R. v. A.A.G., 2015 ONSC 7476
COURT FILE NO.: 13-5056
DATE: 2015-12-01
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
A.A.G.
Defendant
John Semenoff, for the Crown
Natasha Calvinho, for the Defendant
HEARD: November 16– 20, 2015
Ray, J
Background
[1] The defendant faces eight counts as follows:
a. THAT THE SAID A.A.G. between the 1st day of January in the year 2003 and the 22nd day of June in the year 2005 at the City of Ottawa in the East Region, and elsewhere in Canada, did commit a sexual assault on SM, contrary to Section 271, subsection (1) of the Criminal Code.
b. AND FURTHER THAT THE SAID A.A.G. between the 1st day of January in the year 2003 and the 22nd day of June in the year 2005 at the City of Ottawa in the East Region, and elsewhere in Canada, did, with a part of his body, for a sexual purpose, directly touch the body of a person under the age of fourteen years, namely SM, contrary to Section 151 of the Criminal Code.
c. AND FURTHER THAT THE SAID A.A.G. between the 1st day of January in the year 2003 and the 22nd day of June in the year 2005 at the City of Ottawa in the East Region, and elsewhere in Canada, did, for a sexual purpose, counsel, a person under the age of fourteen years, namely SM, to directly touch with a part of his body, to wit her hand the body of A.A.G., contrary to Section 152 of the Criminal Code.
d. AND FURTHER THAT THE SAID A.A.G. between the 1st day of January in the year 2003 and the 22nd day of June in the year 2005 at the City of Ottawa in the East Region, and elsewhere in Canada, did, with intent to enable or assist himself to commit an indictable offence, namely sexual assault, administer to another person, namely SM a stupefying or overpowering drug, contrary to Section 246, clause (b) of the Criminal Code.
e. AND FURTHER THAT THE SAID A.A.G. between the 1st day of January in the year 2003 and the 22nd day of June in the year 2005 at the City of Ottawa in the East Region, and elsewhere in Canada, did commit an assault on SM, contrary to Section 266, of the Criminal Code.
f. AND FURTHER THAT THE SAID A.A.G. between the 1st day of January in the year 2003 and the 22nd day of June in the year 2005 at the City of Ottawa in the East Region, and elsewhere in Canada, did commit an assault on EM, contrary to Section 266, of the Criminal Code.
g. AND FURTHER THAT THE SAID A.A.G. between the 1st day of January in the year 2003 and the 22nd day of June in the year 2005 at the City of Ottawa in the East Region, and elsewhere in Canada, did in committing an assault on EM, use weapons, to wit a belt and wooden objects, contrary to Section 267(a) of the Criminal Code.
h. AND FURTHER THAT THE SAID A.A.G. between the 1st day of January in the year 2003 and the 22nd day of June in the year 2005 at the City of Ottawa in the East Region, and elsewhere in Canada, did commit an assault on AW, contrary to Section 266 of the Criminal Code.
[2] The family consisted of three children, SM, EM, and AX. Their mother AW during the period of the allegations was living with the defendant, and the children. While the counts only cover the period January, 2003 to June, 2005, evidence was led concerning the period before that as part of the narrative.
Evidence
[3] The defendant is 59 years of age, and resides in Ottawa. He was born in Nova Scotia and eventually moved to Surrey, British Columbia with his then wife and their three young children. They separated when he was in his 40’s. He moved to Ottawa and they stayed in B.C. Later he said that she and the children had moved to Yarmouth. He said his memory was not the best.
[4] The defendant has a long record which includes 12 convictions including robbery with violence, manslaughter, sexual assault (x2), assault, theft (x3), and false pretences requiring restitution in the amount of $25,000 between 1977 and 2006.
[5] From the time he met AW in 2001 through 2005, he was an admitted crack cocaine addict; particularly for the period 2003 to 2005 represented by the counts in the indictment. He moved in with AW and her three children about four months after meeting her. She lived in a pink three bedroom house in Surrey. He and AW occupied one bedroom, SM another and the two boys the third. He said he got on well with the children. SM was 10, EM was 8, and AX, 6. AW was working part time as a hairdresser. He was living on social assistance and drug dealing. He said he had not smoked crack before meeting AW. She introduced him to it, and he and AW spent a lot of time smoking crack together in their bedroom. When asked if he smoked in front of the children, he said -”Not really”.
[6] AW stopped working a few weeks after she received an inheritance. She was living on child support and both were on social assistance. The defendant had a friend with a grow op, and was selling for him.
[7] The defendant said he had never taken SM to the park alone, and had never sexually assaulted her there. He denied taking her with him when selling drugs, and said that he took all the children to the park to play basketball. He said he was closer to SM and she hung around him a lot.
[8] He said he spent time with the kids while AW spent her time in the bedroom smoking drugs.
[9] About a month after he moved in, AW left for California for two weeks to pick up an inheritance following the death of her father. The children were left with him. While she was gone, all the children had colds so he kept them home from school. He denied forcing SM to sleep with him while her mother was gone. He said there was no TV in the bedroom so they could not have watched porn. He said that EM was the more troublesome. He said he was aggressive and lippy. The defendant said he had to pull his pants down to spank EM’s bottom a “few times” but denied using a stick, belt or wooden spoon. On occasion, he said he made EM stand in the corner for 15 minutes for getting angry with his brother.
[10] He denied ever going into the bathroom when SM was having a shower; and denied going in, pulling back the shower curtain, leering at her, then masturbating in front of her.
[11] He said that when AW returned from California, she told him that she wanted to move to Windsor; and wanted to buy a truck for the move. He took SM with him to look for a truck and bought a ¾ ton diesel van for $800 from AW’s inheritance. They left three weeks later. His speakers, mixer boards, mikes and music accessories were taken since he said he earned money playing in bars on weekends. He said he would earn $300 a month. It would go for drugs and food. The van had no seats except for the front driver and passenger seats. He placed a bench seat against the side of the van for seating. He also had his dog. The boys would be on the bench seat and SM in the back laying on a made up bed. AW was in the passenger seat.
[12] He said the plan was to go to Yarmouth NS, but they only got as far as Ottawa. They stopped in Winnipeg because he had a sister there, but he could not find her address. Then they went to Calgary, and Kenora. He said they were twice stopped and questioned by the police and the CAS. They were on the road for a month. He denied sexually assaulting SM during the trip. He said that SM never slept up front with him, and that he slept in the back with the kids but only to get some sleep; then he would move up to the driver’s seat.
[13] He said they stayed for a week in Kenora with his Uncle, then drove to Calgary.
[14] He admitted throwing EM’s Leggo out of the van because the boys were fighting over it. He said this occurred in the Rockies.
[15] The first city in Ontario was Niagara Falls, where they stayed in a hotel for two weeks. He said that he went to churches to bum for money, and denied taking only SM with him. He said he took all the children with him. He denied any sexual touching of SM. He agreed that he had walked around alone with SM. She liked being with him. They walked together to look for apartments but did not find one. Another time, they “just walked.” Later during questioning, he said that he had not walked anywhere alone with SM in Niagara Falls because AW was jealous.
[16] Then they moved to Windsor. Where they stayed for a year. First they stayed in a hotel, and then into a house. He said that he and SM walked around together and found the house. It was a three bedroom house with a basement. The basement had a table about 40” wide and longer than 40”. It was a finished basement. He admitted that he had become really close with SM because she seemed depressed, and he would talk to her. He said he liked SM. When asked, he said he loved them all. He denied taking SM to the basement and denied sexually assaulting her. He said he used to go to the basement to smoke drugs. He said that AW became jealous and accused him of having an affair with a neighbour, Pam. He admitted that he had cheated on AW once in a while. Later under close questioning, he very reluctantly admitted that in fact they had moved from Niagara Falls to Ottawa – not to Windsor.
[17] They then left for Ottawa where they lived for 5 years. He later corrected this to say that he meant they had all been together for 5 years. He said his discipline of SM included smacking her on the buttocks or making her stand in the corner. Similarly he would make AX and EM stand in the corner. He denied calling EM a sissy, telling him that boys don’t cry, or ridiculing him; but he described EM as a “crier”. He said he only spanked him with his hand.
[18] When they arrived in Ottawa, they first went to a shelter on Carling where they all lived in one room. They were there for four months before they got into Ottawa Housing. Then he said they went to a three bedroom duplex on P[…] Drive. They lived there for 3 to 4 years. The children were in school. He denied ever keeping SM home so he could sexually assault her, and to smoke drugs. There were fights every day with AW over drugs because she wanted drugs all the time. She was always in the bedroom doing drugs. She would always start the fight by hitting him, throwing something, or grabbing a knife. He would then grab her by the neck. He claimed to have a scar on his hand from one of their altercations.
[19] He said he left P[…] Drive and lived alone for a week at GG’s because the rent was not being paid, too many drugs, and a lot of people were always coming around. He denied being asked by the police to leave. He denied assaulting SM either inside or outside the house. He said he took SM to school sometimes, and once made her change her clothes because her skirt was too short. Later he corrected himself when questioned and admitted that he had never lived at P[…] Drive with the children.
[20] He recalled SM going to a sleepover at a friend’s. It was the only time she had gone. He said he had been up doing drugs all night. In the morning he asked AW where SM was. Then insisted on going to get her because he said the step-father had been accused of sexual assaults. He admitted that when he came in the previous evening at around 7pm, that he knew EM and AX were there, but had not asked about SM until the next morning. He went over to the sleepover at 6am, banged on the door and insisted that SM come home. He denied taking her to GG’s afterwards. Later he said, that he had learned from AW that early morning that the stepfather was seldom around because of allegations of child abuse; and that prompted him to go over immediately to the house to get SM. He denied that in fact at the time he had been living at GG’s and had come over in the middle of the night looking for SM; and when he found she was not there, became angry and looked for her. He denied that when he found her he was so angry that he had full on intercourse with her. He said he had taken her back to P[…] Drive.
[21] He had volunteered that SM had missed some 50 days of school, but denied it was because he kept her home to sexually assault her. He said she had headaches or felt sick.
[22] When asked about AW showing him that SM had redness in her vaginal area, he said he had said that SM should go to the clinic; and AW had said no because of the risk of CAS involvement. He denied that his claim of bashfulness was to conceal the fact that of him being uncomfortable when he knew full well that he had caused SM’s vaginal redness and itchiness.
[23] He said they lived in an apartment before living at P[…] Drive and had met GG a neighbour. She agreed he could keep his music accessories at her house. Then when he said he was asked to leave the apartment, he moved in to her house into the basement. He said he and GG had become sexual about a week after moving in there. Less than a week later, after AW had told him they were getting kicked out of the apartment for non-payment of rent, AW and the children joined him. Later he admitted that it was possibly right that he had lived alone at GG’s for 9 months- but then insisted it was only for a week. AW would come over to smoke with him in the basement while SM was upstairs with GG. He said that AW would send SM to him to take to school, but he never kept her home from school to sexually assault her. He was getting along well with SM. At GG’s the children had their own room. SM had her own room upstairs.
[24] They were at GG’s for two months when the police arrived and arrested him. GG had become fed up with the way her house was being treated. GG left and had called the police. He said that SM asked the police not to take him away. He was in jail for 14 days while AW and the children were moved to a shelter on Carling. He denied that the family got kicked out of GG’s house at the time of his arrest, and denied that GG got kicked out. He said he joined them there for three months. Then later he admitted that he had left jail and went to the YMCA. This was in December, 2004. He admitted that in February, 2005, they moved to a house on Walkley Rd; and agreed that while there, he had gone to the police because he had been threatened by drug dealers. He admitted that they then moved to a motel on Richmond Rd; and in May 2005 into the Carling shelter. He agreed that it was possibly correct that he had not lived on P[…] Drive until after the children had been apprehended. Then later he insisted that they had been living on P[…] Drive when the sleepover incident occurred.
[25] He denied taking SM to a park, Mud Lake or Brittania Park and sexually assaulting her.
[26] He recalled an incident in Ottawa when he had Pam downstairs with him, and AW came down accusing him of having a woman down there. He said AW assaulted him. He then ripped her extensions out during the altercation. She went to bed, and he stayed with Pam who he had told to move back into the darkness. During cross-examination, he admitted that Pam was in Windsor not Ottawa. Later he said “She (AW) didn’t walk in on me. She didn’t even know Pam was there”.
[27] After the children were apprehended by the CAS, he and AW had visits with them 4 or 5 times. He denied threatening SM during the visits. He and AW separated when he refused to do urine tests, and was required to move out of the housing with AW.
[28] He denied sexually assaulting SM between January 2003 and 2005. He admitted he gave EM a beating on his bum; and said that with AW, she always hit first. He said that in Windsor, he had pulled EM’s pants down and had spanked him on his bare bottom. He said he had spanked SM once by slapping her on the butt because she had been teasing and hitting AX. He said he had pulled AW’s extensions out in the bedroom during an argument in Ottawa. However, she started it when she hit him in the face. He admitted that he had “somewhat of a temper” and admitted kicking the pop machine at the CAS, but denied threatening school personnel that he would “kick ass”.
[29] He admitted that he had spent quite a bit of time being high, that this affected his judgement, that there were fights over nothing; and that was not good parenting.
[30] He admitted that he had been cheating on AW, but said it was because she was not interested in being intimate with him. He admitted that he and AW were constantly fighting, and that the drugs were bordering on being out of control. But he denied that the only reason he stayed was for access to SM for sex.
[31] After the lunch break on his first day of his evidence, the defendant was noticeably slurring his words and dropping his voice when giving his evidence. I asked him to raise his voice and speak more clearly. He volunteered to me that he had just taken medication for schizophrenia, and that it affected him. Under questioning by counsel, he said that it was powerful medication and had been prescribed ten years earlier at the St Lawrence Centre which he said was a prison hospital. He insisted that he had been given the medication downstairs in the cell area. He denied that he had taken illicit drugs over the lunch break.
[32] EM is 22 years of age (born […], 1992), and currently lives with his biological father in the United States. He is the son of AW and lived in the same family with the defendant from the time he was approximately 8 years of age until he was apprehended by the CAS at age 13. The defendant entered the family approximately six months after EM’s mother AW, introduced him to EM, his sister SM, and his brother AX. SM is a year older than EM; and AX is four years younger than EM. At that time, they lived in Surrey, B.C. EM described the change in the family dynamics after the defendant came into the family. He said that initially, the defendant was easy to get along with, but after a few months began to exert control. The defendant wanted to be in charge and gradually became domineering. He took over responsibility for discipline of the children. The defendant insisted he be called Dad. EM said that while his mother was an occasional user of marijuana before the defendant came on the scene, afterwards, her marijuana use increased and she began to use cocaine. He saw powder on the table and saw them with their heads down sniffing it. The defendant’s friends who apparently used drugs began to come around a lot. He said his mother, who had worked, then quit working, used drugs more frequently, and turned to welfare with use of the food bank to keep food in the house.
[33] He said the defendant began to be violent with him and would ridicule him for crying as a child. He would grab at him, hit him, and used a belt and a stick on occasion. After approximately a year to two years they moved as a family in a van to Ontario; firstly to Windsor, and then to Ottawa. The violence intensified after the move, and the defendant used physical force on EM more often. From three to four times per week, it increased to five to six times per week after the move to Ottawa. Once he was hit on the neck and face leaving a mark. A teacher asked him about the mark, and he replied that it was caused during rough housing with his brother. He agreed that his mother would spank him from time to time, but he said it was gentle, and not very often. He said his mother almost always intervened to try to stop the defendant from hitting him.
[34] He recalled SM spending a lot of time with the defendant, particularly in the basement because he let her play on his X-Box.
[35] He recalled the defendant doing drug deals in front him as a child in B.C., and it continued and increased after the move to Ottawa. The people who the defendant brought into the house would be into alcohol, drugs and drug deals with him. He said the family was different after the defendant became involved. Aside from the violence towards him, he felt that the defendant favoured his sister; and there was more fighting and yelling with his mother. They would have physical altercations.
[36] When he was about 12, they were forced to leave their apartment and move to the home of GG. At GG’s home they all shared basement rooms with AW and the defendant in one bedroom, SM in a separate room, and the two boys including EM in the third room. From there they moved into a shelter. From the shelter they were apprehended by the CAS; and saw the defendant and their mother only during supervised visits. At the beginning, AW and the defendant would be present for the supervised visits. But after EM and SM asked that A not see them anymore, he did not attend. EM said it was because he wanted to visit his mother not the defendant, but didn’t tell anyone why at the time. They were looked after by foster parents to whom he confided that he had been beaten by the defendant. He was 12 or 13 years old. Then after counselling, the severity of the beatings came out. He said that the CAS had always been around a lot, but he never told of any of the serious problems until afterwards. He said he had a strong sense of wanting to keep the family together.
[37] Before leaving the apartment, and when they were all together with the defendant, SM told EM that the defendant had touched her inappropriately. After moving into foster care, SM told EM a bit more about the defendant having touched her inappropriately. He said that SM has since talked more about it. He said he was aware that she had written about it.
[38] He first told the police about the beatings when interviewed following his sister having gone to the police. He said that by that time she had told him of the rapes, the nightly molesting, and the drugs. He said that by this time he had decided the police needed to hear his story. He agreed that he blamed all of the bad things that had happened to him and the family on the defendant.
[39] SM is 24, the daughter of AW and the eldest of her siblings EM and AX. She moved with her mother and brothers to Surrey, B.C. when she was 6 years old because an Uncle lived there. They moved around a lot staying at different apartments until settling on a duplex. The defendant came into her life in 2001 when she was 10. He started hanging around a lot and seemed to be a cool guy, he liked music, and had a puppy. The defendant moved in with the family after a few weeks. Things changed. The defendant became physical with her brother EM, who the defendant disciplined with a closed and open fist “whenever he wanted”. He also hit him with belts, wooden spoons, his hands, and “anything he could find”.
[40] In January, 2002, a few months afterwards, the defendant’s first sexual attack on her occurred away from the home at a nearby park. The defendant had asked her to go with him to get drugs. He led her into a park to a darkened area, lifted her up on a bench so they were the same height and asked her to hug, then to kiss him. When she balked at kissing him, he grabbed her face, kissed her on the mouth; then he slammed her to the ground, pulled her pants off, and gave her oral sex. She said no –no – several times. She said he then played with himself until he ejaculated. The defendant told SM that if she ever said anything that he would say that she seduced him.
[41] Marijuana, cocaine, and crack were very much in evidence in the house at the time. Once in her mother’s bedroom she saw bags of marijuana, and powdered drugs. Her mother was constantly sick and spent most of her time in the bedroom.
[42] In February, 2002, when she was in the shower, the defendant started coming into the bathroom, would pull back the shower curtain, have a pee, then play with himself and ejaculate.
[43] In April, 2002, SM’s mother was away for a week or two at her father’s funeral, and they were left with the defendant. She was forced to sleep in the bedroom with him, and was sexually assaulted daily. He touched her sexually, made her touch him, watched porn films, made her smoke marijuana, and he would masturbate in front of her. Many times he also gave her oral sex. He kept her home from school most days so that these incidents occurred night and day.
[44] A few months after that, after her mother returned, the defendant bought an old panel van. It had two front seats and a bench seat from another truck. The family, including the defendant, loaded all their belongings and began to drive across Canada. First they arrived in Calgary where they went to the welfare office to ask for some money and a temporary place to stay. Then to Medicine Hat for a day or two; and then towards Winnipeg. In Winnipeg, they tried to get some more welfare money. They stayed a couple of days.
[45] During the trip, they occasionally stayed in motels or in the case of Medicine Hat, stayed at a man’s house. But mostly they slept in the van. The back was flattened down. She said that the defendant made her sleep up front in the passenger seat while he slept in the driver’s seat. She said that he had her lie next to him, where he sexually touched her, had her sexually touch him, and often gave her oral sex. All the assaults are the same.
[46] She remembered that she had her 11th birthday in Kenora (May 15), and recalled an argument between EM and the defendant when he threw out EM’s Leggo and his toys to make more room in the van. The police and the CAS became involved wanting to know why they were crossing the country and how they were treated. The CAS spoke to her alone and asked her about her treatment and conditions. She told them that all was ok. She said she had been taught by her mother and told by the defendant not to trust the police or the CAS, and they just wanted to break up families. She said she did not feel safe telling them anything
[47] The driving continued to the Soo where they stopped for a couple of days. Then on to Windsor. The total time to Windsor was 28 days. They found a home in Windsor. Each had a room with the boys sharing one bedroom. The defendant would come into her bedroom and start touching her. He took her to the basement in the home on one occasion and said that he was going to do something different, and was going to “stick it in her”. She remembered him taking her to the basement, put her up on a counter, forced her legs apart, and tried to penetrate her. He could only get the head of his penis in while she screamed in pain. She said he smacked her in the face and told her to be quiet until he was done. They spent Christmas 2002 in Windsor. She started grade 6. She said the sexual touching, hands in her pants, touching her breast, fingers in her vagina happened every night. It was always the same pattern except for when he took her to the basement. Her mother continued spending most of her time in her bedroom.
[48] After a while they moved on to Niagara Falls for a few months where they stayed in a motel. She did not go to school. The sexual assaults diminished because they were all in one room. She said the defendant would take her to an isolated spot and perform oral sex and sexual touching while her brothers were with her mother. Drugs were still an issue. The defendant would take her to the street to bum for money, and they lived on welfare.
[49] They moved on to Ottawa where they stayed at a motel until they found an apartment in the east end. The sexual assaults were less frequent since she was sharing a room with her brothers at the apartment. However, the defendant would sometimes come into her room, drag her into the living room, and perform oral sex and sexual touching on her. They then turned the dining room into a bedroom for her, and the defendant would come to her ‘bedroom’. After an incident at the apartment with the defendant and her mother fighting, the police were called, and the defendant was told he had to leave. The defendant moved a few houses away into a town-house owned by GG. During this time, The defendant would take her to school and would first (or instead,) take her to the basement of the G house. There, he put on porn movies, made her smoke a joint, performed oral sex on her, and made her touch his penis. This happened often. She was thirteen.
[50] During this time in August, 2004, she had gone to sleep over at a friend’s house. The defendant came to the house in the middle of the night and banged on the door insisting that she not be there. He returned and again loudly banged on the door until the friends parents told her she should leave. In the morning she went to the G house to the basement, where she had been told to go. The defendant told her “she was going to be a woman today.” She said no. The defendant punched her in the stomach, ripped off her clothes and fully penetrated her. He kept her there for a couple of days “doing whatever he wanted”, and giving her sleeping pills. She didn’t leave because the defendant told her not to. The defendant was not using protection and told her that if she got pregnant he would just punch her in the stomach or push her down the stairs.
[51] Because her mother could not afford the rent at the apartment, the family moved into GG house with the defendant where she had a separate bedroom. They stayed there a few months until December, 2004. The defendant would give her mother’s sleeping pills which made her groggy. She said she often awoke to find the defendant on top of her, porn on TV, and he was smoking crack. The sexual assaults continued. Sometimes the defendant would keep her home for disciplinary reasons, and then engage in forced oral sex and sexual touching. Her mother continued to stay in her own bedroom. SM felt resentment towards her mother for having abandoned her. The defendant continued to take her out on the street bumming for money because of threats from drug dealers to pay for drugs. The sex now included full penetration.
[52] She recounted that just before her 14th birthday, the defendant took her to a motel near Richmond for two days while he made her smoke crack, performed oral sex, and sexual touching. She said she was in the shower sobbing, and the defendant pulled her out of the shower, told her he would give her something to cry about, spread her legs, took her vaginal area in his mouth and bit down so hard, it left an injury for several months. She said the rapes continued with forced drugs, forced sex, forcing his penis into her vagina, and doing what he pleased. She did not report the abuse.
[53] Sometime after the defendant took her back to the town house, the family had to move out and into a shelter. The sexual assaults stopped since they were all in one room. But the defendant would take her out to an isolated favourite spot of his, and engage in forced intercourse.
[54] In June, 2005, while at the shelter, SM said she called the CAS and reported her neglect, lack of food, no accommodation, and no bus tickets for school. She was apprehended by the CAS June 22, 2005. She said the real reason she called the CAS was because she would turn 16 later that year, and the defendant had told her that once she turned 16, he was going to take her away and make her bear his children. She was questioned by Claudette the CAS worker but said nothing to her about the sexual assaults.
[55] She said that she had seen the defendant assault her mother from time to time. While it was mutual, her mother would only be trying to defend herself.
[56] After her apprehension, SM went to a foster family in a town in the Ottawa Valley. There she found friends, a school that she enjoyed, and a life that she enjoyed. She lived there for two years. She met a friend, J-L, in whom she confided about the sexual assaults. She said she was crying at the time, and felt she had a breakdown. She was 14. This was her first disclosure. While there, she had supervised access to her mother and the defendant. Her biological father was trying to gain custody and take them to his home in the US. She admitted that she was never left alone with the defendant or her mother. But she said that during one of the supervised visits, the defendant quietly took her aside and told her that if she ever left to live with her father, that he would find her and kill her. She was afraid of him. She last saw the defendant towards the end of 2005 when the children told the CAS they did not want to see the defendant anymore. While she liked her foster mother and enjoyed her life with her, she said nothing to her about the sexual assaults until much later.
[57] In June 2007, she moved to the US to live with her father and stepmother. While in the US, she began to “break her silence”. She told her step-mother, N.; and also a friend when she was in Grade 10 or 11. N. arranged for her to see a psychiatrist several times, and then private counselling. She telephoned her mother during this time and told her that the defendant had raped and molested her for years. The call did not end well since her mother began arguing about the defendant having had an affair with GG. Her friend W. told her she should write a book. This became a grade 12 writing project called “my stolen tomorrows”. She was 17 or 18 when she wrote the book. This manuscript showed W. as co-author but she said she actually wrote every word. W. simply helped her with organizing it, with grammar and with spelling.
[58] In 2012, she contacted the Ottawa Police and provided them with a four page written statement. She said she had been depressed and realized that she had to confront her fears. She also decided she wanted to rebuild her relationship with her mother.
[59] During cross-examination she denied that she was motivated to say all these things about the defendant because she blamed him for the terrible family life.
[60] She said the reason she never reported the sexual assaults by the defendant was because he had told her that if she ever told anyone, that he would hurt her, her brothers, and her mother; and no one would ever believe her. She said she took his threats to kill her very seriously because he was so violent
[61] PW was SM’s foster parent with whom SM, EM and AX lived for two years after their apprehension. She was an experienced foster parent, and lived on a farm with dogs in the country. She said AX who was 7 or 8 at the time was quite chatty at the time, but EM and SM were very quiet. It took about 6 weeks for SM to appear to relax. She had SM signed up for summer camp which she thoroughly enjoyed. She seriously got into sports and enjoyed it. SM had requested a light in her room, and later she found a hammer, knife and baseball bat under SM’s bed. SM said it made her feel safer. At one stage EM told her that when he was bad he got hurt.
[62] She recalled that the children began supervised access to the defendant and their mother in September, 2005. They seemed very apprehensive at first. SM was very quiet and said “I guess he will be there all the time”. Later she told PW that “I don’t want to go there if the defendant is there”. She recalled an incident at the access centre when the defendant and AX came into the lobby at the same time to get a pop, the machine wouldn’t work, and the defendant became so aggressive with the machine that security had to intervene. She said the defendant was only there for access a couple more times after that. She said that SM told her about the sexual assaults later after she returned from her father in Florida. Once after speaking to N., SM said to PW- “Do you think you should tell someone you had done something bad or were bad inside?”
[63] AW is the children’s mother. She is 43 and said she has problems remembering dates, birthdays and sometimes places. But she felt she could remember events. She met the defendant in Surrey, BC. She was a hairdresser with three children living in a three bedroom home. She and the children’s father had separated. He moved to Florida. She met the defendant through a friend in 2002, and four months later he moved in. Prior to meeting him she smoked marijuana, but after the defendant, she said she got involved with other drugs, and “smoked other things that I didn’t like”. She was not working, and lived on welfare and child support. The defendant lived on the sale of marijuana. She and the defendant did drugs in their room.
[64] The living arrangements were that she and the defendant shared a bedroom, SM had her own, and the two boys shared a bedroom. A couple of months after the defendant moved in, she said she left for California for a week or two after her father died in order to receive an inheritance. It was in the amount of $2300 which was later spent on drugs and a $900 van. While away she left the children in the defendant’s care. She said she telephoned home while away to enquire of the children, and none of them said there were any problems.
[65] A couple of months later, the defendant told her to buy a van so they could leave B.C. They intended to go to Winnipeg where the defendant had a sister. As it turned out, the sister wanted nothing to do with the defendant, so they moved on – driving east. During the drive, they spent most of the time sleeping in the van. She and the boys slept in the back; with SM and the defendant in the front. She complained that SM should be in the back with her not with the defendant, and after that SM slept in the back with her mother.
[66] Eventually they arrived in Windsor after a 28 day trip that included being stopped briefly by the police and the CAS. She said she got off drugs during the trip. They lived in a house in Windsor for a year. It had three bedrooms and a basement. She felt that the defendant was spending a lot of time with SM including taking her to school. During the day drug dealers were always around the house.
[67] One night she realized that the defendant was not in bed, and thought she heard a female voice in the basement. She checked the boys’ bedroom, and SM’s bedroom. It was very dark. She thought he was cheating on her since they had not been sleeping together. It was very dark in the basement. The defendant was there. He denied that anyone was there. When she pressed the issue he suddenly grabbed her by the throat so she could not breathe. She left for her room. He did not return. She said she did not question him again. She was heavily into marijuana and crack at the time.
[68] They left Windsor to get away from the drug dealers and headed for Ottawa. In Ottawa, welfare put them in a motel for month. It was two rooms with a connecting door in an area of Ottawa frequented by hookers and drug dealers. Then they found a two bedroom apartment in the east end. She said the dining room became SM’s bedroom. They were there for a year, after which the defendant was told by the police to leave because of the constant arguments and disruptions to the neighbours. She and the defendant had got back into drugs. They were constantly arguing about the defendant wanting money for drugs. The arguments between them were physical with pushing, shoving, and bruises. She said – “He starts and I finish”.
[69] When the defendant left the apartment, he went to live at GG’s town house a few doors down from the apartment. However he still came around the apartment very day. She thought he was having an affair with GG. He would come to take SM to GG’s. She and the defendant were arguing a lot over SM spending so much time with him. She recalled an incident when the defendant took SM away. He said he was going to take SM to his cousin’s, but didn’t return until the following day. She had gone out searching for him but could not find him. They were not at his cousin’s place.
[70] She found she could not afford the rent, so the defendant arranged for them to move into GG place with him. She continued to believe that he was having an affair with GG since he was not sleeping with her. She was quite preoccupied with her relationship or lack thereof with the defendant; and the defendant having affairs.
[71] Further police involvement, a move to a shelter, then back with the defendant, living at a motel, and finally they ended up at a shelter.
[72] She said she never saw the defendant use a belt or a stick to discipline EM, and never saw him being physical with EM.
[73] She said that the defendant spent an inordinate amount of time with SM. He was always taking her somewhere; and spent most of the time with her. They argued about the time he was spending with SM. She said that one evening, shortly after moving into the apartment in the east end, SM came to her to complain of itchiness, redness, and burning in her vaginal area. She said she examined it, and saw that SM’s hymen was absent suggesting that someone had been doing things to her. SM denied that anyone had been touching her. She said she asked the defendant to come and look at the redness. However he appeared not to want to look, and dismissed it as being unimportant. She said she wanted to take SM to the hospital for examination, but the defendant said it was not necessary. So she gave SM some cream to put on the redness. Nothing was said again. She said she felt that SM was scared, and didn’t want to say too much.
[74] After the children were apprehended by the CAS, and after SM had moved to be with her father in Florida, SM telephoned her. SM told her that while in B.C., the defendant had fondled and touched her sexually.
[75] She said that while in Vancouver, she did not keep large bags of drugs in her bedroom, but said that the defendant had large bags of marijuana that he sorted and sold.
[76] When asked if she was angry towards the defendant, she said she felt forgiveness but was not motivated by anger.
[77] Todd Campbell, Ottawa Police Sgt, and supervisor in charge of the court house cell block said that the defendant had brought no medications with him from the detention centre either this day or the day before, and that no prescribed medications had been given to him. He said that it is possible for illicit drugs to be available since the prisoners are in large cells. The defendant was in a cell with 15 or 20 other prisoners that day; and notwithstanding their efforts, illicit drugs are smuggled into the cells and shared around.
Positions of the Crown and the defendant
[78] The defendant contends that the defendant’s candour concerning his drug use, drug trafficking, and his criminal record is to his credit; and showed that he was not attempting to put himself in a good light. He was clear that he did not beat EM, and never sexually assaulted SM. SM is not to be believed that she was assaulted by the defendant daily and brutally since she did not tell anyone even though she had ample opportunity to report the assaults during private interviews with the CAS. SM’s motive was to get back at the defendant for the changes for the worse after he entered the life of the family. She noted that there were lots of contradictions between SM’s book, her statement to the police, and her evidence at the preliminary enquiry; all showing considerable embellishment. She contended that the daily sexual assaults during the drive across Canada were improbable given the other family members in the van; and no witnesses to the assaults. In particular, she argued that SM’s evidence that she walked willingly to GG’s house after the sleepover incident, when she acknowledged that she was going to be raped, raised a reasonable doubt. Similarly SM’s evidence of the Richmond Motel, when she was 14, and did not report anything to the clerk raises a reasonable doubt. Her evidence that he did not use a condom initially but then did use a condom without her becoming pregnant reflected negatively on her credibility. Then when she reported to the CAS in June 2005 that she was not being cared for, she said nothing about the sexual assaults. She was dismissive about the comment that SM made to PW about reporting something bad, and said it had nothing to do with this case. It is not disputed that there was discipline, but s. 43, CCC allows for punishment. EM did not report anything but claimed he was beaten regularly.
[79] The Crown’s position is that SM’s evidence was reliable, she had a good memory of the events, and the effect of the sexual assaults on her was palpable. EM’s core memory of the events was good, even though certain details were lacking. It was clear that EM had moved on, but as an adult was still affected by the assaultive behaviour by the defendant. AW’s evidence showed no animosity towards the defendant, and she acknowledged that SM had spent a lot of time with the defendant. The Crown evidence was clear and reliable that there had been chronic sexual abuse, and assaults. Insofar as the defendant, his evidence amounted to general denials. His memory of events in BC was good, but not Ottawa. He admitted pulling out AW’s extensions, but said it only happened once. The sleepover incident he described was simply not credible, and he noted the defendant’s evidence of the conversation had not been put to AW while she was being cross-examined. He noted the defendant’s criminal record was replete with crimes of violence and dishonesty. There was nothing in his evidence to raise a reasonable doubt.
The issues
[80] The questions revolve around credibility; and whether I am satisfied beyond a reasonable doubt that the defendant sexually assaulted SM as particularized in Counts 1 to 5. Whether I am satisfied beyond a reasonable doubt concerning the alleged assaults particularized in Counts 5 and 6; and whether I am satisfied beyond a reasonable doubt that the defendant assaulted AW as particularized in Count 7.
Analysis
[81] Since the defendant gave evidence, I must first consider whether I accept his evidence. If I do, then I must acquit him. If I do not, then I must consider, that even if I do not accept his evidence, whether I am I left with a reasonable doubt about the guilt of the defendant. If so, I must acquit him. If not, then I must consider whether on the whole of the evidence, I am left with a reasonable doubt. If so, I must acquit the defendant. If, however, on the whole of the evidence I am satisfied beyond a reasonable doubt of the guilt of the defendant, then I must find him guilty.
[82] I do not accept the defendant’s evidence, and nor am I left with a reasonable doubt by it. I found the defendant unreliable. His evidence was not reliable. It was internally inconsistent, and contradictory. While he acknowledged he had a poor memory, there was no accounting for his changed stories on very material issues. For example he said that while they were in Niagara Falls for two weeks staying at a hotel, he and SM walked around together looking for an apartment. He said she liked being with him. Later in his evidence he denied walking around alone with SM at the time because AW was jealous. He said that they had lived in Ottawa together for 5 years, then when he was questioned further, he denied saying they had lived in Ottawa for 5 years, and that he meant to say they had been all together for five years. A’s description of the trip across Canada, and the places they visited defies belief. I accept that geography and place names may not be his strong suit, but he clung to his story even when it was clearly in error. He insisted they had moved from Niagara Falls to Windsor, not the reverse, even when he was confronted with documentation that would suggest otherwise. While in Ottawa he persisted in saying they lived on P[…] Lane, even though for a brief moment he acknowledged that as a family they had never lived on P[…] Lane. He was an acknowledged crack cocaine addict throughout the period in question, which no doubt seriously affected his memory of events.
[83] I found the defendant to be evasive when he was aware of the prejudicial evidence against him; and self-congratulatory when he knew there was no evidence on a point. For example, when asked about AW catching him cheating on her in the basement, he said that she had not caught him because Pam was hiding in the basement in the dark-- AW did not know for sure Pam was there. For him, being caught does not include him doing something wrong as long as it cannot be proven. While that may work in a court of law, it is hardly a code to live by in a relationship. Her evidence was that she heard a female voice in the basement at the time. When she confronted him, she said he choked her. It seems to me that at the time he felt he had been caught. He frequently spoke in glowing terms of his responsibilities as a conscientious parent, while ignoring that these children were growing up in a household with two crack-head parents. He blamed AW for introducing him to crack cocaine, and blamed AW for always starting their physical altercations. Neither of them was capable of supporting the children or providing for their needs. While uttering general denials of wrong doing, he seemed oblivious to these serious allegations by these young children. His “No, Sir” responses in an unemotional tone suggested a lack of connection to the question. He did not appear to be concerned or to care about these allegations. His lengthy criminal record which was put to him in cross-examination included a number of serious crimes which not only go to the defendant’s credibility, but also to the violence of many of his offences.
[84] I do not accept the defendant’s submission that he was candid and honest. An example of his absence of candour was him saying during his evidence that he had taken prescribed medication at the lunch break; and that he had been given the medication by the authorities. I accept the evidence of Ottawa Police Sgt Campbell that the defendant brought no medication with him from the detention centre, and that they had not administered any medication to him. His demeanour so changed after the lunch break that it was very clear that he had taken a drug of some kind, and I so find. I reject the defendant’s evidence that he had taken prescription medication during the lunch break. Clearly he was not being candid when he said he had not taken illicit drugs for 21 months. He repeated that misstatement under oath several times, after he said he had taken prescription medication at the lunch break.
[85] In assessing the evidence of SM concerning the sexual assaults by the defendant between the ages of 10 and 14, I remind myself that while SM gave her evidence as a 23 year old adult, she was recalling events that occurred when she was a child. In other words, how should we view her evidence, as if she were an 11 to 14 year old? An insight into her self-image is captured by the question she asked of her foster mother while she was in the process of breaking her silence at age 17- “Do you think you should tell someone you had done something bad or were bad inside?” The evidence was that at the time she spoke to her foster mother, she was preoccupied with the events of her childhood, was receiving psychiatric counselling, and was writing her book to document the events and how she felt. It is reasonable to infer from her comment that she was feeling responsible for having done something bad. Indeed she felt she was a bad person, and had obviously felt that way for several years. This is the kind of answer that one would expect from a child who blames herself for having been sexually assaulted.[^1] It is also consistent with a child who avoids reporting acts of sexual abuse because she feels at fault, may get into trouble, or risks having the family torn apart by the CAS. . She was ashamed and blamed herself. Her evidence was that the defendant had made threats to her if she ever disclosed what he had done. She knew him to be violent. This would be an added reason for SM not to make a complaint. Her evidence was that both AW and the defendant had told her as a young child not to trust the CAS or the police because they break up families. I am satisfied that these are good reasons to explain why SM and EM failed to report the assaults even though they had the opportunity to do so. It does not negatively affect their credibility. To the contrary, I find that SM’s continuing struggle to deal with these incidents gives weight to her evidence.
[86] On the other hand, being mindful of the need to assess the evidence of SM as if she were giving her evidence at the time of the incidents, I do not give undue weight to her evidence that, for example, she was assaulted daily during the 28 day trip across Canada. It may have seemed like a daily occurrence to her as a child, but I accept that it while it occurred, it was probably not daily. Similarly, SM described the sexual assaults in Ottawa as being persistent, constant, and unrelenting. While that may be true, and while I have no doubt that AW was so immersed in her own drug addictions that she was not entirely cognizant of the defendant’s interactions with SM, I accept that the sexual assaults by the defendant against SM occurred, and in the way in which SM described them, but perhaps with less frequency. For the reasons noted above, I don’t consider SM’s description of these sexual assaults having occurred ‘daily’ to be a marker of unreliability of her evidence. It is more likely a marker of the memory of a child. On the other hand, SM recalled without hesitation in a chronological fashion the events that occurred.
[87] There were consistent themes of the sexual assaults that were confirmed. For example, the first attack that took place in Surrey, BC, involved oral sex on SM. That repeated itself for months afterwards as part of the narrative. The evidence of AW, and EM that the defendant was always with SM was confirmatory of her own evidence that she and the defendant spent a lot of time alone together. Then the defendant first attempted full intercourse in Windsor. He then succeeded with full intercourse in Ottawa at the G residence after the sleepover incident. This was followed almost immediately with the corroborated evidence of AW, SM and the defendant that she had an inflamed vagina. No one suggested that SM’s inflamed vagina was caused by anything or anybody else. She was too closely watched by the defendant. I accept SM’s description of being kept at the Richmond Motel. The timing is consistent with AW’s recollection of the defendant keeping SM out all night. It may be that the Richmond Motel was for two nights as recalled by SM or only for one night as recalled by AW. I have no doubt it happened.
[88] The defendant’s threats from time to time if SM disclosed the assaults were consistent with his history of violence; and with his beatings he gave to EM. The admitted loud physical altercations between the defendant and AW, lent credence to the physical threats by the defendant; and what he was capable of. As EM and SM both said in evidence, it was not long after the defendant came into the family, that he became the disciplinarian.
[89] AW’s evidence overall was not particularly impressive. She was an admitted drug addict, and spent most of her time in her bedroom, where it was unlikely that she was able to see much of anything. During her evidence she became quite defensive when it was suggested that she was a poor mother. I am satisfied, however, that had she taken her parenting responsibilities seriously, she probably would not have permitted the defendant to stay with the family, and would in any event have been more alert to the improper behaviour that was going on. She seemed more concerned with the defendant carrying on affairs with various women while he was with her. She said that while he would start the physical altercations, she would finish them. She denied ever hitting him first. Similarly the defendant denied starting any physicality - and blamed her.
[90] Counts 1 to 5: I find that the defendant sexually assaulted SM on more than one occasion as particularized in the Counts, that he frequently gave her oral sex while she was under 14, that he attempted to have full penile intercourse with SM, and that he succeeded in having full intercourse with SM at the G residence. This continued unabated while he frequently kept her home from school. On another occasion he took her to the Richmond Motel. I accept her description. I am satisfied that the defendant frequently had SM touch his penis while she under the age of 14; and that he masturbated in front of her. I am satisfied that the oral sex, the touching, and the invitation to touch were part of the defendant’s constant grooming of SM, as he threatened her, so that she would bear his children. I accept SM’s evidence that the defendant gave SM her mother’s sleeping medication, if that was what it was, and that she felt the effects of the drugs while the defendant assaulted her.
[91] Counts 5 and 6: I find that the defendant physically beat EM on a number of occasions as part of a bullying, ridiculing, and controlling plan to make EM submissive. I accept EM’s evidence that the defendant increased hitting him after they moved to Ottawa from three to four times a week- to five to six times a week. A belt or stick was frequently used by the defendant, and on one occasion a teacher asked him about the mark on his neck that had been caused by the beating.
[92] Count 7: Overall the evidence of the defendant’s assaults on AW seemed to be part of their physicality. The defendant probably assaulted her, however, I have some doubts. He testified that AW always started the fights. That raises a reasonable doubt, with the exception of the assault in the basement of the G residence when AW caught him with another woman – or maybe it was SM. I accept her evidence that she went down to the basement when she heard a woman’s voice, and that when she confronted the defendant, he grabbed her by the throat and choked her.
Conclusion
[93] Count 1- guilty.
[94] Count 2- guilty.
[95] Count 3- guilty.
[96] Count 4 – guilty.
[97] Count 5 – guilty.
[98] Count 6- guilty.
[99] Count 7- guilty.
[100] Count 8- guilty.
Honourable Justice Timothy Ray
Released: December 1, 2015
CITATION: R. v. A.A.G., 2015 ONSC 7476
COURT FILE NO.: 13-5056
DATE: 2015-12-01
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
A.A.G.
REASONS FOR JUDGEMENT
Honourable Justice Timothy Ray
Released: December 1, 2015
[^1]: R. v. W. (R.), 1992 CanLII 56 (SCC), [1992] 2 S.C.R. 122 @ page 144.