ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO: CR-14-30000757-0000

DATE: 20151211

B E T W E E N:

HER MAJESTY THE QUEEN

Brian Moreira for the Crown

• and -

R.R.

W. Alejandro Munoz for Mr. R.R.

HEARD: November 9, 10, 12, 13, and 18, 2015.

REASONS FOR JUDGMENT

Corrick J.

Introduction

[1] Mr. R.R. was involved in a romantic relationship with M.A. between the autumn of 2003 and January 18, 2005. While they were dating, Mr. R.R. would often spend the night at Ms. A.'s home on P[…]. Ms. A. lived with her three daughters, S., K. and M.N. In August 2004, Ms. A. and her daughters moved in to Mr. R.R.'s house at B[…].

[2] On July 27, 2013, M.N. gave a videotaped statement to police alleging that Mr. R.R. touched her sexually several times during the tenure of her mother’s relationship with him. As a result of the allegations made by M., Mr. R.R. was charged with sexual assault and sexual interference. He was tried by me without a jury.

Applications and Trial Process

[3] Two applications were filed prior to trial - an application to have similar fact evidence admitted at the trial, and a lost evidence application.

[4] The Crown applied to adduce evidence that Mr. R.R. sexually assaulted M.N.'s sisters, S. and K., during the same time frame. At the outset of the trial, counsel agreed that I would hear the similar fact evidence on the voir dire to determine its admissibility, together with the evidence on the trial proper. If I determined that the similar fact evidence was admissible, I would then apply it to the trial proper.

[5] The lost evidence application brought by Mr. R.R. related to a videotaped statement given to police by M. in 2005. Counsel agreed that I would determine that application at the end of the trial.

Trial Evidence

[6] M.N. was born in […] 1996. She was 19 years old when she testified before me. She was 8 or 9 years old at the time of the events in question. She testified that throughout the time that her mother had a relationship with Mr. R.R., he touched her and interfered with her sexually on numerous occasions.

[7] A videotaped statement M. gave to the police on July 17, 2013 was admitted at trial on consent, pursuant to s. 715.1 of the Criminal Code. M. adopted its contents while testifying.

[8] M. testified that when she was lying with her mother in her mother’s bed, Mr. R.R. assaulted her after her mother got up to take a shower or do the laundry. Mr. R.R. put his hand down the inside of M's underwear and rubbed her vagina a number of different times. M. was unsure how many times this occurred, but testified that it was more than a handful of times.

[9] M. also testified that when her mother left the room, Mr. R.R. would place her on top of him and move her around so that her vagina was rubbing his penis. This happened more than five times, according to M. At the same time, Mr. R.R. kissed her on the lips, and put his tongue in M.'s mouth. M. told police that she and Mr. R.R. would always have their underwear on when he did these things. During her viva voce testimony, M. said that there were times when Mr. R.R. removed her pyjama pants, and she would have no bottoms on at all.

[10] In addition to these assaults, which occurred both at the P[…] and B[…] homes, M. testified that Mr. R.R. assaulted her in the parking lot of a neighbourhood Tim Hortons. Mr. R.R., Ms. A., and M. drove to the Tim Hortons. When her mother went into the Tim Hortons, M. and Mr. R.R. got out of the car, and moved behind it. Mr. R.R. leaned his back against the car with M. in front of him. Mr. R.R. put his hand down M.'s pants and rubbed her vagina. He stopped when he saw Ms. A. returning to the car. According to M., this incident occurred after S. had moved out of the house and was living with her grandparents.

[11] The final incident that M. described happened on B[…] when Mr. R.R. pulled down his underwear, showed her his penis, and asked her to touch it. She did not comply and left the room.

[12] M. testified that she told Mr. R.R. that she did not like it when he rubbed her vagina. He told her not to worry and not to tell her mother. M. gave a number of reasons why she did not tell her mother about the assaults. She said that she had never had her father in her life, and that she did not know that what was happening was wrong. She also thought that she was doing something wrong and would get into trouble.

[13] M. testified that she was interviewed by the police in 2005. She told the police then that Mr. R.R. had not touched her. She testified that she said that because, at the time, she was so young that she did not know if she had done something wrong and she had seen how bad the relationship between her mother and her sister had become and she did not want that to happen to her. It is this interview that is the subject of the lost evidence application.

[14] M. eventually disclosed the assaults to her sisters in July 2013. She testified that she had come home with her mother from buying groceries. S. called her to come to K.'s room, where S. and K. were talking and crying. S. asked her if Mr. R.R. had touched her when she was younger. She said yes, but did not provide any details. Ms. A.'s sister, Ms. I., who was visiting from Holland, came into K.'s room and asked what was wrong. M. told her that she had been sexually molested. Ms. I. told Ms. A. that they had to go to the police station to report what had happened.

[15] M. testified that her sisters have never told her the details of what happened between them and Mr. R.R..

[16] In cross-examination, M. admitted knowing that K. had received a cheque from the Criminal Injuries Compensation Board as a result of being sexually assaulted by Mr. R.R.. M. did not remember when she became aware of the cheque. M. was not aware that S. had received a similar cheque.

[17] S., M.'s eldest sister, testified about M.'s disclosure of Mr. R.R.'s assaults. She testified that in July 2013, she, K. and M. were talking in the living room about something that had happened to K., unrelated to Mr. R.R.. K. and S. started crying and talking about Mr. R.R.. According to S., the look on M.'s face made her ask M. what was wrong. M. started to cry and told her sisters that Mr. R.R. had touched her too. A few moments later, her mother and aunt returned to the house and asked them why they were crying.

[18] S. testified that she does not know what Mr. R.R. did to M. Although she testified that she had not asked M. whether Mr. R.R. had touched her, her memory was refreshed from a statement she gave the police on January 18, 2005, in which she said that she had asked both of her sisters whether Mr. R.R. had touched them, and they both denied it.

[19] K., who is 20 years old, also testified about M.'s disclosure of the assaults. She testified that sometime in July or August 2013, S. came into her bedroom crying, telling her that the same thing that had happened to them had happened to M. K. had not been present when M. told S. K. testified that her mother and aunt came home and S. ran down the stairs to tell her mother what she had learned from M.

[20] K. testified that she has attempted to reach out to M. to talk about these incidents, but M. has not given her any details of what Mr. R.R. did to her.

[21] Ms. A., M.'s mother, testified that on July 16, 2013, she was in her dining room with her sister and brother-in-law discussing what had happened between Mr. R.R. and S. and K. Her sister asked her if she had spoken to M. to determine if Mr. R.R. had touched her. When Ms. A. replied that she had not, her sister said that she would. Her sister went upstairs to K.'s room, and a few minutes later called Ms. A. to come because M. had also been assaulted by Mr. R.R.. Ms. A. testified that S., K., and M. were present in K.'s room at the time. At the preliminary hearing, she testified that she did not remember whether S. was present at the time.

[22] Ms. A. and her sister took M. to the police station, where they were told to return the next day. The next day, July 17, 2013, they returned and M. gave a videotaped statement.

[23] After Ms. A.'s memory was refreshed from the video statements she gave on January 18, 2005 and on September 18, 2005, she agreed that she had asked M. on two occasions whether Mr. R.R. had touched her, and M. had said no.

[24] Mr. R.R. testified. He denied touching M. He said that he was never alone with S., K., or M.; that Ms. A. was always there. There was never a time when Ms. A. had to leave the house to get bread, milk, or medicine at the drug store. He testified that he got up early each morning and left for work before the girls woke up. He also said that Ms. A., who was a school bus driver, took the girls with her on her route and dropped them at school every day.

[25] According to Mr. R.R., his relationship with Ms. A. ended after S. alleged in January 2005 that he had sexually assaulted her. He no longer lived with Ms. A. after that date because he was not permitted to by the conditions of his judicial interim release. He lived with his brother, while Ms. A. and the girls remained in his home on B[…]. Mr. R.R. denied seeing Ms. A. after January 2005, except on two occasions. The first time was when he met her near a school to give her a new washing machine after the one in the B[…] residence broke down. The second time, they met at Malvern Plaza to arrange to have all of the utilities in the B[…] residence transferred to Ms. A.'s name. Mr. R.R. denied seeing Ms. A. at a Tim Hortons after January 2005, and he denied assaulting M. in the parking lot of the Tim Hortons.

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