R. v. P.G.F., 2015 ONSC 2195

WARNING

The President of the panel hearing this appeal directs that the following should be attached to the file:

An order restricting publication in this proceeding under ss. 486.4(1), (2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:

486.4(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences;

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,

(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or

(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i) to (iii).

(2) In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and

(b) on application made by the complainant, the prosecutor or any such witness, make the order.

(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.

(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b).

486.6(1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15

CITATION: R. v. P.G.F., 2015 ONSC 2195

COURT FILE NO.: 14-0000339

DATE: 20150515

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

P.G.F.

Accused

Patricia Garcia, for the Crown

Martin Kerbel, for the Accused

HEARD: March 16 – 18, 2015

REASONS FOR DECISION

B.A. Allen J.:

FACTUAL BACKGROUND

The Charges

1P.G.F. was charged that sometime between October 27, 2007 and December 30, 2008 he sexually assaulted the complainant, RL, contrary to s. 271 of the Criminal Code and that sometime between May 1, 2008 and October 26, 2008, he touched RL, a person under age 16, directly with his hand for a sexual purpose contrary to s. 151 of the Criminal Code.

2The Crown sought, and I ordered, an acquittal on count 1 on the basis the evidence raised a reasonable doubt as to the essential element of RL’s age at the time of the alleged offence. The Crown is left to prove that Mr. P.G.F. sexually assaulted RL during the period alleged.

Factual Background

3This case presents with a very unusual set of facts.

4RL, age 22 at the trial, immigrated to Canada in October 2003 from El Salvador with her younger brother. Her mother, DL, had immigrated two years earlier.

5In 2007, RL and her family joined a Pentecostal church called the R.W where the members were Latin American, mainly from El Salvador. RL testified the practices of this church were new to her. RL described the church as evangelical with a supernatural belief in prophecy and spiritual healing. Mr. P.G.F. has been a member of the church for about 15 years. A practice of the church involved members holding prayer meetings at their homes. Mr. P.G.F. was one such member.

6RL testified some members of the congregation had the status of being prophets, persons with a special power to communicate God’s will to members of the church. RL also testified some members were recognized as healers with the powers to cure other members of their ills. It was RL’s evidence that Mr. P.G.F. was a congregant bestowed with the powers of a prophet and a healer. RL and her family attended prayer meetings at Mr. P.G.F.’ home. RL saw him as a holy person and, according to RL, Mr. P.G.F. presented himself as her mentor.

7The pastor of the church, C.B., a witness called by the Crown, and Mr. P.G.F. deny Mr. P.G.F. or any member of the church occupies the positions of a prophet or a healer. Pastor C.B. confirmed Mr. P.G.F.’ evidence that Mr. P.G.F.’ role, beyond being an ordinary parishioner, was as an usher who greeted and seated members at Sunday church services and as a host for prayer meetings at his home where a senior member of the congregation, not Mr. P.G.F., would lead the prayer meetings. According to Pastor C.B., and two other Crown witnesses, J.C. and F.P., who were members of the church, the church did not have a belief in prophets or healers. RL’s mother testified Mr. P.G.F. was not viewed as a prophet.

8According to R.L. Mr. P.G.F.’ sexual abuse was committed in the context of him professing to be a prophet and a healer who was obeying the will of God when he committed the alleged acts. I note here that other witnesses’ denials that Mr. P.G.F. was recognized as a prophet do not by themselves disprove RL held such a belief or that such a false belief might have been influenced by Mr. P.G.F.. It is possible that RL, a young girl when she joined the church, was impressionable. However, RL’s overall credibility in relation to her allegations raises questions about whether this was the nature of the relationship between RL and Mr. P.G.F. and hence whether he committed the acts RL alleges. Why I arrive at that conclusion will become clearer as the evidence in this case evolves.

9Mr. P.G.F. and his wife, A.F., and their four children became close friends with RL and her family. Outside of church activities, RL’s family would often socialize with the F. family. RL and her brother would regularly go to the F. house after school where Ms. A.F. would watch over RL and her brother until their mother got off work. RL grew close to the oldest F. son, P.F.., who was the same age as RL. They developed a romantic relationship around January 2008 when they were age 15. P.F. attended high school at Central Tech in Toronto. In September 2008, RL transferred from her high school in Scarborough to Central Tech. They frequently took the bus and subway together to and from school.

The Alleged Sexual Abuse

10RL testified about a grooming period before the assaults began. She stated that after school, from about March 2008 to September 2008, about 4 times per week at the F. home RL and Mr. P.G.F. would meet for discussions. She testified Mr. P.G.F. gradually began to build a relationship with her. He would ask her about any family or school problems. He would do bible readings with her. He explained his role as a prophet and a healer. RL testified Mr. P.G.F. told her he had the power to express the will of God and that as such she had to follow his advice and be truthful to him at all times. RL stated she believed he had this special role in the church and she respected him for it.

11RL said she was excited about this guidance as she saw it as assisting her to find the path she should take in God’s ministry. According to RL, Mr. P.G.F. told RL that it would be better to keep his mentorship of her between the two of them. RL testified she later found out that the rules of the church forbade males to mentor female church members without another person being present.

12According to RL, the contact between RL and Mr. P.G.F. changed in September 2008 after she began attending Central Tech. She testified she began to admire Mr. P.G.F. as a father figure. One day around mid-September, she felt she could not hide things from him so RL ashamedly admitted to Mr. P.G.F. that she had been sexually active with P.F. She testified that the next day after school when she got off at the Warden Subway station alone, she saw Mr. P.G.F.’ van parked in the parking lot. He told her he had something to tell her. He asked her to get into his van in the front passenger seat.

13RL testified Mr. P.G.F. said he had a message from God and she should trust him. The message was that he needed to sexually masturbate her, to touch her vagina, so that she would have no further sexual relations with P.F. Mr. P.G.F.’ instruction was that RL would not achieve her path in life if she did not obey God’s word. He then drove her to a Kentucky Fried Chicken parking lot near her home. She got home at about 4:30 p.m. and did not go to the F.’ home that afternoon.

14RL testified that at around 7 p.m. that evening, Mr. P.G.F. called her on her cellphone and told her not to go to school the next morning and to tell her mother she was sick. She complied. Her younger brother and mother left at about 7:30 a.m. Mr. P.G.F. arrived at her home between 9 and 10 a.m. She answered the door in her pajamas and he asked her to go with him into her bedroom. He was wearing his work clothes and left his work boots at the door.

15RL testified they sat on the bed and Mr. P.G.F. told her what he was going to do was God’s will. He then told her to remove all her clothes. She complied and as directed she then lay naked on the bed on her back. He rubbed her vagina and inserted two fingers. After 10 to 15 minutes he asked why she was not having an orgasm to which she said she did not feel comfortable. Mr. P.G.F. then went to the washroom and left the apartment. RL testified she felt trapped and ashamed by what had occurred. Her mother came home at 9 p.m. and she did not tell her or anyone else what Mr. P.G.F. did.

16RL stated that Mr. P.G.F. came to her house between 9 and 10 a.m. about seven times in the morning and on five of those seven times, he sexually touched her. He then would leave for work. As an excuse to stay home from school, RL would either tell her mother she was sick or too tired to go to school.

17RL testified that the next day after the first encounter at her house she again unexpectedly encountered Mr. P.G.F. after school in the Warden Subway parking lot. He told her he wanted to talk to her to see how she was feeling. She hesitated then entered his van. He told her not to feel bad because what he did was for the better, that God would bless her obedience. He took her home and dropped her at the KFC.

18RL’s evidence is that about 40 times between September 2008 and December 2008, he picked her up in the morning at 7:30 a.m. and dropped her at Warden Subway. She started school at 8:30 a.m. About 12 of those 40 times, he picked her up after school at Warden Subway and about 10 of the 40 times, he picked her up at the KFC in the morning. She testified that Mr. P.G.F. would call her on her cellphone each morning before he met her. No cellphone records were produced by the Crown to support that evidence.

19RL alleges that on each of the 12 occasions that he met her at Warden Subway, Mr. P.G.F. sexually touched her. He would ask her to get into the van and he would park in a secluded place. He would start with reference to the bible and tell her it was God’s will that he masturbate her. RL testified there was a wide grey wooden bench in behind the front seats. On each of the occasions, he would tell her to take off all her clothes except her shirt and lie on the bench on her back and open her legs. She alleges he knelt in the space in front of the bench and placed two fingers of his right hand inside her vagina, she said for a long time. He would always ask her why she did not have an orgasm.

20RL described another instance of sexual abuse she said occurred at the F.’ home when no one else was home in the morning before school. He once again told her to take off all of her clothes except her shirt and sit on the couch. She said he then knelt on the floor in front of her and placed two fingers of his right hand inside of her vagina for a long time. He again asked her why she did not have an orgasm. He then got up and told her to get dressed because he had to go to work. He dropped her off at the Warden Subway station so she could go to school.

21RL testified that by about December 2008, she became tired of the abuse. She started telling him she could not meet him. He began to pressure her saying she was ignoring him and they had to talk. According to RL, there was one last time he visited her at her home between 9 and 10 a.m. after her mother and brother left for work and school. During that last visit to her home in the morning, Mr. P.G.F. did not have the opportunity to sexually touch her. Below, I discuss the evidence about that visit.

22In summary, according to RL, Mr. P.G.F. abused her about 18 times between September and December 2008. There were six times in the morning − one time at his home and 5 times at her home. There were about 12 incidents of abuse after school at the Warden Subway.

Mr. P.G.F' Last Alleged Morning Visit to RL’s Home

RL’s Account

23The evidence about this visit and the circumstances thereafter are far from straight forward. Several witnesses, both Crown and defence, gave testimony in relation to this area of the evidence.

24RL testified that, as on other occasions, Mr. P.G.F. came to her door between 9 and 10 a.m. He came in his work clothes and left his work boots at the door. RL was wearing pajamas and he asked her to go into her bedroom. They sat on the bed and Mr. P.G.F. asked her what was happening between them. She did not answer him.

25Then they heard someone at the apartment door enter the apartment. She knew her mother had left for work or school so she was puzzled. Some mornings she went to school and others she went to work. RL alleges when they realized it was her mother, Mr. P.G.F. “freaked out” and went under her bed. He was fully clothed. RL left the bedroom, saw her mother, and returned to the bedroom not knowing what to do.

26RL said her mother picked up the broom and started sweeping the apartment. She then saw her mother come into her bedroom. Her mother put the broom under the bed and Mr. F.P. came out. Her mother yelled, “What are you doing here!” and Mr. P.G.F. responded that he was there to help RL because she had said she wanted to hurt herself. RL denies that she was trying to hurt herself and stated that he was not at the apartment for that reason. I will hereafter refer to this incident as “the bedroom incident”.

27RL testified she never told her mother about any of the abuse after the incident in her bedroom. Up to trial she never told her mother details about any of the abuse and her mother never asked. The next day there was a meeting at RL’s apartment. I will discuss this meeting below.

The Mother’s Testimony

The Bedroom Incident

28RL’s mother told a version of this event that was different in important ways. The mother testified she was unaware RL had a relationship with Mr. P.G.F.. She had no idea Mr. P.G.F. went to her home to see RL on mornings after she had left for work. The mother testified that one day she suspected someone was coming to her home when she was not there. Two days before she found Mr. P.G.F. at the apartment, the mother said she had seen the footprints of a large man’s work boots inside the door to the apartment. She suspected P.F. was sneaking in to see RL.

29The mother said that on the morning in question, RL had said she was ill and wanted to stay home. The mother left the home that morning with her suspicions as if to leave for school. She left for about one half hour and returned to the apartment. When she opened the door, she saw her daughter who she said looked frightened. The mother went to the kitchen. The daughter went to her bedroom. The mother said she immediately knew someone was in the apartment.

30Rather than going immediately into RL’s bedroom to see who was there, the mother decided to make a coffee. She took the time to drink the coffee and then went room to room with a broom pretending to be sweeping. She went to RL’s room last. She said she saw a man’s clothing in the corner. Contrary to RL’s evidence, the mother said the man’s boots were in RL’s bedroom. She put the broom under the bed which caused Mr. P.G.F. to come out. Also contrary to RL, the mother testified that Mr. P.G.F. was shirtless, bare-chested.

31There are two additional events related to the bedroom incident the mother spoke of that RL did not mention in her evidence.

Mother’s March 2009 Complaint to Police

32The mother went to Central Tech, she thought, around December 2008. She was directed to tell the police which she did on the same day at the police station. The police found a record of this complaint but it was dated March 5, 2009, months after the bedroom incident. Contrary to her testimony, the mother told the police Mr. P.G.F. had his shirt on when he was in RL’s bedroom. In any event, the mother told the police through an interpreter about the bedroom incident. The mother testified the police found the incident suspicious and she said they stated they would arrest him, but she never heard back from the police. The mother stated she never followed up with the police because she had a busy life and did not speak English well. She only learned the police were involved after her daughter went to the police in November 2012, some four years later.

Mother’s Evidence about an Attendance at the Hospital

33The mother gave an account of an attendance at Scarborough General Hospital not mentioned by any other witness.

34The mother testified that on the same day as the bedroom incident she, RL, Mr. P.G.F. and Ms. A.F. went to the hospital because the mother insisted RL get examined to determine if Mr. P.G.F. had sexually abused her that day. The mother said RL went into the examination room by herself with a nurse where she remained for 10 minutes. The mother testified the police were present at the hospital but she did not call them. Nor did she speak to them about her suspicions. She provided few details about the hospital attendance.

35RL was not asked and did not mention this hospital attendance. Mr. P.G.F. and Ms. A.F. were asked about it and they denied going to the hospital. No hospital records were produced. Crown counsel submitted the first time she heard of the hospital attendance was at trial when the mother testified.

Three Meetings with Mr. P.G.F. about Abuse after Bedroom Incident

Meeting at the P.G.F. Appartment

36According to RL and her mother, on the day of the bedroom incident, the mother was angry and insisted she, RL and Mr. P.G.F. go to the F.’ home so the mother could tell Ms. A.F. she found Mr. P.G.F. in her daughter’s bedroom. According to this evidence, after the mother told Ms. A.F. about the incident, Ms. A.F. said she did not believe Mr. P.G.F. was there with any bad intent. The mother said she left the F.’ home angry because Ms. A.F. did not believe her.

37Mr. P.G.F. denies ever sexually abusing RL or visiting her at her bedroom. Both Mr. P.G.F. and Ms. A.F. deny there was a meeting at their house about Mr. P.G.F. being found under RL’s bed.

Meeting at the Mother’s Apartment

38RL and the mother testified there was a meeting at the mother’s apartment the day after the bedroom incident. RL, the mother, Mr. P.G.F., Ms. A.F., Pastor C.B. and Ms. B. were present. RL testified Mr. P.G.F. had called the evening of the bedroom incident and told her if the Pastor came to speak to her she was to tell him Mr. P.G.F. was in her bedroom talking to her because she wanted to hurt herself.

39RL’s evidence about this meeting is contradicted by her mother. RL’s evidence is that she believed in Mr. P.G.F. so she told Pastor C.B. what she and Mr. P.G.F.’ agreed to about Mr. P.G.F. being in the bedroom to help RL, even though that was not true. The mother’s evidence was that when Pastor C.B. asked Mr. P.G.F. about being in RL’s bedroom, he kept quiet, then lowered his head, but did not ever answer the question. The mother denied RL gave a reason why Mr. P.G.F. was in her bedroom.

40Pastor C.B. testified he attended a meeting at the mother’s apartment about Mr. P.G.F. being alone with RL at her apartment. But he could not remember when it happened. He professed to a poor memory about people. He stated that he, his wife, RL and her mother were at the meeting. He did not mention Ms. A.F. being there. He testified at first he did not recall if Mr. P.G.F. was there and asked the Crown to remind him about the meeting because he could not really remember. He went back and forth on this evidence. The Pastor then seemed to recall Mr. P.G.F. was there because he recalled he asked Mr. P.G.F. about the bedroom incident and Mr. P.G.F. denied it. The Pastor then advised RL to go to the police with her complaint.

41Mr. P.G.F. and Ms. A.F. also denied being at that meeting.

Meeting at the Church

42RL testified about a further meeting about the bedroom incident that took place at the church. Mr. P.G.F. and Ms. A.F. admit being at that meeting.

43Pastor C.B. called a meeting after church one Sunday around mid-July 2009 because he had heard from a woman in the congregation about Mr. P.G.F.’ alleged sexual abuse of RL. RL was two months pregnant with P.F..’s child at the time. RL testified she told another woman about the abuse. Pastor C.B. and his wife, RL, Mr. P.G.F., Ms. A.F. and P.F. were there. In addition, two other members of the church were present, J.C. and F.P..

44In chief, RL testified that when Pastor C.B. confronted Mr. P.G.F. with the allegations, he nodded his head and said “yes”. On cross-examination, she testified she is “pretty sure” Mr. P.G.F. admitted to sexually touching her. RL testified Mr. J.C. confronted her three times with the question: “Did you like what Mr. P.G.F. did to you?” RL testified she was very vulnerable being pregnant and not having her mother at the meeting so she said “yes” she enjoyed it.

45Pastor C.B. testified Mr. P.G.F. and RL denied sexual abuse had occurred. Mr. J.C. denied hearing Mr. P.G.F. admit to the sexual abuse, denied asking RL the accusatory question and did not recall RL saying anything about the abuse. Mr. F.P. testified Mr. P.G.F. never admitted to the abuse and did not recall if RL said anything about the abuse. P.F. denied his father admitted to touching RL sexually and stated that when RL was asked if the allegations were true, she cried and said “No”. The meeting ended with Pastor C.B. advising RL to go report her complaints to the police.

RL’s Account of the Motel Incident

46This is another peculiar area of evidence that raises further credibility problems for RL.

47RL testified that in about mid-March 2009, Mr. P.G.F. met her and P.F. at Warden Subway parking lot one afternoon after school. They both got into Mr. P.G.F.’ vehicle. According to RL, Mr. P.G.F. proposed a plan so that RL and P.F. could be together. The idea was for RL to get pregnant.

48Mr. P.G.F. suggested that he would pay for a motel room for them to have sex so that RL could get pregnant. Once she was pregnant everyone would accept them being together even at their young age. P.F. agreed it was a good idea. It is RL’s evidence that Mr. P.G.F. drove to a motel, paid for a room for the two of them and gave them the key. Mr. P.G.F. then waited in his vehicle in the parking lot for two hours while RL and P.F. had sex. Not long after that, RL found she was pregnant. Their son was born […], 2010.

49P.F. testified that no such thing happened. He testified that he and RL went to school each day together and returned home together each day except when RL took sick days. There was never a time when Mr. P.G.F. picked them both up at the Warden Subway. His evidence was they had already been sexually active for months and when they wanted to have sex he would pay for a motel room so they could be together. According to P.F.., there was no need for Mr. P.G.F. to pay for a motel room so they could have sex. Mr. P.G.F. also testified that he never paid for a motel room for his son and RL to have sex.

Mr. P.G.F. ’ Work Schedule and Availability to Commit Sexual Assaults

50Mr. P.G.F. testified it was not possible for him to have been free from September 2008 to December 2008 to meet RL 40 times at the Warden Subway at 3:30 p.m. to 4:00 p.m. or to be available over a half dozen times in the morning between 9 and 10 a.m. to go to his and her apartment.

51With the agreement of the defence, instead of calling viva voce evidence, the Crown filed a sworn affidavit by Mr. P.G.F.’ employer which provided evidence about the circumstances of Mr. P.G.F.’ employment.

52For over 18 years, Mr. P.G.F. has worked in production at a manufacturing company called Durabond. He is required to punch in on the job no later than 7:15 a.m. each morning and to punch out between 4:00 p.m. to 4:30 p.m. each afternoon. The affidavit confirmed Mr. P.G.F.’ evidence that Mr. P.G.F. performed a job that was integral to the production process and that it would be noticeable and affect production if Mr. P.G.F. was not present. The employer and Mr. P.G.F. were continuously required to interact during the course of work days. The employer attested that over the 20 years he has worked with Mr. P.G.F. he observed no irregularities in his hourly timetable during 2008, or before or after that year.

53There is further evidence that poses a question for his availability after his factory job. Mr. P.G.F., Ms. A.F. and P.F. testified the parents operated an office cleaning business after Mr. P.G.F. got off of his Durabond job. He would pick up Ms. A.F. at their home around 4:30 p.m. each week day from Monday through Friday and they worked from 6 p.m. to 11 p.m. each day. They were running that business during the period of the alleged abuse.

ANALYSIS

Credibility

54The Crown mainly relies on the evidence of RL and her mother for proof that Mr. P.G.F. committed the sexual assaults against RL. The mother did not witness any of the assaults but claims to have witnessed the bedroom incident that, if accepted as having happened, suggests an improper relationship between Mr. P.G.F. and RL. However, I have a great deal of reservation about both of their testimonies. There are inconsistencies within and between their testimonies and inconsistencies with other Crown witnesses.

55The Crown also called P.F.., Pastor C.B., Mr. J.C. and Mr. F.P.’s evidence who attended meetings purportedly set up to address RL’s allegations. There were reliability problems with the evidence of those witnesses and inconsistencies among them and with RL and her mother’s evidence in relation to the meetings they attended.

56I accept the employer’s and P.F..’s evidence that supports the conclusion that Mr. P.G.F. did not meet RL 40 times at the Warden Subway after school and a half dozen times between 9 and 10 a.m. in the morning during an approximate three-month period in 2008. P.F..’s evidence conforms to the employer’s evidence that Mr. P.G.F. was at work with no irregular absences during that period. P.F. testified he and RL, as boyfriend and girlfriend, almost always went to and returned from school together. P.F. says Mr. P.G.F. never met them at the subway or picked RL up in the morning.

57This raises a fundamental question about RL’s credibility in relation to Mr. P.G.F.’ opportunity to commit the many acts of abuse she describes.

58Further, RL’s evidence about Mr. P.G.F. paying for a motel room to assist RL and P.F. to get pregnant so they could be together is frankly not believable in the least. RL and P.F. had been having sex for months by March 2009 and Mr. P.G.F. was aware of it. It makes no sense under those conditions that he would pay for a motel room for them and wait outside for the two hours while they had sex. I believe P.F..’s evidence that they did not need his father’s help to get an opportunity for sex. They found their own venues and P.F. would himself pay for motel rooms.

59RL’s and her mother’s evidence about the bedroom incident is fraught with many credibility problems. There is the contradiction as to whether Mr. P.G.F. was bare-chested or not when he was found by the mother. RL said he had a shirt on. The mother’s evidence vacillated. In March 2009, the mother told the police he had his shirt on and at trial over six years later she said he was shirtless. This is a detail that I think would be memorable to both RL and her mother. Being shirtless obviously paints a more odious picture of Mr. P.G.F..

60The mother was angry and suspicious that a man was in her apartment on the morning of the bedroom incident. Yet she took her time, made a coffee, drank the coffee, swept every room in the apartment and only lastly went into RL’s room where she suspected the man was with her young daughter. The mother’s unusual behaviour and the inconsistency with RL’s testimony shine a doubtful light on whether this incident actually happened.

61Also problematic for the mother’s credibility is the evidence she gave about attending Scarborough General on the day of the bedroom incident to have RL examined for sexual abuse. The mother did not tell the Crown about this before trial. RL never mentioned this in her evidence. This is undoubtedly an experience neither the mother nor RL would reasonably forget, following as it did upon the alleged incident and the alleged angry meeting at the F. home that day. Of course, there is also the fact that Mr. P.G.F. and Ms. A.F. deny ever going to the hospital.

62Added to those credibility problems is the fact the mother went to the police about the bedroom incident. The police said they would arrest Mr. P.G.F. and advised the mother she should keep in touch with them about her complaint. However, the mother never followed up with the police and never did anything about the alleged abuse until years later after Mr. P.G.F. was charged with the offences before this court. The mother used as an excuse for not contacting the police again that she was very busy and did not speak English well despite the fact the police had previously provided her an interpreter. It is not reasonably conceivable that RL’s mother would show so little concern for her daughter’s welfare if she really believed and was worried her daughter was in the peril of sexual assault by an older man.

63There was ever mounting problems with the evidence about the bedroom incident which in addition to the other credibility problems I find call into question the entirety of RL’s accounts of abuse.

64Mr. and Ms. A.F. deny attending the meetings set up to deal with the bedroom incident, except the meeting at the church. They deny the meeting at their home and the meeting at RL’s mother’s apartment. RL and the mother testified Mr. P.G.F. and Ms. A.F. were at the meeting at the mother’s apartment but were inconsistent about what RL said and what Mr. P.G.F. said and did when confronted with whether he sexually touched RL. RL said she and Mr. P.G.F. agreed that Mr. P.G.F. was in her bedroom to help her, even though RL said that was not true. The mother denied that happened and said Mr. P.G.F. hung his head when confronted and never answered the allegations. Pastor C.B. was not certain if Mr. P.G.F. was even there and then indicated he recalled Mr. P.G.F. was there and that he denied the allegations.

65The evidence about the meeting at the church is also problematic and not of assistance to RL. RL was inconsistent about how Mr. P.G.F. responded to the allegation about the bedroom incident. In the end she was uncertain whether Mr. P.G.F. admitted the abuse. Pastor C.B., Mr. F.P., Mr. J.C. and P.F. denied Mr. P.G.F. admitted it. Mr. J.C. denied RL’s assertion he had pressured her into saying she liked what Mr. P.G.F. did to her. P.F. testified when RL was confronted with whether she was telling the truth about the abuse, she cried and said, “No”.

Conclusion

66There is simply no way the court can find RL’s allegations against Mr. P.G.F. credible. There were far too many inconsistencies and implausible areas in the evidence for the court to believe that Mr. P.G.F. committed the sexual offences charged. There is no thread of consistent evidence that reliably connects Mr. P.G.F. to the many acts of sexual abuse. Consequently, the court finds the Crown has failed to discharge its burden to prove Mr. P.G.F.’ guilt beyond a reasonable doubt.

VERDICT

67For the foregoing reasons, I am satisfied the Crown has failed to prove P.G.F.’ guilt beyond a reasonable doubt on count 2 on the indictment.

68I acquitted P.G.F. at trial on count 1 and an acquittal was entered on the indictment.

69I find P.G.F. not guilty on count 2 on the indictment and an acquittal will be entered accordingly.

B.A. Allen

Released: May 15, 2015

CITATION: R. v. P.G.F., 2015 ONSC 2195

COURT FILE NO.: 14-0000339