R. v. D.P., 2013 ONSC 6232

COURT FILE NO.: SCJ 005/12

DATE: 20131007

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

Marney Mazurski, Crown Counsel

• and -

D.P.

Andrew Perrin, Counsel for the Accused

HEARD: May 21 - 23, June 5, 6, 14, 2013

PUBLICATION RESTRICTION NOTICE

By court order made under subsection 486.4(1) of the Criminal Code, information that may identify the person described in this judgment as the complainant may not be published, broadcast or transmitted in any manner. This judgment complies with this restriction so that it can be published.

ellies j.

OVERVIEW

[1] D.P. is charged with seven offences, including indecent assault, gross indecency and sexual assault. All of the charges involve the same alleged victim, C.B., his common law spouse’s daughter. The offences are alleged to have occurred between January 1, 1979, when C.B. was seven years old, and June 28, 2002, when she was 30.

[2] D.P. denies that any sexual contact with C.B. took place before she was 16 years old, above the age of consent at the time in question. He testified that, from that point until she was in her 30’s, he and C.B. had sexual intercourse on four occasions, on all of which she consented.

[3] The Crown counters that no valid consent was given by C.B. to these acts because of D.P.’s authority as her de facto father.

[4] I will begin with a summary of the important evidence.

EVIDENCE

Events in Atikokan

[5] D.P. met C.B.’s mother, S.B., in 1975 and began living with her and with her three children in 1976, in Atikokan. C.B. was four or five years old at the time, being born in […] of 1971.

[6] D.P. was working for a construction company when he and S.B. first met. In 1981, he began working for Ontario Hydro and continued to work for that company or its successor until he retired in 2009. Throughout his career, D.P.’s work took him away from the family home for varying periods of time. Despite his absences, D.P. admitted, and there is no doubt from the rest of the evidence, that he acted as a father to C.B. and her siblings throughout the 35 years that he and Mrs. B lived together in a common law relationship.

[7] C.B. was 41 years old at the time of the trial. She appeared by way of closed circuit television initially, pursuant to a ruling I made before the trial began: 2013 ONSC 2901. Although she was not in the courtroom, her nervousness as she began to give evidence was obvious even on the small screen. She was visibly shaking.

[8] C.B. testified that the family was living in Atikokan when she was first made to touch D.P.’s penis. She testified that this occurred after the family had moved to a single family dwelling from a duplex in which they were living. Based on her evidence and that of D.P., this would have taken place between 1981 and 1985, the year they left Atikokan. C.B. testified that it happened more than once, but she could not say how many times.

[9] C.B. testified that D.P. would put his hand over hers and make her masturbate him. He would also touch her “bottom”. While he did these things, he would tell her that it was “okay” and that he loved her. None of these incidents lasted long and she was not able to recall whether he ejaculated during any of them.

[10] While she was living in Atikokan, C.B. began to smoke. D.P. was also a smoker. C.B. testified that D.P. somehow found out that she had started smoking and would make her masturbate him in exchange for cigarettes. On other occasions, he would give her money, instead.

Events in Crystal Falls

[11] C.B. initially testified that she spend the summer of 1984 at a campground in Crystal Falls. However, according to D.P., this occurred in 1985. He testified that the family left Atikokan on July 1st of that year. He had already started working on a job in the Sturgeon Falls area about a month earlier. Until a more permanent residence could be found, D.P. stayed in a cabin at the campground.

[12] Although there is some discrepancy in the evidence as to why, all of the witnesses testified that C.B. joined D.P. about two weeks earlier than the rest of the family. The owners of the camp took care of C.B. while D.P. worked during the day. C.B. testified that she spent a lot of time with the owners’ daughter, Jackie, who was about 16 years old at the time, and that she slept at her place often.

[13] C.B. testified that D.P. continued to make her masturbate him and began to touch her vagina, in addition to her bum, while they were together alone at the campground. She was developing breasts and he began to touch those, as well. Sometimes the touching was over her clothes, sometimes it was under. C.B. said that, while they were at the Crystal Falls campground, D.P. made her do more things to him than he did to her. He would put his tongue in her mouth as he kissed her, telling her that he loved her. He also began to force her to perform oral sex on him. She said that she remembers him sitting her on the bed and standing in front of her for this purpose. She testified that she told him she didn’t want to do it, that she would spit, but he would tell her that it made him feel good. She said that she recalled times during which he was forcing her to masturbate him when he would have her go with him over to the sink in the cabin, into which he would ejaculate.

[14] Once the rest of the family arrived, C.B.’s mother and D.P. began to occupy one cabin and C.B.’s brothers occupied another, along with D.P.’s children from a previous relationship. C.B. testified that she continued to spend a lot of time at Jackie’s. She also testified that the sexual touching continued after her mother and brothers arrived, but it was less frequent. According to C.B., D.P. also continued doing something else he had started when they first arrived in Crystal Falls, namely making “sexual faces” in which he would stick his tongue out as if licking something.

[15] During this period of time, D.P. continued to give C.B. money and cigarettes, according to her evidence, although not on every occasion during which there was sexual contact. On some of those occasions, he would just promise things.

Events at the Home on Second Street in Sturgeon Falls

[16] Just before school began in the fall of 1985, the family moved into a house on Second Street, in Sturgeon Falls. C.B. testified that there was “a lot” of oral sex and touching that occurred there, although no details of any such incidents occurring in the house were provided. Instead, she testified about an incident of physical abuse that occurred there, as well as sexual assaults that took place in a van that D.P. let C.B. drive, even though she was too young to get her license. I will deal with the evidence of the physical assault first.

[17] D.P. is not charged with anything other than offences of a sexual nature. Nonetheless, the Crown introduced evidence of a physical assault that took place while the family was living on Second Street. No objection was made to this evidence, presumably because it might be relevant to the argument that C.B.’s participation in the sexual intercourse that took place after she was 16 arose as result of the exercise of authority on the part of D.P.

[18] C.B. testified that D.P. became extremely angry after he found out that she had gone out with a boy that she had been prohibited from seeing. She testified that he threw a glass at her, which flew past her head and broke. He began to yell and followed her up the stairs. He then began to hit her about the face and head. She yelled for her mother, but her mother walked away. After the assaults, D.P. brought her a doll made of stuffed pantyhose.

[19] Regarding the sexual assaults, C.B. testified that, while they were living on Second Street, D.P. began to let her drive, both on their long private driveway and on the roads. One of the places to which he would let her drive was a tower located in Crystal Falls. She testified that the van she drove had a “couch” in the back and that she would be made to perform oral sex on D.P. in return for being allowed to drive. If she did not do what he wanted, she said, she would not be permitted to drive, would get no money, and would have no television in her room. Thus, she did it, even though she did not want to.

The Trip to Pembroke

[20] C.B. left the home on Second Street when she was 15 or 16 years old and for a period of time she lived at the homes of various friends in Sturgeon Falls. She was expelled from high school and became estranged from her family. All of the witnesses testified that she fought a lot with her mother during this time.

[21] Her relationship with D.P. did not suffer quite the same fate. C.B. testified that she was about 17 years old when she joined D.P. and his son, Pierre, on a trip from Sturgeon Falls to Pembroke, where Pierre was going to school. They took the van, she said. D.P. drove on the way down and she was allowed to drive it on the way back. She testified that, along the way, they stopped at a motel outside Pembroke, where they engaged in sexual intercourse for the first time. She said that she told D.P. that she did not want to go in to the motel, but he said that they would only be there for a short while. Once inside, he took her clothes off and took a photo of her naked using a Polaroid camera he kept for work purposes. He put the developing photo on a desk and sat C.B. on a bed. He began kissing her, putting his tongue in her mouth. He touched her while touching himself. He got on top of her and entered her. She testified that she was sick to her stomach. She didn’t want to be there, but didn’t know how to fight him. She just laid there, while D.P. told her that it was okay, that she was beautiful, and that it made him feel good. She did not recall whether he ejaculated inside of her or not.

[22] C.B. testified that, when the act was over, they got dressed and D.P. took the photograph with him as they left. She was not living at home at the time, so D.P. dropped her off wherever she was staying.

[23] C.B. testified that D.P. continued to force her to masturbate him and to touch her breasts after the trip to Pembroke, during trips to the tower in Crystal Falls.

Events in Timmins

[24] C.B. left the Sturgeon Falls area when she was about 17. She testified that she had been living with some males that were taking advantage of her and that D.P. removed her from that situation by bringing her first to a hotel in North Bay and then to Timmins, to stay with his daughter. She testified that he then “set her up” in an apartment. While in Timmins, C.B. worked at a number of jobs. She said that D.P. would come by when he was in town. He would give her money, but it always had strings attached. She testified that she masturbated D.P. a couple of times while she lived there and performed oral sex on him. She testified that she never voluntarily took out his penis and that he used force on her head during oral sex. She also testified that she and D.P. engaged in an act of sexual intercourse on the living room floor, for which she received $100.

Back to Sturgeon Falls

[25] C.B. left Timmins and went to live with her biological father’s girlfriend in British Columbia. She said that she lasted less than two months there for various reasons, including homesickness. She returned to Sturgeon Falls via a bus ticket that was paid for by welfare authorities. C.B. believes that she went to live at home initially and stayed there until she could “worm” her way back into her friends’ lives, presumably to find somewhere else to live.

[26] The evidence is unclear on exactly how long she stayed in Sturgeon Falls during this period. C.B. testified that, while she was there, she was again sexually assaulted by D.P. In particular, on one occasion when she was 18 years old (which would be between June 28, 1989 and June 28, 1990), she asked D.P. for a ride from Toronto to Sturgeon Falls. He gave her one. However, she testified that she was made to masturbate D.P. and to perform oral sex upon him. She could not recall if they had intercourse on that occasion.

[27] By 1996, C.B. had moved to Ottawa, where she lived with her boyfriend. In December of that year, her biological father died. C.B. went to British Columbia to retrieve his ashes and again returned to Sturgeon Falls. She testified that she went home because she was looking for comfort. Instead, she testified, D.P. stuck his tongue in her mouth and touched her buttocks.

[28] C.B.’s biological father left her about $380,000, before taxes. She used that money to buy a house in Ottawa. She also used it to buy gifts for various people, including a used Jeep for D.P. She testified that the money lasted for about 10 years, during which time she moved back to Sturgeon Falls. While the money lasted, she testified, she did not have to perform sex acts for D.P. When it ran out, however, she called upon D.P. and her mother to help her with the mortgage on the house in which she was living at the time.

[29] C.B. testified about three further incidents of sexual contact with D.P. that took place after she returned to Sturgeon Falls. The first occurred shortly after she had moved back. She testified that, while she was living at a house on Salter Street, she performed oral sex on D.P.

[30] The second incident occurred while C.B. was in her 30s. She was living in an apartment at the time. She said that she went to visit her mother, but she was not there. D.P. was home, however. She testified that he took her up to the bedroom where he and S.B. slept, laid her down, took her pants off, and performed oral sex on her. He then got on top of her and put his penis inside of her. While he was doing these things, C.B. was telling him that S.B. was going to catch him doing it, but he assured her that they had lots of time. She testified that he ejaculated inside of her and she ran to the bathroom to scrub herself. The incident made her sick, she said.

[31] C.B. testified that the last sexual contact between her and D.P. occurred when she was about 32 years old and living on Parker Street. A few weeks before it happened, she had been held for 72 hours for a psychiatric evaluation after a night of drinking. After her release, she said that D.P. “cornered her” in her apartment and made her perform oral sex upon him.

[32] C.B. testified that she never once consented to any of the sexual contact that took place between her and D.P.

[33] During cross-examination, with the consent of the Crown, C.B. was shown a page from a diary that she kept as a teenager (Exhibit 1). The page is dated Sunday, January 3, 1988. Above the date at the top of the page she wrote “2:07 a.m.”. Under the date, she wrote:

I went to Pembroke with (D.P.) to drive Pierre home. Drove the car back. Before we got home (D.P.) and I stopped and made Love (with a heart drawn beside the word) for the first time. I mean (me & him). I don’t feel good about it! (emphasis in the original)

[34] I will deal with other aspects of C.B.’s testimony in my analysis of the evidence.

The Evidence of D.P.

[35] I will set out the evidence of D.P. before I turn to the evidence of the other witness called by the Crown, so as to highlight the differences between his evidence and that of C.B., and to focus on the issues regarding which the evidence of the other Crown witness is most important.

[36] On the witness stand, D.P. presents as a slender, soft-spoken man, whose appearance is in keeping with his age of 69 years. Although he is fluent in English, he speaks with a slight French-Canadian accent.

[37] D.P. testified about many of the background facts regarding such things as the dates upon which the family moved, and to where. Where his evidence on such matters conflicts with that of C.B., I prefer the evidence of D.P., who was an adult when these things happened and appeared to have a better recollection of such details than did C.B. I have already incorporated his evidence regarding dates into the summary of C.B.’s evidence.

[38] D.P. testified that he loved S.B. and her children, and that he still does. He denied committing any of the sexual behaviours or offences alleged by C.B. to have occurred in Atikokan and in Crystal Falls. He testified that, in the three months before he went to Crystal Falls, he was working in Iron Bridge and did not return to Atikokan. He denied that he gave C.B. cigarettes. Although he admitted that C.B. did ask him for money, he testified that she told him it was for things like pop and chocolate bars. He gave her money, just as he gave money to her brothers.

[39] He testified that, while they were alone for two weeks in Crystal Falls, C.B. stayed with her friend, Jackie Ball, as well as another friend, Caroline Danis, and that he never slept in the same cabin as she did.

[40] D.P. also denied C.B.’s evidence that sexual contact took place while the family lived in the home on Second Street in Sturgeon Falls, as well as her allegations of physical abuse. He testified that he had to return to work in Iron Bridge from October to December, 1985. He denied that he threw a glass at her, hit her, or gave her a sock doll. He denied that he gave her money or cigarettes for sexual favours.

[41] D.P. admitted that he allowed C.B. to drive, but denied that he did so in exchange for sexual favours or that he had sexual contact with her on any of those occasions, except for one, which brings me to the trip to Pembroke.

[42] In December of 1987, when C.B. was 16 years old, D.P.’s son, Pierre, came home for Christmas from college in Pembroke. After the holiday was over, D.P. and C.B. took Pierre back. According to D.P., they were driving a 1988 Thunderbird. After dropping Pierre off, they left to return home. C.B. had her beginners permit and D.P. allowed her to drive. He denies that they stopped at a motel on the way. Instead, he says that they stopped on a side road not far from Sturgeon Falls, where they had sexual intercourse on the front seat of the car. According to D.P., C.B. removed her track pants herself; he did nothing to entice her, nor did he force her to have sex with him.

[43] D.P. admitted that there was a photo taken of C.B. nude, but not on that occasion. According to him, it was taken in 1992, at a motel in Smooth Rock Falls, during the second occasion upon which they had sexual intercourse. During cross-examination, he testified that he was working in Fraserdale at the time, staying at the Moose Motel. C.B. came to visit with her boyfriend and asked him if she could borrow some money, because they did not have enough to pay the rent. D.P. had been drinking. C.B. took a shower and came out with only a towel on. The idea of the photo, he said, was hers.

[44] D.P. denied C.B.’s allegations regarding sexual contact in Timmins and her allegation that he touched her inappropriately when she came home after her biological father died. He admitted, however, that he did have sexual intercourse with C.B. for a third time in his bedroom at the house he had purchased in 1988 on Nipissing Street, in Sturgeon Falls. He testified that on that occasion, C.B. and her mother left the house to go and play cards, but that C.B. came back about a half-hour later. He had been drinking and C.B. said to him that she hadn’t had sex in a long time. C.B. laid down, according to D.P., and took her pants off. He doesn’t recall the details of the encounter because he was drinking, but said that he never forced her to have sex with him.

[45] The fourth, and last, sexual encounter between D.P. and his common law step-daughter occurred when she was 36 years old, in 2007 or 2008, according to him. He had returned home after leaving for a hunting trip, because he had forgotten some medication. While at home, he learned that C.B. needed someone to fix her refrigerator. He went over and discovered that the problem was a flipped breaker switch, which he turned back on. According to D.P., C.B. then gave him a hug and they began to have sex. As with the previous encounters, she removed her own clothing. After it, he left to go hunting.

[46] With respect to the page that had been taken from C.B.’s diary, D.P. testified that he had discovered it on C.B.’s night table after she moved out of the house. He said that he kept it because he didn’t trust C.B. not to tell her mother. With respect to the photo, he said he kept it in an envelope in the garage of his house, rather than in a briefcase, as alleged by C.B. in her evidence. He testified during cross-examination that he kept the photo for the same reason that he kept the diary page, namely, that he didn’t trust C.B.

S.B.’s Evidence

[47] C.B.’s mother was called by the Crown to give evidence. She impressed me as being an honest, forthright woman whom everyone would agree was a victim on anyone’s version of what occurred in this case. Although what happened here might well have made her very biased against D.P., I believe that she did her best while testifying to simply answer each question asked of her, as candidly as she could. For example, during cross-examination she was asked if C.B. lied as a young person. She admitted that, although she could not think of any specifics at the time, C.B. could and did lie frequently.

[48] During her examination-in-chief, S.B. testified that, although she worked outside of the home, as well as in it, D.P. made more money than she did and freely spent it on the children, including C.B. While he was working away from home, S.B. did it all. When he was home, D.P. would look after the children when S.B. was working and would engage with them in the usual activities in which fathers engage, like drive the boys to tournaments. S.B. played the role of disciplinarian most often, and recounted an incident where she made C.B. eat one or more cigarettes after she had been caught smoking.

[49] In response to questions put to her during cross-examination, S.B. painted a very different picture of D.P. than the one portrayed by him on the witness stand. She testified that D.P. would yell and had been violent with both her and the children. When asked if she had ever witnessed any physical abuse by D.P. of C.B., she confirmed an incident that occurred while they were living on Second Street, during which she heard C.B. yelling “Mom” while being confronted by D.P. She could not recall if she went to see what was happening, but said that she still felt guilty about it.

[50] Although it was not clear to me whether it was the same incident, she testified that the Children’s Aid Society became involved with the family shortly before D.P. and C.B. went to Crystal Falls. D.P. had hit C.B., who went to school with a mark on her face, which caused someone at the school to contact the CAS.

[51] During cross-examination, S.B. also confirmed C.B.’s evidence that D.P. gave her cigarettes, something that S.B. did not like. She also confirmed C.B.’s evidence that D.P. always seemed to know where C.B. was when she was between the ages of 15 and 20. .

[52] Two other important pieces of information came out during S.B.’s testimony. The first was with respect to a statement that C.B. made while the family was living on Nipissing Street. During a discussion that took place at C.B.’s friend’s home, C.B. asked her mother, “What do you think he (D.P.) is doing to me?” Because S.B. worked for the police, she went immediately to her boss, the police chief, to ask what she should do. When C.B. was asked again about it by the police, she recanted, saying she’d made it all up because she was mad at D.P. and S.B.

[53] The second important piece of information related to the photograph taken of C.B. S.B. was asked in cross-examination if she had seen a photo of C.B. naked. She testified that she had seen a few photos. One of them was a photo of C.B. naked. She testified that C.B. appeared to be about 16 or 17 years old in the photo. She found the photograph after C.B.’s present allegations had caused her relationship with D.P. to end. She testified that she destroyed the photo because she didn’t want anyone to see it.

[54] The other photograph was not of C.B., but of D.P., who was depicted masturbating in his truck. She testified that she gave that one back to D.P.

POSITIONS OF THE PARTIES

[55] The Crown argues that C.B.'s evidence ought to be believed. If so, then the Crown argues that it has proven all of the elements of the offences alleged, including that the sexual contact took place without C.B.'s consent.

[56] Alternatively, the Crown relies on s. 265(3)(d) and s. 273.1(2) of the Criminal Code and contends that C.B.’s participation in the sex acts that occurred after she was old enough to consent was due to the exercise of authority by D.P. or his position as her common law stepfather.

[57] The defence argues that D.P.'s evidence ought to be believed. If so, although counsel for D.P. admits that what his client did by sleeping with his 16-year-old stepdaughter was morally wrong, it was not criminally wrong. He points to a number of problems with C.B.'s credibility and reliability as a witness.

[58] As to the Crown's alternative argument, the defence submits that expert evidence is necessary to find that C.B.'s relationship with her stepfather prevented her from validly consenting to the sexual contact which took place between them - evidence which was never adduced.

issues

[59] The Crown must prove beyond a reasonable doubt the acts alleged to constitute the offences. The Crown must also prove that C.B. did not consent to the acts that form the basis of each of the offences charged, where such consent is an element of the offence.

[60] D.P. has admitted four acts of consensual sexual intercourse and denied the other allegations. Three of these acts could form the basis of three of the offences charged, namely counts 8, 10 and 11, if there was no valid consent. There is no charge relating to the sexual intercourse that D.P. says occurred in 1992, in Smooth Rock Falls. Therefore, if I accept D.P.’s evidence with respect to the acts that underlie the other three incidents, the sole issue is whether the Crown has proven beyond a reasonable doubt that C.B. did not validly consent.

[61] A further issue arises, however, if I accept only certain parts of each witness’s evidence, where the evidence that I accept does not correspond to the dates and places alleged in the Indictment. For example, count 8 alleges that a sexual assault took place in Pembroke, whereas D.P. has testified that the sexual intercourse took place a 10 minute drive away from Sturgeon Falls.

[62] I turn now to my analysis of the evidence in this case.

ANALYSIS

Findings of Fact

[63] Providing that there is a reasonable basis for doing so, I may accept all, some or none of a witness’s evidence: R. v. J.M.H., 2011 SCC 45, [2011] 3 S.C.R. 197, at para. 25. If I accept all of D.P.’s evidence, or if I am left with a reasonable doubt by it, having regard to all of the evidence in the case, I must acquit him: R. v. W.D., (1991) 1991 CanLII 93 (SCC), 63 C.C.C. (3d) 397 (S.C.C.). I do not accept all of the evidence of either D.P. or of C.B., as I will explain.

Issues with C.B.’s Evidence

[64] C.B.’s credibility and reliability as a witness suffered in several respects. For one, she sometimes exaggerated her evidence. For example:

a. She testified at one point that D.P. “probably" made her masturbate him every time he came home from work while they lived in Atikokan. I find it hard to believe that he made her masturbate him every time he came home from work. There was no evidence that D.P. had the opportunity required for this to occur.

b. She testified that “lots” happened at the campground in Crystal Falls. However, she was alone with D.P. for only two weeks, he was working during the day, and she said that she spent many nights sleeping at her friends’ places.

c. She said that D.P. would abuse her in Crystal Falls after her mother arrived with the boys whenever he was alone with her. However, because D.P. was working, her mother was not working, and the boys were around, it is unlikely that he was alone with her much, if at all.

d. She testified that the physical abuse “started” while they lived in the home on Second Street, but the only evidence of physical abuse was the single incident when he followed her upstairs.

e. She said that she could not get welfare assistance because she was “too promiscuous”. Common sense dictates that promiscuity is not likely to be one of the criteria by which welfare authorities determine eligibility.

f. She said that D.P. followed her around town all the time. I can accept that she might not have been anxious to see him if he was sexually abusing her, but Sturgeon Falls is a small place and she could easily run into him often without being pursued by him.

g. She testified that D.P. “had his thing out” every time she saw him in her 30’s. I find that hard to believe, as S.B. said that she kept a close watch on D.P. after C.B. made and recanted her statement as a youth and never saw any such thing.

[65] C.B. was also contradicted on a number of points, both by herself and by her mother. For example:

a. She testified that she got caught smoking pot around the time they were in Crystal Falls and she was punished. D.P. denied this and S.B. said she had never been told about it. I can find no reason to disbelieve D.P. on this point.

b. She testified at the preliminary hearing that she and D.P. did not have sexual intercourse at the apartment in Timmins.

c. She also testified at the preliminary hearing that she had sex with D.P. only five or six times during her 20’s and 30’s, whereas she testified at trial that it was 15 to 20 times.

d. She testified that her mother made her smoke an entire package of cigarettes, while her mother testified that she made her eat, not smoke, one or more of the cigarettes with which she had been caught.

e. C.B. testified that she drove the van on the trip to Pembroke. She was quite certain about this until she was shown the note that she wrote on January 3, 1988, after which she agreed that she was driving the Thunderbird.

f. She also said that it was during the fall, when the note shows clearly that it was in the dead of winter. There is quite a difference, especially to a young driver who did not have much experience with winter driving.

[66] Despite these shortcomings, C.B. impressed me as someone trying to do her best to recall what happened to her, in some instances, a long time ago - things that she does not really want to remember. She was candid about the difficulties she had in that regard, and about other things, as well. For example, she admitted that she did some “rotten” things with D.P. and that she felt partly to blame for some of them. She also conceded that blaming D.P. does make her feel better about her own behaviour.

Issues with D.P.’s Evidence

[67] There were a number of significant problems with D.P.’s credibility as a witness.

[68] D.P. was unable to explain how it came to be that C.B. pulled the car over during the trip home from Pembroke and they began to have intercourse. There was no evidence from him of any conversation, or even of any contact, between them prior to that. When he was asked by the Crown in cross-examination how he got to the point of having sex with C.B. “out of the blue”, he could not answer. All he could say was, “I don’t know”.

[69] And yet, D.P. told the police during his interview that C.B. has always been a flirt. He said that she began at age 14, for example, to put her leg over his while they were sitting on the couch and that she would hug him in a different way than most kids did. Thus, he seemed to tell the police that C.B. was the instigator and that unwanted physical contact between them began before she was 16 years old. This is in contrast to his evidence in court.

[70] D.P. also told the police that he did not take any photos of C.B. naked. Given his evidence that he did and that he kept the photograph because he didn’t trust C.B., he had to remember at the time of the interview that he had taken just such a photograph. I do not accept that he simply forgot because he was in shock. He seemed to have no difficulty remembering things like her alleged flirtatiousness. Instead, I believe that D.P. denied taking any nude photos because he thought at the time that the photograph was hidden. However, it was later found by S.B. and, therefore, D.P. was forced to admit and to explain its existence in his testimony. In that regard, I have a difficult time understanding how he thought that keeping such a photograph could help him in the event that his sexual contact with C.B. at such a young age came to light.

[71] The photographs show a relationship that involved more than a sudden event on January 3, 1988. Instead, they show a man who was fully engaged in what was occurring. He never denied the existence of the photograph of him naked. Rather, he said that he did not recall taking it after taking the nude photo of C.B. He denied that he was masturbating in the photograph, but could not explain why he would take or allow someone else to take a photograph of his erect penis.

[72] D.P. also told the police that C.B. was at least 20 years old when they first had sexual intercourse. This was obviously not true. Given that D.P. kept the diary page, which showed clearly how old she would have been in January of 1988, and the fact that he kept it because he was worried about how young she was, I find it unlikely that this was just a memory failure on his part. If it was, however, it still reflects poorly on his reliability, if not his credibility.

[73] For these reasons, I do not accept all of the evidence of D.P. or of C.B. Based on the evidence I do accept, I make the following findings of fact:

a. D.P. began sexually touching C.B. before January 3, 1988. This conclusion is supported by the diary page of that date. The use of the words “made love for the first time” in the note suggest that there had been sexual contact between them previously which had not yet reached intercourse until that night. This makes much more sense than D.P.’s version, in which C.B. for some unknown reason just pulls the car over and they have intercourse on the front seat.

b. The sexual touching began while the family lived in Atikokan and continued in Crystal Falls. I accept C.B.’s evidence in this regard. The progression to which she testifies, in which D.P. started by having her touch his penis in Atikokan and began touching her bum and breasts in Crystal Falls, and by which he made her do more to him at first, makes sense to me. She had not yet developed into a woman while in Atikokan. However, S.B. testified that her daughter developed into a woman at an early age and C.B. turned 14 the summer she stayed in Crystal Falls. D.P. admitted that he found C.B. to be sexually attractive, although he says he only felt that way after they first had intercourse. I do not accept that. If he had a hard time saying “no” to her at age 16, as he would have us believe, then I see no reason why he would have an easier time saying “no” to her when she was a 14 year old “flirt”, as he alleged her to be.

c. The sexual contact prior to January 3, 1988 included making C.B. masturbate and perform oral sex on D.P., but not to the extent to which C.B. testified. I accept C.B.’s evidence that the masturbation began while they were in Atikokan and that the oral sex began while they were in Crystal Falls. This also makes sense, given that they were alone in Crystal Falls before S.B. and the other children arrived. There was less of a risk that they would be discovered.

d. The intercourse on January 3, 1988 did not take place in a motel room, but in the Thunderbird. In her note, C.B. makes no mention of a motel room. Her choice of words (“before we got home (D.P.) and I stopped”) is more in keeping with D.P.’s version of events than with hers. It follows that I do not accept C.B.’s evidence about not wanting to go into the room, etc. I accept D.P.’s evidence about this incident, with the exception of his assertion that C.B. consented, as I will explain shortly.

e. The photograph was taken in 1992, at the Moose Motel in Smooth Rock Falls. Counsel for D.P. had not put the evidence of a sexual encounter at that location to either of the Crown’s witnesses during their testimony. For that reason, to remedy the breach of the rule in Brown v. Dunn, I allowed the Crown to recall those witnesses to deal with that evidence. C.B. testified that she did go to the Moose Motel quite a few times while she was growing up, but that she was never alone there with D.P. and that the photograph was not taken there. S.B. agreed that they did attend the Moose Motel as a family, but was not asked if she recognized any of the scene depicted in the photograph. I find the evidence of D.P. to be more reliable on this issue. The admission was against his interest and his evidence on the point was detailed.

f. There was no incident of sexual intercourse between C.B. and D.P. in Timmins. I can see no reason why D.P. would not admit this incident, if it occurred, given his other admissions, and C.B.’s evidence on the issue at trial was in direct contradiction to her evidence at the preliminary inquiry. However, I accept C.B.’s evidence that she masturbated D.P. and performed oral sex on him while she lived in Timmins. Given that they had already engaged in an act of sexual intercourse, I find it unlikely that D.P. would not seek further sexual gratification of some kind with C.B. I have concluded that D.P. will admit only to sexual intercourse because the other types of sexual contact to which C.B. testified do not involve mutual stimulation and, therefore, make it less likely that C.B. was as willing a participant as D.P. would have me believe.

g. There were two other occasions upon which D.P. had sexual intercourse with his common law stepdaughter, namely the occasions in the bedroom of D.P.’s home and at C.B.’s home on Parker Street, to which D.P. testified. C.B. also testified about the incident in the bedroom. With respect to the incident at Parker Street, C.B. testified that only oral sex occurred there. Because D.P. was the better historian about those events that he was prepared to admit, I prefer his evidence with respect to these ones, subject to what I have to say about the issue of consent.

[74] I turn now to that issue, amongst others.

Consent and Other Issues

[75] Count 3 alleges that D.P. committed the offence of indecent assault between the dates of January 1, 1979 and December 31, 1983, at Atikokan. Pursuant to s. 140 of the Criminal Code, the age of consent was 14. Consent is not a defence to this allegation, because C.B. did not turn 14 until June 28, 1985. Therefore, I need not address that issue. However, there is another issue with respect to this count.

[76] C.B. testified that she was in grade 7 and 8 when she was first made to masturbate D.B. in Atikokan, which would have been in the years 1983 to 1985, based on her birthdate and the normal progression through school. The provision under which D.P. was charged, s. 149, was repealed on January 4, 1983. C.B. would not have started grade 7 until September of that year. By that time, s. 149 was no longer in force. Therefore, D.P. cannot be convicted of this offence based on this evidence.

[77] Count 4 alleges that D.P. committed an act of gross indecency which took place in Atikokan in the same period covered by count 3. The provision defining this offence was not repealed until January 1, 1988. By virtue of s.158 of the Code, the age of consent with respect to this offence was 21. For that reason, consent is also not a defence to this allegation. There is no issue that the act of making someone masturbate another may constitute an act of gross indecency.

[78] Count 5 alleges a sexual assault occurring in Crystal Falls. At the close of the Crown’s case, I granted a motion by the Crown to amend that count to expand the time frame, such that it now spans from May 1, 1984 to August 31, 1985. The age of consent was 14 at the time, pursuant to s.246.1(2) of the Code. D.P. and C.B. arrived in Crystal Falls in mid-June and C.B. turned 14 on June 28, 1985. Therefore, the Crown must prove that C.B. did not consent to those acts that took place after that date. It has done so. I accept C.B.’s evidence that she did not want D.P. to touch her, nor did she want to masturbate him or perform oral sex on him. I find it unlikely that C.B. was that much of a “flirt” at that age, to use D.P.’s terminology. Further, the evidence that C.B. spent a lot of time at the home of her friend is consistent with her wanting to avoid the sexual contact.

[79] Count 6 alleges the offence of sexual assault committed between September 1, 1985 and June 28, 1986, when C.B. was between the ages of 14 and 15. The age of consent with respect to that count is 14. For the same reason that I accept C.B.’s evidence regarding consent with respect to count 5, I find that she did not consent with respect to this count. However, this count alleges that the sexual assault occurred at Sturgeon Falls. The only detailed evidence of any sexual assault occurring during that period of time is the evidence of the acts that occurred when D.P. let C.B. drive to the tower at Crystal Falls. A similar problem arises with respect to count 8.

[80] Count 8 relates to events between January 1 and December 31, 1988. Clearly, this relates to what happened on January 3, 1988. The age of consent was 14 at that time. C.B. was 15. The count alleges that D.P. committed a sexual assault on C.B. However, it alleges that it occurred at the Town of Pembroke, whereas I have found that it occurred at a location about a 10 minute drive from Sturgeon Falls.

[81] Section 601(5) of the Criminal Code provides that a variance between a count in the indictment and the evidence is not material with respect to the place where the offence is alleged to have occurred, provided that it is proved that it occurred within the jurisdiction of the court. The jurisdiction of this court is the Province of Ontario. Therefore, D.P. may be convicted of the offences alleged in count 6 and 8, even if the evidence is that the offences occurred at places other than those alleged, as long as the place of the alleged offence is not an element of the offence or crucial to the defence: R. v. B. (G.), 1990 CanLII 7308 (SCC), [1990] 2 S.C.R. 30.

[82] I am of the view that the locations at which the offences alleged in counts 6 and 8 are neither part of the elements of the offences, nor crucial to the defence of them. With respect to count 6, the issue is not where the offence took place, but whether it took place at all. With respect to count 8, D.P. was prepared to and did defend the allegation on the basis of C.B.’s age at the time; in other words, based on the date, and not on the place where it occurred. I return now to the issue of consent as it relates to count 8.

[83] I accept D.P.’s evidence that C.B. took off her own pants that night on the way home from Pembroke. But that does not end the matter. Implied consent is not a defence: R. v. Ewanchuk, 1999 CanLII 711 (SCC), [1999] 1 S.C.R. 330. I must go on to consider whether C.B. validly consented.

[84] Section 265 of the Criminal Code defines assault, including the requirement that there be no consent on the part of the complainant. Section 265(3)(d) reads:

(3) For the purposes of this section, no consent is obtained where the complainant submits or does not resist by reason of

(d) the exercise of authority.

This section came into effect on January 4, 1983 and was, therefore, in effect at the time of the alleged offence.

[85] To invalidate consent under s.265(3)(d), the exercise of authority must be coercive: R. v. Lutoslawski, 2010 ONCA 207, at para. 12. In R. v. Matheson (1999), 1999 CanLII 3719 (ON CA), 44 O.R. (3d) 557, the Ontario Court of Appeal upheld the decision of a trial judge who found that the consent of two patients to have sex with their psychologist had been vitiated under s.265(3)(d) by virtue of the authority he had over them. Counsel for D.P. points out that the trial judge in Matheson had expert evidence before him to allow him to reach that conclusion, which is absent here. However, I do not believe that such evidence is required in this case.

[86] The expert evidence in Matheson related to whether the psychologist had authority over his patients, not to whether the authority vitiated the consent. I do not need an expert to tell me that a father has authority over his common law stepdaughter. There is a significant body of evidence in this case that D.P. was in the position of a father to C.B., including his own admission in that respect.

[87] I have concluded that C.B. participated in the sexual intercourse that took place on January 3, 1988 because of the sexual acts in which D.P. had engaged with her before she was old enough to consent and because of the coercive use of the authority D.P. had over her at the time. A pattern had developed which C.B. was powerless to stop. This pattern was created by D.P., through the system of rewards he gave his troubled common law stepdaughter for her compliant behaviour - rewards such as money and a chance to drive the car, just as she was doing that night. As C.B. herself put it, “I was never, ever an adult”. While I have reached a different conclusion concerning later events, I believe that C.B.’s ability to withhold her consent was overcome by D.P.’s authority over her as her de facto father.

[88] Count 10 alleges a sexual assault at the Town of Timmins between January 1, 1989 and December 31, 1989. For the same reasons that I have expressed regarding count 8, I find that C.B. participated in the acts of masturbation and fellatio by virtue of D.P.’s authority as her common law stepfather.

[89] Count 11 alleges the commission of a sexual assault at Sturgeon Falls between January 1, 2001 and June 28, 2002. This could include the time at which the intercourse took place on Parker Street. It could also include the intercourse that took place in the bedroom at Nipissing Street, if I were to exercise my jurisdiction under s.601 regarding the date of the alleged offence. However, as I will explain, I am not satisfied beyond a reasonable doubt that C.B. did not validly consent to what occurred at those times and places.

[90] On August 15, 1992, s. 273.1 came in effect, dealing with the meaning of consent. Subsections (1) and (2)(c) and (d) read:

273.1 (1) Subject to subsection (2) and subsection 265(3), “consent” means, for the purposes of sections 271, 272 and 273, the voluntary agreement of the complainant to engage in the sexual activity in question.

(2) No consent is obtained, for the purposes of sections 271, 272 and 273, where

(c) the accused induces the complainant to engage in the activity by abusing a position of trust, power or authority;

(d) the complainant expresses, by words or conduct, a lack of agreement to engage in the activity;

The Crown argues that both by virtue of this section, and by virtue of s. 265(3)(d), C.B.’s consent to what took place was invalid. I am unable to reach that conclusion.

[91] I have already indicated my preference for D.P.’s version of the events underlying these acts of sexual intercourse. Therefore, I do not accept that C.B. expressed by words or conduct that she did not want to engage in the activity.

[92] Nor do I accept that she was induced to engage in the activity or that her consent was invalid by virtue of D.P.’s position of authority over her, or by the coercive use of that authority. By the time she moved back to Sturgeon Falls from Ottawa, C.B. was a grown woman. She was no longer a child. She had been on her own for a number of years. While D.P. and S.B. did help her out financially during that time, there is insufficient evidence that C.B. was dependent upon D.P., or that he continued to exercise the authority over her at that time that he did when she was between the ages of 15 and 17. Therefore, I am not satisfied that C.B.’s consent is invalid under either of these sections.

CONCLUSION

[93] Based on the findings I have made, I am satisfied beyond a reasonable doubt of D.P.’s guilt with respect to counts 4, 5, 6, 8 and 10. There will be convictions entered on those counts. Counts 3 and 11 will be dismissed. The remaining counts have already been stayed or dismissed at the request of the Crown.

Ellies J.

Released: 20131007

CITATION: R. v. D.P., 2013 ONSC 6232

COURT FILE NO.: SCJ 005/12

DATE: 20131007

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

D.P.

REASONS FOR JUDGMENT

Ellies J.

Released: 20131007