R. v. H.P., 2015 ONSC 2104

COURT FILE NO.: CR-13-0002660000

DATE: 20150522

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

H.P.

Accused

Joshua Tupper, for the Crown

Sonya Shikhman, for the Accused

HEARD: January 5 – January 16, 2015

REASONS FOR JUDGMENT

B.A. ALLEN J.:

PROCEDURAL BACKGROUND AND CHARGES

Mistrial

[1] This trial started as a jury trial on January 5, 2015. H.P. was assisted during his testimony and throughout the proceeding by an experienced certified Spanish interpreter. While cross-examination of H.P. was in progress on January 13, 2015, the jury delivered a note to me raising questions about the interpreter’s interpretation of H.P.’s testimony. Defence counsel brought an application for a mistrial on the basis of a possible miscarriage of justice that might result from concerns the jury raised in the note. Crown counsel opposed the application.

[2] I granted the application and declared a mistrial. I then asked if the defence would wish to re-elect trial by judge alone. The defence re-elected and the Crown consented. The court and the parties were satisfied to continue with the same interpreter.

[3] Crown counsel called the two complainants, RO and RM, as witnesses. H.P. called a defence. He testified as did his daughter E.P., his son M.P. and J.R., a foster child who stayed at the P.’s on weekends.

The Charges

[4] H.P. faces 17 charges related to sexual assaults. There are two complainants, one of whom is RM, H.P.’s step-daughter. H.P. is married to RM’s mother, G.P.. The second complainant is RO, a foster child who, during the material time of her allegations, was in the care of G.P. on weekends. H.P. was arrested in January 2012 in relation to RO’s allegations and in July 2012 in relation to RM’s charges. Thirteen of the charges were brought on allegations made by RM in relation to several alleged incidents. The other four charges are based on allegations by RO in relation to one alleged incident.

Charges on RO’s Allegations

[5] The charges in relation to RO are that H.P. sometime between and including February 1 and February 28, 2010:

• committed a sexual assault on RO contrary to s. 271 of the Criminal Code (count 1);

• for a sexual purpose touched RO, a person under the age of 14 years, directly with his penis contrary to s. 151 of the Criminal Code (count 2);

• invited RO, a person under the age of 14 years, to directly touch his penis contrary to s. 152 of the Criminal Code (count 3); and

• touched directly or indirectly the body of RO, a person under the age of 14 years, with his penis contrary to s. 153 (a) of the Criminal Code (count 4).

Charges on RM’s Allegations

[6] The charges in relation to RM are that sometime between and including October 1, 2005 and December 31, 2006 H.P.:

• committed a sexual assault on RM contrary to s. 271 of the Criminal Code (count 5); and

• for a sexual purpose touched RM, a person under the age of 14 years, directly with his hand contrary to s. 151 of the Criminal Code (count 6).

[7] H.P. is further charged that sometime between and including January 1, 2007 and October 31, 2009 he:

• committed a sexual assault on RM contrary to s. 271 of the Criminal Code (count 7);

• for a sexual purpose touched RM, a person under the age of 14 years, with his hand contrary to s. 151 of the Criminal Code (count 8); and

• for a sexual purpose invited RM, a person under the age of 14 years, to touch directly his penis contrary to s. 152 of the Criminal Code (count 9);

[8] H.P. is further charged that sometime between and including November 1, 2009 and September 30, 2010 he:

• committed a sexual assault on RM contrary to s. 271 of the Criminal Code (count 10);

• for a sexual purpose touched RM, a person under the age of 14 years, directly with his penis contrary to s. 151 of the Criminal Code (count 11); and

• did for a sexual purpose invite RM, a person under the age of 14 years, to touch directly his penis contrary to s. 152 of the Criminal Code (count 12).

[9] H.P. is further charged that sometime between and including October 1, 2010 and January 30, 2012 he:

• committed a sexual assault on RM contrary to s. 271 of the Criminal Code (count 13);

• did for a sexual purpose touch RM, a person under the age of 14 years, directly with his hand contrary to s. 151 of the Criminal Code (count 14);

• did for a sexual purpose touch RM, a person under the age of 14 years, directly with his penis contrary to s. 151 of the Criminal Code (count 15); and

• did for a sexual purpose invite RM, a person under the age of 14 years, to touch directly his penis contrary to s. 152 of the Criminal Code (count 16).

[10] H.P. is further charged that sometime between October 1, 2005 and January 30, 2012 he:

• being a person in a position of trust and authority towards RM, a young person, for a sexual purpose touched the body of RM directly or indirectly with his penis contrary to s. 153 of the Criminal Code (count 17).

EVIDENCE

General Factual Background

[11] The charges against H.P. arose from incidents alleged to have occurred from between about 2005 and 2012. RO alleges the offences by H.P. against her happened sometime in February 2010 when she was 13 years old. RM alleges he committed the offences against her from 2005 to 2012 when she was from about 9 to 16 years of age.

[12] During the relevant time at four different residences, H.P. lived with his wife G.P., their young son, M. (RM’s step brother) and RM, (G.P.’s daughter and H.P.’s step-daughter). Following is an overview of the charges as they relate to the four residences:

• At W[…] Ave. apartment − 2005 to 2006, RM alleges sexual assault (count 5) and sexual interference (count 6);

• At S[…] Way bungalow − 2007 to 2009, RM alleges sexual assault (count 7), sexual exploitation (count 8) and invitation to sexual touching (count 9);

• At O[…] Ave. apartment – 2009 to 2010, RM alleges sexual assault (count 10), sexual exploitation (count 11), and invitation to sexual touching (count 12); February 1 to February 28, 2010, RO alleges sexual assault (count 1), sexual interference (count 2), invitation to sexual touching (count 3); sexual exploitation (count 4)

• At L[…] Ave. apartment – 2010 to 2012, RM alleges sexual assault (count 13), sexual exploitation (counts 14 and 15) and invitation to sexual touching (count 16).

[13] RM’s allegation on count 17 is more general involving H.P.’s relationship of trust and authority over her when he is alleged to have committed the sexual offences against her.

[14] During the relevant periods, H.P.’s children by a previous marriage, his daughter E.P. and son M.P., lived with their mother at a different residence. E.P. and M.P. would visit their father on weekends at the P.’s various residences. RM would stay with her biological father on some weekends at his residence. RM went to stay with her father on a more permanent basis when she was about 14 years old when the P. family lived on L[...] Ave.

[15] As noted above, G.P. took in foster children on weekends. These children would go to the P.’s on a respite basis. That is, they stayed with their regular foster caretakers during the week, and to give their foster parents a break, they would stay with the P.’s on weekends. On weekends, friends would also hang out at the P.’s apartments with RM, RO, the P. teenagers, and the other foster children.

RM’s Case

RM’s Evidence

[16] At trial RM was shown a videotape of her April 11, 2012 interview by the Toronto police. RM was age 15 at the time of the police interview and 18 years at the time of trial. The interview was conducted by a male officer. Examination-in-chief began immediately after the video was played. RM testified H.P. sexually abused her from 2005 to 2012 at all four residences.

W[...] Ave., 2005/2006, Count 5 (sexual assault) and Count 6 (sexual interference)

[17] When questioned by Crown counsel, RM testified as follows about her abuse by H.P. at W[...] Ave.:

[18] RM testified that four people lived at the W[...] Ave. apartment – herself, her mother, H.P. and M., who was about three years old at the time. RM was about 9 years old at the time.

[19] RM testified H.P. first started sexually abusing her at the W[...] Ave. apartment by touching her body. RM testified this would happen when H.P. returned home from his work as a painter at about 4 or 5 p.m. He would hug her and touch her breasts and run his hands down her back and touch her buttocks. She would be fully clothed. She stated she felt disgusted by H.P.’s conduct. She knew it was wrong and she would tell him to leave her alone and pull away from him. RM testified she had clear recall of this happening about four times. She did not recall if anyone else was home when this occurred.

S[...] Way, 2007-2009 – Count 7 (sexual assault), Count 8 (sexual exploitation), Count 9 (invitation to sexual touching)

[20] RM testified to the following on examination-in-chief about her experiences at S[...] Way:

[21] She said only she, her mother, H.P. and M. lived at S[...] Way. She was around ages 12 and 13 when the family lived there. This home was a bungalow situated in a line of row houses. It had a basement, main floor and a second floor. RM’s bedroom was on the second floor.

[22] RM testified that at this residence H.P. started asking her to watch porn with him on the television in the living room on the main floor. He would ask her to give him a blow job or a hand job or to watch him masturbate. She testified she found H.P.’s request weird because by this time she knew what it meant. RM testified H.P. would be masturbating and touching himself while watching porn with his zipper down and his pants pulled half way down.

[23] RM said he would not say much to her. RM also testified that H.P. hugged and touched her mid back at this address when she was clothed. She testified he did not touch her buttocks and she did not recall any other inappropriate physical contact by H.P. at S[...] Way. RM testified she would just walk away when H.P. would do these things because she knew what he had done was wrong.

O[...] Ave, 2009/2010 – count 10 (sexual assault), count 11 (sexual exploitation), count 12 (invitation sexual touching)

[24] RM gave the following evidence about O[...] Ave. when questioned by Crown counsel:

[25] RM testified that only she, her mother, H.P. and M. lived at O[...] Ave. RM testified she could only remember two foster children coming over, RO, the other complainant, and a girl named J.R.. This O[...] Ave. apartment was above a restaurant and had only one level. RM was about 13 to 14 years old when the family moved there.

[26] RM testified that H.P. watched porn in the living room at this apartment too. He would ask her to watch porn showing a woman giving oral sex to a man. RM indicated he would ask her to imitate with him what she saw on the television screen. When she would refuse, according to RM, H.P. would get angry. RM testified she would be the only other person in the living room when he would watch porn. Her mother and M. would either be out or in another room.

[27] RM described other conduct by H.P. at O[...] Ave. that was more invasive. She testified that late one Saturday night while she was in her bedroom, she heard her bedroom door open and H.P. come into her room. She testified he told her he had had a fight with G.P. and was going to leave her. RM said she smelled alcohol on his breath. Her mother and H.P. had just returned from being out dancing at a club.

[28] RM testified she was wearing a nightgown with no underwear. She was on her back and he started raising her nightgown and touching her body. RM said H.P. got excited and climbed on top of her as he repeated he was leaving her mother. She said she was still sleepy and did not know what he intended to do.

[29] RM testified she could see the tip of his penis, outside her vagina, on the interior of her thigh. She said she tried to get him off of her but he used one of his hands to trap her hands above her head. He then tried to pull his pants down with the other hand. She then saw his underwear and once they were off, she said she could feel him near her thigh. RM testified H.P. touched her body with his free hand touching her neck, breasts and stomach. He got his pants down to his knees. Then G.P. came in and he jumped off of her. He never said anything to RM about the incident. RM testified the incident lasted 30 to 40 minutes.

[30] RM described a time also at O[...] Ave. when H.P. had a condom on when he sexually abused her. She testified he told her to go to her mother’s bedroom. She lay on the bed and he took his and her clothes off. She saw a square package with a condom in it. He ripped the package open and put the condom on. He then got on top of her and had sex with her. She testified after he ejaculated he got up and left the room. She cleaned up in the bathroom and went to her room.

[31] At age 14 years RM moved in with her biological father. She had not done well in grade 9 and her father made her move in with him so he could help her with her school work. She did not move in with her mother and H.P. and M. when they moved to L[...] Ave., but would visit that household on weekends.

L[...] Ave., 2010-2012, count 13 (sexual assault), counts 14, 15 (sexual exploitation), count 16 (invitation sexual touching)

[32] The following is RM’s evidence during examination-in-chief about the incidents at L[...] Ave.:

[33] RM testified she was 15 years old and starting grade 10 when the family moved to L[...] Ave. This apartment had a main floor and a basement. She testified she only visited that residence on weekends and would at times pick M. up after school.

[34] The first incident of abuse by H.P. at L[...] Ave, as RM described, happened when she was in the shower. She said she was listening to loud music and did not hear him come into the bathroom. RM testified she then felt him from outside the shower touch her breasts, and slide his fingers down her stomach and inside her vagina and squeeze her buttocks. This lasted a few seconds because she moved to the other side of the shower. RM testified she felt weird and disgusted by what H.P. did. She said she felt different than she did on the other occasions.

[35] The next incident she described she alleges occurred when her mother went to Ecuador for a month. RM testified that only she, H.P. and M. were at home while her mother was away.

[36] RM testified she was in her bedroom lying down on her back watching television with her body slanted upwards with her arms at her sides. She said she was trying to sleep. She was wearing a blue and black nightgown with no underwear. She awoke when H.P. came into the room and started touching her from the bottom of one of her legs and moving his hand up her stomach and to her breasts. She testified she tried to move his hand away. He pulled down his pants. RM stated H.P. did not have to restrain her arms because she gave up trying to stop him. He hiked up her nightgown to her hips, got on top of her, and with his pants at his ankles he had sexual intercourse with her. She said she felt his penis but did not see it. RM testified he ejaculated on her stomach. Then he wiped her stomach.

[37] RM testified that after this incident she started to shut down her feelings so she would not cry. She said she did not care anymore.

[38] RM described another incident when H.P. had sexual intercourse with her. This occurred when she was putting M. to sleep on H.P.’s and G.P.’s bed. She was wearing shorts and a top. She and M. fell asleep. When she awoke M. was no longer there. She said she went back to sleep on her left side. She then felt something on the side of her rib cage. RM testified she then felt him lie down behind her and felt his skin next to her buttocks on the back of her thighs. She felt him pull down her shorts. She testified she felt him insert his penis into her vagina from behind. RM testified she again turned off her feelings. She did not care any longer. She said she turned around and saw him ejaculate into his shirt.

[39] RM also testified she saw H.P. watching porn on the living room television when they were alone in that room. He would ask her to give him a blow job or hand job. When she would refuse, he would tell her to go to her room.

[40] RM spoke of another time when H.P. abused her. She had entered her bedroom after a shower wearing a bath towel. He came into her bedroom. She testified she knew it was going to happen again but now she did not care. She just did what he asked. She lay down on the bed. He touched her breasts and buttocks and put his fingers inside her vagina and shook his fingers. She again said she felt disgusted.

[41] RM described a further time he put his fingers into her vagina and shook them. He was watching porn on the television in the living room. A man and woman were having sex. The man placed his fingers inside the woman’s vagina and shook his fingers. RM testified H.P. said he wanted to try what the man was doing on the video. She said he moved over onto the couch next to her. She shut off her emotions. He moved her underwear aside and placed his fingers in her vagina and moved them around. RM testified she felt disgusted and knew what H.P. did was wrong.

[42] RM admitted her biological father always tried to encourage her to come and live with him and his wife. It was not until 2010 when she did so poorly in school that she was given no option. She had to live with her father. RM was questioned why, if H.P. was continuously assaulting her from 2005 to 2012, she did not flee H.P.’s household and move to her father’s. RM testified she stayed with the P.’s so she could be close to M.. As will be seen later, her relationship with M. was strained due to her jealousy.

Challenges to RM’s Evidence

[43] Defence counsel challenged RM’s allegations about sexual abuse by H.P. at each of the four residences. Counsel questioned RM on internal inconsistencies in her evidence and the inconsistencies with other evidence. I will address the problems with her evidence which I found pose the greatest risk to her credibility.

Who Lived and Stayed Over at the Various Apartments

[44] RM testified that two incidents of sexual intercourse happened at L[...] Ave. and two happened at O[...] Ave. Regarding the incidents at L[...] Ave., she had testified that the incident in the shower took place during the time her mother was away in Ecuador. She also stated that the incident at L[...] in her room when she was napping and watching television and the incident in her mother’s room when she had put M. to sleep also happened while her mother was away for a month in Ecuador.

[45] This led the defence to question RM on her evidence that only she, M., and H.P. stayed at L[...] Ave. when G.P. was in Ecuador. RM denied that E.P., H.P.’s biological daughter, stayed at L[...] Ave. the entire month with her father to help with M.. RM denied she only went to L[...] Ave. on one occasion after picking M. up after school and dropping him home. She denied the other evidence that she never stayed overnight during that month.

[46] H.P. and E.P. testified about the period G.P. was away. It was during the summer. They both testified that E.P. came to stay every day and overnight at L[...] to help with M.. E.P. testified she recalled that on one occasion she was not available to pick up M. from school and RM did so and dropped him off at home. This is contrary to RM’s evidence that she was at L[...] Ave. on more than one occasion and stayed overnight.

[47] There are also inconsistencies between H.P.’s and E.P.’s evidence, on one hand, and RM’s evidence, on the other, about who lived at L[...] on an ongoing basis. RM said only her mother, H.P. and M. lived there. H.P. and E.P. testified that, in addition, two other people rented rooms there, H.P.’s friend, G. and a student, K..

[48] There were also inconsistencies between RM’s evidence and several defence witnesses’ evidence as to who lived at the other apartments. RM testified only she, her mother, H.P. and M. lived at those apartments. She only recalled RO and another foster child, J.R., would come over.

[49] H.P., E.P., M.P. (H.P.’s biological children), and J.R. testified there were many people at the apartments, either living there or staying and visiting on weekends, especially at S[...] Way. RM was asked on many occasions as to who lived in the apartments. She never mentioned that her grandparents lived at S[...] and occupied the bedroom next to hers. She did not mention that G.P.’s sister, her husband, and four children (her aunt, uncle and cousins) lived in the basement. RM did not mention that M.P. and E.P. visited their father at each apartment each weekend from Friday to Sunday. In addition to RO and J.R., there were other foster children who came to the apartments at O[...] and S[...] Way on weekends, usually Friday to Sunday, which RM did not mention.

H.P.’s Work Schedule and His Presence at the Various Apartments

H.P.

[50] RM testified H.P. would come home around 4 p.m. to 5 p.m. each evening and that sexual abuse would occur after she returned from school and he had returned from work. She asserted that H.P. and she would be alone during the abuse. She testified that at the time her mother and M. were either not home or in another part of the home.

[51] There is a great deal of evidence that challenges RM’s evidence about the opportunity for H.P. to commit the abusive acts. Other evidence has it that there were no opportunities for him to be alone with RM because of the presence of so many people at the apartments.

[52] H.P., age 50, testified he left for work for his painting jobs at around 7 a.m. to start work at 8 a.m., left work around 5 p.m. and arrived home at about 6 p.m. each day, seven days per week. He took one-half hour for lunch and one 15 minute coffee break. H.P. maintained this job while the family resided at each apartment.

[53] H.P. testified he never took days off work except Christmas and New Year’s Day because he was required to. He never took sick days off. He explained he paid all the household expenses. G.P. was a stay-at-home mother whose only income was the pay she received for taking care of foster children on weekends. H.P. also paid child support for his two teenage children, M.P. and E.P.. H.P. explained at S[...] Way the mortgage was $2,500 per month.

[54] H.P. testified that on no occasion was he ever alone with RM at any of the apartments. He worked every day until 6 p.m. There were always other people around – G.P. and M. during the week, and the grandparents and G.P.’s sister and family during the week and weekends when they lived with the family; on weekends G.P. and M., the foster children and M.P. and E.P. would be at the apartments. In addition, at L[...] there were also the two tenants who rented rooms.

E.P. and M.P.

[55] M.P., age 19 at trial, and E.P. age 21 at trial, confirm H.P.’s evidence that he worked seven days a week and only took holidays off. They testified at times, when they did not take the bus, their father would pick them up at 7 a.m. drop them at school and go to work. On rare occasions, H.P. would come home on a weekend day and eat lunch and go back to work. E.P. did not recall when H.P. would arrive home from work. M.P. estimated that at each address H.P. would get up for work at 6 a.m. on weekends and arrive home from work between 7 p.m. and 9 p.m.

[56] E.P. and M.P. supported H.P.’s evidence that it was impossible for H.P. to have been alone with RM because of the number of people around. M.P. observed that his father and G.P. had an unusually close relationship so he had little time alone with him. E.P. testified in tears that she barely had time alone with her father on weekends because family activities involved everyone, including the foster children. H.P. told E.P., because of his demanding work hours, he had to divide his time fairly with all members of the family so everyone would have to be with him together when he returned from work. The lack of opportunity to spend time alone with her father upset E.P. so much that she stopped talking to him for about a year in 2011/2012.

[57] M.P. gave other evidence that further poses a challenge to the credibility of RM’s allegations.

[58] M.P. confirmed RM’s evidence that he, as RM’s older step brother, had a close friendship with her. They would hang out together and talk about everything. While M.P. described her as a nice girl, he also said RM was immature and an attention seeker. She would get jealous and stomp out of the room if anyone else talked to him or if she perceived her little brother M. was getting more attention than her. M.P. testified that on one occasion, RM approached him saying she had attempted suicide, showing him her wrist, which M.P. testified revealed only superficial scratches. M.P. testified it worried him that she would go so far to get his attention.

[59] M.P. testified that RM told him on seven or eight occasions about sexual impropriety by his father. He said he remembers what she told him regarding four of those occasions. This is contrary to RM’s evidence that she tried to tell M.P. once about the sexual abuse but he did not hear her. She testified as well that she did not tell anyone else, including RO, about the abuse.

[60] On the first occasion when they were alone, RM told M.P. H.P. asked her if he could use sex toys on her and told M.P. his father hid the sex toys near the speakers in the living room. M.P. looked behind the speakers and throughout the house and never found the sex toys.

[61] On the second occasion, M.P. and RM were sitting in the father’s car alone and RM cried on M.P.’s shoulder and went onto his lap, telling him H.P. was trying to touch her all over her body. She provided no details.

[62] On the third occasion with RO present, RM told M.P. his father asked her to give him a blow job. He asked for details as to when and where this occurred but RM gave no details. He testified RO said nothing and both RM and RO had smiles on their faces when RM told M.P. this. He thought they were joking so he did not believe it.

[63] On the fourth occasion, RO and RM approached M.P. and RO told him his father had tried to get her to give him a blow job. He asked for details and she provided none. M.P. said he was trying to believe RM and RO so after this he became quite vigilant around the house to see if it was true.

[64] M.P. testified he would have reported his father had he seen anything that made him believe they were telling the truth. It might sound incredible that a child, while a young teen, would report his father to the police. However, M.P. reported his father for assault when he was 15 years old. In 2011, while disciplining him, his father struck him with a guitar. H.P. had also assaulted him on other occasions and M.P. thought this was not right. He said he feared if he did not report his father to the police his young step-brother M. might get the same treatment.

[65] H.P. was arrested in July 2011. This put a strain on their relationship. On May 2, 2012, H.P. pleaded guilty and expressed remorse for what he had done and indicated he now knew that in Canada corporal punishment of children is a crime. M.P. renewed his relationship with his father.

Analysis of RM’s Case

The R. v. (W.D.) Principle

[66] It is for the Crown to prove beyond a reasonable doubt H.P.’s guilt of the 13 charges of sexual abuse in relation to RM. The same applies to the charges related to RO, which I will deal with below. H.P. called a defence to counter the allegations. In these circumstances the court’s task is not to simply compare the Crown’s evidence with that of the defence and choose between them. This would improperly burden H.P. with proof of his innocence. The burden remains with the Crown. The Supreme Court of Canada has developed a well-known guideline to assist the trial court to assess reasonable doubt in these circumstances

• If the court believes H.P.’s evidence that he did not commit the sexual offences against the complainants, the court must find H.P. not guilty of the offences.

• Even if the court does not believe H.P.’s evidence, if it leaves the court with a reasonable doubt about his guilt of the sexual offences against the complainants, the court must find H.P. not guilty of those offences.

• Even if H.P.’s evidence does not leave the court with a reasonable doubt of his guilt of the sexual offences against the complainants, the court may convict him only if the rest of the evidence the court does accept proves his guilt of those offences beyond a reasonable doubt.

[R. v. W. (D.), 1991 93 (SCC), [1991] 1 S.C.R. 742 (S.C.C.)]

[67] For reasons I set out below, I find the Crown has not satisfied me beyond a reasonable doubt of H.P.’s guilt of the charges brought by RM. The evidence supports to my satisfaction my belief that H.P. did not commit the sexual offences against RM. The first test in R. v. W. (D.) has been met.

Evaluation of the Evidence

[68] By way of background, as will be seen when I deal with RO’s allegations, RM’s allegations came to the attention of the police after RO reported H.P.’s alleged abuse to the foster mother of the group home where she resided. The CAS got involved and is under an obligation to report complaints by foster children to the police. This required RO to speak to the police. RO’s interview with the police led to the police calling RM in for an interview several months later. RM did not initiate the involvement of the police.

[69] There are several areas of RM’s evidence that compel me to disbelieve her allegations against H.P..

[70] Foremost, is the fact RM did not take the opportunity to move out of the P. households to live with her biological father. RM admitted her father continuously asked her to move in with him and his wife. RM’s evidence was that she did not move because her father’s rules were too strict. She also contended she stayed with the P. family so she could stay close to M.. RM also testified she feared if she told anyone she would have to go into foster care.

[71] None of those reasons make any sense. RM has alleged that over seven years H.P. committed various forms of sexual abuse against her, including demands for oral sex and forced sexual intercourse from about ages 9 to 16. It defies reason that RM would prefer to stay on at the P. homes enduring prolonged and worsening sexual abuse rather than live under her father’s strict rules. Further, even if I accept that she had a close relationship with M. that too falls far short of a believable reason not to seek refuge at her father’s home. It is possible at her young age she might have thought she would be sent to foster care, but she always knew the option was open to move in with her father where she could have told him what was happening.

[72] There is also RM’s evidence, which she repeated on a number of occasions, that only H.P., her mother, M. and herself lived at each of the four family residences.

[73] H.P.’s evidence, which I accept, that many people resided with his family at the various residences, was supported by M.P. and E.P.. RM did mention some of the foster children that came to stay on weekends. However, she never mentioned that E.P. and M.P. came to stay with their father every weekend at each residence. In relation to S[...] Way, RM failed to mention her grandparents stayed in the bedroom next to hers and her aunt and uncle and four children lived in the basement.

[74] According to RM’s evidence, some of the worst incidents of abuse occurred at L[...] Ave. during the month her mother was in Ecuador. At this time, RM lived with her father. H.P.’s and E.P.’s evidence was that during that month, E.P. stayed with her father to help with M.. Their evidence was that RM never stayed there during that period, and only dropped M. off once after school. Because of RM’s overall credibility problems, I accept H.P.’s and E.P.’s evidence on this matter. I do not believe RM ever stayed over or visited L[...] Ave. during that month and could not have suffered the abuse she described. Then there is the further point of the presence of two other tenants living there which RM never mentioned which also raises questions about her credibility.

[75] RM’s evidence was that she was alone with H.P. on many occasions over the seven years which allowed him to abuse her without anyone else knowing. It is damning to her credibility that she insisted only she, her mother, H.P. and M. lived at the residences, when she knew that was not true. This is not an oversight or a memory lapse. It was a purposeful attempt to deceive the court. It does not stand to reason that she would not recall the presence of so many other people in the households. I am convinced RM’s reason for downplaying the number of people was to lend more credence to her assertion that H.P. would get her alone and commit the abuse.

[76] In addition to the obstacle presented by the many people at the households, is the matter of H.P.’s work schedule. H.P.’s evidence, supported by M.P. and E.P., was that H.P. worked seven days per week, except Christmas and New Years’ Days, leaving home at roughly 7 a.m. and returning at around 6 p.m. or thereafter. He rarely if ever took time off. RM’s evidence was that the abuse happened around 4 p.m. after she returned from school and her mother and M. would either not be at home or were preoccupied in other rooms.

[77] I have no reason to reject the defence witnesses’ evidence about H.P.’s schedule. Both E.P. and M.P., especially E.P., credibly lamented having little alone time with H.P. because of his restricted time and the number of people that required his attention.

[78] H.P.’s, M.P.’s and E.P.’s evidence was that H.P. was never alone with RM. While I grant that there would be few opportunities given the number of people around and H.P.’s work schedule, I think it might be an overstatement to pose it as an absolute impossibility for him ever to be alone with RM at each of the residences. This however does not lead me to doubt the evidence of the defence witnesses. I find, on the evidence as a whole, even if H.P. found himself alone with RM, it would be a rare occasion that could not provide the opportunities for the prolonged and numerous acts of abuse RM alleges.

[79] RM testified she mentioned the abuse to M.P. but he did not hear her. M.P. however gave compelling evidence that directly contradicts this.

[80] I pause here to make this observation. When considering the credibility of M.P.’s and E.P.’s evidence, I looked at the fact that H.P. is their father and they might have an interest in protecting him from being convicted on such serious offences. However, they were credible witnesses who were not afraid to criticize their father before the court. Their evidence was not oriented to defending him at any cost. I found their evidence trustworthy.

[81] E.P.’s emotion when speaking of her father’s limited availability was genuine. She was so upset she went so far as to refuse to see him for a year. M.P., as a young teen, had the courage to call the police on his father for physical abuse because he wanted the abuse to stop and to protect his younger brother. He appeared as a very compassionate and decent young man who contradicted RM without being unkind or vengeful for the serious trouble she caused to his father and his family.

[82] I believe M.P.’s evidence that RM and RO on more than one occasion complained to him, without giving details, about being sexually abused by H.P.. M.P. at first thought this was just another attempt by RM to get his attention. Then RM approached him so many times he told her to tell someone about the abuse and he kept a lookout himself for any signs they were telling the truth. In the end, he did not believe them but said if he had, he would have reported it. I believe his evidence in view of his earlier stance against his father. The importance of this evidence is that it poses another challenge to RM’s credibility and also tends to remove suspicion of bias in favour of his father.

[83] In the result, I find RM has fabricated the sexual abuse. While RM’s motive is not critical to my decision, it appears from what I have heard that RM’s allegations started as a ploy to get M.P.’s attention. When RO told her foster mother about her own allegations, unknown to RO, the police had to get involved. RM did not go to the police on her own accord. She was required to go once RO had to tell her story to the police after CAS reported it. RM’s ploy then mushroomed into her having to either recant her stories to M.P. or make a formal complaint to the police. She chose the latter. And most unfortunately, H.P. and his family have had to suffer the grave consequences of young girls playing a dangerous game with the criminal justice system.

Conclusion

[84] For the foregoing reasons, I find the Crown has not discharged its burden to prove H.P.’s guilt for the offences alleged against him by RM. I find H.P. not guilty on counts 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16 and 17 on the indictment.

RO’s CASE

Factual Overview

[85] As noted above, the charges against H.P. for the allegations made by RO are: sexual assault, sexual touching, invitation to sexual touching and sexual exploitation. As noted, RO is one of the foster children who stayed with the P. family at their apartments on weekends. Her allegations arise from one incident she alleges happened at O[...] Ave. on a Saturday on one of her weekend stays. RO described RM as her closest and only friend up until the present.

[86] RO had been in foster care from the time of her birth. She has had extensive medical and emotional issues including brain surgery and problems with anger management and temper tantrums. She was adopted at one time but the adoption failed because of her emotional problems and she was returned to foster care. RO conceded that evidence.

[87] RO attended at the police station to give her statement on January 5 and 16, 2012. The first interview was conducted by a male officer and the second by a female officer. She was age 14 at the time and age 18 at the time of trial. At trial, RO was also confronted with her statements to the police.

[88] RO’s evidence is that the abuse occurred at around 2 p.m. on a Saturday afternoon. RM had gone on a visit with her biological father. RO testified H.P. was in the living room on the couch watching a porn video involving a man and woman having sex. RO entered the living room and sat on the couch. H.P. approached her and forced her to do what was happening on the video. She testified he stood up and walked up to her with his condom-covered penis exposed. He then held the back of her head and forced her head and mouth toward his penis with his hand and pushed her head up and down on his penis.

Credibility

[89] There are also substantial credibility problems with RO’s evidence.

[90] On cross-examination, RO was confronted with the fact that during her first police interview, she said she bit H.P.’s penis when he was forcing her to give him a blow job. On the second interview, she admitted that was not true. She did not bite his penis. In responding to questions about her dishonesty, RO told the police and testified at trial that she sometimes lies when she feels nervous. RO was evasive in her response to the suggestion by defense counsel that her nervousness at trial has also caused her to not tell the truth.

[91] Contrary to M.P.’s account, RO denied telling anyone about the abuse because she felt uncomfortable about it. As noted earlier, she did eventually tell her foster mother. On cross-examination, defence counsel confronted RO with entries in the CAS records that indicate she told her house mother she had spoken to RM and M.P. about the abuse. RO’s response to this questioning was circular and confusing. As I found with RM, I believe RO spoke to M.P. about the abuse.

[92] Defense counsel also confronted RO with other information in the CAS records. Counsel pointed out that RO had told her house mother that she wanted to be adopted by the P. family so she could be with her best friend, RM. RO admitted this. Wanting to be adopted of course does not make sense if RO had been sexually abused by H.P.. She said the experience frightened her. It does not make sense she would want to live with him permanently even if it meant spending more time with her best friend.

[93] Then there is the area of her evidence where, like RM, she claimed only RM, H.P., G.P. and M. lived at O[...] Ave. RO denied M.P. and E.P. were there every weekend. Except for recalling J.R., RO denied remembering the presence at O[...] Ave. of the many other foster children.

[94] As I found earlier, there were many others present at O[...] Ave. on the weekends. I also note the evidence that H.P. worked every Saturday and did not return home until early evening. In addition to all the other credibility problems, the likelihood of him being home at the time of the alleged abuse, and there not being anyone else present, is very slight.

[95] RO’s credibility problems are far too numerous and fundamental for her allegations against H.P. to be believed. There is no doubt RO has had a sad and unfortunate life. There has been a failed adoption. She admitted to having problems making friends and that RM was her closest and only friend. At trial, she conceded, as she did at the preliminary inquiry, that she was very close to RM and always wanted to help her.

[96] From the evidence I heard, I suspect this might reasonably explain why she would fabricate her story, to make RM’s story seem more credible to M.P.. I think this behaviour reflects the foolhardiness of two teenaged girls dealing with a crush on a teenaged boy. As noted earlier, when she told her foster mother the story, she did not know the police would get involved and require her and RM to be interviewed. Like RM, RO found herself unexpectedly embroiled in the criminal justice system with rather horrendous consequences for H.P.. To have two young girls make such serious false accusations against him must have been doubly hard for H.P. and his family.

Conclusion

[97] I find the Crown has failed to prove H.P.’s guilt of the offences against RO beyond a reasonable doubt on counts 1, 2, 3 and 4 on the indictment.

VERDICT

[98] For the foregoing reasons, I am satisfied the Crown has failed to prove H.P.’s guilt beyond a reasonable doubt on the offences against RO on counts 1, 2, 3, and 4 on the indictment.

[99] I am also satisfied the Crown has failed to prove H.P.’s guilt beyond a reasonable doubt on the offences against RM on counts 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16 and 17 on the indictment.

[100] I therefore find H.P. not guilty on all counts on the indictment and acquittals will be entered accordingly.

B.A. Allen J.

Released: May 22, 2015

CITATION: R. v. H.P., 2015 ONSC 2104

COURT FILE NO.: CR-13-0002660000

DATE: 20150522

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

H.P.

Accused

REASONS FOR JUDGMENT

B.A. Allen J.

Released: May 22, 2015