COURT FILE NO.: CR12-30000185-0000

DATE: 20130307

ONTARIO
SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

Applicant

– and –

R. C.

Defendant

Jerry Bienza, for the Crown
Matthew Granic, for the Defendant

HEARD: January 21, 22, 23, 24, 25; and February 26, 2013

Subject to any further Order by a court of competent jurisdiction, an Order has been made in this proceeding directing that the identity of the complainant and any information that could disclose such identity shall not be published in any document or broadcast in any way pursuant to s. 486.4 of the Criminal Code of Canada.

KELLY J.

Reasons for Judgment

[1] The Defendant, R.C., is charged with committing various sex acts on his granddaughter, B.V. The acts are said to have commenced when she was approximately 5 years of age and ended when she was 11 years of age. As a result of these acts, R.C. is charged with sexual assault, sexual interference and sexual exploitation between January 1, 1998 and December 31, 2005.[1]

[2] The complainant testified that her grandfather would come into the bathroom at various times when she was in the shower and massage her breasts and vagina. On other occasions, her grandfather would enter the room where she was sleeping and touch her breasts and insert his fingers into her vagina. The last two significant acts alleged are oral sex performed on her in the summer of 2004.

[3] R.C. testified. He denied that he committed any of the offences alleged.

Application of the Legal Principles

[4] The Court’s analysis of the evidence is to be guided by the principles set out in R. v. W. (D.) [D.W.] (1991), 1991 93 (SCC), 63 C.C.C. (3d) 397 (S.C.C.) as follows:

(i) if the defendant’s exculpatory account is positively believed, then the trier must acquit;

(ii) if the defendant’s exculpatory account is not positively believed but, considered with the other evidence it raises a reasonable doubt, the trier must acquit; or

(iii) even if the defendant’s exculpatory account is disbelieved and does not raise a reasonable doubt, the trier must still apply the traditional burden of proof by considering all of the evidence and determining whether the Crown has proven guilt beyond a reasonable doubt.

[5] I have approached my consideration of the evidence bearing in mind Justice Cory’s analysis in R. v. W.(D.) and appreciating that the burden is on the Crown to prove the charges beyond a reasonable doubt. R.C. is not required to prove anything. I understand that even if I reject his evidence, that does not mean he is guilty. I am still required to consider his evidence in combination with all of the other evidence to determine if it raises a reasonable doubt. Even if his evidence together with all of the other evidence does not raise a reasonable doubt, I appreciate I must still hold the Crown to the task of meeting the heavy burden of proof beyond a reasonable doubt. I have approached my consideration of the evidence in that matter. Having done so, I have concluded that R.C. is guilty of the offences before the Court. I reject his evidence. I am not left in reasonable doubt by it nor am I left in any reasonable doubt based upon his evidence considered with all of the other evidence. I have concluded that the Crown has satisfied me beyond a reasonable doubt of his guilt. What follows are my reasons.

The Evidence of R.C.

[6] R.C. was almost 80 years of age when he testified through a Tamil interpreter. He would have been approximately 67 years of age when the first act occurred and approximately 74 during the last.

[7] R.C.’s defence was premised on a number of things. Firstly, it is suggested that there was no real opportunity to commit the acts alleged because he was never in the home at the times he supposedly sexually assaulted his granddaughter. Secondly, the complainant had a motive to fabricate the allegations. Thirdly, the demeanour of the complainant after these incidents are alleged to have occurred is not consistent with somebody who was sexually assaulted as described. Lastly, this is a case of “mistaken identity” because the complainant was inconsistent about her description of her grandfather regarding his facial hair and height. I reject the evidence of R.C. and the premise of his defences raised in this case.

i. The Lack of Opportunity

[8] R.C. said he could not have sexually assaulted his granddaughter as she says because he was only in the home on a few occasions since his immigration to Canada in 1996. He said that within months of his arrival, he had such a tremendous argument with the complainant’s parents over a welfare application that he returned sparingly to their home for the next nine years. He says that he was only at the home of the complainant as follows:

a. In 1996 when R.C. and his wife arrived in Canada they stayed at the complainant’s home for a few months. (The complainant was three years-old at this time and nothing is alleged to have occurred during this period.)

b. Family functions such as birthdays, but only in the presence of his daughter and her family. He never stayed overnight.

c. In 2004, to assist in the preparation of the complainant`s puberty ceremony that took place in October of that year. He stayed for five or six days. He left two days after the ceremony.

[9] R.C.`s testimony regarding lack of opportunity was contradicted by the complainant, her brother and her mother.[2] All three testified that they had traveled to Sri Lanka in the summer of 2004. When they returned, the brother became ill and was hospitalized. Because the mother was spending most of her time at the hospital and the father was working, R.C. came to the home to care for the complainant. Both the mother and the complainant testified that R.C. was in the home for one month, at the very least.

[10] Both the complainant and the mother also testified that R.C. stayed at the house in order to assist in the preparation of the complainant’s puberty ceremony in October, 2004. R.C.’s attendance at the home for this purpose was in addition to his stay in August, 2004 due to the brother`s illness. Since the house was going to be used for the initial part of the puberty ceremony, repairs were required to be made. The complainant and her mother recall the grandfather coming to the house to assist with such chores.

[11] The complainant also testified that on occasion, R.C. would come to the home and spend the night when she was between the ages of 4 and 11 years-old. This was confirmed through the evidence of the complainant’s brother who testified that R.C. attended a couple of times each month, but he could not provide the exact dates.

[12] The complainant’s brother and mother testified that up until August, 2004 the complainant had an excellent relationship with her grandfather. The complainant felt the same way. This conclusion could not have been reached by all three witnesses had R.C. spent such little time with the complainant since 1996 as he described.

[13] I accept the evidence of the complainant and others that R.C. was at the home more frequently than he suggested. Both the mother and the complainant were specific in their recollection of his attendance during the month of August 2004 and the other attendances. The brother confirmed various other attendances at the home. In my view, such evidence was credible, reliable and contradicted that of R.C..

ii. The Motive to Lie

[14] The reasons advanced by R.C. for such few visits to the home are intertwined with R.C.’s suggestion that the complainant had a motive to lie. That evidence may be summarized as follows:

a. Welfare

[15] When R.C. and his wife arrived in Canada in 1996, he says they lived with the complainant’s family. Within months of their arrival, R.C. claims that the complainant’s parents insisted that he apply for welfare and provide those monies to them. He refused to do so. The suggestion of applying for welfare was so offensive to R.C. that he left the complainant’s home for good. As he said: “The day when I left their home, it was broken.”

[16] The mother of the complainant testified that R.C. did not live with her family upon arrival in Toronto. Further, she testified that there was no discussion about welfare. She testified there would have been no point in R.C. applying for welfare because she was responsible for R.C. and his wife for ten years upon their arrival in Canada. She would only have had to pay the welfare monies back if collected. This evidence had the ring of truth and the complainant’s mother seemed genuinely surprised when she was asked about this at trial, making her seem credible.

[17] When asked if she was aware of any family dispute regarding welfare, the complainant said she was not. This makes sense because the complainant described her relationship with her grandfather as a good one prior to the last acts of oral sex. If the grandfather did not socialize with the complainant as she and her family members suggest, I fail to understand why she would describe such a close relationship with him as discussed further below.

b. The Hugging Incident

[18] When R.C. was staying at the complainant’s parents’ home in 2004 and two days after the puberty ceremony, he says he discovered the complainant hugging a sixteen year old boy at the side of the house. In cross examination and for the first time, he added that the complainant was also “kissing” this boy.

[19] R.C. described himself as scared when he observed the kiss and the hug. It was different behaviour because it demonstrated a “bad attitude”. Following this observation, R.C. went into the house, sat down and started to shake. Although his wife was home, he did not tell her because she would disclose it to others which would “be bad for this girl”.

[20] When the complainant came into the house, R.C. says that he confronted her and suggested that this hugging incident was terribly bad behaviour. According to him, he said the complainant responded by saying that such behaviour is normal in Canadian culture. R.C. told her that he was going to report this to her parents. He says that the complainant responded: “You are not my father and if you tell my parents, I will push you outside of the house” (i.e. “force you to leave”).

[21] R.C. testified that when the complainant’s mother came home, he saw the complainant talking to her mother in English. The mother then approached R.C. and asked why he was “troubling” the complainant. In cross-examination, he said that she asked him: “What did you do to [the complainant]?” He told her about the hugging incident and the mother did not believe him. He says that the mother “scolded” him. Again, he got mad. He asked to be picked up by his other son-in-law and removed from the house. He says that the complainant’s family was angry at him and they stopped talking to him.

[22] The complainant denies hugging a sixteen year-old boy at this time and denies that there was any confrontation with her grandfather over this matter. When confronted by this in cross-examination, she said: “I am speaking honestly and I do not remember that happening at all” and “I don’t recall hugging a boy unless it was my brother”. She looked exasperated by such a suggestion which appeared to be a genuine and honest response.

[23] The complainant agrees that she did have a confrontation with her grandfather following the puberty ceremony, but it was following a second act of oral sex and not as a result of any hugging incident. When the complainant refused to do things such as have a shower at the grandfather`s request, he accused her of being disobedient. The complainant denies ever telling R.C. that if he spoke to her mother, she would have him “kicked out” of the house and to stay out of her affairs. I believe her. This would not make sense in any event as the grandfather, according to everyone’s testimony, was going back to his own home imminently. There was no reason to threaten having him “kicked out” of the house.

[24] In light of the disclosure made to her mother two days after the puberty ceremony, the evidence of the complainant is preferable to that of the grandfather. Put simply, I do not believe that R.C. observed any hugging (or kissing) incident. I believe that the complainant and R.C. had a confrontation but it was as the complainant described it: after the acts of oral sex and over her refusal to obey his directions that provided opportunity for further assaults.

(continues exactly as in the original judgment…)

Kelly J.

Released: March 7, 2013

COURT FILE NO.: CR12-30000185-0000

DATE: 20130307

ONTARIO
SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

Applicant

– and –

R. C.

Defendant

Reasons for Judgment

Kelly J.

Released: March 7, 2013

[1] These offences are contrary to sections 271, 151 and 153(1)(a) of the Criminal Code, R.S.C., 1985, c. C-46 respectively.

[2] The mother was called as a defence witness.

[3] The complainant was born on July 3, 1993.

[4] The complainant’s mother testified that she would observer the complainant sitting on R.C.’s lap but she did not notice anything unusual. She also heard him say, “I like you very much [B.]” which she did not find inappropriate.

[5] Certain inconsistencies will be addressed below.

[6] See: R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3 at para.6.

[7] [2005] O.J. No. 6061 (S.C.J.) at para. 46