R. v. J.H., 2012 ONSC 2596

ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 2-2011
DATE: 2012-05-18

BETWEE N:

HER MAJESTY THE QUEEN

T. Donnelly, Counsel for the Crown

• and -

J.H.

T. Macdonald, for the Counsel for the Defendant

HEARD: April 23 24, 2012

Kennedy, J.

1The accused stands charged with committing a sexual assault on D.H. between the dates of January 1 st , 1984 and December 31 st , 1992 in the Township of Grey. The accused is the complainant’s uncle.

2The accused is a farm labourer and lived at home with his parents N.H. and L.H. on the family farm, a milk farm in Grey County from the time it was acquired in 1984 until it was sold following his mother’s death on July 11, 2005. The house which was located a short distance from the barn on the property, approximately 300 feet, was over 100 years old. The complainant is N.H.’s grandson. The farm was outside of A[…] near L[…], Ontario.

3The complainant gave evidence that there was a great deal of turmoil in his own home because of the friction between his parents. His parents separated and he has not spoken with his father for several years.

4The complainant is currently employed as a human resources services representative with T[…] at the L[…] where he has been for the last nine years. He is now 31 years of age.

5The complainant was born in 1980. The events that he complains about are said to have commenced when he was four years old and carried on until he was 12 years old at the paternal grandparents’ farm. This is a late reporting case.

6He remembers discussing what was transpiring at the farm when he was in grade three or four to a classmate who laughed at him and he said nothing further.

7His grandmother died in July 2005. He was very close to his grandmother. He was too scared to tell anybody about what was happening to him. He also liked going to the farm and did not want to lose that opportunity.

8After his grandmother died the farm was sold and he moved to London where he lived with his uncle and his grandfather. He remained there for approximately two years and then moved out. He moved out of his grandfather’s house in London October 26, 2010.

9While he lived in the house he did not pay rent. He did hear his Unlce J.H. once tell his grandfather that he should be told to leave the home.

10He believed that if he told anyone about the illicit activity that transpired he wouldn’t be believed and he would get into trouble.

11He reported the matter to a social worker at the CAS in 2008 when he found out that the woman his Unlce J.H. lived with was babysitting young children overnight. He didn’t want anything to happen to them. He was interviewed by the police about two years later on January 30, 2010 and February 9 th , 2010.

12The illicit conduct that the complainant reports took place occurred quite frequently and was quite similar in nature.

13Both the complainant and the defendant would undress and participate in sexual activity on the accused’s bed. At all times the door of the bedroom would be closed. When the handle on the door to the bedroom was removed by his uncle, before the sexual activity began the complainant reports that his uncle stuffed the lock and hole with Kleenex so that no one could see in. The defendant would approach him from behind and put his penis in his pants. He then made the complainant perform oral sex. He would then put his penis between D.H.’s legs from the rear and then ejaculate.

14There was never any penetration of his anus. When he performed oral sex on the defendant, the defendant had an erection.

15The complainant stated “he made me put his penis in my mouth”.

16Frequently the defendant would then roll the complainant over in his bed and ejaculate on his stomach.

17The accused would then wipe the ejaculate off with Kleenex in his wastepaper basket in the bedroom.

18After the illicit activity the accused told the complainant that he should not tell anybody, that it was their hobby and was between the two of them. This activity did not cause him any physical pain. This type of activity began when he was four and continued every other weekend when the complainant visited the farm. The complainant visited the farm and stayed over usually Friday and Saturday nights. The complainant reported that he slept in the defendant’s bedroom alone with the defendant. The illicit behavior took place both nights in the defendant’s double bed where they lay naked.

19The grandparents were downstairs in the farmhouse usually when this activity went on. From time to time this activity took on various other particulars.

20The complainant reports that the offender made up a card game which was in the nature of stripped poker. The result was that the complainant took off all his clothes. After this the sexual routine outlined above began.

21Also from time to time the defendant would show him pornography on the combination TV-VCR that the accused had in his bedroom. At that time the complainant was about six years old. The purpose of the pornographic movies as I understand it was to arose the complainant.

22The accused once again told the complainant that this was “our hobby” and if he were to tell anyone he would not be able to come to the farm anymore.

23The complainant loved his grandmother. In particular, they did lots together and he wanted to continue to have the opportunity to visit.

24He explained that he did not call out for his grandparents because it was a hobby and it did not hurt. He did not want to be restricted from visiting the farm.

25On another occasion the accused would play what he described video porn. He would cut pictures out and arrange them in yellow envelopes. He would also open some of the envelopes that the accused gave him and see pornographic pictures inside.

26The pornography, both in the pictures and on the TV, was about men and women having sex. When he watched the pornography the complainant was in the offender’s room and no one else was present.

27The sound on the television was always kept low.

28The accused kept pornography magazines in his room which depicted larger women.

29He was in the habit of going through the magazines with the complainant and the accused allowed him to cut things out. He would put these in the above described pictures in yellow envelopes.

30The pictures were always about adult men and women. After showing him the pictures the complainant reports that the accused again began his sexual routine.

31The complainant remembers the accused on top of him breathing heavily. The accused on occasion had to use his inhaler while he was on top of him. While he was rubbing the complainant between the legs with his penis he was breathing heavily and using his blue inhaler and ejaculating.

32When the complainant was about six or seven an incident occurred when they were both in bed. His grandfather and grandmother came to the door, looked in the room and saw them both naked on the bed. N.H. asked him why he was naked and he replied that he wanted to be like his uncle.

33Also the accused said to N.H. that the reason D.H. had no clothes on was that the complainant was trying to imitate him.

34There was no sexual activity being carried out when N.H. came into the room.

35N.H. told the complainant that thereafter he wasn’t allowed to be in the accused’s room without his clothes on.

36After that the sexual activity became more secret.

37The accused removed the door handle from the door to the bedroom to ensure privacy and put it on his dresser. He put Kleenex in the hole while the sexual activity occurred so no one could see in.

38On one occasion after that, the accused took the complainant to the barn where they climbed up into the loft. In the loft the accused showed the complainant pornographic magazines and then proceeded to commence his regular sexual routine. He could have been six years old at the time. In the loft they were both naked.

39Afterwards the complainant remembers that the accused left him there alone. He went out through the back of the barn and had to climb the fence. He remembers an electric shock from the fence when he went over it.

40The barn was about 300 feet away from the house. When he got back to the house he spoke to his grandparents in the kitchen who asked him if he had fun playing with the dogs.

41He went through the kitchen quickly so that his grandparents wouldn’t find out. He did not want to be restricted from coming to the farm again.

42The last time the sexual contact occurred the complainant was 12 years old. After the performance by the accused, the complainant went into the bathroom and ejaculated. When the accused found out, he told the complainant that the complainant was now too old for their hobby and there was no further sexual activity between them, although the complainant continued to go regularly to the farm. After the discussion with the accused as reported, the complainant slept in the front bedroom of the house.

43The accused continued to reside at the house and farm.

44The complainant identified the accused as the perpetrator of the sexual acts described. He described the accused as being taller than him, his dad’s brother and one who had acne scars all over his chest.

45The complainant reports that he never told the accused to stop. He explained that it was their hobby. He didn’t know any better, he looked up to him at the time and wanted to continue to visit the farm.

Summary of the Evidence of J.H., the accused

46The accused now is almost 47 years old. He was born […], 1965.

47He lives in a home east of L[…] with his girlfriend A.L. who is 34. They’ve lived together since 2008. His education is described as half way through grade nine. He has worked as a farm labourer. He is recently unemployed.

48He grew up in the family’s farmhouse with his brother, the complainant’s father and two sisters L[…] and S[…].

49He denies any illicit sexual activity involving D.H.. D.H. came to the farm house regularly from 1984 through to 1992.

50If I were to accept all of the complainant’s evidence the illicit sexual acts that are said to have continued frequently would have occurred more than 400 times; two nights every other weekend and twice a month for eight years.

51He is not a good witness. I will have more to say about that later in these reasons.

(continues exactly as in the source text through paragraph [239])

John C. Kennedy
Judge