ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 7259/11

DATE: 2012-05-28

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

W.A.

Defendant

Michael Varpio, for the Crown

Kenneth Walker, for the Defendant

HEARD: May 24-25, 2012

E.J. Koke J.

[1] The complainant, C.R. ,attended at the police station in S[…] and advised the police that when he was a child he had engaged in sexual touching and other activities of a sexual nature at the request and insistence of his mother’s boyfriend at the time, W.A..

[2] On August 11, 2010, W.A. was arrested and he was charged with Sexual Assault, Sexual Touching and Invitation to Sexual Touching.

Testimony of C.R.

[3] C.R. stated that he was born on September […], 1985 and he is now 26 years old. He has a younger brother P.R. and his mother’s name is R.R..

[4] C.R. testified that the accused, W.A. ,and his mother started living together when he was about three or four years old. They stayed together until he was about 11 or 12 years old, or until about 1997 or 1998. He stated that his biological father was not in the picture at that time of his life.

[5] C.R. described a childhood which was marred by instability, violence and insecurity. The family moved frequently and he seldom attended the same school for more than one year. He was physically beaten and abused on a regular basis by both his mother and W.A., and it would appear that they also exhibited violence against each other. He testified that the abuse was particularly prevalent and severe when the monthly welfare cheques arrived, because then his mother and W.A. would have money to purchase alcohol and drugs and the violence would escalate. He can recall being locked in his room for days at a time and he can recall times when he left with his mother in the middle of the night and going to a “Women in Crisis” centre.

[6] C.R. testified that the sexual incidents involving W.A. started when he was living on C[…] Street in S[…] and attending grade two. This would have been in 1992. The incidents followed a pattern, beginning by viewing pornographic materials. The viewing of pornographic materials would be followed by C.R. taking off his pants after which W.A. would masturbate and perform fellatio on him and C.R. would be asked to touch W.A.’s penis.

[7] C.R. testified that these incidents occurred about twice a month or more, and would take place whenever “the conditions were right”, as he described it. The “right conditions” for these incidents to take place required that his younger brother P.R. be asleep or away and that his mother also be away from the home playing bingo or absent for some other reason. C.R. recalls that his mother was convicted of criminal offences during this time period and he remembers these incidents occurring while she was serving time in custody on weekends.

[8] C.R. testified that these incidents continued to occur while he was in grade three and living on P[…] Road in E[…] Bay. Thereafter, the family moved to the community of Iron Bridge, Ontario, where C.R. completed grade three and where the family lived until shortly after he started grade five. In Iron Bridge, the incidents escalated to anal penetration, which C.R. can recall occurred on two occasions. He recalls that he complained to W.A. of the pain this penetration caused him.

[9] These incidents occurred until C.R. was 11 or 12 years old, when his mother and W.A. broke up and stopped living together.

[10] C.R. stated that initially he felt compelled to keep these incidents quiet because he was convinced by W.A. that engaging in this activity was his fault and that he would be responsible for hurting his mother if he told her what was taking place in the home in her absence. He explained that when he became older and realized that the incidents were not his fault, W.A.’s tactics changed and he threatened to beat up his family if he told anyone what was happening. C.R. had frequently seen W.A. assault his mother and he knew that W.A. would follow up on this threat and so he kept quiet.

[11] C.R. testified that he was prompted to file a complaint with the police in 2010 because he came to the realization at that time that he was encumbered by some serious emotional issues which were having a negative effect on his personal relationships, in particular his relationship with his girlfriend and child. He came to the conclusion that he had unresolved rage and anger issues, which he believed were rooted in the past and these had caused him to become abusive to his girlfriend. He did not wish to continue the pattern of abuse which he had witnessed growing up. He testified that his girlfriend had asked him to leave and to “get his head straightened out” and he believed that going to the police would help him to “get stuff out of the way” and help him to “move on”.

[12] C.R. testified that prior to attending at the police station he had never spoken to anyone else about what had taken place between him and W.A.. He referred to his attendance at the police station as a “beginning” and also as a step toward receiving some counselling. During his teenage years and into his twenties he had engaged in drug use and had accumulated a criminal record and he explained that his decision to attend at the police station was prompted by a desire to change the direction of his life. He stated that another reason he brought this issue forward in 2010 was that he did not want what had happened to him to happen to anyone else.

[13] In cross examination, C.R. denied that he had attended at the police station only for the purpose of impressing on his girlfriend the fact that he had taken a step to “get better”, and thereby accelerate a reconciliation. He maintained that he was motivated by a desire to “get better” himself first, and that he realized that he would not be ready to resume the relationship until after he had successfully dealt with his issues. He stated that he and his girlfriend are still not together at this time. He also denied that he was using the allegations of being sexually assaulted as a convenient excuse to explain his abusive actions towards his girlfriend.

[14] C.R. stated that after his mother and W.A. broke up he continued to have a friendly relationship with W.A.’s sister ,C.A., who he had come to refer to as his Aunt C.A.. In cross examination, he agreed that he had had a verbal altercation with W.A. when he encountered him at the residence of C.A. in the days leading up to his complaint to the police. He stated that during this altercation he called W.A. a child molester, a low life and a degenerate and W.A. then ran out of the house. He denied having a knife in his hand or threatening W.A. with a knife during this altercation.

[15] During cross examination, C.R. agreed that he had informed the police that during his life he had “tried to pound the memories [of the sexual incidents] out of his head”. He denied that his attempts to rid himself of these memories and his previous drug use had impaired his memory, as suggested by defence counsel and he stated that as he went through the process of digging through his repressed memory he found that his memory was improving.

[16] In response to the suggestion by defence counsel that he had fabricated these allegations against W.A. in order to qualify for an award from the Criminal Injuries Compensation Board, he stated that although he was aware of the Criminal Injuries Compensation system, he had not applied for money from the Board and had no intention of doing so; furthermore, he had been able to turn his life around, was employed and earning $45.00 an hour and he had no need to look to the Board for money.

[17] Defence counsel also suggested to C.R. that his motive in making these allegations against W.A. was because W.A. objected to him selling drugs to his sister C.A., and so he wished to alienate W.A. and C.A. so that he could continue selling drugs to her. C.R. agreed that he had taken drugs with C.A. in the past but he insisted that the only substance he had sold her was marijuana, and not Oxycontin, as suggested by the defence. He also stated that he continued to have a good relationship with C.A. and in fact he had been visiting her at her residence on the day of and just prior to attending at the police station.

[18] C.R. readily admitted to having an extensive criminal record, for offences which he had been convicted of between the ages of 18 and 25. These convictions were for offences which included, Theft under $5000, Mischief, Failing to Comply with an Undertaking, Possession of Drugs, Criminal Harassment, Uttering Threats and Forcible Confinement.

[19] Defence counsel also suggested to C.R. that these incidents could not have happened because his younger brother P.R. would also have been around at all times. Also, W.A.’s daughter, B.J., lived with them for three years during the time period these offences were alleged to have occurred and therefore W.A. would not have had an opportunity to be alone with him. C.R. replied by saying that he had testified that these offences occurred when P.R. was sleeping, and he stated that B.J. had not lived with them for three years, she had merely stayed with them on a temporary basis for about two months.

Testimony of R.R.

[20] R.R. testified that she was 43 years old and she was the mother of C.R.. She stated that C.R. lived with her until he was 14 years old, at which time he left to live with his biological father. She lived with W.A. from 1989 until 1997. She is presently employed as a cook.

[21] R.R. admitted to having a criminal record for offences committed between 1992 and 1998. These offences were for Fraud and Failing to Comply with a Recognizance, as well as one conviction for Uttering Threats.

[22] R.R. stated that she started using cocaine in late 1989 or 1990 and used this drug for a number of years, together with alcohol while she was living with W.A.. Eventually, she quit, some time before her relationship with W.A. came to an end, although he continued to drink and use drugs. She said that during the time period that she was using drugs and alcohol she and W.A. would drink and do drugs any time they had money. They also sold drugs.

[23] R.R. admitted that when she lived with W.A., she or W.A. would purchase pornography, pornography she described as “bad pornography”.

[24] According to R.R., W.A. was both mentally and physically abusive towards C.R. and P.R.. He would scream and yell at her boys, and slap them. C.R. was fearful of W.A. and being in the company of W.A. became so stressful for C.R. that he would throw up his food if W.A. joined them at the dinner table. C.R. would then be grounded and “stuck to his room for days”. She was incarcerated on a number of occasions while she was living with W.A. and when she returned home after spending time in jail she would hear complaints from her boys about W.A.’s treatment of them.

[25] R.R. admitted that she was not a good mother to her boys during this time period; as she voiced it “How much of a parent can you be when you are on drugs?” She admitted that although she also beat her boys she would not lock her boys in their rooms; W.A. would lock them in by tying the doors shut for a number of days.

[26] R.R. denied that she knew that W.A. was engaging her son C.R. in sexual activities.

[27] R.R. was directed to her criminal record and agreed that the first time she received an intermittent sentence was in January, 1998, a short time after she and W.A. stopped living together. She stated that W.A.’s daughter B.J. lived with them on what she described as an “in and out” basis for about a one and a half years.

Testimony of P.R.

[28] P.R. is the younger brother of C.R.. He was born on February […], 1987 and he is now 25 years old.

[29] P.R. testified that W.A. lived with them from the earliest time he can remember until he was about nine years old. He recalled that W.A.’s daughter also lived with them “on and off” for what he described as “short periods of time”.

[30] According to P.R., W.A. would “swear and hit us all the time”. He recalls being hit several times a week. W.A. also hit his mother. He recalls that there was pornography in the house, including Playboy magazines and video cases with triple X marked on them. P.R. recalls that on four or five occasions W.A. allowed them to view the magazines. He was about five or six years old at the time. He did not witness any sexual assaults in the home.

[31] P.R. recalls that there were parties at the house, with drugs on the table. There was alcohol present all the time. Both W.A. and his mother R.R. used drugs and alcohol. W.A. continued to use drugs throughout the time he lived with them, until he left the home.

[32] In cross examination, P.R. admitted that he knew that his brother C.R. sold drugs but maintained that he no longer does. He also agreed that C.R. has a dislike of W.A. and he stated that this was because of what he termed “things in the past”.

Examination of the Accused, W.A.

[33] W.A. is 48 years old. He agreed that he lived with R.R. and her two boys for about seven years, until 1997. He denied that he had touched C.R. sexually, or that he had ever touched any part of his genitalia.

[34] According to W.A., his daughter B.J. lived with them for a period of three years during the time he lived with the R.s. B.J. is about three years older than C.R.. W.A. insisted that at no time, not even one instance during the seven years he lived with R.R. was he ever alone with C.R.. He maintained that P.R. did not accompany his mother to Bingo, and that R.R. did not serve an intermittent jail term during this time period. At all times, B.J., P.R. or R.R. were present and awake when he was in the house with C.R.. In fact, he maintained that he had never been alone with C.R. in one room of the house...there was always another person in the room when he was with C.R.. Therefore there had never been an opportunity for him to engage in sexual activities with C.R..

[35] W.A. agreed that he disciplined C.R. and P.R., but this was limited to sending them to their rooms or confining them to the yard...it did not include physical discipline.

[36] W.A. agreed that he also admitted that he has a lengthy criminal record, which includes offences from 1981 to 2008, and that his record includes a number of convictions for assault, for theft and for drug related offences.

[37] W.A. admitted that he has had a problem with drugs and alcohol for around 30 years. He testified that he started drinking at age 15 and alcohol started to become a problem when he was 18 or 19 years old. He agreed that alcohol and drugs cause him to make bad decisions and also have a detrimental effect on his memory. He agreed that his drug and alcohol use has had a negative effect on his relationships and contributed to his assault convictions. His drugs of choice are marijuana and morphine and he has dealt in these drugs for many years as well. He stated that he has been “clean” and on a methadone program for four years now, although in cross examination he admitted that he used cocaine as recently as three months ago and alcohol three weeks ago. When he was confronted with the inconsistency of saying he had been “clean” for four years he stated that by the term clean he meant clean of morphine, not all drugs and alcohol. He also agreed that he and R.R. consumed drugs during the years they lived together, and that this had a negative effect on their ability to parent.

[38] Notwithstanding the fact that he agreed that the use of alcohol and drugs has caused him to make poor decisions, W.A. maintained that their use had not caused him to make what he termed “poor moral choices” such as sexually assaulting children. Also, although the use of drugs and alcohol contributed to him receiving convictions for violent offences such as assault, he did not believe that their use contributed to him using violence in the home.

[39] W.A. stated that his daughter B.J., who was born on August […], 1983, lived with him and the R.s for three years. He stated that she came to live with them because she wouldn’t listen to her mother. He thought she was 14 to 16 years old at the time. He testified that B.J.’s presence in the house would have made it impossible for him to be alone with C.R.. When it was pointed out that B.J. turned 14 years of age in 1997, which was the year he left the R. house, he explained that he did not have a very good memory and he suggested that she may have been younger.

[40] W.A. testified about an incident which occurred in C.A.’s apartment shortly before he was charged. He stated that C.R. was present, as was W.A.’s girlfriend, L.G., and an older gentleman, B.. He stated that he heard a cling of something dropping on the floor, and he knew from the sound that it was a knife. He turned towards C.R. and he saw C.R. doing something with his right foot. When W.A. got up to leave, C.R. called him a goof and a rat and tried to come after him with a knife as he was leaving. W.A. believes that C.R. wanted to use the knife to kill him. His sister C.A. and L.G. pulled C.R. back and W.A., who had his own knife, went outside and waited for C.R.. A while later L.G. came outside and told him that C.R. would not be coming outside.

[41] W.A. stated that initially after he and R.R. broke up and he left the R. home he did not have a bad relationship with C.R. ...in fact there were occasions when he would see C.R. at C.A.’s house and they would smoke marijuana together. It was not until C.R. accused him of looking at his girlfriend, some time prior to the knife incident, that the relationship turned ugly. After that C.R. started calling him names like goof and rat hound. W.A. also surmised that C.R. was angry at him because he knew that he did not like C.R. selling drugs to his sister.

Testimony of C.A.

[42] C.A. is W.A.’s sister and she is referred to as Aunt C.A. by C.R.. C.A. has a criminal record with numerous criminal convictions between 1980 and 1999 for a variety of offences including Mischief, Carrying a Concealed Weapon, Theft, Possession of Stolen Property, Failing to Comply with a Recognizance, Causing a Disturbance and Assault. C.A. admitted that most of the convictions were related to her past use of drugs. She stated that she was no longer consuming drugs, except for what she termed the “odd joint here and there”.

[43] C.A. testified that she had always enjoyed a good relationship with C.R.. They would “do dope” together and C.R. would provide her with whatever drugs she wanted. She explained that C.R. would “spot” the drugs to her. By this she meant that he would provide her with the drugs and she would pay him later when her disability cheque arrived.

[44] With respect to the knife incident, C.A. testified that the knife which she saw in C.R.’s hand was one of her kitchen knives. She was not aware at the time that he had taken it from her kitchen. She stated that it came out of C.R.’s sleeve following a verbal altercation between C.R. and her brother which had taken place in her apartment and as her brother was about to leave. She stated that when she saw that C.R. was going to follow her brother out of her apartment she grabbed him around the waist and pulled him back.

[45] When C.A. was asked if she knew why C.R. was so angry at her brother she replied that she was aware that some time prior to this verbal altercation W.A. had met C.R. and C.R.’s girlfriend on the street and had said hello to his girlfriend and he had smiled at her and this outraged C.R.. C.R. later said to her that there was no way that W.A. was going to get near his girlfriend and that he had almost given her brother a “shot in the head”.

Credibility Findings

[46] In assessing the evidence of W.A., I am guided by the principles set out in R. v. W.(D.), 1991 93 (SCC), [1991] 1 S.C.R. 742. If I believe the evidence of W.A., he must be acquitted; alternatively if W.A.’s evidence raises a reasonable doubt in my mind he must be acquitted; even if I reject the evidence of W.A., I must still be satisfied on the evidence I do accept that the Crown has proved its case beyond a reasonable doubt.

[47] With respect to W.A.’s evidence, I find that much of it must be rejected for the reasons which follow.

[48] W.A. was adamant that he was never alone with C.R., not even once during the seven years he lived with the R.s. In support of his position, he asks the court to accept his evidence that his daughter B.J. lived with them continuously for a period of three years, and she or P.R. were always present when R.R. was not home. His evidence in this regard is inconsistent with the evidence of R.R., who testified that B.J. lived with them on an “in and out” basis for a period of about one-and-a-half years. It is also inconsistent with the evidence of P.R. whose recollection is that B.J. lived with them “on and off” for short periods of time.

[49] I found R.R. and P.R. to be highly credible witnesses. In stark contrast to W.A., R.R. candidly and publically admitted in open court facts and transgressions which any parent would have great difficulty in admitting. She confessed that during the time period she had lived with W.A. she had been a bad parent...she had openly consumed alcohol and drugs in front of her sons...she had been convicted of various offences for which she had been incarcerated...she had beaten her children physically, she had stood by without protest while W.A. beat her sons and locked them in their rooms for days at a time...she had shared pornography with her sons. What impressed me the most about her testimony was that she did not attempt to deflect any of the blame for her actions or inaction on W.A....she accepted full responsibility. Wherever her testimony is inconsistent with that of W.A., I have chosen to accept her evidence, as opposed to W.A.’s.

[50] I found P.R. to be a highly credible witness as well. It cannot be argued (and in fact it was not argued by the defence) that P.R. was somehow or another conscripted by his older brother to shape his testimony so that it supported the testimony of C.R.. If this were the case, I expect he would have testified that he was also molested by W.A., and thereby become eligible for a Criminal Injuries Compensation award which defence counsel suggests is one of the things which has motivated C.R. to bring his complaint to the attention of the authorities. P.R. candidly admitted that he had not engaged in any sexual touching with W.A....this answer did not advance his brother’s case. In addition, although P.R. referred to the fact that his brother had considerable anger towards W.A., I did not detect a strong element of anger by P.R. towards W.A. in his responses. He seems to have come to terms with what can only be described as a horrible childhood. Wherever the evidence of P.R. conflicts with the testimony of W.A., I accept that testimony of P.R..

[51] I accept therefore that B.J. lived with the R.s on an “on and off” basis for no more than one-and- a- half years. I find that even if I accept the evidence that B.J. lived with the R.s continuously for three years, I cannot accept W.A.’s testimony that he was never home alone with C.R.. W.A. lived with the R.s for seven years. If B.J. had lived with them for three years, this still would have left four years when the only two children at home would have been C.R. and P.R.. Also B.J. is several years older than C.R.. She would have been in a different class in school and would have had her own group of friends, friends she would have spent time with away from the R. household. In fact, given the picture which emerged at trial about the life these children lived in this household I expect B.J. would have seized any and every opportunity to spend time away from this home and with her friends. I note as well that P.R. is two years younger than C.R.. I accept that there would have been times when he would have been asleep and C.R. was still awake.

[52] R.R.’s criminal record was filed as an exhibit. The record indicates that she was incarcerated on several occasions during the time she and W.A. lived together. When it was suggested to W.A. that he would have had an increased opportunity to spend time alone with C.R. during those times when R.R. was in custody, he denied that this was case and he continued to insist that there were always friends or other children in the home, and at no time had he ever been alone with C.R..

[53] C.R. testified that he recalled that on some occasions the incidents of sexual touching occurred while his mother “served weekends”. In fact, although she served several relatively short sentences during the time she lived with W.A., she did not serve a weekend or intermittent sentence until the year following W.A.’s departure. These incidents occurred more than 15 years ago and C.R. was a child at the time and I can understand that he could easily confuse an intermittent sentence with a short custodial term. In the circumstances I am not prepared to find that this inconsistency reflects adversely on his credibility.

[54] In conclusion, I reject the argument by the defence that W.A. was never alone with C.R., in the same house or in the same room, during the seven years he lived with the R.s. This simply defies common sense. I find that W.A. had the opportunity to engage in sexual acts with young C.R., and I find that W.A.’s insistence that he never spent time with C.R. alone during the entire seven year period to reflect negatively on his credibility in these proceedings.

[55] W.A. testified that he never hit C.R. and P.R. during the seven years he lived with the R.s. Discipline consisted of sending them to their rooms or confining them to the yard. He also denies that he exposed the boys to pornography, or that he used violence against R.R.. This evidence is in contrast to the evidence of R.R., P.R. and C.R.. R.R. admitted that both she and W.A. used violence against each other and the boys, and provided them with the opportunity to view pornographic materials. For the reasons I have already stated, I accept the evidence of R.R. where it conflicts with that of W.A.. Although these issues of violence in the home do not bear directly on the issues before the court, I find that W.A.’s response thereto reflect negatively on his overall credibility in these proceedings.

[56] In conclusion, I find W.A. to be a completely untrustworthy individual. There is no doubt in my mind that he will say anything, true or not, as long as believes it will advance his position before the court. In the circumstances, his evidence cannot and does not raise a doubt in my mind as to what transpired between him and young C.R..

[57] The issue before me becomes whether C.R.’s evidence is sufficiently reliable upon which to found convictions.

C.R.'s Motives

[58] The Defence argues that C.R. has fabricated these allegations against W.A. with a view to securing an award from the Criminal Injuries Compensation Board.

[59] C.R. testified that he has not applied for an award from the Board and has no intention of doing so. He admitted that he was aware of the fact that the Board exists and that the purpose of the Board is to provide damage awards to victims of crime. He even suggested that an award for the type of crime committed against him would be in the range of $10,000.00.

[60] When defence counsel suggested to C.R. that he was motivated by monetary gain in bringing this complaint he replied that $10,000.00 could not come close to compensating him for the pain which had been caused to him by W.A.. He indicated that bringing these complaints to the police was part of a process which was helping him to move ahead in his life, and was intended to help rid him of the emotional pain and anger which was interfering with his personal relationships. He stated that he had walked away from his old life, a life which included drinking to excess and taking drugs, about eight months to a year ago. He indicated that as part of this process of moving ahead, he has secured a job which pays him $45.00 an hour, that he was not in need of money and it was a lot easier for him to earn $10,000.00 than to obtain money by going through the Board.

[61] C.R. presented on the witness stand as an intelligent, sincere, confident and an articulate young man. It is hard to reconcile the young man who gave evidence in court with the kind of person one would expect to emerge from the background in which he was raised. Based on his presentation in court, I am inclined to believe that he is being sincere in his attempt to move his life forward, and that he is achieving a measure of success.

[62] In my view, there is no basis on which to find that C.R. has fabricated this complaint in order to secure a Criminal Injuries Compensation Board award. This suggestion by the defence is based on nothing more than speculation. In the circumstances, I do not accept this submission.

[63] W.A., C.R. and C.A. all agree that there was a verbal altercation between W.A. and C.R. at C.A.’s residence some time prior to the day C.R. attended the police station and made his complaint.

[64] The defence suggests that C.R. was motivated to bring this complaint to the police because he was afraid that W.A. would file a complaint against him for threatening him with a knife.

[65] The evidence with respect to the existence of the knife is contradictory. W.A. testified that he heard what he described as a “cling” and then saw C.R. doing something with his right foot and ankle. Thereafter, as he was about to leave, C.R. called him a rat and a goof and started to come after him with a knife. The suggestion by W.A. is that C.R. had a knife concealed in his boot or in the area of his ankle.

[66] W.A.’s sister C.A. stated that she saw C.R. pull the knife out of his sleeve, as he followed W.A. out the door. She stated that the knife belonged to her, and that the knife had been taken from her kitchen. This would suggest that C.R. did not arrive at the residence with a knife concealed in the area of his ankle.

[67] C.R. denies that he pulled out a knife during this argument.

[68] The evidence was not clear as to whether the altercation preceded the visit to the police station by a matter of days or weeks.

[69] I am not convinced that there was a knife involved during this altercation, but if there was I fail to see how this fact could have motivated C.R. to bring a fictitious complaint to police about a childhood sexual assault.

[70] Certainly, if C.R. needed to invent an excuse or a reason for pulling a knife on W.A. , he would have first waited to see whether W.A. filed a complaint with the police. The circumstances were such that there would have been considerable uncertainty in C.R.’ mind as to whether W.A. would even bring a complaint to the police. W.A. had been involved in many assaults in his life and it was quite possible, and probably likely, that W.A. would take matters into his own hands. In fact, W.A. testified that he carried his own knife with him at the time and he had waited in the parking lot for C.R. to leave the apartment. In the circumstances, I would expect that, at most, C.R. would have used the sexual assault allegation as a shield, and not as a sword, and to be used only in the event W.A. brought a complaint to the police.

[71] In my view, the suggestion by the defence that C.R. invented an allegation of sexual impropriety against W.A. in order to deflect blame from him in relation to this alleged knife incident is unreasonable and cannot be supported on the basis of common sense or normal human behaviour. I therefore reject the suggestion by the defence.

[72] It was no secret that W.A. did not like the fact that C.R. sold drugs to C.A.. C.R. admitted that he sold drugs to C.A., and that they did drugs together.

[73] The defence suggests that C.R. fabricated this complaint of sexual impropriety in order to drive a wedge between W.A. and C.A.. Presumably, this would make it easier for him to continue selling drugs to C.A..

[74] I reject this suggestion for several reasons. Firstly, assuming that C.R. was quite active in drug trafficking at the time, there is no evidence that C.A. was a major consumer or purchaser of drugs. The evidence is that C.R. would spot the drugs to C.A., they would use the drugs together and she would pay him for the drugs when she had the money. The evidence is that C.A.’s sole source of income is a monthly cheque from ODSP. Selling and sharing drugs with his Aunt C.A. could hardly have been a profitable undertaking for C.R.. I would think that this kind of arrangement would hardly justify the creative energy and commitment which was required to fabricate and bring a complaint of this nature to the attention of the police.

[75] Secondly, notwithstanding the fact that W.A. did not like the fact that C.R. sold drugs to his sister, there is no evidence that this discouraged or prevented C.R. and C.A. from engaging in drug transactions or consuming drugs together.

[76] Thirdly, C.R. testified that his decision to expose W.A.’s conduct to the police was the first step he was taking in turning his own life around. The uncontradicted evidence before the court is that he has in fact followed through with this commitment. He has stopped using drugs and alcohol and he is no longer selling drugs to C.A.. His actions contradict the suggestion by the defence that he was motivated to bring this complaint so he could sell drugs to C.A.. Accordingly, I reject this suggestion.

[77] The defence also suggested that C.R. invented these allegations against W.A. so he would have a convenient excuse to explain his abusive behaviour towards his girlfriend, a girlfriend who had told him to leave and straighten out his life.

[78] In my view, this suggestion is inconsistent with C.R.’s conduct following the time he made this complaint to the police. C.R. testified that in his mind he was only taking the first step as part of a longer process which he hoped would help him to get better, and any reconciliation with his girlfriend would have to wait until he was much further along in this process. He has in fact followed through and has made fundamental changes in his life, and at this time, he has still not reconciled with his girlfriend.

C.R.'s Evidence...Assessment

[79] C.R. testified that after W.A. moved out of the R. home he was left with a deep seated anger and resentment towards W.A., an anger which intensified as he grew older. He testified that initially he tried to bury this anger and to “pound the memories out of his head” as he described it, but eventually he came to the conclusion that he was unable to do so.

[80] P.R. observed that his brother C.R., as he termed it, “did not like” W.A.. He explained that he understood that his brother’s anger was based on what he termed “things in the past”.

[81] C.R.’s anger against W.A. is corroborated by C.A.. She testified that C.R. had been expressing considerable anger against her brother, an anger which had recently intensified. The only possible reason she could provide for the existence of this anger was that her brother had said hi and had smiled at C.R.’s girlfriend.

[82] W.A. testified that initially after leaving the R. household his relationship with C.R. was not bad and he did not have any problems with him. He stated that his problems with C.R. started in the last couple of years.

[83] According to both W.A. and C.A., C.R.’s anger was on the verge of being out of control during the altercation at C.A.’s residence, and it prompted C.R. to call W.A. a child molester and a goof. I note that the term “goof” is a prison term which is used in reference to a child molester.

[84] In my view, C.R.’s increasing level of anger against W.A. cannot be explained only by the fact that W.A. may have cast an admiring glance at his girlfriend. It is entirely consistent with someone who is going through the process of coming to terms with the fact that he was abused and taken advantage of, and is now in a place in his life where he can no longer hide from his demons.

[85] The fact that C.R. chose to use the terms “goof” and “child molester” during his spontaneous outburst of anger against W.A. during the altercation at C.A.’s house supports a finding that the source of his anger was rooted in the alleged incidents of childhood sexual abuse.

[86] C.R. presented his testimony in a direct and straightforward manner. He readily admitted that he had been abusive towards to his girlfriend and he impressed me with his desire and dedication to change his life.

[87] C.R.’s testimony contained the requisite elements for me to find that it was credible and reliable. It was consistent; both internally and in the way it corresponded to normal and expected human behaviour. Although P.R. and R.R. were not witnesses to any incidents of sexual touching between W.A. and C.R., and therefore they could not corroborate directly that these incidents took place, the balance of C.R.’ testimony was corroborated by the evidence of P.R. and R.R., witnesses whose evidence I have found to be reliable and credible.

[88] After considering the evidence before the court, I accept that C.R. was telling the truth when he testified that W.A. engaged him in sexual acts when he was a child, and I accept that the Crown has proven that these acts occurred beyond a reasonable doubt.

Decision

[89] Count one in the indictment is a charge of Sexual Interference, contrary to Section 151>(a) of the Criminal Code. In order to find W.A. guilty of this count I must find that W.A. touched C.R. for a sexual purpose when he was under the age of 14. C.R. testified that W.A. performed fellatio on him between January 1, 1992 and January 31, 1996, and that he penetrated him anally. This was when C.R. was under the age of age of 14. I have accepted this evidence and I find W.A. guilty of this count.

[90] Count two in the indictment is a charge that W.A. invited C.R. to touch him, for a sexual purpose, contrary to Section 152 of the Criminal Code. I have accepted C.R.’ evidence that W.A. asked him to touch his penis, and that this occurred between January 1, 1992 and January 31, 1996, when C.R. was under the age of 14. Accordingly, I find W.A. guilty of this count.

[91] Count three is a charge that W.A. sexually assaulted C.R. on numerous occasions between January 1, 1992 and January 31, 1996, contrary to section 271 of the Criminal Code. In order to find W.A. guilty of this count, I must find that W.A. intentionally applied force to C.R., for a sexual purpose, in circumstances where W.A. knew that C.R. did not consent to this force. I have accepted the evidence of C.R. that W.A. engaged in anal intercourse with him when he was a child, and that this hurt him. I find W.A. guilty of this count as well.

E. J. Koke J.

Released: May 28, 2012

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

W.A.

REASONS FOR JUDGMENT

E.J. Koke J.

Released: May 28, 2012