ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 12-SA5040
DATE: 2014/05/28

PUBLICATION BAN IN EFFECT UNDER S. 486.4

BETWEEN:

HER MAJESTY THE QUEEN

– and –

D. A. D.

Accused

J. Semenoff, for the Crown

O. Abergell, for the Accused

HEARD: March 31, April 1-2, 2014

REASONS FOR JUDGMENT

Aitken J.

Nature of the Charges

[1] D. D. stands charged with five offences: one count of sexual interference, three counts of sexual exploitation, and one count of sexual assault. The complainant in regard to all of these charges is his daughter, K. D.

Overview of the Evidence

[2] K. D. is 24 years old and is completing a master’s degree at Carleton University. Her brother, B., will be 22 this year. Both K. and B. currently live with their mother, L. D.

[3] D. and L. D. separated in February 1999 when their children were 8 and 6. Initially, the children lived with their mother and saw their father at their grandparents’ home on Wednesday evenings and every second weekend. Approximately one year later, after Mr. D. had rented his own apartment, the timesharing arrangement changed to week on and week off with each parent. That arrangement continued until the fall of 2008, when K. started university and went into residence and B. decided to live full-time with his mother.

[4] The living arrangements in Mr. D.’s apartment were that he used the master bedroom when the children were with Ms. D., and he slept on the couch in the living room and let B. use the master bedroom during the weeks when the children were with him. K. had the smaller second bedroom.

[5] During the school week, when the children were with Mr. D., they would get up very early and Mr. D. would drive them to Ms. D.’s home where the children would have breakfast and catch the school bus. After school, they would return to Ms. D.’s home, and Mr. D. would pick them up after work. On the weekends, during the years in question, K. was an early riser. B. slept in until late morning. K.’s allegations relate to the time when she and her father were alone on weekend mornings and B. was still sleeping.

[6] K. did not recall anything untoward sexually happening in her father’s apartment until she was 13 and had reached puberty. She recalled that, at that point, her father started to walk around the apartment naked, and encouraged her and B. to do likewise. He would preach to them that society was ignorant, that it was normal for members of a family to see one another naked, and that people should not be ashamed of their bodies. B. testified that his father would get mad if he and K. would not walk around naked and would not sit around together naked, watching television. This attitude made both K. and B. feel very uncomfortable. According to K., this behaviour on the part of her father continued until she was 18. B. recalled it stopping by the time he was 14, which would have made K. 16 at the time.

[7] Mr. D. testified that he always slept in the nude and, after his morning shower, he would come out of the bathroom and go into his bedroom with no clothes on. He acknowledged that there would have been occasions when the children would have seen him naked. He also admitted that, during a short period of time – he estimated about two weekends when he had the children in 2005 – he walked around the apartment with no clothes on for 15-20 minutes in the morning. He did so in the children’s presence because he had found some research saying that it was healthy to do this in a family context. He believed that the naked body was nothing to be ashamed of, and he wanted to teach this to the children. He claimed to have stopped this behaviour quite quickly because he realized that it was making the children feel uncomfortable. Despite his realizing that his behaviour had upset the children, he did not tell Ms. D. about his exposing the children to nudity and their negative reaction to the experience.

[8] K. also remembered that it was when she was 13 that her father told her that she could use the condoms that he kept in the linen closet if she needed them.

[9] Around this time, Mr. D. purchased tampons for K.’s use. According to K., he encouraged her to use them even when she was not menstruating. He recommended that she masturbate to lubricate herself so that she could remove the tampons.

[10] K. also described how her father would come into the bathroom when she was taking a shower. She encouraged him to use the bathroom before she went in to have her shower, so that she could have privacy when showering. That did not always happen. Unfortunately, K. could not lock the bathroom door because the lock did not work. Mr. D. acknowledged that, from time to time, he would go into the bathroom when K. or B. was in the shower. He testified that he did not do so in order to look at K. He did not do so for any sexual purpose. K. agreed that Mr. D. would not stare at her in the shower when he came into the bathroom. That being said, Mr. D. had no explanation as to why, after about three years of the children visiting him at the apartment, and just when K. and B. were entering puberty, he changed the shower curtain from an opaque one to a clear one.

[11] K. described how, on many mornings when she came out of her bedroom, her father would be on the couch in the living room, with an erection. On some mornings, he was watching pornography. Sometimes he was masturbating. When K. entered the room, he would not try to hide what he was doing. According to K., Mr. D. never asked her to touch his penis or to watch him masturbate. He did not ejaculate in her presence. Mr. D. asserted that, although K. may have seen him with a morning erection, he had never continued to masturbate with K. in the room.

[12] On the computer that Mr. D., K., and B. all used, Mr. D. kept pornographic images of naked or masturbating women. Mr. D. had his computer set up so that his desktop, and his screen saver, changed randomly. Pornographic images were mixed in with others, such as landscapes. The children were exposed to those. According to K., Mr. D. told her that pornography was nothing to be ashamed of, but he never suggested that the children watch it. K. and B. agreed with Mr. D. that, when he realized that pornographic images were showing up when the children accessed their accounts on the computer, and those images upset the children, Mr. D. took steps so that this did not reoccur. Mr. D. acknowledged that the children had been exposed to pornography on the computer on a couple of occasions, that he had tried a few times to isolate the pornography to his partition on the computer, and that, when his efforts were unsuccessful, he had deleted all pornography from the computer.

[13] K. described how, when she entered high school, in grade 9, she was teased by some other girls for being small chested. This upset her. Her parents were aware of the teasing and were aware of how upset it made K. Mr. D. told K. that he wanted to help her, and it was no longer just a mother’s job to help a daughter in such circumstances. As K. recounted, Mr. D. insisted that he measure K.’s breasts and just under her breasts with a measuring tape. She remembered the measuring happening on a number of occasions in the morning when she was wearing her pyjamas. Mr. D. insisted that she take off her pyjama top, or he would take it off, so that he could do the measurements. On some of these occasions, K. was upset and crying.

[14] Mr. D. agreed that, on one occasion, he had told K. to take off her pyjama top so that he could measure her breasts. He said that he followed the instructions for breast measurement in a Sears catalogue and measured across and under the breasts. He denied that this had happened on more than one occasion.

[15] K. testified that, on one occasion, after Mr. D. had measured her breasts, he pulled down her pyjama bottoms to measure her waist, and then pulled her pants back up. Mr. D. acknowledged having measured K.’s waist and hips on one occasion so that he would know her pant size, but he denied pulling down her pyjama bottoms to do so. According to K., on the occasion in question, Mr. D. commented that she should shave her pubic hair. He said he had a razor that would not nick her, and he offered to do it for her. She did not take him up on his offer. Mr. D. denied that this conversation had ever occurred.

[16] At around this time, K. recalled Mr. D. commenting that her breasts were perky and that he liked small breasts. Mr. D. acknowledged that he had probably told K. that she had nice breasts and that he liked small breasts, but he claimed to do so only to make her feel better.

[17] Mr. D. testified that the reason that he had measured K.’s breasts and under her breasts on the one occasion was so that he could purchase new bras for her that would make her breasts look bigger. In fact, he did purchase some bras for her. K. remembered his doing that, but she never wore the bras. She already had bras which her mother had purchased for her. After awhile, Mr. D. realized that K. was not wearing the bras that he had purchased because he went into her chest of drawers and saw the bras unopened.

[18] K.’s evidence was that Mr. D. measured her breasts on a number of occasions when she was between the ages of 13 or 14 and 15 or 16. She described how, on some of those occasions, Mr. D. also used his fingers to check her breasts for lumps. He claimed that he wanted to make sure that her breasts were healthy because he was aware of a 15-year old girl who had developed breast cancer. K.’s evidence was that she felt uncomfortable having her father measure her breasts and do breast exams on her, and she would cry after he did it. Mr. D. was clear that the breast measurements had happened on only one occasion and he denied that, at any time, he had ever conducted a breast exam on K.

[19] Initially while testifying, Mr. D. claimed not to have realized that his measuring K.’s breasts had upset her. He testified that she had not said no or told him to stop. Subsequently, he stated that he had asked her permission and she had consented. Further on in his testimony, he acknowledged that he had known, when asking K. to remove her top so that he could measure her breasts, that she was uncomfortable exposing her breasts to him and having him measure them.

[20] K. also described how her father, who did the children’s laundry on Thursday nights before the children returned to their mother’s home, told her that her used underwear had a nice scent. That made her feel confused, sad, and uncomfortable. Mr. D. denied that he had ever said this.

[21] When K. was 14 or 15 years old, Mr. D. purchased a vibrator and a dildo for her and put them in a Ziploc bag in her closet. According to K., after awhile, Mr. D. asked her if she had seen them and then if she had used them. He assured her that it was perfectly normal for a girl of her age to use these sex toys, and she should not feel ashamed about doing that. According to K., he encouraged her to use them to reduce stress. K. recalled that Mr. D. would come into her bedroom in the morning on the weekend and toss the sex toys on her bed and suggest that she use them. If she was crying at night, he would suggest that she use the vibrator to make her feel better.

[22] Mr. D. testified that, when K. was 15, he became aware that one of the other girls on K.’s soccer team had gone on the pill because she had a boyfriend and was sexually active. Mr. D. knew that K. did not have a boyfriend, and he understood that she was not sexually active, but still he worried that she could become so. He preferred that, if she was going to be sexually active, it not be with a partner because he was concerned about pregnancies and diseases. As a result, he purchased the vibrator and dildo for K. and put them in her closet. He told her that they were there to be used if she wanted, but she did not have to. His evidence was that he never discussed them with her again. Under cross-examination, Mr. D. acknowledged that he had encouraged K. to masturbate and had told her that there was no shame in masturbation. He had wanted to provide her with an option other than sexual involvement with another person. Mr. D. recalled purchasing the vibrator and dildo shortly after he had put the condoms in the hall closet.

[23] K. described how, on one occasion, Mr. D. came into the bedroom in the morning while she was still in bed. He retrieved the bag with the sex toys from her closet and told her that he knew that she had not been using them. He asked her if she wanted him to show her how to use them. She did not remember saying anything in response. K. described Mr. D. as lying down beside her on the bed. She was lying on her back. Mr. D. quickly touched the vibrator to K.’s vaginal area, over her pyjamas. K. recalled the touching as lasting just a couple of seconds. K. was visibly upset and crying. Mr. D. left the room. K. remained in the room until B. was up so that she would not be alone with Mr. D. Mr. D. denied that this event ever happened and went so far as to say that he had never lain on K.’s bed.

[24] K. testified that, when all of these interactions were happening between her father and herself, she did not have a boyfriend, she was not sexually active, and she was not even thinking about being sexually active. Soccer was her life at the time. Mr. D. knew at the time that K. did not have a boyfriend and was not sexually active.

[25] K. used to call the Kids Help Line after school just to talk to them. Then, at some point in 2004 or 2005, she wrote out a message on their message board about some of the things which her father had done that made her feel uncomfortable. That message read as follows:

OK I need to know if this is sexual abuse or not about a year ago my dad started pressuring me to masturbate and I would cry a lot when he did that and he would never force me physically to masterbate but he would yell or get upset because I didn’t want to and he bought some sex toys and randomly throughout the day he would be like do you want me to show you how to use the sex toys and i would say no and he would go on about how i shouldn’t be ashamed about my sexuality but he still never forced me but then he started walking around my house naked when it was just me and him around and he would tell me to and i’d say no and he’d get mad at me and make me cry but i never did walk around the house naked but he continued to until about a couple a months ago and then one morning while everyone was sleeping he told me that he had to measure my breasts so that he could buy me a bra and i said no but he pressured me into taking my shirt off and then he measured them and then he quickly pulled down my pants and said he had to measure my waist he measured my waist and made a comment about how he would like to shave my pubic hair for me and then let me pull up my pants he never touched other than with the measuring tape but it still made me uncomfortable and I’m not sure if its sexual abuse because when i asked him he said he was just being my “father” If it is sexual abuse and i tell on him what will happen to him will he go to jail? Thanks in advance

[26] K. received a response to the effect that the incidents amounted to sexual abuse. Suggestions were made as to whom she could turn for help. According to K., when subsequently Mr. D. asked her why she seemed down and upset, K. told him about her contact with the Kids Help Line and how she was told that his behaviour amounted to sexual abuse. K. recalled that Mr. D. cried and left the apartment, staying away overnight.

[27] Mr. D. testified that, at some point, probably in 2005, K. told him that she had contacted the Kids Help Line and that she had been told that what he had done had been wrong. He did not pry as to what she had told the Kids Help Line. He assumed that what she had complained of was his measuring her breasts, his purchasing sex toys for her, and his walking around naked – things that had been going on for a while. He recalled K. crying when she was speaking with him. He claimed not to have given her the silent treatment and not to have left the apartment. Under cross-examination, Mr. D. agreed that he stopped what he had been doing in terms of measuring K.’s breasts, providing her with sex toys, and walking around nude because he realized that if he did not, he might get into trouble with the police. He testified that, even though he did not consider his behaviour to be sexual abuse, he knew that it would not be accepted by his ex-wife, and he realized that K. considered it abusive. Despite this, Mr. D. did not try to discuss with K. what she had told the Kids Help Line, he did not discuss the circumstances with Ms. D., and he did not get K. any psychological help.

[28] K. was nervous about reporting Mr. D. to other members of her family, her friends, or the authorities. She did not know what would happen to him. She felt very conflicted. She believed that what he had done, and was doing, was wrong but, at the same time, she was nervous as to the results if she did report him. He would say things to her such as her being his heart and soul – things that made her feel guilty for wanting to leave.

[29] K. did not tell anyone close to her about what was going on at her father’s apartment until she was in first year university. In December 2008, she told her boyfriend. He encouraged her to see a counsellor. She did so in February 2009. Shortly after that, K. told her mother and her brother some of the things that had happened. The first counsellor with whom K. had spoken referred her to a psychologist.

[30] By September 2008, K. had wanted to cut ties with her father, but she did not want to hurt his feelings. She gradually withdrew and maintained a relationship only through emails. Mr. D. would send her long emails with stories and poems that expressed his hurt feelings and that conveyed pointed messages to K. She asked him to stop sending such emails, but he would not abide by her wishes. K. told her father that she would not meet with him until he had apologized for what he had done. He refused to do so in writing, but said that he would meet with her. She did not want to see him until he had acknowledged what he had done and had apologized for it. When the emails would not stop, K. finally decided to go to the police. That was in February 2012.

[31] Ms. D., K., and B. all described Mr. D. as having quite a temper. Ms. D. and K. described how they would never know what would set him off. It could be something quite trivial. But when he got angry, he got very angry. He would yell and slam stuff and, if mad at one of the children, would use the silent treatment and not speak to them for lengthy periods of time. K. talked about his periods of silence lasting for a day or two. B. talked about them lasting for an hour or two. The silent treatment really upset K. and, in fact, K. described this as being one of the worst things that her father did.

General Legal Principles

[32] D. D. is presumed to be innocent of all of the charges against him. It is the obligation of the Crown to prove the essential elements of each offence beyond a reasonable doubt before Mr. D. can be found guilty of it. Proof beyond a reasonable doubt is a very high standard – one approaching absolute certainty. If I am sure that Mr. D. committed the offence in question, I must find him guilty of it. If I have a reasonable doubt in regard to any essential element of the offence, then I cannot be sure that Mr. D. committed it, and I must find him not guilty of that offence.

[33] D. D. testified. Pursuant to R. v. W. (D.), 1991 93 (SCC), [1991] 1 S.C.R. 742, if I believe Mr. D.’s evidence that he did not commit an offence charged, I must find him not guilty of that offence. Even if I do not believe Mr. D.’s evidence, if it leaves me with a reasonable doubt about an essential element of an offence charged, I must find him not guilty of that offence. Even if Mr. D.’s evidence does not leave me with a reasonable doubt about an essential element of an offence charged, I can convict him of that offence only if the rest of the evidence that I accept proves all essential elements of the offence beyond a reasonable doubt.

[34] The task at hand is not to determine which version of events I prefer, but to decide whether the Crown has proven each essential element of an offence beyond a reasonable doubt.

Credibility and Reliability

General Considerations

[35] In R. v. B. (G.), 1990 113 (SCC), [1990] 2 S.C.R. 3, at 54-55 per Wilson J. and R. v. W. (R.), 1992 56 (SCC), [1992] 2 S.C.R. 122, at 132-133 per McLachlin J. (as she then was), the Supreme Court provided some direction as to how evidence regarding events that happened when a witness was a child should be assessed. Every person giving testimony in court, of whatever age, is an individual, whose credibility and evidence must be assessed by reference to criteria appropriate to his or her mental development, understanding and ability to communicate. For example, as a general rule, where an adult is testifying as to events which occurred when she was a child, her credibility should be assessed according to criteria applicable to her as an adult witness. However, with regard to her evidence pertaining to events which occurred in childhood, the presence of inconsistencies, particularly as to peripheral matters such as time, location, and the exact order of events, should be considered in the context of the age she was at the time of the events to which she is testifying. In this case, K. is now 24 years of age. She testified about events that occurred when she was between 13 and 16 years of age. So, in terms of when her memory was created, it was when she was anywhere from 8 to 11 years younger than she now is.

[36] In that children may experience the world differently from adults, it is hardly surprising that details important to adults, like time, place, or the order of events, may be missing from their recollection. For this reason, a flaw, such as a contradiction, in a witness’s testimony regarding events that happened in childhood may not warrant the same effect as a similar flaw in the testimony of an adult witness testifying about events that occurred in adulthood. The credibility of every witness who testifies before the courts, and the reliability of their evidence, must, of course, be carefully assessed, but assessed using common sense that takes into account the age of the witness when the alleged events occurred and the age of the witness when testifying.

Mr. D.

[37] Although I am satisfied that Mr. D. never told K. not to tell others what was going on in his apartment when the children were with him, I am also satisfied that Mr. D. was aware that what he was doing was upsetting to K. and would be considered wrong by Ms. D. and society writ large.

[38] Furthermore, there are several aspects of Mr. D.’s evidence that render incredible Mr. D.’s assertion that his behaviour toward K. was totally innocent in the sense of being devoid of any aspect of sexual grooming, exploitation, or abuse. His evidence was replete with logical and common sense inconsistencies.

[39] Mr. D. claimed that he decided to introduce nudity to his household as a result of research he had done to the effect that nudity could be beneficial to family relationships. In other words, he claimed not to have introduced nudity to the household until he had assured himself through research that it could be beneficial for the children. However, he undertook no research and consulted no one before introducing a vibrator and dildo to his teenage daughter and encouraging her to use them. He had no explanation for the discrepancy in approach. Nor did he have any explanation as to why he would have done that when he knew, at the time, that K. did not have a boyfriend and was not sexually active.

[40] Mr. D. claimed t