CITATION: R. v. D.B., 2015 ONSC 141

COURT FILE NO.: CR-13-2853

DATE: 20150224

Delivered Orally: February 24, 2015

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Her Majesty The Queen

– and –

D.B.

Defendant

Craig M. Houle, for the Crown

Brian Dube, for the Defendant

HEARD: October 27-31, 2014

RESTRICTION on publication

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of the Criminal Code, information that may identify the person described in this judgment as the complainant may not be published, broadcasted or transmitted in any manner. This judgment complies with this restriction so that it can be published.

JUSTICE C. M. BONDY:

A. INTRODUCTION

1The accused D.B. is the father of the complainant E.B.

2E.B. alleges that between January of 1991 and December 31, 2005, D.B. committed various acts which have resulted in two counts of sexual assault contrary to s. 271 of the Criminal Code, R.S.C. 1985, c. C-46, two counts of assault contrary to s. 266 of the Criminal Code, one count of sexual interference contrary to s. 151 of the Criminal Code and one count of indecent acts contrary to s. 173 of the Criminal Code.

3The complainant was born on [...], 1987 and, as a result, during the relevant times she was between 4 and 18 years of age.

B. PRELIMINARY MATTERS

4An order was made excluding witnesses.

5Identification was conceded by the defence.

6At the beginning of the trial the Crown advised the court that there were three incidents upon which the Crown sought to rely as similar fact evidence. They are as follows:

1. An incident where the accused approached the complainant showing her a picture in a pornographic magazine where a naked adult female was performing oral sex on an adult male and then asked the complainant whether she wanted to do that for him. Again, that incident occurred while they were living on XE, and while the complainant was 4-5 years old. The incident is further discussed below.

2. An incident where the complainant was brought into the bathroom by the accused and he then masturbated and ejaculated into the toilet in her presence. Again, the incident occurred when they lived on XE and the complainant was 4-5 years old. The incident is further discussed below.

3. An incident where the accused rubbed and licked the complainant’s vagina while she was lying naked in her bed. That incident occurred while the complainant lived on XE and was 4-5 years old. The incident is further considered below.

7It is common ground that these incidents likely occurred within the timeframe of the conduct alleged in this indictment. Notwithstanding, the Crown concedes that they were either within the knowledge of the police or used in the finding of guilt when the accused was convicted of a single count of sexually assaulting the complainant on May 20, 1994. Accordingly, the Crown does not seek a finding of guilt as to that conduct, but rather seeks to introduce it as similar fact evidence to the conduct underlying the charges in this indictment. The defence concedes that these events occurred and does not contest their admission as similar fact evidence but takes the position that their use ought to be limited in a manner further discussed below.

8The issue as to what, if any, use this evidence shall be put is further considered below.

C. EVIDENCE

1) The Evidence of E.B.

a) Introduction

9E.B. was born on [...], 1987 and was 26 years of age as of the date of trial. She grew up in a home with her father, her mother K.B., her brother J.B. who was born on [...], 1989 and is now 25 years of age and her brother T.B. who was born on [...], 1993 and is now 21 years of age. As of the time of trial, E.B. had a good relationship with her brother J.B., but had not spoken with her brother T.B. since he was about 14 years of age.

10E.B. could not remember the precise dates on which particular events occurred and so she related the various events to which she testified in terms of the home in which she was then living. She referred to the following homes.

1. The first home that the complainant recalls having lived in was on XE in Windsor. She believes that she was 5-6 years old when she and her family moved out of that home.

2. E.B. said they then moved to 19a XB Street, Leamington. That house was a duplex. It was the complainant's recollection that they lived there for approximately one year. She estimated being approximately 6-7 years old at the time and she estimated her brother J.B. to have then been 5-6. T.B. was a baby. E.B. agreed with the defence suggestion that they may have lived there from August 1994 - September 1995.

3. E.B. testified that the family next moved across the street to 20 XB Street in AA where they lived for four to five years. E.B. believed that she was about 7-8 years old when they moved in and 10-11 years old when they moved out.

4. When E.B. was about 12 years old they moved to XT Court in BB.

5. E.B. testified that they next moved to 6709 XCB Court (which is a unit within a complex known as "PMC") where they lived in what she described as a "townhouse" being the second unit in the bank of six or seven attached units.

6. When E.B. was about 19 years of age she moved out on her own.

11The complainant recalled a time when she was lying or sitting on the floor playing with her toys. Her father approached her with a picture of a "girl giving a guy a blow job". Her father was then wearing only his underwear which revealed that he had an erection. According to E.B., her father asked if she would like to give him a blow job to which she replied "no". This incident is the same as the first incident described above, which the Crown is relying upon as similar fact evidence.

12On a second occasion her father asked her if she would like to see "white stuff come from his penis". She said that she would. Her father took her into the bathroom where he masturbated and ejaculated into the toilet. She could recall that he was not then clothed but could not recall whether or not she was then dressed and, if so, how. The complainant was 4-5 years old at the time and recalls attending kindergarten at [...]. This incident is same as the second incident described above, which the Crown is relying upon as similar fact evidence.

13On the third occasion she was lying on the bed in her bedroom one day without any clothes. She could not recall why she was then undressed. She recalled her father coming into her bedroom and "licking her vagina". Her father asked if she liked it and she responded that she did. Her father then continued. Although she was not sure how long the event had taken she estimated it to have been five to six minutes. E.B. believes she was 4 years of age at the time because she could not recall her brother T.B. having been born or her mother being pregnant for him at the time. E.B. could not remember anything else that had been said as between her and her father, or where her mother was that day. To be clear, this incident is the same third incident referred to above which the Crown is relying upon as similar fact evidence. E.B. did confront her father with this event later. That confrontation is discussed below under the heading "6709 XCB Court".

14The complainant accepted a defence suggestion that at some point it became clear that her mother had found out what her father had done to her. As a result, her father left the residence for some time and lived elsewhere, although E.B. could not recall how long that had been. The complainant recalled that her mother had taken her to see doctors for purposes of being examined.

15E.B. agreed with the defence suggestion that her mother had become more or less her "protector". She also agreed that her mother was "hypersensitive" as a result of what her father had done to her. The complainant also agreed with a defence suggestion that when she was between the ages of about 4-5 and about 12-13 she and her mother had an arrangement that she would tell her mother if her father did anything inappropriate.

16The complainant also agreed that she had not told her mother about her father bringing her to her bedroom and using his fingers to demonstrate sexual intercourse while standing in his underwear. She also agreed that she had not told her mother about her father having come into her bedroom and saying that he was tempted to touch her but that he was not going to. The complainant agreed that she had not told her mother about the incident on the futon or with the bathing suit at the time they had occurred. In re-examination the complainant explained that she had not told her mother about some of these events and had delayed telling her about others for several reasons. Those reasons include, without limitation: fear of her mother's reaction, fear of her mother being upset with her, fear of her mother not liking her, fear of her mother disowning her to an even greater extent, and being unsure how to explain things to her mother without upsetting her because she did not want to see her mother upset.

17The complainant, however, denied a defence suggestion that she had never been left alone with her father between the time her mother had learned that her father had sexually assaulted her and the time that she ultimately left home.

b) 19a XB Street

18In examination in chief E.B. testified that their home at 19a XB Street in AA had a swimming pool. She described the water depth as "touching her chin". Her father would throw her and her brothers into the water. At first it was fun but after a while it became frightening. Notwithstanding their fright, the accused continued to throw the children into the water. To this day E.B.'s brother is afraid of the water and the complainant believed it was a result of this conduct by her father.

19In cross-examination E.B. acknowledged that both she and her brother had been afraid to put their heads underwater. Accordingly, her father would put his arms around them and on “a count of three” would dunk them under with him for a very brief period of time in order to allow them to get used to having their heads underwater. She agreed this was necessary in order to get them used to the water and also agreed that the next step in getting them used to the water would be to grab and throw them. She agreed that her father had not thrown her high. She, however, did not like it and still feared the water. In cross-examination E.B. also acknowledged that although her brother had told her of the fear of water, she could not recall him saying that fear was directly related to their father's conduct in that pool. Defence counsel put the transcript of the complainant's video statement to her. At page 11 she stated "my brother has a fear of swimming because of it". The complainant was unable to reconcile these two statements.

20In cross-examination E.B. also acknowledged that her mother slept in a lot at that time and today believes her mother was then suffering from depression. The complainant stated that her mother generally appeared "very very sad" although there were moments when she was "happy". She described her mother as a "very emotional" person who would get "upset easily". Although there had been times when she felt her mother loved her, she generally felt contempt and anger from her mother. That made it difficult on the children because they had been "left to their own devices during the day". The complainant also agreed that generally there was food in the fridge and bread in the cupboard and that they had not been left very hungry. Defence counsel again put to the complainant the transcript of her video statement. At page 11 she stated "we were very very hungry". The complainant attempted to reconcile those statements by explaining that there had been times when there was, for example, no cereal or bread for them to make their own meals and, as a result, they had to get the mother out of bed in order to get something to eat.

21In cross-examination E.B. testified that she could not recall having been left alone when she was 6-7 years of age. Defence counsel once again put E.B.’s video statement to her. There she says "my parents were either upstairs in the bedroom or they were not home". The complainant attempted to reconcile those two apparently different statements. She explained that it felt like she and her brothers were alone when her parents were, for example, in the bedroom or outside.

22Sometimes her father was home during the day and sometimes he was not. She was unaware of his daytime schedule. She could, however, very clearly recall that he was generally home at night.

c) 20 XB Street

23The complainant testified that the family had lived at this address from the time she was about 7-8 until the time she was about 10-11 years of age. E.B. recalled that when she was a child her mother stayed home most of the time. Her mother generally slept until approximately noon every day. As a result, she and her brothers usually made their own breakfast and lunch. By the time the complainant was 7-8 years of age she and her brothers also began cleaning the house. E.B. went to school until the third day of Grade 2. She recalls her teacher was in the process of explaining the difference in the colouring between male and female ducks. She recalled her parents arriving and taking her from school. The complainant's teacher promised to show her the ducks the following day. The complainant, however, never returned to school.

24E.B. understood that her mother was supposed to homeschool her. However, not much had been done for her or her brothers in that regard. She could recall only one phonics lesson. The complainant was tested when she was 19 years of age and found to be generally functioning at a Grade 2 level of education with her score being slightly better in English because she was an avid reader. Her education is more fully discussed below.

25On a typical day, E.B. and her brothers would wake up, feed themselves breakfast, watch television until the cartoons had finished, and then play with each other.

26E.B. recalled that she and her brothers spent most of their time in a family room located on the basement floor of 20 XB Street. She remembered the room as having brown carpeting and wood paneling.

27The room also had a television and, on the opposite wall, a futon. Although she could not say with certainty, she believed it to have been a "queen-size" futon.

28The complainant recalls one day where she and her brothers were in the basement watching cartoons on television. Her father came down and asked her and her brothers if he could watch cartoons with them. I refer to this incident as the "futon incident". In examination in chief E.B. testified she was 7-8 years old at the time. In cross-examination she agreed she may have then been as old as 11.

29E.B. recalled having been excited because her father generally did not take much interest in them.

30They all laid down on the open futon. In examination in chief E.B. stated that she was to her father's right and her brothers to her father's left. In cross-examination the complainant stated that she was to her father's left and that her brothers were to his right. Her father covered them all with a green and yellow afghan that her grandmother had made. E.B. recalled that she was wearing green sweatpants and a "flared shirt" with some lace on it at the time. In cross-examination she agreed with a defence suggestion that the sweatpants had an elastic top and, accordingly, were easily pulled open. She was also able to recall the pants had been decorated with little pink flowers. Defence counsel put the transcript of the preliminary inquiry to the complainant. On page 22 the complainant stated that she was at the time wearing "jeans". E.B. agreed with the defence suggestion that it would have been difficult for her father to put his hands down her pants while she was wearing jeans. The complainant could offer no explanation for the apparent discrepancy other than that it was her recollection at the time of the preliminary inquiry that she was wearing jeans but that as of the date of trial she recalls having worn sweatpants that day.

31After some time the accused put his hand down her pants. She recalls having felt uncomfortable and, as a result, laughing in order to cope. E.B. stated that she had "goose bumps". The accused’s fingers were touching her vagina and "rubbing up and down". She testified that she did not say anything to her father but could not recall whether he had said something. Her father was, however, smiling at her and made eye contact with her a couple of times. Her father continued touching her in that fashion until she had an orgasm.

32Of interest, E.B. could recall there was a "Gushers" commercial playing on television during the incident. She explained that Gushers is a candy with juice inside.

33E.B. wanted to get away so she told her father she had to use the bathroom. She went to the bathroom and just looked at herself in the mirror and cried asking herself what she should do. After a short while she decided to simply go back downstairs and sat by herself on the floor. Although her father asked her to come back onto the futon she refused.

34Again, E.B. did not know where her mother was that day.

35E.B. testified that she had discussed this incident with her father at a later date and that he had not denied it.

36In cross-examination defence counsel put a three-page statement to the complainant that she had given to a police officer by the name of Stuart Tait on Wednesday, May 2, 2012. On that occasion E.B. had stated that this event had occurred at “A-19 XB”. E.B. explained that she had confused the address number at the time she had given that statement. Defence counsel pointed out that the complainant had also told the police officer the blanket had been pulled over "the two of us" and that she was now saying the blanket had been pulled over the four of them. E.B. denied that her memory was different today than it was then. She maintained that at the time the statement had been given she was under pressure and wanted to get through the statement as quickly as possible.

37On another occasion, E.B. and her brothers had been invited to a pool party at the corner house at the end of the street. She recalls it was a sunny day but could not recall where her mother was.

38Unfortunately, when the complainant went into the bathroom to put on her bathing suit the complainant realized that she had outgrown it. I refer to this incident as the "bathing suit incident". She took off the bathing suit and told her father. E.B.’s brother J.B. then left for the pool party.

39E.B.’s father told her to put the bathing suit back on so that they could "stretch it". Her father pulled the bathing suit up by the shoulder straps while she was wearing it. According to E.B., when her father pulled the bathing suit up it would get "stuck in her vagina and butt". Her father told her to spread her legs so that he could pull the bathing suit down in order to stretch it. While he held the bottom of the bathing suit with one hand he was rubbing his other hand back and forth on her vagina while her legs were spread. She could not recall whether the accused had penetrated her at the time. The complainant said that she felt "scared" at the time but that she did not say anything to her father. She recalls that while he was rubbing her, the accused was "breathing heavy". E.B. recalled this taking place over some time because by the time her father had finished with her and she had arrived at the party, the other children had already finished swimming. In cross-examination, the complainant agreed with the defence suggestion that the rubbing may have taken place over "a couple of hours".

40E.B. agreed with a defence suggestion that this was only one incident when she was getting ready to go to the pool party and that the touching was while she was in her bathing suit. Defence counsel put the transcript of the complainant's video statement to her. At page 11 the complainant stated "my father would stretch my clothing and when doing this he would rub me and touched me and then he would have me change into my small bathing suit and grab the bottom part while touching me and then he would pull it down stretching it and - rubbing me…". When confronted with the apparent discrepancy the complainant stated that there was only one incident with the bathing suit and that her reference to stretching clothing was to explain that she was growing and that she had not intended to convey that her father had rubbed her on occasions other than when she was in her bathing suit. The complainant agreed with the defence suggestion that R., who had invited them to the party, was J.B.’s friend. She also agreed that J.B. is smart and agreed that she believes him to have a good memory. Defence counsel suggested that the complainant and her brother J.B. had not been invited to the party.

41E.B. recalls having discussed this incident with her father at a later time. She could not recall what he had said to her, but she said "he 100% new he did it and remembered".

42On yet another occasion, E.B. and her brother were curious as to how babies were born. I refer to this incident as the "how babies were born" incident. Early in the day they asked their mother and father to explain. They were then told that they were too young. That night her father took E.B. aside and, dressed in his underwear, he used his hands to demonstrate the act. Her father illustrated sexual intercourse with a penis represented by a finger on one hand being inserted into a vagina being represented by two fingers on the other hand. E.B. stated that she was "scared and uncomfortable" with her father's behaviour. Again, she did not know where her mother was at the time.

43Later that same night the accused came to the complainant's bedroom door. The complainant testified that she was still awake because she was waiting to hear the door open when her mother returned home. Her father then told her that he was "tempted to touch her but was not going to". The complainant agreed with the defence suggestion that a few weeks later her mother had given them a pink book about how babies are born. She also agreed that the issue had come up more than once and it was generally her mother who would follow-up on questions of this nature.

d) XT Court

44E.B. and her family moved to XT Court in BB when she was approximately 12 years of age. They lived there until she was 15-16 years of age. In examination in chief the complainant could not recall anything having happened to her while they lived there. In cross-examination the complainant again denied that she had suffered any physical or sexual abuse at the house on XT Court. Defence counsel put a report to the complainant that she had given to Officer Andrew Randall by telephone at 8:15 a.m. on May 4, 2012. In that report the complainant had told Officer Randall that the abuse had "continued when they move to BB". When asked to explain this apparent discrepancy E.B. testified that at the time she thought “screaming and yelling and spanking were normal". She, however, agreed that today she said there had been no physical abuse at XT and offered no explanation as to the apparent discrepancy.

e) 6709 XCB Court

45E.B. testified that her father's sexual behaviour toward her had been discussed by them on several occasions while the family lived at XCB Court. She stated that she had attempted to "confront" her father about not only the incidents on XE, but all of the incidents she could remember. Although her mother was very occasionally present for these discussions, her mother did not participate. Her father advised her that only he and she should talk about the incidents because it "would upset mom" and "mom could not handle it". Consistent with that assertion, E.B. testified that on a prior occasion when her mother had been involved in such a discussion she became upset and swore at her father, "flipping out and crying". Her father suggested that the discussions no longer take place with the complainant's mother present. As a result, most of the discussions involved only him and her. The complainant was 16-17 years of age at the time.

46The house at XCB had a basement, the main floor and a second floor. The bedrooms and the bathroom with a shower were located on the second floor. The complainant explained that the shower had a clear shower curtain and was located directly across from the bathroom door. The bathroom door had a knob which constantly came loose and, when it did so, left a gap through which an individual could look and see a person while they showered. E.B. agreed that several attempts had been made to fix the doorknob before the repair had been properly completed. I refer to this incident as the "shower incident". The complainant testified that she would put her towel over the doorknob "stuffing" part of the towel into the hole in order to prevent people from seeing in. On many occasions when she exited the shower the towel was lying on the floor. As a result, she concluded someone had pushed the towel out of the hole in order to look in. The complainant maintained that on one occasion her brother J.B. told her that he had observed the complainant's father watching her shower. The complainant’s evidence as to how the door had ultimately been fixed was unclear, but her evidence was clear that the repair had taken place shortly after she had told her mother that she suspected that her father was watching her through the hole in the door.

47The door to the complainant's bedroom had a similar defect. There was a "gap" between that door and its frame. Again, an individual on the outside of the room could look in. It was several months before the gap had been properly repaired. The complainant testified that she could not recall how the door had ultimately been fixed, but she did recall that it was shortly after she had told her mother that her father was looking through the gap. Again, E.B. put a towel over the gap in the door in order to have some privacy.

48While at this address there were also several incidents where the accused would walk past her wearing only his underwear. His penis would be out of his underwear at the time. According to the complainant, she knew the exposure of her father's penis had not been accidental because he would make eye contact with her at the time. I refer to these incidents as the “underwear incidents”. In cross-examination E.B. estimated her father had exposed his penis in that fashion to her two to five times. Defence counsel put the transcript of her video interview to the complainant. At page 15 she had stated "always exposing himself constantly". When asked to explain this apparent discrepancy the complainant stated that it had occurred any time that her mother or brother was not around. She added that they generally were around. Defence counsel then asked how her father's penis had been exposed. She said that her father's penis had been pulled through the "hole" in the front of his "whitey tightys". She agreed with a defence suggestion that the exposure had always been in this manner. Defence counsel put the transcript of the complainant's video statement to her. At page 16 she stated "he would walk around naked or he had his underwear on and his penis would be showing". Defence counsel asked E.B. to explain this apparent discrepancy. The complainant stated that by naked she meant that he then had a towel on. She agreed with the defence suggestion that if that is true she had left a false impression with the police officer. She, however, explained that when her father had walked by dressed only in a towel it had on occasion been left open at the front exposing his genitals. Again, the complainant concluded it was not accidental because of the eye contact her father had made with her at the time.

49The complainant testified to an incident on a loveseat sized couch downstairs at their home on XCB Court. She was sitting on the couch with her brother T.B. to her right and her father to her left. Her brother T.B., who was then 10-11 years of age, was then playing a video game on the television set. The complainant testified that she was approximately 16-17 years old at the time and her breasts were just developing. She had not yet fully dressed for the day and was wearing a sweatshirt. The complainant was also wearing what she described as a "choker necklace". It was comprised of a black string with a "bead" on it. She said her father complemented the complainant on her "nice necklace". The complainant found that unusual because her father never complimented her on anything. He then took the bead in his hand and began swiping it back and forth from left to right and right to left. While he was doing so the accused was touching her breasts overtop of her sweatshirt. This behaviour continued for what she described as a couple of minutes. She recalls that there had been conversation but could not recall what it was. I refer to this incident as the "necklace incident".

50In cross-examination the complainant agreed that there had been another similar incident where she was wearing a cross on a chain around her neck. She had been to an event at the WA where a Minister claimed to have the ability to change ordinary metal things into gold. E.B. was showing her family the cross thinking that it was changing gold as the Minister had promised. Her father reached out to touch it and her mother stopped him. As a result, she took off the cross and handed it to her father so that he could inspect it. The complainant disagreed that this was the same incident as the "necklace incident". The complainant did, however, agree with a defence suggestion that her mother was protective and that her mother had put "boundaries" around her father. I refer to this incident as the "cross incident".

51The complainant also described an occasion on which she had been physically beaten. She was 16-18 years old at the time. She and her father were in the kitchen and he was going to punish her for something. The complainant testified that, even as a teenager, being spanked on her buttocks was a standard punishment. She had generally complied with her father's request to turn around so that he could carry out that punishment. Her father used a stick that was used to secure a sliding door to carry out those punishments. The accused told E.B. to turn around so he could "spank her". This time she finally refused because she did not feel that she had done anything wrong and, accordingly, thought the punishment to be "unfair". E.B. put her back to the wall to prevent her father from using the stick on her buttocks as he had in the past. The accused then began striking her on the arms, sides and legs. The complainant recalls the strikes as being hard, stinging, and painful, and leaving red marks. E.B. described this sound of the stick hitting her as akin to a "towel snapping". She could not recall how many times that she had been hit, but she did recall bruising on one of her hips and welts on her legs. The complainant recalled that her mother and brothers were in the adjoining room while her father was beating her. She was crying at the time and she could hear her brothers doing the same in the adjoining room. Her mother finally began screaming at her father to stop. When her father did stop E.B. was sent to her bedroom. The complainant recalled that she had not sought medical attention at the time but was unable to explain why.

f) E.B. Moves Away

52When E.B. was 17 years of age she began working at Tim Horton's. Her brother T.B. also secured a job there. While at Tim Horton's in February of 2008 they made a decision to pack up and leave home. They went back to the house and each quickly packed a backpack. They left home cutting through rear yards in order to avoid detection. The two ultimately wound up at their maternal grandparents’ home. E.B. explained that they had not seen their grandparents since she was about 10 years old because her mother did not get along with them. Accordingly, their grandfather did not recognize them until her brother introduced himself. The two were then welcomed into their grandparents’ home with open arms.

53The complainant never went home again, although her brother did.

54While staying with her grandparents E.B. was tested and found to have the equivalent of a Grade 2 education for everything except English. She tested slightly higher in English as a result of having been an avid reader. E.B.'s grandparents assisted E.B. in finding programs to upgrade her education. She began with the "CEP" program at C.C. College. It is a program designed to allow participants to achieve a grade school equivalency. E.B. completed that program and then enrolled in the "ACE" program which is designed to yield a high school equivalency. She graduated with honours and was accepted into the C.C. College [...] course. That is a college-level course from which she graduated. E.B. was able to obtain a job in the field of [...] subsequent to graduation. With the help of her grandparents she was also able to obtain her driver's licence and now owns her own car.

55Sometime after E.B. moved out of the house, she telephoned the police to report the treatment that she had received. Her brother told her that he was upset that she had called the police because he was then again living at home and it put him in an awkward position.

7) The Evidence of D.B.

a) Introduction

56D.B. is married to K.B. and they are the biological parents of the complainant.

57D.B. testified that he himself had been sexually abused by a neighbour and also his two half-brothers, and also by two neighbourhood boys when he was three years of age.

58D.B. agreed with the complainant’s evidence as to: showing her a pornographic magazine with an image of a female providing oral sex to a male and asking her if she wanted to do it for him; him masturbating into the toilet in her presence; and him having had oral sex with her when she was 4-5 years old. In cross-examination he agreed that the complainant’s memory of those events was "very accurate". He could recall that on each occasion his wife had been out of the house and his son J.B. had probably been asleep. He could also recall that his wife had likely been out of the house and his son probably asleep on two prior occasions when he had sexually assaulted his daughter. He agreed that it had gone through his mind that no one was going to catch him as a result. He, however, steadfastly and repeatedly denied that he was a "creature of opportunity". He maintained that it "just happened to occur when [K.B.] was out".

59D.B. also testified as to two additional incidents. On the first of those occasions he had rubbed his daughter's vagina for approximately one minute over her clothes. Four to five months later the accused had been drying the complainant after a bath and rubbed her genitalia for about three to four minutes while she was standing.

60The accused agreed with the Crown suggestion that his conduct then was much like that in the bathing suit incident described by the complainant. The accused agreed with the similarity of the two incidents, but steadfastly denied the bathing suit incident.

61In cross-examination, D.B. testified that he could not recall what he referred to as "tiny details" of any of those three events such as who had taken his daughter's pants off, or whether his daughter had said yes or no when he had asked her to have oral sex with him. The Crown suggested the memory ought to be vivid given that it was a life changing event. D.B. was steadfast that he could not recall more than the general details notwithstanding having agreed that he had "crossed a huge line". The Crown then asked how he could specifically recall having only been in the basement on three to four occasions when his wife had not been present in the basement with him, if he could not remember the details of what he had done to his daughter. D.B. did not offer a plausible explanation. Similarly, the Crown asked how he could recall his wife had never been asleep when he was alone with the children, if he could not remember the details of what he had done to his daughter. Again, D.B. did not offer a plausible explanation.

62D.B. testified that he had not thought about how his conduct would affect his daughter at the time. The accused stated that he was filled with shame and guilt each time he assaulted his daughter. However, he acknowledged in cross-examination that his shame and guilt had not prevented him from assaulting her again. He also testified that he currently believes his conduct would not have any lasting effects on the complainant.

63D.B. testified that when the complainant had disclosed the sexual abuse to her mother, she had confronted him. K.B. telephoned a clergy member by the name of L.P. at DDD. D.B. stated that he and his wife then went to church to confess those events and to ask what to do. The clergy member advised that he had a legal obligation to report the incidents if D.B. did not. As a result, D.B. self-reported to the Children's Aid Society (the "CAS") on August 13, 1993. The CAS became involved with the family and charges were ultimately laid. On August 14, 1993, D.B. turned himself into the police and was released on a personal recognizance without conditions. He found alternate accommodation that same day with the assistance of his clergy member. There was no further contact with any family member until the CAS gave the go-ahead. According to the evidence of D.B., the CAS authorization stipulated that he could not be unsupervised or left alone with the children. He began visiting one to two times per week. After some time the visits increased and he began having meals with the family in order to economize.

64On May 20, 1994, D.B. was given a suspended sentence with three years’ probation, including a condition that he not be in the company of young persons unless supervised by an adult. The CAS restriction at the time was that he not be with anyone under 16 years of age while unsupervised. It was his wife, K.B., who was to supervise him with the children. D.B. testified that he was always supervised by K.B. whenever with the children, and also that he had never been supervised by anyone else.

b) XE

65I recall from above that XE was the house in which the sexual assaults admitted to above had been committed by D.B. I also recall that D.B. had moved out after having been charged for those assaults. D.B. moved back to XE approximately one week prior to the family moving to 19a XB Street. The reason was for him to assist in packing for the move.

c) 19a XB Street

66I reiterate that it was shortly after the family had moved to 19a XB Street that D.B. and K.B. decided to take the children out of the school system. According to D.B., the primary reason his children did not receive a formal education was because in the fall of the year in which he had been convicted of sexually assaulting his daughter, there had been a “school bus breakdown”. As a result, the children would have had to walk a greater distance to the bus stop than they felt appropriate. The plan was that K.B. would homeschool the children. He testified that he had conversations with his wife encouraging her to follow through with the responsibility to educate the children. D.B. agrees the plan failed. At one point he testified that he was unaware that the children's education was not being followed through with by his wife until they moved to XCB. At another point he testified that much earlier on he and his wife were aware the homeschool plan was failing, but decided to continue to keep the children out of the school system in order to save the children the ridicule they believed the children would receive upon reintegration into the school system.

67D.B. gave evidence as to the swimming pool incident. D.B. testified that a few days before the events he had talked to his wife about the appropriateness of teaching them to not be afraid of going underwater and the appropriateness of him having close physical contact with his daughter. According to D.B., his wife had agreed to the plan. D.B. testified that K.B. was present for every minute that he was in the pool with the children. According to D.B., the children were always laughing and seemed to enjoy the activity. Paradoxically, he also testified that K.B. had advised him that both children had come to her and said they no longer wanted to play with the accused in that fashion. As a result of his wife's request, D.B. stopped.

d) 20 XB Street

68Initially D.B. agreed with a Crown suggestion that the family had lived at 20 XB Street from 1994 until 1999.

69D.B. testified that during the time the family lived at 20 XB Street, he had not done anything wrong to his daughter. The Crown asked whether that was because D.B. was then "cured". D.B. agreed that he had been "cured" through group therapy and, as a result, was no longer a danger to his children. That group therapy continued until sometime after his probation ended. The Crown asked D.B. to explain why his wife would have been inclined to exercise the caution with him that he had described if he had been "cured". D.B. replied that he guesstimated his wife's caution to be based on "the dynamics of the household".

70Later in cross-examination he resiled from that position and took the position that the word "cured" was not accurate. He preferred to say that he had moved home when there was a "consensus" that he was no longer a danger to his daughter. When pressed by the Crown as to who had formed the "consensus", D.B. gave several names. He first suggested the CAS. The Crown pointed out that the CAS had specifically asked for supervision. The name of his counselor L.P. was mentioned. The Crown reminded the plaintiff that he had earlier testified that L.P. had no qualifications. D.B.’s evidence morphed to him being aware that L.P. was counseling other sexual abusers within his church. Finally, the name of his counselor, P.A., was mentioned. D.B. said his primary counseling had been through P.A. D.B., however, acknowledged that P.A. had not made such a comment but rather P.A. "was told" the accused was no longer a danger.

71D.B. stated that during the group sessions he learned things such as "how not to do it again", "how to deal with his past" and, how to deal with the sexual abuse he had himself received as a child. He had also received individual counseling for some time. D.B. testified that there had been no reports generated as a result of this counseling. When the counselor named "Toni" who worked at P.A.’s office obtained another job, D.B. and K.B. decided to end the counseling sessions so that they could move on with other issues in their lives. P.A. had told them that there is "nothing more [D.B.] could gain from counseling". D.B. steadfastly disagreed that at that time he still had bad thoughts about his daughter. He maintained that counseling had changed the way he looks at his daughter.

72According to D.B., he was often out of town when they lived at 20 XB Street He explained that his employment often required him to be gone from Monday until Friday each week. According to D.B., when he was home on the weekends his wife did not sleep all day as had been stated by the complainant. He also testified that it was he, and not E.B., who had prepared most of the meals whenever he was home.

73D.B. testified that it was his wife K.B. who was responsible for things such as homeschooling, raising the children, the complainant’s protection, and having always acted as a "watchdog". He explained that his wife was "upset and paranoid" over the conviction and, accordingly, was always concerned about his actions and always watched him as a result. He initially testified that he was "never alone" and "never without her" and that K.B. was "always watching him in some capacity". At one point, D.B. maintained that when his wife, for example, had to use the bathroom, the arrangement was such that he had to go to a different part of the house and not interact with the children. In examination in chief he specifically said that it would be inaccurate to say that he had ever been "left alone" with the children. He maintained that had not occurred until 2002 when they were living at 6709 XCB and K.B. had, for the first time since D.B.’s conviction, obtained a job working outside of the house.

74D.B. steadfastly denied the futon incident had occurred. D.B. agreed that he would often watch television while he and the children sat on the futon. D.B. testified that while he and the children watched television together, his wife was always either downstairs with them or in the living room.

75Later in cross-examination D.B. took the position that he had only been alone with the children in the family room on three or four occasions and that on those three or four occasions, K.B. had been in the living room. He explained that there were only five or six stairs between the living room and basement and, as a result, his wife could go to the top of the stairs at any given moment and check on his whereabouts in the basement. In cross-examination the accused also denied that he would have ever had an opportunity to abuse the complainant in the manner in which she described. He explained that he would sit on one end of the couch with the two boys beside him and that his daughter would be sitting at the far end. He testified as to a specific recollection that in all the years they have lived at 20 XB Street, his daughter had never once sat beside him while he and the children were sitting on the futon. D.B. testified that he could recall that he had never sat beside his daughter because after the sexual abuse he became very much aware and paid attention to his actions for the simple reason of trying to do the right thing all the time.

76Of interest, D.B. also testified that his wife had from time to time during her inspections from the top of the stairs observed him and the children under the afghan together. The Crown inquired as to why a hyper vigilant mother would allow him to do so if approximately 10 years later when they were living at XCB she had objected to him simply touching the cross the complainant then had around her neck. D.B. offered no plausible explanation as to this apparent contradiction.

77D.B. also steadfastly denied the bathing suit incident. He also denied that there had ever been a pool party, or that he had ever been alone with his daughter in the bathroom trying to stretch her bathing suit. He testified that he had no recollection of the bathing suit of which his daughter had spoken. It was his position that he had never attempted to stretch any of his daughter’s clothes in order to make them fit.

78The accused was also adamant in cross-examination that he and the complainant had never been upstairs together at 20 XB Street when his wife had been downstairs. After some time he conceded that it may have been possible that he was, for example, getting a coffee in the kitchen while his daughter had also been in the kitchen and his wife had been either upstairs or downstairs. He said that she was, however, always close by.

79The accused acknowledged that there had been some discussion between the children and their mother about how babies are born. He testified that the children had never approached him regarding the topic, nor had he been there when there had been discussions about how babies are born. He also denied both of the incidents the accused had alleged occurred later that day.

80The accused acknowledged in examination in chief that he had "smacked" the children "on the back and side of their heads". I referred to this incident as the "cuffing incident". For example, there were occasions when the children were up in the morning and the accused would go down to the playroom and ask them to quiet down "because mom is sleeping". When they failed to do so, he would "cuff" them on the back or side of their heads. D.B. acknowledged that on one or more occasion one of their heads may have "bounced off the wall" although he could not recall a specific occasion on which that had occurred. It was his position that this was appropriate discipline. He referred to it as a "cuff on the back of the head" completed with a "flick of the hand". He described it as being "minimal" notwithstanding his acknowledgment that as a result of one of those strikes one of the children's heads may have "bounced off the wall".

81When it was suggested in cross-examination of the accused that these “cuffing” incidents were occasions where he would have been alone with the children, he did not deny having testified that he had told the children their mother was then asleep. He, however, stated that he only used that language "as a point to get them to stop". He testified that he had a specific recollection that on every single occasion he had gone downstairs to discipline the children in the four to five years that they lived at 20 XB Street, his wife had actually been "awake". Notwithstanding his specific recollection that on each and every one of those occasions she had been awake, he had no recollection as to how many such occasions there had actually been.

e) XT Court

82D.B. maintains that the family moved to XT Court prior to Y2K in about September 1999. It was his recollection that they had moved out in the summer of 2000.

f) 6709 XCB Court

83In September 2002, K.B. obtained her first out of the house employment since D.B. had been convicted of sexually assaulting the complainant. She began working eight hour shifts on a casual part-time basis working initially between one and three days per week. According to D.B., his wife remained responsible for homeschooling.

84In examination in chief D.B. testified that he was seldom at home while his wife worked, explaining that he was going to school full time at C.C. College and, at the same time, working part-time in a laboratory there. Later in cross-examination D.B. also testified that sometime after his wife began working he had been home attempting to start a business. That business is further considered below. D.B. agreed with a defence suggestion that this was "pretty much" the first time he had been left alone with the children. He also agreed that no additional safeguards had been put in place. He explained that the complainant was then 14 years of age. That was approximately one year before the incident with the "cross" discussed below. According to D.B., K.B. was now comfortable with him being alone with the children.

85The accused agreed with the complainant’s assertion that the bathroom doorknob would often come loose in a manner such that an individual could look into the bathroom through a hole around the knob. However, D.B. steadfastly denied that he had ever looked through the hole. He explained that the doorknob became loose as the screws holding it in place became loose. The screws required tightening almost daily.

86D.B. acknowledged that there had been an occasion where his wife had come out of their bedroom and noticed him in a position where she thought that he was looking through the hole around the doorknob as the complainant was taking a shower. D.B. stated that he had come out of his bedroom and noticed the door knob was again loose and that he was "shocked" as a result. Accordingly, he had been bent over to investigate the loosened doorknob rather than to peer through the hole above the knob. D.B. stated that he had only been "leaned over a little bit" so that he could look at the doorknob itself, but denied that he had been spying on his daughter while she was showering as his wife had assumed. The accused did, however, acknowledge that his wife's conclusion that he was looking into the bathroom through the hole was reasonable in the circumstances. D.B. then realized he could repair the doorknob with a hot glue gun and did so thereby putting an end to the issue.

87The accused agreed that there was a gap in his daughter's bedroom door and that he had been made aware of it. According to D.B., he had covered the gap by screwing an industrial rubber baseboard to the doorframe. D.B. explained that his wife had told him that the complainant was concerned that the accused had been spying on her through the gap in the door and that he had fixed it so that the complainant would not be uncomfortable.

88In examination in chief D.B. testified that it was a "rule of the house" that he not be upstairs while someone showered unless he needed to go to his bedroom to get something. He explained that was to show adult respect for those in the house. He also said that rule had remained in place until his daughter had left home because his "wife was always concerned about his actions".

89In examination in chief D.B. also denied the underwear incident.

90He testified that he slept in his underwear and, as a result, he would sometimes go to the washroom or downstairs to the washer and dryer while wearing only his underwear. He also testified that he was sure that he had come across his daughter on some of those occasions. D.B. testified that his daughter had seen him in his underwear "at maximum" three or four times while they were living at XCB.

91In cross-examination he agreed that he would have made eye contact with his daughter on at least some of those occasions. He explained that it was not possible to avoid contact because if he was in the hall and she was standing in her bedroom "it was an impossibility not to look at her" because with her bedroom being right down the hallway their "faces would clearly cross paths".

92D.B. agreed that there may have been occasions where when he was walking in his underwear his genitalia had been hanging out. It was, however, his position that if that happened, it had not been intentional. He added that he had no specific recollection of that having happened. He went on to explain that from time to time the elastic on his underwear would be “going or stretched” and, as a result, his penis could have been hanging out of the side of his underwear beside his leg.

93D.B. testified that he had never apologized to his daughter for the conduct.

94Finally, he acknowledged that his wife was aware that he was walking in the house in his underwear and that after some time she had requested him to put on shorts over top of his underwear. He could not, however, recall when that may have occurred but presumed it to have been about the time the children had reached puberty. According to D.B., once his wife had asked him to wear shorts he did so "most of the time". The Crown inquired why D.B. would not have taken every precaution to avoid even a hint of impropriety with his daughter given the sexual assault conviction. D.B. denied that there was any impropriety in walking around his home in that fashion because “that is the way that it was”. D.B. also testified that at the time they were living on XCB, he "was not aware there were continuing issues" about what he had done to her in 1993 and 1994.

95D.B. also denied anything like the "necklace incident". He did, however, agree that the incident with the cross had taken place. He agreed with the evidence of the complainant to the effect that he had reached for the cross to look at it and that his wife had said "no". He again explained that his wife never did trust him and that she was "always watching him". According to D.B., she then asked his daughter to take off the cross so that he could inspect it. Consistent with the complainant’s evidence, D.B. testified that he would never complement his daughter by saying something like "nice necklace". Of interest, D.B. testified that he, at the time, had not thought it inappropriate for him to reach for the cross.

96D.B. agreed that he was in the habit of disciplining the complainant by striking her on the buttocks with a stick. Typically a discipline regiment consisted of one to four "wacks" depending on the severity of the conduct being punished. D.B. stated that self-imposed limit was "because he was using a 2" x 2" diameter stick and he did not want to inflict damage". He described each strike as being a "flick of the wrist" intended to "sting" but not intended to "leave marks".

97D.B. also agreed with the existence of the incident that the complainant had testified to in the kitchen, although he disagreed with some of the details. He stated that she had been disrespectful but disagreed he was "angry" at the time as a result. The accused also agreed that the complainant had refused to turn around to allow him to strike her buttocks with the stick. The complainant agreed that this was the first time that she had not complied with his demand to turn around so that she could be spanked. He stated that he had only struck her four or five times that day. In cross-examination he acknowledged that he had then stopped striking the complainant with the stick because his wife had protested and told him to stop. D.B. denied having hit his daughter in the rib cage and arm and hip but did acknowledge having struck her on the legs. He also acknowledged that his wife had informed him that marks had been left on the complainant’s legs notwithstanding she had been wearing jeans. D.B. testified that even as of the date of trial he believes it appropriate to spank a teenager.

98Eventually, the complainant and her brother J.B. began working at Tim Horton's. Before long they were working full-time often starting at 5:00 a.m.

99At this time they were receiving no schooling whatsoever. This was the first point that D.B. said that he had taken some responsibility for the children's education. He testified that he had offered to hire a third-party to assist them in catching up with their studies, but that the children had refused.

100The family was having "financial difficulties". D.B. testified that he and the children had come up with a plan to finance their return to school. He obtained a loan to start a new company that would operate on the Internet. Once viable, the profits would be used to educate the children. During the company's infancy each of the children would be required to pay one third of the household expenses with their mother paying the remaining one third from her employment earnings. The children were also required to share the entire loan payment between them. According to D.B., the children were at first excited about the arrangement. He did acknowledge that they became agitated when they perceived that the process of launching the business was taking too long. The business never did earn any income as most of D.B.’s time had been used for things such as "research".

101D.B. agreed with the complainant’s testimony to the effect that he had discussed the past sexual abuse with her on three or four occasions. On those occasions he would tell his daughter that he cannot change the past but that he can affect the here and now. He would apologize but not ask for forgiveness. He also agreed that on one occasion he had asked his daughter not to revisit the sexual abuse for which he had been convicted with K.B. He explained that K.B. had recently become quite upset about having to deal with the issue again.

102Finally, D.B. steadfastly denied that he had ever touched the complainant in a sexual manner following his arrest on the first charges.

g) J.B. Moves Away

103According to D.B., after some time J.B. moved out of his grandparents’ home and went to live in EE. According to the accused, sometime later J.B. ran out of money and moved back into their home. They financially supported him at the time. J.B. then went to FF and, according to D.B., he and his wife again financially supported J.B. in doing that.

8) The Evidence of J.B.

a) Introduction

104J.B. testified as a defence witness. He testified that he loved both his father and his sister and that he has a good relationship with both. He testified that he had been angry with his father and had hated his father over their upbringing but that he had put that behind him because he did not want his past to spoil his future.

105J.B., until very recently, had told everyone that he wanted to stay out of the conflict. He, however, explained that "his name had brought up too many times to sit by and not say anything". In cross-examination he explained that he had been told by his father that his sister had been claiming different things involving him. He stated that he had come to testify in order to give his side of the story after his father's lawyer had explained the details of the case to him.

106J.B. also acknowledged that his father had not mentioned the witness exclusion order to him. He also stated that his father had called him the night before he was to testify, and had driven into court with him on the morning of the day that he was to testify. J.B. was adamant that his father had not "divulged anything" except that the Crown had "grilled him" about the original convictions and that he should expect the same. He agreed that the purpose of those discussions had been to give him a "heads-up".

107In cross-examination J.B. stated that he does not think his sister is lying. He, however, explained that he "is the only person who knows his sister better than she knows herself". He believes that his sister has a "fogged recollection" and that her thinking is "mixed up".

108In cross-examination J.B. initially took the position that it was not possible for something to have happened to his sister "without anybody noticing". He explained that "there was always somebody there". J.B. testified that he could not recall having seen his father alone with any of the children. He stated that when his mother left home all of the kids would go with her. As will be seen below, J.B. resiled further and further from that hard and fast position as cross-examination continued. For example, he agreed with a Crown suggestion that his father had been alone with him and his siblings in the basement on 20 XB while his mother was upstairs sleeping. He also agreed that his sister had been left alone with his father when he and his mother had gone to the store to pick up water when they lived on XCB. As the cross-examination of J.B. was coming to a close, he ultimately agreed that it would be fair to say that there may have been instances where his father was with his sister that he was not aware of.

b) XE

109J.B. was not entirely sure how old he was when he lived at this address but he did not believe that they had moved to AA until after his fifth birthday. That is because he could recall having celebrated his birthday in the basement of a McDonald's near the home on XE. J.B., however, ultimately agreed that his recollection was not clear. He ultimately settled on being 5-6 years of age when the family had moved to 19a XB Street.

c) 19a XB Street

110J.B. testified that he and his sister were "scared" by his father's attempts to teach them to swim underwater but that his father’s actions had been reasonable in the circumstances. He also agreed that to this day he has a fear of drowning but specifically denied any relationship between that fear and the events that had occurred in that pool.

111J.B. also testified that his mother had always been outside, near or in the pool while he and his sister had been swimming with their father. In cross-examination J.B. initially testified that he did not see how it was possible that his mother could have been anywhere other than outside with them. After some time he, however, conceded that there may have been times when his mother was not there and had simply not remembered.

d) 20 XB Street

112In cross-examination J.B. initially testified that they had lived at 20 XB Street for two years. He also said that if his father had testified that they had lived there for four to five years that his father would be incorrect. He explained that it "did not make any sense" and detailed his recollection of the time they had spent in each house in support of that conclusion.

113J.B. testified that his mother spent a great deal of time in the living room of 20 XB Street reading her Bible and listening to "Christian music". He described the family as being "very religious".

114J.B. also denied that there were ever occasions when there was no food in the house. He initially stated that it was not until years later when they were teenagers that they had been left to feed themselves. For example, he said that prior to going to bed in the evening his mother would pour them each a bowl of cereal and cover it with Saran wrap then put the bowls of cereal in the fridge. As a result, the children would only have to add milk in the morning. It was his recollection that there were about six and a half to eight months when they were living at 20 XB Street where his mother was in a "deep depression". He did agree that his mother would not get out of bed until later in the day. Later in cross-examination J.B. did recall her sister having been "a little bit authoritative". For example, the complainant would tell him and his brother T.B. to be quiet or to not do this or that.

115J.B. testified that the homeschool responsibility had been primarily his mother's but that his father had taken responsibility for teaching them mathematics. According to J.B., his father "absolutely did not follow through" with that responsibility. He did recall having learned some things from his mother such as phonics but agreed that the home education experience had generally been a failure.

116J.B. agreed that there were a futon and television in the basement at 20 XB Street. He also agreed that there was an orange and green afghan. He testified that the futon was in the "couch" position because there was not enough room to open it. As a result, he had never seen it "as a bed". Unlike his father and sister, J.B. had no recollection of all four of them having been on the futon at one time. It was his recollection that there would not have been enough room on the futon for all four at the same time.

117In examination in chief J.B. testified as to a specific recollection of a pool party two or three doors down the street. He had been invited to the party by his friend R. It was his evidence that his parents had not allowed either he or his sister to go to the party because they did not know enough about that family. In cross-examination the Crown inquired as to how J.B. could possibly recall the details of that pool party. He agreed that he would only have been about 6-7 years of age at the time. J.B. ultimately conceded that they had lived at that address at least two summers that he could remember and that there may have been entire summers that he could not recall at all or other pool parties that he and his sister had been invited to. He also agreed there have been discussions between his father and his sister that he was not aware of.

118J.B. recalled having discussions with his mother about where babies come from. According to J.B. any discussions that he and his sister had about sex were always alone with his mother. He could not recall his father ever having been there. He also denied having seen his sister in his father's bedroom or his father in his sister's bedroom when his father was only wearing his underwear.

119J.B. agreed with his sister's assertion that they were not allowed to answer the phone or the door when they were younger. He explained that it was often collection agencies on the phone and that they had been instructed not to answer the door because it could be someone from the School Board and their parents did not want the School Board to find their mother sleeping at home when she ought to have been teaching them. J.B. denied a suggestion that his sister was not allowed to have friends. He, however, acknowledged that she did not have any when they lived at 20 XB Street.

120In examination in chief J.B. recalled that he and his siblings would often wake up early in the morning and that his father would sometimes come down and "cuff" them in the back of the head in order to get them to quiet down. He specifically stated that the cuffs did not have enough force, for example, to knock someone's head into the wall. He did, however, agree that someone's head may have hit the wall but he just did not recall that.

e) XT Court

121J.B. testified that they lived on XT for two to two and a half years. He was about 8-9 years old at the time. By the time they moved to XT his father was working a lot more. He also testified that his mother was not sleeping as much as she had on XB. J.B. could not recall any of the children being alone with his father while they lived on XT.

f) 6709 XCB Court

122J.B. said that the family lived on XCB for about eight years.

123J.B. testified in chief that when he was somewhere between 11 and 13 years of age, his sister had her first period. His mother had taken him aside and explained to him that his sister was now a grown woman and he had to take extra special care of her. His mother was quite emotional at the time. His mother had also explained that his father had been charged for sexually assaulting his sister several years before. His mother, however, did not share the details of those sexual assaults with him. According to J.B., there was an air of "paranoia" in the house from that day forward because of the way his mother acted and spoke. To the day J.B. testified at the trial, no one, including his sister, had shared the details of the sexual assaults with him. According to J.B., his mother's disclosure of the sexual assaults changed his relationship with his sister. It created a sort of "weirdness" within the family. J.B. said that he himself was "paranoid" of the possibility of his father again doing something to his sister.

124J.B. confirmed that the bathroom door knob would often slide down as a result of the screws having come loose. He said that there was always a towel on the doorknob to prevent people from looking into the bathroom through that hole. He had twice tightened the screws himself but within a few days the screws would again loosen themselves. The problem was finally resolved when his father fixed the doorknob with a “glue gun”.

125J.B. denied having seen his father watching his sister through one of the gaps in the doors. He also specifically denied ever having told his sister that he had observed their father watching her through the gap in one of the doors. J.B. also testified that his sister had never told him she had caught her father looking in the door.

126When pressed by the Crown he did, however, acknowledge that his sister had told him she thought she was being watched by her father. When pressed further, he also agreed that at the time she was crying and that he was holding her. J.B. also agreed that he had gone to his mother and advised her that his sister was suspicious that her father was spying on her. J.B. testified that he had confronted his father with what his sister had told him.

127As to whether J.B. had ever seen his father watching his sister through one of the gaps in the door, J.B. stated that he and his mother and brother would now and again leave the home together in order to go to Sobeys to pick up a five gallon bottle of water. As a result, his father and sister would be in the house alone. There was such an occasion after J.B. had confronted his father about his sister. J.B., T.B., and his mother left the house while his sister was upstairs taking a shower and his father was in the basement. Before they left the parking lot, J.B. saw the light go on in his father's bedroom and thought it was odd. He told his mother. As a result his mother ran in the house to confront his father. It resulted in a fight about why the accused had been upstairs at the same time the complainant was taking a shower. Although J.B. had not seen his father in the bedroom, he testified that he knew it was him, presumably because it was only his father and sister in the house, and he knew his sister was in the shower. J.B. explained that even though he had not actually seen his father in the act of looking through the door, it was not hard to put two and two together and think that something might have happened. He acknowledged that may have been the incident that his sister had been referring to when the complainant had testified that J.B. had told her that he had seen her father spying on her.

128J.B. testified that he often saw his father in his underwear. It was usually in the morning or late at night. Sometimes he would go to the living room to sit down for 30-45 minutes. J.B. testified that his father was wearing "whitey tighties".

129In examination in chief he testified that it would be impossible for his father's penis to have been sticking out by accident because his briefs were "very very tight". J.B. testified that if his father had said that it was possible that his penis could have been "accidentally" exposed, he would have been wrong. He added that in order for that to happen "it would have to have been on purpose".

130J.B. testified that his sister had never told him about her father exposing himself to her while they were living at XCB. In examination in chief J.B. testified that after he had been told about what his father had done to his sister, there had been a "weirdness" about things that may have been normal for other families. He used his father walking around the house in his underwear as an example of something that may have taken on that new "weirdness". J.B. also recalled having joked with his father telling him to put his shirt on. Later in cross-examination J.B., however, testified that at the time to him it was "normal" for his father to be walking around in his underwear. In cross-examination J.B. initially stated that his mother did not consider his father walking around in his underwear inappropriate. He also testified that his mother was "overprotective" and "kept an eye on his sister like a hawk". He, however, agreed with a Crown suggestion that there was an apparent contradiction between his suggestion that his mother had not been concerned about the accused walking around in his underwear and the paranoia that he had described in the household at that time. J.B. testified that neither his sister nor his mother had ever said anything to him about their father walking around in his underwear at the time they were living at XCB.

131J.B. could only recall two occasions when his father had left the bathroom after having a shower. He could recall that on those two occasions his father had been wrapped in a "very big towel".

132According to J.B., it would not have been unusual for the complainant to be sitting on the couch in the living room with T.B. while T.B. played a videogame. In examination in chief J.B. stated that it was not likely the accused sat next to his sister, reached out and grabbed her necklace, and in the process touched her breasts for a couple of minutes. He explained the couch in the living room was in a "high-traffic area".

133J.B. testified that he had a "very vivid recollection" of the cross incident. He also agreed with a Crown suggestion that it was "not possible this vivid recollection was wrong". According to J.B., he recalls his father having taken the cross and having looked at it. He was certain that his mother had not intervened.

134J.B. agreed that his father had used a 2” x 2” stick to discipline him and his siblings. He recalled that the number of strikes a child would receive would depend upon the level of cooperation they gave their father while they were being disciplined. If, for example, a child put their hand in front of their buttocks to protect it, they would receive an additional five strikes with the stick. In examination in chief he testified that the strikes had often left marks, and that he had received as many as 30-40 strikes on one occasion. He explained that his father "acted out of anger a lot" when they were children. He also confirmed that when his sister had been struck in the kitchen on the day referenced above, her father had left marks which included "welts" which he described as small swollen areas. Those marks were from the waist down including the "upper thigh area".

135J.B. also gave evidence as to the financial arrangements while the family was living at XCB. He explained that after he and his sister began working at Tim Horton's his father had brought them to a sort of job fair. There, they had come across an idea to start an "online store". According to J.B. everyone was excited about the idea, and both he and his sister wanted to be part of it.

g) E.B. Moves Away

136J.B. testified that for some time he and his sister had talked about running away together. They always had a sort of a plan to run to their grandparents. He testified that the money situation was largely responsible for that decision. J.B., however, added that he had discovered pornography on his father's computer where dogs and women were having sex together. When he had confronted his father with the find his father had simply denied it. This denial was the triggering event to him and his sister moving out.

137J.B. denied that his parents had given him financial support at any time after he moved out of the house. He added that if his father had said that he had given J.B. financial support, his father would be wrong.

D. ANALYSIS

1) The Evidence

138I begin by agreeing with the defence that the courts must be vigilant to ensure that the zeal to punish child sexual abusers, and the very revolting nature of child sexual abuse, does not erode the rules which the courts have deployed over the centuries to prevent the conviction of the innocent (see: R. v. F.E.J. (1990), 1990 CanLII 13294 (ON CA), 36 O.A.C. 348, 74 C.R. (3d) 269 at pp. 67-68). That is particularly true in this case. The evidence makes it abundantly clear that the accused clearly failed his children in many different ways throughout the years. However, the accused is never on trial for his or her character or because he or she is a “bad person” (see: R. v. Corbett, 1988 CanLII 80 (SCC), [1988] 1 S.C.R. 670, 64 C.R. (3d) 1, at paras. 154-155).

139I would also point out that there is no obligation for the accused to prove anything. As stated above, it is the Crown’s obligation to prove each element of each offence beyond a reasonable doubt. That said, once an accused takes the stand, this evidence must be considered along with all the other evidence presented at trial. The proper approach in analysing that evidence was set out by the Supreme Court in R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742, S.C.R. (4th) 302. At para. 11 Cory J. states:

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

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

Third, 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.

140In this case I did not find the accused to be a credible witness, and I did not believe his blanket denial that the facts underlying the charges that he faces occurred. Similarly, I was not left with any reasonable doubt as a result of his testimony as to any of the essential elements of counts one, three, four, five and six.

141As to the evidence of the complainant and her brother, I found that they both did their best to convey the truth as they understood it. I agree with the defence counsel that the complainant often gave incomplete or contradictory evidence. I also agreed with the Crown that the complainant's brother also often gave incomplete or contradictory evidence.

142I, however, found the frailties in the evidence of each to be confined to collateral specifics and details. I, however, found the evidence of the complainant as to matters of fundamental importance to be internally consistent, and also in harmony with the preponderance of the evidence as to those matters. Said another way, I found that the complainant knew what had happened to her and who had done it to her and I found that her evidence as to those essential substantive facts was both credible and reliable.

a) The Evidence of the Accused

143In cases which turn on credibility, the court must direct its mind to whether the accused’s evidence considered in the context of the evidence as a whole raises a reasonable doubt as to his guilt (see: R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at para. 31; and R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788).

144D.B. put forth several propositions which he maintained were consistent with his innocence. I found the evidence of the accused lacked harmony with the evidence as a whole. I did not believe the evidence of the accused regarding these propositions and, as a result, found his evidence lacking in credibility. The following are some examples as to why I found the accused’s evidence to lack credibility.

145One such proposition was that by the time the family had moved to 20 XB Street in AA, he had been "cured", or as he later stated in evidence, was no longer "a danger to his children". He testified that there was a "consensus" as to the latter. I did not believe that evidence. The accused himself ultimately agreed that the use of the word "cured" had been improper and that there was no consensus that he was no longer a danger to his children. He also acknowledged that the CAS required that his contact with the children be supervised.

146The accused also proposed that after the first conviction there was a lack of opportunity for the accused to sexually assault his daughter as a result of his wife's vigilance. According to D.B., his wife was always either with him or in the very next room whenever he was with the children. Again, he was steadfast and persistent with that assertion. Again, I did not believe D.B. There are many reasons. The first is that I find that K.B. was clearly depressed at the time. The complainant testified that she would often sleep through much of the day. J.B. testified that his mother was depressed for at least a portion of the time they were living at 20 XB Street. Further, D.B. himself did not suggest that his wife was not depressed at the time. He did, however, claim that his wife had never once in the four to five years they lived at 20 XB Street slept in at times when the accused was otherwise alone in the house with the children. I found that assertion from the accused inconsistent with the totality of the evidence as to that issue. I believed the complainant when she said that her mother would often sleep through much of the day as a result of her depression.

147Further, common sense dictates that K.B. would have, from time to time, been required to take a shower or to use the bathroom. I recall from above, D.B. stated that while his wife would use the bathroom, he was required to go to a different part of the house than the children. If that were true, T.B., who would have then been approximately two years of age, would have been left without adult supervision. I find that proposition difficult to believe. Even if that assertion is true, D.B. was then, at best, on his honour to stay away from his daughter. His wife would have no way of knowing whether he had breached protocol unless one of the children said so. I find that no matter what arrangement was in place, D.B. clearly had an opportunity to sexually assault his daughter in the time that it would take K.B. to shower.

148In support of the proposition as to lack of opportunity, D.B. also testified as to a specific recollection that he had never once on any occasion been alone with the complainant when the family lived at 20 XB Street. By that, he meant that the furthest away his wife would have been was in the living room while he was in the basement with the complainant. He testified as to a specific recollection that she had never once been on the upper-most floor while he was in the basement with the children. I did not believe the accused because I found that evidence out of harmony with the rest of the evidence, including his own. For example, D.B. testified as to an inability to recall the "tiny details" of the sexual assaults that he had committed on his daughter. He said that he considered such things as who had taken his daughter's pants off when he had sexually assaulted her, an example of a "tiny detail". I just do not believe the accused could forget who had taken off his daughter's pants in preparation for a sexual assault that he admitted to, yet could remember his wife's whereabouts for every minute of every day for the four or five years they lived at 20 XB Street. Again, this proposition negatively impacted my assessment of the accused’s credibility.

149D.B. also maintained that his daughter would have told someone about the sexual abuse which is the subject of this indictment if it had occurred, but she had not. In support of that proposition he explained that things were different after his conviction because the CAS was now involved. D.B. testified that he was aware that the CAS had taught the children to tell another adult if anyone did something wrong to them. I, however, find that D.B. had systematically foreclosed his daughter's ability to seek help. A few months after his conviction, the accused had removed his children from the school system. It follows that the complainant was unable to foster the trust relationship that most children enjoy with their teachers. The children had been told not to answer the door or the telephone, to avoid contact with creditors and school officials. It follows there would be no opportunity for the children to tell the school officials of misconduct. The children's relationship with others such as their maternal grandparents had been severed. The family had little interaction with their neighbours. As an example, D.B. and K.B. did not know the neighbour with the pool who J.B. testified only lived two or three doors away. The complainant had no friends and J.B. only one. In other words, the children were quite alone in the environment D.B. and K.B. had created. There was no one for them to tell. I do not think it is a leap to conclude that D.B. knew there was very little likelihood his daughter could find someone to confide in as to further sexual abuse. For all of these reasons, I find that the accused had deliberately and systematically foreclosed the ability of the complainant to seek protection from the accused and what he was doing to her.

150Finally, in cross-examination, the accused proposed that at the time the family lived on XCB, he did not believe there were continuing issues plaguing his daughter as a result of what he had done to her in 1993 and 1994. The Crown asked the accused to reconcile that proposition what the accused had described as the "paranoia" in the household. The accused did not offer any plausible explanation.

151I find that the accused deliberately attempted to mislead the court with his evidence as to these propositions. Accordingly, I found his evidence lacking in credibility and as a result I did not believe him when he denied the facts underlying the charges against him.

b) The Complainant’s Evidence

Introduction

152I reiterate the complainant’s evidence was often contradictory.

153I, however, found the contradictions related to matters of peripheral specifics or details. For the reasons below, I did not find those contradictions fatal to her testimony.

154To the contrary, I believed the complainant’s evidence as to the substance of what had happened to her and who had done it. I also believed her testimony as to the essential facts underlying each element of the offences alleged in the indictment.

155I make the following observations regarding the potential difficulties with the complainant’s evidence and my observations regarding each.

The Potential Motive to Fabricate

156I agree with the defence suggestion that she may have had reason to fabricate evidence. There were many reasons cited by defence counsel, some of which are as follows.

157E.B. admitted in cross-examination that her childhood was horrible. She had been deprived of an education, friends, and opportunity to learn social skills and more. She had been physically beaten by her father. Her mother and father had often taken any money that she would earn. From a very young age the complainant had been responsible for significant housekeeping chores. Finally, the complainant agreed with the defence suggestion that she has strong negative feelings about her father as a result of having been sexually abused by him as a child.

158The totality of the evidence, however, does not support a finding that the complainant fabricated the facts underlying these charges in an effort to punish her father for any the reasons above or any other reasons. Accordingly, I find that she did not. That conclusion is supported by my reasons below.

The Complainant’s Demeanour

159I agree with the Crown’s position that the complainant gave the appearance of a sincere, honest, and truthful individual. There was nothing in the complainant's demeanour which would lead me to any other conclusion.

160I also agree with the proposition put forth by the Crown that it is well-established that testimonial demeanour is a proper consideration in the evaluation of a witness's credibility (see: R. v. O.M., 2014 ONCA 503, 318 O.A.C. 390, at para. 34; R. v. J.J.B., 2013 ONCA 268, 305 O.A.C. 201, at para. 112).

161I think it is, however, equally well-established that demeanour must be approached with great caution. Simply put, a particular witness may be nothing more than a "good actor".

162As a result, I did consider the demeanour of the complainant in the context of the totality of the evidence, but gave its weight appropriate limitation for the reasons immediately above.

The Complainant’s Recollection of Events Experienced as a Child

163I reiterate that there were often contradictions in what the complainant had said at trial and what she had said on previous occasions. Such discrepancies are an indicator of both credibility and reliability. As stated in the Ontario Court of Appeal decision in R. v. M.G. (Ont. C.A.) (1994), 1994 CanLII 8733 (ON CA), 73 O.A.C. 356, 93 C.C.C. (3d) 347, at para. 23: “Probably the most valuable means of assessing the credibility of a crucial witness is to examine the consistency between what the witness said in the witness box and what the witness has said on other occasions, whether on oath or not”.

[164] Much of the evidence the complainant gave regarded recollections of events she had experienced as a relatively young child. She was somewhere between seven and 11 years of age at the time counts one, two and three occurred. The law is well-established that a flaw, such as a contradiction, in a child's testimony should not be given the same effect as a similar flaw in the testimony of an adult (see: R. v. W.(R.), 1992 CanLII 56 (SCC), [1992] 2 S.C.R. 122, 13 C.R. (4th) 257, at para. 24; R. v. B. (G.), 1990 CanLII 7308 (SCC), [1990] 2 S.C.R. 30, 77 C.R. (3d) 347, at pp. 54-55). In W.(R.), the court observes that the common-law notion that the evidence of children is inherently unreliable has been legislatively overturned (see: para. 23, and also s. 659 Criminal Code). Since children may experience the world differently from adults, it is hardly surprising that details important to adults, like time and place, may be missing from their recollection (see: W.(R.), at para. 24). The adult tests for credibility have been replaced by the “common sense” approach (see: W.(R.), at para. 24; R. v. B. (G.); and R. v. Stewart (1994), 1994 CanLII 7208 (ON CA), 18 O.R. (3d) 509, 29 C.R. (4th) 143 (ONCA), at para. 20).

165The foregoing is also instructive in considering the reliability and credibility of an adult giving testimony as to events experienced as a child. 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, the presence of inconsistencies particularly as to peripheral matters should be considered in the context of the age of the witness at the time the events occurred (see: W.(R.), at para. 26). To be clear, those observations do not suggest a lower level of scrutiny of that evidence, only a different approach (see: W.(R.), at para. 21).

166That conclusion finds support in the evidence of the accused. I reiterate that the accused testified that because of the time that had passed, he himself could not recall the "tiny details" of the sexual assaults that he admitted to notwithstanding that he had been an adult at the time they occurred.

167For all of these reasons, I am not at all surprised that either the complainant or her brother had difficulty remembering peripheral specifics and details of the various incidents to which they each testified.

168By way of illustration, I considered the following to be peripheral specifics and details.

169As an example, the complainant testified that during the bathing suit incident her father had rubbed her vagina for what she recalled as several hours. That seems to me to be highly improbable. That said, I would not expect a child to remember the duration of that kind of event in the same manner in which an adult would.

170As another example, the complainant stated that she was wearing jeans on the futon when she testified at the preliminary inquiry, yet at trial swore to a specific recollection of having been wearing sweatpants that day.

171The complainant's inability to recall those peripheral specifics and details many years later does not equate to her misconceiving what had happened to her on those occasions and who had done it (see: R. v. B. (G.), at para 48). This issue is further canvassed immediately below in the context of the personal circumstances of the complainant.

The Similarity of the Evidence of the Complainant and Her Brother

172The complainant's brother also testified.

173Having had the opportunity to listen to and observe both siblings, I found strikingly similar frailties in the evidence of those two witnesses and I make the following observations about those similarities.

• Examples of Frailties in the Evidence of the Complainant and Her Brother

174The Crown suggested J.B.’s evidence was less than forthright. I disagree. I conclude that J.B. did his best to convey the truth as he understood it. I found that J.B. places a very high value on the truth. For example, he believed his sister was being truthful at trial but that she may be simply remembering incorrectly. I was struck by the contempt that he displayed toward his father when J.B. testified about his father having lied about the pornographic materials that he had discovered on his father's computer. J.B. was clearly distraught as a result of his father's deceit. (To be clear, I am not suggesting that J.B.'s evidence is evidence of his father's willingness to lie, I only make that observation to give context to J.B.'s evidence regarding that perceived deceit.) This is but one of the reasons that I concluded J.B. did his best to tell the truth as he understood it.

175Notwithstanding those best efforts, J.B., like his sister, often left the court with misimpressions about the whole truth. As an example, when J.B. was asked in chief whether he had ever told his sister that he had observed his father spying on his sister through the hole in one of the doors he simply answered no. I reiterate that the truth was that he had told his sister that he "suspected" his father of spying through the hole around the bathroom door knob and that there was a reasonable foundation for that suspicion. He candidly admitted that when the question was squarely put to him.

176I also concluded that both sometimes had difficulty distinguishing between what they could "remember" and what he could "deduce" based upon information available to them. As an example, J.B. testified that he could recall the family had only lived at 20 XB Street for two years. That evidence was inconsistent with the preponderance of evidence. When it was suggested to him they may have lived at 20 XB Street for four to five years he said "that would be incorrect" and stated it "did not make any sense". He then went through his recollection of the time they had spent in each house in support of that conclusion and maintained that he remembered that it was likely two years. I reiterate that conclusion was inconsistent with the evidence of both the complainant and the accused.

177The complainant and J.B. both also seemed to have a need to unintentionally "fill in the blanks" as to peripheral specifics and details when they could not recall them. To be clear, "filling in the blanks" is never acceptable when a witness is testifying. Doing so negatively impacts reliability and in some circumstances credibility. Most people know better. Notwithstanding, I make the following observations about J.B. and the complainant having from time to time "filled in the blanks". First, for the reasons above, I believe that each did their best to tell the truth as they understood it. More importantly, I did not find they had ever "filled in the blanks" with respect to anything but peripheral specifics and details. Examples are given below.

• The Reasons the Complainant and Her Brother Left the Court with Potential Misimpressions and/or "Filled in the Blanks"

178I repeat that I do not believe that either J.B. or the complainant intended to mislead the court through any of their testimony.

179According to E.B., she has, since earlier statements were given, "learned more social skills" and, as a result, communicates more accurately. I found that observation by the complainant very instructive in understanding the evidence of her and her brother.

180Simply put, I conclude in the childhood the two had experienced there had been very little opportunity for either sibling to learn communication skills consistent with those that the rest of us take for granted.

181Neither had received any formal education until they left home in their mid to late teens. Neither was allowed to answer the door or the telephone as a child. The family isolated itself from the neighbours. I repeat from above J.B.'s testimony that his parents did not even know the neighbours who live two or three doors down from them on 20 XB Street. I repeat at the time they lived on XB Street J.B. only had one friend and his sister had none. Both had been cut off from communication with their maternal grandparents. As a result, both had been raised in a very isolated and insulated environment.

182I have no doubt that because they mainly communicated only with each other and their younger brother, the language skills of all three would have been very inadequate for communication with the outside world. I also have no doubt each often understood what the other was communicating, notwithstanding the incomprehensibility of that communication by an average person listening in.

183Laudably, the complainant has completed her grade school education, high school education, and received a college diploma. Although J.B. did not testify as to the details of his education upgrading, he did say that he, too, had attended college. Accordingly, I believed the complainant when she says that her communication skills have grown significantly in the recent past.

184Notwithstanding that belief, I find that the communication skills of both J.B. and the complainant continued to be out of step with others their own age, and, as a result, each continues to operate under incorrect and inadequate assumptions about communication. However, I did not find the frailties in their ability to communicate fatal to their testimony. That is because I found the evidence of both regarding pivotal issues to be credible and reliable.

185There are many examples in the testimony of the complainant where the peripheral specifics and details may have been contradictory, but the truth of the underlying proposition was demonstrated. A non-exhaustive list would be as follows.

186As an example, the complainant acknowledged having told the police in a statement that the futon incident had occurred at 19a XB. Clearly that could not have occurred because the futon was at 20 XB. The complainant, however, ultimately recalled at trial that the event had occurred at 20 XB.

187As another example, in cross-examination the complainant denied that she had suffered any physical or sexual abuse at the house on XT Court. Defence counsel put a report to the complainant that she had given to Officer Andrew Randall by telephone on May 4, 2012. In that report, the complainant had told Officer Randall that the abuse had "continued when they move to BB". When asked to explain this apparent discrepancy, E.B. testified that at the time she had given that report she thought screaming and yelling and spanking were "normal". That answer of course did not make sense. Because she believed screaming and yelling to be normal the answer should have been "no". By the same token, because by the time of trial she knew that screaming and yelling were not normal, the answer should have been "yes". For example, both testified they were then being "disciplined" by being struck on the buttocks with a stick. According to J.B., he would sometimes be struck as many as 30-40 times during a single so-called disciplining session.

188As a third example, in the complainant's video statement she stated that her father would walk around the house "naked". At trial she conceded that he then had a towel on. She, however, went on to explain the towel would on occasions be open at the front exposing her father's penis. While I agree that the language the complainant chose may convey a false impression, I do not find the difference between walking around "naked" and walking around with a towel open at the front to be intellectually dishonest or meaningfully misrepresentative of the underlying proposition.

• Conclusions as to the Frailties in the Evidence of the Complainant and Her Brother

189In summary, I concluded that both the complainant and her brother J.B. communicated incorrectly as to details and specifics both prior to and during the trial. I conclude that neither had any intention to mislead the court in doing so. Rather, I concluded that their inability to communicate their thoughts in a manner consistent with their respective ages was a function of having spent the first 18 or 19 years of their life in the relative seclusion of the company of only their siblings and, from time to time, their parents. To be clear, I approached the evidence of both with a great deal of caution given those discrepancies. That said, I was in the end left with no reasonable doubt that the complainant had truthfully and accurately conveyed information about the pivotal matters of substance and central importance.

c) Potential Similar Fact Evidence

The Prior Sexual Assaults

190I reiterate that the accused acknowledged a total of five prior occasions when he had sexually assaulted his daughter. At the beginning of the trial, Crown and defence counsel advised me that the following had been the subject of a prior guilty plea and resulting conviction:

1. An incident where the accused approached the complainant showing her a picture in a pornographic magazine where a naked adult female was giving an adult male oral sex and then the accused asked the complainant whether she wanted to do that for him;

2. An incident where the complainant was brought into the bathroom by the accused and he then masturbated and ejaculated into the toilet in her presence; and

3. An incident where the accused rubbed and licked her vagina while she was lying naked in her bed.

191It was unclear whether two other incidents admitted to by the accused were also part of that conviction. They were:

1. An incident where the accused had rubbed his daughter's vagina for approximately one minute over her clothes; and

2. An incident where the accused had been drying the complainant after a bath and had rubbed her genitalia for about three or four minutes while she was standing.

192The defence did not object to the first three incidents being considered by the court in the context of similar fact evidence. To be clear, there was no request for the latter two incidents to be considered in the context of similar fact evidence and, accordingly, I did not consider them.

193Defence counsel proposed that the first three listed sexual assaults serve to demonstrate the narrative for what people believed, why they acted the way they did, and the paranoia that had been described by his client. Defence counsel, however, opposed any other use of that evidence.

194Similar fact evidence is presumptively inadmissible. It follows that the onus is on the Crown to satisfy the court on a balance of probabilities that in the context of this particular case, the probative value of the evidence as to the issue of the accused’s propensity to sexually assault his daughter, and the credibility of the complainant, and of the similarity of these three incidents to the two alleged incidents underlying count one, outweigh its potential prejudice (see: R v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908, 1 C.R. (6th) 203, at para. 55). I reiterate that proof of general disposition is a prohibited purpose and therefore not a consideration in this analysis (see: Handy, at para. 72).

195In assessing the probative value of this evidence, I find the evidence has some potential for relevance in that the accused has both admitted to, and been convicted of, having sexually assaulted his daughter on these three previous occasions. As to connecting factors, there is clearly a close temporal proximity between the acts admitted to and the first three counts in the indictment. The acts do have some similarities. For example, they all involve his daughter who is also the complainant; the complainant was a very young child when all the acts were alleged to have occurred; and the complainant's mother was not around when any of the acts were alleged to have occurred. Finally, both of the acts alleged in this indictment involved rubbing the complainant's vagina as does the third incident upon which the Crown seeks to rely. These similarities to some extent support a finding of a situation specific propensity (see: R. v. Gibson, 2011 ONSC 6050 at para. 6, and R. v. Shearing, 2002 SCC 58, [2002] S.C.J. No. 59). It, however, seems to me, these similarities fall short of revealing the requisite "degree of distinctiveness or uniqueness" (see: Handy, at para. 76). Rather, I find them more consistent with "generic similarities" supporting a potential "general propensity" (see: R. v. R.B., 2003 CanLII 13682 (ON CA), [2003] O.J. No. 4589, 68 O.R. (3d) 75, Ontario Court of Appeal; aff’d [2004] S.C.J. No. 65; [2004] A.C.S. no 65; 2004 SCC 69, and "Similar Fact Evidence", Law Society of Upper Canada Special Lectures 2003, Rosenberg J. at p. 9 - 12). Said another way, the similarities fall short of demonstrating an improbability of coincidence (see: R. v. Arp, 1998 CanLII 769 (SCC), [1998] 3 S.C.R. 339, [1998] S.C.J. No. 82 at para 72).

196In summary, I conclude that the evidence does have some probative value but that it cannot be described as "highly probative" (see: "Similar Fact Evidence" Rosenberg J. at p. 9 - 12).

197As to the prejudicial effect, this trial was not a jury trial and, accordingly, the potential for prejudice somewhat reduced. Notwithstanding, there remains possibility that similar fact evidence may result in moral prejudice by creating an inference of guilt based solely on bad character. To a lesser extent, there is also the possibility of reasoning prejudice resulting from distraction from the actual charge (see: Handy, at para. 31).

198In the circumstances of this case I conclude that the probative value does not outweigh the potential for prejudicial effect to the requisite degree for any use of this evidence other than that agreed to by the defence.

The Bestiality Pornography

199The Crown also argued that I consider the bestiality pornography as similar fact evidence. I agree with the submission by the defence to the effect that the prejudicial effect of that evidence would outweigh any probative value given the lack of connecting factors. I find that there are no meaningful similarities or connecting factors between watching bestiality pornography on the computer and, for example, physically assaulting one's daughter or deliberately exposing oneself to her. As a result, I gave that evidence no consideration whatsoever in reaching my conclusions as to any of the allegations in this indictment.

d) The Timing of Disclosure

200Finally, defence counsel inquired as to why the complainant had not disclosed the allegations of sexual assault to her mother sooner. It is well settled that "there is no inviolable rule on how people who are the victims of trauma like a sexual assault will behave" (see: R. v. D.D., 2000 SCC 43, [2000] 2 S.C.R. 275 at para 65).

e) Occasions when the Abuse was discussed by the Complainant and Accused

201In closing argument defence counsel suggested that while the family was living on XCB the complainant had only talked with her father about the sexual assaults that had occurred on XE. It was suggested that limitation was inconsistent with sexual abuse on later occasions. I disagree with that assertion. The evidence as I recall it was that there were four or five occasions where the accused had instigated that conversation. The complainant agreed with a defence suggestion that on those occasions it was the historic abuse that had been discussed. The complainant, however, clearly stated in examination in chief that while they lived on XCB she had attempted to "confront" her father with not only the incidents which had occurred on XE, but all the incidents of sexual abuse that "she could remember" at that time.

2) Count 1 - The charges of Sexual Assault contrary to [s. 271](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html) of the [Criminal Code](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html)

a) The Allegations Underlying the Charge

202The allegations underlying this charge are what are referred to above as the "futon incident" and the "bathing suit incident".

b) The Elements of the Offence of Sexual Assault

203In order for me to find the accused guilty of sexual assault, the Crown must prove each of these essential elements beyond a reasonable doubt:

1. that the accused intentionally applied force to the complainant;

2. that the complainant did not consent to the force that the accused intentionally applied;

3. that the accused knew that the complainant did not consent to the force that the accused intentionally applied; and

4. that the force that the accused intentionally applied took place in circumstances of a sexual nature.

204I reiterate that the complainant testified that her father had rubbed her vagina in a sexual manner while she and her siblings were on the futon in the family room at 20 XB Street. I also recall that the complainant testified that her father had rubbed her vagina in a sexual manner while he purported to stretch her bathing suit.

205For the reasons above, I did not believe the accused’s denial of these incidents nor was I left with a reasonable doubt that they had occurred as a result of his evidence.

206I found the evidence of the complainant as to the substance of these allegations internally consistent and in harmony with the whole of the evidence and as a result I believed it.

207The following are examples of why I found the complainants evidence to be in harmony with the preponderance of evidence regarding these instances.

208There was consensus that the children spent most of their time in the basement, and that there was a futon and an afghan in the room in which the television was located. There is also consensus that they often watched television and that their father was in the room with them while they were doing so. There was consensus that they would often cover themselves with the afghan.

209J.B. agreed that "Gushers" commercials were common at the time. It does not surprise me that the complainant would remember the "Gushers" commercial having played while her father sexually assaulted her given the trauma that she was then enduring. It was the complainant’s recollection that her father had not taken much interest in her at the time and, accordingly, she was "excited" that he was watching television with them. That evidence finds support in the accused's assertion that he generally sat at the opposite end of the futon to his daughter. Accordingly, I find that it makes sense that the complainant would be excited at the thought of sitting directly beside her father.

210I found the accused to be a creature of opportunity. I have no reasonable doubt that with the aid of the Afghan and/or his wife potentially being asleep upstairs, he avoided his wife detecting the sexual assault on the futon. I also have no reasonable doubt that the complainant's brothers would have had no reason to find anything particularly unusual about their sister laughing at a “Gushers” commercial. As a result, I conclude there would be no reason for J.B. to have remembered an event such as the sexual assault described by his sister having occurred in the manner in which she described when J.B. was so young.

Conclusions as to the First Element

211For all of the above reasons, I did not believe the accused blanket denial of the bathing suit incident and the futon incident. I believed the complainant when she testified as to a recollection of her father having applied force by rubbing her vagina under the guise of stretching her bathing suit and by pulling her bathing suit up so hard that it got "stuck in her vagina and butt" as the complainant said it had. I found the accused’s conduct in having rubbed his daughter's vagina both during the futon incident and the bathing incident to be an intentional application of force. I had no reasonable doubt as to the first element either as a result of the evidence of the accused or any other evidence.

The Second and Third Elements

212As to the second and third elements, the law is clear that a complainant under the age of 16 years cannot consent to a sexual act or touching (see: Criminal Code, s. 150.1).

The Fourth Element

213As to the fourth element, the law is clear that sexual assault is an offence of general rather than specific intent (see: R. v. Chase, 1987 CanLII 23 (SCC), [1987] 2 S.C.R. 293, 59 C.R. (3d) 193, at para. 12). It follows that the Crown need not establish sexual motivation per se, but only that the touching was committed in circumstances of a sexual nature (see: R. v. S. (P.L.), 1991 CanLII 103 (SCC), [1991] 1 S.C.R. 909, 5 C.R. (4th) 351, at para. 33). The essence of the crime is that it is an unacceptable intrusion upon, or violation of the victim’s sexual privacy or integrity (see: R. v. V. (K.B.), 1992 CanLII 7503 (ON CA), 8 O.R. (3d) 20, 52 O.A.C. 393; Chase; R. v. Cook (1985), 1985 CanLII 641 (BC CA), 20 C.C.C. (3d) 18, 46 C.R. (3d) 128 (BCCA)).

c) Conclusion

214Accordingly, on the totality of the evidence I find that the Crown has proved each of the elements of sexual assault as alleged in Count one beyond a reasonable doubt.

3) Count 2 - The charges of Assault contrary to [s. 266](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html) of the [Criminal Code](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html)

a) The Allegations Underlying the Charge

215The allegations underlying this charge are what are referred to above as the "swimming pool incident” and the "cuffing incident".

b) The Elements of the Offence of Assault

216In order for me to find the accused guilty of assault, the Crown must prove each of these essential elements beyond a reasonable doubt:

i. that the accused intentionally applied force to the complainant;

ii. that the complainant did not consent to the force that the accused intentionally applied; and

iii. that the accused knew that the complainant did not consent to the force that the accused intentionally applied.

c) Disposition

217At the close of evidence the Crown conceded that it had failed to prove beyond a reasonable doubt each of the elements of this offence. On the evidence heard, I agreed and accordingly dismissed Count 2 on consent.

4) Count 3 - The charge of Sexual Interference contrary to [s. 151](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html)(a) of the [Criminal Code](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html)

a) The Allegations Underlying the Charge

218The allegations underlying this charge are what are referred to above as the "futon incident" and the "bathing suit incident". I reiterate that these incidents were also the subject of the offence set out at Count 1.

b) The Elements of the Offence of Sexual Interference

219In order for me to find the accused guilty of sexual interference, the Crown must prove each of these essential elements beyond a reasonable doubt:

i. that the complainant was under 14 years old at the time;

ii. that the accused touched the complainant; and

iii. that the touching was for a sexual purpose.

220As to the first element, there was consensus that the complainant was under 14 years of age when the family lived at 20 XB Street where these events were alleged to have occurred. There was no evidence to suggest that consensus was wrong. Accordingly, I find that the complainant was under 14 years old at the time.

221As to the second element, for the reasons above, I did not believe the accused when he denied having touched his daughter. I did believe the complainant when she said that her father had touched her in a sexual manner. I was not left with any reasonable doubt as to that conclusion either by the evidence of the accused or by any of the other evidence and, accordingly, I find that the accused did touch the complainant.

222As to the third element, I find that the touching was for a sexual purpose. I was left with no reasonable doubt as to that conclusion as a result of the evidence of the accused or any other evidence. The primary reason for that conclusion is that the nature of the touching described by the complainant is consistent with no other purpose.

d) Disposition

223On the totality of the evidence I find that the Crown has proved each of the elements of the offence of sexual interference beyond a reasonable doubt.

224I note the allegations underlying this charge substantially relate to the same underlying circumstances as those in Count 1 above. I would, therefore, ask counsel for input as to the effect of the principles set out in Kienapple v. The Queen, 1974 CanLII 14 (SCC), [1975] 1 S.C.R. 729, 15 C.C.C. (2d) 524, in the circumstances.

5) Count 4 - The charges of Sexual Assault contrary to [s. 271](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html) of the [Criminal Code](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html)

a) The Allegations Underlying the Charge

225The allegations underlying this charge are what are referred to above as the "necklace incident".

b) The Elements of the Offence of Sexual Assault

226I reiterate that in order for me to find the accused guilty of sexual assault, the Crown must prove each of these essential elements beyond a reasonable doubt:

1. that the accused intentionally applied force to the complainant;

2. that the complainant did not consent to the force that the accused intentionally applied;

3. that the accused knew that the complainant did not consent to the force that the accused intentionally implied; and

4. that the force that the accused intentionally applied took place in circumstances of a sexual nature.

227I repeat that the complainant testified that she had come downstairs one morning while they were living on XCB wearing a "choker necklace" comprised of a black string with a "bead" on it. She sat on the couch in the living room with her brother T.B. who was then playing video games. According to the complainant, the accused sat beside her, reached over, grabbed the bead and began swiping it back and forth from left to right and right to left. In the process of doing so he was touching the complainant's breasts over the top of her sweatshirt. The complainant testified that this conduct continued for a couple of minutes. I find that that sequence of events occurred in the manner in which the complainant described. I was not left with any reasonable doubt as to that finding either as a result of the evidence of the accused or any of the other evidence that I heard.

228I did not believe the accused when he denied having sexually assaulted his daughter in that manner or when he testified that he was no longer sexually attracted to his daughter at the time the family lived at XCB. I find that evidence disharmonious with the totality of the evidence. I make the following examples in support of my finding that the accused continued to be sexually attracted to his daughter at that time.

229The first is that the evidence supports the conclusion that the accused had watched his daughter in the shower on at least one occasion. I disbelieved the accused when he said he had not done so. The complainant testified that she had suspected her father of looking through the hole in the door while she showered and that she had told her mother about the suspicions at the time. The evidence of J.B. was consistent with the complainant’s evidence in that regard. The complainant testified that she would put a towel over the doorknob and then stuff it partially into the hole in order to prevent someone from seeing in. She testified that on several occasions she had found the towel on the floor when she was finished showering. Similarly, J.B. testified that a towel had been put over the handle to prevent someone from looking in. I believed the complainant when she said she had put a towel over the doorknob and pushed it into the hole in order to prevent someone from seeing in. I also believed the complainant when she testified that she had often found the towel on the floor when she was finished showering. As a result, I believe that someone had deliberately pushed the towel back through the hole while the complainant was showering.

230There were two occasions on which the accused had been observed in a situation where he had the opportunity to "peek" through the door while his daughter was showering.

231The accused testified that on the occasion of the "first peeking incident" his wife had caught him leaning over the doorknob while his daughter was in the shower. It was his position that he had only leaned over the doorknob because he was "shocked" to find out that the doorknob had come loose again and he was in the process of investigating as a result. I find it inconceivable that D.B. would have been "shocked" that the very doorknob that came loose every day or two in the past had again come loose. That assertion simply defies common sense.

232The first peeking incident supports the conclusion that the accused was spying on the complainant as she showered and, accordingly, I find that he did so. As a result, I disbelieved the accused when he testified that he was no longer sexually attracted to his daughter at the time they lived on XCB.

233On occasion of a possible "second peeking incident", J.B. and his mother and brother were in the process of leaving to buy some water. I recall that the accused stated that there had been a "rule of the house" in place that he not be upstairs while someone showered. Consistent with that "rule of the house", the complainant was in the shower and the father in the basement when J.B., T.B. and K.B. left the house. While they were still in the parking lot, J.B. noticed the light on in the accused’s bedroom. According to J.B., his mother then went into the house to confront the accused. J.B. testified that even though he had not actually seen his father looking through the door, it was not hard "to put two and two together and think that something might have happened at that point".

234While I find it clearly possible that the accused was watching his daughter shower on the second occasion, I agree with the defence position that on the frail evidence before me I ought to be left with some doubt as to whether that actually occurred. Notwithstanding, I find that evidence useful in understanding the accused state of mind toward his daughter. I conclude that the accused was upstairs while his daughter was showering. I reiterate the "rule of the house" was that he not be upstairs when his daughter was up there alone. He had broken that very simple and straightforward rule by walking by the very door that he was suspected of peeking through while his daughter was showering and the two were alone in the house.

235Similarly, the accused was asked by the Crown why, given his prior sexual assault conviction, he wore his underwear around the house instead of taking every precaution to avoid even a hint of impropriety with his daughter. His response was "that is the way that it was". When he was asked to reconcile that response with the "paranoia" he had described in the household, D.B., again, offered no plausible explanation. To be blunt, I can think of no reason the accused would have walked around the house wearing only a pair of underwear shorts which he described as fitting in such a way that his genitals would be exposed to his daughter, and why he had made deliberate eye contact with her at the time, if he was no longer sexually attracted to her when they lived on XCB. Again, as a result, I disbelieved the accused when he testified that he was no longer sexually attracted at the time they lived on XCB.

236On the totality of the evidence, I find the accused continued to be sexually attracted to his daughter at the time they lived on XCB. For the same reasons, I also find that D.B. had acted on those impulses.

237I also found D.B. to have been quite bold in acting upon those impulses. I resay that D.B. acknowledged having reached for the cross around his daughter's neck. I also remind that he testified that he at the time had not thought it inappropriate for him to reach for the cross. But for the fact his wife had told him to "stop", D.B. would no doubt have grabbed that cross undoubtedly touching his daughter's chest in the process. To be clear, there may be situations in some families where that conduct would be appropriate. This was not one of those families. D.B. had a history of sexually assaulting his daughter and, according to him, even 13 or 14 years later there continued to be an air of "paranoia" as a result.

238There was some suggestion that there would have been no opportunity for D.B. to have grabbed his daughters "choker necklace" while the two sat on the couch in the living room. That was because it was a "high traffic area". While I agree opportunities may have been limited, I simply do not believe that there would be no opportunities whatsoever. For example, J.B. and his mother may have been upstairs or out of the house getting water at Sobeys.

239Finally, because I found the evidence of the accused lacking in credibility, I disbelieved the accused when he said the incident with the choker necklace had not occurred for all of the reasons above. Similarly for the reasons above, I believed the evidence of the complainant as to the central issue of whether her father had grabbed the choker necklace and touched her breasts several times as he moved back and forth.

240Accordingly, I was left with no reasonable doubt as a result of the evidence of the accused or the evidence of any other person that the accused had grabbed the "choker necklace" in the manner described by the complainant and that he had done so intentionally.

241I also have no reason to believe that the complainant consented to that conduct. There was no evidence to suggest she had consented, and the evidence of the complainant was consistent only with a lack of consent. Nor do I have any reason to believe that the accused did not know that his daughter would not, and did not, consent to him touching the necklace and her breasts in that manner. Accordingly, I find that the complainant had not consented to that conduct and the accused knew that she had not consented.

242Finally, I can think of no plausible reason for the accused to have repeatedly touched his daughter's breasts in that manner other than the pursuit of his own sexual gratification. Accordingly, I find that the accused intentionally applied force of a sexual nature to the complainant.

243On the totality of the evidence, I find that the Crown has proved each element of the offence of sexual assault beyond a reasonable doubt.

6) Count 4 - The charge of Indecent Acts contrary to [s. 173(1)](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html)(b) of the [Criminal Code](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html)

a) The Allegations Underlying the Charge

244The allegations underlying this charge are what are referred to above as the "underwear incident".

b) The Elements of the Offence of Indecent Acts

245In order for me to find the accused guilty of indecent acts by exposing his genitals, the Crown must prove each of these elements beyond a reasonable doubt:

i. that the accused willfully did an indecent act; and

ii. that the indecent act was willfully done in any place with intent to insult or offend any person.

246As to the first element, the accused acknowledged that he occasionally walked in his underwear from his bedroom to the bathroom or down to the washer or dryer to retrieve cloths from the clothes dryer.

247The accused testified that his daughter may have seen him in his underwear a maximum of three or four times during the eight years that they lived at XCB. I did not believe the accused’s evidence in that regard. That assertion was inconsistent with his own evidence to the effect that wearing underwear around the house was "the way it was". It was also inconsistent with the evidence that his son J.B. testified to on his behalf. J.B. stated that his father would often wear his underwear in the house, sometimes spending as much as 45 minutes downstairs in the living room wearing only his underwear pants. The complainant also testified that the accused would often walk around wearing only his underwear. For all of these reasons, I find as a fact that the accused often walked around the house with his underwear on.

248I also find that on occasion the accused’s penis had been "hanging out" on multiple occasions when he was walking around the house in his underwear, and that he had intended that result.

249Quite importantly, the complainant did not deny that his penis may have been hanging out or that his daughter had seen him with his penis hanging out of his underwear. Rather, he testified that if she had seen his penis, it had been unintentional on his part. According to D.B., his underwear was loose and, accordingly, his penis may have been "hanging out the side". I make two observations regarding that explanation. The first is that it was directly contradicted by the evidence of the accused's son J.B. who testified on his behalf. J.B. clearly stated that if his father testified that his penis could have been exposed by accident he would not be telling the truth. J.B. explained that his father's underwear was form-fitting and fit "very very tightly". The second observation is that there had been multiple exposures. Had the accused’s penis been exposed on one occasion, and had that exposure been followed by an apology, I may have believed D.B. when he said it had been an accident. In this case, there were multiple exposures and D.B. testified that he had never apologized to his daughter.

250The accused also testified that there may have been occasions when his penis was "hanging out of his underwear" but he was unaware. To be blunt, I find that proposition defies common sense.

251As said, I found the complainant to be a credible and reliable witness as to pivotal matters. I believed her evidence as to having observed her father's penis out of his underwear on multiple occasions while he walked past her. I found her evidence in that regard in harmony with the totality of the evidence that I believed.

252I am aware that the complainant gave conflicting evidence as to precisely how the accused’s penis had exited his underwear. Prior to trial the complainant had stated that her father had exposed his penis by pulling his underwear down and during trial she had stated that he had exposed his penis by pulling it through the hole at the front of his underwear. The complainant did not suggest that the accused had exposed his penis in different manners at different times. I, however, make the following observations. The first is that, it seems to me, a daughter confronted with her father exposing his penis to her would tend to look away rather than take the time to study precisely how the accused had arranged his underwear. The second is that as said above, the complainant and her brother had a tendency to "fill in details". Again, as undesirable as that conduct is for a witness, for the reasons above I find it was not intentional, and it did not detract from the reliability and credibility of her testimony as to the substantive and to the total issue of whether her father had in fact exposed his penis to her on several occasions.

253Whether or not the accused wearing his underwear in such a fashion that exposed his penis to his daughter constitutes an indecent act is to be determined in the context of the "community standard tolerance test" (see: R. v. Jacob (1996), 1996 CanLII 1119 (ON CA), 31 O.R. (3d) 350, 4 C.R. (5th) 86, at para. 2). At para. 36 of the decision in Jacob the court states:

In applying the community standard of tolerance test, the court must consider what harm will accrue from exposure to the allegedly obscene act or material. The correlation is inverse in the sense that the greater the harm that may flow from a particular exposure, the less the community will tolerate others being exposed to it. Tolerance cannot be assessed independently of harm.

254I find that the harm any daughter would suffer as a result of her father deliberately exposing his genitals while making eye contact would objectively offend the community standard of tolerance test. In this case, the subjective factors that the accused had created make the conduct particularly egregious. I reiterate that the accused had previously sexually assaulted his daughter on several occasions. He had on many occasions struck her on the buttocks with a stick in a very demeaning fashion. Clearly, the harm to the complainant would be significant within the circumstances which the accused had created in their household. As a result, I have no difficulty concluding the accused exposing his genitals to his daughter in that fashion was an "indecent act" within the meaning of s. 173(1)(b) of the Criminal Code. Finally, I reiterate that the exposure had been on multiple occasions.

255As to the second element, I find that the accused had a specific intent to insult or offend his daughter in doing so. There is no doubt that the complainant's assertion that her father made eye contact with her on those occasions is correct. D.B. himself acknowledged that he had made eye contact with his daughter while walking from his bedroom to the bathroom in his underwear. I recall from above he explained that it was not possible to avoid contact because if he was in the hall and she was standing in her bedroom "it would be an impossibility not to look at her". It was the accused’s position that because with her bedroom being right down the hallway, their "faces would clearly cross paths". Again, I do not believe D.B. It defies common sense to suggest that D.B. could not avoid looking into his daughter's bedroom door each time he went from his bedroom to the bathroom. The bathroom was directly next door to his bedroom. I find on the evidence of the accused that he did make eye contact with his daughter. Based upon the circumstances in which that eye contact had been made, I find that it could have been avoided and, accordingly, was intentional.

256There are several evidentiary themes which offer insight into the state of mind of the accused during the relevant time frame and support my conclusion as to the accused's intention. The first is that D.B. offered no plausible explanation why he would have taken the risk of walking around in his underwear in exposing his genitalia to his daughter in the environment of "paranoia" that he described. The second is that D.B.’s wife had taken the time to explain to D.B. that it bothered his daughter when he walked around the house in his underwear. D.B. admitted that notwithstanding that discussion, he only wore pants "most of the time". On the other occasions he continued to walk around the house in his underwear notwithstanding his wife's request and a clear knowledge that bothered his daughter. As another example, the Crown inquired why D.B. would not have taken every precaution to avoid even a hint of impropriety with his daughter and simply not walked around the house in his underwear given the sexual assault conviction. D.B. denied that there was any impropriety in walking around his home in that fashion and quite cavalierly stated "that is the way that it was". I find that D.B. did not care about the impact of his conduct upon his daughter. Consistent with that observation, I reiterate that, to this day, D.B. has never apologized for any of his conduct. To be clear, I am aware that in certain households males may walk around the house in their underwear. I, however, find this case clearly distinguishable from those given. D.B. had repeatedly sexually assaulted his daughter and there existed an “air of paranoia”.

257In summary, I find that the accused fully understood that the act of making eye contact with his daughter as he passed her with his penis hanging out of his underwear would insult and offend her. I also find that he intended that result. I am not left with any reasonable doubt as to that conclusion by the evidence of the accused or any other evidence that I heard.

258For the reasons above, on the totality of the evidence, I find that the Crown has proved each element of the offence of sexual interference beyond a reasonable doubt.

7) Count 6 - Assault contrary to [s. 266](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html) of the [Criminal Code](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html)

a) The Allegations Underlying the Charge

259The allegations underlying this charge are what are referred to above as the "stick incident".

b) The Elements of the Offence of Assault

260In order for me to find the accused guilty of assault, the Crown must prove each of these essential elements beyond a reasonable doubt:

i. that the accused intentionally applied force to the complainant;

ii. that the complainant did not consent to the force that the accused intentionally applied; and

iii. that the accused knew that the complainant did not consent to the force that the accused intentionally applied.

c) Disposition

261At the close of evidence the defence conceded that each of the elements of this offence had been proved by the Crown beyond a reasonable doubt. D.B. himself admitted that he had repeatedly struck his daughter with a stick.

262The complainant testified that she had not consented and there was no suggestion by the accused that she had. To the contrary, the accused clearly stated that the complainant had protested to being struck. It follows that he knew the complainant had not consented.

263I do not find that the defence at s. 43 of the Criminal Code regarding justification of this use of force is applicable. For several reasons, I find the force used clearly exceeded what was reasonable in the circumstances. The first is that I can think of no circumstances in which striking anyone with a wooden object of the approximate size of a baseball bat is appropriate. I can also think of no instance where using a stick or a strap or any other implement to strike a child is appropriate. Striking any young woman in the buttocks would clearly be monumentally degrading in any circumstances. In this case, attempting to strike a young woman who the accused himself had previously sexually assaulted in the buttocks was particularly inappropriate (see: Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General), 2004 SCC 4, [2004] 1 S.C.R. 76, at para. 43).

264For all of these reasons, on the totality of the evidence I find that the Crown has proved each of the elements of this offence beyond a reasonable doubt, and that section 266 of the Criminal Code does not afford a defence for the conduct of the accused.

E. JUDGMENT

As to count 1 - Sexual Assault - Stayed

As to count 2 – Assault - I reiterate count 2 was previously dismissed at the request of the Crown

As to count 3 – Sexual Interference - Guilty

As to count 4 - Sexual Assault - Guilty

As to count 5 - Indecent Act - Guilty

As to count 6 - Assault - Guilty

“original signed and released by Bondy J.”

Justice Christopher M. Bondy

Released: Delivered Orally February 24, 2015

CITATION: R. v. D.B., 2015 ONSC 141

COURT FILE NO.: CR-13-2853

DATE: 20150224

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

D.B.

REASONS FOR JUDGMENT