COURT FILE NO.: CR-12-40000013-0000

DATE: 20151009

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

A.A.

Defendant

Rochelle Liberman, for the Crown

Iryna Revutsky, for the Defendant

HEARD: October 14 to 21 and November 3, 2014 and June 15, 16 and 19, 2015

WARNING

A non-publication order in this proceeding has been issued pursuant to subsection 486.4(1) of the Criminal Code. By order of this court, any information that could identify either of the two complainants shall not be published in any document, broadcast or transmission.

aLLEN J.

REASONS FOR DECISION

BACKGROUND

The Charges

[1] This is a historical sexual abuse case. A.A. is charged under the Criminal Code, R.S.C., 1985, c. C-46 that from October 1, 1969 until December 31, 1977, he: contrary to s. 145(1)(a), had illicit sexual intercourse with M.B., his step-daughter; contrary to s. 149, committed an act of gross indecency with M.B., his step-daughter; contrary to s. 136, had sexual intercourse with a female person who is not his wife, without consent; contrary to s. 141, indecently assaulted M.B.; contrary to s. 138(1), had sexual intercourse with M.B., a female not his wife, and under the age of 14. A.A. is further charged that contrary to s. 149, sometime between, and including January 1, 1979 and January 31, 1979, he indecently assaulted L.S., a female person.

Proceedings

[2] This was a judge-alone trial. On October 15, 2013, the defence brought two applications, a third party application under s. 278 of the Criminal Code seeking to obtain M.B.’s and L.S.’s medical and therapy records and a s. 276 application seeking to cross-examine L.S. and M.B. on other sexual conduct involving M.B. and L.S. not related to the allegations before the court. For reasons I set out in a decision released on November 21, 2013, I refused the s. 278 application and allowed the s. 276 application with restrictions on cross-examinations.

[3] On June 15, 2015, the defence also brought an application seeking to qualify Dr. Jordan Peterson, a psychiatrist, as an expert on memory. For reasons I set out in a decision released on June 17, 2015, I refused to qualify Dr. Peterson as an expert.

[4] At trial, the Crown called both L.S. and M.B. as witnesses. The defence called A.A. and his sister Ms. F.S.

TRIAL EVIDENCE

GENERAL OVERVIEW

Background of Complainants

[5] The complainant M.B., born in 1965, is the step-daughter of A.A. As I will discuss later in the decision, M.B. believed until she was 30 years old that A.A. was her biological father. L.S., born in 1970, is A.A.’s niece by marriage. L.S.’s father, F.S., is the brother of A.A.’s wife R.A. M.B. and L.S. are therefore related as cousins. Both L.S.’s family and the A. family are from Trinidad and immigrated to Canada in the late 1960s and early 1970s. The families knew each other in Trinidad, and to a greater or lesser extent, some members of each of the families have socialized with each other in Canada.

[6] At the time of trial, M.B. was age 48. She is employed as a dietitian and a professor. She has an undergraduate degree in nutrition and a Master’s Degree in Education. She has been married for 23 years and has two teenaged children, a son, age 19 and a daughter, age 17. M.B. came to Canada on October 2, 1969 accompanied by an aunt. She was age four at the time. M.B.’s parents already lived in Canada when M.B. arrived. M.B. has one sibling, her brother St., who is five years older than her and who arrived in Canada about a year later to join the family.

[7] M.B. was age four to nine years of age during the alleged incidents of sexual abuse by A.A. In 1997 when she was age 30, at the time of her mother’s death, M.B. learned A.A. was not her biological father.

[8] L.S. was age 43 at the time of trial. She has been in a common law relationship with her spouse for 17 years and has two sons now ages 20 and 26 years. She was not employed outside the home at the time of trial. L.S. is the oldest of four children. She has two brothers and a sister. L.S. was eight years old at the time of the singular incident of alleged sexual abuse by A.A.

Background of A.A.

[9] At the time of trial, A.A. was age 81. He married his wife R.A. at age 18. A.A. moved to Canada in May 1969 and his wife arrived a month later. The two children remained in Trinidad until their arrivals in Canada. A.A. was employed in various maintenance and carpet cleaning jobs until he got a job at Bell Canada in 1979, from which he retired in 1996. R.A. worked as a home and office cleaner until her death in 1997.

[10] A.A. was born in 1933. At the time he was alleged to have abused M.B. at their home he was ages 36 to 41. He was 36 years of age at the time of the alleged abuse of L.S. The abuse of L.S. is alleged to have taken place at the home where L.S. lived with her family.

[11] While M.B. lived with her parents and her brother, the family moved from residence to residence on a regular basis. Various family members and friends would live with them on and off at times. A.A.’s family and his wife’s family did not socialize much in the 1970s. L.S.’s family would visit A.A.’s home occasionally. A.A. did not visit L.S.’s family’s homes.

THE CROWN’S EVIDENCE

Sexual Abuse of Complainants by E.S.

[12] E.S. is M.B.’s mother’s brother and L.S.’s father’s brother. E.S., now deceased, was arrested on June 2, 2010 and charged with various sexual offences against M.B. and L.S. that occurred in the late 1960s and 1970s. He pleaded guilty in 2012 to the charges and was sentenced. E.S. was born in 1956, and was 13 to 19 years of age when he committed the offences.

[13] The sexual abuse by E.S. was the subject matter of the s. 276 application. He was convicted of sexually assaulting L.S. and M.B. over a number of years, some of which coincided with the time of the alleged abuse by A.A. I allowed the defence to cross-examine L.S. and M.B. on this sexual conduct only for the permissible purpose of establishing whether M.B., and more particularly L.S., might have confused the abuse by E.S. with the abuse by A.A.

[14] L.S. testified E.S. started to abuse her on and off from about 1974/1975 to approximately 1994/1995, that is, from age four or five to age 24 or 25. E.S. was 17 to 37 years old at the time. E.S. used to live on and off with L.S.’s family from 1973/1974. L.S. testified the only type of sexual abuse E.S. engaged in during all the alleged incidents was oral sex. He would call her into the basement of their home and ask her to suck his penis. He did not touch her then or during any of the other incidents. L.S. alleges that before the family moved to San Roberto Way, where A.A. abused her, they lived at two other residences where E.S. abused her in the same way. L.S. alleges the abuse increased at San Roberto Way where E.S. slept in the basement and committed the majority of the abuse.

[15] M.B. testified that E.S. lived with them in their apartment on Bathurst St. for less than one year, although A.A. denies this. She testified that during that time, when she was in grade one, E.S., on about ten occasions, took her to the locker room in the basement of the building and forced her to give him oral sex.

M.B.’s Claim

M.B.’s Testimony about Abuse and Locations of Abuse

[16] It is M.B.’s evidence that A.A. began sexually abusing her from the time she arrived in Canada in October 1969 at age four until she was nine years of age. M.B. gave evidence about the many apartments her family resided in during the period of the alleged abuse. With the exception of M.B.’s evidence about living in one apartment which A.A. denied, M.B.’s and A.A.’s evidence about the family’s places of residence was in general agreement. Their evidence about the layout and size of each apartment was mainly consistent.

The Attic Apartment

[17] When M.B moved to Canada her parents lived in an attic apartment on Shermont Rd. and Lawrence Ave. W. (“the attic apartment”). M.B. lived there with her mother and father for about one year. Her brother, St., had not moved to Canada yet. That apartment had one bedroom, a living area, a kitchen and a bathroom. M.B did not recall anyone else living with them in the attic apartment.

[18] A.A.’s evidence supports M.B.’s testimony that M.B. shared a bed with him and her mother at the attic apartment. This is where M.B. says the sexual abuse began. M.B. testified her mother worked every day at cleaning jobs. She did not recall exactly what her hours were. M.B.’s mother left in the morning and returned in the afternoon. M.B. testified that when they lived in the attic apartment, she attended kindergarten a half-day from 9 a.m. – 12:00 p.m. She said A.A., who she thought did not work at this time, took care of her when her mother was at work. A.A. would take her to school and pick her up afterwards.

[19] M.B. testified she has always recalled the trauma of A.A.’s sexual abuse from the time it started until it ended.

[20] M.B. testified that more than once weekly, during the day or night when no one was around, A.A. would take her to the shared bed, take her clothes off, kiss her, fondle her genitalia and force her to perform oral sex on him by putting his penis in her mouth. M.B. stated that A.A. would say words to the effect of: “You are daddy’s little girl. You have to do what daddy wants. You have to believe daddy. This is our little secret. Don’t tell anyone because no one will believe you.”

[21] M.B. testified she was scared to tell anyone and did not think anyone would believe her. She thought this was what she was supposed to do with her father. She said she did not know any better.

The Bathurst Apartment

[22] About a year later, the family moved to an apartment at Bathurst St. and Lawrence Ave. W. (“the Bathurst apartment”) where she thought they lived for about one year. M.B. was age five to six years old and attending school full-day while she resided there. The Bathurst apartment was a two-bedroom apartment. Her brother St., who was five years older than her, arrived from Trinidad. He slept in one of the bedrooms. M.B. shared the other bedroom with her parents. At that apartment she had her own bed.

[23] M.B. testified her mother maintained the same work hours as when they lived at the attic apartment. M.B. stated that A.A. worked at this time. M.B. testified she does not recall when A.A. began to work but she remembered that he began to work at maintenance jobs and then at Bell Canada after a few years. A.A.’s evidence is that for the most part he was employed on jobs where he worked evening shifts from about 10 p.m. to 6 a.m. M.B. could not recall his shifts but indicated he was the main caregiver and took her and her brother St. to school and picked them up.

[24] M.B. testified when no one was around during the day or night, A.A. would sexually abuse her on her parents’ bed one to two times per week. He would kiss her, take both of their clothes off and fondle her body. He would put his penis in her mouth and force her to perform oral sex on him and he would perform oral sex on her. He did not wear a condom and would have an erection and ejaculate on her body and in her mouth. He graduated to putting his penis into her vagina which M.B. said she found very painful. M.B. stated that on each occasion, A.A. would utter the same words about secrecy to her that he said when he abused her at the attic apartment.

The Wilson Ave. Apartment

[25] M.B. testified that after about one year, the family moved to an apartment at Wilson Ave. and Hwy 401 (“the Wilson apartment”). A.A. testified the family never lived in an apartment in that area. M.B. testified her mother worked and A.A. was the main caregiver at this apartment. She did not recall if he worked at this time. A.A. drove her and her brother to and from school.

[26] M.B. testified the apartment at Wilson Ave. had two bedrooms and the family lived there for less than one year. She testified the sleeping arrangements were similar at the Wilson Ave. apartment. Her brother St. had his own bedroom and she shared a bedroom with her parents. M.B. testified she did not recall whether she had her own bed in her parents’ bedroom or slept with them.

[27] Again, according to M.B., one or two times per week when no one was home, A.A. would sexually abuse her in her parents’ bed in the same manner as he did at the Bathurst St. apartment which included forced intercourse. He did not wear a condom. She said she thought the abuse was more frequent at the Wilson Ave. apartment and more often in the daytime. He would repeat the same words about keeping the secret. M.B. stated that he added that if she told anyone it would break up the family and she would end up in foster care. M.B. said she trusted both of her parents. She testified that as a child they were all she had.

The Lotherton Apartment

[28] M.B., her parents and her brother next moved to an apartment in a complex at Lotherton Parkway (“the Lotherton apartment”). M.B. recalled that an aunt and uncle, who were her mother’s siblings, lived with their own families in separate apartments at Lotherton. M.B.’s family moved out in less than one year, M.B. said, because of disputes between the families. It was also a two-bedroom apartment where M.B. shared a bedroom with her parents but had a separate bed. Her brother St. slept in the second bedroom. M.B. testified the abuse at Lotherton was the same as at the previous apartments, about one or two times per week. A.A. would repeat to her the same words about secrecy.

The Saranac Apartment

[29] The four family members next moved to an apartment on Saranac Blvd. (“the Saranac apartment”). According to M.B., it was also a two-bedroom apartment where she shared a bedroom with her parents but slept in a separate bed. M.B. lived with her parents at this apartment from about age eight until just after she finished university at age 22. She moved out at age 24.

[30] According to M.B., during her younger years there, A.A. was the primary caregiver for her and her brother. Then later the parents played more of a joint role. While the family lived there, her mother continued with her home and office cleaning jobs and her father worked at maintenance and cleaning jobs and then at Bell Canada.

[31] According to M.B., the abuse continued but was less frequent as she grew older. It happened about once or twice per month. M.B. testified she began to understand at this time that what A.A. was doing was wrong. He began to force sex on her. M.B. recalled a time when A.A. pinned her down with his weight on top of her. He forced her to perform oral sex on him and he forced oral sex on her. He would push her arms down and force his penis into her vagina. She at no time remembered him wearing a condom. M.B. testified the sexual abuse stopped at this apartment when she started menstruating at age nine.

Cross - Examination of M.B.

[32] M.B. produced her school report cards which contained records of her attendance and assessments of her academic performance and her personal disposition. There were a considerable number of days of absenteeism. Defence counsel cross-examined her about teachers’ assessments of her good academic performance and the descriptions of her as being a polite, relaxed, happy and co-operative child. M.B. agreed she had no problems in school. In answer to questions about why she did not report the abuse to the school, she said she was good at doing what she was told. M.B. asserted this did not negate her experiences with abuse because she was warned by A.A. not to speak to any strangers about what was happening between her and A.A. This, she said, caused her to become a private person.

[33] M.B. testified that as a child she was able to dissociate herself from the abuse. She said, however, that as an adult, particularly after the birth of her first child, she was unable to control the memories. She started experiencing flashbacks of the abuse, the first of which came after the birth of her first child.

[34] Defence counsel cross-examined M.B. about the flashbacks of the abuse she had as an adult. M.B. emphasized she never forgot the abuse and that the flashbacks were of abuse she recalled. She clarified that a triggering occurrence like an event, smell or a sight could bring on a flashback.

[35] Defence counsel also questioned M.B. about other family members and friends who lived with them at their various apartments. She was asked about F.S. (her mother’s brother), Uncle J.W.K. and his wife, and L.R. (her mother’s sister) living with them at the attic apartment. M.B. indicated she did not recall them staying there.

[36] M.B. said she recalled Aunt N., Uncle B. and a family friend, V.L.R., living with them at the Bathurst St. apartment for periods of time until they got their own places. According to M.B., they did not all stay there at the same time and no one stayed for the entire year. It is her evidence E.S. lived with them there for less than one year when he was school age. It was during this time she says he abused her in the basement. M.B. testified recalling relatives who lived in the same apartment complex at Lotherton and Saranac dropping by to enjoy her mother’s cooking.

[37] Defence counsel asked M.B. whether she recalled her father and F.S. working together at the Constellation Hotel and she said she did not. She testified she knew her mother worked during the day and night; that A.A. worked when they lived at the Bathurst apartment; and that he was home more often and he picked her up after school.

[38] Defence counsel questioned M.B. about her inquiry with the police about what the chances were for a conviction with two perpetrators. M.B. countered that she did not ask that question. The relevant portion of the recording of her police interview was played in open court. The question M.B. actually asked was whether the chances were better with two accusations. She testified her concern in asking that question was that with her accusation alone there would only be the word of a four to nine year old girl against adult perpetrators. She testified when she found out in 1997, in her 30s, that there were others she felt she could possibly be believed.

[39] Defence counsel asked why it took 13 years, after she found out in 1997 about the other victims, to go to the police. She stated she put everything on hold while she went to counselling. She had to decide whether to confront the perpetrators by pressing charges or forgo a complaint and move on. She testified she was on a roller coaster sometimes wanting to go ahead and then changing her mind. She said it was not L.S. who ultimately convinced her, it was her own assessment of herself, her family and her life that led her to go to the police. Two months before going to the police, when L.S. said she was going ahead, M.B. told L.S. she was not ready. After some soul searching and talking to her husband she decided to go ahead.

[40] M.B. went to Trinidad in August 1997 to spread her mother’s ashes. Defence counsel put to her that A.A. purchased the plane tickets. M.B. said she did not recall that A.A. bought her tickets and posited that she and her mother had a joint bank account from which she believed she paid for the tickets.

[41] Defence counsel also cross-examined M.B. about a letter she left for her father at the family condo after she returned from Trinidad in August. The letter, written nearly 20 years ago, was not in evidence. M.B. testified as to what she said in the letter.

[42] The letter is an out-of-court prior consistent statement by M.B. not admissible for proof of the truth of its contents to bolster M.B.’s credibility about the allegations against A.A. The letter is allowed as part of M.B.’s narrative, as proof of her state of mind regarding A.A., as well as to test A.A’s knowledge of the letter and its contents: R. v. Stirling, 2009 SCC 10, at para. 12, (S.C.C.); R. v. D.G.S., 2012 MBQB 19, 2012 M.B.QB 19, at paras. 15 and 16, (Man. Q.B.); and R. v. Ay, 1994 8749 (BC CA), 1994 8749 (BC CA), 93 C.C.C. (3d) 456, at paras. 45 and 46, (B.C.C.A.)].

[43] The letter in essence told A.A. he should feel the fear she felt as a child of waiting, waiting to see if she would press charges against him. She told him not to contact her and her family and that she would one day press charges. M.B. testified she wrote the letter because she wanted to impress on A.A. she did not want anything to do with him. She wanted to convey to him she was glad he was not her blood relative because she did not want the blood of a perpetrator running through her veins.

[44] In view of her allegations against him, defence counsel questioned M.B. about her allowing A.A. to babysit her son after her mother’s death. M.B. admitted this. However, she said she allowed him to babysit her son, not her daughter, on one occasion while she ran errands when her daughter was new born. She felt her son was not in danger on her belief A.A. only abused girls.

[45] Defence counsel cross-examined M.B. suggesting the family never lived in an apartment on Wilson Ave. M.B. was not able to describe the building except to say it was a two-bedroom low rise. However, M.B. insisted the family lived there for about one year and did not recall any other relatives living there with them.

[46] A video of M.B.’s wedding in 1991 was shown. Defence counsel cross-examined M.B. about her wedding where A.A. walked her down the aisle. The video shows A.A and M.B. appearing close and happy while getting ready for the ceremony. M.B. is smiling and fixing the boutonniere on his lapel. M.B. explained the wedding and what the participants did was orchestrated by the photographer and videographer. M.B. wept in court while the video was playing. She testified she asked her father to give her away because in spite of all of his abuse she was raised by him as her father and she still loved him.

Therapeutic Help

[47] M.B. started therapy in 1997 with Catholic Family Services. She received counselling for one year. She told the therapist she dissociated herself from the abuse throughout her childhood but she never forgot the abuse by A.A. She started taking medication in 1998 for about six months for general depression and post-partum depression and received treatment on how to control her flashbacks.

L.S.’s Claim

The Incident

[48] L.S. described one incident of sex assault by A.A.

[49] L.S. testified she was not close to M.B. growing up but they grew closer after M.B.’s mother died and they had their children. L.S. turned age eight in November 1978. The alleged incident involving A.A. occurred in January 1979.

[50] L.S.’s family had gone on a family vacation to Trinidad at Christmas 1978 and returned within the first weeks of January 1979. In January 1979, L.S.’s family lived at 7 San Roberto Way. L.S. testified A.A. came to pick her family up at the airport, her mom, dad and three siblings. Her dad is F.S., A.A.’s friend and A.A.’s wife’s brother. L.S. does not recall the ride home. She testified she recalled it was dark when they arrived home and that she was in and out of sleep. She recalled everyone was getting out of the car and that she was the last one out of the car.

[51] L.S. testified she recalled being lifted up out of the car by someone and being taken into the doorway of the house. She was not wearing winter clothes because they had just arrived from Trinidad but she did not recall what she was wearing. This person was holding her with his arms under her. L.S. testified she did not at the time know who was carrying her. But she felt the person use their hand to rub her vagina through her clothes. She testified her body tensed and she jumped down. It was not until she jumped out of the arms of the person that she realized who touched her. L.S. testified that after she got down she looked behind her and she saw A.A. She said other family members had already gone inside the house so no one else was around at that time.

Cross - Examination of L.S.

[52] L.S. was cross-examined at great length.

[53] She was cross-examined about whether her therapists advised her to go to the police. L.S. testified she was not encouraged to go to the police by her therapists because that approach was not regarded as part of the therapeutic healing process. It was her decision alone. L.S. was asked whether she was dependent on M.B. and others to support her decision to go to the police. She responded that she was not, although she did ask the others if they were going to go to the police. She said she was planning to go to the police whether others went or not.

[54] In answer to the question whether L.S. might have mistaken A.A. for E.S. when she was being carried into the house, L.S. said that was not possible. She described E.S. as very thin with long hair and as being much younger than A.A. who was middle-aged and stocky. She explained as well that the abuse and the venues of the abuse were not the same.

[55] The defence also questioned L.S. about her memory, asking what she meant when she said she would blank out during the abuse. She explained she meant she would blank out what was happening at the time but this did not mean she would forget what had happened.

Therapeutic Help

[56] L.S. saw her family doctor for anxiety and panic attacks from about age 12. She did not tell the family doctor about the abuse, only about the symptoms. From about 2005 until early 2010 she sought therapy from various treatment providers for panic attacks and anxiety. L.S. attributed this condition to her abuse by E.S. and A.A. and to her parents’ failure to protect her. She was diagnosed with P.T.S.D. and prescribed medication. L.S. testified she has always remembered A.A.’s abuse in spite of the passage of time.

M.B.’s and L.S.’s Delay in Reporting Abuse and Decision Go to Police

[57] M.B. testified that as a young child she was afraid to tell anyone about what A.A. was doing. In her young mind she trusted him and believed his words of warning that she should not tell anyone. In the earlier years, she thought as a daughter that she was supposed to do those things with her father. She believed her father that if she told anyone she would not be believed and she would break up the family and have to go to foster care. M.B. testified she never told her mother about what A.A. did. Her mother had a long battle with breast cancer from 1990 and died in 1997. She wanted to tell her mother but did not want her to die with that on her mind.

[58] L.S. testified she told her mother about the abuse in 1985 when she was age 15. She tried to demonstrate on her brother how E.S. abused her. This is also an out-of-court prior consistent statement which is admissible only as part of L.S.’s narrative about her abuse and not as a basis to bolster her allegations against A.A.

[59] L.S. testified her mother did not believe her and left it to her to get therapy if she wanted to. She said later in life she admonished her mother for not protecting her as a child. By the young age of 17 years, L.S. had two children with her boyfriend and was still living in the family home.

[60] In 2005, L.S.’s brother’s daughter told L.S. her father had abused her. This is hearsay evidence that I do not accept for its truth. I allow it as part of L.S.’s narrative about abuse in her family and what she said was one of her motivations to report her own abuse.

[61] L.S. explained she became the black sheep of the family when she reported the abuse to C.A.S. and the police. She first called the C.A.S. and she followed their instruction to call the police. C.A.S. apprehended the brother’s children and arranged for them to stay with L.S. and she followed the authorities’ prohibition not to allow the brother any contact with them.

[62] Defence counsel cross-examined L.S. about why she reported the abuse of her niece in 2005 and not her own abuse. L.S. responded that at the time she had two young sons and lived a life of unusual chaos. She lived amid family threats against her for calling the police and threats from her father not to report his brother, E.S. L.S. explained that she felt obligated to report the abuse because she felt her niece, as a child, was in need of protection. L.S. testified that in 2010 she reported her own abuse because she felt compelled to do something to stop the abuse of the children in her family. She felt A.A. and E.S. should be called to account.

[63] M.B. and L.S. testified about another motivator to report their abuse. There is an area of hearsay evidence from a cousin, Su., that I accept only for narrative purposes and not for the truth of her statement. There are also other out-of-court prior consistent statements to each other (M.B. and L.S.) and to others by M.B. and L.S. that allege abuse by A.A. and E.S. that I also accept only for narrative purposes and to explain M.B.’s and L.S.’s motivation to go to the police. This evidence is not admissible to support their credibility on their allegations against A.A.: R. v. Stirling, at para. 12; R. v. D.G.S., at paras. 15 and 16; and R. v. Ay, at paras. 45 and 46.].

[64] When M.B. attended the police, she went with L.S. Her connection to L.S. formed after her mother died. After the death, M.B. first disclosed her abuse to a cousin Su. Cousin Su. told M.B. that both A.A. and E.S. had abused her too. Cousin Su. and L.S. shared a close relationship and disclosed their abuse to each other. At this time, M.B. and L.S. mutually disclosed to each other that A.A. and E.S. had abused them. They became closer at this time and would speak to each other by phone a few times per week.

[65] M.B. also found out at this time that A.A. was not her biological father. She testified she also sought therapy at this time and decided with the support of the therapist to move on with her life. So she moved on but thought one day she would go to the police. M.B. testified her children were only age one and four months at the time and with her family responsibilities and emotional issues, she did not have the mental strength to disclose her abuse to the police. Her focus for years was on her family. She and L.S. talked over the years and at certain points spoke about going to the police but often either one or the other of them were not ready.

[66] L.S. testified when she decided to go to the police, she was adamant she was going to do it even if she had to do it alone. According to L.S., M.B. was more reluctant at first to go to the police. L.S. testified that without making a plan she called M.B. the night before she was going and M.B. agreed to meet her. M.B.’s youngest child had turned age 13 and she decided this was the time to make the move. M.B. and L.S. made their statements to the police on April 27, 2010.

THE DEFENCE’S EVIDENCE

A.A.

Regarding M.B.’s Allegations

[67] A.A. stayed with his sister Ms. F.S. for a month when he arrived in Canada in May 1969 until his wife R.A. arrived the following month. He testified he immediately got employment in maintenance at the Constellation Hotel.

[68] A.A. testified R.A.’s brother, F.S., moved in with them at the attic apartment. He testified the apartment had one large bedroom, a living room, kitchen and bathroom. He confirmed that M.B. arrived to live there in October 1969.

[69] A.A. confirmed M.B.’s evidence that at the attic apartment M.B. slept in the same bed as he and his wife. He testified M.B. did not start school right away. They eventually got her into kindergarten where she attended a half-day. A.A. confirmed he took her to school and picked her up.

[70] Unlike M.B., A.A. testified that the family stayed at the attic apartment for two years, not one year. He said F.S. moved there with them in 1970. A.A. said after L.R. moved in, F.S. and L.R. slept together on the big chesterfield in the living room. A.A. testified L.R. did not work but was supported by F.S. and R.A. He said M.B.’s Uncle W. and his wife also stayed at the attic apartment for a few days after they brought M.B. up from Trinidad until they then moved to their own place.

[71] A.A. flatly denied sexually assaulting M.B. in any way at the attic apartment. He denied engaging in any of the acts M.B. described in her testimony.

[72] A.A. confirmed M.B.’s evidence that M.B.’s brother St. came to Canada in 1971 when they were living at the Bathurst apartment. At this point L.R. moved to Hamilton and F.S. moved with his first wife into the building next door. F.S. would still come to visit A.A. at the Bathurst apartment. A.A. confirmed he and his family were not close to any of the S family except F.S.

[73] A.A. testified a friend, V.L.R., then about age 36, came from Trinidad to live with A.A.’s family. V.L.R. shared the large bedroom with the brother St. A.A. confirmed he, R.A. and M.B. shared the other bedroom. A.A. testified they lived at Bathurst for more than one year and V.L.R. was the only other adult who lived there. Contrary to M.B.’s evidence, A.A. said E.S. never lived at the Bathurst apartment with them but would come and visit because he lived nearby. A.A. said he was not aware of the basement that M.B. described at that apartment. He said he did not think there was a basement there but said there might have been.

[74] When the family moved to the Bathurst apartment, F.S., Uncle W., and A.A. worked in maintenance jobs at Eatons working, Sunday to Saturday from 10:00 p.m. to 6:30 a.m. R.A. worked at her cleaning job from 9:00 a.m. to 3:00 p.m. A.A. would drop R.A. off at work and pick her up.

[75] A.A. testified that when they lived at the Bathurst apartment, V.L.R. went to school and worked. According to him, she would sleep, get up and go to school, and then go home and sleep, and get up and go to work. M.B. and St. would be at school from 9:00 a.m. to 3:30 p.m. A.A. said he and V.L.R. would be at home when the brother St. and M.B. arrived home after walking home from school. By that time R.A. would be home to cook meals.

[76] A.A. flatly denied sexually assaulting M.B. and specifically denied engaging in any of the acts she testified happened at the Bathurst apartment.

[77] Regarding the apartment M.B. said the family lived in after the Bathurst apartment, A.A. denied ever living on Wilson Ave. He testified the family next moved to Lotherton and then Saranac. A.A. testified they moved to Lotherton in the 1970s. Contrary to M.B.’s evidence, A.A. testified that the Lotherton apartment had three bedrooms, not two. He said he, R.A., M.B., the brother St., and V.L.R. lived there. He said the apartment flooded so they broke the lease and moved to Saranac.

[78] Again, A.A. flatly denied sexually assaulting M.B. at Lotherton. He denied committing the acts she alleged in her testimony.

[79] A.A. testified the family lived at Saranac from 1973 to 1988. When the family lived at Saranac, other family members of A.A., including his parents who emigrated from Trinidad, moved nearby to their own apartments on Covington Ave. which is next to Saranac. He said M.B. would get together with her cousins in the complex. While living at Saranac A.A., R.A. and M.B. slept in the same bedroom, M.B. in a separate bed. The brother St. had his own room.

[80] A.A. worked at a plastics factory where he alternated between day, afternoon and night shifts. R.A. still did her cleaning jobs. A.A. stated that when he was on afternoon and night shifts, he would rush home in the morning to take the children to school. Then he began a carpet cleaning job during this time where sometimes he worked in the evenings and sometimes in the day. In 1979, A.A. got the job at Bell Canada where he worked for 16 years, retiring in 1996. His hours at Bell were Monday to Friday 4:00 p.m. to 12:00 a.m. In 1977/1978, R.A. started to work at Baycrest where her hours were 6:00 a.m. to 2:00 p.m. In the evening she worked cleaning her doctor’s office. M.B. also got a job at Baycrest at this time. M.B.’s brother St. was in school and by this time M.B. had been attending Ryerson Polytech.

[81] A.A. testified many family members would come to their apartment on Saturdays and Sundays for brunches R.A. enjoyed preparing.

[82] It is A.A.’s evidence, contrary to M.B.’s evidence about barring him from her family, that he maintained a relationship with M.B. and her family before and after R.A.’s death. For instance, A.A. testified he would visit M.B. and her children very often in April, May and June 1997 before R.A. died after M.B.’s daughter was born in April. The visits ended in July. Contrary to M.B.’s evidence, A.A. testified he bought M.B.’s ticket to go to Trinidad in August to spread R.A.’s ashes. A.A. also testified M.B. asked him to give her away at her wedding and, even after they married, M.B. and her husband lived with him for one or two years.

[83] A.A. testified he was shocked by the letter M.B. left for him in the family condo. He insisted he could not figure out why she would do such a thing. He testified he resigned himself to the reality that she did not want anything to do with him. He said he did not know M.B. was not his daughter. He always treated her like a daughter. He testified he found out about this after he saw the reference in M.B.’s letter about them not being related by blood. A.A. testified the entire S. family and M.B.’s family abandoned him after R.A.’s death.

Cross - Examination of A.A.

Regarding M.B.’s Allegations

[84] A.A. was questioned about his role in rearing M.B. and about the nature of their relationship. A.A. admitted at age 81, looking back 40 years that his memory for details is not as it used to be.

[85] A.A. hesitated to admit he would sometimes tell M.B. what to do. A.A. qualified that by saying he would only discipline her with R.A.’s help. He would just put in his two cents. When confronted with further questions on his role in disciplining M.B., A.A. was reluctant to say he had a role independent of R.A. He testified he did not have to discipline M.B. because she was always alone. What he meant by that is after he was home from work and M.B. was there he would always be fast asleep leaving M.B. on her own.

[86] The Crown suggested that this meant when M.B. was only four years old when they lived at the attic apartment he would go to sleep and leave her on her own while he slept all day. He agreed with that suggestion and explained that R.A. would always leave M.B. some food. He said that if M.B. needed anything she could just wake him up. He testified at times he would wake up to get her something but most of the time he would be asleep. He would be in one room and she would be in another. He testified he did not recall M.B. coming to sleep with him if she needed to go to sleep.

[87] When the Crown repeated the question on his role in relation to M.B., A.A. was emphatic that he never had to tell M.B. to do anything because she would just be playing by herself. He also said she never misbehaved when R.A. was not there. He never had to correct her when she was small. When it was suggested a four year old child needed help going to the washroom, for instance, with wiping her bum, he responded he never helped her go to the washroom. He testified M.B. always did these things by herself. A.A. was also asked who would help her with getting milk and food. He responded that R.A. would always leave her snacks, candy, cookies, tea and milk and M.B. always helped herself to these things on her own.

[88] A.A. acknowledged that the M.B.’s brother St. did not come up from Trinidad until 1971 and Crown counsel confronted him with the fact there were two years in the attic apartment when he would be alone with M.B. whether before school, after school or when she was sick, when R.A. was at work until 3:30 p.m.

[89] In answer to the Crown’s suggestion, A.A. agreed he would be alone with M.B. during the year before both F.S. and L.R. lived with them but this would not be the case after they arrived. A.A. testified both F.S. and L.R. would be present at the apartment when they lived there. According to A.A., especially L.R was around because she did not work and did not know her way around Toronto and only went out on errands with R.A.

[90] Crown counsel put to A.A. that he was the primary caregiver for the children. She pointed to the facts that R.A. would leave for her cleaning job in the morning and not return until the afternoon, that there was a point that L.R. and F.S. and others no longer lived with them, and that A.A.’s shift at the Constellation Hotel did not begin until 10:00 p.m. and ended at 6:30 a.m.

[91] A.A. was reluctant but did admit he was the primary caregiver for the children at this time. In answer to the suggestion he would be alone with M.B., he responded that MB’s brother St. would be there after school and after school M.B. would always go to his mother’s nearby apartment and play with her young cousin Sh. He said R.A. would pick M.B. up there after work. He said he could not recall any days that M.B. did not go his mother’s place after school.

[92] A.A. insisted over and over when challenged by the Crown that he never had to discipline the very young M.B. at the Bathurst apartment because she “never ever did anything wrong”. This statement is in contradiction to a later statement he made that M.B. would only misbehave with R.A. In response to the question whether he would tell her what to do on small things, like whether she could have another cookie, A.A. responded that in his culture “we never say what kids could do and could not do.” This is in contradiction to his evidence that M.B.’s brother St. was defiant and he often had to discipline and even ground him when he misbehaved. This is also inconsistent with his evidence R.A. would discipline M.B.’s brother St. and M.B. as children when they misbehaved.

[93] M.B. had many absentee days recorded on her early report cards. When confronted with the suggestion that at times M.B. would be sick and had to stay at home with him, A.A. said V.L.R. would be there as she moved to the Bathurst apartment one year after they moved there. She did not get her own place until they moved to Lotherton. Crown counsel confronted him with the fact that when M.B. was at home sick during the year before V.L.R. moved in he would be alone with her.

[94] Crown counsel pointed A.A. to the fact V.L.R. spent her days either sleeping or going to school and her nights at work, to suggest there would be many times for A.A. to be alone with M.B. while V.L.R. lived there. A.A. agreed that represented V.L.R.’s schedule when she lived at Bathurst, but again downplayed his role in supervising M.B. when he was alone with her at Bathurst. He said if she stayed home from school sick he was there if she needed medication, otherwise he would be sleeping.

[95] When they lived at Lotherton, the children’s school was distant so he drove the children to and from school. V.L.R. did not live with them at that apartment. He admitted he was probably alone with M.B. at times when M.B.’s brother St. was with his friends and R.A. was at work. But he said M.B. was normally at school all day. She would leave for school when everyone, including A.A. at this point, went to work in the morning. M.B. would go to A.A.’s mother’s home after school to play with young cousin Sh.

[96] A.A. testified the family lived at Saranac from 1973 – 1988. At Saranac A.A. worked during the day at the carpet cleaning job and R.A. kept the same schedule at her cleaning job. Later, in 1979 he started working for Bell from 4:00 p.m. to 12:00 a.m. M.B.’s evidence was that when she turned age nine in 1974 and began menstruating, A.A.’s abuse stopped. But before that occurred he began at Saranac to aggressively force oral sex and intercourse on her.

[97] A.A. flatly denied the allegations M.B. made with respect to the Saranac apartment.

[98] Crown Counsel raised questions about A.A. as a parent-figure for M.B. and about M.B.’s disposition toward him as a parent. A.A. conceded that as a parent he would give her direction as to what was right and wrong and she would always listen and obey him. Unlike M.B.’s brother St., M.B. would always do as she was told.

[99] Crown counsel also posed to A.A. the contents of the letter M.B. left in the condo for him. A.A. said he read the letter but did not recall the contents of the letter. He recalled that M.B. said there would be no contact with him and that it hurt him. But said he just accepted that and did nothing about it. He never approached M.B. to ask her about the letter.

[100] Crown counsel challenged him that he did not question or do anything about the no contact decision because he knew why she decided that – because he knew he had abused her. Crown counsel further suggested he walked away and never contacted her because he knew he had sexually assaulted her for many years. Crown counsel went further to suggest that he was shocked and fearful because M.B. warned in the letter that she would one day go to the police. Crown counsel suggested he knew he sexually violated his obedient little girl in the most invasive and degrading ways.

[101] A.A. denied all of Crown counsel’s suggestions about the letter. He said he was not shocked because he feared she would go to the police but because she never wanted contact with him after he had known her since she was a baby. When re-examined on his reaction to the letter, A.A. testified he thought it was a big joke after all these years to cut all ties, but if that was the way M.B. wanted it, so be it.

Regarding L.S.’s Allegations

[102] A.A. was cross-examined about L.S.’s allegation that he touched her vagina when he was carrying her from his car in January 1979. A.A. denied ever picking up L.S.’s family at the airport because he was not on close terms with the S. families. He denied ever reaching into his car and carrying her out of the car. For this reason he said he could never have sexually abused her. Crown counsel also asked A.A. if he had ever had a disagreement with L.S. before the time related to her allegation. He reiterated that his family did not have much of a relationship with her family, except with F.S. (L.S.’s father), so he never had a disagreement.

Ms. F.S.

[103] Ms. F.S. is A.A.’s youngest sister. She was the first in her family to immigrate to Canada and helped other relatives, including A.A.’s family, to settle in Canada. She testified that she was close to A.A.’s family and often visited them. She confirmed that many family members enjoyed visiting A.A.’s family for the brunches R.A. would prepare on weekends. Ms. F.S. also testified that other family members, like F.S. and L.R. and their friend V.L.R., lived at A.A.’s homes at different times but her evidence was not always specific as to times and places.

[104] Ms. F.S. testified about her impressions of M.B. She described her as a very cute and adorable little girl who appeared to be happy and well-loved by her parents. She was well-behaved and a good student. When cross-examined about M.B., Ms. F.S. gave what appeared to be contradictory evidence that M.B. seemed introverted and sad at times because she often kept to herself and was very private.

[105] This description of M.B. accords with M.B.’s own description of herself and that of A.A. − the type of child who obeyed her parents, which as M.B. explained, is why she took seriously A.A.’s warning not to tell anyone about his abuse. Ms. F.S.’s evidence is also consistent with M.B.’s evidence that she focused on her school work and was a private person.

THE PARTIES’ POSITIONS

[106] The Crown’s position is that from 1969 to 1974 A.A. sexually assaulted M.B. numerous times at each of their homes. This occurred from age four to nine. He took off her clothing, kissed her, fondled her body, forced her to perform oral sex on him, performed oral sex on her, ejaculated into her mouth and on her body and forced sexual intercourse on her without wearing a condom.

[107] The Crown also argues that in early January 1979, A.A. carried L.S. in his arms from his car after driving L.S.’s family from the airport and touched her vagina through her clothes with his hand while he carried her.

[108] The defence argues none of this happened. He did not sexually assault either M.B. or L.S. It is the defence’s position both complainants fabricated this evidence which on their accounts took place nearly 40 years ago and for that reason is suspect. There is also evidence, according to the defence, suggesting M.B. and L.S. colluded in bringing charges against A.A. The defence also argues that the abuse by E.S., which happened during the period of M.B.’s and L.S.’s allegations against A.A., has been confused by them with their claims against A.A.

THE LAW

The Charges

[109] A.A. is charged under the Criminal Code in relation to M.B. that from October 1, 1969 until December 31, 1977 he: had illicit sexual intercourse with M.B., his step-daughter, contrary to s. 145(1)(a); committed an act of gross indecency with M.B., his step-daughter, contrary to s. 149; had sexual intercourse with a female person who is not his wife, without consent, contrary to s. 136; indecently assaulted M.B., contrary to s. 141; and had sexual intercourse with M.B., a female not his wife and under the age of 14, contrary to s. 138(1).

[110] A.A. is charged in relation to L.S. that sometime between and including January 1, 1979 and January 31, 1979, he indecently assaulted L.S., a female person, contrary to s. 149 of the Criminal Code.

[111] The Crown is required to prove M.B.’s and L.S.’s allegations that A.A. engaged in conduct with M.B. and L.S. that involved touching that was of a sexual nature. With such allegations by adult complainants the Crown must also disprove consent. M.B. and L.S. were below the age of consent for the sexual offences and as such the Crown is not required to disprove consent in relation any of the offences.

[112] There is no dispute about the time periods associated with the charges.

Childhood Historical Sexual Assault

[113] It has been recognized that delay by children in reporting sexual abuse is not uncommon. Children are frequently reluctant to report abuse because of fear they will not be believed or for fear of the adverse effect on the family relationships. Children are often threatened that the abuser will harm them or the child will be taken away from the family if they tell anyone. Hence delayed reaction by children in reporting abuse, especially involving a family member, should not be viewed through the old stereotypic perspective as a sign of fabrication or falsehood:

It surely would not surprise the jury to hear, for example, that some children who are sexually abused by a parent are so humiliated that they do not want to tell anybody, but want instead to take the secret to their graves. This jury must decide whether, on the basis of their experience in life, this complainant acted after the alleged incident in a way that is consistent with her story. To assess that, the jury must consider the state of mind of the witness at the time, her age and level of maturity, her sense of confidence and composure, and the relationship between her and her alleged abuser. It may well be that the jury can draw no conclusions of consequence about her subsequent behaviour, and will decide that it is not a telling point one way or the other on the truth of her story.

[R. v. T.E.M., 1996 ABCA 31, at para 11, (A.B.C.A); see also, R. v. D.D., 2000 SCC 43, at paras. 31 and 32, (S.C.C.); R. v. C.B., 2008 ONCA 486, at paras. 38-40, (Ont. C.A.).]

[114] The Supreme Court of Canada looked at the evolution in the law on assessing the credibility and reliability of the evidence of child witnesses:

While children may not be able to recount precise details and communicate the when and where of an event with exactitude, this does not mean that they have misconceived what happened to them and who did it. In recent years we have adopted a much more benign attitude to children's evidence, lessening the strict standards of oath taking and corroboration, and I believe that this is a desirable development. The credibility of every witness who testifies before the courts must, of course, be carefully assessed but the standard of the "reasonable adult" is not necessarily appropriate in assessing the credibility of young children.

[R. v. B. (G.), 1990 7308 (SCC); and [1990] 2 S.C.R. 30, at p.p. 54-55, (S.C.C.)]

[115] The Supreme Court of Canada in R. v. W. (R) further expounded on that principle in a later decision:

Every person giving testimony in court, of whatever age, is an individual, whose credibility and evidence must be assessed by reference to criteria appropriate to her mental development, understanding and ability to communicate.

[R. v. W. (R.), 1992 56 (SCC); [1992] 2 S.C.R. 122; 74 C.C.C. (3d) 134, at p. 144, (S.C.C.)]

[116] The Ontario Court of Appeal affirmed the trial judge’s application of the Supreme Court direction in a case where adult complainants gave evidence of sexual assaults committed by the accused when they were children.

At p. 42 of [the trial judge’s] reasons, he noted the Supreme Court’s direction in R. v. W. (R.), at p. 134, that when the evidence of an adult witness concerns events that occurred in childhood, “the presence of inconsistencies, particularly as to peripheral matters such as time and location, should be considered in the context of the age of the witness at the time of the events to which she is testifying.” He also observed, at p. 42, that: “[t]he credibility of any witness, including children, is to be considered in the context of the witness’ capability, mental or otherwise, in the circumstances of the case.” This accords with McLachlin J.’s caution in R. v. W. (R.), at p. 144.

[R. v. O.M., 2014 ONCA 503, at para. 51, (Ont. C.A.)]

[117] In assessing the credibility and reliability of adult testimony that looks back many years to childhood experiences, the trier of fact must be mindful that the reasonableness of the childhood observations must be evaluated in the context of the level their mental development and understanding as children and their delay in reporting should not be regarded as an inevitable mark against their credibility. Absence of a memory in a child’s testimony for details of peripheral matters is not unusual.

[118] Evaluating credibility in a “he-say-she-say” case is challenging in any context but is a particularly difficult undertaking with old historic sexual assault claims against adults by children. The Supreme Court of Canada described the task of determining credibility that aptly applies to the case before me:

Assessing credibility is not a science . . . [It is a] complex intermingling of impressions that emerge after watching and listening to witnesses and attempting to reconcile the various versions of events.

[R. v. Gagnon, [2006] 1 S.C.R. 621, 2006 SCC 17, at para. 20, (S.C.C.)]

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

[119] Credibility is the main issue in this case. The burden is with the Crown to prove A.A.’s guilt of each of the offences charged. Where credibility is an issue the law is clear that the trial court does not determine the accused’s guilt by treating the evidence as a credibility contest between the opposing sides. This would unfairly place the burden of proof on the accused: R. v. W. (D), 1991 93 (SCC), [1991] 1 S.C.R. 742, at p. 409, (S.C.C.).

[120] The Supreme Court of Canada has provided the following guidance, as expressed in R. v. W. (D.) and R. v. Morin, on applying the burden of proof when credibility is a substantial issue:

• Where the accused testifies and credibility is an important issue, the Crown’s burden of proving guilt beyond a reasonable doubt must be applied to the issue of credibility.

• The trier of fact is not required to wholly believe one witness or one set of witnesses. The trier can believe all, some or none of any witness’s evidence.

• The accused must be acquitted if, considering the evidence on a whole, the trier of fact believes the accused’s evidence.

• Even if the trier of fact does not believe the accused’s evidence, but has a reasonable doubt as to the accused’s guilt, after considering his evidence in the context of the evidence as a whole, the accused must be acquitted.

• In addition to favourable evidence by the accused and the defence witnesses, the trier of fact must also consider any exculpatory evidence that might arise in the Crown’s evidence.

• The Crown is not required to prove or disprove every fact beyond a reasonable doubt. The analysis is not to be applied piecemeal to every item or category of evidence unless the fact is an element of an offence or a defence: [R. v. Morin (1988), C.C.C. (3d) 193, at p. 205, (S.C.C.)].

• The burden always rests with the Crown to prove the guilt of the offence charged beyond a reasonable doubt, and if a defence is raised, the Crown’s burden is to negative the defence beyond a reasonable doubt.

[121] This is a case of accusations on one side and flat denials on the other. A.A. has flatly denied each of M.B.’s and L.S.’s allegations.

[122] Courts offer guidance on the application of R. v. W.(D.) to flat denial evidence.

[123] An accused is entitled to flatly deny accusations and not be subjected to adverse findings because of this. It is an error to reject defence evidence only on the basis it was a flat denial. Frequently a flat denial is the only available defence for the accused. All they can say is they did not do it. The accused’s evidence must be analyzed in the context of the evidence as a whole: R. v. R.H.C. (1996), 1996 821 (ON CA); 104 C.C.C. (3d) 413 (Ont. C.A.) and; R. v. Kumric, 2006 40997 (ON SC), at paras. 18 – 20, (Ont. S.C.J.)]. It is a mistake to reject the defence evidence and find it does not raise a reasonable doubt for the simple reason the trier of fact believes the Crown witness, without any analysis of the defence evidence. To make this error is to run afoul of R. v. W. (D.). A trier of fact has to examine all of the evidence. Where credibility is in issue courts should apply the criteria in R. v. W. (D.): R. v. S. J. D., 2004 31872 (ON CA), at paras. 29-30, (Ont. C.A.)]

ANALYSIS

[124] I find for the following reasons that the Crown has proven beyond a reasonable doubt A.A.’s guilt of the offences committed against both M.B. and L.S.

Assessment of M.B.’s Credibility

The Venues of Abuse

[125] M.B. was age four to nine when she suffered degrading abuse at the hands of a man that to her knowledge was her father. M.B. testified about abuse at four residences: the attic, the Wilson Ave., the Bathurst, the Lotherton and Saranac apartments. In each one of those residences M.B. shared a bedroom with her parents and, at the attic apartment, she shared their bed.

[126] There is some divergence between A.A.’s and M.B.’s evidence as to whether the family ever lived in an apartment on Wilson Ave. A.A. was fairly adamant that he had never lived on Wilson Ave. M.B. was equally sure the family lived there. M.B. was about five years old when she says the family lived there. A.A. was an adult. It could very well be that A.A.’s memory about that is clearer, although he did admit that now at age 81, his memory for details from the past is not as great as it once was. However, I find his evidence as to where the other residences were and the details about their layout is accurate and in the main is consistent with M.B.’s and other evidence.

[127] I am prepared to accept A.A.’s evidence on the Wilson Ave. issue. However, I note the Supreme Court of Canada’s caution not to place too heavy a credibility burden on the memory of a child with respect to lesser details like times and places. In any event, I find this discrepancy has negligible if any impact on my assessment of M.B.’s credibility.

The Abuse

[128] M.B. testified that one or two times per week in her parents’ bed A.A. would undress her, kiss her, fondle her body, force his penis into her mouth, force oral sex on her, ejaculate into her mouth and on her body and force his penis into her vagina without a condom. M.B. testified this could happen in the day or night but she did not know exact times. That conduct clearly involves touching of a sexual nature.

[129] M.B. testified, and I accept, she never forgot the details of the many instances of abuse. She was not a victim of abuse like so many others who repressed their intolerable childhood memories. Her therapy helped her with general depression and post-partum depression and not the recovery of childhood memories. Her flashbacks reminded her through vivid images of certain details of the episodes of abuse that she never forgot.

[130] I find M.B. testified in a credible and forthright manner and with persuasive detail on the humiliating acts committed by her father.

[131] M.B. testified the sexual assaults would take basically the same form on each occasion and at each location. The abuse became less frequent and more aggressive as she got older when the family lived at Saranac. She did not recall the exact number of times per week this would happen or exactly when, in order to establish she and A.A. had an opportunity to be alone. She thought it was once or twice per month. I find it beyond the reasonable capacity of a young vulnerable child experiencing immense trauma by her father to precisely recall such details. It is not surprising her attention and hence her memory would be focused on the details of her excruciating experience.

[132] M.B. testified no one but she and A.A. would be present at home. She recalled her mother left for her cleaning job in the morning and would return in the afternoon, but she did not recall her exact schedule. She testified A.A. did not work when she first came to Canada so he was home more often. She did not recall exactly when or where he worked during her younger years.

[133] Again, I find these are the types of details that from a child’s perspective would not necessarily be committed to memory. I find these are peripheral matters that do not signal that she has misconceived what happened to her.

[134] M.B. testified persuasively that A.A. warned her not to tell anyone the secret of what he was doing to her. She was daddy’s little girl, and if she told, no one would believe her. He cautioned her if she told anyone the family would break up and she would end up in foster care. M.B. testified credibly that as a little child she would listen to him. He was her father and she trusted him. She did not know any better. She had recently moved to Canada from Trinidad and her parents were all she had. She thought she was supposed let him do those acts on her.

[135] A.A.’s evidence about M.B. as a child, though in overly embellished terms, is consistent with M.B.’s as to how she would listen and be obedient to him and her mother. In fact, A.A. testified M.B. was never defiant with him. He never had to discipline her or correct her. Ms. F.S. confirmed how obedient and dutiful M.B. was. Ms. F.S. also confirmed M.B.’s evidence that although she appeared happy, she was a private child and at times was withdrawn and sad.

[136] Given M.B.’s emotional development and maturity level at ages four to nine and the warnings from a father authority figure, I find M.B.’s reaction to her father and her thinking at the time are perfectly understandable. I believe M.B.’s evidence. It is not surprising she did not tell anyone.

Opportunity for Abuse

[137] There is a question of whether there would have been opportunity for A.A. and M.B. to be alone in the various residences with various friends and family members living with the family.

[138] M.B. testified she did not recall exactly who lived with her family, where and when. It is understandable M.B. as a young child would not commend those types of details to memory. However, if I accept A.A.’s evidence, the greatest number of extra people lived with them at the attic and Bathurst apartments.

[139] At the attic apartment, in addition to A.A., R.A. and M.B., who slept in the only bedroom, R.A.’s brother F.S. and sister L.R., lived there and slept on the couch during A.A.’s family’s second year there. Uncle W. and his wife stayed there for a few days. There was a period that A.A. did not work and that M.B. did not go to school. R.A. and F.S. worked and L.R. was unemployed but would go out with R.A. on errands.

[140] It does not seem reasonable, with the inevitable comings and goings of the people who lived at the attic apartment, that M.B. and A.A. would not have an opportunity to be alone one or two times per week when the others were absent from the apartment.

[141] At the Bathurst apartment, A.A. worked from 10:00 p.m. to 6:30 a.m. and would be home in the morning, during the day and in the evening. R.A. would leave for work in the morning and return in the afternoon. The brother St. lived there and attended school with M.B. and V.L.R. lived there as well. V.L.R. was very busy, sleeping then going to school in the morning, sleeping and then working at night. I find in those circumstances, there would reasonably be opportunities for A.A. to be alone with M.B. at least one or two times per week.

[142] At the Lotherton apartment, A.A. and R.A. had the same respective working hours as at the other apartments. I accept A.A.’s evidence the family lived there two years. V.L.R. lived with the family only during the second year they lived there and kept the same busy schedule. No other adults lived with them at this apartment. The brother St. lived there and attended school with M.B. until 3:30 p.m. A.A. was the primary caregiver for the children because he was there all day until he left for work in the evening. Even considering that M.B. played with the young cousin Sh. after school, I find in the circumstances at Lotherton it is not unreasonable to imagine A.A. had the opportunity to be alone with M.B. at least one or two times per week.

[143] Only the four family members lived at Saranac. In the first year at that apartment, the sexual abuse was less frequent, about once or twice per month, but was more aggressively forced by A.A. as M.B. started to resist with a growing understanding of how wrong A.A.’s actions were. M.B. turned nine years old in the second year the family lived at Saranac. M.B.’s evidence is that A.A. stopped sexually abusing her at that age because she started to menstruate.

[144] I accept that with the much less frequent assaults and the fewer number of people residing at Saranac, it is not unreasonable that A.A. would find opportunities to be alone with M.B once or twice per month.

Delay in Complaining about Abuse

[145] I have already addressed and found credible the reason M.B. did not report the abuse when she was young. I also find within reason, and not a mark against her credibility, that she delayed until she was age 43 to go to the police.

[146] M.B. testified credibly that she had decided to try to put those negative experiences behind her and get on with her life. M.B. never told her mother when she got older because her mother had a prolonged battle with cancer and she did not want her to die with such a burden. So she had no protection from her mother. M.B. attended therapy where it was suggested that going to the police against her father would not be in line with her healing process. However, M.B. felt she would someday go to the police but she did not have the strength until years later.

[147] When her mother died in 1997 and she was 30 years old, M.B. found out she was not the only member of the family who had been abused by A.A. and E.S. She found out about her cousin L.S.’s experience with A.A. and E.S. She had lost her mother and at the same time M.B. also received the shocking news that the man she always thought was her father was not her biological father. Understandably, M.B. had significant emotional and psychological issues to contend with at this time.

[148] M.B. pointed out that at that time she also had a two-month old daughter and a four-year old son and a husband to think about. M.B. made the personal decision to focus on her family and the direction of her life. She completed her undergraduate and graduate degrees and attained a career as a dietitian and professor. Over the years, she developed the courage, with the support of L.S. and the blessing of her husband, to go to the police and they attended together in 2010. I found that evidence credible.

[149] There was some suggestion by the defence that M.B. and L.S. colluded against A.A. in deciding to go to the police. I do not accept that the evidence supports that conclusion. What I saw between M.B. and L.S. is the manifestation of mutual support for each other based on shared experiences of prolonged sexual abuse in the family. They each had very distinct experiences with A.A. − M.B.’s, far more prolonged and grueling than L.S.’s. Collusion would likely have resulted in a far more severe account of abuse on L.S.’s part and more similarity between their experiences. Moreover, the fact that M.B. asked the police the question of what the chances of success would be with two accusations, I do not see as a sign of collusion but rather an expression of a reasonable fear she would not be believed if only she alone complained.

[150] I find M.B.’s delay for almost 40 years in going to the police is eminently understandable under her circumstances.

Assessment of L.S.’s Credibility

The Abuse

[151] I found L.S. to be a sincere and credible witness who spoke straightforwardly about one episode of abuse that occurred in January 1979 when she was eight years old. She did not embellish the brief instant that she felt the person carrying her touch her vagina through her clothes with his hand. She did not say she knew who it was when he picked her up. She said she was in and out of sleep. I find this a credit to her trustworthiness as a witness.

[152] I found L.S. gave her account as she honestly recalled it. I believe her evidence that when she felt the touch on her vagina she stiffened her body and jumped down from the arms carrying her. When she turned around to see who had been carrying her she saw A.A. standing there alone in the doorway of the home. She was the last out of the car and into the house. No other family members were around. In the totality of the evidence, I find L.S. gave the unelaborated truth of what she experienced. L.S.’s allegation clearly involves touching by A.A. of a sexual nature.

Conclusion

[153] L.S. explained why she delayed in reporting the abuse.

[154] L.S. testified her life was chaotic and strained after she reported her brother’s abuse of his daughter in 2005. The family knew about E.S.’s abuse. She said she had told her mother at age 15 and her mother gave her no support or protection. Her family resented her for reporting her brother to the police and for taking in her brother’s children after the C.A.S. apprehended them. They threatened her not to report E.S.

[155] I accept that L.S. suffered from panic attacks and anxiety as well as flashbacks from her experiences with abuse. She testified credibly and forthrightly about this. She sought therapy to control these conditions. She had to develop the strength to go to the police. She gathered confidence after M.B.’s mother’s death in 1997 when she heard about other family members’ experiences with A.A. and E.S. She now knew she was not alone. L.S. testified earnestly that she was determined to put an end to the abuse of children in her family by telling her story. She mustered the courage in 2010, and with M.B., she went to the police.

[156] I found her testimony in this area to be heartfelt and real. Her delay was reasonable under the circumstances of her life and is not a factor that should adversely impact her credibility.

[157] I also considered that L.S. might have confused the abuse by A.A. with that of E.S. I reject this defence in relation to L.S. for the reasons I rejected it with M.B.

[158] I looked at A.A.’s testimony that he would not have picked up L.S.’s family from the airport because he did not have a good relationship with the S. family. I do not accept that evidence.

[159] It was F.S. and his family who A.A. picked up at the airport. L.S. is F.S.’s daughter. A.A.’s evidence is that of all the S. family members, he only retained a friendship with his brother-in-law, F.S. who is his wife R.A.’s brother. A.A.’s relationship with F.S. involved F.S. living with A.A.’s family and A.A. picking up F.S. and driving him to and from work for years when they worked together. There is no evidence of a breakdown in their relationship. In all the circumstances, L.S.’s evidence is conceivable, and I accept, that A.A. picked up her family at the airport.

Assessment of A.A.’s Credibility

[160] In considering A.A.’s evidence in the context of the evidence as a whole, I do not find his evidence raises a reasonable doubt as to his guilt of sexually assaulting M.B. many times in the four apartments where the family lived.

Relationship with M.B.

[161] I found A.A. dedicated his testimony to detaching himself from M.B. and negating his relationship with her as her father. He did not find out until after R.A.’s death that he was not her father. I found his evidence an extreme and unbelievable attempt to show he had virtually no responsibility for his very young vulnerable child.

[162] A.A. reluctantly admitted he was M.B.’s primary caregiver at the various apartments. But before grudgingly admitting to this, he went so far as to say that once he got home from work in the morning, he slept the whole time that M.B. was in his care even when she was four years old. He never made sure she ate; never helped her with meals; never helped her go to the bathroom; never knew whether she slept; and never woke up to watch over her. When she was ill he only woke up if she asked him for medicine. He said he never even woke up to have his own breakfast.

[163] To dissociate himself from any idea that he ever interacted with her to give her parental guidance, A.A. painted M.B. unrealistically as a perfect child who “never ever did anything wrong”, who he never had to discipline. He said all the while he would be sleeping, from a very young age, M.B. would just play alone and take care of all her needs herself with little or no reliance on him as a parent.

[164] I find the only reasonable explanation for A.A.’s testimony is that he was attempting to paint a picture of extreme detachment with the view to erasing any notion that he would ever be close enough to her to sexually abuse her. I found the evidence A.A. gave on his relationship with M.B. to be puerile and singularly preposterous. A.A. was self-serving, evasive and inconsistent in his testimony.

The Letter from M.B.

[165] I also found not credible that A.A. read the letter M.B. left him in the condo in 1997 but he did not recall what it said. A paraphrasing which approximated the contents of the letter was put before A.A. on cross-examination. It is unimaginable on any reasonable view that given the contents of that letter and M.B.’s threat to go to the police, that he would not recall the contents of the letter. A.A. had a detailed memory of many far less salient and controversial facts in recounting his even more distant past

[166] Moreover, I do not think there is an innocent explanation for A.A. just deciding to tacitly accept the no contact decision and the threat to go to the police without out ever inquiring about this with M.B. He said he was just shocked about the break in the relationship with M.B. and her family. But he was just going to live with that situation.

[167] I find by any measure it simply does not make sense that A.A. would not inquire about the extreme consequences M.B. was advocating unless he knew the reason for M.B.’s attitude. I believe A.A.’s conduct showed a consciousness of guilt. I find the reason he went along without inquiring was because he had abused M.B. and he lived in fearful anticipation of repercussions. I do not believe in the least, as A.A. said under re-examination, that he thought it was a big joke when M.B. demanded no contact with her family.

Conclusion

[168] In arriving at my conclusion, as required, I weighed the evidence that could point away from guilt.

[169] I considered the possible defence of collusion. By the questions asked when cross-examining M.B. and L.S. about their plan to go to the police the defence seemed to suggest some degree of collusion between M.B. and L.S. in going together to report A.A. “Collusion, in lay terms, means a secret understanding between two or more persons to gain something illegally or wrongly. In similar act analysis, it means concoction or collaboration”: R. v. J.A.T., 2013 ONSC 6320, at para. 10, (Ont. S.C.J.).

[170] I did not find that M.B. and L.S. raised sexual abuse by A.A. with each other for any fraudulent or illegal goal. There is no evidence of that. What I gather from their evidence is that they were relieved to find support in each other for the humiliating secrets they held from their early girlhood, experiences they thought no one would ever believe happened to them. The plan to go to the police together, I find, was not with some collusive plot to concoct false allegations, but was rather a way to provide each other support for embarking on a very difficult step in their lives. Moreover, pointing away from collusion is the fact their accounts of A.A.’s abuse were at best only remotely similar.

[171] I also looked at A.A.’s evidence adduced to paint a favourable impression of his relationship with M.B. as an adult, to negate accusations of himself as an abuser, such as: he babysat her son; he bought her plane tickets to Trinidad; he gave M.B. away in her wedding; and M.B. and her husband stayed with him for a period after their marriage.

[172] Even if I accept A.A.’s version of those events, despite the seeming positive image it depicts of his relationship with M.B., I do not find any of that evidence sufficiently compelling as to oust the strength of the evidence that points to his guilt.

[173] As noted earlier, I also took account of the possibility that M.B. and L.S. as young girls might have transposed or otherwise mixed up their abuse by E.S. with the abuse by A.A. However, I do not accept that as a reasonable possibility. There is significant divergence in their ages, physical appearance, the types of abuse they engaged in and the venues of the abuse.

[174] As also noted earlier, I also looked at A.A.’s estrangement from the S. family as his reason for saying he did not pick up L.S.’s family at the airport and I rejected A.A’s evidence for reasons I set out earlier.

[175] Looked at in the context of all the evidence, the considerations cited above do not raise a reasonable doubt in my mind of A.A.’s guilt.

[176] In conclusion, I found overall A.A.’s evidence on the material facts to be unrealistic and self-serving and not worthy of belief. I find on the whole of the evidence the Crown has proved beyond a reasonable doubt A.A.’s guilt on the five counts on the indictment related to M.B. and on the one count related to L.S. Nothing in the evidence raises a reasonable doubt about his guilt.

VERDICT

[177] For the foregoing reasons, I am satisfied the Crown has proven A.A.’s guilt beyond a reasonable doubt on counts 1, 2, 3, 4, 5 and 6 on the indictment.

[178] I find A.A. guilty on counts 1 to 5 on the indictment in relation to M.B. and convictions will be entered accordingly.

[179] I find A.A. guilty on count 6 on the indictment in relation to L.S. and a conviction will be entered accordingly.

Allen J.

Released: October 9, 2015

COURT FILE NO.: CR-12-40000013-0000

DATE: 20151009

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

A.A.

REASONS FOR Decision

Allen J.

Released: October 9, 2015