around his thighs. His hands were moving in the area of his penis and he ejaculated. On another occasion she saw him standing by her head, with his penis out, while she slept. She was afraid and she did not cry out. She felt that there were more than these two incidents. He got into her room by putting a dog leash through the crack in the door and looping it over the chain. She saw him do this.

[42] At this stage, J.H.[1] was becoming more vocal about her opposition to Sheng staying over at the house and about her mother not supporting her. She would get into arguments where her mother would press her for details about what Sheng was doing to her and J.H.[1] would just say that he had touched them. J.H.[1] was also arguing with Sheng and remembered him once telling her in the car that she would “grow up to be a slut”. She admitted becoming rebellious in grade seven. She also thought about suicide and researched rat poison and hanging by a noose. At some point in this period, she talked to her father and he said to come and live with him. She moved to the place where he was living in Scarborough, during her grade seven year, and he would drive her downtown to school.

[43] There was a further development during this 1994/1995 year, while J.H.[1] was still in grade seven and living at the Queen Street house. Her father took both J.H.[1] and T.H. to a police station and there was a further CAS and police investigation of the allegations of sexual abuse. Once again, J.H.[1] remembered saying that Sheng was trying to touch them but that she did not want to provide any details. She wanted to give the police the idea that something was wrong and to have them remove Sheng from the house. She wanted to stop the abuse but she did not want to tell them any specifics. Nothing happened at the end of the investigation. She understood that her mother had sided with Sheng and the investigators had concluded that her father planted the idea of sexual abuse in the children. The family was referred to a clinic for counseling. J.H.[1] attended a few times but she would not have disclosed the abuse to the counselors.

[44] In cross-examination, the various remaining reports from the October 1994 CAS and police investigation were put to J.H.[1]. The CAS worker was Edward Laba. His report of his interview with J.H.[1] was as follows:

On 16.10.74 J.H.[1] disclosed to P.C. Brinn that she awoke one night to find Grant Sheng in her bedroom masturbating. This writer asked J.H.[1] if she knew why we were here today. She stated she had told P.C. Brinn about the above mentioned allegation. She was asked to inform us of what had happened. She alleges this occurred two or three weeks prior. She further stated that she had told her mother about this and her mother discussed it with Grant Sheng. W.T. told her that he denied it and the issue was dropped. This writer asked her why she brought it up now. She stated that she does not trust him and wants him out of the house. This writer asked her where he was when this was to have occurred. She stated he was at the foot of her bed with his back to her. It looked as though he was moving his hand back and forth. She further stated his hand appeared to be in front of him. This writer asked what she had done when this was occurring. She said she did not move and pretended she was asleep. This writer asked what happened. She stated that he just left. This writer then asked if he had touched her. She said “no”. This writer asked her if anything else occurred. She said that he is always trying to hug me and “I don’t like it”. She further stated that he came to her room when she was sick and he had “semen” on his hands. This writer asked how she knew it was “semen”. She stated that a teacher at her school had brought a sample of his own “semen” to show her class. This writer asked her who was the teacher and when did this occur. She could not remember.

This writer asked her if she had anything else to say. She stated that Grant is always yelling at her and her siblings. She further stated that her mother and Grant fight all the time.

[45] J.H.[1] agreed that she did not disclose the earlier sexual assaults at the Wood Street apartment in the above interview. She agreed that she would have said she wanted Sheng out of the house. She may have said that she saw semen on his hands but she would not have said that a teacher had brought a sample of his own semen to her class at school. Indeed, she agreed that this latter allegation would have been outrageous and preposterous. When she told the police and CAS interviewers that Sheng had not touched her it was not the truth. She did not regard it as a lie. She was withholding the truth in order to protect herself.

[46] A further CAS report of Des Masterson, dated February 3, 1995, described J.H.[1]’s allegations as follows:

J.H.[1] had alleged that she had witnessed Grant masturbating outside of her bedroom. She also claimed that Grant has rubbed sperm into her face. Grant’s explanation was that J.H.[1] had been sick and had coughed up copious amounts of phlegm which had been smeared onto her face. She also claimed that Grant had tried to enter into her room using a coat hanger. Her room had a lock on the inside of her door … J.H.[1] had also alleged that a teacher at school had brought a sample of his own sperm to school as part of a sex education class.

[47] J.H.[1] denied seeing Sheng masturbate outside her room, denied seeing Sheng use a coat hanger to get in her room, and denied saying that a teacher had showed his own semen to her class at school. She also did not remember Sheng ever rubbing sperm on her face.

[48] Various parts of Des Masterson’s report were put to J.H.[1] on the issue of whether her father J.H.[2] was openly referring to Sheng as “a pervert” and whether the girls had adopted this characterization of Sheng. The report was as follows on this point:

What became evident was the acrimonious relationship between these two children and Grant Sheng. The same acrimony is reflected in their father’s opinion of Grant. J.H.[2] had long derided his ex-wife for her relationship with Grant. J.H.[2] and Grant had at one time been friends. W.T. stated that J.H.[2] has long referred to Grant in front of the girls as “a pervert”. According to both W.T. and Grant both girls have frequently referred to and addressed Grant as a “pervert”. Ever since the separation of their parents, the girls had openly sought to disrupt their mother’s relationship with this man. They appear to be caught in the middle of the personal relationships of their parents.

Overall there seems to be no effective separation between W.T. and her ex-husband J.H.[2]. J.H.[1] and T.H. hold an exorbitant amount of power and are able to manipulate both parents to satisfy their every whim. Both girls are loyal to their father and have actively worked at supporting their father’s contention that “Grant is a pervert”.

[49] J.H.[1] denied the suggestion that her father openly referred to Sheng as a “pervert”, indeed he never referred to Sheng as a “pervert” and the girls did not adopt this characterization. She agreed that the girls were opposed to their mother’s relationship with Sheng and wanted him out of the house but this was because of the abuse.

[50] Finally, the conclusion of Edward Laba’s report was put to J.H.[1] in cross-examination. It was as follows:

“This writer did inform the girls and the father that the investigation would not proceed for the reasons previously stated [that the allegations were unsubstantiated]. The girls’ reaction was that of nonchalance. They did say that they did not want Grant Sheng around and would avoid him. The father was angry stating that we were putting his daughters at risk. He said he would want his daughters to keep away from Grant Sheng.”

[51] J.H.[1] did not recall this final meeting with Laba, her allegedly nonchalant reaction, or her father’s allegedly angry reaction. However, her father did tell J.H.[1] that her mother was siding with Sheng in the investigation. J.H.[1] has had nightmares about trying to persuade her mother as to the truth of her allegations. However, it is no longer important to her to persuade her mother. She feels that the damage has been done and that it is now too late.

[52] Once again, the remaining records of the October 1994 police and CAS investigation were admitted for the non-hearsay purpose of proving what was said at the various interviews, without the necessity of calling Laba or Masterson as witnesses. The weight to be given to the reports, of course, is another matter.

(v) J.H.[1]’s account of the period from 1995 to 2005

[53] After moving out of the Queen Street house in 1994/1995, when she was twelve years old, J.H.[1] lived with her father through her high school years, until she was eighteen. During these years, her mother and her two younger siblings moved into Sheng’s house in Mississauga. J.H.[1] would sometimes visit on weekends or in the summer and would stay over in T.H.’s part of the house, which was in the basement. There were no incidents at the Mississauga house. J.H.[1] would see Sheng and during one summer, at age fifteen or sixteen, she actually worked for him as a research assistant at […] University.

[54] Towards the end of high school, when J.H.[1] was sixteen or seventeen, her mother and Sheng separated. W.T. moved with T.H. and P. to an apartment on Jarvis Street. Sheng would still visit and would still help the family after the separation. For example, he helped J.H.[1] buy her grade twelve prom dress and drove her to and from the prom.

[55] At age eighteen, as she was about to begin university at R[…] University, J.H.[1] left her father’s home and moved back in with her mother and her siblings. The Jarvis Street apartment had three bedrooms and a den. One evening, after she had moved back home, J.H.[1] became involved in an angry confrontation with Sheng. He was visiting the family and seemed to be preparing to stay overnight at the Jarvis Street apartment. J.H.[1] did not want him to stay over and she became involved in an angry screaming match with Sheng in front of everyone. She confronted him and accused him of molesting her as a child. She asked him why he did not admit it and stated that she did not want him to stay over. Sheng denied these accusations. J.H.[1] ran to the kitchen, grabbed a knife, and threatened to kill Sheng. He took the knife from her, pointed it at himself and yelled back at her, “kill me, kill me”. At this point, they both calmed down. He did not stay over. This was the first time she had ever really confronted him with her allegations.

[56] After this angry confrontation, J.H.[1] did not see Sheng for the rest of her first year in university and she did not speak to him. In second year university, she moved out of the family’s Jarvis Street apartment and moved into a place of her own which she shared with a girlfriend. She had worked hard in high school, had received good marks, and had been granted a full entrance scholarship which paid her first year tuition. In second year she needed financial help, both with tuition and with rent, and she turned to Sheng. She called him on the phone and they met. It was a superficial meeting at a hotel restaurant but to some extent they made up and Sheng agreed to help her.

[57] There was a further meeting at a restaurant, later in second year, where Sheng again gave her money for rent or tuition and it was civil. J.H.[1] did not like going to Sheng for money but her parents were not well off and she did not want to struggle financially in university. Her mother had also said to her words to the effect, “if he abused you then get him to pay for it”. J.H.[1] agreed that Sheng provided substantial financial assistance to her. He was a supportive person and had always said he would be there “if you girls ever need anything”.

[58] Towards the end of second year university, in 2003, J.H.[1] had a third meeting with Sheng at a restaurant. Again, the purpose of the meeting was to discuss money for tuition and rent. However, J.H.[1] had taken a course in media law and had learned about tape recording conversations. As a little girl, she had always wished she had a small camera so that she could take a picture of Sheng and then be able to prove the abuse. She decided to confront him once again with her allegations, try to get him to talk about it, and secretly tape record the conversation. J.H.[1] would have been twenty years old at the time.

[59] The meeting was at the Pickel Barrel restaurant. It was not empty and there were other customers and wait staff around. It was the first time that she had confronted him with her allegations of sexual abuse since the angry shouting match at the Jarvis Street apartment during first year university. The tape recorded conversation was made an exhibit and I will set it out below in greater detail. In brief summary, they began the conversation discussing a proposal of Sheng’s that he would take out a bank loan to help with J.H.[1]’s university expenses. He said that he did not have money available to give her at the present time. J.H.[1] was not satisfied with this proposal. She then raised her allegations, that Sheng had molested her as a child, and he made various responses. He did not expressly deny the allegations and she felt that he admitted them, while denying that he ever wanted to harm her.

[60] J.H.[1] held onto the tape for two years, without going to the police. She had further meetings with Sheng at restaurants that she initiated. They talked more about her allegations and about resolving the matter. At one meeting, in 2004 at Red Lobster, she felt that he again admitted molesting her. She did not tape record this further discussion about her allegations as she felt that they had reached an agreement, after the Pickle Barrel meeting. She and T.H. had agreed to sign the bank loan documents. It was a $20,000 line of credit in their names which Sheng co-signed. They could not access the money but he would draw against it, make payments to them, and then re-pay the line of credit. J.H.[1] received money from him for tuition and rent through 2004, by which time she was in her fourth year of university.

[61] J.H.[1] did not like this bank loan arrangement. She felt that Sheng did have money that he could give them. She also did not like her continued financial dependency on him and felt that she had lowered her principles. In late 2004 she wrote a long detailed letter to him, setting out the specifics of her allegations of childhood sexual abuse. She wanted closure and she gave him the letter in person at one of their meetings. In an email to her sister T.H., dated November 24, 2004, she attached her letter to Sheng and she also copied it to her mother. The email to T.H., amongst other things, stated:

“I know that you want to get all that you can from him … I’m sorry for not protecting you … We were both children. He is at fault, not us … Stop numbing it all out. You will not be happy in the end. Read this [attached] letter I wrote. Add anything you can remember. What happened to us is a big deal. Money will never make up for stolen innocence.”

Although J.H.[1] asked T.H. to read the attached letter to Sheng, she testified that she never did discuss it with T.H.. She would occasionally ask T.H., “what happened to you”, but T.H. did not want to talk about it, saying that it would make her sick.

[62] The three page letter to Sheng set out her detailed allegations of childhood sexual abuse for the first time. She also stated the following:

“My reality started becoming a dream. My life started to divide; my sense of self was splitting. I became both Dr. Jekyll and Mr. Hyde to cope with what you put me through … My mind started escaping to a different world … That’s when my world became a movie … I became the spectator of my own life, watching it unfold from a distance before my eyes … So many horrible memories I have. You must have them too. Looking back at my childhood now I see so many flash frames of images accompanied by intense emotions – my experiences in the past were vivid, which is why I can still remember them. Grant: you were a monster to me. … I can dwell on the past forever. I have done so for too long it seems, burying my emotions, lying and pretending to myself, hiding in a shell, never fully confronting you or my mother … But are you sorry for what you did to me? Can you be empathetic as I have tried to be in my effort to forgive you and end this cyclical nightmare that keeps repeating in my head? Snapshots of my sexual abuse will never leave my mind. I am now confronting the reality of it by writing it down and I need you to confirm it. This is not about getting revenge or even trying to attack you in some reverse psychological way. I’m simply asking you to acknowledge the truth of my words and your past actions, no matter how painful it might be … You molested me and for so many years I blamed myself … I don’t know what I feel towards you … I hate you for the things you did to me when I was a child, yet I cannot disregard the nice things you have done too …”

[63] After giving Sheng the letter in late 2004, there was then a further meeting at a restaurant called Sugar Cane. J.H.[1] could not recall who phoned to arrange the meeting but they met and discussed the letter. Whereas Sheng had been reluctant to discuss J.H.[1]’s allegations at the Pickle Barrel meeting, he was much more open to talking about it at this meeting, after receiving the letter. She repeatedly asked him, “why did you molest me?” He replied, “because I loved you.” He told her that he had changed. By this point, Sheng had left Toronto and had moved to Victoria. He was in a new relationship with a woman named Mary who had a daughter named Layla. They talked about Layla at the Sugar Cane meeting. This final meeting was not tape recorded.

[64] J.H.[1] eventually went to the police in the spring of 2005. Her relationship with Sheng was complex. On the one hand, she wanted to believe that he had changed. In addition, he had not harmed her for ten years. On the other hand, she believed her financial dependency on Sheng was unhealthy and she wanted to end it. In addition, she was suspicious of Sheng’s new relationship in Victoria. She had no evidence that Sheng was abusing Layla but T.H. had visited Sheng in Victoria and had told J.H.[1] things that made her suspicious. Finally, her inner turmoil over this matter had simply gone on for too long. For all these reasons, she went to the police and gave statements to the police in April and June 2005.

(vi) T.H.’s account of sexual abuse at the Wood Street apartment

[65] T.H. is the younger of the two sisters. She was twenty-seven years old when she testified. She is a documentary film maker with a particular interest in military atrocities committed by the Japanese army during World War II, in particular, the army’s use of Korean sex slaves.

[66] She was about six years old when her parents separated. She remembered her father’s physical abuse of her mother and she witnessed the final incident when he beat her mother. She was very upset by the break-up of the marriage but she knew that the relationship had to end. The family moved temporarily to a shelter and then moved into the Wood Street apartment. The two sisters initially slept in bunk beds in the living room. After a short period of a few weeks or months, the girls’ beds were moved into the bedroom and the entire family slept there. T.H. was in grade one or two in school.

[67] T.H. knew the accused Sheng as a friend of her father’s. He helped the family obtain the apartment on Wood Street and he was there a lot. T.H. knew of him, initially, as a friend who was helping her mother. At some point it became clear to her that Sheng and her mother were boyfriend and girlfriend. She also witnessed a fist fight between Sheng and her father in the hallway outside the apartment at some point.

[68] The sleeping arrangement in the bedroom, as T.H. recalled it, was that J.H.[1] slept in one bunk bed that had been moved there. T.H., P. and their mother all slept in the queen bed. The beds were arranged such that the two girls’ heads were close together. Sheng stayed over at the apartment frequently. He would stay up late to watch the 11:00 p.m. news on television and he would sleep on the couch in the living room.

[69] The first incident of sexual abuse that T.H. recalled was one night when she fell asleep on the couch in the living room. She remembered waking up and seeing her legs up in the air. Sheng was holding both of her very small ankles with his left hand and he was touching and fondling her vagina with his right hand. He was looking down at her vagina. Her light blue pajama bottoms had been pulled down and she was completely bare around her middle. The incident seemed to last a long time, for five or ten minutes. T.H. did not want Sheng to see that she was awake and that she had seen him so she squinted out of the bottom of her closed eye lids, with her head tilted back. Eventually Sheng put her legs down. She pulled her pajamas up, got up from the couch, and walked into the bedroom. Sheng said nothing. T.H. got into her mother’s bed. She was confused and did not understand what had happened, although she knew that it could not be right.

[70] The next day she saw Sheng but nothing was said. He acted like nothing had happened. She did not know what she had done to deserve it. This was the only incident of night time sexual abuse at the Wood Street apartment where T.H. actually woke up and was conscious during the assault. She believed that it happened sometime in 1992. T.H. would have been seven or eight years old.

[71] Although she never woke up during any subsequent incident, T.H. was adamant that she was sexually abused at night on many other occasions at the Wood Street apartment. She is a heavy sleeper and it is difficult to wake her. After the first incident, she told herself never to fall asleep again in the living room. In spite of trying not to, she did fall asleep again in the living room on another occasion. She awoke to find that all of the buttons of her jumper were undone, down to her crotch. She was lying on her back on the floor in front of the television. Her brother P. was awake and was playing in the living room. Sheng was also present in the living room, sitting on the couch and watching television. T.H. buttoned up her jumper, got up, walked into the bedroom and got into bed. Her mother and J.H.[1] were asleep in the bedroom.

[72] T.H. was angry with herself for falling asleep again in the living room. She took further precautions and started wearing two or three pairs of shorts over top of panties as well as two or three tee shirts tucked into her shorts, before going to sleep. Sheng seemed to be staying over at the apartment every other night. She believed that he was coming to get her whenever he slept over and that she had to protect herself. T.H. agreed that there must have been hundreds of times when Sheng slept over at the Wood Street apartment and she would take these precautions of wearing multiple layers of clothes to bed. Her mother did the laundry and never complained about any excess laundry that T.H. was creating.

[73] In spite of taking these precautions, there were numerous occasions when T.H. woke up to go to the bathroom at night, or woke up in the morning, and found that her clothes were undone. In particular, she found her shorts unbuttoned and pulled down. This happened almost every night that Sheng slept over. On all of these occasions, T.H. was sleeping in the same bed as P. and her mother. J.H.[1] was sleeping in her own bed, about three feet from T.H.. Although T.H.’s shorts were undone and pulled down in the morning, when she awoke, the bed sheets were pulled up and over her. On one occasion, she fell asleep in the car and awoke to find her pants were open and undone. T.H. was not aware of her mother or her sister ever waking up or saying anything about these incidents. T.H. also agreed that her mother never saw her in the mornings with her shorts undone and pulled down. T.H. acknowledged that she was difficult to wake up in the mornings and that her mother would wake her up.

[74] T.H. tried to think of a way to prove that it was Sheng who was doing this to her at night while she slept. On one occasion, she put baby powder on the floor by her bed, hoping to get Sheng’s footprints in the powder. Her mother asked her why she did this and T.H. replied that she was trying to catch ghosts.

[75] T.H. recalled one incident of sexual abuse by Sheng during the daytime. It was in 1993 and it was towards the summer as T.H. remembered she was wearing shorts. She was about nine years old. Her mother had been hospitalized and Sheng was looking after the children and was sleeping over at the apartment. W.T. confirmed, in her testimony, that she had cervical cancer and had an operation in 1993, prior to the summer holidays. One morning, T.H. recalled that the children were getting ready to leave for school and Sheng told them that their mother had instructed him to give them some medicine. He advised that he had to take them into the washroom for this purpose. According to T.H., the children were not sick and J.H.[1] resisted Sheng and was screaming, “No, Mum would not say that”. J.H.[1] was crying and ran into her room and slammed the door. T.H. complied with Sheng’s instructions and went into the bathroom with him. She thought that if she complied then Sheng would leave J.H.[1] alone.

[76] Once in the bathroom, T.H. took off her pants, thinking that her mother had said that Sheng was to do this. She wanted to believe that it was okay but she knew it was wrong. Sheng was on his knees on the floor and he inserted a large pill into T.H.’s anus. His hands were near her anus and vagina and he proceeded to fondle her in these areas for the next ten or fifteen minutes. It seemed like forever. He eventually stood up and she pulled up her pants.

[77] Sheng then proceeded into the bedroom in order to deal with J.H.[1]. At some point, their father J.H.[2] had built a make-shift partition in the bedroom, to give J.H.[1] some privacy. There was a door in the partition wall with a latch and hook. J.H.[1]’s bed was behind the partition wall, next to the window that gives out onto the apartment balcony. J.H.[1] had run into her own small room, behind the partition wall, when Sheng told them that he had to administer some medication in the bathroom. After finishing with T.H. in the bathroom, Sheng went into J.H.[1]’s bedroom area, behind the partition wall, and spanked her on her bottom. T.H. watched this through the crack in the door. She could not recall whether J.H.[1]’s bottom was bare, or whether she had her clothes on, while Sheng was spanking her. T.H. agreed that she made no mention of watching the spanking through the crack in the partition door and had testified that the bedroom door was closed, both at the preliminary inquiry and in her statement to the police. At the first trial, she testified that she was in the hallway and watched the spanking through the open bedroom door.

[78] After J.H.[1]’s spanking was finished, the three children went to school. P. had been present in the hallway throughout this incident.

[79] T.H. recalled another incident when J.H.[1] left the living room and went into her sleeping area behind the partition wall, saying that she was going to get changed. Sheng followed her into the bedroom and T.H. saw him peeking through the crack in the partition door. T.H. tugged on Sheng and told him to stop but he ignored her. She ran out onto the balcony and banged on the window, telling J.H.[1] to stop changing. J.H.[1] quickly covered herself and Sheng came back into the living room.

[80] T.H. recalled going to the swimming pool at the Wood Street apartment building. Sometimes Sheng got into the pool and sometimes he stayed on the side of the pool, taking photographs. She did not recall any incidents at the swimming pool.

[81] T.H. recalled playing with matches and firecrackers and being disciplined for this. Sheng spanked her on her bare bottom. She agreed that she also took Sheng’s lighter and pen on occasion but she did not recall hiding them in her bed. Since she was sleeping with her mother and brother, her bed would not be a natural hiding place.

[82] T.H. was very emotional and cried frequently and uncontrollably when testifying about these events. She agreed that she never cried when any of the sexual abuse was happening. She was too frightened to cry. She yelled out this evidence when testifying.

[83] T.H. never witnessed Sheng sexually abusing J.H.[1] at the Wood Street apartment. She never noticed anything untoward about J.H.[1]’s behavior when the family lived at Wood Street. J.H.[1] was happy go lucky, especially in comparison to her later behavior after they moved to Queen Street.

(vii) T.H.’s account of the CAS and police investigation in February 1994

[84] T.H. was nine years old and in grade five at the time of the first CAS and police investigation in February 1994. She turned ten in May 1994.

[85] T.H.’s recollection of what led her to make her initial complaint to her mother was that she had visited the World’s Biggest Book Store the night before. This store is close to the Wood Street apartment and she had walked there with her family. Sheng would usually accompany them on trips to the bookstore but she was not sure if he was present this time. At the store she looked at a simple children’s book about a boy and his uncle and about inappropriate touching. This is what prompted her to make her initial complaint to her mother the next morning. She did not recall anything else happening the night before she made her complaint to her mother. In particular, she did not recall having a fight with Sheng.

[86] She remembered not getting out of bed in the morning and telling her mother that she did not feel well. Her mother was yelling at her and telling her that she had to get up and go to school. Her mother kept asking, “what’s wrong”. She also asked T.H. sarcastically, “what’s wrong with you, are you pregnant”. T.H. told her mother that Sheng was “touching her”. She did not provide any details. Her mother was frustrated and asked “where, where did he touch you”. T.H. replied, “it was my private areas”. J.H.[1] and P. were present in the apartment at the time as they were getting ready to go off to school.

[87] T.H. could not remember if she actually went to school on the day of this initial complaint. She expected her mother to comfort her but, instead, her mother was frustrated and angry and interrogated her. It made it difficult for T.H. to talk to her mother. T.H. testified that her mother would not hug her and was cold towards her.

[88] Shortly after T.H.’s complaint to her mother, she somehow found out that J.H.[1] was also being touched. She was not sure whether it was J.H.[1] or her mother who told her. She did not feel so alone once she heard that it had also happened to J.H.[1].

[89] T.H.’s mother told her, at some point shortly after her initial complaint, that people from the CAS would be coming to her school to talk to her. It was winter and T.H. was taking figure skating classes. She badly wanted a new pair of figure skates. Sheng and her mother drove her to school on the morning when she was to be interviewed by the CAS. As they dropped her off at school, Sheng told T.H. that if everything goes well he would pick her up after school and buy her new skates at Canadian Tire.

[90] T.H. generally remembered the CAS and police interview at the school, although she could not remember details. She recalled being asked whether she could have been dreaming, when Sheng touched her, and whether she could have been wearing skin-toned pants at the time. She lied and agreed with these suggestions. She just wanted the whole thing to go away. She felt that her complaint had upset her mother and had ruined her mother’s relationship with Sheng. She was embarrassed and felt that she had caused havoc in the family. She also wanted the skates. She now wishes that she had told the truth.

[91] Sheng and her mother picked her up after school and asked how the CAS interview had gone. She told them not to worry and that everything was okay. Sheng took her to Canadian Tire and bought her the skates. No one else was present. T.H. agreed that she had never previously been given skates that were bought new at a store. Every year she would always get skates by exchanging her old ones for a pair of used skates that fit her.

[92] T.H. testified that Sheng never touched her again, after this initial complaint and investigation by the police and CAS in February 1994. She did not recall ever waking up again with her clothing undone and pulled down.

[93] In cross-examination, the remaining contemporaneous records from the February 1994 investigation were put to T.H.. In particular, her mother’s account of the initial complaint, and the circumstances in which it arose, were put to T.H.. Pamela Pasquill’s report recorded W.T.’s account as follows:

W.T. said that one night, Grant made T.H. turn off the T.V. to make sure she did her homework. The next day T.H. told W.T. that she did not like Grant to stay with them. W.T. explained that he was just staying the night because the next day he was going to Ottawa and he was leaving the car with them. T.H. then said that 1 ½ years ago when she was sleeping on the couch, Grant touched her leg – not her private area. W.T. told her that she spoke to the Vice Principal and that this would be reported to C.A.S. T.H. then told her she made it up.

W.T. reiterated that T.H. resents Grant and always has. He is very strict and makes her do chores. He disciplines the children and T.H. does not like that.

[94] T.H. denied having a fight with Sheng over television and homework the night before she made her initial complaint. She agreed that she may have said that she wanted Sheng to leave. She did not recall whether her complaint to her mother was of an incident that occurred one and a half years ago when Sheng touched her leg. She agreed that she resented Sheng, because of the sexual abuse, and she also did not like his discipline when it took the form of spanking her bottom.

[95] Ms. Pasquill’s record of her interview with T.H. was also put to her. It is as follows:

John Shulga from 52 Division Youth Bureau and I interviewed T.H. at Kensington Public School on Friday, February 11th, 1994. T.H. told us that generally things are going well at home but she does not like Grant very much. She said that he is okay because he takes the family to movies but he is mean. He points his finger in her face and says, “do the dishes”. He fights with her mother sometimes about the kids saying, “Every time I come over it’s the same thing”. He apparently says this because the children do not always do what they are told.

T.H. said she used to think that Grant was the reason why her mom and dad broke up because one time Grant and her dad had a fight. T.H. believes now that the fight was because her dad was jealous.

I asked T.H. if she knew why I was there and she said her mom told her why. She said the incident happened when she was 6 or 7 years old. Her mother was sleeping in the bedroom with her little brother, P.. T.H., J.H.[1] and Grant were in the living room watching T.V. T.H. and J.H.[1] fell asleep. T.H. said she was “dizzy” (drowsy) and opened her eyes and saw, “(Grant’s) big eyes, his hand on my bum and it looked like my pants were down but they weren’t”. She said her legs were up. She was wearing a sweat shirt and loose tights. The tights were light blue with patterns. I asked her why she thought her pants were down if they were not. She did not know. She mentioned several times that she saw Grant’s “big eyes and his hands”.

T.H. told us that she never told anyone about this until a few weeks ago when she told her mom. She apparently used to say to her sister, “I have a secret” but she never told anyone. She was waiting for the right time. She now regrets telling her mom. Her mom was said to have asked her a bunch of questions like, “Are you sure. If you’re sure, we’ll go to court.” Her mom later suggested to her that maybe he was picking her up and putting her to bed as he often does when she falls asleep. T.H. said that she thought that was probably what had happened too but she was not sure. I asked her what made this time different but she did not know. I asked her if she remembered if he did anything else and she said he did not. We asked if he had ever done anything else like that before or since that incident and she said no.

I asked T.H. if she felt safe around Grant and she replied that she did not used to because she thought he did something to her but now she feels okay because she does not think he did anything to her. We inquired whether he had done anything else to make her uncomfortable or had ever hurt her mother and her answer to both questions was no.

[96] T.H. did not remember all of the details of what she said at the time but she generally agreed with the above record of the interview set out in Ms. Pasquill’s report. She testified that it was all a lie. She lied because she was scared. T.H. yelled when she gave this evidence.

(viii) T.H.’s account of the family’s move to the Queen Street house and the further police and CAS investigation in October 1994

[97] T.H. was ten years old and about to start grade six when the family moved to the Queen Street townhouse in the summer of 1994. She had a dog and she had her own bedroom at the Queen Street house. She put a sliding bolt on the door. Sheng told her that it was dangerous to lock the door, in the event of a fire, but she locked it anyway.

[98] Although T.H. was not sexually abused at the Queen Street house, she believed that the abuse of J.H.[1] continued. J.H.[1] had become interested in witchcraft and devil worship, as T.H. described it, and was very depressed during this period. She tried to kill herself on one occasion. T.H. walked into her room when she heard J.H.[1] crying. There was a hook for a planter, that was dangling from the ceiling, and there was a rope on the hook. J.H.[1] said that she wanted to kill herself and that Sheng was still getting into her room. J.H.[1] had put a chain lock on the door to her room and she showed T.H. how Sheng would use a dog leash to open it. J.H.[1] said that Sheng had come in and had masturbated in a corner of her room, that he was still touching her, and that he had put his penis in her mouth. J.H.[1] also said that on one occasion Sheng had ejaculated on her.

[99] Shortly after, J.H.[1] moved out of the Queen Street home. T.H. was not sure whether J.H.[1] moved out before or after the further police and CAS investigation in late 1994.

[100] T.H. remembered that her father J.H.[2] took the two girls to a police station. She did not recall how this further investigation in October 1994 came about but she remembered crying and talking to her father and that her father told her mother that they were going to the police. She also remembered a phone call from Sheng in which Sheng said that he would kill her dog if she said anything bad.

[101] T.H. did not remember what she said this time when she was interviewed by the police and CAS. She must have said something to the effect that “he touched me in my private areas” but she was not sure. She remembered being uncomfortable with the two male investigators. T.H. continued living at the Queen Street house throughout grades six and seven and part of grade eight, that is, both before and after the further investigation. She did not remember anything in particular about her relationship with Sheng during this period.

[102] In cross-examination, the remaining records of the October 1994 CAS and police investigation were put to T.H.. The following passage from Des Masterson’s report was put to her:

T.H. has continued to make issue about contact with Grant. She has refused to go to movies with him and her mother and has refused rides to school with her mother and Grant, insisting that her father come and take her to school.

T.H. did not recall this but she agreed that she was resentful of Sheng for spanking her bare bottom. Her father did not spank the children and she thought it was wrong for Sheng to spank them.

[103] The conclusion of Masterson’s report was also put to T.H.. It is as follows:

J.H.[1] and T.H. hold an exorbitant amount of power and are able to manipulate both parents to satisfy their every whim. Both girls are loyal to their father and have actively worked at supporting their father’s contention that “Grant is a pervert”.

T.H. denied this with considerable emotion.

[104] Similar observations found in Laba’s report were put to T.H., as follows:

It was also discovered that T.H. had great disdain and resentment for Grant Sheng because when he stayed at her house he was the main disciplinarian. She was also resentful that her mother had left her father J.H.[2]. T.H. wanted nothing better than to get Grant Sheng out of the household and the allegations of sexual abuse were a means of obtaining this goal.

T.H. again denied these propositions.

[105] Laba’s account of his interview with T.H. was put to her, as follows:

The writer asked T.H. if she knew why she was here. She said she was here to talk about Grant Sheng. This writer asked her to explain what she meant. She said that he is a mean man. He is always yelling at her. The writer asked “what does he yell about?” She said “things like, pickup up clothes, or tidying her room, or picking up towels, etc.” She then alleged that he had touched her vaginal area. T.H. stated this occurred a number of years ago. That allegation was investigated and the allegation was unfounded. She further stated that she finds him “yucky”. She does not want to stay at the house. That was all she had to say re: Grant Sheng.

T.H. agreed that she must have told Laba about Sheng touching her vaginal area but she did not recall the other statements attributed to her. She testified that her mother never believed her allegations of sexual abuse by Sheng and she could not understand why. She also agreed that she never regarded Sheng as a step-father. He was simply her mother’s boyfriend.

(ix) T.H.’s account of the more recent events

[106] When T.H. was in grade eight, the family moved to Sheng’s house in Mississauga. T.H. slept in a bedroom in the basement with a locked door. J.H.[1] still lived with their father but she would visit on occasion and would stay with T.H. in the basement.

[107] T.H. completed grades eight and nine in Mississauga. When she was in grade ten, the family moved to a three bedroom apartment on Jarvis Street. Sheng did not move with them as he and W.T. had ended their relationship. Sheng would still visit but he did not stay over. J.H.[1] moved back in with the family but only on condition that Sheng would not move back in. T.H. recalled a conversation between J.H.[1] and her mother to this effect. J.H.[1] went to university and T.H. completed high school. T.H. recalled an argument between Sheng and J.H.[1], shortly after J.H.[1] moved into the Jarvis Street apartment. They were yelling, and T.H. and her mother were present, but T.H. could not recall what it was about.

[108] In 2002, T.H. moved out and began university at R[…] University. Sheng had encouraged her to go to university and he paid for her first two years of university. He would contact T.H. from time to time and ask if she needed rent money or grocery money. She would go to restaurants with him and then he would give her a cheque. She received substantial amounts of money from him during these two years, totaling about $8,000 or $9,000.

[109] T.H. also admitted making use of a credit card on one occasion, without permission. She and J.H.[1] took it from her mother’s wallet, knowing that Sheng was responsible for making payments on the card. The two girls made a number of purchases with the credit card. T.H. acknowledged doing this because she felt that Sheng owed them and they wanted to make him pay for what he had done. She was not proud of this behavior.

[110] In the summer after second year university, T.H. showed Sheng a proposal she had written for a documentary film on the subject of child molesters. Sheng told her, “I am sorry for what I did to you and your sister, I am trying to make up for it now”.

[111] Sheng put a bank loan or line of credit in place to help T.H. buy a $6,700 camera that she needed for a film project in Taiwan, in the summer between second and third year university. The bank loan was also used to pay her tuition and rent during third year university. The loan was set up by Sheng because he told T.H. that he did not have sufficient money available to help her. He was no longer living in Toronto and he said that he needed his money for some venture in Victoria, where he was now living. The loan was in T.H.’s and J.H.[1]’s names but Sheng drew the money from the bank for their needs and made the loan payments. T.H. agreed that she has never made a payment on the loan.

[112] During this period, while she was attending university, T.H. travelled out to Victoria on three separate occasions to visit Sheng. On one of these trips, she borrowed his car in Victoria and travelled down the west coast with friends. A photograph taken of T.H. and Sheng and his new family, on one of these trips, was made an exhibit. T.H. looks happy in the photograph. She testified that the only reason she kept in touch with Sheng was to get money from him. She also had concerns about Layla, the daughter of the woman Sheng was now living with in Victoria.

[113] T.H. recalled a dinner with Sheng in Toronto at a Red Lobster restaurant, when J.H.[1] was present, during this same period while they were attending university. Sheng had just helped them to buy furniture from IKEA. J.H.[1] started crying and said, “do you know how fucked up I am because of you?” Everyone in the restaurant saw this incident, according to T.H..

[114] In November 2004, J.H.[1] sent T.H. the email that has already been set out above. T.H. did not want to read the attached letter from J.H.[1] to Sheng. She started to read the first page but then stopped, as she did not want to know everything that had happened to J.H.[1]. On one occasion, after J.H.[1] and T.H. had moved out of the Jarvis Street apartment, they both talked about what had happened to them. T.H. was not sure how much detail they went into but it was the first time that T.H. and J.H.[1] had discussed the abuse in any detail.

[115] After receiving the email from J.H.[1] in late 2004, and after the above conversation where they talked about what had happened to them, J.H.[1] told T.H. that the police would be contacting her. This was in 2005.

(x) W.T.’s account of the four year period at the Wood Street apartment

[116] W.T. was born in Taiwan and came to Canada at age sixteen. She met J.H.[2] at age nineteen and they married in 1981 when she was twenty-one. They had three children. J.H.[1] was born in 1982, T.H. in 1984 and P. in 1989. J.H.[2] worked in various retail clothing businesses. He was abusive, both verbally and physically, and he was financially irresponsible.

[117] W.T. separated from J.H.[2] in 1990 after an incident where he physically beat her. The children were not present at the time of this final beating. W.T. moved into a shelter and the children joined her there after about a week. J.H.[2] threatened to kill her at the time of the separation.

[118] W.T. knew Sheng, as he was a friend of J.H.[2]’s. He helped W.T. financially and also helped her find the small one bedroom apartment on Wood Street. The family lived there for almost four years, until the early summer of 1994. W.T. went back to school, at […] College, and studied fashion management and design. This is the field in which she now works. She received student loans, family benefits and a scholarship. On occasion, J.H.[2] paid child support. She also received financial help from her mother and from Sheng.

[119] The initial sleeping arrangement at the Wood Street apartment was that W.T. and P. slept in the queen bed in the bedroom. The two girls slept in bunk beds in the living room. Once Sheng started sleeping over on weekends, on the living room couch, W.T. changed the arrangement and moved the girls’ beds into the bedroom. She thought that the bunk beds may have been in the living room for five or six months but she was not sure on this point.

[120] W.T. had a busy routine, getting the kids up in the morning, making breakfast, taking the girls to school on the streetcar, dropping P. off at the babysitter, and then attending classes at […] College. After her classes, she would pick the children up, take them home, make dinner, help with homework, put the children to bed, and then do her own studying.

[121] Sheng started staying over at the apartment on weekends. He was teaching at McMaster University and had an apartment in Hamilton. He would occasionally stay over on weeknights and drive to Hamilton in the morning.

[122] Sheng’s relationship with the children was ambivalent. He liked to discipline them and would lecture them, threaten to spank them and raise his hand. Sometimes they would listen but sometimes they resented him and did not want him taking on the disciplinarian role of a father. W.T. never actually saw Sheng spanking the children but she would see him taking them into the bedroom, on some occasion when they had not listened to him, and she would hear their protests. She was not pleased when she heard that he spanked them on their bare bottoms after taking off their pants. The girls did not like this and W.T. thought it was unnecessary. She told Sheng not to spank the girls. On one particular occasion, W.T. recalled that Sheng took T.H. into the bedroom to spank her. He told W.T. not to interfere or else the discipline would not work. It was T.H., in particular, who hated Sheng’s discipline. T.H. would play with matches and lighters and firecrackers and Sheng would discipline her for this. J.H.[1]’s personality was different as she excelled at school, did her homework, and generally obeyed Sheng’s discipline. However, both children resisted any affection or touching from Sheng.

[123] Sheng and J.H.[2] did not get along at all, indeed, J.H.[2] hated Sheng. They once ran into each other in the hallway, outside the apartment, when J.H.[2] was returning the girls to their mother (who had custody of the children) after a visit with them. Sheng and W.T. got out of the elevator at the same time and a big fight ensued. J.H.[2] was not happy that Sheng was now a part of W.T.’s life. There was yelling and punches were thrown. Everyone was watching and the children were frightened. W.T. eventually broke up the fight by stepping between the two men and threatening to call the police.

[124] The children were not happy when W.T. and J.H.[2] divorced. T.H., in particular, did not like it when Sheng would stay overnight and take her father’s place in the house. J.H.[2] had made it clear from the start that he did not want Sheng around the children. He called Sheng a “pervert” or “yellow fox”, in the presence of the children, and told W.T. to be cautious. J.H.[2] was particularly close to J.H.[1] and paid a lot of attention to her.

[125] There were two incidents that W.T. witnessed, during the initial period at the Wood Street apartment when the girls’ bunk beds were still in the living room. On both occasions W.T. was in the bathroom in the evening, taking a bath. The girls were in bed, J.H.[1] in the top bunk and T.H. in the lower bunk. Sheng had stayed late and was watching television in the living room. On the first occasion, W.T. came out of the bathroom after her bath and saw Sheng at the bunk bed with his arms under J.H.[1]’s blanket. W.T. asked, “what are you doing?” He replied that he was looking for his fountain pen. She asked, “why under the blanket?” He replied that the kids hide things. W.T. warned Sheng not to do it again. She assumed he was touching J.H.[1] and did not like what she saw.

[126] On the second occasion, W.T. had left the bathroom door ajar, as she was concerned by what she saw on the first occasion and wanted to be cautious. Once again, she saw Sheng standing near the bunk bed, holding onto the railing of the top bunk where J.H.[1] was sleeping. This time his hands were not under the blanket. W.T. asked him what he was doing. He replied that he was looking for his lighter, as the girls had taken it. W.T. again told him not to go near the girls’ bed. W.T. agreed that the children were curious about Sheng’s lighter and his pen but she did not think they would take these items to bed.

[127] At this point, W.T. moved the girls’ beds into the bedroom. She thought it was better that the girls sleep with her in the bedroom, as Sheng was now sleeping over in the living room. Initially, both bunk beds were moved into the bedroom. However, T.H. sometimes liked to sleep with her mother in the queen bed, whereas J.H.[1] always slept alone in her single bunk bed. At some point, T.H.’s bunk bed was taken out of the apartment. Thereafter, T.H. always slept with her mother and with P. in the queen bed. Sometimes, W.T. and T.H. were so close in the bed that they touched.

[128] Sheng would generally stay over at the Wood Street apartment two or three times a week. He would sleep on the couch in the living room. Sometimes, W.T. would hear him come into the bedroom, even though she was dead tired. She would hear the door open and ask him what he was doing. He would reply that he was checking on the girls. She could not say how often this happened but estimated that it was perhaps half of the times that he stayed over. Sometimes Sheng would ask W.T. to come out to the living room to spend time with him. There were a few times when Sheng came into the bedroom and W.T. saw him leaning over J.H.[1]’s bed. When she asked what he was doing, Sheng replied that he was tucking her in. W.T. never saw Sheng do this with T.H. who was sleeping in the queen bed with W.T.. She agreed that the girls had bad eczema and they would scratch a lot at night. W.T. would check on them and would tuck them in, if they were scratching and had thrown off the blankets. However, she told Sheng to stay away from the girls, even if they kicked off their blankets. She felt it was the mother’s responsibility to check on the girls in their beds. W.T. agreed that she can be a light sleeper, depending on how tired she is. She never woke up in the night and saw any of the alleged sexual abuse.

[129] W.T. woke the girls up every morning. T.H., in particular, was hard to wake up. W.T. never saw T.H. in the morning with her clothes undone or pulled down. She also never saw T.H. wearing multiple layers of clothes to bed. W.T. did the laundry and never noticed anything untoward. She never saw any blood in the girls’ clothes.

[130] In late 1992 W.T. was diagnosed with cervical cancer. She was hospitalized twice, in the late spring of 1993, for operations related to the cancer. A girlfriend of hers, and Sheng, looked after the children while she was in hospital. She never asked Sheng to administer any medication to the children while she was in hospital. When W.T. returned from the hospital, she heard something about medication being given to the kids “in the bum”. She was not sure how she heard this.

[131] While W.T. was in hospital, J.H.[2] built a plywood partition wall in the bedroom. J.H.[1] slept behind the partition wall. It had a door that opened inwards. W.T. could not recall whether it had a lock. She also could not recall how or when the partition wall came down.

[132] The children went swimming at the Wood Street apartment. Sometimes J.H.[2] took them and sometimes Sheng took them. W.T. could not recall whether Sheng had a bathing suit at their apartment and whether he actually went in the pool with the children.

(xi) W.T.’s account of T.H.’s initial complaint and the first CAS and police investigation in February 1994

[133] In early 1994, T.H. made a complaint to her mother of sexual abuse by Sheng. The night before she made this initial complaint, there had been a big fight between Sheng and T.H.. There were frequent fights between T.H. and Sheng in the evenings because T.H. liked to watch television and Sheng insisted that she had to do her homework before she could watch television. This was not an issue with J.H.[1] who always did her homework.

[134] On this particular occasion, the fight was more severe than usual. T.H. loved the Simpsons television show and she was watching it. Sheng would turn it off and tell T.H. to do her homework. T.H. would turn the television back on, insisting on watching her favourite show. They went back and forth, turning the television off and on, three or four times. W.T. did not intervene as she was not a disciplinarian. However, she agreed with Sheng’s position on this issue and thought it was proper parenting to insist that T.H. do her homework before watching television. The fight escalated and they yelled at each other. In particular, T.H. yelled at Sheng that he was “not her father” and that he was a “pervert”. The children often said this. Sheng had to physically drag T.H. away from the television and into the bedroom, to force her to do her homework.

[135] T.H. eventually did her homework and W.T. had no recollection of the family going out that night. In particular, she had no recollection of going to the book store. Sheng had to leave to catch a flight, or to attend meetings, so he left the apartment that night or early in the morning. He was not there when W.T. and the children woke up in the morning.

[136] In the morning, T.H. would not get out of bed and get ready for school. She said that she was not feeling well. W.T. told her to get moving. At this point, T.H. made her complaint. She said that last night she fell asleep on the couch watching television and awoke to find her underwear pulled off and her legs lifted up. Sheng was touching her leg and looking at her.

[137] W.T. was upset by the complaint and felt conflicted. On the one hand, she was angry and feared that T.H.’s disclosure could be true. On the other hand, she thought that there could be other explanations. Sheng was not there, so she could not confront him. W.T. told T.H. that she would speak to Sheng about the matter, when he returned.

[138] W.T. was not sure whether T.H. went to school on the day of her initial complaint but J.H.[1] did go to school. W.T. herself did not call the CAS, as she was waiting to speak to Sheng. W.T. agreed that J.H.[1] must have spoken to someone at her school because the next thing that happened was W.T. received a phone call from the school. It was either the same day as the complaint or the next day that this call came from the school principal. He asked W.T. to come to the school where they met. He advised W.T. that they had received a complaint from T.H. concerning Sheng and that the CAS and police were being called.

[139] W.T. was concerned about J.H.[1] and she spoke to J.H.[1]’s home room teacher and they both met with J.H.[1] at the school. W.T. let the teacher ask the questions and they inquired as to whether J.H.[1] had been touched by Sheng. J.H.[1] quickly brushed it off and said, “No, nothing like that”.

[140] When Sheng returned, W.T. confronted him with T.H.’s complaint. Sheng explained that T.H. fell asleep and he picked her up and took her to the bedroom. When W.T. told Sheng that T.H. gave a very different account of the incident, Sheng suggested that she must have had a dream or a nightmare. He denied any impropriety. She, nevertheless, told him to stay away from her daughters.

[141] W.T. felt that she was in a very difficult situation. At the time of this initial complaint, in early 1994, she felt that she had many reasons to doubt it. She now feels that she was deceived and manipulated by Sheng and believes that she failed to protect her daughters.

[142] The contemporaneous records remaining from the February 1994 CAS and police investigation were put to W.T.. She agreed that she never told the investigators about the two occasions when she had seen Sheng at J.H.[1]’s bunk bed, including once when he had his hands under her blanket, nor did she tell the investigators about seeing Sheng in the bedroom at night. This is one of the reasons why she now feels that she was a bad mother. The record of W.T.'s CAS interview, from Pamela Pasquill’s report, was put to her. It has already been set out above at para. 93 and is repeated here, for convenience:

W.T. said that one night, Grant made T.H. turn off the T.V. to make sure she did her homework. The next day T.H. told W.T. that she did not like Grant to stay with them. W.T. explained that he was just staying the night because the next day he was going to Ottawa and he was leaving the car with them. T.H. then said that 1 ½ years ago when she was sleeping on the couch, Grant touched her leg – not her private area. W.T. told her that she spoke to the Vice Principal and that this would be reported to C.A.S. T.H. then told her she made it up.

W.T. reiterated that T.H. resents Grant and always has. He is very strict and makes her do chores. He disciplines the children and T.H. does not like that.

[143] W.T. agreed that she must have told the CAS that T.H.’s complaint related to an incident one and a half years ago. She also agreed that the complaint arose “the next day”, immediately after the fight between Sheng and T.H. over television and homework. Finally, she agreed that she told the CAS that the complaint was that Sheng “touched her leg – not her private part”. W.T. did not recall saying that T.H. later recanted and said “she made it up”. W.T. did tell the CAS that T.H. resents Sheng, and openly shows it, because he makes her do chores and disciplines her. She agreed that the children did manipulate her but she now feels that this was because they were frightened and because she did not believe them.

[144] W.T. denied ever asking T.H. “if she was pregnant,” on the morning of T.H.’s initial complaint. T.H. was only nine years old at the time and W.T. never talked about sex or pregnancy with the girls. It was false for T.H. to testify that her mother said this.

(xii) W.T.’s account of the family’s move to the Queen Street house and the subsequent police and CAS investigation in October 1994

[145] Life simply carried on, after the initial police and CAS investigation, but in the early summer of 1994 the family moved to a multi-level townhouse on Queen Street East. T.H. had her own bedroom on the top floor of the house, opposite her mother’s bedroom, and J.H.[1] had her own bedroom immediately below her mother’s on the next floor down. When Sheng stayed over, he now slept with W.T. in her bed. P. slept in T.H.’s bedroom. Sheng would generally stay over on weekends, as before, although he now had his own house in Mississauga. When Sheng did stay over at W.T.’s house he would not always come to bed at the same time as her. He would sometimes stay downstairs watching television.

[146] When the family moved into the Queen Street house there were no locks on the bedroom doors. However, J.H.[1] insisted on putting a lock on her door. She said that it was “to protect herself”. J.H.[1] got a lock that had a chain in a slot and she tried to install it on the inside of her bedroom door. Her mother eventually helped her to install it. Then T.H. also wanted a lock, because J.H.[1] had one. W.T. was not sure whether there was already a lock on T.H.’s door or whether they had to get another lock. Sheng did not like the locks as he thought that they were dangerous, in the event of a fire. W.T. explained to him that the girls felt they needed the locks, in light of the complaint made earlier in the year, in order to keep Sheng away. J.H.[1] had now become more openly hostile to Sheng. W.T. told Sheng to stop trying to play the father role, and to leave discipline to J.H.[2], as the children hated it.

[147] At some point, after the move to the Queen Street house, J.H.[1] told W.T. that Sheng had used the dog’s leash in order to get into her locked room. J.H.[1] said that he stood in the corner of her room and masturbated. She also said that he masturbated in the bathroom and that she felt something wet in his hand. She said that he often came into her room. W.T. never tried to use the dog leash herself, to see if it was a feasible means of getting into J.H.[1]’s locked room. W.T. confronted Sheng with J.H.[1]’s allegations. He denied entering her room and said that it would be impossible.

[148] At one point J.H.[1] had very bad whooping cough that lasted for weeks. She was eventually hospitalized. W.T. told her to leave her door unlocked so that she could be reached at night. W.T. would hear her coughing at night and would run downstairs to her room. On some occasions Sheng would go to J.H.[1]’s room, when she coughed, if W.T. was too tired. Generally, W.T. was alert and was not a heavy sleeper, except when she was very tired.

[149] J.H.[1] had changed her appearance at this stage and wore a lot of make-up. She also developed an eating disorder, she would lose her temper, and she made threats to kill herself. On one occasion, W.T. found a long scarf over a hook in J.H.[1]’s bedroom.

[150] W.T. testified as to the series of events that led up to the subsequent police and CAS investigation in October, 1994. A lengthy tape recording of W.T.’s interview on October 18, 1994 was discovered by the CAS, shortly before the present trial, and it was produced to the Crown and disclosed to the defence. It was not available at the first trial but it was used extensively at this trial, both to refresh W.T.’s memory and to cross-examine her.

[151] As with the first CAS and police investigation earlier in the year, there was a major fight that immediately preceded the second CAS and police investigation. This time, the fight was mainly between the girls’ father, J.H.[2], and Sheng. J.H.[2] has asked to take the girls out, on short notice, on a Saturday morning. There was no regular time when J.H.[2] would take the girls away for a visit but W.T. went along with this request as J.H.[1], in particular, wanted to go with J.H.[2]. Unfortunately, this conflicted with Sheng’s plans as he had already arranged to take the family on an outing to the country. Sheng was upset that J.H.[2] was taking the children but W.T. told him to let them go and reminded him that he was not their parent. W.T. told Sheng that they could take the children to the country on the next day, that is, on Sunday.

[152] The dispute escalated when W.T. phoned J.H.[2] to tell him that he had to bring the children back home by Saturday night. She made up a story as to why they had to be home and why they could not stay overnight at J.H.[2]’s home. W.T. did not want to tell J.H.[2] the truth, about Sheng’s plan to take the family to the country on Sunday. She knew J.H.[2] would get upset as he could not stand anything relating to Grant. Unfortunately, J.H.[1] overheard her mother telling J.H.[2] the story about why they had to be home by Saturday night. J.H.[1] screamed into the telephone, “liar, liar, mommy’s lying”. J.H.[2] responded by also screaming on the phone, “what is it, what are you trying to hide?” W.T. lost her temper with J.H.[1] and told her to go ahead and tell her father about the planned trip to the country with Sheng on Sunday. This caused J.H.[2] to become even more upset. He demanded to know “why can’t you keep this person away from the kids? I don’t want him around.” At this point, W.T. was angry and frustrated and told J.H.[1] to “go with your Daddy, I know you feel comfortable with him, stay with him and don’t come back”. So J.H.[1] packed up her belongings and the children left with their father.

[153] When W.T. told Sheng about what had happened, and that J.H.[1] was “gone for good”, Sheng became angry and decided to phone J.H.[2]. He left messages throughout the afternoon but J.H.[2] refused to call back and talk to Sheng. Eventually, Sheng left a threatening message on J.H.[2]’s phone, telling him to bring the children back “or else I’m going to kill the dog”. Sheng knew that T.H. loved her dog. That evening, W.T. and Sheng received a call from the police. J.H.[2] had taken the girls to the police station and a report had been filed containing allegations against Sheng. W.T. and Sheng went down to the police station. They were interviewed and then returned home without the children. W.T. and Sheng fought that night. Sheng said that J.H.[2] was behind the girls’ allegations and he threatened W.T. that she and the children “would be on the street” if the allegations were pursued. W.T. subsequently gave her lengthy tape recorded statement to the CAS.

[154] W.T. agreed that during this period J.H.[1] would become hysterical about her mother not believing her. It was shortly after the above incident, leading to the October 1994 police and CAS investigation, that J.H.[1] moved out of the Queen Street townhouse and moved in with her father.

[155] In cross-examination, the following passage from Laba’s CAS report was put to W.T.:

It was also discovered that T.H. had great disdain and resentment for Grant Sheng because when he stayed at her house he was the main disciplinarian. She was also resentful that her mother had left her father J.H.[2]. T.H. wanted nothing better than to get Grant Sheng out of the household and the allegations of sexual abuse were a means of obtaining this goal.

[156] W.T. agreed about T.H.’s “disdain and resentment” but she did not agree that the allegations of sexual abuse were a means to get Sheng out of the house. She now believed that something must have happened or else the children would not have hated him so much.

[157] Numerous passages from the lengthy tape recorded CAS interview were put to W.T.. She agreed that she made the following statements and she generally adopted them. In any event, the Crown did not dispute that the prior statements were properly proved in the now recovered tape recording and they were as follows:

• “the kids hate Grant” because of his strict discipline which they regard as “a restraint to their freedom”;

• “they [the children] could just walk all over me … I can’t do anything with them … because I still have this guilty feeling … I feel that I owe them something by separating with J.H.[2]”;

• the children had “a very bad image” of Sheng after seeing him get into a fist fight with their father outside the Wood Street apartment;

• Sheng liked taking on the role of lecturer and disciplinarian in the family but “my kids are not the type to sit there and listen quietly … After the lecture they will turn around and laugh at him … my kids are not afraid of him”;

• T.H., in particular, “is very stubborn”;

• both girls are “very good at talking back”;

• “We basically, as a family in the house, we talk openly. … They are not shy … they have no fear in terms of talking”;

• J.H.[2] “sees Grant as a pervert … he hates Grant, but he sees most men as a pervert.” J.H.[2] would warn W.T., “beware of Grant … don’t let the girls get too close”. J.H.[2] “can’t stand the idea that there is another male in the family, especially close to the girls”;

• the girls will say, “Mom, Grant is a pervert” or “Mom, Grant is a nerd” or “you’re a molester, you’re a child molester”;

• W.T. was “pretty sure” the girls were “influenced by J.H.[2]”, during “the earlier stage where they don’t really know Grant that well,” because one of the girls told her “Daddy says that Grant is a pervert”;

• when T.H. made her initial complaint, earlier in the year, it was to the effect that Sheng “actually took off her underwear and [was] pulling her leg” and then she woke up. W.T. asked her “why didn’t you make any noise or call me?” W.T. agreed that the girls were very emotional and would cry;

• T.H. “hated” Sheng for making her do her homework when she wanted to watch the Simpsons. They had “a very nasty fight” over this on “the night before” T.H.’s initial complaint. He had to “physically drag her” to her room;

• “they will talk openly to Grant and say, we don’t like you”;

• “J.H.[1]’s got a very, very big mouth … it’s like pretty soon everybody knows, Grant is a pervert”;

• “my girls are very sensitive … when sometimes Grant tried to put his arms around them, you know, J.H.[1] goes, ‘no you pervert’”;

• Sheng gets angry because “I still let J.H.[2] sort of control my life, and run my life, and manipulating our lives, and washing the kids’ brains”. W.T. could see the difference in the kids when they came back from a visit with J.H.[2], “you see the changing attitudes in them … the girls, especially J.H.[1].”

[158] Although W.T. agreed that she made the above statements, and she generally adopted them as true, she testified that some of her prior statements were influenced by Sheng, that she was “covering” for Sheng, and that she did not disclose the truth.

[159] At the end of the police and CAS investigation, Sheng received a letter advising that the allegations were “unsubstantiated” and referring the family to the Hinck’s Centre for counseling on “some relationship issues”. W.T. discussed the letter with Sheng and he stated that “no one would ever believe her and the kids”. J.H.[1] did go the the Hinck’s Centre for counseling. W.T. took her many times. She was not aware of J.H.[1] ever disclosing allegations of sexual abuse during these counseling sessions.

(xiii) W.T.’s account of the more recent events

[160] After the second police and CAS investigation in late 1994, and after J.H.[1] left home, the rest of the family remained at the Queen Street townhouse for another two years. She and Sheng jointly paid for the family’s expenses.

[161] At the end of this period, the family moved to Sheng’s house in Mississauga where they stayed for another three years. T.H. slept in a bedroom in the basement. It already had a lock on the inside of the door. J.H.[1] would sometimes visit and stay with T.H..

[162] At the end of this period, W.T. decided to separate from Sheng. The family moved to an apartment on Jarvis Street. At this point, J.H.[1] moved back into the family home. Sheng would still visit but he did not stay over. He showed concern for the girls and wanted to help them with university. He also continued to help W.T. with her expenses.

[163] J.H.[1] did not like it when Sheng visited and would always raise the topic of “why did you molest us”. She would become hysterical and ask her mother why she let Sheng visit. There were innumerable arguments between J.H.[1] and Sheng on this topic. When confronted with the allegations of past sexual abuse, Sheng would shake his head and would not want to discuss it.

[164] At one point, Sheng tried to get back together with W.T.. He said it would be better that way. He knew that the girls still loved their mother and he hinted or suggested that the girls would be less likely to talk to the authorities about the alleged abuse if he and W.T. were still together. W.T. would try to get Sheng to admit the sexual abuse, if it was true, and to get counseling. He never did.

[165] W.T. denied telling the girls to take as much money as they could from Sheng, if he had abused them. She told them it was up to them whether they accepted his help. She asked Sheng whether his offers of help to the girls were intended to “redeem his sins”. He replied that he simply wanted to help them because the family had experienced a lot of misfortune. W.T. remained friends with Sheng and would send him cards on special occasions.

[166] She received a copy of J.H.[1]’s letter to Sheng in November, 2004 but she did not have the courage to read it at that time. She finally read it in 2011, a month before the present trial.

(xiv) J.H.[2]’s evidence

[167] J.H.[2] was born in Taiwan in 1945, came to Canada in 1974, married W.T. in 1981, and fathered her three children. He worked in various clothing businesses and is now a ballroom dancing instructor.

[168] J.H.[2] knew the accused Sheng before he met W.T.. They socialized and became good friends. Sheng was the best man at J.H.[2]’s wedding to W.T..

[169] J.H.[2] agreed that W.T. left him in 1990 after he hit her a number of times, including in the face, causing a bloody nose. J.H.[2]’s account of the incident that precipitated this fight was that he came home late one night from bowling. It was about midnight and he found Sheng seated in the television room. J.H.[1] was nearby, asleep on the couch, with her skirt pulled up and her underwear exposed. J.H.[2] carried her upstairs and put her to bed. W.T. was asleep upstairs. J.H.[2] had an argument with W.T. as to why Sheng was there so late at night and why J.H.[1] was asleep alone in a room with a man. Sheng left the house and J.H.[2] went to sleep.

[170] There was no physical altercation until the next day when Sheng came over and asked why J.H.[2] had told W.T. that Sheng had touched J.H.[1]. J.H.[2] denied ever saying this and explained to Sheng that his concern was simply that J.H.[1] was sleeping next to him and not that Sheng had touched her. Once Sheng left the house, J.H.[2] hit W.T. as he felt that she had made up a story about what he had said. W.T. left the home after the fight, went to a women’s shelter, and never returned.

[171] Once W.T. moved to the Wood Street apartment with the children, J.H.[2] would visit almost every weekend and take the kids out to play. He was very unhappy, was not working, and was not paying child support.

[172] J.H.[2] described various complaints that he received from the children during the period after his separation from W.T.. For example, J.H.[1] initially told him that Sheng would force them to take baths and showers or that he wanted to give the girls a bath or shower. J.H.[1] also said that T.H. was afraid of Sheng and would hide from him. J.H.[2] spoke to W.T. about these initial complaints but she was not responsive.

[173] J.H.[2] then heard from the children that everyone was sleeping together in one large bed in the bedroom. He understood that Sheng, W.T. and the three children were all sleeping in the same bed. J.H.[2] took this further complaint from the children more seriously, as he thought that it was wrong for the children to see W.T. and Sheng sleeping together. J.H.[2] would visit the apartment about once a week and he only saw the one large bed. He never saw any bunk beds or a single bed, either in the living room or in the bedroom.

[174] J.H.[2] acted on this further complaint from the children by building a partition wall in the bedroom. He did this on a day when W.T. was not home. The partition wall had its own door but there was no lock on it. The purpose behind building this wall was so that the children would not see W.T. and Sheng sleeping together. W.T. subsequently removed the partition wall.

[175] J.H.[2] recalled a fist fight with Sheng at the Wood Street apartment. He denied that this fight preceded any of the complaints from the children. His recollection was that the fight occurred after the children had complained that Sheng and W.T. were sleeping in the same bed as the children. J.H.[2] confronted Sheng and asked him why he “interfered” with the children. J.H.[2] recalled that J.H.[1] had complained to him that Sheng touched her “private parts”, while they were still living at the Wood Street apartment. J.H.[1] also said that Sheng was touching T.H.. This is what J.H.[2] was trying to stop when he got into a fist fight with Sheng, at the elevators outside the Wood Street apartment, and why he told Sheng to stop “interfering” with the children.

[176] Once the family moved to the townhouse on Queen Street East, J.H.[1] asked J.H.[2] to come over and repair a lock on her bedroom door. He asked her how it was broken and she said that Sheng would often come into her room at night. J.H.[2] changed the lock for her but J.H.[1] called him again to say that the new lock had been broken. J.H.[2] was very upset. He spoke to W.T. and told her that Sheng was not a good person and that she should be protective of the children. J.H.[2] also pursued J.H.[1], demanding to know exactly what Sheng was doing. J.H.[1] would only say that Sheng was “interfering” with her, or that he “touched” her, but she would not provide any details. She would cry when J.H.[2] pressed her for details.

[177] These further complaints led to J.H.[2] getting in another fight with Sheng, yelling at him and hitting him at the Queen Street house. He also took the girls to a child abuse centre in downtown Toronto and he took them to the police. J.H.[1] eventually moved in with J.H.[2]. There was nothing wrong with J.H.[1]’s health. She was just unhappy, due to the situation with Sheng, and she was not getting along with her mother.

[178] J.H.[2] agreed that he hated Sheng but this was because of his treatment of the children. He also agreed that he called Sheng a “yellow wolf”, including in the children’s and W.T.’s presence. He denied saying that all men are “perverts”.

(xv) The tape recorded confrontation between J.H.[1] and Grant Sheng in 2003

[179] As noted above (at paras. 58-60), when reviewing J.H.[1]’s evidence, she surreptitiously tape recorded a conversation she had with Sheng in 2003 at the Pickle Barrel restaurant. The tape recording, and a transcript of it, were made exhibits. The transcript is just over twenty pages long. The more important passages are as follows:

• The initial parts of the conversation (at pp. 3-8) involved a discussion about J.H.[1]’s need for money to pay her tuition and Sheng’s position that he did not have money to give her this year, unlike previous years. Sheng dominated this part of the discussion, forcefully asserting that he had “no legal obligation to do this” and only helped her because “I do care about your future”. J.H.[1] essentially listened to Sheng’s monologue and said little. They both ordered a meal from the waitress.

• Eventually, J.H.[1] interjected and changed the topic of conversation (at pp. 8-9). She made a direct assertion that “when I was a little girl you molested me” and stated that “I want us to talk about it because it hurts me every day”. At this point, J.H.[1] dominated the conversation and Sheng essentially listened. J.H.[1] explained the damage that the abuse caused and concluded by stating “you hurt me, Grant … I was innocent … you can’t give me any fucking bullshit excuse as to, oh, I deserved it. Why? Because I’m the daughter of my father”. Sheng replied, “No, no. Look, I didn’t say that you deserve it or anything like that. Okay. Please don’t put words in my mouth”. This was Sheng’s first response to the accusation that he had molested J.H.[1].

• J.H.[1] then resumed her monologue (at pp. 10-11), telling Sheng again about the damage to her life and pleading with him to tell her “why you did it”. She said that she wanted to discuss the matter so that she can “get it over with … put it to rest” but that Sheng had “buried it”. Sheng’s second response was to state, “This is not the right time for this conversation”. He also asked, “Well, what do you want me to do?”

• J.H.[1] again resumed her monologue (at pp. 11-12), telling Sheng that “he did this for so long” and that she had tried to “cope” but “now it’s coming back and she can’t bury it any longer” because “it hasn’t been resolved”. She asked Sheng to imagine that he was God and asked, “what would you do as God?” Sheng replied, “I don’t know. I’m not God, I’m not perfect, I’m a human being just like everybody else”. This was Sheng’s third response to J.H.[1]’s accusation.

• J.H.[1] repeated her request for an explanation (at p. 12) asking, “Grant, why? … What did I ever do to you?” Sheng replied, “You never did anything to me.” This was his fourth response.

• J.H.[1] resumed another lengthy monologue (at pp. 12-14), with Sheng essentially listening. She repeated her earlier themes of needing an explanation in order to alleviate her suffering: “why did you do that to me and make me feel like a slut for it? … You made me feel so dirty, Grant. You made me feel like … I wanted it or something. I didn’t. I didn’t want any of it. And you always did it over and over again and I was fucking struggling … I think I’m going to fucking kill myself because … I can’t explain or rationalize it and I don’t know what to do … I’m trying to forgive you, Grant. I don’t know how I can”. J.H.[1] also stated that she does not like “coming to you for money”, her only rationale being that “if he didn’t go to jail for it, if he didn’t fucking pay for it, I’m going to make him pay for it.”

• At this point, Sheng tried to take control of the conversation (at pp. 14-15) and gave what is effectively his fifth and most considered response to J.H.[1]’s emotional accusations. He stated, “This is from the bottom of my heart. I swear to God. Okay? I have never, ever in my heart … my soul, have never intend in any way to hurt you, to degrade you, to whatever it is that you’re feeling right now, which I obviously feel guilty. But it’s so deep and genuine and everything, it makes me want to cry for Christ’s sake. Believe me, I am not that kind of person who would want to do that to another person … And whatever comfort you can take from that, yeah, do so, because I don’t know what else I can say.”

• Sheng then returned the conversation to the original topic of discussion, namely, J.H.[1]’s need for money (at pp. 15-16). He explained, “really I don’t have the money right now … but that doesn’t mean that I won’t have the money later.” He proposed that they temporarily “take a loan”, to pay for J.H.[1]’s tuition, and “I will make the interest payments on it so that you don’t have to worry about it”. A waitress brought Sheng a glass of water and he continued, explaining that they would repay the principal amount of the loan at some future date “so you won’t be saddled with it”. He also proposed that J.H.[1] could work for him next summer as a research assistant, that he would pay her “from my research account”, and that she could use the money to “repay off the loan”. J.H.[1] did not respond favourably to this suggestion, asking “do you think I want to do that, Grant?” After a long pause, he acknowledged, “Of course you don’t want to work for me. Okay. But from what you’ve just said before … do you really want to remain … for us to remain like this for the rest of our lives. I certainly don’t want to”. This was effectively Sheng’s sixth response to J.H.[1]’s accusations. Sheng had commenced this return to the original topic of discussion, about money (at p. 14), by saying, “Let me finish telling you what my plan is. Okay? That may make you feel better”.

• J.H.[1] responded to this renewed discussion about money, bank loans, and summer research jobs by returning to her preferred topic of discussion (at pp. 16-17). She stated, “Grant, I want closure … It means that you get what you deserve for what you did to me … and I never have to see you or talk to you again. And slowly, hopefully with time, in my heart I will learn to forgive you … Closure is knowing in my heart that there is justice in the world … I’m talking about you do something bad, you pay for it. That’s my justice … Putting things to rest … And never having to turn back to revisit the awful fucking past again.” Sheng’s response to this discussion of “closure” and “justice” was to twice state, “H’mm, h’mm”, not denying or disputing J.H.[1]’s point. He then said, “Well, justice comes in many forms”. These can collectively be referred to as Sheng’s seventh response to J.H.[1]’s accusations.

• After a long silent pause, Sheng gave a further considered response (at pp. 17-18), effectively his eighth, stating, “I’m not quite sure how to answer that … that’s the way you feel … I suppose the only thing I can say is how I feel, about it … maybe you don’t want to listen to it, then fine. We don’t, we don’t talk about it … I mean, how can I respond?”

• J.H.[1] then tried a slightly different tack (at p. 18), asking “Why have you never apologized to me?” After another long silent pause, Sheng gave his ninth response, stating “I don’t know what to say. All you can think of from your childhood is this, is this bad thing”.

• J.H.[1] made a short poignant statement (at pp. 18-19) which prompted Sheng’s tenth response. J.H.[1] stated, “Grant, that’s the night time of my childhood … In the day you were fine and you were great. In the night it was like a monster came out of my closet. How am I supposed to react? You know that I have mixed feelings towards you.” Sheng’s response was as follows: “look J.H.[1], I’m sorry, I don’t know … All I can see is … what you’re like right now and it pains me to death. And I’m telling you, okay, you have no idea how much even as a small child … you don’t realize how much I really did care about you. I’m sorry all this happened … Just let me finish because this is hard for me. Okay? I told you I don’t know what to say to you, I truly don’t. All I can tell you is what I feel …I know you find it hard to believe me … but I care about you. I cared about, I still care about you. I am not the monster that you think I am. I know it’s hard for you to believe but I don’t know what else to say.”

• J.H.[1] appeared to treat this tenth response from Sheng as a form of admission as she immediately asked (at p. 19), “Did you not think of the repercussions, Grant?” He responded, “No”. She repeated the question, asking “You didn’t?” He again replied, “No”. I will refer to this as Sheng’s eleventh response.

• J.H.[1] then asked (at p.19), “Do you know that I’m hurt now?” Sheng gave a lengthy response (at pp. 19-20), stating “Of course I know that you’re hurt now. But the fucking thing is I don’t know what the fuck to do about it. I have tried everything … All I can do is this goddamn holding pattern and hope at some stage in your life, in my life … something happens … that allows you to see through this … dark cloud and see a glimmer that says, you know, for you to realize, hey, gee, this guy really does care about me, and hope somehow that has an effect on whatever it is that you’re going through … You think this is easy on me too? It’s not, seeing you like this. You have no idea how much I cared about you, and in fact, really loved, you. I care more about you than T.H., I care more about you than P..” I will refer to this as Sheng’s twelfth response.

• J.H.[1] reacted to Sheng’s expression of greater affection for her, than for her siblings, by asking (at p. 20), “And that’s why you had to show me you loved me, right, Grant? Does my Mom know about this, Grant?” Sheng responded vigorously to the suggestion that W.T. knew “about this” (at pp. 20-21), stating “Please, that’s one thing I have always been insistent on. Okay? … Your mother had absolutely nothing to do with anything … if there’s one thing you’ve got to divest yourself of it’s that thought in your head, that your mother somehow …” I will refer to this as Sheng’s thirteenth response.

• J.H.[1] interrupted Sheng and persisted on this new issue (at pp. 21-2), stating “Grant, I was awake one night, the lights were on and my pants were down, and I saw her walk across the room with you … She knew. She knew, Grant. She knew and she didn’t do anything. She didn’t leave you, even after we told her we were being touched by you … me and T.H. have a resentment towards her and you can’t say we’re completely guilty for that.” This prompted Sheng’s fourteenth and last response, as follows: “I’m not saying you’re guilty, I never said you’re guilty. What I keep saying is that the blame that you place on your mother is underserved … not based on fact or reality or anything like that. She doesn’t deserve it … I could burn in hell, but she sure as hell doesn’t deserve it. Okay? And I’m telling you this. Whether you believe me or not … it’s not as though … you’re going to change your mind in one night or whatever I say …”

• At this point J.H.[1] returned to the topic of money (at pp. 22-3) and the conversation ended quickly. She asked whether Sheng can “write me a cheque for my tuition money”. He confirmed that “I don’t have the money right now”. She advised that she was not interested in the proposal of a loan or in working for him in the summer. J.H.[1] concluded, “Whatever needs to be resolved, needs to be resolved the right way. And that’s just not the right way”.

(xvi) The evidence of Grant Sheng

[180] The accused Sheng was fifty-seven years old at the time of the present trial. He lived in Victoria with his partner and her two daughters. They were both faculty members at […] University when they met and commenced a common law relationship in 2000.

[181] Sheng has three degrees, including a Ph.D. He worked as a research scientist at McMaster University from 1980 until 1995. He was appointed to the faculty of […] University in 1995 but has been on long term disability since 2006.

[182] Sheng met J.H.[2] in 1975 and they became friends and business partners. Sheng met W.T. through J.H.[2] and was best man at their wedding in 1981. They remained friends until around 1990 when J.H.[2]’s businesses failed and he returned to Taiwan to work for about six months. J.H.[2] asked Sheng to help his family while he was away and Sheng obliged. He paid some of the family’s bills and he would take W.T. shopping. When J.H.[2] returned, there was friction in the marriage and W.T. decided to leave him.

[183] Sheng had no recollection of the incident, described in J.H.[2]’s testimony, when he allegedly found Sheng and J.H.[1] alone in the television room late at night with her skirt pulled up. Sheng’s understanding of the argument that led to J.H.[2]’s physical beating of W.T. was that it was over W.T.’s decision to leave J.H.[2]. Sheng saw W.T. in the hospital, took her to the shelter, and visited her and the kids over the summer. Sheng felt sympathy for the family, helped W.T. find the apartment on Wood Street, and paid the deposit.

[184] Sheng was commuting to his job at McMaster and living at his own home in Toronto. W.T. went back to school and studied fashion design at […] College. Sheng would visit W.T. and the kids at their apartment. At some point, he and W.T. became intimate. Sheng had great sympathy and affection for W.T. and the children, given the difficulties they had experienced and given W.T.’s fear of J.H.[2].

[185] Sheng did not see J.H.[2], after the separation from W.T., until the day they got into a fight in the hallway outside the apartment. W.T. had told Sheng that J.H.[2] was threatening and intimidating when he visited. W.T. and the children were present, when Sheng finally met up with J.H.[2] and got into the fight, although Sheng was unsure as to how much of the fight the children actually saw.

[186] Sheng’s prior relationship with the children was not problematic as he was not involved in any kind of disciplinary role. After the fight with J.H.[2], the relationship with the children began to deteriorate. J.H.[2] would visit on weekends and take the children out. When they returned, Sheng could see the relationship deteriorate. He remembered T.H. once asking, “why is he still here,” in reference to Sheng. He also remembered T.H. saying, “Daddy says you’re a pervert and that I should not even talk to you”.

[187] Sheng agreed that the girls’ bunk beds were initially in the living room. They were moved into the bedroom within a few months. Part of the reason for this move was so that Sheng and W.T. could be intimate with each other in the living room, after the children went to bed. Sheng agreed with W.T.’s evidence to the effect that she had seen him standing at the bunk bed with his hands under J.H.[1]’s blankets. The kids were fascinated by his fountain pen and his lighter. The fountain pen had gone missing and he was looking for it. He had previously found things like his lighter in the bed. Sheng denied touching J.H.[1] under the bedclothes. He agreed that W.T. warned him to stay away from the girls and he tried to respect her request. He also agreed that there was a second incident and W.T. warned him again to stay away from the girls.

[188] The children were restless sleepers and would kick off their blankets. T.H. also had bad eczema and would scratch herself. Sheng and W.T. would both put cream on T.H.’s skin and they would tuck the children back in when they kicked off their blankets. Sheng did this when the children were sleeping in the living room and when they were sleeping in the bedroom. It was natural to pull the covers over the children, when he went into the bedroom, even though W.T. had warned him to stay away from the girls. He would go into the bedroom to ask W.T. if she wanted to come out and visit with him in the living room.

[189] Sheng would bring movies over to the apartment and the family would watch them on the VCR. On many occasions, he would carry the children into the bedroom when they fell asleep. He never brought “The Exorcist” movie over to the apartment and could not imagine showing such a movie to young children.

[190] Sheng agreed that his relationship with the children was very difficult. He tried to be a normal parent by helping the family financially, taking them out on shopping trips, laying down rules and imposing discipline. Neither girl responded well but T.H., especially, was openly hostile. The children did not respect him or his authority. They would call him “four eyes”, “pervert”, and “child molester”. This alarmed Sheng and made him angry but he tried to understand that they were just kids, they had come through a lot of difficulties, and their father J.H.[2] was upset. In spite of the animosity, the family sometimes had fun on outings.

[191] Sheng denied any inappropriate touching of J.H.[1] or T.H.. There were no incidents he could think of that could ground or anchor their accounts of sexual abuse. For example, he would never show J.H.[1] “The Exorcist” movie and he could not have assaulted her in the bedroom with her mother nearby. W.T. is a light sleeper who worries a lot and has difficulty falling asleep. Sheng could easily wake her when he went into the bedroom to see her. As for J.H.[1]’s allegation of an assault under the blankets on a weekend morning, with all the family present on the bed, Sheng recalled this kind of event but denied any improper touching. Finally, in relation to J.H.[1]’s allegation of Sheng and W.T. talking in the bedroom one night, while J.H.[1] lay naked in her bed, Sheng agreed that he and W.T. did talk in the bedroom at night when the kids were asleep but he had never seen J.H.[1] naked. W.T. had an old sewing machine in the bedroom, with a pedal and a light. It made a clicking sound and W.T. would work on it at night. Sheng agreed that he took the children swimming, at the Wood Street apartment building pool, but he denied ever going in the pool.

[192] T.H. was a discipline problem. She had an unhealthy fascination with matches and Sheng would find lit matches in the corners of the apartment. She would also refuse to do her homework, unlike J.H.[1]. Sheng frequently had to cajole, bribe or threaten T.H., in order to get her to do her homework. He used normal forms of discipline such as warning her of consequences and threatening to take away privileges. He denied ever undoing T.H.’s clothes at night. He never saw her wearing multiple layers of clothes at night. He denied ever administering anal medication to any of the children and could not think of any incident that might anchor or explain this allegation.

[193] Sheng acknowledged spanking the girls on one occasion. They were melting crayons in a pot on the stove, after he had specifically told them not to. He thought that it was unsafe. W.T. was not home. He took them into the bedroom, one at a time, pulled down their pants, and spanked them. They were screaming and talking back. He was brought up in a very strict Chinese home where no one questioned authority. He reacted instinctively and emotionally to the girls’ disobedience, on this one occasion. There were no other spankings. He would just take them to the bedroom and lecture them.

[194] Sheng was not present when T.H. made her initial complaint of sexual abuse to her mother in February 1994. He was told about the complaint by W.T. when he returned home from a trip. He cooperated fully with the police and CAS investigation. He denied offering to buy T.H. new skates. He did not know when she was to be interviewed by the CAS. She was growing at the time, the family was short of money, and they always got T.H. second hand skates.

[195] After the family moved to the Queen Street townhouse Sheng began to sleep with W.T. in her bed. When T.H. discovered this, she became angry and upset and W.T. had to speak to her. The children continued to insult him, calling him a “child molester” and a “pervert”. They would also make comments like, “Daddy doesn’t like you” and “why are you trying to act like a father”.

[196] Sheng denied ever entering J.H.[1]’s room at night when the door was closed and locked. He denied using the dog leash for this purpose. The dog belonged to T.H. and would growl and bark. Sheng denied putting his penis in or near J.H.[1]’s mouth and he denied ever ejaculating on J.H.[1] or ejaculating in the bathroom and coming out with wet hands. He could not think of any incident that could anchor or explain this allegation. He did go in J.H.[1]’s room when there was a need to, for example, when she coughed. She would cough up phlegm on her face. During the October 1994 police and CAS investigation, he thought that this might explain J.H.[1]’s allegation to the effect that he had ejaculated and rubbed sperm on her face.

[197] Sheng recalled the dispute with J.H.[2] that led to the further CAS and police investigation in October 1994. Sheng would make plans for the family on a weekend and the plans would frequently get derailed by J.H.[2] at the last minute. Sheng was angry and upset when this happened again. He asked W.T. to call J.H.[2] and get the kids back so that they could go on their planned outing. Phone calls went back and forth but J.H.[2] did not return the children. Sheng did not recall making a phone call himself in which he threatened to kill T.H.’s dog. He would not say this as they all loved the dog. The next they heard was a phone call from the police station and they learned that both girls had alleged sexual abuse. Sheng cooperated fully with the investigation. In cross-examination, he agreed that he told the CAS that J.H.[1] had told him about a teacher bringing a sample of sperm to class. J.H.[1] described it to him as a clear liquid with white dots in it. Sheng did not recall telling W.T. that the family would be living on the street if J.H.[1] went to the police.

[198] At the end of the investigation, a police officer came to the house and told Sheng that the allegations were unfounded and that they were not proceeding. The officer warned him to be cautious. He also received a letter from the police and CAS stating that “the allegations were unsubstantiated”. He was relieved and happy and felt that he had been cleared. He felt that J.H.[2] had engineered the allegations. He continued to live with W.T. and the family and felt that this unpleasant experience was behind him.

[199] J.H.[1] was now living with her father and there no problems with P. or T.H.. Sheng became like a normal parent to T.H., helping her through high school and helping with her applications to university. She found her niche in arts and film programs and he helped her with her portfolio. She stopped calling him a “pervert”.

[200] Sheng had less contact with J.H.[1]. There were episodic allegations of molestation from J.H.[1]. Sheng would repeatedly ask her for details but she would not give any. There were no similar allegations from T.H.. Sheng was helping J.H.[1] financially and the allegations of molestation would almost always be raised when they met in some private setting. J.H.[1] would become very emotional but would refuse to give Sheng any specifics, saying “you know”. There was one major battle between them at the Jarvis Street apartment. There was another significant incident where J.H.[1] got a knife. This was on an earlier occasion, at the Mississauga home. She accused him of sexual abuse on both occasions. There were other incidents when they met at J.H.[1]’s own residences, during university, although the battles were not as intense. Sheng tried to get her help from a psychologist and paid for it through his health plan. She went a few times but then discontinued the counseling.

[201] After the major fight at the Jarvis Street apartment, when J.H.[1] was about to start first year university, they became estranged and did not see each other for a year and a half. At some point during the winter, when she was in second year university, J.H.[1] called Sheng and they met. She wanted financial help. They began meeting at restaurants. Sheng was separated from W.T. but he had made a commitment to help the girls through university. He was helping them financially and seeing them on occasion.

[202] Sheng testified extensively about the 2003 tape recorded Pickle Barrel meeting with J.H.[1], both in chief and in cross-examination. He testified that he thought J.H.[1] was threatening him when he told her at the start of the conversation that he did not have money “to give to you” and she replied:

You’re telling me if someone put a gun to your head and said, ‘Grant, come up with $3,000 by all possible means’, you couldn’t do it?

[203] Sheng agreed that he was assertive during the initial stages of their meeting, when the discussion was on the subject of money. He denied using money as a means to control the girls. He did not fear any further police investigation after he was cleared in 1994.

[204] Although the meeting began, as planned, with this discussion about money, Sheng agreed that J.H.[1] proceeded to confront him repeatedly with her allegations of childhood sexual abuse. Sheng disagreed that his statements throughout the conversation included admissions of J.H.[1]’s allegations. He agreed, however, that he did not deny the allegations and he characterized his responses as “tepid” and “non-committal”. He explained that he was in a public place, there were people nearby, and he did not want to make a scene. He wanted to say as little as possible in order to de-escalate the confrontation and try to calm J.H.[1] down. His instincts told him that J.H.[1] was “going somewhere” with her accusations and he was worried she would start another major fight. He had heard her allegations repeatedly, without any specifics, and had tried to help her without success. His statements on the tape recording, in response to her accusations, were attempts to reassure her as he felt sorry for her. He was trying to mollify her and simply meant that he would take whatever blame she thought he deserved but that she was not to blame her mother. He had heard J.H.[1]’s allegations, to the effect that her mother was complicit in the sexual abuse, during previous confrontations. He agreed that at this final point in the conversation he was angry and he wanted to slap J.H.[1]. He thought this allegation against her mother was particularly “vile”, given all that her mother had gone through. Sheng also agreed that he was challenging and confronting J.H.[1] at this point, and raising his voice, but he was still trying to avoid making a scene. He was denying that W.T. was to blame while not denying any similar blame for himself. He felt that he could not dislodge the allegation from himself and was simply trying to extricate W.T..

[205] In late 2004, J.H.[1] handed Sheng a letter that she had written, setting out her allegations in detail. This was the first time that Sheng was ever given any specifics about the alleged childhood abuse. Sheng agreed that he never asked J.H.[1] for specifics of the allegations during the taped Pickle Barrel meeting in 2003. This was the only time he did not ask her for specifics, on the occasions when J.H.[1] confronted him with her allegations. It was also the only time he failed to deny the allegations. He simply thought that it was inappropriate, in the context of a public meeting in a restaurant, to either deny the allegations or to ask for specifics.

C. LAW

(i) Introduction

[206] There are relatively few legal issues in this case. The conduct alleged against the accused Sheng satisfies all the essential elements of the offences charged, namely, sexual assault and sexual interference. The only live issue in the case is whether that conduct actually happened. Resolution of this issue turns largely on assessments of credibility and reliability of the witnesses. It also turns on the interpretation given to one piece of unquestionably reliable evidence, namely, the tape recorded meeting between J.H.[1] and Sheng at the Pickle Barrel restaurant in 2003.

(ii) Similar fact evidence

[207] There is one legal issue that must be resolved, before turning to the task of assessing the credibility and reliability of the witnesses. The Crown submits that the entire body of evidence, relating to the alleged offences against both J.H.[1] and T.H., should be assessed as a whole pursuant to the “similar fact” rule of evidence. The defence concedes threshold admissibility of “similar fact” evidence, across the four counts in the Indictment. However, in terms of its ultimate weight, Mr. Struthers submits that evidence of collaboration should lead the trier of fact to reject the Crown’s desired inferences, namely, that similarities between the two sets of offences infer that they were both committed, that they were both committed by the same perpetrator, and that the two girls’ separate accounts are both credible.

[208] There is no question that the allegations made by J.H.[1] and T.H., absent any evidence of collaboration, would meet the test for admissibility of “similar fact” evidence. Both sets of allegations relate to the same family, the same time frame, and the same home. Furthermore, the two girls were similar ages, the alleged touching of both occurred mainly at night when they were asleep, and the kind of touching was generally similar, namely vaginal fondling or digital penetration of both girls that did not escalate into more serious forms of abuse. As against this probative value, there is little prejudicial effect because the allegations made by one are no more serious than the other, there was no severance application and so the evidence had to be heard in any event, and there is no potential for distraction of the trier. In these circumstances, the evidence on each count would normally be admissible in relation to the other counts. See: R. v. Handy (2002), 2002 SCC 56, 164 C.C.C. (3d) 481 (S.C.C.); R. v. Simpson (1977), 1977 CanLII 1142 (ON CA), 35 C.C.C. (2d) 337 at 344-7 (Ont. C.A.); R. v. Arp (1998), 1998 CanLII 769 (SCC), 129 C.C.C. (3d) 321 at 348-354 (S.C.C.).

[209] However, there is undoubtedly some evidence of collusion or collaboration between the two girls. J.H.[1] learned of T.H.’s initial complaint, in one way or another, in February 1994. Indeed, it was J.H.[1] who brought T.H.’s complaint to the attention of the school authorities, thus initiating the first police and CAS investigation. There is evidence that both girls openly called Sheng a “pervert” and a “child molester”, inferring some discussion between them on this topic. Finally, T.H. conceded that she received J.H.[1]'s November 2004 email, attaching her detailed account of alleged abuse in the form of a letter to Sheng, and T.H. proceeded to read some of it. T.H. then had a conversation with J.H.[1] where they both talked about what had happened to them. This all occurred prior to the decision to go to the police in 2005.

[210] In a jury trial, the above evidence of collusion or collaboration could properly be raised at the admissibility stage. In a judge alone trial, where the evidence is internal to the Indictment and has to be heard in any event, I agree with Mr. Struthers that it matters little whether the issue of collaboration is addressed at the stage of determining admissibility or at the stage of determining ultimate weight. The legitimate force of “similar fact” reasoning depends upon the improbability of coincidence, namely, the coincidence that Sheng would be implicated not once but twice in markedly similar misconduct alleged by two independent sources. In these circumstances, evidence connecting him to one set of offences against one complainant could infer that he is also connected to the other set of similar offences against the other complainant. However, collaboration completely destroys the force of this reasoning because it provides an alternative explanation for why there are two separate sets of allegations. See: R. v. Handy, supra at paras. 104-113; R. v. Burke (1996), 1996 CanLII 229 (SCC), 105 C.C.C. (3d) 205 at paras. 38-45 (S.C.C.); R. v. McDonald (2000), 2000 CanLII 16871 (ON CA), 148 C.C.C. (3d) 273 at para. 27 (Ont. C.A.).

[211] In the case at bar, there are good arguments advanced by the Crown concerning whether the above evidence of collaboration had any significant impact on the two girls’ accounts. For example, many of the details of their allegations are quite different and the timing of their various disclosures to the authorities differs. However, I am satisfied that the evidence of collaboration is sufficient to undermine the legitimacy of “similar fact” reasoning. The better and safer course in this case is to evaluate J.H.[1]’s allegations and T.H.’s allegations separately, without allowing one to bolster the other through a chain of reasoning that depends on the improbability of coincidence.

[212] Having said that, there are many areas where the evidence of the two girls clearly overlaps. For example, the general nature of their relationship with Sheng, the influence of their father, the events surrounding the 1994 investigations by the CAS and the police, T.H.’s initial complaint and the events that precipitated it, and the alleged bathroom anal medication incident, are some of the areas where the two girls have both testified about the same subject matter. In these areas, their evidence must be considered as a whole.

(iii) Credibility and reliability and the burden of proof

[213] The accused testified and denied any inappropriate touching of either T.H. or J.H.[1]. Accordingly, there is a conflict in the evidence in relation to the central and essential issue of whether the offences occurred at all. That conflict in the evidence, and the issues of credibility and reliability that it raises, must be addressed bearing in mind that the burden of proof is on the Crown.

[214] In this regard, I am guided by the well known principles set out in R. v. W.(D.) (1991), 1991 CanLII 93 (SCC), 63 C.C.C. (3d) 397 (S.C.C.) and, more recently, in R. v. B.D., 2011 ONCA 51, as well as the long line of earlier authorities on which those cases rest. See: R. v. Challice (1979), 1979 CanLII 2969 (ON CA), 45 C.C.C. (2d) 546 at 556-7 (Ont. C.A.); R. v. Morin (1988), 1988 CanLII 8 (SCC), 44 C.C.C. (3d) 193 at 207-8 and 211 (S.C.C.); R. v. Nimchuk (1977), 1977 CanLII 1930 (ON CA), 33 C.C.C. (2d) 209 (Ont. C.A.).

(iv) The counts alleging sexual assault and sexual interference against T.H.

[215] Counts three and four allege an ongoing course of sexual abuse against T.H., between 1992 and 1994. T.H.’s account of these allegations has been set out in detail above, as has Sheng’s denial of any impropriety.

[216] I am not satisfied that T.H.’s account is sufficiently reliable to rise to the level of proof beyond reasonable doubt. I reach this conclusion, without the necessity of evaluating the credibility and reliability of Sheng’s denial. T.H.’s allegations suffer from a number of frailties, as follows:

• First, her demeanour as a witness was problematic on occasion. She was hysterical and incoherent at certain points, while shouting or yelling in extreme anger at other points. This issue of a witness’ demeanour must not be given undue weight;

• Second, and more importantly, I am satisfied that her initial complaint to her mother in February 1994 was precipitated by a very significant fight between her and Sheng that related to discipline. The evidence is generally consistent to the effect that T.H. was a discipline problem in the home, and that she stubbornly resisted Sheng’s discipline, unlike J.H.[1]. There is no support for T.H.’s account that her initial complaint was precipitated by a trip to the World’s Biggest Book Store, where she saw a book on sexual abuse. There is considerable support for W.T.’s contrary account, to the effect that T.H. wanted to watch the Simpsons on television and Sheng wanted her to do her homework. The contemporaneous CAS reports and the transcript of W.T.’s 1994 taped interview, in particular, set out a detailed and convincing record of this version of events. It provides a particularly suspicious context for T.H.’s initial complaint the next morning;

• Third, the various records of what T.H. said in her February 1994 complaint and in the subsequent investigations are as follows: that Sheng “touched her leg – not her private area”; that she “made it up”; that she fell asleep watching television and when she awoke she saw Sheng with “his hands on my bum” and “her legs were up” but that she had her clothes on and she thought that Sheng was probably “picking her up and putting her to bed as he often does when she falls asleep”; that she was “not sure if it was a dream”; that Sheng “actually took off her underwear” and was “pulling her leg”. There are serious inconsistencies in these accounts and a number of the accounts involve innocent touching or no touching at all. The incident described in this initial complaint in February 1994 is the only night time incident where T.H. was conscious and awake;

• Fourth, the numerous night time assaults described by T.H., aside from this one incident where she actually awoke, all took place when she was asleep. They depend, for their proof, on inferences from the fact that she always wore numerous layers of clothes to bed, in order to protect herself when Sheng slept over, and that she found her clothes undone and pulled down in the morning. None of this was reported to the authorities in 1994. Furthermore, there is no support for this account. Indeed, W.T. never saw the multiple layers of clothes, when T.H. went to bed, or the undone and pulled down clothes in the morning. It is unlikely this unusual course of conduct would have gone unnoticed, given its numerous repetitions and given that W.T. generally slept in the same bed as T.H. and had to wake T.H., with some difficulty, in the mornings. By the time of the present trial, W.T. had become a witness who believed her daughters’ accounts and who was trying to support them. And yet on this important issue, she did not support T.H.;

• Fifth, the bathroom anal medication incident is supported inferentially by J.H.[1], at least to some extent. It also occurred during the day time when T.H. was fully awake and conscious. However, this incident was never disclosed in T.H.’s initial complaint in 1994 or in either of the subsequent police and CAS investigations. If it involved a somewhat lengthy period of genital fondling after inserting unnecessary medication in her anus, as T.H. alleged, it would have been more serious than the incident on the couch when T.H. awoke after falling asleep while watching television. It would also have been a much more reliable memory that was clearly not a dream. And yet it was never mentioned in any of the contemporaneous accounts of T.H.’s initial complaint in 1994 or in the subsequent investigative reports and interviews. It is significant that W.T. heard about some incident involving giving the children medication “in the bum”, after she returned home from the hospital in 1993. It appears that the incident was not regarded, at the time, as involving sexual abuse;

• Sixth, the second CAS and police investigation in late 1994 was precipitated by another serious dispute within the family. This time, Sheng and J.H.[2] were openly fighting over access to the children on a weekend, Sheng is said to have threatened to kill T.H.’s dog, and J.H.[2]’s visible hatred towards Sheng must have been apparent to the children, including accusations that Sheng was a “pervert”. In these provocative and suspect circumstances, T.H. reported only the same incident “a number of years ago”, that she had already reported in early 1994, where Sheng “had [once] touched her vaginal area”. Otherwise, her concerns were solely focused on Sheng’s disciplinary role in the house;

• Seventh, T.H. explained the inconsistencies in her various complaints and statements during the 1994 investigations, as being due to her mother’s cold rejection of her and Sheng’s inducement of her with a promise to buy her new skates. She testified that, as a result of these pressures, she repeatedly lied to the CAS and police investigators. T.H.’s account of her mother’s hostile response to her in February 1994, included the assertion that her mother asked sarcastically “what’s wrong with you, are you pregnant”. W.T. firmly denied this, even though she is now very critical of her own conduct at the time. I am satisfied that T.H.’s account on this point is improbable. In addition, W.T. was allegedly present in the car when Sheng is said to have induced T.H. with a promise of new skates. And yet W.T. was not asked about this important point;

• Eighth, the evidence is generally to the effect that T.H. went on to develop a reasonably normal relationship with Sheng, as she grew up and progressed through high school and university. She continued to live with him, she did not make or repeat any allegations of sexual abuse, and she appears to have become close to him in certain ways. The fact that she took three trips to the west coast and visited with him, while she was in university, and appears to have been happy during these visits, does not suggest that she regarded him as her childhood sexual abuser.

[217] None of the above eight circumstances is determinative, standing alone, but their cumulative impact is more than sufficient to raise reasonable doubt. For all these reasons, counts three and four have not been proved to the requisite standard of proof beyond reasonable doubt. T.H. might be telling the truth but her account is too unreliable for me to be sure of the accused’s guilt on these two counts.

(v) The counts alleging sexual assault and sexual interference against J.H.[1]

[218] Counts one and two allege an ongoing course of sexual abuse, against J.H.[1], between 1988 and 1994. The relevant evidence relates to the time period from 1990 to 1994. J.H.[1]’s account of these allegations has been set out in detail above, as has Sheng’s denial of any impropriety.

[219] As will be further developed below, J.H.[1]’s account contains some of the same frailties as T.H.’s account, however, they are significantly fewer in number. More importantly, J.H.[1]’s account is supported by other evidence, unlike T.H.’s account.

[220] In assessing the credibility and reliability of Sheng’s denial of any sexual impropriety in relation to J.H.[1], I note the following considerations:

• First, his demeanour as a witness was unpersuasive when he reached the more difficult parts of his account. He was given to long, repetitive, and argumentative speeches at these points, while avoiding the hard facts. As in my assessment of T.H.’s credibility and reliability, Sheng’s demeanour as a witness must not be given undue weight;

• Second, Sheng presented himself as a loving concerned step-parent, who continued to care for and support his step-children, even after they falsely accused him of sexual abuse. Consistent with this image, he denied threatening to kill T.H.’s dog at the time of the second CAS and police investigation in October 1994. Both W.T. and T.H. testified that Sheng made this threat in a telephone message, although they placed it in slightly different contexts. They both agreed that the threat preceded the children’s trip to the police station with their father. The defence attacked W.T.’s credibility on the basis that she had recently changed her attitude towards her daughters’ allegations and was now trying to be very supportive of them. However, W.T.’s account of the threat is set out in her detailed contemporaneous interview with the police and CAS on October 18, 1994, at a time when she was trying to be supportive of Sheng and was withholding certain observations that were harmful to him. I am satisfied that the threat was made and that Sheng’s insistence that he would never say such a thing is part of a deliberate effort to present himself in a certain light. As with the factor concerning Sheng’s demeanour as a witness, this threat and Sheng’s untruthful denial of it, should not be given undue weight;

• Third, and more importantly, Sheng acknowledged the two incidents in the living room at the Wood Street apartment where W.T. saw him standing beside J.H.[1]’s bunk bed while J.H.[1] was asleep, including the one occasion where W.T. saw him with his hands under J.H.[1]’s blankets. He also acknowledged that W.T. warned him, on both occasions, to stay away from the girls and that she proceeded to move the bunk beds out of the living room and into the bedroom. Sheng’s explanation for these incidents, that he was looking for his pen or his lighter, seems dubious. More importantly, he testified that he continued to check on the girls in their beds in the bedroom and to pull up their covers as a caring step-father would, in spite of W.T.’s warnings. He insisted, defensively and categorically, that W.T. would always have awoken in her bed when he did this. Given the suspicious nature of the first two incidents in the living room, and W.T.’s two clear warnings to Sheng to stay away from the girls in their beds, Sheng’s innocent account of these ongoing nocturnal visits is improbable;

• Fourth, and most importantly, Sheng’s explanations for what he said in the tape recorded confrontation with J.H.[1] at the Pickle Barrel restaurant in 2003, are not credible. Crown counsel carefully reviewed each of his responses with him, in cross-examination, playing the tape recording to him and then pausing the tape to allow him to explain each one of the responses. Sometimes Sheng had no real explanation for a particular response, sometimes he retreated into repetitive and unpersuasive speeches, and often he advanced explanations that were simply not credible. I will review this body of evidence below in greater detail. Sheng’s implausible explanations for the taped responses, damage his credibility;

• Fifth, and last, I accept J.H.[1]’s account that she was sexually abused by Sheng, for reasons that will be set out below. Acceptance of a strong and persuasive Crown case, to the standard of proof beyond reasonable doubt, is a good reason for rejecting the accused’s contrary account. See: R. v. D.(J.J.R.) (2006), 2006 CanLII 40088 (ON CA), 215 C.C.C. (3d) 252 at para. 53 (Ont. C.A.); R. v. M.(R.E.) (2008), 2008 SCC 51, 235 C.C.C. (3d) 290 at para. 66 (S.C.C.); R. v. Beteta-Amaya, 2011 ONSC 6633 at paras. 50-54.

[221] In all the circumstances, I am satisfied that the accused Sheng’s denial of sexually abusing J.H.[1] is not credible. I completely reject his account. It does not leave me in a state of uncertainty such that his evidence, taken alone or together with other evidence, could give rise to a reasonable doubt.

[222] The remaining issue in this case is the credibility and reliability of J.H.[1]’s account. I should begin by noting that J.H.[1]’s account does not suffer from many of the frailties set out above in relation to T.H.’s account. For example, there were no particular issues with her demeanour, there were no major disciplinary disputes between her and Sheng that prompted specific complaints, she was not contradicted by her mother on important points, and she never resumed a normal friendly relationship with Sheng after the initial complaints were made in 1994.

[223] In spite of the absence of many of T.H.’s frailties, J.H.[1]’s evidence should be approached with caution. In particular, the possibility of collaboration or collusion with T.H., the undoubtedly negative influence of her father, who hated Sheng, and finally, J.H.[1]’s likely resistance to Sheng’s attempts to replace her father in the life of the family, are all good reasons to approach her evidence with care. In addition, the incident where W.T. effectively told J.H.[1] to leave the family home in October 1994, casts some suspicion on the complaints to the police that immediately ensued. In the absence of supporting evidence, I would not convict on J.H.[1]’s evidence standing alone.

[224] An additional reason for caution is that the first two incidents described by J.H.[1], considered on their own, raise certain improbabilities. The first assault, in the living room, appears to have been relatively violent and yet there were no injuries and she did not cry out. There are also some inconsistencies in J.H.[1]’s various accounts of this first incident. The second assault, on the lower bunk bed in the bedroom, was open and obvious and would have exposed Sheng to significant risk of being seen by either W.T. or T.H., had they awoken. However, the other incidents were subtler, more surreptitious, and more probable. In particular, J.H.[1]’s description of the assault under the duvet on a weekend morning, with all the family laughing and talking on the bed, was compelling in its detail and its coherence. In effect, J.H.[1] admitted to facilitating and cooperating with this secret act of abuse which she had become inured to.

[225] Turning to the evidence supporting J.H.[1]’s account, W.T. testified that she twice saw Sheng standing at J.H.[1]’s bunk bed, including once when he had his hands under her blankets. This account is not disputed and it is extremely suspicious. In addition, W.T. testified that she saw Sheng leaning over J.H.[1]’s bed a few times, after she had moved the girls’ beds into the bedroom and while J.H.[1] was asleep. Sheng acknowledged that he continued to check on the girls and tuck them in, while they were asleep, in spite of W.T.’s warnings to stay away from the girls’ beds. It is also not disputed that J.H.[1] had her father build a partition wall in the bedroom, to separate her bed from the rest of the bedroom. J.H.[2] provided a patently unreliable explanation for why he built the partition wall, based on his understanding that the entire family, including Sheng, was sleeping in the large queen bed. J.H.[2] claimed to have never seen the girls’ bunk beds. There is no support for this improbable account and I completely reject J.H.[2]’s evidence as to why the partition wall was built. Once J.H.[2]’s explanation for the partition wall is set aside, the above body of circumstantial evidence infers that W.T. moved the bunk beds into her bedroom because she was suspicious that Sheng was touching J.H.[1] in the living room at night, and that J.H.[1] had the partition wall built in the bedroom to protect herself from Sheng’s night time visits. All of this evidence provides some circumstantial support for J.H.[1]’s allegations of night time sexual abuse at the Wood Street apartment.

[226] The contemporaneous records of the first CAS and police investigation, in February 1994, undermine the allegations relating to the Wood Street apartment to some extent. These records focus mainly on T.H.’s complaint. However, I am satisfied that J.H.[1] was asked by Ms. Pasquill whether Sheng had done anything inappropriate to her and J.H.[1] said no. This is not an instance of inconsistent, contradictory or inherently suspicious disclosures, as in T.H.’s case. Rather it is an instance of delayed disclosure, in the sense of non-disclosure at a time when J.H.[1] was very young. J.H.[1] explained that she was afraid and humiliated by Sheng’s sexual abuse of her, which she had been silently cooperating with to some extent. Her explanation for not disclosing at this early stage was convincing and credible. See: R. v. D.(D.) (2000), 2000 SCC 43, 148 C.C.C. (3d) 41 at 66-7 (S.C.C.).

[227] Some circumstantial support for J.H.[1]’s account can also be found in the events that unfolded after the first CAS and police investigation. J.H.[1] had become openly hostile to Sheng and had put a lock on her bedroom door at the Queen Street townhouse “to protect herself” from Sheng’s nocturnal visits. J.H.[1]’s mother, as well as T.H., support her account on these points. Indeed, there is no real dispute that J.H.[1] did put a lock on the inside of her bedroom door as soon as the family moved to the Queen Street townhouse. It is noteworthy that J.H.[1]’s behaviour also deteriorated at this stage as she became depressed, rebellious, anorexic, and suicidal. In this context, she began disclosing incidents of sexual misconduct by Sheng, both to her mother and to the CAS and police investigators in October 1994.

[228] The contemporaneous CAS and police records relating to this second investigation are somewhat mixed in their effect. On the one hand, they are generally consistent with W.T.’s evidence and with J.H.[1]’s evidence, showing that J.H.[1] disclosed incidents of masturbation by Sheng at the Queen Street townhouse. On the other hand, the records indicate that the earlier incidents involving sexual assaults at the Wood Street apartment were not disclosed and J.H.[1] positively denied that Sheng had touched her. Again, I am satisfied that this is an instance of delayed or incremental disclosure. J.H.[1] explained that she disclosed enough to try to get Sheng removed from the house but that she was still too afraid and humiliated to disclose the earlier abuse at the Wood Street apartment. Again, her evidence was convincing and credible on this point as it was the more serious acts of sexual touching at the Wood Street apartment that were particularly disgusting and humiliating to her. I should add that the story set out in some of the records, about Sheng allegedly rubbing semen on her face at the Queen Street house, appears to have been a misunderstanding or misinterpretation of an instance when J.H.[1] was sick with whooping cough and had phlegm on her face. J.H.[1] testified that Sheng never did rub sperm on her face. Similarly, the story about a teacher bringing sperm to school and showing it to the class was denied by J.H.[1]. I am not satisfied as to the reliability of the CAS records on this point. Sheng agreed in cross-examination that it was he who told the CAS about J.H.[1] telling him a story about a teacher bringing a “clear liquid with white dots in it” to class. This whole story may well be double hearsay that has simply been lost in translation.

[229] After the second police and CAS investigation in October 1994 failed to achieve J.H.[1]’s objective of removing Sheng from her home, she proceeded to move out herself. All of her conduct, in this regard, is consistent with her allegations of prior sexual abuse. Not only did she move out but she relentlessly pursued Sheng by repeatedly confronting him with her allegations, engaging him in angry accusations, and insisting that he not stay over at the Jarvis Street apartment. Finally, she tape recorded their meeting at the Pickle Barrel restaurant in 2003 and again confronted him with her allegations in this taped conversation. There is no rational explanation for why she would tape record this confrontation other than her firm belief that Sheng had abused her and her desire to prove it.

[230] I appreciate that innocent explanations have been advanced for some of the individual items of circumstantial evidence analyzed above. For example, Sheng testified that he was looking for his lost pen on the occasion when W.T. saw him with his hands under J.H.[1]’s bedclothes, while J.H.[1] was asleep at night. Similarly, it is submitted that the partition wall at the Wood Street apartment and the lock on the bedroom door at the Queen Street townhouse may have been installed simply to give J.H.[1] some privacy. The proper way to analyze these potential explanations is not piecemeal, in isolation from other items of evidence. Rather, they are to be assessed in the context of all the evidence. Furthermore, the individual items of evidence are not to be subjected to the standard of proof beyond reasonable doubt, which applies to the essential elements of the offences and to the verdicts. When all the circumstantial evidence is considered together, and is considered with the 2003 tape recording, and with J.H.[1]’s testimony, I am satisfied from the totality of this evidence that the innocent explanations for individual items of evidence should be rejected. See: R. v. Morin, supra, at 205-211; R. v. Bouvier (1984), 1984 CanLII 3453 (ON CA), 11 C.C.C. (3d) 257 at 264-266 (Ont. C.A.), aff’d. 1985 CanLII 17 (SCC), 22 C.C.C. (3d) 576n (S.C.C.); R. v. J.M.H. 2011 SCC 45; R. v. Morin (1992), 1992 CanLII 40 (SCC), 76 C.C.C. (3d) 193 at 200 (S.C.C.); R. v. Lynch, Malone and King (1978), 1978 CanLII 2347 (ON CA), 40 C.C.C. (2d) 7 at 19 (Ont. C.A.).

[231] This brings me to the last item of evidence that supports J.H.[1]’s account which is the tape recorded conversation itself. This is the most important piece of evidence in the case and I have listened to it many times. There is no issue concerning the reliability of the tape. Sheng conceded that it accurately records their conversation and he conceded that J.H.[1] unambiguously and repeatedly confronted him with her allegations of childhood sexual abuse. I am satisfied that Sheng’s responses, viewed in their totality, amount to an implicit admission that he had sexually abused J.H.[1].

[232] I have already set out my findings above, in some detail, as to what was said on the tape. What is compelling about it, as incriminating evidence, is the number of responses that J.H.[1] elicited in answer to her allegations. It is not just one or two isolated or ambiguous responses. Rather, I have found at least fourteen distinct responses. Furthermore, all of the responses are either extremely suspicious or they are a form of admission. For example, the following statements, in particular when viewed cumulatively, amount to an implied admission of J.H.[1]’s accusation of childhood sexual abuse: “I didn’t say you deserve it”; “I have never … intend in any way to hurt you, to degrade you …I obviously feel guilty. … Believe me, I am not that kind of person who would want to do that to another person …”; “I suppose the only thing I can say is how I feel about it … maybe you don’t want to listen to it, then fine … we don’t talk about it …”; “All you can think of from your childhood is this bad thing”; “look J.H.[1], I’m sorry, I don’t know”; “you don’t realize how much I really did care about you. I’m sorry all this happened”; “I know you find it hard to believe me … but I care about you. I cared about, I still care about you. I am not the monster that you think I am. I know its hard for you to believe but I don’t know what else to say”; “No” [admitting he did not think about “the repercussions”]; “All I can do is … hope at some stage in your life, in my life … something happens … that allows you to see through this … dark cloud and see a glimmer that says, you know, for you to realize, hey, gee, this guy really does care about me … You have no idea how much I cared about you, and, in fact, really loved you”; “Your mother had absolutely nothing to do with anything”; “What I keep saying is that the blame that you place on your mother is undeserved … not based on fact or reality or anything like that. She doesn’t deserve it … I could burn in hell, but she sure as hell doesn’t deserve it” [Emphasis added]. The entire premise for these responses is that the abuse did happen. Sheng refers to it as “this bad thing” or “all this” or simply as “that” or “it” or “anything”.

[233] In addition to these implied admissions, what is also noteworthy about the taped conversation is Sheng’s repeated failure to deny the allegations. He was not refusing to discuss the allegations of sexual abuse, contrary to what he claimed in his testimony. The discussion of alleged abuse went on openly for some time, at the restaurant, and he made repeated responses. He was simply refusing to deny the allegations, when a denial was called for, assuming the allegations were false. It is well established that a failure to deny an accusation, where a denial could reasonably be expected, can in itself amount to an implied admission. See: R. v. Christie, [1914] A.C. 545 (H.L.); R. v. Baron and Wertman (1976), 1976 CanLII 775 (ON CA), 31 C.C.C. (2d) 525 at 538-540 (Ont. C.A.); R. v. Eden, 1969 CanLII 329 (ON CA), [1970] 3 C.C.C. 280 at 283 (Ont. C.A.); R. v. Govedarov et al (1974), 1974 CanLII 33 (ON CA), 16 C.C.C. (2d) 238 at 278-9 (Ont. C.A.); Sopinka et al, The Law of Evidence in Canada, 3rd Ed. 2009, at 375-7. In the case at bar, there is far more than a mere failure to deny J.H.[1]’s accusations. As noted, there are also numerous responses from which an admission can be implied. In effect, what Sheng was saying was that he could not deny the allegations in relation to himself, that he could only deny any complicity by W.T., that he felt “guilty” and was “sorry” for what had happened, that his only explanation or excuse was that he did not “intend” or “want” to “hurt” or to “degrade” J.H.[1] in any way, that he did not think of the consequences of his conduct, that he truly did love her and care for her, and he hoped that one day she would realize this.

[234] Sheng’s final vigorous defence of W.T. in the taped conversation is telling as it belies his evidence that he did not want to confront J.H.[1] and cause a scene in a public restaurant. Sheng is not a shy, retiring individual. He is an outspoken, accomplished, argumentative, forceful adult and he was confronted by a young twenty year old who he knew well and over whom he had exercised various forms of control or influence or authority. He firmly and forcefully refused to agree to her requests for money for her tuition and then he vigorously defended W.T. from complicity in the sexual abuse. It is only himself who he declined to defend from the allegations of sexual abuse and, instead, implicitly admitted them. Indeed, if the allegations of sexual abuse were false, as against Sheng, then there would be nothing for W.T. to be complicit in and nothing to defend her against. The very fact that Sheng leapt to defend W.T., against party liability, implied that there was a principal.

[235] In conclusion, the tape recorded admissions made by Sheng in 2003 are independent evidence of guilt. These admissions, in combination with the circumstantial evidence analyzed above, provide abundant support for J.H.[1]’s evidence.

[236] Having considered all of the evidence, I am satisfied that J.H.[1]’s allegations of childhood sexual abuse are both credible and reliable. I find that the Crown has proved guilt beyond reasonable doubt on counts one and two. I appreciate that this standard is closer to certainty than to probability. I am sure of Sheng’s guilt on these two counts. See: R. v. Starr (2000), 2000 SCC 40, 147 C.C.C. (3d) 449 (S.C.C.).

D. CONCLUSION

[237] In the result, the accused Grant Sheng is guilty on counts one and two but not guilty on counts three and four.

M.A. Code J.

Released: January 25, 2012

COURT FILE NO.: P147/06

DATE: 20120125

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

GRANT SHENG

REASONS FOR JUDGMENT

M.A. Code J.

Released: January 25, 2012