ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 280-11

Oral Decision Given: March 6, 2014

Written Decision Released: March 7, 2014

BETWEEN:

HER MAJESTY THE QUEEN

– and –

R.B.

Defendant

Guy Roy, for the Crown

George Florentis, for the Defendant

HEARD: February 24, 25, 26 and 27, 2014

Ban of Publication pursuant to s. 486.4(1) and s. 539(1) of the Criminal Code of Canada

REASONS FOR JUDGMENT

HENNESSY, J.:

[1] The accused, R.B., was charged with one count of sexual assault and one count of invitation to touch (s. 151(a) Criminal Code).

[2] The complainant, K., is now 18 years old. She alleges that the accused sexually assaulted her while he lived with her mother when she was between the ages of four and six years old.

Facts not in Dispute

[3] The mother, S.L., had two children, K. and D. S.L. was separated from their father who usually took the children to his home every weekend or every other weekend. In October 2000, R.B. moved into the mother’s three bedroom residence with his son, J.

[4] In February 2001, the family, including the complainant, her mother and brother, and the accused and his son, moved into a four bedroom apartment (the “second residence”). The accused’s two other children visited during weekends on a monthly basis.

[5] During the time the accused lived with the family, the children were the following ages:

a) K., the complainant, was born in 1996 and was between four and one-half to six and one-half years old;

b) D., the complainant’s brother, was one year younger than K., three and one-half to five and one-half years old;

c) J., the son of the accused, was born in 1996 the same year as K.

[6] During this time, R.B. was going to college in a full-time course of study and worked evenings and weekends delivering pizza. During the time in the second residence, S.L. was a full-time student and also worked evenings at a salon.

[7] J., the son of the accused, had behavioural issues relating to his developmental delay. His grandmother, H.R., often visited to assist in looking after her grandson J. or babysat him especially if S.L. was not present.

[8] A.B., the sister of the accused, lived in an apartment downstairs from the family. There was a nine month overlap when A.B. lived in the same building as the family.

[9] For some period of time at this residence, probably in 2002, the brother of the accused, M.B., lived with the family.

[10] There were two parks close to the second residence. One of those parks was also very close to the first residence.

[11] R.B. moved out of the couple’s second apartment in October 2002 when he separated from S.L.

[12] In 2006 R.B. met K. by coincidence.

[13] In the fall of 2009, when the complainant was 13 years old and in grade 8, she moved in with her father. She testified that she felt safer at her father’s home. By this time the father was married to S.. The complainant had been suffering from stomach pain and anxiety attacks. Her mother had made an appointment for her to see a pediatrician. The first visit to the pediatrician took place on October 28, 2009. S. accompanied K. to the appointment.

[14] While driving to the doctor’s office, K. described incidents of physical abuse on her younger brother D. by the accused. S. asked if the accused had ever done anything to K. A couple of hours later while waiting for the doctor, K. told S. that she recalled that the accused had made her swallow something she did not like.

[15] Approximately six weeks later, there was a second visit to the pediatrician. The doctor advised that she could find no cause for the stomach pain and suggested that it might be stress-related and referred K. to counselling. Around this time and perhaps extending before and after it, the complainant was “cutting” herself and exhibiting other behaviours that included drawing attention to herself. She also began to tell people at school that she had been molested. Beginning in February or March 2010, K. attended counselling, sometimes alone and sometimes with her father and S.. It was at the intake meeting with the counsellor that the complainant first disclosed the alleged sexual abuse to S.. She named R.B. as the person who assaulted her. This disclosure did not include any details. The complainant testified that although she did not want to say anything about the alleged abuse, she trusted S. and felt comfortable enough with her to begin to tell her what had happened.

[16] In June 2010, with the support of her counsellor, K. decided to go to the police and make a complaint that the accused had “molested” her. At the same time, her counsellor called CAS to report the allegations. On June 9, 2010, the complainant made a video statement to the police which was monitored by the CAS worker. It was during this statement that K. disclosed for the first time the details of the bedroom incident and the bathroom incident. On December 5, 2011, she made a further audio statement describing the park incident.

[17] The two statements alleged three separate sexual assaults.

[18] Following the statements made to the police, the complainant’s mother and her friend, V.L., met with K. on two occasions and told her that certain incidents that K. remembered did not happen with the accused but happened with his brother M.B..

[19] In June and September 2013, R.B. met with V.L. and S.L. and discussed K.’s allegations and his history with the kids.

The Allegations

[20] K. made three specific allegations:

a) Park Incident:

K. recalled going to the park one day with her brother and the accused when she was about four or five years old. This park was a short walk from the first residence. K. described the swing set and the play structure. She recalled that she was on a swing that day and that R.B. was pushing her on the swing. She testified that she accidentally “sacked” R.B., that is, she kicked him in the genitals. K. testified that R.B. reacted angrily and that he took her to a clearing in the bush behind the play structures, pulled down his pants and “made her suck him”. K. recalls that she did suck his penis. She remembers crying and being afraid that if she told anyone she would be hurt.

b) Bedroom Incident:

K. recalled an incident in the second residence where she was brought to one of the children’s bedrooms on the second floor by R.B. and that he pulled down his pants and “made her suck him”. They were both standing. She recalls that he told her not to bite down and threatened her if she did bite. He told her not to spit it out but to swallow it. She said that she tried to go to the bathroom to spit it out but he followed her and from behind the door of the bathroom yelled at her to swallow it. The complainant does not recall saying anything and that she felt scared. She could not recall if anyone else was home when this happened. She testified that she was anywhere from age five onward and that she was in grade one or two.

The complainant testified that although she recalled similar incidents happening in that bedroom, she could not provide any specific details of the other incidents.

c) Bathroom Incident:

K. recalled that she was sitting on the vanity in the downstairs bathroom of the second residence when she was somewhere between five and seven years of age. She testified that R.B. was standing in front of her staring at her and that he put his finger or fingers in her vagina. The complainant recalled crying and wondering what was going to happen next. She recalls being very still, thinking that if she was quiet perhaps nothing worse would happen.

The complainant did not recall where her mother was when this incident occurred.

The complainant testified that the accused told her not to tell anyone, that he threatened her and that she was afraid. She does not recall the words spoken.

Sometime later she asked her mother why she was sore there. She did not mention the incident with the accused, afraid that something bad would happen if anyone found out.

(Decision continues verbatim in the same structure, paragraphs [21] through [115], concluding:)

[114] I am satisfied beyond a reasonable doubt that K.’s accounts of the sexual assaults and sexual touching on her by R.B. are reliable and credible. I am satisfied beyond a reasonable doubt that R.B. committed the offences in counts one and two.

[115] I find R.B. guilty of counts one and two.

The Honourable Madam Justice Patricia C. Hennessy

Oral Decision Given: March 6, 2014

Written Decision Released: March 7, 2014