SUPERIOR COURT OF JUSTICE

COURT FILE NO.: Crim J(P) 1285/11

DATE: 20131219

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

G.L.

Defendant

H. Gluzman, for the Crown

P. O’Marra, for the Defendant

HEARD: June 3, 4, 5 6 and September 9, 10, & 16

Pursuant to S. 486(3) of the Criminal Code of Canada, a non-publication and non-broadcast order has been made by The Honourable Justice E.R. Tzimas

ADDENDUM TO THE FINAL JUDGMENT

Tzimas, j.

INTRODUCTION

[1] At the conclusion of the evidence and before final submissions, the Crown brought a similar fact application to apply the evidence of each of the complainants as between the counts in relation to the occurrence of the actus reus, towards explaining the narrative and relationship between the parties, to demonstrate a pattern of behaviour, and to rebut the defence suggestion that the alleged acts could not have occurred because of the risk of detection and the presence of another adult in the vicinity.

[2] The Defence opposed the application. Counsel stated that the evidence that the Crown is seeking to adduce at trial is presumptively inadmissible. He opposed the application on grounds that the evidence sought to be admitted by both L.D. and E.D. is not probative because a)their evidence is not reasonably capable of being believed; and b)there is the possibility of collusion between them.

[3] I dismissed the application and indicated that my reasons would follow and would be included in my final judgment. Through inadvertence they were not included in the final judgment released at noon on December 19, 2013. However, the reasons are outlined below and they are to be read jointly with my judgment.

ANALYSIS

[4] In making my determination on this application, I am guided by the question of whether the proposed similar facts are probative and whether their probative value outweighs the prejudicial effect on the accused. I am also guided by the factors connecting the similar facts to the circumstances of the charges, as outlined in in R v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908, at para. 82. Those factors are:

(1) proximity in time of the similar acts: D. (L.E.), supra, at p. 125; R. v. Simpson (1977), 1977 CanLII 1142 (ON CA), 35 C.C.C. (2d) 337 (Ont. C.A.), at p. 345; R. v. Huot (1993), 1993 CanLII 8652 (ON CA), 16 O.R. (3d) 214 (C.A.), at p. 220;

(2) extent to which the other acts are similar in detail to the charged conduct: Huot, supra, at p. 218; R. v. Rulli (1999), 1999 CanLII 3712 (ON CA), 134 C.C.C. (3d) 465 (Ont. C.A.), at p. 471; C. (M.H.), supra, at p. 772;

(3) number of occurrences of the similar acts: Batte, supra, at pp. 227-28;

(4) circumstances surrounding or relating to the similar acts (Litchfield, supra, at p. 358);

(5) any distinctive feature(s) unifying the incidents: Arp, supra, at paras. 43-45; R. v. Fleming (1999), 1999 CanLII 18921 (NL CA), 171 Nfld. & P.E.I.R. 183 (Nfld. C.A.), at paras. 104-5; Rulli, supra, at p. 472;

(6) intervening events: R. v. Dupras, 2000 BCSC 1128, [2000] B.C.J. No. 1513 (QL) (S.C.), at para. 12;

(7) any other factor which would tend to support or rebut the underlying unity of the similar acts.

[5] Turning to this case, there are a number of concerns that operate against the granting of the application.

[6] First, there are a number of inconsistencies in the evidence of the two witnesses. To be clear, there are inconsistencies within the testimony of each witness and there are inconsistencies between them as well. In L.D.’s testimony, there were inconsistencies between her chief and her cross with respect to whether some or only one assault happened in her bed. There were also inconsistencies regarding her relationship with her father and the nature of the help she was seeking from her father.

[7] E.D. testified that there was one incident in the van where G.L. penetrated her vagina with his finger while he was driving. However, there was no mention of that incident by E.D. when she gave her statement to the police.

[8] As between the two witnesses, the two were at odds over the frequency of E.D.’s visits and overnights at the grandparents’ place. E.D. said she was there frequently. She said they visited the grandparents every weekend. Furthermore she estimated that those visits may have been as many as 30. She estimated the assaults to be between 25 and 30 incidents. L.D. distanced herself from this subject and indicated that the visits to her parents would have been less than twenty. In one instance L.D. indicated that the overnights were rare. E.D. made it sound that it was much more frequently than rare.

[9] There were also differences between L.D. and E.D. on the subject of going to the police. Both agreed that it was E.D. who suggested the idea of going to the police. However, L.D. said that she left the decision up to her daughter. She said that she was prepared to follow her daughter’s wishes and that it was all about her daughter. E.D. indicated that it took her mother a year to get on board with the idea of going to the police. She said that she did not want to hurt her mother or to make it more painful than it already had been for her.

[10] A second concern lies with the prospect of collusion. I accept on this point defence counsel’s position that: “the substance of their testimony, together with the circumstances in which their version of events emerge, substantiate the possibility of collusion between them”. L.D.’s financial needs, the fact that at least two of her siblings had received substantially more money from her father than she did, and the subject of her father’s estate and its future distribution all represented a motive to lie. Although L.D. denied that she told P.L. that she would go to the police if she did not receive $250,000.00, on a balance of probabilities, there was a motive for L.D. to fabricate the allegations against her father.

[11] Furthermore, that motive combined with the twelve month delay and the requests by L.D. for help from her father suggest that the mother and daughter may have colluded on the allegations. The twelve month delay and the explanations for that delay were contradictory as between the two and in any event were incomplete. E.D. said that it was up to her mother to go to the police. L.D. said it was up to her daughter. The evidence before this court makes it clear that there was something more than mere opportunity for L.D. and E.D. to collude.

[12] Turning to the actual similarities in the alleged acts, a close look at the allegations reveals the similarities to be few. First, both E.D. and L.D. had difficulties with the dates and precise timelines. Second, E.D.’s firm position that her memory dated back to the age of two is very suspect. Third, the proximity in the time between the allegations is very wide. There is a 30 -35 years difference between the allegations by L.D. and the allegations by E.D. In those intervening years, the most significant material difference was G.L.’s change in his health and in particular, his impotence, post 1984. Fourth, the suggested similarities by the Crown are of a generic nature and do not import any probative value. For example, the words that were spoken were generic. There was no hallmark expression or specific feature in what G.L. was said to have said to both E.D. and L.D. The fact that G.L. spoke Italian is of no import. G.L. is Italian and his English is poor. It cannot be said that his language is a unifying feature in the evidence of the two Crown witnesses.

[13] Against the generic similarities, there are some material differences. In L.D.’s case, she said that her mother was never home because she was at work. There was no adult who might intervene or become aware of the alleged sexual activities. In E.D.’s case, she said that her grandmother and sometimes her aunt was present but either they were in another part of the house or they were sleeping. Furthermore, in L.D.’s case, she said that there was always intercourse, ejaculation and then a wiping with a white towel. In E.D.’s case, she said there was intercourse, but she denied that there was ever any ejaculation or that her grandfather had a white towel.

[14] The final concern, referred to earlier is the fact of G.L.’s impotence, his erectile dysfunction, and the implications of that on the credibility of the E.D.’s testimony. This is an intervening event that is significant. The prejudicial effect of admitting L.D’s evidence of prior discreditable conduct to the evidence of E.D. outweighs its probative value.

[15] When taken together, there are no distinctive features to unify the incidents as between the two complainants. Their counts must be considered separately.

CONCLUSION

[16] For these reasons, the application on the similar facts ruling is dismissed.

Tzimas, J.

Released: December 19, 2013

COURT FILE NO.: Crim J(P) 1285/11

DATE: 20131219

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

G.L.

addendum to final judgment

Tzimas, J.

Released: December 19, 2013

COURT FILE NO.: Crim J(P) 1285/11

DATE: 20131219

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

G.L.

Defendant

H. Gluzman, for the Crown

P. O’Marra, for the Defendant

HEARD: June 3, 4, 5 6 and September 9, 10, & 16

Pursuant to S. 486(3) of the Criminal Code of Canada, a non-publication and non-broadcast order has been made by The Honourable Justice E.R. Tzimas

Tzimas, j.

INTRODUCTION

[17] Mr. G.L. is charged with the following six counts:

1. For a five year period, last, past and ending on or about the 31st day of December 2000, G.L. sexually assaulted his granddaughter, E.D., contrary to s.271(1) of the Criminal Code of Canada;

2. For a five year period, last, past and ending on or about the 31st day of December 2000, G.L. had sexual intercourse with his granddaughter, E.D., contrary to s.155(2) of the Criminal Code of Canada;

3. For a five year period, last, past and ending on or about the 31st day of December 2000, G.L. touched his granddaughter, E.D., who was under the age of sixteen, directly with his penis for a sexual purpose, contrary to s.151 of the Criminal Code of Canada;

4. For a five year period, last, past and ending on or about the 31st day of December 1970, G.L. had unlawful sexual intercourse with L.D. while knowing that L.D. was his daughter, contrary to s. 142(2) of the Criminal Code of Canada, (1970);

5. For a five year period, last, past and ending on or about the 31st day of December 1970, had unlawful sexual intercourse with L.D., a female person who was not his wife and under the age of 14, contrary to s.138(1) of the Criminal Code of Canada, (1970); and,

6. For a five year period, last, past and ending on or about the 31st day of December 1970, G.L. had unlawful sexual intercourse with L.D., a female person not his wife without her consent, contrary to s.136 of the Criminal Code of Canada, (1970).

OVERVIEW OF THE ALLEGATIONS

[18] L. D. and E.D. are mother and daughter, respectively. They allege that they were sexually assaulted and violated by G.L., father and grandfather, respectively. For L.D., the allegations date back some 46 years. For E.D., the allegations date back 15 years. The disclosure of the allegations as among family members did not occur until the spring of 2009. The reporting to the police was delayed an additional year.

[19] Significantly, the disclosure in 2009 occurred against the backdrop of a family dispute. Although the nature of that dispute was not disclosed to the Court, for the purposes of this case, that dispute was the first domino to fall that eventually led to this trial. In addition, in the year between the family disclosure and the reporting to the police, there was an exchange between L.D., G.L. and P.L. that concerned possible financial support for L.D. and the future division of G.L.’s estate. The reporting to the police post-dated the disagreement among these individuals on these issues.

[20] The trial occurred over a period of seven days. The Court heard from four witnesses, including the accused. An application for a ruling on similar fact evidence as between L.D. and E.D. was dismissed.

EVIDENCE

a) Testimony of L.D.

[21] L.D. testified that she was sexually assaulted by her father on numerous occasions, over a period between 1965 and 1979, and between the ages of 7 and 11 years old. She did not report the incidents to the police until April 2010. Nor did she say anything to anyone until the spring of 2009. The initial disclosure was as a result of a meeting with her sisters over a communication that her father sent to his grandson. At that meeting, L.D. decided to tell her sisters about her sexual encounters with their father. She then told her daughter. It was then that her daughter disclosed to her that her grandfather had sexually assaulted her when she was little. L.D. testified that it was her daughter who wanted to go to the police.

[22] L.D. said that the first time she was sexually assaulted by her father occurred just before she turned 8, around the time of her first communion. She said that her father came into the bedroom, which she shared with her brother and sister. He put his hand over her mouth to prevent her from speaking or yelling and carried her to his bedroom. The next thing she said she knew was that he was on top of her, that he removed her clothing, fondled her and then penetrated her vagina. She said that he used his one hand to squeeze her nipple and his other hand to guide his penis inside her. She said that she did not say anything, that she was scared. She said that she tried to push him off but that she could not. She recalled something hard inside her and a back and forth movement. She also recalled that when he pulled out she was all wet. Her father used a towel to wipe her up and then to dry himself. Then he sent her back to her bed. L.D. said that she went back to her bed very quietly and that she was scared that she might wake her siblings up.

[23] L.D. said that the sexual assaults were repeated on numerous occasions. She said that very frequently they would occur in the afternoons when she was back from school. She said that her father would send her brother and sister outside to play. He would keep her inside the house, lock the doors and proceed to have sexual intercourse with her. L.D. explained that she would try to hide in a crawl space in the house basement or otherwise run around the house and try to get out but she would not succeed. In these repeated instances she said that her father would penetrate her and ejaculate. He always had a towel to wipe her clean.

[24] Sexual assaults also continued to occur late at night when L.D.’s mother was away at work. They would occur either in the basement or in her father’s bedroom.

[25] Speaking more generally about her childhood, L.D. said that they were not allowed to bring friends home from school. Nor were they allowed to go over to friends’ homes. L.D. also said that they did not have any toys. Instead they had to improvise when they played. All she remembered was a Barbie doll.

[26] L.D. spoke of her godfather who lived in Washington. She said that one year when she was twelve, she was invited to go for a visit. Her father did not allow her to go. Instead, he agreed to let L.D.’s younger sister to go. L.D. believed that the reason that she was not allowed to go was because her father wanted to keep her at home so that he could continue to assault her.

[27] L.D. gave full descriptions of the homes where they lived. She said that her parents had separate bedrooms both at the Riverdale Home and the home on Winston Churchill. At the home on Dundas, L.D. said that she and her sister shared a bed. Their brother was in the same bedroom but in a separate bed.

[28] When asked about why she would not say anything to her mother about these incidents, she said that she did not want to upset her mother. She said that her mother did not deserve to hear about her experiences. It would cause her to feel shame and pain. L.D. also said she feared that if anyone found out, they would all be taken away and placed in different homes.

[29] L.D. was asked about whether she had any concerns about leaving her daughter at her parents’ place over night given her own experiences with her father. She said that she did not because she knew that her mother was there. L.D. also said that the overnight visits were not very frequent and in any event, they were less than twenty. L.D. did not have an answer as to why she felt she could entrust her mother with her daughter’s care, when as a child she did not feel that she could go to her mother about her experiences.

[30] L.D. confirmed that her father had significant heart surgery in 1984. She was asked about his impotence following the surgery. She confirmed that this is what he said, but otherwise had no knowledge.

[31] L.D. explained that in early 2009 there was a serious confrontation between her sisters and her father. Her sisters then paid her a visit. At that meeting, L.D. decided to tell her sisters about her experiences with her father. Then the three sisters went to G.L’s home and confronted him with the allegations. L.D. recalled that her father blamed her for causing all the problems for her sisters. It was also around this time that L.D. told her daughter about her experiences. In response, her daughter revealed to her that she too had experienced several sexual assaults from her grandfather. At the meeting between the sisters and G.L., L.D. said that G.L. denied any wrongdoing whatsoever. L.D. also said that her brother was at one of the meetings and he too was advised of what happened.

[32] On the question of why she and her daughter went to the police in April 2010, and not in March, 2009, L.D. said that following the disclosure she left the issue with her daughter. She told her daughter that she would support her with whatever she decided to do. It was not until April 2010 that her daughter was ready to go to the police.

[33] L.D. was asked about her relationship with her father in the years leading up to the disclosure. L.D. explained that she was not seeing her father very often. When she did, he would be the one who would visit her. She also testified that in 2009 she was in the hospital for almost two and a half months. Her father would visit her periodically.

[34] L.D. denied helping her father find a place to live once her sister asked him to move out of the condo. She initially denied that she purchased forks and knives for him. However she then elaborated that she purchased a kettle and a coffee pot, as well as forks and knives.

[35] L.D. also denied having dinner occasionally with her father. She said that she would never be invited. But she also said that if she happened to stop in for a visit her father would offer her whatever he was eating. The food was not always appropriate for her because of her diabetes and her restricted diet.

[36] L.D. was asked about financial difficulties. She was coy and reluctant in her responses. However, she did admit to some such difficulties and that life was not easy. She said that she asked for her father’s help on one occasion and he helped her purchase a vehicle. She was asked about her concern over her father’s financial affairs. She denied that concern but said that her brother and his wife raised a concern over the appointment of a trustee. She also denied ever having a discussion with Peter about receiving her share of her inheritance sooner than later.

[37] On the subject of purchasing a new house in 2009, L.D. denied that she wanted a bigger house. She explained that as a result of her injury to her ankle she needed to move to a home on one level instead of multiple levels. She confirmed that when she was in the hospital she asked her father to come back from Italy because she need his help, and he came. Initially, she said that she wanted her father’s advice on the home. She said that he raised her over the years to be dependent on him. She felt controlled by him. She then tried to suggest that she went for guidance and advice because that is how he wanted it to be and this was a manifestation of her father’s controlling character. The implication seemed to be that she would not have gone to him if he were not so controlling.

[38] L.D. denied that in reality her request for advice was a request for financial support from her father. L.D. also denied that her father proposed to assist her with a bridge loan. Eventually, however, L.D. agreed that her father returned from Italy when she called him to ask for his help. She expressed frustration however because he did not come right away. She also confirmed that her father went to see a house with her children, the appointment having been arranged by her daughter, E.D. However, she said that she did not see the house.

[39] L.D. was asked about her brother planning to take her father on a trip to Las Vegas in March 2010 and her negative reaction to that prospect. L.D. said she could not remember such an occurrence. She denied having any confrontation with P.L. She also said that she had no recollection of asking her brother to help her get some money from her father. L.D. also denied asking her brother a month before she went to the police to convey the message to her dad: “Tell dad that I want $250,000.00 or I’m going to the police and I’m telling them that he raped me”.

[40] L.D. was asked about monies that her siblings received from their father. She testified that her father bought the condominium that her youngest sister was occupying and that he put it in her name and had some papers drawn up. L.D. also confirmed that she received $30,000.00 from her father at the time that he moved out of the condominium. She testified that her other sister received a loan of $80,000.00 from her father though she never paid it back. L.D. testified that she also received $1,000.00 around Christmas 1986, though she was not entirely sure of the year. She knew it was as a result of the sale of a property. Finally, L.D. testified that she had the use of a car but that she was never given a car. Her sisters received their own cars.

b) Testimony of E.D.

[41] E.D. was twenty four years old at the time of her testimony. She said that she was applying to universities to study political science and eventually she hoped to go to law school. E.D. was very articulate in her testimony she was also very measure and careful in the way that she answered the questions that were put to her.

[42] She said that she recalled being sexually assaulted as early as the age of two; that is, sometime in 1991. E.D. said that in most of the instances there was penile penetration by her grandfather. In the early years, she said that the assaults occurred in the afternoons when she was put down for a nap. As she got older, she would stay overnight at her grandparents. She said that the assaults would occur at night up in the loft where she was sleeping. She also said that her grandfather would touch her private parts regularly when she was watching television in the living room. Often her grandmother would be in the room but she would be fast asleep in her armchair. E.D. described two instances where the sexual assaults occurred in the basement cantina at the Winston Churchill home, while the rest of the family was gathered upstairs. Finally, she described one instance when she was in the van with her grandfather, going to the Riverdale home. As he was driving, he reached over and touched her vagina. Then at the Riverdale home, although the grandparents have recently moved away from there and the house was vacant, he took her up to the walk-in closet in the bedroom, he put her down on the floor and assaulted her.

[43] E.D. said that she could not recall if her grandfather ejaculated when he engaged in the sexual assaults. Unlike her mother’s reference to a towel, E.D. also did not have any recollection of such an item. With respect to whether the penis was erect, she said that this was not something that she would recall as a child.

[44] E.D. explained that she would typically try to hold her pants up and push away from her grandfather. However she was not successful at preventing the assaults. On at least two occasions, she recalled bleeding in her underwear, though there was no bleeding in the sheets. When that happened, she would throw away the underwear and not say anything to anyone. E.D. testified that she experienced between 25 and 30 incidents of sexual assault from her grandfather. She also said that she slept over at the grandparents’ quite a bit.

[45] E.D. explained that she never said anything to anyone because her grandfather told her not to do so and that in any event, nobody would believe her. When asked about whether she ever discussed with her mom the details of the assaults she said that she did not because it would be too painful, especially knowing that her mom went through similar experiences.

[46] When asked about the March 2009 family disagreement, E.D. confirmed that when her mom came home from her meeting with her sisters, she said that her mom sat her down and told her about the sexual abuse. However her mother did not go into any details. At that point E.D. decided to tell her Mom what had happened to her. On the subject of the timing of the reporting to the police, E.D. explained that they went to the police only in April 2010 because that was when her mother was ready to go. She said that she had expressed an interest to go but she would not go unless her mother agreed to go as well. She felt that she did not want to push her mother and to put her through more grief than what they had both endured. Ultimately, E.D. said that it was her idea to go to the police.

[47] On the subject of her mother’s relationship with her grandfather, E.D. testified that after the disclosure in March 2009 things really changed. At some point, she said that her grandfather called the house and E.D. told him off and asked him never to call back. That said, E.D. also testified that her mother maintained a close relationship with her father both after her grandmother died in 2003 and after the disclosure in March 2009. Although her grandfather never came to their house after March 2009, her mother would go to his apartment regularly.

[48] Regarding her mother’s health between March 2009 and April 2010, E.D. stated that her mother got very ill in September 2010 and was in and out of the hospital on several occasions. In that period she had five operations on her ankle. She also went into septic shock while at the hospital and had to have an additional four operations.

[49] On the subject of her mother’s finances, E.D. said that she was not aware of any discussions concerning her grandfather’s estate. She said that her mother did not discuss any such issue with her. She did confirm however that it was her mother who wanted to purchase a new house. E.D. testified that her mother wanted her to go and take a look at a house. E.D. also said that her mother spoke to G.L. and asked that he also take a look at the house, just like he had done with other houses. She wanted him to check it out and give her advice on what he thought about the house and its price. E.D. explained that she arranged for an appointment with the real estate agent to go see the house. She also said that her grandfather drove separately to the house while E.D. went there with the real estate agent.

c) Testimony of G.L.

[50] G.L. steadfastly denied the allegations against him by his daughter and granddaughter.

[51] G.L. was born on November 18, 1932. His first language is Italian. He understands and speaks English relatively well but he testified in Italian with the support of an interpreter. G.L. did not have any previous criminal record. He came to Canada from Italy in 1957. He married his wife, E.L. in 1957. She passed away in 2003. G.L. has four children, three daughters and a son. He also has seven grandchildren.

[52] When he first came to Canada he worked as a bricklayer. He encountered difficulties with this job as he did not speak English very well and he had trouble converting measurements from the metric system to the imperial system, in other words, from centimeters to inches. He switched to working at a scrapyard and eventually started his own scrap business and worked for many years from his home. He did this work from 1964 to 1984. G.L. explained that he had a truck and he would go around from factory to factory and pick up all sorts of materials. He would bring the materials back to his garage at home where he would sort through them. Then for example, if he had bricks and iron material, he would bring them to Hamilton where he would sell them. G.L. said that he typically worked from 7 a.m. until about 4 p.m. That schedule meant that he was at home in the afternoons when the children came home from school. G.L. explained that often, while he worked in the garage, the children would play either in the backyard or in the front of the house.

[53] During this general period, G.L. explained that his wife have various part-time jobs. Except for the periods when she had the children, his wife did shift work at a plastics factory. She also had a part-time job at a school and she also cleaned some homes.

[54] The Court was left with the impression that both G.L. and his wife were very hard working. Over the years, they managed their financial affairs well and by 2010, G.L. had an estimated net worth of somewhere between $400,000.00 and $500,000.00. This net worth was in addition to monies he gave to his children, discussed more particularly below.

[55] Regarding the care of the children, G.L. explained that he and his wife shared the tasks depending on who was working and who was at home. He was often the one who cooked their meals. When his wife was working night shifts, he would be the one to make sure that they went to bed. As he explained his role in the bed routine, G.L. gave some confusing testimony over the specific ages of when he would put the children to bed and when they could put themselves to bed. Initially he said that after the age of four, they would go to bed by themselves and that all he had to do was ask them to go to bed. When asked to elaborate, he shifted the ages downwards to suggest that they could go by themselves after the age of 2. But he also said that his youngest at the time, “P”, needed to be put to bed while the older two children were able to take care of their own bedtime routine.

[56] G.L. explained that they took trips to Italy on four to five occasions. He also said that they went on a trip to France. In response to the issue of L.D’s complaint about not having toys, G.L. said that when they went to Canadian Tire, the children could pick out whatever toys they wanted. He found the suggestion that the children did not have toys preposterous. He also remembered that the Barbie doll referred to by L.D. was a gift from her godfather.

[57] G.L. was also asked about L.D.’s allegation that they were not allowed to bring any friends home and that in one instance when her uncle invited her to visit in Washington, her father did not allow her to go. G.L. explained that there was no prohibition against friends visiting their home. Nor was L.D. prevented from visiting with friends. On the subject of the trip, G.L. remembered the trip very well and explained that did not permit L.D. to go because it was during the school year and L.D. was having significant difficulties in school. Neither he nor his wife wanted L.D. to miss school. He said that his wife suggested that their daughter, “C”, go to Washington instead of L.D. and he agreed.

[58] G.L. stopped working when he started having serious health problems. In October 1984 he had double by-pass heart surgery. One of the outcomes of the heart surgery was that it left him permanently impotent. A year and a half later he had to have stomach surgery because of a stomach ulcer. At some point, he also had to have his gall bladder surgery. Finally, G.L. said that he also suffered from asthma.

[59] G.L. confirmed that he and his family lived at a number of different homes. Starting in 1961-62, they lived in a house at 645 Dundas Street in Mississauga. From 1964, and for about a year and a half thereafter G.L.’s parents lived with them. After his parents moved, and in the period between 1966-67, G.L. said that he rented out his basement to five workers who needed a place just to sleep. In cross-examination, G.L. also referenced an additional tenant by the name of Beatrice. He was not asked to provide the precise time period of her lease.

[60] In 1985-86 G.L. and his family moved to the Winston Churchill home, where they had more space. In 1990-91, they moved to a home on Grenville Drive, in Riverdale. Some years later, they moved back to the Winston Churchill home.

[61] G.L. also said that both L.D. and C had part-time jobs when they were in high school. He also explained that “C” participated in school sports. L.D. did not participate in school sports because she was heavy.

[62] G.L. testified that he helped his children financially on several occasions. He said that he bought a car for all of his children. The condition was that they complete their studies. In L.D.’s case, he did buy her a car, even though she quit school on two or three occasions and eventually left it altogether. G.L. said that the children did not have to pay for insurance, gas or auto repairs. He said that once it was clear that L.D. was not going to complete her studies, she did not get another car. However, she always had access to a car.

[63] G.L. also said that over the years, L.D. needed financial help. He explained that on one occasion, he gave L.D. $30,000.00. On another occasion, he gave her $5,000.00. One Christmas, he said he gave her $1,000.00. He also said that he gave each of the children $10,000.00 before his wife died. Furthermore, he said that he loaned her $6,000.00 to buy a van in Hamilton.

[64] G.L. then spoke about a letter he wrote to his grandson on the eve of his wedding where he enclosed a gift of $1,000.00 and invited his grandson to talk to him if he wished to understand why he did not get along with his mother and father. He thought that he sent the letter sometime in March 2009.

[65] That communication triggered a very significant family argument between G.L. and his daughters. G.L. seemed to have difficulty with the precise timeline surrounding the argument. It was not entirely clear if the meeting occurred before or after he sent the letter to his grandson. However, what he remembered very clearly was that, at that meeting, L.D. confronted him with the sums of money he had given to her sisters and she asked about when she would be receiving her share. His other daughter, “C”, confronted him with L.D.’s allegation that he had molested her when she was little. G.L. said that he denied those allegations and told them they were crazy, that they were pigs, and questioned whether they were Christians. G.L. said that he also had a horrible exchange with his youngest daughter, “A”. In the result, A asked him to move out of the condominium apartment which he had bought for her and which he was sharing.

[66] G.L. he explained that immediately following this confrontation he sought advice from his lawyer. He then looked for another place to live and arranged to move. He thought that he began living at his own place on April 1, 2009.

[67] G.L. confirmed that L.D. helped him with his move. She went to the apartment and helped to arrange the furniture. Moreover, she bought him pots and pans and other kitchen supplies needed for the kitchen. Thereafter, L.D. would visit him regularly.

[68] Soon after the move, G.L. said that he went over to Italy for a visit. He said that since his wife passed away he would visit Italy regularly. He said that two weeks into his trip in Italy, L.D. called him and asked him for help. She told him that she was in the hospital with a broken foot. G.L. said “she was begging me to come back because she was saying that nobody was helping her.” He then explained that he decided to return.

[69] While still in hospital, L.D. told G.L. about a house that her children had seen and that she wanted to buy. She asked him to go see it. G.L. said that he went over to see the house but he did not believe that the house was a good choice for his daughter. L.D. insisted that she wanted to sell the house she had and to purchase the new house. She also wanted him to buy her the house, just like he had done for the other siblings. The house was priced at $350,000.00. G.L. explained that he would not do that for her. He said that he felt that the other children ripped him off and he did not want to have a repeat of that experience. Instead, he offered to go to the bank to help L.D. obtain a loan. He also offered to provide her with some bridge financing until she could sell her existing house. L.D. got very upset with his refusal to buy her the house. After that exchange, G.L. said that she became an enemy and she stopped calling on him. He said that the disagreement occurred in September 2009. He received a call from the police in May 2010.

[70] G.L. was cross-examined extensively on the statement he gave to the police. He was asked about the disappearance of his will from his home as well as the disappearance of some valuables. G.L. explained that he kept a copy of his will in his desk drawer while he lived at the condo. He said “when I left that apartment, they stole my will, they stole my wife’s gold, they stole everything”. He said that he had a new will drawn up. G.L. was not able to identify who stole these items although he said that it could not have been L.D. because she had had a falling out with A and she would not come to the condo. He discovered that his items were missing once he was in his own apartment and went looking for them. He was troubled by the fact of the theft but he chose not to call the police. He did not feel he would get anything out of such a reporting.

[71] G.L. was asked about the times that his daughter spent with him and his wife. He said that when E.D. was very young, he remembered her having afternoon naps at the Riverdale Home but he did not remember her ever staying overnight. He said that his daughter would bring the children over for visits. G.L. did remember that E.D. slept overnight at the Winston Churchill home on several occasions. He also said that he could not remember if he ever gave E.D. any ride in his car. However, he confirmed that he had a number of cars, including a van. He said that he rarely drove the van; he drove his truck.

[72] In the time period that G.L. lived at the Winston Churchill home, he indicated that they would often sit in the living room and watch television. He said that the Wheel of Fortune was a favourite program. He also said that very frequently, in the evenings he and his wife would go out. His wife liked to play bingo. He would drop her off to play bingo and he would go to the bar for a few hours. The children were old enough to be left alone at home. G.L. said that often, his wife would fall asleep and that she would snore. The snoring was quite an issue and eventually, as the children moved out of the house and bedrooms became available, G.L. and his wife had separate bedrooms.

[73] G.L. testified that the extended family would get together at the Winston Churchill home a few times a year. He said that he was responsible for buying the food but that the daughters would cook. He would also go down to a cool storage space he described as a cantina to bring up wine. When asked if E.D. went down to the cantina with him, he said that it was possible that she did come down but it was not because he asked her to do so. He said that he would not have needed her help for anything.

[74] G.L. was asked both in his examination in chief and under cross-examination repeatedly about sexually assaulting and sexually violating his daughter and granddaughter. At no time did he hesitate or waiver in his denial of the allegations. He said that he never touched either of the complainants.

d) Testimony of P.L.

[75] P.L. is L.D.’s brother, E.D.’s uncle, and G.L.’s son. He testified that while he was growing up he never had any indication from his sister that something inappropriate was going on between her and their father. He also had no recollection of a back door being locked or of being kept out of the house. He said that L.D. played outside with him and his other sister.

[76] P.L. confirmed that his father had heart surgery in the mid eighties. After the surgery, his father’s health deteriorated significantly and he was forced to retire.

[77] On the subject of L.D.’s relationship with their father, P.L. said that L.D. was very close, that she was over-protective of him and that she looked after him. P.L. also said that L.D. was not very happy when their younger sister asked their father to leave the condominium. As a result, he said that L.D. helped her father find an apartment and then she helped him move and also got him kitchenware and supplies.

[78] Regarding L.D.’s finances and more particularly G.L.’s estate, P.L. spoke of a meeting that he had with his father and L.D. On that occasion, their father told them that he would be dividing the estate equally between him and L.D. The other two sisters were taken care of already. P.L. said that L.D’s demeanour changed after that exchange very significantly. He also said that L.D. kept calling him and they kept having arguments over the subject. In response P.L. told his sister that he could not help and that ultimately it was their father’s money and he could do whatever he wanted with his money.

[79] L.D. knew that her father was going to be going to Las Vegas with P.L. and his family. Just before P.L. left for Las Vegas, L.D. asked for an advance of $250,000.00. She told P.L. that if she did not get the money she would go to the police to report her father for sexual assault.

[80] P.L. was also asked about his father’s relationship with the children. P.L. said that G.L was very much a family man. He was very loving and caring and he did a lot “with us kids”. Insofar as discipline was concerned, P.L. said that he was definitely a disciplinarian and the children had to do what they were told. However, P.L. also noted this approach that was a reflection of his father’s cultural background and his times.

[81] Finally, P.L. was asked about truck drivers renting space at the Dundas home. P.L. could not remember many details but he did remember that there were a number of truck drivers sleeping downstairs. He also said that he did not recall any bathroom or kitchen in the basement.

ANALYSIS

[82] To begin with, the Crown bears the burden of proving that the accused is guilty of each of each offence beyond a reasonable doubt. Proof to a mathematical certainty is not required as that would be virtually impossible to achieve: R v. Liftchus, 1997 CanLII 319 (SCC), [1997] 3 S.C.R. 320. Where there are multiple counts in the indictment, the evidence in relation to each count must be considered as it relates to each count to determine whether or not the Crown meets its burden of proof.

[83] Most sexual assault prosecutions turn on the credibility of the evidence of the two, or in this case, three principals, the two complainants, and the accused. It is open to a court to believe all, none or some of a witness’ evidence: R. v. Francois, 1994 CanLII 52 (SCC), [1994] 2 S.C.R. 827, at para. 14; D.R. et al. v. The Queen (1996), 1996 CanLII 207 (SCC), 107 C.C.C. (3d) 289 (S.C.C.) per L’Heureux-Dube J. (dissenting in the result), at p.318; R v. M.R., 2010 ONCA 285, at para. 6; R v. Hunter, [2000] O.J. No. 4089 (C.A.)(QL), at para. 5; R v. Abdullah, 1997 CanLII 1814 (ON CA), [1997] O.J. No. 2055 (C.A.)(QL), at paras. 4-5. It follows that a trier of fact is entitled to accept parts of a witness’ evidence and reject other parts. The trier of fact may also accord different weight to different parts of the evidence that the trier of fact has accepted: R v. Howe, 2005 CanLII 253 (ON CA), [2005] O.J. No. 39 (C.A.)(QL), at para.44.

[84] That said, a determination of guilt or innocence must not devolve into a credibility contest between two witnesses, as it would erode the operation of the presumption of innocence and the assigned standard of persuasion of proof beyond a reasonable doubt: W.(D). v. The Queen (1991), 1991 CanLII 93 (SCC), 63 C.C.C. (3d) 397 (S.C.C.), at p.409; Avetsyan v. The Queen (2000), 2000 SCC 56, 149 C.C.C. (3d) 77 (S.C.C.), at pp. 85-87; and R v. S.M., [2012] O.J. No. 3868.

[85] With these general principles in mind, credibility is to be assessed on the basis of the following three steps, as first laid out in W. (D.), (para. 28):

First, if you believe the evidence of the accused, obviously you must acquit.

Secondly, if you do not believe the testimony of the accused but you are left in a reasonable doubt by it, you must acquit.

Thirdly, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

[86] When working through the process of assessing credibility, it is crucial to note that the mere disbelief of the accused’s evidence will not satisfy the burden of proof upon the Crown: see W. (D.), at p. 409. To use the disbelief of the accused’s evidence as positive proof of guilt would be an error: R v. Dore (2004), 2004 CanLII 32078 (ON CA), 189 C.C.C. (3d) 526 (Ont. C.A.), at p. 527 (leave to appeal refused, [2004] S.C.C.A. No. 517; R v. H. (S.), [2001] O.J. No. 118 (C.A.)(QL), at paras. 4-6. The court must be satisfied on the totality of the evidence that there is no reasonable doubt as to the accused’s guilt.

[87] The testimony of youthful witnesses or of adults testifying about events from their childhood is not inherently unreliable. The testimony of young witnesses should be considered against measures of common sense when because of their young age they are unable to speak to details or because their experience as a child is very likely different from that of an adult. The Supreme Court of Canada has explained that where an adults testify about events that occurred during their childhood, their credibility and reliability according to criteria applicable to an adult witness. “Yet, with regard to her evidence pertaining to events which occurred in childhood, the presence of inconsistencies, particularly as to peripheral matters such as time and location, should be considered in the context of the age of the witness at the time of the events to which she is testifying, R v. W.(R.), 1992 CanLII 56 (SCC), [1992] S.C.J. No.56.

[88] The assessment of a witness’ credibility may include the following considerations:

a) An evaluation of his or her demeanour as testimony is provided to the trier(s) of fact in the courtroom – this could include “non-verbal cues” as well as “body language, eyes, tone of voice, and the manner” of speaking, bearing in mind that the subjective perception of demeanour may not be reliable: R v. N.S. (2010), 2010 ONCA 670, 102 O.R. (3d) 161 (C.A.), at paras. 55, 57, affirmed by the SCC in [2012] SCC 72; and Law Society of Upper Canada v. Neinstein (2010), 2010 ONCA 193, 99 O.R. (3d) 1 (C.A.), at para. 66.

b) A delay in disclosure, standing alone, cannot give rise to an adverse inference against the credibility of the complainant in a sexual assault case: R v. D.(D.), 2000 SCC 43, [2000] 2 S.C.R. 275 at para.63. The significance and relevance of such delay will depend on the court’s assessment of the evidence relevant to the failure to make a contemporaneous complaint.

c) The absence or existence of a motive by the complainant to fabricate the complaint is a factor to be considered: The Queen v. K.G.B. (1993), 1993 CanLII 116 (SCC), 79 C.C.C. (3d) 257 (S.C.C.) at p.300 and R v. Greer, 2009 ONCA 505, at para.5.

[89] A distinction is to be made between the credibility of a witness and his or her reliability. Credibility relates to the question of a witness being truthful. Reliability relates to the accuracy of the evidence. If a witness is not credible, his or her evidence will not be reliable. By contrast, a witness who is credible may make an honest mistake about his or her evidence: R v. Gostick 1999 CanLII 3125 (ON CA), [1999] O.J. No. 2357 at paras. 15 and 16; R v. Vickerson 2005 CanLII 23678 (ON CA), [2005] O.J. No. 2798, at para.28 (ONCA); and R v. S.C., 2012 CanLII 33601 (NL SC), [2012] N.J. No. 210, 324 Nfld & P.E.I.R. 19.

[90] Historical sexual assault cases may present particular concerns with the reliability of the evidence being produced because of the passage of time and vulnerabilities and frailties of human memory. The trier of fact must be attuned to these challenges and must assess very carefully any significant inconsistencies or contradictions within the principal Crown witness’ testimony, concluding that guilt has been established: R. v. S.W. (1994), 1994 CanLII 7208 (ON CA), 18 O.R. (3d) 509 (C.A.), at p. 517 (leave to appeal refused [1994] S.C.C.A. No. 290; R v. Oziel), [[1997] O.J. No. 1185 (C.A.) (QL), at paras. 8-9; R v. Norman (1993). 1993 CanLII 3387 (ON CA), 87 C.C.C. (3d) 153(Ont. C.A.), at pp. 172-4. The trier of fact must also be alive to the possibility of collusion between witnesses: R v. Burke, 1996 CanLII 229 (SCC), [1996] 1 S.C.R. 474.

FINDINGS

[91] I found G.L. to be credible and I believe him when he says that he did not engage in any sexual assaults against his daughter and his granddaughter.

[92] G.L. did not waver or hesitate when he denied having any sexual relations, sexual intercourse, or sexual touching of any kind with either L.D or E.D. In a few instances, he was visibly angry, frustrated, and disappointed by the allegations he had to address. He expressed that anger and frustration when he recounted his reaction to the confrontation he had with his daughters in 2009 and asked them if they were pigs or Christians. At other times he looked tired and had minor difficulties with his memory and his hearing. In some instances, L.G.’s answers to the questions put to him strayed from what he was being asked. I attribute that more to his unfamiliarity with court proceedings, his elderly age, and his distress over the allegations. On balance, his testimony was solid, cogent and credible.

[93] Specifically, G.L.’s evidence was unshaken. There were no substantive inconsistencies between his evidence to the police and his evidence in court. The chronology of moves to the various houses, the lifestyle he described, the health challenges he encountered, and even his description of what monies he gave to his children were all corroborated by the testimony given by the other witnesses. To the extent that there were some inconsistencies, they related to the childrens’ specific ages and certain periods of time in the chronology.

[94] At no time did G.L. try to run away from the allegations. For example, he did not make any suggestions that he never had the opportunity to be alone with either his daughter or granddaughter. To the contrary, he was clear that the children were left in his care regularly, particularly since his wife did a fair bit of shift work. The same was true for his granddaughter.

[95] There was no corroborating evidence with respect to a maroon housecoat that E.D. said she thought he wore. G.L. said he did not have such a coat. He said that he had a black housecoat that he owned for years and years.

[96] G.L. denied that his granddaughter asked him not to ever come back to their home after the disclosure in 2009. However, he also was clear that he did not go to visit after the 2009 disclosure but L.D. continued to visit him regularly and helped him with his move to the apartment.

[97] On the subject of the discipline and caring of his children, G.L. was not asked about his specific discipline style. What became evident both through his demeanour and through his general description of the family’s lifestyle was that this was a traditional hard-working family. Toys from Canadian Tire might suggest limited choice and options and likely a frugal approach to such purchases. However, what was really clear was that G.L. and his wife worked very hard to make ends meet and to support their four children. By his later stage in life, G.L. had accumulated substantial assets, but they were the product of very hard work.

[98] Similarly, G.L.’s reaction to the invitation to L.D. to go to Washington was reasonable given his explanation that L.D. was having difficulties in school and that a two-week absence during the school year would not make sense. L.D.’s difficulties in school were not contested.

[99] On the subject of his financial support for L.D., G.L. seemed to demonstrate the same kind of common sense and practical approach that he undertook during his life to manage his affairs. This was not the first time that he had helped L.D. out with her finances. He likely suspected that it would not be the last either. G.L. also had the recent experience of being kicked out of his younger daughter’s condominium apartment even though the uncontested evidence before this Court was that he purchased that condominium for his younger daughter on the understanding that he would be able to live there as well. He said he felt ripped off once; he did not want to be ripped off again.

[100] In light of that concern, he approached his daughter’s request for help in a very measured but practical way. First, he came back from his trip to Italy when L.D. asked him for his help. Then, when it came to the subject of the house, he agreed to look at the house. Although he expressed his reservations as to whether in fact the house was a good choice for his daughter, he then offered to help L.D. with a bridge loan. Although L.D. denied such an offer the overall evidence would suggest that L.D.’s real issue was her dissatisfaction with the extent and the nature of that kind of support.

[101] At the end of the day, what the Court saw was a hard working individual who, in his own way, did what he could to support his family. He may have been strict. The family’s means may have been limited. There may have been few toys given the competing demands of raising four children. However, G.L. tried to be there for his children and they knew that. That was especially evident in L.D. who turned to him for help in September 2009 when she was in the hospital. G.L. returned from Italy to support his daughter in the way he thought made sense. Nothing in his testimony betrayed this narrative or his contention that he never touched either his daughter or granddaughter.

[102] In light of my conclusion regarding G.L’s credibility, there is no need for me to consider any other evidence.

FINAL DISPOSITION

[103] Given my finding on the credibility of G.L., I find G.L. not guilty on all six counts.

Tzimas, J.

Released: December 19, 2013

COURT FILE NO.: Crim J(P) 1285/11

DATE: 20131219

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

G.L.

REASONS FOR JUDGMENT

Tzimas, J.

Released: December 19, 2013