R v. DH, 2015 ONSC 2401
COURT FILE NO.: 22325/14 NJ
DATE: 20150414
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
DH
Defendant
Tracy Vogel, for the Crown
Donald Powell, for the Defendant
HEARD: March 10 -12 and 23-24, 2015
Subject to any further Order by a court of competent jurisdiction, an Order has been made in this proceeding directing that the identity of the complainant and any information that could disclose such identity shall not be published in any document or broadcast in any way pursuant to s. 486.4 of the Criminal Code of Canada.
E.M. Morgan J.
[1] The Defendant is charged with three counts of sexual interference and three counts of sexual assault in relation to allegations by his biological son, AB. The Defendant elected trial before a judge alone.
[2] The incidents in issue allegedly occurred in April 2004, when AB was 6 years old. He is now 17 years old.
I. Family background
[3] The complainant, AB, was born […], 1997. He is currently in grade 11 and plays left wing on a hockey team. He testified at trial by video link. Overall, he gives the impression of being a thoughtful and surprisingly poised young man. This, of course, is all the more impressive given the very difficult personal and family situation that he described in his testimony.
[4] The Defendant lived with AB’s mother on and off for the first few years of AB’s life, but has not lived with AB and his mother at all since AB was 3 years old. AB described having a close relationship with his father for a number of years, during which AB visited with him on alternate weekends and one evening a week. They used to play hockey together, go fishing, work on paper mâché crafts, watch TV together, and do other activities indicative of a good father-son rapport. The Defendant had an apartment with a bedroom that AB used when he came to visit. The Defendant made a point of preparing food that his son liked, and shopped for clothing so that AB would have his own clothes at the Defendant’s apartment and generally feel at home there.
[5] AB has two older half-brothers, the oldest of which lives in Ottawa. When AB was six years old, the brothers and AB were all visiting the Defendant and an incident occurred which traumatized AB. The oldest brother held AB upside down by the ankles, and only let him go when the Defendant came to AB’s rescue and intervened. AB was ultimately taken for an evaluation at the Hinks Delcrest Centre at Humber River Hospital. Defense counsel asks the court to note that this incident occurred not that long after the incidents that are at the heart of this case, but AB never reported any sexual abuse to the trauma assessors; indeed, he focused on an event in which the Defendant saved him from harm rather than inflicted it.
[6] AB also has a younger sister. He has identified the incidents at issue here as having occurred in the spring, shortly after his sister was born. Since his sister was born in […] 2003, the incidents would have taken place in early 2004. AB recalls that outside his father’s window the fruit tree – AB called it an “apple tree” but it may have been a different species – was in bloom. All of the incidents leading to the charges against the Defendant are alleged to have occurred during the course of two visitation weekends at his apartment in April 2004.
[7] Life has not been a smooth path for AB. He moved several times while living with his mother, each of which seems to have been an upheaval in his life. They lived for a time on Chalkfarm Drive in Toronto until his mother was evicted from their apartment. After that they went to live with the mother’s sister in Uxbridge, Ontario before moving back to Toronto.
[8] Ironically, one of the constants in his earlier childhood were his visits with his father, who lived for a number of years in an apartment over a store in the Weston Road and Lawrence Avenue area of Toronto. AB recalls looking forward to the weekend visits with the Defendant and the two of them spending happy times at his apartment. Indeed, one of the problems with his mother’s move to Uxbridge was that it made the visits with the Defendant more difficult to arrange.
[9] AB testified that he went through a number of years where he fought continuously with his mother, often to the point of physical confrontations. He explained that his relationship with his mother changed after the incidents with his father that are at issue here; he stated that he was angry and frustrated with his father, but was afraid to take it out on him and so he directed his anger toward his mother. He also recalls becoming physically aggressive toward his sister as well as toward other children at school. He suffered from impulsiveness, emotional outbursts and tantrums, and would often act out his frustrations by lying and stealing.
[10] In addition, his mother and father engaged in protracted litigation, culminating in very difficult family law proceedings. Custody of AB was a major issue in the case between his parents. Although he did not go into great detail about his parents’ claims and counter-claims against each other, AB made it clear in his testimony that his own role and participation in those lengthy and angry proceedings took an emotional toll on him.
[11] In recent years, child services organizations have intervened in AB’s life. He was removed from his mother’s home and lived in a series of group homes. For the last number of years he has lived with several other boys in a foster home.
[12] As discussed in Part III below, things eventually deteriorated not only in AB’s relationship with the Defendant, but in the Defendant’s life more generally. AB testified that after he was six years old he became increasingly reluctant to visit his father. Eventually, the visits with his father were put on a supervised basis before they ceased altogether. The Defendant’s last supervised visit with AB was on March 4, 2009; he was scheduled for another visit the following week, but, unknown to AB at the time, the Defendant was arrested on other charges and so failed to come to the group home where AB was living.
[13] The staff at the group home documented that AB was very upset when his father did not come for the anticipated visit, and that he was crying and curled up on the floor. AB explained that a visit by a family member is an important event for a child living in a group home or foster care situation, and that it is one of the few opportunities for an outing or other special treats. He testified that while he had very conflicted feelings about his father, he looked forward to these visits and was extremely disappointed when his father did not show up.
[14] The foster father with whom AB currently lives, SS, testified at trial. According to SS, AB has made great strides over the past couple of years, especially since he disclosed to SS the events that he says transpired with his father back in April 2004. SS testified that AB is now more emotionally stable, more able to focus in school, less aggressive toward others, and less prone to lying, stealing, and other forms of misbehavior. He also has started to develop healthier relationships with those around him.
II. The abuse allegations
[15] As indicated above, the sexually abusive incidents were related by AB as having all taken place over two non-consecutive weekends in April 2004. AB recalls that two of the incidents occurred in the middle of the afternoon and one occurred in the evening after dinner.
[16] The first incident took place around lunch time. As AB told it, the Defendant was making lunch in the kitchen while AB was watching TV. There was no one but the two of them in the apartment. The Defendant brought AB’s food over to where he was sitting, and proceeded to yank AB’s pants down. AB testified that he was not wearing underwear at the time, and that the Defendant then put his mouth on his penis. This apparently continued for some time until AB got up from the bed and went over to his air hockey table to play.
[17] AB testified that his father had never done anything like that before. He can recall that his father said something to him either during or just after this incident, but he cannot remember what was said.
[18] The second incident occurred during AB’s next visit to his father, two weeks later. The Defendant had just spent some time outdoors working on a bicycle that he was repairing for AB, while AB was indoors watching his favorite TV show, Sponge Bob. AB testified that he knows that it was sometime after 3:00 p.m., because that is when Sponge Bob ends. He had just gone into the bedroom to do something else. As on the previous occasion, no one else was in the apartment.
[19] AB testified that his father approached him while he was sitting on the bed. The Defendant pulled down his own jeans and underwear and grabbed AB’s head with both hands. AB was scared. The Defendant put his penis in AB’s mouth and left it there for what AB described was about 10 minutes until he ejaculated and let go of AB’s head. AB said that at six years old he did not know what an ejaculation was, but that he tasted or felt something in his mouth.
[20] Later that same evening, sometime after dinner around 7:00 p.m., AB went to take a bath. He came out of the bath and went to the bedroom to get his clothes. His said that his father came into the room when he hadn’t yet put on his clothes, and proceeded to pull down his own pants and underwear.
[21] As AB described it, the Defendant “stuck his penis in my butt.” AB testified that, “It hurt and I was scared, and I didn’t know what to do.” According to AB, this lasted 10 or 15 minutes until the Defendant ejaculated “between my butt cheeks.” AB then went to sleep and, as he put it, “that was it.” At the end of the weekend visit he went back to his mother’s house. He never told his mother what had transpired.
[22] In fact, for the next 9 years, until the age of 15 when he disclosed these events to SS, he never told anyone about the sexual abuse he had experienced. This is despite the fact that he was asked repeatedly over the years by a variety of counsellors, lawyers, Children’s Aid Society employees, group home workers, and his own mother, whether his father ever touched him in a sexual or inappropriate way. Indeed, SS testified that when he first met AB, the first thing that AB told him was that he did not want to be asked any questions about his relationship with his father. According to SS, AB told him at the time that he was tired of being asked about this repeatedly by everyone in his life.
[23] For his part, the Defendant denies that any sexual incidents ever took place between him and AB. He testified that he had nothing but a normal fatherly relationship with his son, and speculates that AB’s mother is the one who planted these ideas in AB’s mind.
[24] The Defendant also testified that certain aspects of AB’s description of these events do not make sense to him. He pointed out, for example, that he never worked on the bicycle repairs alone but rather always included AB in this activity, so it does not ring true to him that he was outdoors with the bicycle while AB was indoors watching TV. He also pointed out that he always kept clean clothes, including underwear, in his apartment for AB, and so again it does not ring true that AB was not wearing underwear during the first incident he described.
[25] The Defendant testified that after the age of six, AB continued to visit him and that they continued to have a good relationship. He said that he never felt that AB was reluctant to see him, including after AB moved to a group home and his visits were supervised. The Defendant does understand, of course, that since 2009 his son has not wanted to see him at all, but he suggests that that is a result of other factors in AB’s life and not related to anything that he did to him.
III. Prior discreditable conduct
[26] At the outset of the trial, the Crown brought an application to admit evidence of prior discreditable conduct by the Defendant – specifically, his conviction for sexually abusing CD, the then 8 year old daughter of his girlfriend. This conviction involved incidents of sexual contact that occurred during a two week period in December 2006, when the Defendant was at CD’s mother’s house or when visiting another family member in Ottawa. The conduct leading to the Defendant’s conviction entailed acts of digital penetration of the young victim.
[27] The Crown submitted that the conduct in the prior conviction is remarkably similar to the conduct at issue here: both victims were of similar age, both sets of incidents occurred within two years of each other, both children were victims of opportunity either in the Defendant’s own home or in his girlfriend’s home or a home he was visiting, and both were children with whom the Defendant personally had a parental or quasi-parental relationship of trust. Furthermore, both sets of incidents occurred on multiple occasions within a short time of each other.
[28] On March 23, 2015, I ruled that this is one of those exceptional occasions “where the probative value of the evidence in relation to an issue in question is so high that it displaces the heavy prejudice which will inevitably inure to the accused where evidence of prior immoral or illegal acts is presented to the jury”: R v B (CR), 1990 CanLII 142 (SCC), [1990] 1 SCR 717, at 732. I noted that the Crown had produced an expert witness who testified very credibly that in a recognizable number of cases persons who are sexually attracted to very young children are interested in the immature form of the child and are indifferent to gender differences, and that beyond this one difference the complaints by AB and CD reflect “highly distinctive conduct” that heightens the probative value of the similar fact evidence: R v Pierre, [1995] BCJ No 1450 (BC CA). I therefore admitted the evidence of the Defendant’s prior conviction.
[29] As I also noted in my March 23, 2015 endorsement, part of the defense argument surrounds AB’s evidence about the Defendant’s prior conviction. Defense counsel emphasizes the fact that AB’s mother is the one who initially told him that his father was convicted of sexually assaulting CD, which suggests that she may have inspired AB’s thinking in respect of his own experiences: see R v JW, 2013 ONCA 89, at para 21. Further, AB testified that his mother often asked him whether his father had sexually abused him, which the defense argues could “have the effect, whether consciously or unconsciously, of colouring and tailoring their descriptions of the impugned events”: R v Binnie 2013 ONCA 112, at para 36, quoting R v B (C ) (2003), 2003 CanLII 32894 (ON CA), 171 CCC (3d) 159, at para 49 (Ont CA).
[30] Of most concern to the defense is the fact that AB himself was a witness to one of the incidents on which the Defendant’s conviction in the CD case was based. As I set out in my March 23, 2015 endorsement, he testified here that once when he was on an overnight visit to the Defendant at his girlfriend’s place, he was playing with CD’s young brother in a separate room and got up to go to the washroom. On his way down the hall he walked by CD’s bedroom and saw his father and CD through the open bedroom door.
[31] In the statement of facts leading to the Defendant’s conviction in the CD case, the incident in question was described as instance of digital penetration. On the witness stand here, however, AB testified that he saw his father in CD’s bedroom standing behind her with his pants off and making “sexual movements” – sexually thrusting against CD from behind. This more aggressive sexual activity is not part of the guilty verdict in the CD case and was never previously mentioned by AB.
[32] It is defense counsel’s view that this is a significant departure from the known facts of the CD case, and casts great doubt on AB’s credibility as a witness. Given its potential usefulness to the defense, I concluded that the prejudicial nature of the evidence regarding the CD conviction is outweighed by its probative value for both sides.
[33] I pause here to observe that in December 2006, when the CD incidents occurred, AB was 8 years old. His understanding of sexual behavior was that of a child. Although he testified here with considerable confidence that he saw what appeared to be sexually thrusting motions by his father, his ability to comprehend this now that he is 17 is obviously far more developed than it was at the age of 8 or in his early teenage years. The fact that he did not previously mention his observations is understandable when viewed in this light.
[34] Having now considered AB’s testimony in the context of the entire case before me, I do not view AB’s testimony about the CD case as being contradictory to the known facts of that case in a way that impugns his credibility. Rather, I view this testimony as a product of AB’s maturation and his changed perceptions now that he is a teenager and more sexually aware.
[35] Since this is not a jury trial and I am the sole trier of fact, I am very conscious not to permit the evidence about the CD case to prejudice my view of the Defendant, or to allow it to capture my attention to an unwarranted degree: R v Handy, 2 SCR 908, at para 37. I certainly am not of the view that because the Defendant has been convicted of child sexual abuse once before, he has a propensity to commit such offenses that establishes his guilt here.
[36] That said, the prior discreditable conduct does tell me that what might be unthinkable – the breach of trust involved in sexually interfering with a child with whom one has a parental relationship or other relationship of trust – is not utterly unthinkable for the Defendant. This may well be the kind of highly distinctive conduct where “it would be an affront to common sense to suggest that the similarities were due to coincidence”: R v B (CR), 1990 CanLII 142 (SCC), [1990] 1 SCR 717, at 751 (Sopinka J., dissenting).
[37] The Defendant’s past conviction for sexual conduct with his girlfriend’s young daughter does not prove that he engaged in sexual conduct with his own young son; that has to be established by evidence of acts by the Defendant that were actually directed toward his son. Nevertheless, the prior conduct does lend some credence to the Crown’s position that the Defendant was capable of committing the acts of which he is accused, given the opportunity.
IV. AB’s disclosure
[38] In the spring of 2013, AB was living in SS’s house. According to SS and to AB himself, his behavior was very poor. Just before the March break from school, AB was caught stealing something and lying about his activities. As a punishment, SS grounded him for the entire March break, preventing him from going on a planned visit to his mother and grandmother. He was particularly disappointed not to be able to see his grandmother, who was one of the very few people with whom AB had a warm, positive relationship.
[39] This punishment appears to have been something of a last straw for AB. As described by SS, AB was highly emotional, crying, and trashing his room. SS stated that he wanted AB to “own” his mistakes and to thereby learn a lesson. SS left AB in his room and went on an outing with another one of his foster sons, telling AB that they will chat when he returns.
[40] When SS came back, AB had obviously been sobbing. AB then pointed SS to a picture he had drawn on pink paper. The picture was shown to SS on the witness stand, and he identified it as the one that was drawn by AB on March 9, 2013. “That’s definitely [AB]’s,” SS testified. “I don’t have pink paper. He loves pink.”
[41] AB’s drawing also had cartoon-like captions and a stylized, decorative text along the bottom and reverse side of the paper. AB showed SS the picture and read the writing to SS. He was crying very deeply and apparently even gasping for air. The drawing shows two figures, one of which is AB, addressing each other. The dialogue between them reads: “Hey buddy can you kill me”. The friend responds, “No!!!”, to which AB responds, “Why not”. Added to this is the caption along the bottom and over to the other side of the page which says that when he was 4 years old he was “touched inappropriately” by his dad.
[42] SS stated that having seen this drawing, he looked for some more paper to give to AB. He testified that he didn’t want to direct AB, and told him to write about whatever he wants – group homes, SS’ own foster home, his family. SS then left the room so that AB would have the privacy to write or draw whatever was on his mind.
[43] A while later AB called to SS and said he had some more papers disclosing more of what he had experienced with his father. At that point, SS says that he told AB that he would have to inform the Children’s Aid Society, and that they might inform the police. AB apparently became very upset with that, although several weeks later AB did give a voluntary statement to the police.
[44] The second sheet of paper that AB gave to SS has one figure saying to the other, “Yo bro can you shoot me”, to which the friend answers in a sentence that seems to trail off at the end, “No because I care about”. The bottom caption on this page is written by AB in third person. AB mentions himself by name and then writes that he was “melested [sic] by his dad and has been lying and stealing ever since…”
[45] The third sheet contains only writing, with no drawing. On this page, AB writes that, “we showered together but nothing ever happened”. Then, on the next line down he continues, “he would just turn to cold to freak me out”.
[46] When AB was asked why he would mention the showering with his father if nothing ever happened, he responded that he didn’t know why he wrote it but thought that it might be important. He did indicate that he had told his mother that he and his father showered together, and that his mother had been very upset at hearing this.
[47] A fourth page of writing produced by AB that same day is more detailed. It states:
When I was between the age of 4-8 this is what my dad did to me.
he stuck it in my but [sic] 3-5 times
he put his mouth on mine 3-6 times
he made me put his in my mouth 3-7 times
[48] The following week, on March 16, 2013, AB added a fifth sheet of paper and gave it to SS. On this final page, AB writes:
I left out that he did the same thing to 2 other kids he did it to his Girlfriends daughter when I was there she was 7 years old
[49] As indicated, SS testified that the cumulative effect of this series of writings was cathartic for AB. While his misbehavior did not disappear immediately, it eventually subsided to the point where AB is now a considerably better-adjusted person than he has been in many years.
V. The Defendant’s position
[50] As indicated above, the Defendant flatly denies that any sexual contact ever took place between himself and his son. Defense counsel puts the issue in this trial squarely in terms of credibility: whether a boy with a history of lying and stealing can be believed when, while being punished in his foster home, he claims that his misbehavior flows from what his father did to him years ago.
[51] Counsel for the defense submits that, in the first place, AB had a long history of being questioned by his mother and an assortment of professionals, and never revealed any inkling of problems with respect to the Defendant. He concedes, of course, that AB has not been in touch with the Defendant in recent years, but as previously indicated it is the Defendant’s position that AB’s reluctance to see him since 2009 is reflective of other influences and pressures in AB’s life.
[52] On the witness stand, AB did address the fact that during the years of questioning by others he never disclosed what his father had done to him. As he explained it, he was too scared to reveal what had happened. He testified that he was afraid and embarrassed of what people might think of him and the conclusions they might draw as to his own sexuality if the story were to come out.
[53] AB’s explanation makes sense. It is difficult to imagine that a young boy in AB’s position would be anything other than very reticent to talk about having had sex with his father at the age of six. Embarrassment and confusion about sexual contact experienced by a boy between 6 and 14 years old is eminently credible. The surprise is not that AB failed to disclose the sexual incidents earlier; the surprise, if any, is that he was prepared to disclose them at age 15 and to testify about them with such candor at age 17.
[54] Defense counsel’s suggestion that AB’s written statements at a time when he was being punished makes that disclosure suspect, is contradicted by the testimony of AB’s foster father. SS concedes that the punishment was meant to be taken seriously, but he also states that it was not harsher than AB would have expected at the foster home. He also testified that AB did not seek, and did not receive, any relief from the punishment as a result of his disclosures.
[55] The imposition of this penalty for AB’s misbehavior appears to have acted as a catalyst in bringing out something that he had buried deep in his memory. Indeed, the two drawings produced by AB that talk about suicide reveal the genuine anguish felt by AB at everything he was revealing for the first time. His sobbing and emotional meltdown – SS described him as having difficulty breathing when the punishment was imposed – speak to the genuine depth of feeling that ensued in his written statements. The drawings and writing were juvenile in form as one might expect from a traumatized youth, and do not give the impression of having been done strategically to gain an advantage.
[56] The defense also points out that AB’s first drawing on March 9, 2013 says that the abuse occurred when he was 4, but that 11 days later, on March 20, 2004, he told the police officer interviewing him that the incidents occurred in April 2004 when he was 6. Defense counsel also notes that in AB’s second drawing of March 9th, the word “inappropriate” is used ungrammatically (“…he was touched inappropriate by his dad”), whereas in his first drawing of that day it was used in a grammatically correct way (“I was touched inappropriately by my dad.”).
[57] AB’s explanation for these errors is that he was “foggy” on March 9th when he produced the drawings. He also stated that he had consulted a dictionary for the first drawing but not for the second drawing. In my view, these are minor details that do not amount to a serious matter of credibility. It must be kept in mind that this is the testimony and written disclosure of a young teenager. It is predictable that he will be somewhat confused about the dates of events that happened in his early childhood.
[58] Moreover, at 17 years old he may well feel awkward or embarrassed at the juvenile appearance of the drawings and accompanying text he produced two years ago. While I agree with defense counsel that it seems unlikely that a dictionary would have helped him use the word “inappropriately” in a grammatically correct way, I put little weight on AB’s attempt at an excuse. AB has developed into a rather articulate young man, and his chagrin and feeble cover-up of a grammatical mistake in the immature writing he produced when he was 15 does not denote a general lack of credibility in matters that really count.
[59] Counsel for the defense further submits that on the fourth page produced by AB on March 9, 2013, AB set out the sexual incidents in a different order than the order that he used in his statement to the police two weeks later. On the March 9th paper, he says “he stuck it in my but” [sic] first. In response to the police officer’s open-ended question about what happened in April 2004, AB described this incident as being the last one.
[60] In addition, defense counsel observes that in the writing produced by AB there is what appears to be a neat arithmetical progression, in which he says that anal sex was performed on him 3-5 times, oral sex was performed on him 3-6 times, and he was made to perform oral sex on the Defendant 3-7 times. The defense’s position is that this progression is too precise to be true.
[61] I agree that the order in the list of sexual acts that AB provided to the police on March 20th is different than the order he used in listing these acts in his writing on March 9th. The March 9th page, however, did not state that this list was in order of occurrence; rather, it simply listed the acts as AB thought of them at the moment. When asked specifically to relate the sexual acts chronologically, he provided the same order to the police as he narrated at trial. Indeed, counsel for the Crown points out that the order to which he testified at trial – first receiving oral sex, then performing oral sex, then receiving anal intercourse – reflects an escalating severity of conduct. It fits naturally into the Crown’s description of the Defendant being emboldened by each subsequent incident.
[62] As for the arithmetical progression, I do see defense counsel’s point. AB’s description on March 9th of the number of times each of the three sex acts was repeated seems to be somewhat contrived.
[63] That said, the numbers are inevitably an approximation, and are stated as being so. The acts did not happen 5 times, then 6 times, and then 7 times; they happened between 3 and 5 times, then between 3 and 6 times, and then between 3 and 7 times. AB was obviously not counting the precise number of anal or oral contacts that his father made with him during each of these three incidents, and so his description is a self-declared approximation. It does not indicate a lack of credibility for this approximation to be expressed as a numerical sequence. It does not purport to be precise in the way that defense counsel’s argument about credibility would suggest.
[64] Finally, counsel for the defense observes that on March 16, 2004 – after thinking about it for a week – AB came back with his final written paper in which he says that he suddenly remembers that his father “…did the same thing to 2 other kids.” According to defense counsel, this afterthought, especially when combined with AB’s surprising recollection of a more severe abuse of CD than had ever been previously alleged, indicates a form of collusion in presenting the evidence.
[65] I do not take defense counsel to mean that AB intentionally fabricated this part of his story. However, counsel points out that AB’s vivid imagination in this regard may be a product of innocent tainting by virtue of his having heard his mother explain that the Defendant was guilty of sexually assaulting CD. For this proposition he cites the Court of Appeal in R v MB, 2011 ONCA 76, quoting R v JF (2003), 2003 CanLII 52166 (ON CA), 177 CCC (3d) 1 (Ont CA), at para 77: “[t]he reliability of a witness’s account can be undermined not only by deliberate collusion for the purpose of concocting evidence, but also by the influence of hearing other people’s stories…”
[66] It is not outside the realm of possibility that AB’s mother influenced his thoughts about his father. What evidence there is, however, shows only that it was his mother that first told him about his father’s conviction for abusing CD, and that AB’s two parents each spoke negatively about each other and made allegations of bad conduct against each other during their lengthy family litigation. Anything else is in the realm of conjecture.
[67] AB is, of course, aware that his father was in fact convicted of sexually abusing CD. AB’s mother may have been the one to inform him of this, but it was actually true. It would stand to reason that to the extent that AB’s negative feelings toward his father are related to the CD case, it is because his father really did abuse the young girl and not just because his mother told him so.
[68] Likewise, even if AB’s mother frequently accused the Defendant of wrongdoing, AB’s evidence is quite detailed. He narrates a series of very specific acts perpetrated on him by the Defendant on very specific days at a very specific place at a very specific time in his life. He does not rest on comments about the Defendant’s overall character; if anything, when he speaks in generalities about his father he describes an otherwise positive relationship.
[69] It is the sex acts that occurred in April 2004 that set AB against his father. There is speculation by the Defendant, but no actual evidence that negative commentary by AB’s mother led him to fabricate those specific events.
[70] The evidence in the record is that AB’s mother only learned of the actual incidents for which the Defendant stands accused when SS told her about them following AB’s disclosures of March 9, 2013. There is nothing to support the defense’s suggestion that AB’s mother knew about these incidents or was somehow involved in AB’s recounting of them. All of the evidence points to AB having consistently refused to tell his mother what the Defendant had actually done.
VI. Approach to the evidence
[71] As always, I must keep in mind that “the standard of proof beyond a reasonable doubt is inextricably intertwined with that principle fundamental to all criminal trials, the presumption of innocence”: R v Lifchus, 1997 CanLII 319 (SCC), [1997] 3 SCR 320, at para 36.
[72] In a case like this one, where the Defendant has testified in his own defense, I must also keep in mind that a criminal trial is not a credibility contest. As Cory J. put it in R v W (D), 1991 CanLII 93 (SCC), [1991] 1 SCR 742, at para 10, as a trier of fact I “need not firmly believe or disbelieve any witness or set of witnesses.”
[73] Moreover, I must proceed in accordance with the instructions that Cory J., at para 11 of R v W (D), states that a jury should properly receive in a case where credibility is important:
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.
[74] I am cognizant of the fact that the evidence must be considered in its totality, and that “mere disbelief of the accused’s exculpatory account or a mere preference in favour of the complainant’s account does not equate with guilt”: R v. L (CO), 2010 ONSC 2755, at para 6. Accordingly, I must acquit the Defendant if I am “unable to resolve the conflicting evidence and, accordingly, [am] left in a state of reasonable doubt”: R v Challice (1979), 1979 CanLII 2969 (ON CA), 45 CCC (2d) 546, at para 45 (Ont CA).
[75] Having said that, I am convinced that the version of events narrated by AB is truthful. As Iacobucci J. stated in R v Starr, 2000 SCC 40, [2000] 2 SCR 144, at para 242, “something less than absolute certainty is required” since that would set the Crown’s burden impossibly high. Here, on the totality of evidence, I am not, as Code J. described it in R v Edwards, 2012 ONSC 3373, at para 20, left in “a state of indecision or uncertainty” as to where the truth lies.
[76] The theory of the defense rests purely on speculation about AB’s mother. This speculation or conjecture about the mother’s role is, of course, a theoretical possibility, but it is simply not present in or supported by the evidentiary record. There is nothing in the record before me that causes me to doubt that the Defendant engaged in the sexual misconduct described by AB.
VII. Disposition
[77] Considering the evidence presented by both sides in this trial, I am convinced beyond a reasonable doubt of the Defendant’s guilt. I find the Defendant guilty on all counts.
Morgan J.
Date: April 14, 2015
COURT FILE NO.: 22325/14 NJ
DATE: 20150414
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
DH
Defendant
REASONS FOR JUDGMENT
E.M. Morgan J.
Released: April 14, 2014