ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 11-30000754-0000
DATE: 20121005

B E T W E E N:

HER MAJESTY THE QUEEN - and - G.V.

M. Savage , for the Crown
D. Johnson , for the Accused

HEARD: September 25-28, October 1, 2012

G.R. Strathy J. (orally)

[ 1 ] The accused, G.V., pleaded not guilty to counts of sexual assault and sexual exploitation [1] of his daughter, C. V. The offences are alleged to have occurred between September 1, 2008 and September 17, 2010.

Overview

[ 2 ] The accused came to Canada from the Philippines in 1996 when he was 34. C., who was born in the Philippines, came to Canada in 2002, when she was 7 or 8. Her birth mother remained in the Philippines. Since coming to Canada, she has thought of her father’s wife, L. V., as her mother.

[ 3 ] C. was 17 at the time of trial and between 13 and 15 at the time the events are alleged to have occurred at the family home at [address deleted] in Scarborough. The house had a main floor and a basement. The main floor had three bedrooms, a living room, a combined kitchen and dining room, and a washroom. The bedrooms can be described as the master bedroom, C.’s room and G.A.’s room. [2] C.’s room and G.A.’s room each had a king bed. The master bedroom had a queen bed. There was a self-contained two bedroom apartment in the basement.

[ 4 ] The occupants of the house varied from time to time, but the key members of the household throughout the material time were: (a) G.V.; (b) L. V.; (c) C. V.; (d) G.A., who was between 14 and 16 at the time and who had lived with the V. family since he was about 5; and (e) X. V., age 4 to 6, the daughter of C.’s older sister G.

[ 5 ] The complainant alleged four different sexual assaults, one of which allegedly occurred on multiple occasions. To provide context for the evidence, I will briefly outline these allegations.

The Master Bedroom Incident

[ 6 ] C. described an incident in the master bedroom when she was in grade 8. She said that she had been up late and her father told her to come to sleep with him in the master bedroom, because he had not gotten to know her when she was a little girl living apart from him in the Philippines. She testified that she was sleeping on the right side of the bed. Her father was in the middle and X. was sleeping on the left. She woke up in the early morning, around 4:00 a.m. Her father had his hand in her pyjama pants and under her underwear. He was rubbing her vagina. He had placed his other hand over one of her hands and was moving her hand up and down on his penis. C. did not say anything to her father and he eventually stopped. She did not think that he knew that she was awake. X. remained asleep during this time.

[ 7 ] C. testified that that the morning after this incident her father took her aside in the living room, while everyone else was downstairs, hugged and cuddled her on his lap, and said that he was sorry that he had gone under her pants, or words to that effect.

The Incidents in C.’s Bedroom

[ 8 ] C. testified that at some stage her father began to sleep in her bedroom, because he had hurt his arm and he found her bed more comfortable. Although she was not happy with this arrangement, she felt that she had to accept it. Initially, her father simply cuddled with her in bed, but at some time he began to touch her vagina, both over her clothes and under her clothes. Sometimes, he would also rub her chest. She testified that she would be half asleep, but would wake up to this occurring. When asked what she did when she woke up, she said that she allowed the touching to continue.

[ 9 ] She testified that she did not like sleeping in the same bed with her father and put pillows between them to separate them. She asked for her own bed, but nothing was done to accommodate this request. Sometimes, she slept on the living room sofa.

[ 10 ] C. said that in some weeks the sexual touching did not occur very often and in other weeks it happened as frequently as three or four times a week. She testified that the last incident of this nature was on the night of September 16 – 17, 2010, the night before she reported her father’s conduct to the authorities on September 17, 2010.

The Living Room Incident

[ 11 ] C. testified that on one occasion – she could not recall exactly when – she had moved from her bedroom to the sofa with her blanket and pillow. After about 30 or 40 minutes, her father came out to the sofa and rubbed her stomach and legs. She got mad with him and asked him what he was doing. He replied that he just wanted to say good night to her.

The Kitchen Incident

[ 12 ] C. testified that one evening when she was in grade 9, she was in the kitchen cooking eggs for herself. She did not recall where the other members of the household were at the time. Her father came up and rubbed her back and then rubbed his “private area on my bottom”. She asked him if he wanted to eat and he said to her, “Hold on, let me imagine”. To end this activity, she told him that she had to use the bathroom.

Reporting to the authorities

[ 13 ] On September 17, 2010, C. discussed the incident of the night before with her friend, S.H., to whom she had previously confided her allegations of abuse by her father. She then told her story to a guidance teacher at school, because she wanted to get it off her chest. She did not appreciate that the police would become involved. Her father was arrested the same day and she was taken under the care of the Children’s Aid Society (C.A.S.) and placed in a foster home, where she remains to this day.

The Evidence

[ 14 ] I will now turn to a more detailed examination of the evidence. There will be further consideration of specific aspects of the evidence when I assess the evidence of the witnesses.

Evidence of Mr. V.

[ 15 ] Mr. V. denied all the alleged incidents.

[ 16 ] He testified that he and his wife L. worked at the [redacted] factory as general labourers between August 2002 and August 2009, when they were laid off. They were always on night shifts that ended at 7:00 a.m.

[ 17 ] Mr. V. denied the allegation concerning the incident in the master bedroom and said that he never slept in the same bed with both C. and X. He also denied that he apologized to C. the next day.

[ 18 ] After they were laid off from [redacted] in August, 2009, Mr. and Mrs. V. went on unemployment insurance. It was not until April 19, 2010 that they both found new employment, at the [redacted] Factory, working a shift that ended at 1:00 a.m.

[ 19 ] In September, 2009, about two weeks after he was laid off from work, Mr. V. began to experience pain in his right arm and shoulder. It was uncomfortable in bed. He tried sleeping in various locations, but he found the bed in C.’s room most comfortable. It had a sag in the middle and he was able to surround himself with pillows to make himself more comfortable. He testified that the doctors diagnosed a torn ligament or rotator cuff problem, which was addressed by cortisone injections in April 2010 and surgically in 2011.

[ 20 ] Mr. V. testified that he initially slept in C.’s bed from October 2009 to January 2010. During this time, C. was not sleeping in her own bed, because she and a nanny were sleeping in a room in the basement. In January 2010, the basement apartment was rented out and C. and the nanny slept together in C.’s room. When the nanny left, in March 2010, Mr. V. resumed sleeping in C.’s bedroom.

[ 21 ] Mr. V. testified that after he and his wife got work at the [redacted] factory in April 2010, they would return home from their night shift at about 2:00 a.m. C. would be sleeping in the master bedroom with X. After getting home, he would change, use the washroom, and go to sleep in the bed in C.’s room. He wanted to sleep alone in the bed, he said, so that no one would bump into him or hit his sore arm. His wife slept with X. in the master bedroom.

[ 22 ] He said that after he and his wife came home, C. sometimes slept in the same bed as he did, in her bedroom and sometimes she slept on the sofa in the living room. He testified that he “begged” and “pleaded” with her to sleep in the master bedroom with her stepmother and X. He denied that he touched C. inappropriately while sleeping with her in her bed and said that there was nothing wrong in Filipino culture with a father sleeping in the same bed as his daughter. His evidence, which I will discuss in more detail below, was that there were very few occasions when C. actually slept in the bed with him.

[ 23 ] Mr. V. testified that on the night before he was arrested, he and his wife got home from work at the usual time of about 2:00 a.m. and C. and X. were sleeping in the master bedroom. He went to sleep as usual in C.’s room. His wife went to sleep in the master bedroom with X. At some point, C. came to sleep in her bed, where he was sleeping.

[ 24 ] Mr. V. also denied the kitchen incident. He stated that he could not do such a thing to his daughter, and added “[T]hey are not even allowed to cook”.

[ 25 ] While he was not asked specifically about the living room incident, he made a general denial of all the complainant’s allegations of improper touching.

Evidence of C. V.

[ 26 ] I have set out above the substance of C.’s evidence with respect to the charges. At the outset of the trial, I made a ruling pursuant to s. 486.2(1) of the Criminal Code , permitting her to give her evidence by closed circuit television.

[ 27 ] C.’s version of the incidents of abuse was not significantly challenged on her cross-examination. She acknowledged that she was not sure when the master bedroom incident took place. When she was asked where her stepmother L. was when the master bedroom incident was supposed to have taken place, she replied that since she had slept in the master bedroom her stepmother could not have been home. It was not suggested to her that this incident never took place, that it was fabricated, that it was physically impossible or that she could have dreamed it, as was subsequently argued by defence counsel.

[ 28 ] With respect to the incidents in C.’s bedroom, she acknowledged that she had indicated at one time that the incident the night before her father’s arrest had occurred around 11:00 p.m. In her evidence at trial, she stated that it was “almost like midnight, around there”. When defence counsel pointed out that she had initially said at trial that the incident had occurred “probably the night before or two nights before”, she acknowledged that in her interview with the police on September 17, 2010, she had said that the incident had occurred “last night”. She agreed that her recollection at the time the statement was taken would have been better than it was at trial.

[ 29 ] She also acknowledged that she was not sure whether her parents had the same work shift on the night of September 16-17, 2010. She acknowledged, however, that when they did have the same shift, she would be sleeping with X. in the master bedroom and said that when her parents came home from work she would wake up and go to her bedroom, her stepmother would stay in the master bedroom with X. and her father would change and go to her bedroom.

[ 30 ] C. described her relationship with her stepmother L. as “uncomfortable”. She said that she was “scared and nervous” around her and she was always in trouble. She said that she was not allowed boyfriends and that on one occasion, when she told her stepmother that she had a boyfriend and had invited him to visit, her father yelled at her and hit her in the stomach and forehead. She was not challenged on this evidence. She testified in cross-examination that once, when she was in grade 6 or 7, her stepmother had slapped her head. She told someone in the school office about this and the C.A.S. was called. L. V. was not charged, but the C.A.S. started to come to the house periodically to check up on things. C. was not cross-examined on this evidence.

[ 31 ] In cross-examination, C. admitted that she was under pressure from her parents about her failing grades and her school attendance. It was suggested to her that she “wanted out” of the house. She disagreed with that suggestion and said that, while she hated the way her parents treated her, she did not want to leave the house. She denied that she had told G.A. that she wanted her own place.

[ 32 ] She also admitted that on September 17, 2010, the day she spoke to her guidance teacher and the police about her allegations, she had taken a pill that had been given to her by her friend S. She did not know what the pill was for, but was told that it would make her feel “more awake”. She did not remember that it had any effect.

[ 33 ] C. also admitted on cross-examination that she had occasionally stolen things from stores and from other people. She also admitted that she had lied to her parents about her school attendance and where she had been at times. She admitted that she had once called her school and pretended to be an adult in order to get out of school, and that she had left her backpack at summer school once to pretend that she was at school when she was not. She admitted that she had told S. to lie to cover up her theft of an iPod. She denied other allegations of theft and lying.

[ 34 ] C. testified on cross examination that when she discussed her story with S. on September 17, 2010 she did not know that she would be talking to the police and did not know that her father would be arrested and put into jail. She said that, because of her previous experience when her stepmother mother had slapped her, she thought that the C.A.S. would get involved and would speak to her parents. She did not believe that there would be criminal charges against her father.

[ 35 ] Following her father’s arrest, C. was removed from the family home and placed in the care of the C.A.S. There were family court proceedings in which her stepmother attempted, unsuccessfully, to obtain custody of C. On cross-examination, Mr. Johnson on behalf of Mr. V. put to C. certain communications that she had made to her stepmother following her father’s arrest. These messages expressed her unhappiness at being separated from her family and included expressions of love for her father.

[ 36 ] On December 23, 2010, two days before Christmas, C. texted her stepmother asking her to show her father the message: “Merry Christmas papa! I love you so very much! I’ll fix this problem. I love you.” She said that the comment about fixing the “problem” referred to her desire to go home and the family court proceedings.

[ 37 ] There was evidence as well that on the day before she gave her evidence at this trial, C. texted her stepmother: “Hi mama, its me your neneng [daughter] mama. I want you to know that no matter what happens tomorrow, I hope everything goes well. Mama, I really want you to know that I went through a lot on my own. I’m alone.” She explained that she sent the message because she did not want her family to hate her or to avoid her as a result of the court proceedings.

[ 38 ] When asked by Crown counsel about her feelings about going home, C. replied: “Most days I feel all by myself and I really do miss my family”.

Evidence of G.A.

[ 39 ] As I have noted, G.A., who was 18 at the time of trial and between 14 and 16 at the time of the alleged incidents, had lived with the V. family since he was 5 years old. He regarded G. and L. V. as his father and mother. He was a year ahead of C. in school, but he described their relationship as very close.

[ 40 ] He testified that when Mr. V. began to sleep in C.’s room, due to problems with his shoulder, there was no one else sleeping in the room. This would appear to have been the time when C. and the nanny slept in the basement. He testified that he observed many occasions when Mr. V. and C. both slept in C.’s bedroom. He said that he was the first one in the household to wake up in the mornings, usually around 6:30. He would have a shower and when he was finished, about 6:45, he went to wake up C., presumably for school. He would check to see whether she was asleep in her room, and if she was not in her room he would look for her on the sofa in the living room.

[ 41 ] He said that about three or four mornings a week, he saw that Mr. V. and C. were sleeping in the same bed in C.’s room. He observed that each was covered with their own blanket, there were lots of pillows on the bed, and there was a long pillow dividing the bed down the middle.

[ 42 ] G.A. also testified that on some nights Mr. V. watched TV on the sofa in the living room or fell asleep on the sofa. This occurred between midnight and 2:00 a.m. Mr. V. would then either spend time on the computer or go to C.’s room to sleep. When this happened, C. either remained in her bedroom or came out to sleep on the sofa.

[ 43 ] He was asked whether he and C. ever did any cooking and he replied that they cooked eggs and sausages and they had their own rice cooker and cooked rice.

[ 44 ] He also testified that there were times when C. took clothes from him and took money from him, but he did not describe when this occurred or how much money she took. He was asked on cross examination whether C. ever told him about how she felt living in the house and he said that at some point, she did not want to be at the house. She would get in trouble for doing poorly at school, or being late coming home or not doing chores and when those things happened, she did not want to be at home. She never indicated, however, that she “wanted out”.

Evidence of S. H.

[ 45 ] By agreement between counsel, an extract from the evidence given at the preliminary hearing by C.’s friend, S. H., was admitted on consent. Ms. H. testified that on some occasion – she was not sure whether it was the day C. spoke to the police or not, she gave C. a friend’s ADHD pill. She did not know what the purpose of the pill was, but said that it was not a “stress pill”.

Applicable Principles

[ 46 ] Before reviewing some parts of the evidence in more detail, I remind myself of the fundamental principle that Mr. V. is presumed to be innocent of the charges against him unless and until the Crown proves the constituent elements of each offence beyond a reasonable doubt. The entire burden of proof is on the Crown. It never shifts, and there is no obligation on Mr. V. to prove anything.

[ 47 ] In a case such as this, where the credibility of the accused and the complainant is a central issue, and where the fundamental question is whether alleged touching of a sexual nature ever took place, it is important to also remind myself that a criminal trial is not a credibility contest between two witnesses. It is not a question of whether G.V. or C. V. is more likely telling the truth. Such an approach would undermine the presumption of innocence and the standard of proof beyond a reasonable doubt.

[ 48 ] Since Mr. V. testified, I am required to apply the principles set out by the Supreme Court of Canada in R. v. W.(D.) , 1991 SCC , [1991] 1 S.C.R. 742, namely:

(a) if I believe Mr. V.’s evidence, I must find him not guilty;

(b) if I do not believe Mr. V.’s evidence, but it leaves me with reasonable doubt about his guilt, I must find him not guilty;

(c) if I am not left in doubt by Mr. V.’s evidence, I must ask myself whether, on the basis of the evidence I do accept, I am convinced beyond a reasonable doubt by that evidence of his guilt.

[ 49 ] In applying that test, I am not bound by this strict formulaic structure, but must keep in mind the fundamental principle that the burden never shifts from the Crown to prove its case beyond a reasonable doubt.

[ 50 ] In considering the evidence, I am entitled to believe all, some, or none of each witness's evidence. Further, I am entitled to consider Mr. V.’s evidence in the context of all of the other evidence, including the evidence of C. V. and in so doing, compare the evidence of each of them. W.(D.) prohibits me from concluding that the Crown has met it burden simply because I might decide to prefer C.’s evidence to the evidence of her father. As I am faced with contradictory versions of what happened in this case, I repeat that if, after considering all of the evidence as a whole I am not convinced of guilt beyond a reasonable doubt, I must acquit.

[ 51 ] I should also note, however, that the great majority of sexual assault cases such as this turn on the evidence of the two central witnesses – the complainant and the accused: see R. v. M (S.C.) , [1997] O.J. No. 1624 (C.A.) at para. 3 . A verdict of guilty may, in appropriate cases, and after the application of the principles expressed in W.(D.) , be safely founded on the evidence of a single witness, regardless of the offence or the offences charged: The Queen v. G.(A.) , [2001] 1 S.C.R. 439 at 453-4 ; Vetrovec v. The Queen (1982), 67 C.C.C. (2d) 1 (S.C.C.) at 8.

[ 52 ] Finally, as urged by counsel for Mr. V., I remind myself that C. was between 13 and 15 years of age when the incidents alleged took place and she is now 17 years of age. Moreover, the events took place between two and four years ago when she was younger. These circumstances may affect the accuracy of her recollection, but they may also explain inconsistencies or gaps in her evidence. Her recollection of times, for example, may be associated more with the school year and less with the calendar. The reliability of her evidence needs to be assessed with reference to, among other things, the passage of time and her age at the time the events allegedly occurred.

Conclusion and Disposition

[ 90 ] For the reasons I have given, I do not believe Mr. V.’s evidence. His evidence that C. was the one who insisted on sleeping in the bed with him does not accord with the evidence or with common sense. Mr. V.’s exaggerated version of his efforts to keep her out of the bed does not have the ring of truth. Nor does his evidence about the number of times C. slept in the bed. I simply do not believe his evidence. Nor does his evidence leave me with reasonable doubt concerning his guilt. When I consider all the evidence, including the evidence of C. V., who I believe, and the evidence of G.A., who I believe, I find that Mr. V.’s evidence was fabricated to portray his actions as innocuous and innocent. I find that evidence to be false and I do not believe his denial of the allegations against him. After considering the evidence as a whole, I find beyond a reasonable doubt that Mr. V. is guilty of the charges against him.

[ 91 ] The accused will therefore be convicted on both counts.

G.R. Strathy J.

Released: October 5, 2012

COURT FILE NO.: 11-30000754-0000
DATE: 20121005

ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N:

HER MAJESTY THE QUEEN – and – G.V.

REASONS FOR JUDGMENT G. R. Strathy J.

Released: October 5, 2012

[1] Following the completion of the evidence and after hearing submissions of counsel, I granted an order amending the indictment with respect to the sexual exploitation count, to charge a violation of s. 153(1) of the Criminal Code , rather than s. 153.1 .

[2] These bedrooms were sometimes referred to in the evidence as Room 1 (the master bedroom), Room 2 (C.’s bedroom) and Room 3 (G.A.’s room).