COURT FILE NO.: 1800/14
DATE: 20151211
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
W.C.H.
Laura Casey, for the Crown
Donald J.C. Elliott, for the W.C.H.
HEARD: November 23, 24, 25, 26, 30 and December 1, 2015
INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION PURSUANT TO ORDER MADE UNDER SECTION 486.4 OF THE CRIMINAL CODE OF CANADA
DESOTTI, J.
[1] The accused was charged with an eleven count indictment with count # 11 withdrawn at outset as the Crown indicated that there was no reasonable prospect of a conviction. The ten remaining counts are as follows:
That he, between the 30th day of January 2002 and the 5th day of July 2006, at the Municipality of L.S. and the [indian reserve omitted], did for a sexual purpose touch E.K.(H.), a person under the age of fourteen, directly or indirectly with a part of his body, contrary to Section 151 of the Criminal Code of Canada.
That he, between the 30th day of January 2002 and the 5th day of July 2006, at the Municipality of L.S. and the [indian reserve omitted], did for a sexual purpose invite E.K. (H.), a person under the age of fourteen, to touch directly or indirectly with a part of her body, the body of W.C.H., contrary to Section 152 of the Criminal Code of Canada.
That he, between the 30th day of January 2002 and the 5th day of July 2006, at the Municipality of L.S. and the [indian reserve omitted], did have sexual intercourse with E. K. (H.) while knowing that E.K. (H.) was his daughter, contrary to Section 155 of the Criminal Code of Canada.
That he, between the 10th day of January 2001 and the 5th day of July 2006, at the Municipality of L.S. and the [indian reserve omitted], did for a sexual purpose touch M.K. (H.), a person under the age of fourteen, directly or indirectly with a part of his body, contrary to Section 151 of the Criminal Code of Canada.
That he, between the 10th day of January 2001 and the 5th day of July 2006, at the Municipality of L.S. and the [indian reserve omitted], did for a sexual purpose invite M.K. (H.), a person under the age of fourteen, to touch directly or indirectly with a part of his body, the body of W.C.H., contrary to Section 152 of the Criminal Code of Canada.
That he, between the 10th day of January 2001 and the 5th day of July 2006, at the Municipality of L.S. and the [indian reserve omitted], did have sexual intercourse with M.H. (K.) while knowing that M.H. (K.) was his son, contrary to Section 155 of the Criminal Code of Canada.
That he, between the 31st day of March 2003 and the 30th day of September 2003, at the Municipality of L.S., did for a sexual purpose touch M.K. (H.), a person under the age of fourteen, directly or indirectly with a part of his body, contrary to Section 151 of the Criminal Code of Canada.
That he, between the 31st day of March 2003 and the 30th day of September 2003, at the Municipality of L.S., did have sexual intercourse with M.K. (H.), while knowing the M.K. (H.) was his son, contrary to Section 155 of the Criminal Code of Canada.
That he, between the 1st day of May 1998 and the 5th day of July 2006, at the Municipality of L.S. and the [indian reserve omitted], did commit a sexual assault on A.K. (H.), contrary to Section 271 of the Criminal Code of Canada.
That he, between the 1st day of May 1998 and the 5th day of July 2006, at the Municipality of L.S. and the [indian reserve omitted] in the said Region, did by word of mouth knowingly utter a threat to cause death to A.K (H.), contrary to Section 264.1(1)(a) of the Criminal Code of Canada.
[2] At the conclusion of the testimony of M. K., counts #4, # 5, and #6 were also withdrawn with the Crown offering the same rationale as Count # 11.
[3] There remained seven counts, three counts concern sexual contact and intercourse with his daughter E. K., two counts with his son M. K. and one count with his former wife, A. K., plus an additional allegation of uttering a death threat against the same A. K.
[4] The accused did not testify and thus the evidence of the complainants must stand the two prong assessment and analysis of credibility and reliability.
A. The Facts
[5] E. K., who was born on […], 1998, indicated in her evidence that at the young age of 4 or 5 years she was forced by her father at various residences in L.County to engage in sexual intercourse, oral sex and anal sex and that this continued until the accused, W. C. H. was forced out of the matrimonial trailer on July 5th, 2006 by her mother, A. K. when A. K. saw the accused kissing a J. W. behind their trailer.
[6] M. K., who was born on […], 1995, indicated in his evidence that while he was about 8 years of age at the white house in Forest that his father forced him to have anal sex in his bedroom on this one occasion.
[7] A. K. indicated that after her hysterectomy in mid or late April of 1998, the accused, W. C. H. wanted to have vaginal sex with her. However, she was told by her physician that she could not have vaginal sex for at least six to eight weeks. Contrary to her expressed refusal to have sex, sometime in early May of 1998, her husband forced her to have sexual intercourse, which she described as a horrific experience causing excruciating pain and trauma. She indicated that throughout the experience she screamed in agony placing herself and her children in dire turmoil.
[8] She also indicated that because of this forced intercourse, she had untold gynecological difficulties thereafter including on this occasion feces coming out of her vaginal cavity.
B. Analysis
[9] I will deal with firstly with the complainant, M. K. and counts # 7 and # 8. The Crown attorney submits that there was no exaggeration in the disclosure by M. K. and no attempt to collude with any of his other siblings.
[10] In addition, she submits that there can be no suggestion of any motive in this complainant’s disclosure of this historical sexual assault. She concedes that M. K. has some memory shortcomings but that rather than concluding that this compromises his reliability, she affirms that this is consistent with an honest effort to reveal the circumstances of his father’s sexual assault on him.
[11] The incident in question arose when M. K. wanted to borrow his father’s toy tank that he positioned in his bedroom on a dresser. He indicated that E. and his brother were playing in a sandbox and sand dunes adjacent to their residence and that they wanted to use this toy tank.
[12] When he made this inquiry from his father, his father replied that he could have it but first he would have to let him “shove his dick in his ass”. He also indicated that he would have been punished had he taken the tank without his father’s permission.
[13] His response was to grab his mother’s scissors from a sewing bin and he threatened to cut off his father’s penis. His father then forced him onto the bed and took off his pants and had anal intercourse with him. He described the pain as nine and a half out of ten.
[14] M. K. also indicated that he heard his sister yelling from this same bedroom and exclaiming “don’t touch me” and that at times she exited the bedroom crying an shaking and she would say “don’t let him touch me” and she would hug M.
[15] There are some inconsistencies in his testimony. At the preliminary hearing, he indicated that he was wearing swimming trunks versus pants. He then indicated that it was shorts or pants. I would agree with Crown counsel that this discrepancy is minor in nature.
[16] The second inconsistency is the timing of this occurrence. In his testimony at the trial he believed it was during the school year perhaps late May of June as he was wearing a T-shirt. At the preliminary hearing, he indicated that he was pretty sure that it was in the summer and his explanation was that he had a “foggy mind”. Again, I would consider this to be a minor discrepancy.
[17] The next discrepancy, however, is significant. At the preliminary hearing, he indicated that after the accused was finished with him that he saw him roll a condom off his penis. He also indicated that he saw what he believed to be a condom wrapper on the floor of the bedroom.
[18] He never mentioned this fact during his trial testimony and in response to cross-examination he answered that he had not read the transcript of the preliminary hearing before testifying at the trial. He also indicated that he did not have much sleep last evening and was bipolar. In addition, he indicated that he had an inability to remember or recall details.
[19] The fourth inconsistency has to do with the bedside table. At the preliminary hearing, M. K. indicated that the accused closed the bedroom door and slid the bedside table in front of the door. He went on to say at the preliminary hearing that he felt he could not get away because of course the bedside table was blocking his way.
[20] Clearly, at the trial there was no mention of any bedside table or the sliding of same in front of the door. The explanation for this discrepancy was that M. K. “was tired and didn’t sleep well last night”. In short, he simply forgot this detail.
[21] The fifth area of concern is that since the accused was tried previously on allegations of assault charges to both his sons M. K. and M. K. (charges laid in 2006) and was acquitted of all offences in 2007), the complainant, M. K. was asked why he had not revealed this sexual assault allegation. To this the complainant, M. K. responded that he was frightened based on threats made by the accused that if he ever told anybody, his family would be killed. He was also ashamed of what happened to him.
[22] I am sympathetic to these latter concerns and the fact that only during the complainant’s, M.K.’s third statement to officer VanWolde in 2013 did he finally reveal the allegation of this sexual assault occasioned by his father, W. C. H. I also agree with Crown counsel that given the acquittal in 2007 to the assault charges, the entire lack of contact with the accused W. C. H. for over 6 years, and the change of residences to a new city, there did not seem to be any motive to now fabricate any allegations of sexual assault.
[23] On the other side of these submissions is the simple reality that the accused is presumed to be innocent of these charges until the Crown satisfies the court beyond a reasonable doubt that the evidence supports a conviction? Do the two significant inconsistencies in the version of events that was described by M. K. cause or create a reasonable doubt?
[24] In my view, they do! These are meaningful omissions. They change the entire version of the sexual assault on M. K. If the accused had a condom on and then rolled it off that begs the question when and how did he put this condom on in the course of the forced anal intercourse? If he slid the table across the floor to block the door when was it slid back after the sexual assault? Why is there no mention of these facts when the complainant, M. K testified about the circumstances of the sexual assault or when he left the room with the tank after the sexual assault?
[25] I appreciate that a witness can forget details and that this becomes even more understanding if you are a witness that suffers from short term memory loss and has a bipolar medical history and has not slept well before testifying. Nevertheless, while this may not affect any concern or consideration with respect to a witness’ credibility, it certainly affects how a trial judge views the reliability of the evidence before the court.
[26] For those brief reasons, the accused, W. C. H. is found not guilty of Counts # 7 and #8.
[27] Turning now to the charges with respect to the complainant, E. K. Her evidence was that she was sexually assaulted by her father on numerous occasions, with the first incident that she remembers at her residence in Forest (the white house), when she was 4 or 5 years old, and the final incident in the trailer at [indian reserve omitted], when she would have been 8 years old. The sexual assaults by her father included vaginal, anal intercourse, and oral sex, with vaginal sex being the most frequent and anal sex the least.
[28] The accused would indicate to his daughter that these acts of intercourse were secrets between she and him and the pain she experienced as a10 out of 10 when the accused first started these sexual contacts. With respect to oral sex, she indicated that the accused always asked her to rub his penis before initiating oral sex and usually her brothers were sent outside.
[29] On one occasion in the trailer she indicated that her father threatened to kill her cat if she told anyone and she could not recall whether the accused ever ejaculated throughout these many sexual assaults. She also indicated that she was upset when she was cross-examined about her brother M. and about the fact that her father used a sandwich bag as a condom.
[30] Again the issue that is raised during her cross-examination is not her credibility but her reliability. Now in both the evidence of the complainants, M. K. and E. K, the alleged sexual acts that were said to have been occasioned by the accused, W. C. H., are significant events in an by themselves absent any inconsistencies. When I am unable to detect any wrongful motive or any collusion among the three complainants, the sexual acts themselves convey a powerful message of criminality occasioned by their father.
[31] Nevertheless, the question that goes begging is why are there such glaring and significant differences in the evidence at the preliminary hearing and the evidence heard by this same complainant, E. K. at the trial?
[32] Crown counsel was live to this problem and has highlighted the most obvious five inconsistencies.
[33] The first inconsistency is that in her testimony before the court the complainant, E. K. could not recall if the accused ever ejaculated. At the preliminary hearing she indicated that he ejaculated on her vagina, or cloth, or handkerchief or her legs and stomach. She explained this difference by indicating that there are “so many different memories”.
[34] The second inconsistency occurs in her conversation with her friends about why they were observing her to be so sad and depressed all the time. She then disclosed that her father had sexually assaulted her. On the other hand, at the preliminary hearing she said she and her friends were talking about who was a virgin or who was not a virgin.
[35] As much as this is different than what she said at the trial, I agree with Crown counsel who pointed out that she didn’t seem to understand the significance of the difference. She seemingly answered that question or difference by indicating that she was only with her father and therefore she believes she is a virgin.
[36] This inconsistency, from my perspective, is not material, considering that she was discussing something with her girlfriends and she may have very well been discussing two things, that is her sadness and depression and the ‘virgin inquiry’ as well.
[37] The third inconsistency is in answer to the Crown’s inquiry about whether the accused ever performed oral sex on her, she denied that the accused ever performed oral sex. She also denied that the accused ever put his lips on her “anywhere”.
[38] At the preliminary hearing, however, she indicated that on two occasions the accused performed oral sex on her, once on Main St. in Forest and once in the trailer. The complainant’s explanation was that she forgot about these incidents as they only happened on two occasions and that her memory of them was probably repressed.
[39] In this regard, she indicated that she tried to forget everything about the preliminary hearing and that two weeks ago she began doing memory exercises with her counsellor. She also indicated in re-examination that this particular event slipped her mind.
[40] There is also her evidence that the boys were never around when the sexual assaults occurred but at least from the evidence of M. K. we learned that he heard his sister yell from the bedroom “don’t touch me”, which would mean that M. K. was in fact in the house when some of these occurrences allegedly occurred to the complainant, E. K.
[41] In addition, E. K. indicated that the children were often assaulted by the accused in the presence of her mother. The viewing of these assaults by her mother was denied by A. K. when she testified.
[42] The last inconsistency is that E. K. during the trial indicated that her father sometimes wore a sandwich bag over his penis during these sexual assaults. This detail was omitted at the preliminary hearing as E. K. indicated that she forgot and had “repressed things”.
[43] On this latter point, the Crown argues that this detail is so unique that even though it was omitted at the preliminary hearing it has the ring of truth to its disclosure and is “oddly specific”.
[44] Finally, the delayed disclosure came about only after she felt less stressed by school, her mom and friends encouraged her, she was initially scared of her mother’s reaction because she felt that her mother might feel guilty because she had not prevented this abuse from taking place, and she felt 100 percent safe from any potential harm.
[45] This is a difficult decision because of the frequency of the sexual assaults on E. K. and the extensive counselling that E. K. has undergone over many years. While I accept that there were some significant discrepancies in the evidence, does her testimony concerning the sexual assaults survive those serious shortcomings and convince me beyond a reasonable doubt that W. C. H. is guilty of these horrific sexual assaults?
[46] The reliability of E. K. is unfortunately significantly compromised by the difference in material details. Her evidence that she did not recall if her father ejaculated is impossible to reconcile with her previous discussion of the various locations she observed his ejaculate. Also, the use of a sandwich baggie as a condom is a significant detail that went wanting at the preliminary hearing and would also impact on whether there was or was not ejaculate noted.
[47] I am unconcerned with the delay in coming forward by E. K. and I am satisfied with the explanation. Nor am I concerned about any collusion or fabrication.
[48] Furthermore, I am unconcerned about the other three inconsistencies which I consider to be more minor in nature, but again they all impact on the reliability of this complainant. Her credibility is not in issue but her reliability on some very important differences in preliminary hearing and trial evidence leaves me with a reasonable doubt and there will be a finding of not guilty with respect to counts # 1, # 2, and # 3.
[49] With respect to the charge of sexual assault on the complainant, A. K., as the mother of the complainants, she came forward to reveal a horrendous sexual assault occasioned to her at the same time as her three children were making their disclosure.
[50] While it is true that she could have disclosed this sexual assault at an earlier time such as during the assault trial in 2006, she indicated that she was afraid of the accused and what he could do, she felt demeaned by the accused and had little self-esteem (piece of shit), she did not want to open that can of worms and was more focused on the children.
[51] She also indicated that when the children came forward to make their disclosure, she felt it was time to reveal not only the sexual assault incident when she was recovering from a hysterectomy, but all the other non-consensual sexual assaults that occurred after this incident and up until the accused was forced from the matrimonial trailer in July of 2006.
[52] I am only going to refer to the one incident on that Saturday in early May of 1998 just shortly after A. K. had a hysterectomy operation in mid or late April.
[53] She describes a vicious, non-consensual sexual assault, wherein she told the accused, W. C. H. that she could not and did not want to have sex. A sexual assault that was so painful that she screamed throughout the sexual assault causing a great deal of anxiety for her children who heard her screaming in pain, and in the course of this sexual assault, she sustained actual physical injuries with fecal matter seeping out of her vagina and numerous post-hysterectomy operations.
[54] Although challenged about this allegation, A. K. was a credible and reliable witness. She answered the questions in a forthright way. She explained the delay in bringing forward her allegations and frankly was unshaken and consistent in cross-examination.
[55] The Crown raises the possibility of honest but mistaken belief. I find that there was nothing in the manner in which A. K. refused to engage in sexual intercourse that could be construed or even misconstrued as consensual sex with respect to the incident post hysterectomy.
[56] There will be a finding of guilty with respect to count # 9.
[57] While there is some argument made by the Crown concerning other non-consensual sexual assaults after May of 1998, I am not able to identify any specific sexual assaults except that A. K. indicated that she was not consenting to having sex with the accused, but did not verbalize or communicate her disagreement or non-consent.
[58] In short, this conduct may have been abusive but does not constitute a series of sexual assaults. Likewise, while I am sympathetic to the physical and verbal abuse of A. K. by the accused, W. C. H., I am unable to have that degree of certainty with respect to allegation of threatening death as found in count # 10 and thus there will be a finding of not guilty on this count.
“Justice J.A. Desotti”
The Honourable Mr. Justice J.A. Desotti
Released: December 11, 2015
CASES CONSIDERED
R. v. D.M., [2014] O.J. No. 3177; R. v. Barras, [2006] O.J. No. 1246; R v. J.C.P., [1998] O.J. No. 3883; R v. H.B., [1995] O.J. No. 1745; R. v. E.E., [2003] O.J. No. 1518; R v. F.S., [2007] O.J. No. 4677; R. v W.S., [2002] O.J. No. 548; R v. Jolivet, [1992] O.J. No. 926; R v. S.R., [2009] O.J. No. 5470; R v. L.F., [1992] O.J. No. 1165; R. v. C.J., 1990 6484 (NL CA), 58 C.C.C. (3d) 167; R. v R.O., 2015 ONCA 814; R. v. M.(A.), (2014) ONCA 769
COURT FILE NO.: 1800/14
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
W.C.H.
REASONS FOR JUDGMENT
DESOTTI, J.
Released: December 11, 2015