ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CRIM J(P) 670/14
DATE: 2015 10 16

BETWEEN:

Her Majesty the Queen

E. Beaton, for the Crown

• and -

F.L.

A. Diniz, for the Accused

Accused

HEARD: July 27-31, 2015

REASONS FOR JUDGMENT

LeMay J.

[1] The accused, F.L. is charged with one count of sexual assault, one count of sexual interference, and one count of invitation to sexual touching. The indictment reads as follows:

[F.L.] stands charged:

1. That he, during a 10 year period, last, past and ending on or about the 30th day of November, 2010, at the City of Mississauga, in the Central West Region, did commit a sexual assault on [S.C]. contrary to section 271 of the Criminal Code of Canada;

[F.L] further stands charged:

2. That he, during a 10 year period, last, past and ending on or about the 30th day of November, 2010, at the City of Mississauga, in the Central West Region, unlawfully did, for a sexual purpose touch [S.C], a person under the age of sixteen years, contrary to section 151 of the Criminal Code of Canada;

[F.L] further stands charged:

3. That he during a 10 year period, last, past and ending on or about the 30th day of November, 2010 at the City of Brampton, in the Central West Region, unlawfully did, for a sexual purpose invite, [S.C], a person under the age of sixteen years, to touch part of his body, contrary to section 152 of the Criminal Code of Canada.

[2] The accused was the step-father of the Complainant. The incidents are alleged to have involved a pattern of sexual assault and sexual touching that took place over the course of between eight and nine years, starting in 2000 or 2001 when the Complainant was in Grade 1 or 2, and ending when she was approximately fourteen years old.

[3] The evidence from the Crown consisted of testimony from the Complainant and from the investigating officer, Tonya Richard. The evidence from the Defence consisted of testimony from the Complainant’s mother, A.C., from the Accused’s current wife, A.D.S. and from the accused himself. There were two exhibits, a police occurrence report and a diagram of the apartment where the accused lived after he separated from A.C.

Evidence

[4] In the sections that follow, I will outline the basic, undisputed background facts, and then set out the key components of the evidence provided by the Crown and the Accused. Once I have done that, I will set out the law, and my conclusions on this case.

[5] Before I set out the evidence, I would note that there was some questioning of witnesses, particularly the Complainant, about whether her family members, or other people, believed her allegations. I have not considered that evidence at all in reaching my decision, and no arguments were pursued about this evidence by either the Crown or the Defence.

a) Background Facts

[6] The Complainant was 19 years old at the time of the trial, which meant that she was born in late 1995. F.L is the Complainant’s step-father, and he started a relationship with A.C., the Complainant’s mother, in August of 1997. In October of 1997, F.L. moved into the house where A.C. lived with the Complainant and her two older brothers.

[7] Throughout this time, A.C. was employed as a social worker, and F.L. worked in construction. F.L.’s hours of work and the days he worked were disputed, and I will address this evidence below.

[8] The Complainant’s two older brothers were substantially older. C., the eldest was 15 in 1997, and M. the second brother was 13 in 1997. The Complainant was two at the time that F.L. moved into the house. The Complainant did not have much of a relationship with her biological father, although she would visit him on Sundays from time to time. The Complainant stopped visiting her biological father when she was approximately seven years old.

[9] The house that this family lived in was a three level house (including a basement), and each child had their own bedroom. In April of 1999, A.C. gave birth to another daughter, R.L., who is also the accused’s child. She is three and a half years younger than S.C.

[10] In the time when F.L. lived with A.C., he had a close relationship with the Complainant. Indeed, in her testimony, the Complainant said that she viewed F.L. as her father. F.L. testified about a similar close relationship, and testified that he was closer to the Complainant than he was to R.L., his biological daughter.

[11] The family lived in A.C.’s house from 1997 to November 1, 2005. At that time, when the Complainant was just about ten years old, F.L. moved out of the house and into his own apartment. He continued to see both R.L. and the Complainant on a regular basis. There was no formal access or custody arrangement. There was an informal arrangement whereby F.L. saw the two girls from time to time, sometimes together and sometimes on their own. The amount of time that he saw the Complainant on her own is an issue in this trial, and I will return to it below.

[12] The apartment he lived in was a small one bedroom apartment, with a small kitchen, a living/dining room, a separate bedroom and a bathroom. All of the witnesses generally agreed on the configuration and dimensions of the apartment.

[13] Sometime in 2008 or early 2009, the accused met his wife, A.D.S. on the internet. She lived in Brazil, where the accused is from. He travelled to Brazil, and they began a relationship. They became engaged in December of 2009, and A.D.S. moved to Toronto on June 30th, 2010. She and F.L. were married shortly after that.

[14] In the summer and fall of 2010, the Complainant was spending less time with F.L. The amount of time she spent with the accused is in dispute. In any event, she had a final visit with F.L. sometime in November or early December of 2010.

[15] Shortly after that, the Complainant attempted to commit suicide by taking an overdose of sleeping pills. She was in the hospital for a period of time. She was interviewed by the Police in December of 2010, but no charges were laid at that time. The charges in this case were laid in the fall of 2012.

[16] I heard testimony from Officer Tonya Richard that she had taken over the investigation file from an Officer Barnhart, who did not testify in this case. Officer Richard testified that the investigation had not been closed, and that she continued with the investigation, and laid charges in the fall of 2012. In the circumstances, it does not appear that anything turns on the timing of the investigation.

b) The Crown’s Evidence

The Complainant

[17] The Complainant had a close relationship with F.L. She spent a great deal more time with him than with her mother when they were all living together. She testified that she treated him as her father.

[18] She would go out for bike rides, play soccer and go swimming with F.L. on a regular basis when she was younger. In terms of F.L.’s work, the Complainant testified that he went to work early, but that the days he worked would depend on the weather.

[19] The first sexual assault took place in the bathtub. The Complainant and F.L. had been out for a bike ride, had come home and had a bath together. They were both naked in the bathtub. F.L. asked the Complainant to touch his penis and then put it in her mouth. She does not remember if his penis was erect, whether he ejaculated, or how long this incident took. The Complainant also acknowledged, in cross examination, that she does not know whether the assault took place on a weekday or a weekend.

[20] The Complainant did not tell anyone about the assault because F.L. made her promise not to say anything to anyone about it.

[21] These sexual assaults became frequent, and happened two or three times a week until she was fourteen. She described different incidents, including occasions when F.L. would perform oral sex on her, as well as a few occasions, all in his apartment after he moved out, when F.L had anal sex with her. I will deal with the time period after F.L moved out separately.

[22] When F.L was living with A.C., the assaults would take place in different parts of the house. Some were in the Complainant’s bedroom, some were in the bathroom, or in the bedroom F.L and A.C. shared, and some were in the basement washroom and the basement laundry room.

[23] The incidents would often start when the Complainant would ask for something. When she was younger, this would be an activity such as a bike ride. When she was older she would ask for things such as money, electronics or a guitar. F.L would often respond by saying that the Complainant needed to do something for him in return. Sometimes he would initiate these assaults by using a hand gesture where he would stick his finger in the middle of her palm and press.

[24] She could not remember how long these assaults would last, but they followed the same pattern. They would start with the sign, or the discussion if they were alone, and would end when F.L. ejaculated.

[25] She testified that sometimes others would be in the house when an assault took place. She testified that, when she and F.L. came back from swimming, they would go into the basement to shower and an assault would take place there, even if there were people at home upstairs.

[26] She testified that assaults could have taken place on a weekday, as sometimes F.L. would stay home from work when the weather was poor. The Complainant also remembers missing a lot of school in Grades 1 and 2, and remembers that F.L would stay home with her sometimes. She also testified that generally her mother would pick her up from daycare.

[27] There was also testimony about a family trip to Brazil, shortly after the first assault took place. The Complainant was cross examined about the fact that she did not mention the assault in Brazil to anyone until her cross examination at the preliminary inquiry. Her explanation for this omission is that Brazil was not what came up in her mind, as the assaults took place mainly in her home and F.L.’s apartment.

[28] She could also not remember the specifics of the incident or incidents in Brazil, and when cross examined about this, she testified that she did not remember the details of all of the assaults, and could not visualize them all.

[29] The Complainant continued to see F.L after he moved out of the home in November of 2005. She would visit the accused at his apartment between one and three times a week, depending on his relationship with A.C. The Complainant continued to visit F.L. because he was her father.

[30] The assaults also continued at his apartment, which was a one-bedroom apartment. The Complainant could not remember if they happened every time that she went to see F.L., but she did remember them happening almost every time. The assaults would take place in the living room, his bedroom and his washroom. How they started would depend on whether R.L. was present. If she was present, then F.L. would use the hand gesture. If the two of them were alone, then they would discuss it.

[31] If R.L. was in the apartment when an assault took place, then the assault would be in the bedroom. The Complainant was cross-examined about why she would not scream for help or cry out when R.L. was present. The Complainant testified that she would never call out to R.L. for help because R.L. was her little sister.

[32] The assaults continued to involve oral sex as described above. However, there were also a few occasions where the assaults involved anal sex as well. The Complainant stated that there had been more than one incident of anal sex, and that anal sex had happened more than two times, but she was not sure if it was more than five times. She did not recall when the anal assaults started. She did not recall the length of time that any of these assaults took, but that they always ended with ejaculation.

[33] In the summer of 2010, the Complainant stopped visiting F.L. as often, because she was depressed, and she was seeing the assaults as being not normal. She did not want to put herself in the situation where these things happened to her anymore. She did not recall whether A.D.S. was present in the apartment when she went to visit F.L. after the summer of 2010, and does not remember doing any family activities with F.L. or A.D.S. in that time period.

[34] The Complainant had troubles with alcohol and, starting about age 10 would sneak alcohol out of her mother’s liquor cabinet. At approximately fourteen she started to use marijuana, and her mother found marijuana in her backpack on more than one occasion. She candidly acknowledged, on cross examination, that she had a history of “selective dishonesty” when she was younger, and that she was disrespectful to her mother.

[35] The Complainant does not remember the details of her last visit to F.L’s apartment in late November or December of 2012.

[36] She does not remember the specifics of how she made a complaint to the police. She overdosed on Ativan in December of 2010 in an attempt to commit suicide, and was hospitalized. When she woke up an investigation was underway. No charges were laid until 2012. She testified that she went to a drug rehabilitation centre in the summer of 2011.

[37] After the charges were dropped in 2011, she got very depressed and was seeking help. Ultimately, she decided to return to the police to pursue the complaint, and charges were laid in late 2012. I note that the Complainant was not sure whether the charges were dropped in 2011 or if no charges were laid in 2011. Nothing turns on this point.

Tonya Richel

[38] Officer Richel has been a member of the Peel Regional Police force for approximately 15 years. She took over the investigation of this case in October of 2012. She testified that, although the original complaint had been made at the end of 2010, the investigation had not been closed. She conducted a further interview of the Complainant and F.L. Once those interviews were complete, she laid charges against F.L.

[39] The evidence of Officer Richel was focused on the question of whether the investigation file had been closed prior to 2012, and what the status of the investigation was in 2012 when charges were laid. I do not see how this evidence is relevant to the case before me, and defence counsel did not make any significant arguments about why I should consider this evidence in reaching my decision. As a result, it is not necessary for me to address this evidence further.

c) The Defence Evidence

The Evidence of A.C.

[40] A.C. is the mother of the Complainant. She was called as a witness by the accused. A.C. and the accused were in a relationship between August of 1997 and November 1st, 2005. They were married on June 4th, 2005. At the time that her relationship with the accused started, she was living with her daughter, the Complainant, who was 2 years old at the time, as well as her two sons, who were 13 and 15 at the time. The eldest son moved out shortly after the accused moved in, but would visit regularly.

[41] A.C. had another daughter R.L., in the spring of 1999. She is also the accused’s daughter. Once R.L. was born, the accused would sometimes be responsible for bathing the Complainant.

[42] The Complainant was in daycare, and when R.L. was old enough to go to daycare, she went too. Both children were in after school care, and would generally be picked up from daycare by A.C. However, there would be occasions when the accused would pick the girls up from daycare.

[43] A.C. stated that the accused and R.L. would both be absent from school sometimes. A.C. would usually stay home with the girls if they were out of school. However, A.C. also stated that the accused’s work schedule would depend on the weather, and she would leave the children at home with him if it was a day when he was staying home. On some of these occasions, A.C.’s younger son could be at home as well.

[44] In terms of the daytime routine, A.C. confirmed that they were a busy family, and that the older boys were involved in their own activities. The second son, who lived in the house for most of the time that the accused was there, had his own friends. He was focused on school as he was an honours student, and was in university by the time the relationship between A.C. and F.L. ended. A.C. would be responsible for meal preparation, and testified that she spent more time with R.L. and the accused spent more time with the Plaintiff.

[45] A.C. stated that the Complainant missed a lot of time from school starting in Grade 6, after the accused moved out of the home. While there were occasions when the accused was home with the Complainant when he lived in the home, this did not happen two or three times a week. A.C. recalls that the Complainant’s behaviour was challenging when she was in Grade 2. She did not recall whether there were challenges and/or a lot of missed time from school in Grades 3, 4 or 5.

[46] A.C. described the Complainant’s relationship with the accused as being very good. The Complainant viewed the accused as her father, and was very emotionally attached to him. The Complainant was traumatized when the accused left the house.

[47] The accused regularly preferred the Complainant over R.L. When the Complainant was younger, this preference was shown by taking the Complainant on bike rides and other outings. When the Complainant got older, this preference was shown through extravagant gifts, such as a Mac Computer, clothing from Lulu Lemon and the like. R.L. was rarely given any of these types of gifts.

[48] A.C. stated that the accused continued to have a relationship with both the Complainant and R.L. after he moved out of the house, and would take them for visits. However, A.C. testified that the accused often took the girls for visits separately because having both of them at the same time was too much for him. On A.C.’s evidence, the Complainant would sometimes come back from these visits upset.

[49] A.C. testified that she found marijuana in the Complainants backpack sometime in late 2010. In October of 2010, the Complainant changed her appearance significantly by cutting off her hair. She also ran away from home on a few occasions in this time period, and A.C. would contact the police. Finally, in December of 2010, the Complainant attempted suicide, and had to be hospitalized.

[50] On the night before the Complainant attempted suicide, A.C. does not know where she was, and does not remember attempting to contact the accused.

The Evidence of A.D.S.

[51] She is the accused’s current wife. She met him over the internet in 2008, and they first visited in 2009 in Brazil. There was some confusion on A.D.S’s part about the precise dates of these events.

[52] She came to Canada on June 30th, 2010, and married the accused on July 16th, 2010. When she arrived in Canada, she immediately went to live with the accused in his one bedroom apartment. They have one child, who was born in May of 2011, and have moved to a larger apartment as a result.

[53] She met the Complainant and R.L. within about a week of arriving in Canada. She said that the relationship between the girls and the accused was very good when she met them. However, A.D.S. also testified that her relationship with the Complainant became different when the Complainant discovered that A.D.S. was pregnant.

[54] A.D.S. testified about a trip to Niagara Falls that she took with the accused, R.L, and the Complainant. She testified that the Complainant decided that she wanted to leave five minutes after she arrived in Niagara Falls.

[55] A.D.S. testified that the Complainant never visited if the accused was at work, but that there were a couple of occasions when R.L. would visit A.D.S when the accused was at work. A.D.S. also testified that she was at home on every occasion when either the Complainant or R.L. came to visit between July and December of 2010.

[56] In terms of the Complainant’s visits, A.D.S. stated that the Complainant would only come on weekends to visit, and that there were some weeks when she did not come at all. She was clear that there were never any weeks when the Complainant came to visit on a weekday rather than on a weekend. A.D.S. stated that there was no official schedule when either of the girls would come for a visit.

[57] Specifically, A.D.S. testified that it would have been impossible for the accused to have assaulted the Complainant between July and November of 2010 because she was always in the apartment and never left the apartment unless she was with the accused.

[58] A.D.S was vigorously cross-examined on this point by Crown Counsel. She testified that, when she first moved to Canada, she would clean the apartment, do some sewing, look at some English books on the computer and make dinner while the accused was at work. She testified that the accused worked at a good job in construction and would arrive home around 4:00 p.m.

[59] When she arrived in Canada, she did not speak any English at all. She is trying to learn the language, but is still having difficulties speaking English. She provided her testimony through a translator.

[60] Immediately after she arrived in Canada, A.D.S was introduced to the wife of one of the accused’s co-workers. This couple spoke Portuguese. They spent time together, and became friends. However, A.D.S. testified that she never went out alone with this friend, even to go shopping. The only activities that A.D.S. did with this friend was that the friend attended A.D.S.’s wedding in July of 2010, and this friend organized a baby shower in 2011 for A.D.S.

[61] Finally, A.D.S. testified that, the last time the Complainant visited the apartment, she arrived at about 9:00 pm and asked to stay the night. When they woke up the next morning, the Complainant was gone.

The Accused’s Evidence

[62] At the conclusion of the Defence case, the Accused testified on his own behalf. He confirmed the basic details of his relationship with A.C as set out above. He also confirmed that the Complainant treated him as a father figure, and he treated her as a daughter.

[63] The accused testified that, when he moved in with A.C., he was working in construction. He testified that he would leave for work at 5:00 am and would return home from work at 8:00 pm. He testified that this was the schedule he followed from Monday to Friday, and sometimes he worked Saturdays too. He also testified, on cross-examination, that when he got home from work, he would have a few minutes to play with the children, and then they (and he) would go to bed around 8:00 p.m.

[64] When he moved in with A.C., he was working as a bricklayer and then a foreman. He then, in approximately 1999 went to work for his own company, which shut down in 2001. He then went to another company in 2001, and a final company in 2007, where he worked until 2015. All of his jobs involved construction work. In cross-examination, he testified that his hours were from 7:00 am to 5:00 pm.

[65] He would not go to work on days when the weather conditions prevented work from being done, either when it was too cold or when it was raining. He testified, however, that he could only recall one occasion when he picked the children up from daycare, when A.C.’s car broke down. He testified that he was not at home with the Complainant when she missed school. On cross-examination, he confirmed that he was never at home with the Complainant when she was sick.

[66] He testified that he would sometimes, particularly after R.L. was born, give baths to the Complainant, who was about five at the time. On occasion, he would get into the bathtub with her, and they would both be naked. However, he testified that there was no sexual touching, sexual assault or any other untoward activity.

[67] Indeed, the accused denied any of the allegations of sexual assault, sexual interference and sexual touching that were put to him. He testified that, when he lived at A.C.’s house, it would not have been possible for him to sexually assault the Complainant because there were too many family members around.

[68] He testified that, when he moved to his apartment, he continued his relationship with his daughters. He testified that, originally, they came together but that after a while they would come to visit him separately. He testified that this change happened because they had different interests, and were arguing about what they would do.

[69] He testified that the girls visited separately for approximately a year, but that they started to come to visit him at the same time again because of the fact that his work schedule had gotten substantially busier. He testified that his work schedule at this time was to leave home at 6:30 am and come back at 7:30 pm.

[70] He testified that he gave both R.L and the Complainant presents. He testified that he would buy things such as a piano for R.L, and computers for both of them as well as guitars and an IPad Mac for the Complainant. He testified that, when they went to a mall, he would give his credit card to the girls who could get whatever they wanted. In cross examination, he testified that R.L. probably got more gifts than the Complainant did.

[71] He confirmed the testimony provided by A.D.S. about their living arrangements and the contact between the Complainant, himself and A.D.S. in the time from June 30th, 2010 to the end of November, 2010. This includes the testimony about the trip to Niagara Falls.

[72] He also stated that he thought that the relationship between the Complainant and A.D.S. was O.K., but that he discovered that the relationship was not good. He discovered this problem from A.D.S. after the fact and conceded in cross-examination that he had not noticed any problems in the relationship between the Complainant and A.D.S.

[73] The Complainant would come to the apartment between July and November of 2010 once or twice a week. In cross-examination, he stated that it was twice a week, and that the visits continued right up to the end of November, 2010. He disagreed with the Complainant’s evidence that the visits were becoming less frequent by this time.

[74] He testified about the last visit the Complainant made to his apartment, and confirmed that she had done different things with her hair, and that she got a spike in her ear. He confirmed that she stayed for part of the evening, but was gone by the morning. He then heard about the suicide attempt from A.C. a few days later.

[75] Finally, the accused was asked how long he would take to ejaculate during sex. His response was that it took him twenty minutes to ejaculate virtually every time he had sex, and that this had been consistent since he was in his early twenties.

The Law

[76] This is a credibility case. Although I heard from witnesses beyond the accused and the Complainant, the other witnesses did not provide any testimony that dealt directly with whether these assaults took place. However, these witnesses provided me with evidence that assists in my assessment of credibility. I will review that evidence in the analysis section below.

[77] Accordingly, the legal principles that I must apply start with the well-known passage from R. v. W.(D.), where Cory J. states (at 758):

First, if you believe the evidence of the accused, obviously you must acquit.

Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.

Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

[78] This is the law that governs this case. In applying these principles, I also note the point made by Duncan J. in R. v. Jaura ([2006] O.J. No. 4157 at paragraph 12), where he states “credibility must not be assessed in a way that has the effect of ignoring, diluting or worse, reversing the burden of proof. What must be avoided is an “either/or” approach where the trier of fact chooses between competing versions- particularly on the basis of mere preference of one over the other.” The trier of fact cannot simply choose between the accused’s version of events and the Complainants version. The analysis must be more complete than that. In other words, there is a difference between a finding of credibility and proof beyond a reasonable doubt (see, for example, R. v J.J.R.D. 2006 40088 (ON CA), [2006] O.J. No. 4749 (C.A.), at paragraph 46 and 47).

[79] There are also two other principles that are important in my analysis of this case. First, there is the issue of what significance I should attribute to the delay in the reporting of these allegations. I note two points about this. First, a delay in reporting sexual abuse, on its own, never gives rise to an adverse inference against the credibility of a complainant (see R. v. A.W.B. (2015 ONCA 185)). Second, it is important to remember that the Complainant was five years old at the time that these incidents started, and was fourteen years old when she reported them to the police. Any delay is clearly explained by the age of the Complainant.

[80] I do not attribute any significance to the delay in reporting these allegations to the police.

[81] Second, there is the issue of corroboration. Section 274 of the Criminal Code makes it clear that no evidence of corroboration is required, and it is not unsafe for a trier of fact to find the accused guilty in the absence of corroboration. For a discussion of this issue, see R v. Jaura, supra, at paragraphs 20 and 21.

Analysis

a) Do I Believe the Accused?

[82] I do not believe the accused. There are a number of striking inconsistencies in his story.

[83] First, there is his evidence about his work hours. This evidence was internally inconsistent, on some occasions to the point of incoherence. Two examples of these inconsistencies will suffice:

a) The accused testified that he left for work at 5:30 in the morning, and did not return until nearly 8:00 at night when he lived with A.C. However, he also provided different testimony about his hours of work in this time period, saying that he worked from 7:00 am to 5:00 pm.

b) The accused testified that, after he moved out of A.C.’s house, there was a period where the girls could only visit separately as they disagreed on what to do and could not get along. On his evidence, this lasted for a year and then he had them visit together again because he was working too hard. However, as noted above, his hours of work were from 7:30 am to 5 pm at this time, which is a lot less than the hours he was out of the house when he lived with A.C., and the same hours he worked when he lived with A.C. This is inconsistent.

[84] Second, there is his evidence about the gifts that he gave R.L and the Complainant. He testified that he would give his credit card to them to go into the store and purchase whatever they wanted. Given that the Complainant would have been between 10 and 14 when this happened, and that R.L. would have been between 5 and 9 when this happened, I find this evidence to be implausible at best.

[85] Third, there is his evidence that he did not even once stay home with the Complainant or R.L when they were sick, and that A.C. would always stay home with them. Given that the accused acknowledged that there would be days when he was unable to go to work because of weather, and given that he lived with A.C. for a period of approximately eight years, I also do not find this evidence credible or believable.

[86] I also note that the accused’s evidence is inconsistent, in at least some respects, with the evidence of all of the other witnesses. I will address those inconsistencies in the final section of this analysis.

b) Does the Accused’s Evidence Raise a Reasonable Doubt?

[87] The accused has flatly denied the allegations that were made against him. This denial, without more, does not raise a reasonable doubt. As I have noted above, I do not believe the accused’s testimony. It also does not raise a reasonable doubt in my mind.

[88] When the accused’s testimony is considered as a whole, it appears to be an attempt to deny his significant role in the Complainant’s life. All of his testimony was focused on minimizing the amount of time that the accused allegedly spent with the Complainant. This testimony flies in the face of one fact that everyone agrees on- that the Complainant and the accused had a close relationship, and that the Complainant treated the accused as her father. This relationship would not have developed if the accused spent minimal time with the Complainant.

[89] The picture that the accused attempted to paint also does not take into account the considerable amount of time that the accused and the Complainant spent together, out bike riding or going swimming. This was all time that they spent alone.

[90] As a final observation on this point, the accused was asked at the end of his testimony whether he felt guilty at all about what had happened to the Complainant or whether he had played any role in where she was in her life at this point. His response was to say that he did feel badly because he should have been in the Complainant’s life more. The accusations that the Complainant has made against the Accused are serious. He acknowledged that these accusations made him angry, but he was able to control the anger he felt. This anger is inconsistent with a desire to be in the Complainant’s life more. As a result, I find his evidence on this point implausible as well.

[91] In any event, however, based on all of these points and the points I listed in the first section, I do not find the accused believable, and his evidence does not raise a reasonable doubt in my mind either.

c) Does the Evidence Taken as a Whole Raise a Reasonable Doubt?

[92] The fact that I do not believe the accused, and his evidence does not raise a reasonable doubt does not conclude my analysis. Indeed, I cannot accept the Complainant’s evidence as proof beyond a reasonable doubt merely because I have rejected the accused’s evidence, or because I find her more credible than the accused. I must consider the evidence as a whole, and assess whether it raises a reasonable doubt.

[93] This consideration requires me to look at a number of facts, inconsistencies, and alleged inconsistencies in the evidence, and see whether they raise a reasonable doubt either individually or taken as a whole. I must review the following areas of evidence.

[94] First, there is the question of whether the Complainant’s description of the first assault has been sufficiently consistent to be accepted as fact. Counsel for the accused argues that it has not, and points to two inconsistencies, as follows:

a) He argues that the Complainant did not know whether this assault took place on a weekday or a weekend. That concern can be very briefly dealt with by observing that the Complainant was 5 or 6 at the time the assault took place, and would likely not have known (or remembered) whether it was a weekday or a weekend.

b) Counsel also argues that the Complainant was inconsistent in her evidence about whether, during the first incident, the accused asked her to touch his penis or to put it in her mouth. In her statement to police, the Complainant when first asked about the incident states that it involved touching his penis, and it turned into blowjobs over time. When she is asked later in the same interview to provide the details of the first assault, she stated that he asked her to touch his penis and then he asked her to put it in her mouth. She has maintained that story ever since. When cross-examined, she acknowledged this evidence, and maintained her version of events. I do not view this as a significant inconsistency because of the fact that the complainant, when asked for the details of the first assault, has provided the same version of events both to the police and in her evidence before me.

[95] Second, does the Complainant’s admitted history of “selective dishonesty” when she was in her early teens affects the credibility of her testimony? In my view, it does not for two reasons:

a) The Complainant candidly acknowledged this problem when she was testifying before me.

b) She also acknowledged a history of drug and alcohol abuse, as well as other psychological issues that she had at the time. The Complainant’s testimony in this regard actually enhances her credibility rather than diminishing it as she is able to recognize her own frailties.

[96] Third, Counsel for the accused argued that the assaults could not have taken place because there were other people in the house whenever the Complainant and F.L were at home. This argument does not raise a reasonable doubt for me for three reasons, as follows:

a) The house that the parties lived in was a three floor house. It is quite likely that the accused and the Complainant would be alone in part of the house at particular times.

b) The residents (generally R.L, A.C.’s younger son and A.C.) would all be busy with other activities. R.L. in particular would likely be being cared for by her mother, A.C, as she would have been between 1 and 5 when these incidents happened. In addition, A.C. testified that she would often be focused on meal preparation.

c) The Complainant was clear in her testimony that other people would be home when the assaults took place, but the evidence showed clear examples of how the assaults could have taken place even when people were home. For example, there was the fact that F.L. would take the Complainant to the basement to shower after swimming classes. There was also the fact that, for the first eighteen months after R.L. was born, F.L. was sometimes responsible for bathing the Complainant, and would sometimes be in the bathtub with her.

[97] Fourth, in assessing whether reasonable doubt exists, I have also considered the evidence from the witnesses about the gifts that F.L. gave to R.L. and to the Complainant. The Complainant provided a clear explanation that these sexual assaults often took place when she asked for something, as an “exchange”, and that they would start with either a discussion (if they were alone) or with a sign from the accused. A.C. also testified that the gifts that F.L. gave to the Complainant were “extravagant”, and far beyond what he had given to R.L. F.L. denies this evidence, and claims that the gifts were equal.

[98] As I have noted above, I did not believe the accused’s evidence on this point. However, when I review the evidence as a whole, I can go further. A.C.’s evidence on this point supports the testimony provided by the Complainant, and makes her version of events substantially more credible. In determining the case as a whole, the evidence about gifts is quite significant in my assessment of whether the Crown has proven its case beyond a reasonable doubt. A.C’s description of these gifts as “extravagant” and being beyond what was given to R.L. lends considerable credence to the Complainant’s evidence about how the assaults started and the fact there was an “exchange” associated with the assaults.

[99] Fifth, there is the question of whether the accused stayed home with the Complainant. This is one of the points where the accused’s evidence is inconsistent with all of the other testimony on this point. Both the Complainant and A.C. testified that there would have been times when the accused stayed home with the Complainant when she was sick. I accept their evidence and reject the accused’s evidence for the following reasons:

a) Given the absences that both R.L. and the Complainant had from school, A.C. would have had to miss work quite often, especially since R.L. had ear infections as a young child. Given this fact, and the accused’s testimony that he was an involved father, I find that the Accused would have volunteered to watch the children if he was available.

b) The accused was close to the children, so he would have wanted to spend time with them on occasions when he could. As a result, he would have volunteered to stay home with them if he was able to do so.

[100] Sixth, there is the question of the assaults in the apartment when R.L. was present. Questioning and argument from the accused’s counsel suggested two issues with the Complainant’s evidence of these assaults:

a) It was put to the Complainant in cross-examination that she could have screamed or cried out for help from R.L. during an assault. I accept unreservedly the Complainant’s response to this line of questioning, which was that R.L. was her little sister so she didn’t cry out.

b) The apartment was very small and R.L. would have noticed the assaults. As a result, they would not have happened when she was present. I do not accept this assertion either. There were separate rooms in the apartment, and the assaults would likely not have taken very long. Further, R.L. would have been between six and ten when these assaults were taking place, so it is quite possible that she would not have noticed.

[101] In addition, with respect to R.L’s presence in the apartment, I note that R.L. and the Complainant visited the accused separately for most of the time when F.L. lived in the apartment. Further, as I have noted above, the accused’s explanation for why the girls had to visit him separately is inconsistent. I reject his evidence and accept the evidence showing that the Complainant and R.L. often visited the accused at his apartment separately between 2005 and 2010.

[102] Seventh, it was suggested to the Complainant that her failure to mention the assaults in Brazil until the cross-examination at the preliminary inquiry was also a reason to reject her evidence. I do not accept this submission either. The Complainant’s explanation for not mentioning the assaults in Brazil was that they mostly happened in her house and in the accused’s apartment, and Brazil was not at the top of her mind when she gave her statement to the police or testified. I accept that explanation. I also note that, on the Complainants evidence, there were hundreds of assaults, and only two of them took place in Brazil. It is highly unlikely that she would mention these two particular assaults unless prompted.

[103] Eighth, the accused’s counsel suggested jealousy of A.D.S. as a motivation for her testimony. The accused’s own evidence, that he did not notice any problems in the relationship between A.D.S and the complainant in the summer of 2010 contradicts this argument. The Complainant herself thought she might have felt some jealousy but did not know for certain. She acknowledges that she stated she felt jealous at the preliminary inquiry. In any event, the very limited evidence before me does not demonstrate a motivation on the part of the Complainant to falsify her allegations. I acknowledge that the accused does not have to prove a motive for the Complainant’s complaints. I am simply addressing this issue because it was raised by counsel for the accused.

[104] This brings me to the last issue, which is the question of what happened in the last four months, between July of 2010 when A.D.S. moved in with the accused, and the Complainant’s last visit to the accused. Counsel points to a contradiction between the Complainant’s evidence that assaults happened in this time period, and A.D.S.’s evidence that the Complainant would never have been alone in the apartment with the accused in this time period. He says that this contradiction raises a reasonable doubt in the accused’s guilt.

[105] In assessing this argument, I note the following:

a) The accused testified that the Complainant was still visiting his apartment twice a week, every week, in this time period. The evidence of both A.D.S. and the Complainant is to the contrary. They both testified that the Complainant would likely only come once a week in this time period, and they both also testified that there were weeks when the Complainant did not visit the accused at all.

b) There is also A.D.S’s testimony that she never left the apartment except with the accused, who was at work for 10 hours a day five days a week. I find this evidence difficult to accept because the apartment was very small, and there would have been very little for A.C.S. to do in the apartment

c) There is also the fact that the Complainant had substance abuse problems in this time period, including using marijuana and other substances. This both supports the Complainant’s testimony that she was visiting less, and provides an explanation as to why her evidence about this time period was not completely clear.

[106] In the circumstances, this argument does not raise a reasonable doubt in my mind either. Further, the evidence when taken as a whole does not raise a reasonable doubt either.

[107] In the circumstances, I am satisfied beyond a reasonable doubt of the following:

a) The Complainant was regularly asked by F.L. to perform oral sex on him, and to engage in sexual touching with him, by touching his penis, and placing it in her mouth.

b) F.L., on at least two occasions, had anal sex with the Complainant against her will.

c) On more than one occasion, the accused performed oral sex on the Complainant.

d) The Complainant was between five and fourteen years old in the years when the assaults described in paragraphs a), b), and c) took place.

e) All of the assaults described in paragraphs a), b) and c) ended with F.L. ejaculating.

[108] This brings me to considering the precise charges against F.L.

Disposition

[109] The factual matrix underlying each of the charges is the same. However, the charges are for different offences, and each charge has different elements that must be met. The foregoing reasons will illustrate that the findings can be applied to all three offences, as the elements of the charges are all satisfied by the findings that I have made. However, it is convenient to set out the disposition on each charge.

[110] Count 1- sexual assault- the accused is charged under section 271 of the Criminal Code. The reasons above illustrate that I have found, beyond a reasonable doubt, that:

a) F.L. intentionally applied force to the Complainant.

b) As a matter of law, the Complainant did not have the capacity to consent, so the force is non-consensual.

[111] Accordingly, I find the accused guilty of this charge.

[112] Count 2- Sexual touching- the accused is charged under section 151 of the Criminal Code. The reasons above illustrate that I have found, beyond a reasonable doubt, that:

a) The Complainant was under the age of sixteen at the relevant times.

b) F.L. touched the Complainant with his penis, by placing it in the Complainant’s mouth, or having the Complainant place it in her mouth.

c) F.L. also touched the Complainant with his penis by placing it in her anus.

d) F.L. also touched the Complainant by performing oral sex on her on a number of occasions.

e) The touching was for a sexual purpose. The facts supporting this conclusion includes the fact that F.L. ejaculated on every occasion.

[113] Accordingly, I find the accused guilty of this charge.

[114] Count 3- Invitation to Sexual Touching- the accused is charged under section 152 of the Criminal Code. The reasons above illustrate that I have found, beyond a reasonable doubt, that:

a) The Complainant was between the ages of 5 and 14 at th