R. v. J., 2015 ONSC 266
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
W.J.
Defendant
Louise Collins, for the Crown
Margaret Bojanowska, for the Defendant
HEARD: January 5-9 and 12, 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proceeding directing that the identity of the complainants and any information that could disclose such identity shall not be published in any document or broadcast in any way pursuant to s. 486.4 of the Criminal Code of Canada.
SPIES J.
Introduction
1The defendant, W.J., is charged with sexual assault, touching for a sexual purpose and invitation to sexual touching with respect to two complainants; S.D. and her younger sister C.W. The offences are alleged to have occurred while Mr. J. was living with them and their mother with whom he was in a common law relationship. Mr. J. reelected trial by judge alone and pleaded not guilty to all charges.
2At the commencement of the trial the Crown brought a s. 715.1 application and sought an order that C.W. give most of her evidence in chief by introducing two video-taped statements of her evidence taken by police in March 2008 when she was 15 years old and in Grade 10. This procedure was permitted at the preliminary inquiry at which time C.W. adopted both statements as true. Ms. Bojanowska objected to the application and counsel agreed to proceed by way of a voir dire blended with the trial. After the evidence of S.D. was given viva voce, I heard and then dismissed this application; see R. v. J., 2015 ONSC 262.
3The Crown also brought a similar fact application seeking an order that the allegations made by S.D. be considered in support of the allegations made by C.W. Initially counsel agreed that this application would be argued and decided at the end of the Crown’s case, before the defendant was put to his election, as to whether to call evidence. Ultimately counsel advised that this was not necessary. After the Crown’s case closed with the evidence of S.D. and Ms. W., Mr. J. elected not to call evidence. Counsel argued the similar fact application as part of their closing submissions.
4Since Mr. J. did not testify the central issue in this case is the credibility and reliability of the two complainants and whether the Crown has proven its case beyond a reasonable doubt.
Background
5S.D. was born in […] 1987 and was 27 at the time of trial. She is five years older than C.W. who was born in […] 1992 and is now 22. They have an older sister named A. who is 12 years older than S.D. and two younger stepbrothers fathered by the defendant; Z. and K.
6S.D. believed that Mr. J. became her mother’s boyfriend in 1997 and moved in with them soon after, when she was nine or ten years old. The family was living in a two-bedroom apartment at the time located downtown at W[…]. Street, Toronto (“W. Street”). C.W. was four or five and she recalled that it was while she was in kindergarten that Mr. J. moved in with them. Once Mr. J. moved in he shared the master bedroom with the complainants’ mother and they shared a room with two single beds. At this time A. would sleep on the couch when she was home.
7The family moved a lot and this is relevant as often the evidence of the complainants was linked to a particular home. D., A.’s daughter, and Z., were born in […] 2000, a few days apart. Both S.D. and C.W. recalled that by this time they were living at G[…] Avenue (“G. Avenue”) as they needed more room. S.D. recalled that they moved to G. Avenue when she was 12 and in Grade 7. C.W. thought she was in Grade 4 then but she was only seven and in Grade 2 when Z. was born. Both S.D. and C.W. believed that they lived on G. Avenue for about one year. S.D. testified that K. was also born at G. Avenue in […] 2001 and C.W. recalled that A. lived with them then.
8Sometime later in 2001, the family moved to their first address on R. Road; a basement apartment. S.D. thought this was #[…] R. Road but C.W. said it was #[…]. I will refer to this residence as “R. Road 1” to avoid confusion. S.D. was 14 and in Grade 9 and C.W. was nine and in Grade 4. C.W. believed that A. and D. were still living with them at this time.
9Sometime in 2002, the family moved to a second address on R. Road. S.D. recalled the address was #[…] R. Road but C.W. recalled it as #[…] (“R. Road 2”). S.D. was now 15 and in Grade 10, and C.W. was 10 and in Grade 5. C.W. believed that by this time A. and D. were no longer living with them.
10In 2003, the family moved to their third residence on R. Road. S.D. thought it was #[…] but C.W. recalled it as #[…] (“R. Road 3”). S.D. was now 16 and in Grade 11 and C.W. was 11 and starting middle school; Grade 6.
11In 2004, the family moved to J[…] (“J. Street”). S.D. was 17 and in Grade 12, and C.W. was 12 and in Grade 7. According to S.D., closer to the time that they were going to make this move, from R. Road 3, D. moved in permanently and shared a bedroom with C.W. because she had been apprehended by the Children’s Aid Society (“CAS”) and custody of D. was transferred to the complainants’ mother. Apparently A. was having difficulty taking care of D. because of a drug addiction problem.
12In December 2006, S.D. moved out to live with her boyfriend.
Allegations of S.D.
13S.D. testified that after Mr. J. moved in he started to be inappropriate with her. She recalled that she was around nine or ten when it happened for the first time. She was in her mother’s bedroom, clothed, lying on her back on the bed and watching television. Mr. J. came in wearing only boxers and he put himself on top of her, with his chest on her chest and he moved his pelvic area, she guessed for a couple of minutes, around where her vagina would be. He was heavy on her. No one else was home.
14S.D. testified that she never saw Mr. J.’s penis but she could feel it in her vaginal area and it was hard. She was specifically asked in chief where Mr. J.’s hands were when he was lying on her and she answered that his hands were over her head on the bed. When asked where her face was facing she said it would be where his chest was but that she turned her face away from him because she didn’t want to see his face. S.D. agreed in cross-examination that she did not tell the police that Mr. J.’s chest was on her, that he was heavy, that he had his hands over the top of her, that her face was by his chest and that she turned her face away. In response to some of these points she said that she had not been specifically asked. That in my view was a fair response. This evidence was given in response to fairly specific questions from Ms. Collins.
15S.D. testified that Mr. J. didn’t say anything but he laughed and acted like they were playing, trying to make it seem like it was ok. She didn’t say anything either. In fact S.D. testified that Mr. J. never said a single word and never told her to be quiet, never threatened her or told her not to tell and never gave her a reward for not telling. This evidence is more difficult to believe as one would think if the allegations are true, that Mr. J. would be concerned about S.D. saying something to her mother. On the other hand, he may have believed that S.D.’s mother would not believe her if she said something.
16S.D. said that what Mr. J. did, did not feel good and felt wrong. She felt that if her mother saw it that she; S.D., would be in trouble. This evidence was credible. Her mother was working full time at this time, mostly days but some night shifts. S.D. testified that there were times she was in the house alone and that Mr. J. babysat her sometimes. At this time A. was not really around and she didn’t remember C.W. being there either although she did not know where C.W. would have been.
17There was an internal inconsistency in S.D.’s evidence as to when the alleged inappropriate touching began because she also testified that it was when she was eight or nine and she admitted that she told police that she was eight when Mr. J. moved in and eight or nine when he sexually molested her. When this inconsistency was put to S.D. in cross-examination she said that she was not too sure about her age, which is why she used the address of where she was living. Her grandmother passed away when she was eight so she was deducing that it must have been when she was nine or ten. She did not explain how the death of her grandmother helped her remember when the alleged assaults started but I accept that this is how she might remember. I did not find this inconsistency as to when the assaults began to be material to S.D.’s credibility or reliability as a witness.
18S.D. testified that the same thing happened a couple of more times over two to three years while they were living at W. Street but she was not sure when. In cross-examination S.D. confirmed that the sexual touching occurred only at W. Street, that it ended “full stop” when they moved to G. Avenue, that it did not happen at any of the subsequent addresses the family moved to and that she wouldn’t say the abuse lasted until she was 12. She said it stopped because she stopped going to her mother’s room so she could avoid Mr. J. as much as possible. However, a little later in her evidence in chief S.D. said that it continued probably until she was in high school, which would put the allegations taking place at homes after W. Street until she was as old as 14. Although I could understand why S.D. might be unsure about the age when the alleged abuse started and ended, the fact that she was clear it happened only at the W. Street apartment and then put it happening in other apartments is more troubling.
19When asked how often these incidents occurred, S.D. testified that it happened three to four times and not any more than that. She admitted, however, that she told police that these incidents occurred every couple of months and that she never told police it only happened two to four times. To explain the inconsistency S.D. said she wasn’t being really specific, her timeframes were not perfect and that it wasn’t happening the whole time that Mr. J. was living with them. She maintained that for a period of time he did this to her every couple of months and that it happened more than twice and not more than six times. This evidence was difficult to accept as S.D.’s evidence to police certainly suggested that she was alleging Mr. J. assaulted her much more than three to four times or even six times. This also ties in to her being inconsistent as to how long the alleged abuse lasted. I found this to be a material inconsistency in her evidence.
20S.D. could not say if these alleged assaults happened during the week or on the weekend; only that they occurred during the day. As she thought about it more she said that if she was home alone in her mother’s bed that it must have been the weekends when her mother was working although she agreed that she was deducing this now. S.D. admitted that at the preliminary inquiry she testified that she had no recollection if these assaults occurred during the week or weekend or the time of day and she admitted this evidence was true but said that now as they went into more detail she could make a guess. I could see how S.D. could come to this conclusion as she was asked to think about this timing more at trial and did not have difficulty with this evidence.
21S.D. admitted that Mr. J. never ejaculated, that she didn’t see his penis, there was no penetration, no sexual intercourse and that he didn’t touch her anywhere else. She also testified at trial that he didn’t “grind” her from behind and she confirmed this again in cross-examination. However, S.D. told the police that she would either be lying on her stomach or her back when these events occurred. When this inconsistency was pointed out to her by Ms. Bojanowska, S.D. said that that is what she remembered at that time and that now she only remembers being on her back. She said that everything that she said was the truth as she remembered it at the time. I accept that S.D. may remember fewer details now that time has passed although she was specifically asked about whether or not this alleged abuse happened from behind. I am surprised the specific questioning did not refresh her memory.
22When S.D. was reminded that in her evidence in chief she said that the incidents would end by her squirming, she testified that there was another way, namely that she would try to push Mr. J. away and shove him to get out of the bed and she would get out. She said these were the only two ways that she remembers. S.D. admitted that she never yelled for help but she said she did leave the room when she got away.
23S.D. was cross-examined about why she simply did not leave her mother’s bedroom when Mr. J. came in. She testified that the first time Mr. J. took her by surprise. When it happened a second time it was because she didn’t think it would happen again. She admitted, however, that the third time when she saw him coming into the room she did not get up and leave and that she never did so. She said that she didn’t think to get up and she didn’t expect him to continue to do this to her. S.D. admitted that she would continue to go to her mother’s room and lie on her bed and watch TV there even though she could watch TV in the living room. This is contrary to her evidence that she stopped going to her room. Although I do not believe that S.D. could really remember these alleged incidents separately as her evidence suggested, particularly given her uncertainty about how often this happened, given her age and given that Mr. J. was her stepfather, I would not have found it hard to believe that she would still go to her mother’s room save that she said she didn’t so she could avoid him. This is an inconsistency in her evidence of concern.
24Overall S.D.’s evidence about her allegations was fairly consistent. Ms. Collins argues this is because she is telling the truth. Ms. Bojanowska argues that she kept her fabricated allegations simple so she would not get tripped up.
Allegations of C.W.
25According to C.W. she spent most of her mornings with Mr. J. when they were living in the W. Street apartment. He would be the only one home because her mother left early for work and A. and S.D. went to school on their own. She said she was left in Mr. J.’s care during the day while they were waiting for her school to start and that she had kindergarten in the afternoon. She recalled that she waited for a yellow bus to take her to school and that Mr. J. probably waited with her but she couldn’t remember that. Ms. Bojanowska argued that this evidence is wrong, relying on the evidence of S.D., which I will come to, and submitted that Mr. J. was not alone with C.W. as she alleged and, therefore, the alleged assaults could not have occurred. For reasons I will come to I have rejected that submission.
26C.W. testified she couldn’t say what age she was when the molestation (her term) started because it became such a “normal, commonplace thing”. It was a “secret between us” and they did not talk about it when anyone was home. In cross-examination C.W. agreed that given the number of differences in her evidence as to when the abuse started she couldn’t give an age. On March 8, 2008 she told police it started when she was eight or nine; which would be when she was in Grade 3 or 4 and close in time to the move to G. Avenue. On March 18, 2008, C.W. said it started when she was six or seven. At the preliminary inquiry she said it started when she was around six – maybe younger – maybe older. In chief at trial C.W. testified that it started when she was in senior kindergarten and agreed that would mean she was five. When asked in cross-examination if it started when she was five, C.W. responded: “I suppose”.
27I did not consider it that significant that C.W. could not be more consistent on the question of when the alleged assaults started. C.W. was clearly confused about her Grade and age when Z. was born and given the time that has passed and her young age when the family was living on W. Street this is not something I would expect her to necessarily remember.
28C.W. testified that Mr. J. began touching her when she was sitting on his lap and he was bouncing her on his knees. She could feel an erection although she didn’t know this was what it was at the time. During her statements of March 8 and March 17, 2008 and at the preliminary inquiry, C.W. made no mention of sitting on Mr. J.’s lap and feeling his hard penis beneath her. I am concerned that this evidence, certainly feeling a hard penis, is not true and given for the first time at trial to perhaps improve the case against Mr. J.
29According to C.W. she slept with her mother before Mr. J. moved in and she took comfort in her presence. Once Mr. J. moved in she was moved into her sister’s bedroom. She said sporadically she would still go to her mother’s room. She testified that when she was still sleeping in her mother’s bed after her mother left for work, Mr. J. would pull himself closer and rub his pelvis against her butt. C.W. admitted that on March 8, 2008, she did not tell police they would lie on their sides and that Mr. J. would rub against her back. At trial C.W. also testified that Mr. J. did this for longer and longer periods and it progressed to him yanking up her nightgown and taking off her underwear and rubbing his penis against her vagina. C.W. also testified that Mr. J. was heavy but he was lifting himself up and would put his weight on his arms.
30C.W. remembered once that Mr. J. yanked up her favourite Pocahontas nightgown and took it off her and threw it along with her underwear down on the floor. She supposed that she was standing up to allow him to yank her underwear off and that Mr. J. then laid her on the bed and climbed on top of her. C.W. agreed that she never said anything like this to police on March 8th. On March 17, 2008 C.W. told police that Mr. J. would yank her nightgown up to her stomach. When this inconsistency was put to her she said she was describing a specific moment and that there were different instances; sometimes Mr. J. would yank up her nightgown and other times he would yank it off. Ms. Collins argued that this is an example of C.W. having a good memory and remembering a detail like the fact she was wearing her Pocahontas nightgown. While that might be possible, what is troubling is that if C.W. can truly remember this detail, she did not testify before that whichever nightgown she was wearing, it was pulled off while she was standing. I would have expected her to remember that before the trial.
31C.W. testified at trial that there was no intercourse but she remembered once that Mr. J. attempted to enter her but it hurt because she was too small and she let him know by saying: “Ow that hurts me”. He then removed himself from her. Mr. J. was lying on top of her at that point and she was lying facing him. This evidence about it hurting and C.W. saying something was given for the first time at trial. I do not find it credible and do not believe that this is a detail that she truly remembered for the first time so many years later. Furthermore, although she told police on March 8, 2008 that Mr. J. had attempted intercourse, in her statement of March 17, 2008, C.W. was specifically asked if they ever had intercourse and she said “no” and made no mention that Mr. J. tried to put penis in her or attempted to have intercourse with her; she said he only had his penis on top of her crotch. These inconsistencies raise credibility concerns.
32When asked at trial the number of times Mr. J. ejaculated C.W. said that she didn’t think he ever did not ejaculate. C.W. admitted that when she gave her statement to police on March 8, 2008, she made no mention of Mr. J. ejaculating. In her statement of March 17, 2008, C.W. said for the first time that Mr. J. ejaculated and that after he ejaculated he’d leave the room. In chief at trial she testified that after he ejaculated he would sometimes roll over and go back to sleep or get up and go pee or put his boxers on and go into the living room. The evidence was clearly evolving and again it is difficult to believe that C.W. would be remembering more details at trial given the time that had passed. I believe she was embellishing her evidence to make her allegations more serious.
33C.W. was asked if Mr. J. ever put her on top of him. She said he tried that once and that he didn’t like that position. When pressed, C.W. agreed that she didn’t say this in her earlier testimony. She admitted that on March 8,2008 she told police Mr. J. would get on top or other times he put her on top. C.W. agreed she didn’t tell police Mr. J. only put her on top once or the fact that Mr. J. didn’t like it. She said this was her assumption. She testified that she only remembered one particular time now and that it was her only clear memory. I accept that C.W. may legitimately remember less detail now since more time had passed.
34When asked how many times these incidents happened, C.W. said that when she was interviewed by police she was asked to ballpark it and she told them it happened 30-40 times over a number of years. She got quite upset and was crying at this point in her evidence at trial and her upset seemed genuine. On March 8, 2008, C.W. told police that she didn’t count the number of times but by the end of her statement she gave this ballpark figure of 30-40 times. In cross-examination at trial she said this was an estimate, which is what the officer asked for and she agreed she had no idea the number of times the alleged abuse occurred. I did not have a problem with this evidence; I would not expect C.W. to have a specific number for an answer.
35C.W. testified that Mr. J. would also pull his penis out of his boxers and make her hold it and would instruct her on how to pleasure him. He took her hand and molded it around his penis and she would pleasure him until he ejaculated. He would then use dirty laundry to wipe himself. In her statement of March 17th however, C.W. said she’d pleasure Mr. J. but he’d finish it off himself. This is a significant change in my view given that on her evidence at trial, C.W. would have had to be holding Mr. J.’s penis with her hands when he ejaculated. It raises serious credibility concerns.
36C.W. was asked about her giving “attitude” to Mr. J., her mother and sisters over the years presumably to show that she could handle herself even when she was young. An incident resulting in her being expelled from junior kindergarten was explored. When C.W. was asked whether she was giving her mother and her sisters attitude when they were living at the W. Street apartment, C.W. became very emotional. She said she was beginning to be angry at her mother for “not picking up on this” so that maybe she was giving her attitude. She wondered how her mother could be so “clueless” about what was going on in her own house. This portion of her evidence was very credible.
37Ms. Collins asked C.W. questions about what she recalled about her mother’s bedrooms, arguing later that her recall of details corroborated her allegations. C.W. recalled that her mother’s bedroom at the W. Street apartment was painted blue like the sky and added “things a child can remember”. She could not remember her mother’s decorations there. She said that nothing happened in that room that she wants to remember. C.W. testified that her mother’s bedroom at G. Avenue had an “ugly, dirty, crusted” carpet, which she remembers because if Mr. J. didn’t have anything to wipe himself with he would ejaculate on the carpet beside the bed. Ms. Collins relied on this evidence as an example of C.W.’s good memory. It is true that the accuracy of this evidence was not challenged but I also have no other evidence to confirm its accuracy.
38C.W. couldn’t specify when the last incident of alleged sexual assault occurred and her evidence on this was all over the map. She testified that when she was “older” she could assert herself because she knew it was not supposed to happen and she didn’t want to go through it anymore. In her evidence in chief, C.W. testified that the assaults happened for sure at W. Street, G. Avenue and R. Road 1 and 2 and that they ended when they were living at R. Road 2 which would be when she was in Grade 5 and 10 years old although she said that the abuse ended before she was in Grade 5.
39C.W. agreed she told police on March 8th that the abuse happened only at the W. Street apartment and that it ended when she was 10-11 years old. However, she also said it had stopped before her brothers were born although in her mind then she was ten then which was incorrect; she was only eight when Z. was born. C.W. said that she had no time to think things over before her statement on March 8th and that her memory has improved as to when the assaults ended. When her March 17, 2008 statement was put to her C.W. admitted that she said then that the assaults ended by the time her mother was pregnant when she was ten or eleven. At trial she said this was wrong because she would not have been ten or eleven when her mother was pregnant with Z. However C.W. also admitted that she had a very specific memory, when she spoke to police, of the abuse ending when Z. was born. At trial C.W. testified that the molestations came to a full stop when they were living at R. Road 2.
40To explain the discrepancy in her evidence C.W. testified that the abuse wasn’t a “ritual” like it was before and that it was more “sporadic” after Z. was born. She had never mentioned this in her evidence before and although I can understand why C.W. would have trouble with dates, her inability to be clearer and more consistent on when the alleged assaults ended, by tying her recollection to an address or a family event, is of concern particularly since she would have been older at this time.
41C.W. testified that she gave Mr. J. “attitude” and that she didn’t have a parental relationship with him; he was like another person in the house. She felt she could talk down to Mr. J. and could say anything to him. Mr. J. gave up telling her what to do and she did not listen to him. C.W. testified that Mr. J. “lost those privileges” and had no “parental power” over her. She pretended the abuse never happened because she didn’t want to talk about it. She was calming down and not acting out at school. Once they moved to J. Street she and Mr. J. came to a mutual understanding of “I won’t bother you if you don’t bother me”.
42At trial in her evidence-in-chief C.W. testified that she was also molested during a family vacation in the summer of 2000 before K. was born when they went camping at a large lake, although she could not recall where. She alleged the assault happened in the water when Mr. J. went swimming with her, leaving her mother, her brothers and D. back at the campsite.
43C.W. said the water got deep and even though she was a good swimmer she was scared so she swam to Mr. J. who was out further. No one else was around this particular part of the beach, which she said was “sort of abandoned”. He pulled her from behind him and then rubbed himself up against her vaginal area for a few minutes. She could feel his penis through his swim shorts. She testified that at this time she knew it was wrong and that she didn’t like or want to participate but didn’t feel like she could speak on it and it was something she didn’t want to speak about. C.W. testified that they went camping other times but this was the only time when any inappropriate touching occurred.
44In cross-examination C.W. admitted that she was asked by police if Mr. J. had done anything else to her and that she did not mention this camping incident. She agreed that she gave evidence about this incident for the first time at the preliminary inquiry. She said that she had had time to think about it. She also admitted that when she mentioned this incident for the first time at the preliminary inquiry she did not say that Mr. J. pulled her to the front and rubbed his penis against her vaginal area.
45This evidence seemed very compelling as I heard it because C.W. gave a lot of detail about this and it appeared as if she was slowly remembering bits and pieces of this event as she testified. However, as I reflect on this evidence, given that this incident was mentioned for the first time at the preliminary inquiry, I am less convinced. Furthermore, the change in evidence on a key fact, namely that Mr. J. pulled her to the front and rubbed his penis against her vaginal area is concerning as it is another example of a significant new detail at trial of a fact that makes the allegation worse.
46C.W. was consistent at trial that Mr. J. never told her to keep what was happening a secret and he never gave her a reward to keep quiet. He never told her to not tell her mother or sister or that he’d hurt her, her mother or anyone if she told. According to C.W. there was no talking between the two of them during all of these instances. However, when C.W. spoke to police on March 17, 2008 she told them that Mr. J. told her not to say anything although she then added that it was an impression she had and that he did not actually say these words; adding that she was not sure. When this evidence was put to C.W. at trial she confirmed that there were no words and that this was her impression only. Setting aside the uncertainty of her evidence, as I said in the case of S.D., it does seem difficult to believe that Mr. J. would not be concerned about C.W. saying something to her mother or for that matter to S.D.
47C.W. admitted that when these alleged assaults were happening she never got up off the bed or ran from the bedroom or struggled to get away. The only evidence she gave of any resistance was at trial when she testified that when Mr. J. took her hand to pleasure him the first time she pulled her hand away. C.W. admitted that she had never given this evidence before.
Analysis
48Mr. J. did not testify so this case depends on my assessment of the credibility and reliability of the evidence of S.D. and C.W. It is not enough if I decide I believe their evidence. It is not enough if I believe that the allegations may be true or even that they are probably true. The onus is on the Crown and I must not only believe S.D. and C.W. but also find that their evidence persuades me beyond a reasonable doubt that Mr. J. sexually assaulted them as alleged. I also recognize that it is possible that I accept that the Crown has met its onus with respect to one of the complainants and not the other or with respect to some of the particulars alleged and not others; the Crown’s case is not an all or nothing proposition.
49As in most cases, assessing credibility is a particularly difficult task for a trier of fact. Ms. Collins asserts that the evidence of the complainants is credible and reliable and that I can consider the evidence of S.D. in support of the evidence of C.W. as similar fact evidence. It is her position that even if I dismiss the similar fact application, the evidence of S.D. corroborated the evidence of C.W. on other facts that they each testified to. Ms. Bojanowska made a multi-pronged attack on the credibility of the complainants in support of Mr. J.’s position that these allegations are false, the product of collusion and are motivated by their hatred of him and their desire to get him out of their lives for good. As a result I must review a great deal of evidence which was not directly relevant to the allegations but rather to this main defence.
The Similar Fact Application
50Ms. Collins relies on a number of cases including my decision of R. v. M.B., [2008] O.J. No. 2358 (S.C.J.) where I considered a Crown application to introduce similar fact evidence and reviewed the various principles that apply and must be considered. Similar fact evidence and other evidence of discreditable conduct by an accused person is presumptively inadmissible. The onus is on the Crown to satisfy me on a balance of probabilities that in the context of this particular case, the probative value of the evidence in relation to a material fact in issue outweighs its prejudicial effect on the fairness of the trial and justifies its admission; R. v. Handy, 2002 SCC 56, [2002] S.C.J. No. 57 at para. 55. The similar fact rule only prohibits reasoning from “general” disposition. Propensity or disposition evidence can exceptionally be admitted “if it survives the rigors of balancing probative value against prejudice”; Handy, supra, at para. 64.
51Ms. Bojanowska challenges the admissibility of the evidence of the complainants as similar fact evidence and submits that it fails the first step of Handy in two ways; first it is submitted that the complainants colluded and second that the complainants’ allegations have significant dissimilarities. It is argued that the similar fact evidence is highly prejudicial and this prejudice outweighs its probative value.
52I could devote a significant amount of this decision to this application but I have concluded it is not necessary. Ms. Collins argues that the evidence of the complainants, if believed, is relevant to prove the actus reus of the offences; that they occurred, in that the proffered similar fact evidence demonstrates a specific propensity on the part of Mr. J. to engage in sexual activity with young pre-pubescent females within the family home with whom he stands in a close familial relationship, as step-father. The differences in the allegations between S.D. and C.W. are relevant, in that the closer the circumstances of the similar acts resemble the circumstances under which the charged act was committed, the less likely the similarity can be explained by coincidence. However, the core allegation of the complainants that while they were lying on the bed in their mother’s room Mr. J. would come in, lie on top of them and then move his pelvic area over their vaginal area is similar. Absent collusion, in my view it is likely that if it were necessary for me to go through the required analysis I could conclude that the probative value of this evidence is greater than the prejudice, particularly given this is a judge alone trial.
53However, the Defence has raised the issue of collusion. If collusion is present, it destroys the foundation on which admissibility is sought, namely that the events described by the various witnesses, testifying independently of one another, are too similar to be credibly explained by coincidence; Handy, supra, at para. 104. Where there is an air of reality to an allegation of collusion, the onus is on the Crown to establish on a balance of probabilities that the evidence of similar acts is not tainted by collusion. Handy, supra, at para. 112.
54The complainants have denied collusion but for the reasons that follow I am not satisfied that the Crown has met it onus of establishing on a balance of probabilities that the evidence of similar acts is not tainted by collusion.
Demeanour and age of the complainants
55In assessing credibility I will first consider the demeanour of the complainants recognizing that this is not a very useful way of determining credibility. I will also consider the comments of the Supreme Court of Canada as to the special considerations that should apply when considering the credibility of a child witness, given that the events S.D. and C.W. described are alleged to have taken place when they were children. Furthermore, the statements given by C.W. to police were given when she was a child. Children are vulnerable witnesses. Although the credibility of every witness that testifies must be carefully assessed, the standard of the “reasonable adult” is not necessarily appropriate in assessing the credibility of young children. As McLachlin J. (as she then was) stated in R. v. W.(R.)1:
Since children may experience the world differently from adults, it is hardly surprising that details important to adults, like time and place, may be missing from their recollection.…
56As Wilson J. stated in R. v. B. (G.)2:
…a flaw, such as a contradiction, in a child’s testimony should not be given the same effect as a similar flaw in the testimony of an adult…
57The court’s common sense approach to the evidence of children does not mean, however, that the evidence of children should not be subject to the same standard of proof as the evidence of adult witnesses in criminal cases.3 Here it is important to remember that the complainants were adults when they testified. Although these principles may have some impact on their memories of these events, since most of the alleged events occurred when they were children, they apply most to the earlier statements given by C.W. when she was 13 and 15.
58S.D. is clearly a bright young woman and when she gave her evidence, with rare exception, she was very calm as she testified and she showed very little emotion. There was nothing about her demeanour that assists me one way or the other in deciding this case.
59The situation is different with C.W. She testified for a much longer period and was cross-examined far more vigorously. Having given three statements to police and having testified at the preliminary inquiry, there were a lot of inconsistencies in her evidence that I must consider. She too is clearly an intelligent woman. As I have already stated and as I will come to, there were a number of times, as I listened to her evidence, that I found it to be quite credible, given the manner in which it was given.
60C.W. was much more emotional than S.D. as she testified and as Ms. Collins argued, she was clearly emotional when she first disclosed these allegations to police. Her emotions seemed genuine so they do provide some support for the allegations. As well, like S.D., I did not observe changes in her demeanour when she was cross-examined. It was clear that C.W. was listening very carefully to the questions. Virtually every time that Ms. Bojanowska prefaced a question by “You allege” C.W. would start her answer with “I know”. C.W.’s language is also a consideration. When she was asked in cross-examination to admit that she never told police when she gave her March 8th statement that she was uncomfortable she answered that it was evident in her “demeanour” that she was.
61Overall I did not find the demeanour of the complainants very helpful and have primarily relied on other aspects of the evidence to reach my conclusions.
Police Statements
62What dominated this case, however, were the inconsistencies in the evidence of the complainants and particularly in the evidence of C.W. I will review these as I review the evidence but generally speaking C.W. explained inconsistencies in different ways. She said, for example, that because she wanted to forget what happened that her memory has actually improved over time the more she is required to think about what happened. That seems counter-intuitive to the accepted notion that memory fades over time but on the other hand this evidence makes some sense to me, depending on the evidence and the circumstances. C.W.’s other explanation for giving new evidence was that she had not been asked the specific question before which I accept could be true in some cases. Other times when there was a clear inconsistency she sometimes explained the difference by saying that she was remembering a specific incident at the time and was now remembering a different one. I suppose that is possible but it is also a good way to account for an inconsistency that could be false.
(a) C.W.’s 1st statement – March 2006
63On March 28, 2006, C.W., then aged 13, gave a video-taped statement to police. She was in Grade 9 but she was not going to school. C.W. testified that she gave this statement as a result of something A. had said that got the ear of the CAS. In fact she testified that she thought of it more as a CAS statement although she knew a police officer was there. Apparently after an argument between A. and Mr. J., A. complained that Mr. J. was walking around and masturbating and CAS investigated. A. asked C.W. to support her allegations. This becomes relevant as Ms. Bojanowska argues that this was an occasion when C.W. and A. colluded to get Mr. J. into trouble. I agree.
64This statement is also important to C.W.’s credibility because she readily admitted at trial that much of this statement is not true and that she misled the CAS. She testified that she did not feel comfortable when she was interviewed even though she was questioned in the Gate House, a child friendly environment. C.W. said this was because she was now denying the allegations A. had made against Mr. J. because by the time she gave her statement A. and Mr. J. had reconciled and she didn’t want to go through this alone.
65It is significant that C.W. did not disclose her allegations of sexual assault at this time. She explained that she was “protecting” herself and was concerned that something like this would break the family apart and cause more problems, although she admitted that Mr. J. brought a lot of problems to the family and that a lot of conflict in the family was caused by him. As I will come to, the law recognizes that a delay in reporting is not unusual.
66What is clear is that C.W. was prepared to help her sister A. in March 2006, to make allegations against Mr. J., at least until A. reconciled with him. C.W. was not forthright about this. When she was interviewed, the representative from CAS raised the concern that she had talked and shared secrets with A. C.W. assured her that she had not. She agreed at trial that this was not the truth.
67Another aspect of this statement that is important to the question of collusion and the credibility of C.W. is that it was put to C.W. at trial that in fact A. had been “prepping” her for the interview. C.W. denied this and said that A. only told her what she had told police and that she had not told her what to say which C.W. agreed would be prepping. At the preliminary inquiry and in her evidence in chief at trial, C.W. gave the same evidence. However, Ms. Bojanowska then put the evidence C.W. gave to police on March 17, 2008 to her where she said that A. had told her exactly what to say and what not to. C.W. admitted giving this evidence but tried to resist its obvious meaning. After being pressed she admitted that “I suppose at the time it was true”. She was also taken to her evidence at the preliminary inquiry where she testified that A. told her to say things “to get him [Mr. J.] in trouble. They were true, well, to her, for her or from what she knew of him she said they were true, so she told me.” C.W. admitted that she gave this evidence and that she was telling the truth.
68I will come to the issue of whether or not Mr. J. was masturbating in front of the children as it is relevant to the “motive” argument but the fact that A. and C.W. colluded to get Mr. J. into trouble and that C.W. was prepared to lie and did lie to police and the CAS is a very significant factor in assessing her credibility even though I recognize she was only 13 at that time.
(b) C.W.’s 2nd statement – March 8, 2008
69C.W. gave a 20 minute video-taped statement to police on March 8, 2008 and this is the first time she disclosed these allegations of sexual assault by Mr. J. to police. This statement was given under oath; she was 15. It was taken at the police station by two officers; one male officer who was doing the questioning and a female officer who was taking notes. C.W. was quite sick with a chest cold, which she said at trial was aggravated by her emotions. She told Ms. Collins that she thought that at the time she honestly believed she was embarrassed. I will come to the circumstances that led to C.W. giving this statement.
70C.W. testified that she told police the truth. When it was put to her in cross-examination that she was trying to tell police everything she could remember she said that she “answered their questions”. She said she still had some reluctance and was not ready to come forward with this but she answered their questions as best she could. She hoped to give answers to the questions they wanted and she tried to give as much as she could remember. She said, however, it was the “memory of a child – especially memories I didn’t want to remember”. She said she didn’t want to go to police at all but the situation had been exposed so there was no point in “hiding”. She was, however, trying to preserve some sort of pride about something so shameful and embarrassing. She didn’t want to talk to strangers let alone people she was close to.
(c) C.W.’s 3rd statement – March 17, 2008
71C.W. gave a third video-taped statement to police on March 17, 2008 which was taken by a female officer and a woman from the CAS at the Gate House where C.W. testified she was more comfortable. She admitted that she never told police that she was embarrassed or uncomfortable but said that they didn’t ask how she was feeling. The statement was much longer; two hours and so there was more time for her to tell police what happened. C.W. testified that she was more candid when she spoke to police at this time as there was no point in protecting herself and keeping everything in anymore; she might as well tell the truth and get it over with as quickly as possible as the situation was now out in the open. That said, she didn’t tell them miniscule details. She answered their questions but didn’t give them a “blow by blow” of all the “horrible things” that had happened. She added that when a number of years have passed things “meshed together”. However, she gave them all the details they asked her for that she remembered. C.W. knew that she was making serious allegations and that she had to be honest. However, it was not something she wanted to admit to a room full of strangers.
(d) The preliminary inquiry – October 9, 2009
72At the preliminary inquiry in October 2009, C.W. gave evidence from a CCTV room. She knew it was important to give all the details but she was very distraught and testified that she may have left something out if she was not asked a question. C.W. testified that when she read the transcript of the preliminary inquiry in preparation for trial there were some things that she didn’t tell police because she was not asked. When she was asked what, she said she just remembered being more comfortable on March 17th and being asked more questions.
(e) S.D.’s statement – March 13, 2008
73S.D. gave a video-taped statement to police on March 13, 2008. She had missed her first police appointment scheduled for March 9, 2008; she testified that she slept in. The statement was under oath and S.D. was given the usual cautions about the consequences of not telling the truth. She had an opportunity to review her statement before she gave her evidence at trial. In cross-examination she confirmed that everything in the statement was true, that there was nothing that she wanted to change, that she gave the police all the details that she could remember and that she didn’t hold back on anything.
Masturbation
74As I said, the issue of whether or not Mr. J. was masturbating in front of the children is relevant to the “motive” argument; it is one of the reasons the Defence alleges the complainants wanted to get Mr. J. out of the house. It is also relevant to the credibility of C.W. as her evidence was inconsistent on this issue.
75S.D. testified that she caught Mr. J. masturbating probably more than ten times in the living room or her mother’s bedroom. She couldn’t say the number other than it was a lot. She admitted that she told police it seemed like it was every day. Her first vivid memory of this was when they lived at R. Road 2 when she came downstairs and saw Mr. J. on the couch in boxers with his penis out. She is sure that he heard her going into the kitchen. He didn’t say anything but he did put his penis away.
76S.D. admitted that Mr. J. would always put his penis away and that he wouldn’t openly masturbate. She told her mother that Mr. J. was masturbating and that she wanted him out of the house. She was upset with her mother because her mother didn’t do anything about it except she said she would talk to him.
77C.W. testified that she walked in on Mr. J. masturbating three or four times. She would walk into a room and catch him and A. also told her that he was “jerking off”. They wouldn’t talk about it but she would hear it when A. and Mr. J. were arguing. A. would tell Mr. J. that he was “weird and gross” and always “walking around in boxers and jerking off”. C.W. did not know if S.D. ever walked in on Mr. J. masturbating because they did not talk about it. She explained that she was closer to A. at that time and not as close to S.D. as she is now.
78C.W. testified at trial that she walked in on Mr. J. masturbating on a number of occasions when he was on the couch in the living room. C.W. recalled a time when she came home early and Mr. J. was in the living room and jumped off the couch and pulled his shorts back on. She also recalled an incident at R. Road 2 where she saw him in his bedroom when she came through the back door. At trial she said that his penis was out of the slit of his boxers. At the preliminary inquiry when C.W. described this she said Mr. J.’s boxer shorts were pulled down, but not off and she could see his penis. C.W. admitted giving this evidence and at first said she must have been thinking of a different incident. She then agreed that she was talking about the one incident she had testified to in chief.
79C.W. admitted that when she gave her statement in March 2006 that the only issue she raised concerning Mr. J. was that he was “scratching his balls” on top of his clothing, that she had never seen him do this without his clothing on and she never saw him pull his penis out. C.W. said that then she just wanted the issue to go away. C.W. was then reminded of her evidence in chief, which she agreed was accurate. When C.W.’s statement of March 17, 2008 was put to her where she said that she had not walked in to see Mr. J. doing anything, she said that it was near the end of her interview and so she was agreeing so she could be done. She admitted that it was not the truth and said that she wanted to end the interview.
80All of these inconsistencies raise further credibility concerns with the evidence of C.W. As for what actually happened, on this issue I prefer S.D.’s evidence to C.W.’s. Ms. Collins submitted that the fact both complainants testified that Mr. J. masturbated meant they were telling the truth on this issue and this enhanced their credibility. I accept that to a point but the fact that C.W. has given such inconsistent evidence is of concern. I accept that when C.W. was 13, in March 2006, that she may not have appreciated that when she saw Mr. J. “scratching his balls” that he was in fact masturbating. However, that does not explain her statement of March 17,2008. The further detail that C.W. has testified to now is significant and it concerns me that she is now trying to make this issue look worse for Mr. J.
81What is clear is that both S.D. and C.W. were upset that this was happening and upset their mother did not stop it. Furthermore, S.D. admitted that they talked about the fact that Mr. J. was masturbating since they both saw it. S.D. testified that she knows for a fact that C.W. saw Mr. J. masturbating and they talked together about the fact that he was always touching himself. I prefer this evidence and reject the evidence of C.W. that they did not discuss seeing Mr. J. masturbating.
82This conduct by Mr. J. was clearly upsetting to A., S.D. and C.W. and t legitimately gave them a reason to want Mr. J. out of their lives. The issue remains whether that motive, contributed to other issues, is sufficient to raise a reasonable doubt with respect to the allegations of sexual assault.
D.
83D. was living with the family sporadically until they moved to J. Street. At that point she came to live with them permanently; I presume that is when custody was entrusted to the complainants’ mother.
84S.D. testified that when they were living at R. Road 2 and 3, when she would have been 15 and 16, she saw D. lying in bed with Mr. J. under the covers when he was only in his boxers. She also testified that D. spoke about sexual things at a very young age and it didn’t make sense to her where she would be picking up stuff like that. S.D. did not know what was happening because they were under the blankets but she would go in and pull D. out of bed and tell her to get “out of here”. She could remember doing this twice. D. was like a daughter to S.D. and she told D. to stay away from Mr. J. She agreed that she didn’t do anything else even though she had alarm bells going off given what she knew about her own experience with Mr. J. She did not tell her mother about her suspicions with respect to D. but she did tell her that “he’s really inappropriate” and “I don’t like him”. She did not recall going to C.W. and telling her about her suspicions but I find that difficult to believe.
85In cross-examination S.D. was taken to her statement to police to refresh her memory and she agreed after doing so that one of her main concerns in speaking to police was because of her concern that if Mr. J. hadn’t already hurt one of her sisters or her niece he was going to because he didn’t care about them because they were “not his kids”.
86C.W. testified that Mr. J. was the main caregiver for D. and her two brothers who went to kindergarten in the afternoon. She said that she saw certain behaviours that “mirrored what I’d gone through” between Mr. J. and D. C.W. said she was hyperaware that Mr. J. was in the house and had “his eye on the next vulnerable girl”. According to C.W., Mr. J. would sit D. on his lap and bounce her up and down but there were a little more touches than were natural. She picked up on it quickly because she was suspicious given what happened to her. Once she thought Mr. J. could possibly be doing this to her niece she stayed home as much as she could. She was going to protect D. like no one protected her. C.W. became quite emotional when she said this. C.W. testified that she tried to “catch him” so when D. was nowhere in sight she would go find her. She would go into her mother’s bedroom without knocking on the door. She says she can only remember this happening four to five times spread out over a time period. Each time she would see D. on Mr. J.’s lap and he would push D. off and quickly adjust himself, pulling his shorts up higher or crossing his legs. She thinks that was to hide an erection and that he was trying to adjust himself so that it would not to be too noticeable. C.W. said she never saw his penis out but could still see the outline of his penis that was obviously hard although not standing up.
87C.W. testified that she never talked to Mr. J. about this. She would say “D. come here” and she would be upset with her and tell her “Don’t go into the room alone with him; don’t be by yourself with him.” She said that she didn’t know what happened when she was actually at school.
88C.W. testified that she never told A., her mother or S.D. at that time that Mr. J. was molesting D. She was unsure of when she told S.D. but said it was possibly a short time before S.D. went to the wedding in the Maritimes when S.D. disclosed her allegations to her Uncle Harry or it could have been when her uncle came to the house on the night of March 8, 2008 when they went to police and the complainants’ allegations were disclosed. She also said that she only told S.D. about D. once her uncle arrived. I will come to this.
89In any event C.W. recalled that she told S.D. over the phone that “I think it’s happening to D. as well” and that S.D. was all emotional; C.W. thought S.D. may have had a couple of drinks. S.D. was so upset that she got home very quickly and things just escalated from there. C.W. said that they went from “0-100 real fast” and then her uncle was there; which would make it March 8, 2008 when they went to police. According to C.W., S.D. did not have a clue about D. until she told her this and she believes that this is what prompted police to come on March 8, 2008. That however is contrary to S.D.’s evidence.
90In her statement to police on March 8, 2008, C.W. said that Mr. J. had moved onto D. when she, C.W., got older. There was some inconsistency in that C.W. told police that Mr. J. would make D. sit on his lap when in fact he would not force her. Similarly in her statement of March 17, 2008 C.W. told police that Mr. J. would always make D. sit on his lap and she would always disappear into the bedroom. On that occasion she said she would call D. out; that she did not go into the room and that she never saw Mr. J. doing anything to D. She never told police on either occasion about bursting into the bedroom unannounced and then what she saw, that she testified to at trial.
91In her March 17th statement C.W. also told police that D. was telling her Mr. J. was molesting her although in her March 8, 2008 statement she told police that D. never said anything to her. In cross-examination, C.W. agreed she never said at trial that D. told her Mr. J. was molesting her but said it was not asked. To explain the inconsistency in her statements she said that D. told her this after March 8, 2008. However, in her statement of March 17, 2008 C.W. told police that she thought D. told her this when they were living at one of the R. Road addresses. In any event she admitted that when D. told her this she didn’t call police, CAS, Rob whom she met with CAS in March who she admitted was a “nice guy” from CAS, her mother, A. or S.D.
92This factual issue is difficult. The Crown has not asked that I find that these allegations about D. are true and that it qualifies as similar fact evidence and so I do not consider it from that perspective. The Defence’s position is somewhat contradictory as it is with all of these allegations of other discreditable conduct. On the one hand the evidence that this ever happened is challenged and on the other hand it is relied upon as a reason the complainants had a motive to fabricate these allegations.
93Considered from the motive perspective only, C.W. testified that although she believed that Mr. J. was inappropriately touching D. she did not want to take Mr. J. from his sons. She went on to describe various things, however, that she did not want them to pick up from him. I did not believe this evidence. I find it impossible to believe that if S.D. and C.W. really believed that Mr. J. was molesting D., in the same way that they allege he molested them, and that they believed this was happening before March 8, 2008, that even if they did not disclose their own alleged abuse by Mr. J., I find that they would have done something about it. I accept that C.W. was younger-she was in Grades 5 and 6 at the R. Road 2 and 3 addresses so she might not be expected to take some action, but I would have expected her to do something as she got older.
94The other concern I have about C.W.’s evidence on this issue is how her evidence changed at trial. Like in many other instances her evidence at trial was more damning of Mr. J. on this issue and I find it difficult to believe that if she had observed the details that she testified to at trial that she would not have told the CAS or police sooner.
95S.D. was older and she admitted that D. was like a daughter to her; she watched her and her two brothers a lot. The fact that she did not disclose this alleged abuse when she believed it was happening suggests that she never came to this belief. In this regard S.D.’s evidence, which I will come to, about calling the police after a physical fight with Mr. J. is important. She was able to reach out to police then. Furthermore, she knew the CAS had been involved in removing D. from A.’s care.
96The fact that S.D. did not report her allegations to the CAS or police once she alleges that she believed this was happening and C.W. did not at least once she was older, and C.W.’s inconsistencies in her evidence are some of the reasons for why I have a reasonable doubt about their allegations.
Pornography
97The complainants both allege that Mr. J. looked at pornography on the family’s computer and that he kept pornographic tapes lying around. S.D. testified that she saw pornography on the computer and naked women on Mr. J.’s screensaver, which she thought was disgusting. She admitted that she never told the CAS this when they were at the house and she never told police this although she said that she did tell police there were porn videos in a garbage bag, some with covers and some not and that they were mixed in with the kids’ toys. S.D. testified that she did tell her mother about this and admitted that her mother did not get rid of Mr. J. even after she told her that he had pornography on his computer.
98C.W. also described how she would see pornography on Mr. J.’s screensaver and she too recalled walking into the living room and seeing the screen flashing nude pictures which she found disturbing as a child. It was there for a while and C.W. was sure her mother saw it and told him to stop. C.W. told police she saw porn on Mr. J.’s computer in 2006 or 2007 but she never disclosed this to the CAS.
99As for the porn tapes, C.W. testified at trial that they were in one box on a bookshelf and that the kids played with them like blocks. In chief she said that she was sure the porn tapes belonged to Mr. J. She told police, however, that Mr. J. had lots of tapes or that A. would have kept her own things and so she was sure they belonged to Mr. J.
100S.D. admitted that she and C.W. talked about the fact there was pornography on the computer since they both saw it. She wasn’t sure if they talked about the pornographic tapes.
101I did not find that this evidence was directly relevant to the credibility of the complainants. They both gave essentially the same evidence and it is clear that this is something that Mr. J. did that they did not like. It fits with the defence theory that they had a reason to want Mr. J. out of the house but without more it would not likely be a reason to fabricate these allegations.
Relationship between Mr. J. and A.
102S.D. testified that when she was probably 17 and still living with the family at J. Street, she saw A. and Mr. J. kissing once on the lips which did not appear to her to be a father/daughter kiss. After S.D. moved out, C.W. did not recall telling S.D. that she believed Mr. J. and A. were having a relationship but she admitted that S.D. may have inferred that. In fact S.D. admitted that C.W. told her after she had moved out that she believed A. and Mr. J. were sleeping together but that C.W. did not explain to her what she saw. C.W. also told her that A. and Mr. J. were getting high together on crack cocaine and that they were out all night together sitting in the car driving around. S.D. testified that when C.W. told her that Mr. J. was having sex with A. she told her that she didn’t want to hear about it. However, she admitted that this bothered her and she told the police in March 2008 that Mr. J. and A. might be doing drugs together.
103C.W. recalled that Mr. J. was hanging out with A., going to parties and clubs with her but she said that it happened mostly at the G. Avenue address but continued to the R. Road addresses. I believe that in this timeframe A. was still living with the family. According to C.W., Mr. J. spent more time with her than her mother and they were fighting like they were in a relationship; not like they were friends or stepparent/stepdaughter. C.W. said that they were always together and this was “not right with me”. C.W. thought nothing could be put past Mr. J.
104When C.W. was asked when she told S.D. that Mr. J. and A. were having sex together she said she thought she told S.D. at some point in time that she suspected they were having sex but she just couldn’t remember when. C.W. went on to say that this was the only time she reached out to her mother; she thought maybe she would do something as it had to do with her relationship with Mr. J. She said this confirmed to her how horrible the relationship was and the state of their family. C.W. testified that she couldn’t tell her mother about herself but this was based on her mother’s relationship with Mr. J. and if they broke up “I wouldn’t have to deal with him” and that this would be a “bonus”. She went on to say that she thought her mother would react as “usual if you catch your spouse cheating” and she thought it would be over with and that she would “never have to reveal all the things I’ve said because he’d be gone”. However, C.W. testified that nothing happened when she told her mother other than she argued with Mr. J., although she believed that their relationship was strained after that.
105I found this evidence of C.W. to be believable and it would be a reason for why she did not disclose the sexual assault that she alleges to her mother. The fact that both she and S.D. seem to have believed that Mr. J. was in a sexual relationship with their sister and doing drugs with her; the problem that caused A. to lose custody of D., would certainly be another reason for them to despise Mr. J. quite apart from their allegations of sexual assault and want him out of their lives.
Cheating on Mother/Prostitute
106C.W. suspected that Mr. J. cheated on her mother repeatedly. She testified that she and her mother were aware that he had two sons with another woman while he was with her mother, born in the same timeframe as her brothers. She said there was no reason to talk to S.D. about this as it was not a secret. S.D., however, said that she was only aware of one other son fathered by Mr. J. whom she thought was one to two years older than Z. She testified that she, therefore, did not believe that Mr. J. had been unfaithful to her mother. In this regard I prefer C.W.’s evidence as she testified that she actually babysat one of these other sons. However, given S.D.’s evidence and what C.W. said about this I do not believe that these other children caused much of an issue for the complainants at the time. The prostitute, however, is a totally different matter.
107S.D. admitted that C.W. told her that Mr. J. was unfaithful to their mother and that he had brought a prostitute into the house and had sex with her in their mother’s bed. C.W. was apparently home but Mr. J. did not appreciate this and she recalled money changing hands. S.D. admitted that she was furious about this and that she wanted her mother to be treated better. When C.W. was asked if she told S.D. about this, she said that she didn’t recall but she was sure that she did tell her at some point. They did tell their mother and all she did was change the sheets on their bed.
108When this occurred is not clear save that it was after S.D. moved out in December 2006. Accepting that this evidence of the complainants is true, this would have been a very good reason for them to strongly dislike Mr. J. and want him out of their lives. It is hard to imagine a more despicable thing that Mr. J. could have done in cheating on their mother; cheating on her in the very bed that he shared with her.
Relationship between S.D. and C.W.
109S.D. testified that she and C.W. were closer in 2008 because of everything that was going on. She wanted to be sure that C.W. was ok and so she spoke to her once a week. In cross-examination S.D. admitted that she wanted the best for C.W. and would protect her if she could. If C.W. was being hurt she would try to do something about it. She admitted that she told police that she felt responsible for C.W.
110S.D. admitted that she and C.W. talked about the fact that Mr. J. is an “asshole” and that she told C.W. that her mom was a “waste of a life” when she was really upset because she felt her mother was not paying enough attention to C.W.. S.D. felt Mr. J. didn’t care about them because she and C.W. were not his kids. She felt that he was treating the girls differently from his sons and that he gave his sons special treatment.
111S.D. admitted that she did discuss with C.W. the fact that Mr. J. was not helping her mother and he was hurting her more. S.D. also admitted that she knew that in the period before March 2008, Mr. J. was not working and not contributing financially to the household. This was also something that she and C.W. discussed and upset them both. According to S.D. they both would ask their mother why she would want this “loser” and S.D. said she probably said this many times. They didn’t sit down and have a conversation about Mr. J., however. She would vent when there were situations that occurred. S.D. denied, however, that she talked with C.W. about the fact that she wanted Mr. J. out of the house but admitted that she would have said this in front of C.W. and her mother. S.D. also denied talking with C.W. about the fact that the best way to get rid of Mr. J. would be to make up false allegations about him molesting them.
112C.W. was not as forthright about these discussions as S.D. was and I find S.D.’s evidence on this more credible. For example, C.W. said they did not talk about certain things because S.D. would see them too. I appreciate that S.D. also said they did not sit down and have a conversation, but given how strongly they felt about these things and given they were getting closer as sister, I am sure they certainly discussed matter enough so that they knew they both were unhappy about what was happening. Given what the complainants allege, I would expect them to have discussed the matters they complained about in their evidence even if it was more in the nature of venting.
Motive of S.D. to Fabricate these Allegations
113As I have already stated, the Defence position is that S.D. hates Mr. J. and that she made a number of unsuccessful attempts to have him removed from the family home before she resorted to making up these allegations with the help of C.W. I have reviewed a number of the matters that S.D. and C.W. complained about and discussed with respect to Mr. J. Although S.D. admitted to many difficulties between her and Mr. J. she denied making up these allegations to get him out of the house.
114S.D. testified that from the beginning she didn’t take to Mr. J. and she didn’t really like him and that she felt he was inappropriate with her mother when the kids were around. She described one incident before he moved in with them when they were at his place. He brought her mother into his bedroom while the kids were running around in their room and he turned the lights off. She did not give more details about this in chief but said that she thought this was inappropriate. In cross-examination she said that she turned the lights on and Mr. J. was hugging her mother but not kissing her. At the time she thought Mr. J. was disgusting. Ms. Bojanowska argued that S.D. suggested the incident was worse in her evidence in chief than what she admitted in cross-examination. I agree that there was an element of this but in any event this experience was obviously not a good start to their relationship from S.D.’s perspective.
115S.D. admitted that as time progressed her dislike of Mr. J. grew although she denied hating him. She testified that she didn’t like to be around him and although she wanted her mother to be happy she was not comfortable with Mr. J. living with them. S.D. admitted that maybe once she told Mr. J. “you’re not my dad and you can’t tell me what to do”.
116S.D. testified that she and Mr. J. didn’t see eye to eye on things and they fought physically with each other. She testified about incidents of physical violence between her and Mr. J. that started while they were living in G. Avenue They were arguing constantly; at least weekly, and C.W. saw a lot of it.
117In cross-examination S.D. testified that on one occasion after a fight, she took off out of the house and sat in a bus shelter and then called her mother at work and told her that Mr. J. had put his “hands on me”. She told her mother that she didn’t want to go home and be there with him; she wanted him “gone” and wanted to be living in a safe environment. S.D. admitted that she told her mother “I’m not coming back home until you get rid of him”. When she did go back home he was still there and she wasn’t happy about that.
118S.D. testified about another time when they lived at J. Street when she and Mr. J. got into a physical confrontation over the shower. It was put to her that this occurred in January 2005 but she couldn’t remember the date although she recalled that she was 17 years old at the time so it would have been in this timeframe. In chief she testified she was trying to get into the shower and had her stuff already there. Mr. J. wanted to go in before her and managed to. She turned on the hot water in the kitchen so he could take a shower in the cold. Mr. J. came out of the bathroom freaking out and grabbed her by her neck and started punching her in the head. She remembered trying to get him off her. Her sisters were screaming at him to let her go. Her mother was not there because she was working. She finally got free and ran outside and called police. S.D. did not have any injuries. The Crown did not ask whether or not Mr. J. was injured.
119In cross-examination S.D. admitted that she turned the water on or off in the kitchen to make the shower either too hot or too cold; she couldn’t remember which. When Mr. J. came out screaming she denied that she had a pretty good go at him and maintained that she was defending herself and not attacking him. S.D. admitted scratching Mr. J.’s face but said it was in self defence. She said that her head was sore to touch and bruised a bit but she had no visible injuries and did not need medical attention. She admitted that Mr. J. was taken to hospital. She was very upset and crying at this time.
120It is significant that S.D. is the one who called the police; she said she didn’t want to take it anymore and she trusted the police to help her. The police asked her what she wanted them to do and she said “I want him out of this house”. She did not tell the police that Mr. J. had acted sexually inappropriately towards her. S.D. testified that she wasn’t ready to tell anyone about it yet. She also admitted that she did not tell police that she suspected inappropriate behaviour between Mr. J. and C.W. or between him and D. S.D. admitted the police asked her to leave the house, not Mr. J., which left her feeling helpless and upset as she believed that Mr. J. was the one who assaulted her.
121C.W. denied that S.D. hated Mr. J. more as she got older. She said this hit its peak when S.D. was a teenager and they had physical fights but said that once S.D. moved out she “got over it”. C.W. described the fight over the shower and her evidence is quite different from S.D.’s in that she testified that S.D. scalded him and when he came out and they fought S.D. “beat him up” and that she beat him more than he beat her. She thought he was faking it though when he complained that he could not breathe and an ambulance was called. On this issue I prefer C.W.’s evidence and so this is an example of where I find that S.D. was not being honest with the court.
122This evidence is also relevant because it is an occasion when S.D. called police. Given what was happening with Mr. J. after S.D. moved out, as describe by the complainants, I do not believe that S.D. got over her hatred of Mr. J. These physical fights would have been a strong incentive to get him out of her life quite apart from the alleged sexual assaults.
123S.D. admitted asking her mother to get Mr. J. out of the house a couple of times especially when he put his hands on her. Her mother knew that they fought. S.D. agreed that she told her mother that Mr. J. was disgusting, that he had porn on his computer screen with kids in the house and that her mother was “not making any sense”; I presume because she continued her relationship with him. S.D. admitted that she had conflicts with her mother over Mr. J. In re-examination S.D. was asked what she meant by her a statement she had made in evidence that she “felt like I was on my own”. In answering S.D. got very emotional for the first time. She testified that she felt like her mother never understood her and that she felt like an outcast. According to S.D., she and C.W. did not talk about these physical fights but of course C.W. witnessed them.
124S.D. admitted that on one occasion she told her mother that Mr. J. was inappropriate with one of her friends while driving her home and she asked her mother to talk to him. She admitted it is possible at the time that she told her mother that she wanted her to get rid of Mr. J. but her mother didn’t.
125There is no dispute that as soon as she turned 18, S.D. moved out of the family home. This is despite the fact that she testified that she loved living with her mom, her sisters and her brothers; but she couldn’t stand living with Mr. J. She didn’t think he was good for their family. In re-examination S.D. said that in the period from December 2006 when she moved out to 2008 she stayed away from the family as much as she could. She did not visit the family home very often save for birthdays or holidays but she would ask C.W. how things were going.
126She denied fabricating these allegations and said she would never make anything up like that. She said that she would not want her brothers to find this out and that she would never want her brothers to be going through what they were now going through. She denied that the reason she went to police was that things got really bad in 2007 and 2008. In re-examination when she was asked why she would never make these allegations up, S.D. said that she didn’t want to hurt her mom, her brothers and go through this process. She would never force her family to go through something like this.
127In cross-examination S.D. said that she did not know that the police let Mr. J. go and did not press charges after C.W. gave her statement on March 8, 2008. She was taken then to her statement where she told police that her mother picked the girls up from the station and told them that the police had let Mr. J. go because they couldn’t press charges and he was back in the house. In her statement S.D. told police “So that didn’t do anything?” This statement is somewhat telling and was made before S.D. made her allegations.
128After S.D. went to police on March 13, 2008 to give her statement, Mr. J. was arrested and removed from the house and he hasn’t returned. S.D. denied being happy when Mr. J. was taken out of the house although she also said that she enjoyed the fact that Mr. J. was out of the house for her sake. She did say that it was a hard situation with the kids seeing their father taken away and she knew that her brothers missed him so she felt bad for that. However, she admitted that she did feel it was better for the kids not to be around Mr. J. because it was not a safe environment. S.D. also testified that her relationship with her mother was now better. At the time of the preliminary inquiry she had moved back in with the family but she said that she “had to”. This was not explored.
129C.W. was asked if S.D. did a number of things to try to get rid of Mr. J. She responded that S.D. didn’t really have to try because Mr. J. would put himself in situations where he would look bad and S.D. would tell their mother. C.W. admitted, however, that she told police on March 17, 2008 that the whole reason S.D. called police was to get Mr. J. out of the house although when asked why, she said it was because of the things Mr. J. had done to them, referring to these allegations. C.W. admitted that this was true. C.W. admitted that at this time she knew that S.D. hated him and that she wanted him gone. She also admitted that the overwhelming feeling in the house was that her mother was letting Mr. J. get away with this. I found this evidence from C.W. credible and prefer it to the extent is conflicts with S.D.’s evidence.
130Even without the allegations of sexual assault, given all of this evidence I can appreciate why S.D. would want Mr. J. out of their lives. He had caused conflict between her and her mother, they fought all the time including physically; enough for her to call the police and he hurt her mother by cheating on her and she did not like the fact that he was masturbating in the house during the day, even if he stopped once someone else came in. Add to this the fact she was upset about the unhealthy relationship she believed he had formed with A., and the fact she suspected he was sexually abusing D. were all compelling reasons for S.D. to dislike and more likely hate Mr. J.
Motive of C.W. to Fabricate the Allegations
131C.W. testified that her first impression of Mr. J. was that he was odd. However, she attributed this mostly to the fact that there was now a male presence in the home. She did get used to living with Mr. J. but it was not a stepdad/father-stepdaughter relationship. She recalled there were points in time when Mr. J. tried parenting but she didn’t see him as a parental figure and didn’t see him as someone who would discipline her. Mr. J. didn’t discipline her although he would try. She wouldn’t “allow it”.
132C.W. testified that things didn’t begin badly with Mr. J. but they started out slow and escalated to the point it was too much to handle. It was one thing to be molested in your own house and not feel comfortable around your own family but then things escalated to physical violence and constant police presence with police being called; she thought it would be too much for anyone to handle. According to C.W., police were always at the house and it was Mr. J. who called them. It was a constant thing that she remembers. It would be about a fight between Mr. J. and A. until they got to R. Road 2 when the police were called concerning a fight between S.D. and Mr. J.; I presume the fight over the shower.
133C.W. testified that once the abuse stopped there was a “weird sense of normalcy”; a phrase she used a lot in her evidence and that Mr. J. was like a “buddy” because they shared some common interests like playing the Sims; a computer game. Ms. Bojanowska put to C.W. that there is no way that she would do this if her allegations were true. C.W. said that when she was younger she avoided being close to Mr. J. but once she was older he had “moved on” and she was able to handle herself. C.W. said that she didn’t purposely go to talk to Mr. J. about her fears or seek him out for attention or affection but even so her evidence that Mr. J. was somewhat like a “buddy” was not credible.
134C.W. admitted that she wished her mother would get rid of Mr. J. and that she knew her mother could do better. She said that she wouldn’t have had to reveal things if Mr. J. had gone away and she could bury this and never have to speak of it. C.W. testified that she didn’t want to reveal the molestation. She then said “so why not show her [their mother] that he’s not the man you need to be with and be around your kids”. Mr. J. made it quite easy because he did numerous inappropriate things. C.W. wanted this “bad energy” out of their lives because a lot of bad things stemmed from Mr. J. However, she denied that she wanted Mr. J. out so badly she made up all this to get him out of the house.
Disclosure of Allegations Between the Complainants and Opportunity for Collusion
135As I have said, although the complainants have denied collusion I am not satisfied that the Crown has met it onus of establishing on a balance of probabilities that the evidence of similar acts is not tainted by collusion. First of all, as I have reviewed, they certainly discussed or ranted in front of each other their various complaints about Mr. J. masturbating in the house, which was also discussed with A. and their concerns about Mr. J. cheating on their mother and his relationship with A. and finally the fact he was not working. On their evidence they also discussed their concerns about D. at some point although for the reasons I have given I am not satisfied that they in fact had those concerns.
136I turn now to the evidence of when and how these allegations came to light and the opportunity for the complainants to collude. This evidence is important to the Crown’s similar fact application and to the Crown’s case generally.
137Turning first to the disclosure by C.W. to S.D., C.W. testified that she told S.D. about what Mr. J. was doing to her when they were living at R. Road 1 and she was somewhere between Grades 4 and 5. She had gone to bed early and woke up crying and she was very upset and she didn’t know why. She was in her own bedroom and when S.D. came in C.W. told her very bluntly; she “spit it out”, that Mr. J. was molesting her and that he had touched her. She could not remember what she told S.D. word for word but it would have been clear to S.D. that Mr. J. was molesting her. At the time she told S.D., C.W. testified that it was still happening sporadically but not like a routine like it had been in the W. Street apartment.
138There is an inconsistency in the evidence of C.W. as to when she made this disclosure to S.D. In her statement of March 8, 2008, C.W. admitted that she told police that she told S.D. when they moved the first time. C.W. agreed those were her words but said she was mistaken because she said she was not in Grade 5 when they lived at G. Avenue. C.W. said that this incident occurred at R. Road 1, which by my calculation would be when she was in Grade 4.
139C.W. testified that S.D. didn’t ask her any questions but she wanted to go to their mother’s room right away and tell her but C.W. told her “no”. C.W. said that there had been various situations of violence displayed by Mr. J. against A. and S.D. and she; C.W., didn’t want it to be directed to her mother. C.W. added that if something bad happens you’re supposed to be able to tell your parents but at that time she didn’t feel important to her mother. If she told her mother and her mother did not do something about it, she didn’t want her mother to not care. She didn’t think she could get over that and didn’t want to take that chance. This was a very compelling piece of evidence.
140S.D.’s recollection of this event is very different in that she says it happened much later, when they were living at R. Road 3 and she insists that C.W. did not tell her anything. S.D. testified that one afternoon when she came home from school she found C.W. in her room crying and sobbing and muttering the name Mr. J. She had never seen her like that in her life. C.W. didn’t tell her anything and didn’t want to talk about it. In cross-examination S.D. confirmed again that C.W. never said that Mr. J. did anything to her or anything inappropriate to her. She admitted that if C.W. had told her that Mr. J. had molested her, that would stick out in her mind and that she would have told her mother first and then seen what happened. She might have called police. She denied C.W.’s evidence that she; S.D., promised not to tell their mother.
141This inconsistency in the evidence between C.W. and S.D. about this incident is very important. If C.W.’s evidence is true it is likely that there was some discussion of the allegations they have made against Mr. J. between her and S.D. because I do not believe that S.D. would not have made some inquiries about why C.W. was upset about “Mr. J.” since on her evidence she had already been sexually assaulted by him. Furthermore, if C.W. really did tell S.D. that Mr. J. was touching her inappropriately I do not believe that S.D. would remain silent about it, whether or not Mr. J. had in fact sexually assaulted her. She had complained to police about herself before and given her feelings for C.W. she would not have ignored this no matter what C.W. asked. The fact the evidence from the complainants is so different on this point is also very concerning since for both of them it was a memorable incident. Certainly this raises some reasonable doubt as to whether or not C.W. made this disclosure to S.D. Both C.W. and S.D. cannot be telling the truth on this issue.
142S.D. admitted that she never went to her mother even when they lived at R. Road 3 when she had a suspicion that Mr. J. was doing something inappropriate with C.W. She always told C.W. just to be careful when she was around Mr. J. S.D. admitted that before the incident at R. Road 3 she never had any suspicion that Mr. J. was doing anything to C.W. She had not seen any inappropriate behaviour between Mr. J. and C.W. and saw nothing to raise her suspicions. If C.W.’s evidence of disclosure is true, then this evidence is also false. As I have already stated, one fact that I am confident of is that had C.W. disclosed to S.D. that Mr. J. was sexually abusing her, given C.W.’s evidence it was still happening, S.D. would have done something about it.
143Given my concerns about the motive of the complainants to want Mr. J. out of their lives and the credibility concerns I have, particularly with the evidence of C.W., this evidence is not inconsistent with the Defence theory of fabrication. Although there is no obvious reason why the complainants would make this conflicting evidence part of their alleged fabrication, the fact that there were differences in their allegations does not mean that they did not discuss and agree on the core of the allegation that they would make and simply not prepare a completely common “script”. Certainly at trial both S.D. and C.W. were alive to the question of collusion and they testified that they had not discussed any details; S.D. going so far as to say she was not told anything by C.W.
144According to both C.W. and S.D., S.D. did not tell C.W. anything about her own allegations at the time of this incident when C.W. alleges she made her disclosure. C.W. testified that she didn’t know anything about S.D.’s allegations then and always thought it was just her and that she was frustrated by this. This evidence was not believable as I would have expected, had C.W. made the disclosure to S.D. that she alleges, that S.D. would have said something in response if Mr. J. had also sexually assaulted her.
145S.D. testified that she never told C.W. that Mr. J. molested her and she insisted that she never told C.W. any details about her allegations. This evidence is at odds with S.D.’s evidence that when they had to go to the police station, I presume on March 8, 2008, she told C.W. “I know he’s done things to you and he’s done things to me”. When asked by Ms. Collins how she “knew” that Mr. J. had done things to C.W., she said that she had a “feeling” that he did things to her and went on to describe the incident when she found C.W. crying and muttering the name “Mr. J.” that I have already referred to. Again this evidence is puzzling and is at odds with her evidence that C.W. did not disclose anything to her.
146C.W.’s evidence about S.D.’s disclosure to her is very different although it is also internally inconsistent. In chief C.W. testified that S.D. told her that “something” happened between her and Mr. J. after S.D. told Uncle Harry and he had come to the house. She said that they talked on the phone and that S.D. didn’t give her specifics or details other than to say that she had also been touched inappropriately by Mr. J. C.W. testified that she knew how it felt to admit this out loud and so she didn’t ask S.D. any other details. It was all she needed to hear because as horrible as it was, she had assumed it was just her and then she found out it wasn’t and she thought she was not alone in this.
147In cross-examination C.W. testified that it was after she gave her first statement to police on March 8, 2008, that S.D. came to the house and took her and D. to her home and then S.D. told her something had happened to her. C.W. testified that they did not get into specifics at this time or any point in time. This suggested two discussions; one on the phone and one at S.D.’s house but significantly both conversations were purportedly after C.W. gave her statement to police on March 8th.
148This evidence was inconsistent with what C.W. told police. When she gave her statement on March 8, 2008, she said that S.D. had told her “maybe a couple of months ago” that Mr. J. used to touch her. When this evidence was put to her she admitted that “I guess this is the truth” and went on to say that she was remembering it differently now. In her statement of March 17, 2008, C.W. admitted that she said that S.D. told her about “her and Mr. J.” and about inappropriate touches and that he molested her a couple of months or a few months before C.W. spoke to police and that this occurred at S.D.’s house. She told police that S.D. did not give her any specifics save that Mr. J. used to do “stuff” to her; inappropriate touches. C.W. also admitted that at the preliminary inquiry she said that S.D. told her that Mr. J. used to touch her too and that this evidence was true.
149When it was put to S.D. in cross-examination that if C.W. said that she disclosed to her twice about what Mr. J. did to her, whether she was mistaken, S.D. said that she never told C.W. what Mr. J. did to her. She then went on to say, that she could have said he was inappropriate but she never gave C.W. any details about what he did to her.
150Similarly the inconsistency between the evidence of S.D. and C.W. as to what S.D. told C.W. is a concern. This evidence of S.D. is not credible and again, the evidence of C.W. makes more sense. I prefer the evidence of C.W. that there was some disclosure as she would have had no reason to give this evidence if it were not true. However, that is not enough to determine that S.D.’s allegations are true given the concern as to her strong motive to fabricate these allegations. The fact that S.D. denied her discussion with C.W. about these allegations suggests she was alive to the concern about collusion. I also have concerns about C.W.’s evidence because it kept changing. It is significant that at trial she testified that her discussion with S.D. was only after she gave her first statement to police on March 8, 2008. She must have appreciated that this would remove any argument of collusion. The problem, however, is that this evidence is totally at odds with her other evidence.
151What this evidence also demonstrates in my view is that there is a problem with the evidence the complainants gave when they testified that they did not discuss the details of these allegations. C.W. admitted that what she told police was true and on her evidence there was more than an opportunity to collude; there actually was a discussion. If there was in fact such a discussion, given the other evidence of problems with Mr. J. that the complainants discussed, I find they likely discussed more of the details than they have admitted. On C.W.’s evidence they knew about each other’s allegations a few months before they went to police. They were close and there is no reason why they would not have discussed at least the core of the allegations. Their clear sensitivity to the issue of collusion is also a clue that the discussion was more detailed than they admitted. Given my concern about their motive, they may have discussed enough to agree on the core allegation leaving the rest for each of them to decide.
152Ms. Bojanowska argues that there is other evidence which is relevant to the question of collusion. In cross-examination she took C.W. to her evidence at the preliminary inquiry on October 8, 2009, when in response to a question as to how she knew that S.D. wanted Mr. J. out of the house C.W. said that S.D. said: “Why do you want this …loser in the house for. All he does is like take his dick and just molest people and he’s just cussing people out and just actin stupid and doing stupidness [sic]. Why do we want him here, such bad person and a bad influence on the family.” C.W. said this evidence was the truth and that she now remembered the moment when S.D. said this. C.W. said that S.D. was upset and yelling and that she did not think that S.D. was talking to her. She testified that S.D. never said Mr. J. touched her with his dick. C.W. did admit that she was the only one present and that this statement was made before March 8, 2008.
153I agree with Ms. Bojanowska that this evidence also suggests that there was some discussion between S.D. and C.W. about these allegations. It makes no sense that S.D. would make this kind of comment if, on her evidence, she never disclosed to C.W. that Mr. J. was abusing her and C.W. had never told her this expressly either. That does not necessarily mean that the allegations are not true but it is more evidence of collusion.
154Given the inconsistencies between the evidence of C.W. and S.D. and the internal inconsistencies in the evidence of each of them; particularly C.W.’s evidence, I am very concerned as to whether or not they discussed these allegations before they went to police. When I consider this evidence with the overwhelming evidence that S.D. in particular wanted Mr. J. out of their lives, I am not satisfied that the Crown has proven on a balance of probabilities that the complainants have not colluded and at least discussed these allegations in a limited way before they went to police on March 8, 2008. This is reason enough to dismiss the Crown’s similar fact application as it would explain the degree of similarity we do have. However, the truth of the allegations by each of the complainants is still to be determined.
Delay in Disclosure to Police
155Both complainants were cross-examined on the fact that they delayed in disclosing these allegations to police.
156S.D. did not remember talking to the police in 2006 and it appears that she did not. She testified that the CAS did not speak to her although she was at the house when they were asking about A. and Mr. J. She moved out in December so she admitted that she would have been there for part of it. She did remember that Mr. J. had been asked to move out but she was not sure for how long.
157S.D. admitted in cross-examination that she waited nine years after the abuse she alleges occurred to her before she made her report to police. S.D. gave a number of reasons for this delay. She testified that she didn’t tell anyone about the sexual assaults because she was ashamed and sad and didn’t want anyone to get into trouble. She was scared about what would happen with her mom and Mr. J. and to them, the children, if she told. S.D. didn’t tell her mother even though she was very supportive and she knew that her mother loved her very much. She said it was very hard to talk about and was a hard conversation let alone as a child. She felt “gross” about it.
158According to S.D. her first disclosure of these incidents was to her Uncle Harry when she was in Nova Scotia with her mother and other family members (not C.W.) attending an aunt’s wedding. She remembered it was in February but could not remember the year. When she was asked to reconsider her evidence in chief during cross-examination she said it made more sense that it was in February 2008 because she and C.W. went to police in March 2008. She was 20 then not 19 as she thought before.
159In explaining why she told her uncle, S.D. testified they were having a very personal conversation and she was ready to open up. She was stressed and not happy and it “all just came out”. She also told her uncle that she thought Mr. J. was probably doing something to D. as well. S.D. denied disclosing this to her uncle because she saw him as another way of getting Mr. J. out of the house.
160S.D. was challenged on her evidence that she didn’t tell anyone what Mr. J. had done to her because she was “too scared to say anything” given that she had no problem in calling police on Mr. J. with respect to their physical fights. On this issue, however, I do not accept the Defence submission that this evidence would mean that S.D. also would have felt she could go to police with her own allegations. On her evidence the alleged sexual assaults were limited in number and occurred when she was nine or ten and they then stopped.
161The courts have recognized that there is no rigid rule on how women who have been sexually assaulted will behave. Some will make an immediate complaint, some will delay disclosure and some will never disclose the alleged assault. The reasons for if and when disclosure of an alleged assault is made are many and can include embarrassment, fear, and guilt. Standing alone, the timing of when an allegation of sexual assault is made must never give rise to an adverse inference against the credibility of the complainants.
162Generally the failure of a complainant to immediately report a sexual assault is not a factor that impacts on her credibility. As McLachlin J. stated in W.(R.)4 “victims of abuse often in fact do not disclose it, and if they do, it may not be until a substantial length of time has passed.” There is no inviolable rule on how people, who are the victims of trauma like a sexual assault, will behave. Reasons for delay are many.5
163There is, however, an aspect of S.D.’s delay in reporting these allegations that I do find to be relevant. S.D. admitted that she delayed in reported the alleged sexual assaults despite the fact that she suspected that Mr. J. was abusing C.W. and knowing that he was in bed with D. In fact she moved out in 2006 and left C.W. and D. there alone with Mr. J. despite her suspicions. S.D. said she couldn’t be in the house anymore and didn’t know what to do. She was young, scared and confused. She saw her mother with somebody whom she really cared about and didn’t want to hurt her mother. She felt she couldn’t talk to anyone. She denied knowing that she could talk to the CAS even though she admitted being at the home once or twice when the CAS was there. She was not involved in that. She had called the police before when she was in a physical fight with Mr. J. When asked why, S.D. responded that she was an angry kid that didn’t know what to do with her emotions and that she didn’t want Mr. J. to be in the house. I will come back to the significance of this.
164C.W. also delayed in reporting and admitted that she never told police before March 8, 2008, that Mr. J. was molesting her. When she met with the CAS in March 2006 she was introduced to someone named Rob who she admitted was a “nice guy”. She testified that she didn’t tell him about what had happened because she believed that the CAS would break up the family and she did what she had to do to “protect myself”. I accept this evidence given what C.W. would know had happened to A.
165It is clear from the evidence of C.W. that on March 8, 2008 Uncle Harry showed up at her house with a couple of friends. S.D. was vague about this and said only that when they got back to Toronto she guesses her uncle called police or confronted Mr. J. because she had to go and make a statement to police. S.D. did admit recalling that her uncle called her and said that he was going to be sure that Mr. J. left the house. She said she wasn’t home when her uncle and his friend came to the house and that she was not aware that he came with two men. My impression was that S.D. remembered more than she let on and she was trying to minimize her involvement in the events that led to the police being called.
166C.W. testified that when Uncle Harry came to the house she had not been expecting him. Her uncle encouraged her to go to the police station and give a statement, which she did.
167Although C.W. had earlier opportunities to report these allegations to police, her failure to do so does not mean that they are false. However, although she is not as old as S.D., certainly in the year or so before she went to police I have difficulty with her evidence that she believed Mr. J. was now molesting D. and yet she did not do anything about it. To that extent the delay in reporting is relevant.
168The delay in the complainants making these allegations is also consistent with the Defence theory that things got worse with Mr. J. in 2007 and 2008 and that is what prompted them to fabricate these allegations.
Opportunity for Mr. J. to Sexually Assault C.W. as Alleged
169It is the Defence position that C.W.’s evidence of these sexual assaults occurring regularly at the W. Street apartment could not be true because her mother was in fact home in the morning and took her to school. In this regard Ms. Bojanowska relies on the evidence of S.D.
170S.D. recalled that Mr. J. was working when he joined the family but she was not too certain where. He worked mostly nights so he was home during the day a lot. She testified that when they were living in the W. Street apartment they did not go to school nearby; their school was in the west end of the city. Their mom would get them up at 7 a.m. and would take S.D. and C.W. to school on the subway. She was able to do this as she was working at the Sweet and Savoury Bakery and later at another bakery near the Annex. According to S.D., although C.W. would sleep in her mother’s room sometimes before Mr. J. moved in, and after he moved in she always slept in the bedroom she shared with S.D. S.D. testified she was always dressed before C.W. and she sometimes went on her own if she was ready. Her mother would stay with C.W. to get her to school.
171If S.D.’s evidence is correct then as Ms. Bojanowska argued it would appear that Mr. J. would not have had the opportunity to be with C.W. alone as she alleged and as such she argues that the abuse could not have occurred.
172When C.W. was asked if her mom took her and S.D. to school when they lived at the W. Street apartment she said it was not how she remembered it. She testified she knew she was left alone with Mr. J. during the day although she couldn’t say if it was in the morning or afternoon. She said it couldn’t be the evenings because there would be people there.
173The evidence is not clear when the complainants’ mother started working at Dominion. C.W. recalled that her mother worked only briefly at the Sweet and Savoury Bakery and was then working for Dominion. S.D. testified that it was when she was in high school that her mother was working at Dominion (now Metro) downtown although she also said that when they were at living at G. Avenue and she got C.W. up for school, her mother was not usually home.
174Both complainants agree that once their mother started at Dominion she was gone before 7 a.m. and before they got up. S.D. said it seemed like her mother worked all the time. She thinks that at this time her mother worked Saturdays and she wasn’t sure about Sundays.
175S.D. testified that she went to daycare after school where her mother would pick her up. When asked whether C.W. was also at daycare she said she was there “for a little bit”. She was not asked to expand on this. S.D. also talked about going to Girl Guides directly after daycare and said that C.W. went there as well for a little while. When C.W. stopped Girl Guides and S.D. continued, her mother would still bring C.W. with them. When asked if she went to daycare C.W. said she remembered her mom picking her up from daycare.
176C.W. was expelled from junior kindergarten and had to go to senior kindergarten at a different school although she did not lose a year. As such, she was only at S.D.’s school for one year. S.D. was not asked if C.W.’s kindergarten was in the morning or not but according to C.W. it was in the afternoon. This would give Mr. J. the opportunity to perpetrate these alleged sexual assaults as alleged by C.W. For this reason I find that while C.W. was in kindergarten, or at least for some of that time, Mr. J. was alone with her during the day.
177When they were living at G. Avenue, S.D. said that C.W. would always be in their room when she woke up; they had bunk beds, and she would usually have to wake her up. S.D. did not remember having to go to her mother’s room to wake up C.W. S.D. had to leave the house at 8:20 a.m. although sometimes she left earlier if she had a practice as she was involved in various sports. S.D. always got to school because she loved it. She took the TTC or rode her bike to school. She believes that C.W. took the school bus to and from school. This means that there would also have been times when Mr. J. was home alone with C.W. and now Z. A. and D. were living with them but as I understand the evidence it was in a basement apartment.
Conclusion
178Having reviewed all of the evidence as I have set out in these reasons, considering first the allegations of S.D., the evidence is very compelling that she had several good reasons to hate Mr. J. and want him out of the house. She had her own good reasons quite apart from her allegations of sexual assault and she was clearly troubled about Mr. J.’s relationship with A. and the fact he was cheating on her mother with a prostitute. S.D. was out of the house by this time but these events could well have taken her over the top. Although I have concerns about whether the allegations made about what the complainants observed between Mr. J. and D. are true, it may have been that C.W. became suspicious that something inappropriate was happening and told S.D. this. Certainly on the evidence of S.D., she and C.W. were discussing all of their issues with Mr. J. Furthermore it is of significance that S.D. admitted that she believed Mr. J. was abusing C.W. and that he was abusing D. She felt responsible for both of this. If this evidence were true, although she may not have wanted to disclose her own allegations, I do not believe she would not have taken action to stop it by going to her mother or the police. Her failure to do so puts much of C.W.’s and her evidence into doubt.
179I have not concluded that S.D. was not telling the truth about these allegations. However, given my concerns about some of S.D.’s evidence and my finding that she had a strong motive to get Mr. J. out of the house, I am not satisfied beyond a reasonable doubt on her evidence that she was sexually assaulted by Mr. J. as she alleged.
180As for C.W., her evidence was riddled with inconsistencies. I would be surprised in a case like this that there would not be any and some inconsistencies are to be expected especially given the time between these alleged events and trial. I have commented on what I have concluded from those inconsistencies as I summarized C.W.’s evidence. I also accept that certainly by the statement of March 17, 2008, which was much longer and given in a more comfortable environment, that she would recall more detail. However, as I have stated as I reviewed C.W.’s evidence, a lot of her inconsistencies are significant. She did not seem to have as much animus towards Mr. J. as S.D., and at times her evidence seemed compelling but her evidence that he had become a “buddy” was incredible. She had already agreed to go to police to help A. albeit when she was 13 but she did admit that she lied then. Furthermore she too testified that she believed Mr. J. had, as she put it “moved on” to D. It is one thing to accept that she might not report her own allegations but given her love for D., if this were true I do not believe that she would not have immediately gone to CAS or police. Again although I would not conclude that C.W.’s allegations are not true, I have too many concerns about her evidence. I am not satisfied beyond a reasonable doubt on her evidence that she was sexually assaulted by Mr. J. as she alleged.
181In coming to these conclusions, having decided to dismiss the Crown’s similar fact application, I did consider Ms. Collins’ argument that the evidence of S.D. corroborated the evidence of C.W. on other facts such as the alleged masturbation, pornography etc. However, as I have reviewed, their evidence was not always the same and C.W.’s was often internally inconsistent.
182As the trier of fact I can say that even if I had granted the Crown’s similar fact application, the evidence in support of the Defence theory that the complainants have a motive to collude and make up these allegations in order to get Mr. J. out of their lives raises a reasonable doubt. Since the strength of the similar fact evidence must first be established, given my concerns about S.D.’s evidence, I would not have been able to find that her evidence corroborated C.W.’s insofar as these allegations are concerned even if I had granted the application.
Disposition
183Mr. J. would you please stand.
184For these reasons I find you not guilty of Counts 1 through 5 of the indictment.
SPIES J.
Released: February 6, 2015
Edited Decision released: April 2, 2015
CITATION: R. v. J., 2015 ONSC 266
COURT FILE NO.: CR09100007670000
DATE: 20150206
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
W.J.
Defendant
REASONS FOR JUDGMENT
SPIES J.
Released: February 6, 2015
Footnotes
- (1992), 1992 56 (SCC), 74 C.C.C. (3d) 134 at pp. 143-144.
- At pp. 54-55.
- R. v. B.G., supra, at p. 219, R. v. W.(R.), supra, at p. 143.
- Supra at para. 30.
- See R. v. D.D. (2002), 2000 SCC 43, 148 C.C.C. (3d) 41 at paras. 59, 63 and 65.