ONTARIO

SUPERIOR COURT OF JUSTICE

CITATION: R v. D.D. 2016 ONSC 1473

COURT FILE NO.: CR 15-902

DATE: 2016 03 02

BETWEEN:

HER MAJESTY THE QUEEN

Brian Linley, for the Crown

• and -

D.D

Hedley Thompson, for the accused

HEARD: January 18, 21, 22, 25, 2016

REASONS FOR JUDGMENT

WOOLLCOMBE J

A. Overview of the Case

[1] The accused, D.D., is charged with sexual offences in relation to two complainants. He is charged with both sexual assault and sexual interference relating to one incident with the first complainant, D.C. These are counts 7 and 8 in the indictment. He is charged with both sexual assault and sexual interference in relation to each of three incidents with a second complainant, M.M. These are counts 1 through 6 in the indictment.

[2] The evidence adduced by the Crown consisted of the testimony of each complainant. The accused chose to testify and called three defence witnesses.

[3] For the reasons that follow, I find the accused guilty of counts 7 and 8 in relation to D.C. I find him not guilty of counts 1 through 6 in relation to M.M.

B. Summary of the Evidence

i) The Evidence in Relation to D.C

a) D.C.’s Version of Events

[4] D.C. testified that he is 21 years old, having been born on […], 1994.

[5] His evidence related to a time when he lived in Hanover with his grandmother. He began living with his grandmother when he was 9 or 10, after moving out from living with his mother. D.C. explained that his grandmother became sick and ultimately died of non-Hodgkin’s lymphoma on April 10, 2011.

[6] D.C. testified that when his grandmother became ill, she needed to be away from home for chemotherapy and radiation treatments. She arranged with Ms. T. for him to stay at the D. home. D.C. understood that Ms. T. was Mr. D.’s wife or common law partner. D.C. believed that the first time he stayed at the D. home was in late 2008 or 2009 (when he was 13 turning 14 or 14 turning 15) and explained that there were multiple stays of various durations. Sometimes his grandmother would drive him to the D. home and sometimes Mr. D. would pick him up.

[7] While he was living with his grandmother, D.C. had in place a special school program for troubled teens. He had been expelled from his school and, while he had one theft incident, most of his difficulties were with authority figures like teachers. His grandmother strongly encouraged him to go to school.

[8] D.C. described the D. home. He thought that there had been 8 or 9 people living there. Mr. D. had a bedroom on the second floor, as did N.D. (Mr. D.’s youngest child) and K.T. (Ms. T.’s daughter). In addition, there were three bedrooms in the basement. He thought that J.D. (Mr. D.’s daughter), stayed in the basement as did another adult and I.T. (Ms. T.’s son). In addition, Mr. D.’s mother and grandmother lived there. He described the back yard as having a swimming pool, trampoline and hot tub.

[9] D.C. said that at the D. home, he slept in N.D.’s room on his top bunk. If N.D. had a friend over, D.C. slept on the couch on the main floor.

[10] D.C. testified that while at the D. home, Mr. D. gave him alcohol, marijuana and Tylenol 3’s as a drug. It was his evidence that Mr. D. introduced him to marijuana, although he agreed that he had used alcohol since the time he was 10 or 11. Mr. D. would offer him alcohol, marijuana and Tylenol 3’s when they were alone, and the two of them would take them, often in combination. The only room inside in which they smoked marijuana was Mr. D.’s bedroom. They did not smoke in front of Mr. D.’s children, but would smoke in front of Ms. T. They were often in the bedroom to watch movies and smoke joints. Sometimes others watched movies in the bedroom sitting on the bed as well.

[11] D.C said that he and Mr. D. frequently went hot-tubbing. He described an incident that took place when the children had gone to school and he and Mr. D. took the opportunity to smoke marijuana and to have a hot tub. Mr. D. put fabric softener into the hot tub, which he told D.C was to soften their skin. D.C said that he was wearing shorts. They sat beside each other in the tub and smoked marijuana.

[12] As D.C. moved to get out of the hot tub, his shorts slipped down. He tried to pull them up and said that Mr. D. tried to keep them down. He did not say anything and never told anyone about this. In fact, he testified that he did not think anything about this incident at the time, and only thought about it later.

[13] D.C. also described an incident at the D. home that he said happened a few days after the hot tub incident, in the winter of 2009 or 2010. On this occasion, after dinner, they did the dishes and then he went upstairs with Mr. D. to watch a movie. When they got to the bedroom, D.C. said that Ms. T. left.

[14] D.C. and Mr. D. sat on the bed. D.C. smoked about three joints of marijuana and took two Tylenol 3’s. He described himself as feeling “buzzed”. He said that Mr. D. also smoked marijuana and took Tylenol 3’s. They then sat on the bed watching a movie. They were leaning back against the headboard with their feet on the bed and a blanket pulled just above the waistline.

[15] At some point, D.C. said that Mr. D. put his right arm around D.C.’s upper body. D.C. did not say anything to Mr. D., who continued to have his arm around him for the rest of the movie. D.C. said that Mr. D. had hugged him before in a supportive way. But, he had never hugged him sexually and this made D.C. feel uncomfortable. Asked why, he responded that he was uncomfortable but that he was a “kid” and “so didn’t know right from wrong”. D.C. conceded that he could have physically gotten away had he tried to over this period.

[16] D.C. testified that during the movie, Mr. D. also put his left hand down D.C.’s shorts and boxers and started playing with his penis. His hand was directly on D.C’s penis and he played with the penis using up and down strokes. D.C. said that he had an erection but that he did not ejaculate. He did not say anything and did not try to move. This lasted about 10-15 minutes and ended when the movie was over.

[17] Again, D.C. acknowledged that he could have moved from the bed had he wanted to, but agreed that he did not know how to get out of the uncomfortable situation. He thought that a combination of the awkwardness and being stoned kept him there.

[18] D.C. testified that he was uncomfortable with what had happened. He went to N.D.’s room, put on pants, grabbed his duffel bag, and left the residence. He returned to his grandmother’s home. He was surprised to see that she had just returned home. He did not tell her why he had left the D. home or what had happened. He explained that he was more concerned about her getting better than anything else. He testified that his grandmother knew that something was wrong and kept asking him what was wrong, but he refused to tell her. He never went back to the D.’s home and said that after this incident, he stayed with his mother when his grandmother had treatments.

[19] Two or three days after this incident, D.C. said that Mr. D. came to his grandmother’s home to try to speak with him. D.C. said that he had not wanted to speak with Mr. D. and that when Mr. D. tried to force open the door to his bedroom, he slammed the door on his head and refused to speak with him. Mr. D. did not stay for long after this because D.C.’s grandmother threatened to call the police if he did not leave.

[20] D.C. was cross-examined about the timing of the incident in Mr. D.’s bedroom. He thought it had been 2-3 weeks after his birthday ([…]) and after the new year, as he recalled celebrating the new year with drinks at the D.’s. He could not say whether it was early 2009 or 2010 (when he was 14 or 15).

[21] D.C. never told anyone about what had happened at the D. home, including a CAS worker who became involved with him subsequently. He described himself as a “troubled teen” and said that he was denying to himself what had happened. He first spoke to the police when they approached him.

b) The Accused’s Version of Events

[22] Mr. D. testified that he had known D.C.’s grandmother and learned that D.C. was having difficulties with school. He testified that he asked if he could help getting D.C. up and to school. He testified that he would take coffee to D.C’s grandmother, and would then “fight” with D.C. about going to school.

[23] Mr. D. recalled that D.C.’s grandmother told him about having cancer and asked if D.C. could stay with them while she was away for treatments. He thought that D.C. had stayed in the period shortly before and after he turned 16, but he said he really had no idea of D.C.’s age. Mr. D. said that D.C. stayed at his home every second week for two or three days. He said that D.C. slept in N.D.’s room. Asked how many times he stayed, Mr. D. responded that after two or three days the kids in his home were tired of D.C. and so he would send him home as soon as his grandmother was home.

[24] Mr. D. was asked about his role with D.C during these stays. He responded that he was to keep an eye on him and keep him out of trouble. He said that after about a month, he gave up on trying to get D.C. to go to school. He also said that he caught D.C smoking marijuana and that he perceived D.C. to be “grumpy and miserable” and so provided him with marijuana at his home to “calm him”. They smoked marijuana together while they were alone. Mr. D. volunteered that D.C.’s grandmother knew that they smoked and asserted the D.C. smoked pot “long before” they met.

[25] Mr. D. agreed that he had a Tylenol 3 prescription at the time, but denied ever providing them to D.C. Asked how D.C. would know about its presence in the home, Mr. D. said that he would ask D.C. to get the pills for him from the kitchen china cabinet. Mr. D. said that if D.C. took some, it was not because he had given them to him. He also said that alcohol was only provided to D.C. on Christmas and New Year’s Eve, and that only a glass was given.

[26] Mr. D. agreed that there was a hot tub in the back yard of his home and that D.C. used it a lot. He denied ever joining in and said that he never used it because he did not like the feel on his skin.

[27] Mr. D. agreed that he probably smoked marijuana with D.C. in his bedroom. However, he was adamant that D.C. had never been alone with him in the bedroom. He said that there was always a door open to his room. He did agree that D.C. would have been in his bedroom on the bed watching TV and movies.

[28] Mr. D. denied ever putting his hand under D.C.’s clothing and touching him in a sexual way.

[29] According to Mr. D., D.C. stopped coming to his home in the winter. During his examination in chief, he said that he had gone to D.C.’s grandmother’s home once or twice after that but that there had never been an incident like D.C. described in which D.C. had banged his head on the door.

[30] Under cross-examination, however, when asked how D.C.’s stays at his home ended, Mr. D. said that D.C. had been “a little ass” and tried to punch J.D. in the face and so he had said “done” and “go”, and that D.C. had left. He agreed that he had gone over to D.C.’s grandmother’s home after and said that he had done so to retrieve a cell phone. He agreed that it had not been a friendly visit and that he had told D.C. that he was not coming back and to give him the cell phone. According to Mr. D., D.C.’s grandmother let him into the home but D.C. did not want him in his room and he opened the door and “whipped the phone down the hall”. Mr. D. agreed that D.C. was angry with him but said that “not for what you are thinking”. This was the last time Mr. D. spoke with D.C.

ii) The Evidence in Relation to M.M.

a) M.M.’s Version of Events

[31] M.M. testified that she is 19 years old, having been born on […], 1996. She has lived in Hanover with her parents for 10 or 11 years. She has a learning disability which has delayed her completion of high school. She has taken the semester off, but will return to high school in February 2016 to complete her last semester of grade 12. She is not presently working, but has monthly income through the Ontario Disability Support Program (O.D.S.P.).

[32] M.M. explained that she came to know Mr. D. because she was best friends with his step-daughter K.T. They met in grade 3 when M.M. was 8 years old and from that point, through until the summer after grade 8, M.M. frequently went to the D. home. Their houses were close together and M.M. described them as “sisters” who were at each other’s homes multiple times a week, often with overnight visits. In addition, Mr. D. would often drop them off at places, but M.M. said they really did not do things with him.

b) The first incident

[33] M.M. described an incident with Mr. D. that occurred in the July after she had completed grade 8. She was clear that this was in 2011, after she had turned 15.

[34] By way of background, M.M. said that she had been out with K.T. and that they returned to the D. home at 2:00 or 3:00 p.m. M.M. saw Mr. D. upstairs and probably said hello. She said that she sometimes spoke with him but that he was “touchy feely” and made her feel uncomfortable because he always wanted a hug. On this occasion, she and K.T. went to the basement where K.T.’s bedroom was located. M.M. did not recall there being anyone else in the basement, although she knew that there were other bedrooms down there.

[35] In the basement, they sat on K.T.’s bed. K.T. got her stuff and went to the basement bathroom, next to her room, to have a shower. Their plan was to go to M.M.’s home for supper and to hang out. M.M. remained in K.T.’s bedroom going through her bag while K.T. went to shower. She heard K.T. close the door and turn on the shower. M.M. agreed that the bathroom door and K.T.’s door were very close.

[36] Mr. D. then unexpectedly walked into K.T.’s bedroom. He asked where K.T. was. M.M. responded that she was in the shower.

[37] Mr. D. came and sat on the bed beside M.M. She said that he touched her right leg with his right hand and began moving his hand up her leg towards her vagina. His hand reached her vagina and was moving outside her clothing at that point. She was wearing shorts and a t-shirt. She said that he usually wore pajama pants and a t-shirt around the house.

[38] M.M. testified that she was scared and in shock. She asked him to stop and he did not respond. He then pushed her down on the bed with his arm and pushed her back and was on her. It felt like he was pulling her shorts down. While she did not fight him off, she did ask him to stop. Her arms were pinned beside her head. Her shorts and underpants were pushed together down to her ankles.

[39] M.M. said that Mr. D. spread her legs with his thighs. She recalled his pants being partially off and did not think he was wearing underwear. It felt like he had an erection. He put his penis into her vagina and moved. She described it as going on for a bit. She thought he had ejaculated but was not sure. M.M. believed he had heard the shower turn off and he stopped. He quickly pulled up his pants and moved from her. She said that it was a while before K.T. came out of the bathroom. She heard the bathroom door lock click and by then Mr. D. was out of the room. M.M. thought Mr. D. and K.T. spoke in the hall.

[40] M.M. said that she quickly pulled up her shorts so that K.T. would not see anything when she came back into the bedroom. She thought that 10-15 minutes had passed from the time Mr. D. came into the room until she pulled her shorts back up, but she was not counting. When K.T. returned to the room, she said that M.M. looked upset and asked what was wrong. M.M. said that Mr. D. had left, but that she did not tell K.T. what had happened because she was in shock and did not know what to do or say.

[41] Shortly after, M.M. told K.T. that she was not feeling good and walked home alone. Her mother was there when she arrived and her father was at work. M.M. did not tell her mother what had happened, and explained that she had been scared about what had happened, about why Mr. D. had done what he had done, and was confused. When her mother asked what was wrong, she told her that she was not feeling good.

c) The second incident

[42] About two weeks after the incident in K.T.’s bedroom, M.M. said that there was another incident. She believed that it was on a weekend. She and K.T. had been out during the day and were then back at the D. home. While there, she received a text from her sister that her mother had to work and so was unable to pick her up as planned. She told K.T., who spoke to Mr. D. He said that he would drive her home. This was at about 9:00 p.m.

[43] Mr. D. sent K.T. downstairs to get ready for bed. M.M. said that K.T. looked mad when Mr. D. told her to get ready for bed, but said that it was usual for K.T. to get ready for bed at 9:00 p.m. When asked whether this was a weeknight or weekend, M.M. said that it was probably a weekend, explaining that “we always hung out on weekends and sometimes in the week”. She said that K.T. had the same bedtimes on the weekend.

[44] Mr. D. drove a van, which M.M. had been in before. She testified that K.T. always came in the van to drop her off so it was very unusual not to have K.T. with them and she was concerned. M.M. was asked whether, before she got the text, she had a certain time when she was supposed to be home. She said that it was probably around 9:00 p.m. When asked why she got in the van with Mr. D., given her concerns, she said that she would be in trouble if she was not home at the time she was supposed to be.

[45] After saying good-bye to K.T., M.M. got into the van and into the seat she usually occupied, which was in the second row of seats behind the front passenger seat. She and Mr. D. were alone in the van. She acknowledged having had her cell phone with her, but said that it was in her bag the whole time and that she never took it out. When it was suggested to her that she could have used it to get help, she said that she had it so that her parents could get hold of her.

[46] M.M. said that Mr. D. drove the van into a parking lot behind the Legion where there was an alley. She said that there was no lighting. She did not know why they were there and asked him what he was doing. She said that she was starting to panic inside and that her hands were clammy. He did not respond but got out of the van and got into the back seat. She undid her seatbelt and tried to open the sliding side door of the van as she planned to leave. But she testified that it had been locked and that she could not open it.

[47] M.M. marked on a map where the Legion was located in Hanover. Under cross-examination she was clear that she did not see any lights being on. She did not see any security cameras. She said that there were no other cars in the parking lot of the Legion.

[48] When Mr. D. got in the back seat, wearing his usual t-shirt and pajama pants, he started touching her leg near her vagina and felt his way up to her vagina. He did not say anything. She was asking him to stop. Mr. D. was sitting in the van and he grabbed her shorts and pulled them down. She described herself as being down on one knee with him holding her with both his hands around her waist and on her shorts. She described trying to push him away with her hands, but said that she was unable to get him off her.

[49] M.M. was cross-examined about whether she wore shorts or capris that evening. She testified that she usually wore shorts. She said that she did not wear a lot of capris and that she did not think that she wore capris that night. She was reminded of her evidence at the preliminary inquiry at which time when asked what she was wearing, she had responded, “shorts probably capris…” She said that she had not had a bunch of capris that summer and agreed that she had based her evidence on how she assessed her wardrobe that summer. When it was suggested to her that capris are not shorts, she answered that some capris are above the knee and that she probably wore ones that did not cover her knee.

[50] M.M. was also cross-examined about her evidence that she had taken off her seatbelt. She agreed that she had taken it off. She was referred to her evidence at the preliminary inquiry at which time she had said, “And my – then he hit my seat belt and my seat belt came off…”. She tried to explain that she had not been clear at the preliminary inquiry, and that in fact she had hit the button on the seatbelt and that Mr. D. then did something to make the belt come off.

[51] M.M. said that Mr. D. put his penis into her while he continued to hold her. She was asking him to stop but said that he did not. She recalled him telling her to shut up. He moved his penis in and out for about 10 to 15 minutes. She was not sure if he ejaculated. When he pulled his penis out, he pulled his pants up and returned to the front seat of the van. M.M. said that she pulled her pants up and that Mr. D. drove her home.

[52] Once at home, M.M. went inside quickly. Her mother was at work and her father was in bed. She did not speak to her older sister. She said that her body hurt, particularly her legs, vagina and her knee. She had a shower in order to get rid of what she described as a horrible and disgusting feeling. She wrapped herself up and went to her bedroom. She did not tell anyone about what had happened because she was scared of Mr. D. and what he might do if she told someone.

[53] After this, M.M. continued to hang out with K.T., although she did not tell K.T. what had happened because she did not know if K.T. would believe her. She said it was a while before she went back to the D. home.

d) The third incident

[54] M.M. described a third incident in which something happened with Mr. D. This was a while after the incident at the Legion and M.M. said that K.T. was getting mad with her for not going to her house. K.T. had invited her over on many occasions and M.M. had made various excuses not to go.

[55] At some point in August, the two of them went to the Hanover pool to swim. They then walked back to K.T.’s home, arriving at about 2:00 p.m. They saw Mr. D. and spoke to him for a bit before going downstairs to K.T.’s bedroom. M.M said that they were both wearing their wet bathing suits under their shorts and t-shirts, and had gone to K.T.’s to obtain dry clothes.

[56] M.M. said that K.T. went to the washroom to change and that she then heard her open the washroom door and go upstairs. M.M. was reminded that at the preliminary inquiry, she had testified that K.T. had showered that day to get rid of the chlorine from the pool. M.M. then said that she recalled K.T. going into the washroom and changing. She said that she heard the water and thinks K.T. was getting rid of the chlorine. She explained that “she didn’t fully shower” but was going to get the chlorine out of her hair. She believed this because K.T. told her that she was going to wash her hair.

[57] M.M. said that she was uncomfortable with her wet bathing suit on and so wanted to change. She had an extra shirt and a bra in her bag. She recalled taking off her shirt and said that Mr. D. opened the door and came into the room. She said that at that point she was standing wearing her bathing suit bottoms and shorts, on but had taken off her t-shirt and just had her bathing suit top on.

[58] Under cross-examination, M.M. was reminded of her evidence at the preliminary inquiry when she said that as Mr. D. walked in, she had removed her shorts. She agreed that she had said this and testified that she guessed her shorts were off.

[59] M.M. said that she asked Mr. D. what he was doing and that he did not respond. She recalled him pushing her down on the floor on her back and being on top of her. He pulled her shorts down with her bathing suit bottoms. She asked him to stop but he would not.

[60] M.M. was not sure if Mr. D. had an erection but thought so. She tried to push him off but he grabbed one of her wrists. He put his penis into her vagina and moved in towards her. She did not know if he ejaculated.

[61] M.M.’s evidence was somewhat confused as to when and whether she heard K.T. coming back downstairs and how long after she had gone upstairs this was. It seemed to be her evidence that she recalled hearing K.T. coming down the stairs and said that Mr. D. pulled away quickly and told her to be quiet and not to say anything. He left the room and spoke to K.T. in the hallway.

[62] M.M. testified that she pulled her shorts up quickly and grabbed her t-shirt. She told K.T. that she was not feeling good and said that she walked home alone. She did not tell K.T. what had happened. Her mum was at home when she arrived and she recalled her mum asking her what was wrong as she appeared as though she had been crying. She told her mother that she was not feeling good and went upstairs, changed and got into bed. She described herself as scared of Mr. D. She explained that she did not tell her mum anything because her mum and Mr. D. were friends and she did not think anyone would believe her if she said what had happened.

e) M.M.’s evidence that these incidents were in 2011

[63] M.M. was very clear in her evidence that she believed these three incidents to have occurred in the summer of 2011 when she was 15 and about to start grade 9. She testified that the police had mistakenly thought that she had been speaking about 2012, but that she was sure that it was 2011. She described herself as having been nervous about starting high school that summer and said that she and K.T. discussed starting high school, although it was not a topic that they discussed much.

[64] M.M. was asked about the timing of the sexual assaults in relation to R.D.’s death. She remembered him dying after a vehicle he was working on fell onto him. She said that she was there when the police came. She agreed that he had died in 2010, but denied that the sexual assaults were in the months immediately after.

[65] Under cross-examination, it was suggested to M.M. that she was unsure that the allegations occurred in 2011 and not 2010. She was certain that it was the summer after grade 8, and before grade 9, and was not the summer after R.D. died.

[66] On the basis of M.M.,’s evidence, with the consent of the defence, the Crown sought to amend the date in the indictment for the charges in relation to M.M. from 2012 to 2011. I permitted this amendment.

f) M.M. learned of K.T.’s allegations

[67] M.M. testified that at some point after the third incident, she and K.T. were fighting. She called the D. home and was told that K.T. had moved out. She later learned that K.T. had made sexual allegations about Mr. D. to the police. Shortly after learning about this, M.M. went to K.T.’s grandparents’ trailer, where she was living, and was told about what had happened to K.T. M.M.’s mother was present. M.M. testified that she was asked if Mr. D. had ever done anything to her. She said that he was “touchy feely” and had touched her leg once. She explained that she had not said anything about the sexual assaults because she scared. She said that she did not know if her mother would believe her because she and Mr. D. were friends. She was scared of how her mother would feel and that she would be heartbroken to learn what had happened. M.M. thought this had been in the summer.

[68] It was suggested to M.M. that after the meeting at the trailer, K.T. wanted her to come forward and talk about being touched by Mr. D. M.M. said that she did not tell K.T. what had happened. She denied ever telling J.D. or B.D. that K.T. tried to get her to lie. She said that she never told them that she told K.T. that she would not lie.

g) M.M.’s visits to the D. home after the third incident

[69] During her examination in chief, M.M. said that after the third incident, she did return to the D. home, but that she always made sure that K.T. or other people were with her. Once the two of them were in high school, they drifted apart.

[70] Under cross-examination, M.M. initially said that after the third assault, she had returned to the D. home “maybe two times” but it was with K.T. and was in and out. She also saw Mr. D. when he came to the door of her home to see her mum. She then agreed that she had been back at the D. home with her mum, but said she would wait in the car.

[71] Under further cross-examination, M.M. agreed that she had visited the D. home after K.T. moved out, but only with her mother, and not for hours. When it was suggested to her that she would go in the house and talk with J.D., she said she was “not fully in the house”. She said that these visits were to see how J.D. was, and that she did not know if anything had happened to J.D. and wanted to check if she was okay. She denied that these visits were a couple of hours. She said that the only times she visited were with her mother present.

h) M.M.’s contact with Mr. D. after the third incident

[72] M.M. acknowledged having taken a car trip with her mum and the D. family in the summer she was 16 or 17 but said that this was the only time she was in his van after the sexual assault. She denied having travelled with her mum to London to get Mr. D. from hospital. She did agree that Mr. D. had been in her mum’s car when they went to Toronto for her to get a tattoo.

i) Disclosure to the police

[73] It was M.M.’s evidence that it was not until February 2014 or 2015 that she went to the police. She was 17, from which I infer that it was 2014.

[74] M.M. said that she was prompted to go to the police after walking to school with her boyfriend D.H. and seeing Mr. D. He stopped to speak with them. She was scared that he was “going to try again” and did not want what had happened to her to happen to another boy or girl. She told her mother about what had happened and her mother cried. She then told D.H. about what had happened. They went to Tim Horton’s to discuss it. A few days later they went to the police.

[75] M.M. agreed that after she had spoken with the police, she saw Constable Duffy on February 6, 2014 and was asked about where D.H. was. She said that she did not know as they were taking a break. She said that they got back together again after. A Facebook message that she sent to D.H. was read to her and she said that they were still fighting when she sent that message.

[76] M.M. was asked whether she had found out by January 2014 that she was pregnant. She said that she had found out in early February and that she had not known when she went to the police to report the allegations about Mr. D. on January 27, 2014. She subsequently found out through a home pregnancy test that she bought in late January or early February. She said that she had started to suspect that she was pregnant later in the month of January when she did not get her period, as she testified that she always got it at the end of every month.

[77] M.M. denied that she had Mr. D. charged because she wanted sympathy before she told people that she was pregnant. She agreed that she knew her father would be upset and disappointed to learn that she was pregnant. She said that the timing was coincidental.

ii) The Accused’s Version of Events

[78] Mr. D. lives at the same home in Hanover where he has lived since 1992. Various other people have lived at this home with him over the years. He has not worked since a car accident when he was 19. He has been on the Ontario Disability Support Program (O.D.S.P).

[79] Mr. D. has a daughter named J.D. and, while he has separated from J.D.’s mother, J.D. stayed with him. Mr. D. has a son named N.D. with a different partner, Ms. M., with whom he lived for a couple of years. Ms. M. also had an older son named B.D. who has lived in the home with his father. In addition, Mr. D.’s mother and grandmother lived with him.

[80] Mr. D. testified that his friend R.D. was crushed by Mr. D.’s van and killed while he was repairing the van in the driveway of the D. home in March 2010.

[81] Mr. D. testified that both while K.T. lived with him and after she moved out, M.M. came over to the home. He described M.M.’s mother as his best friend at the time and said that he came to know M.M. because she would hang out with K.T. Under cross-examination, he denied that M.M. hung out at his home “frequently” saying that it was only once or twice a week.

[82] Mr. D. denied ever being in K.T.’s bedroom alone when M.M. was in there. He denied ever touching her in a sexual way.

[83] Mr. D. said that when K.T. lived with him, he had given M.M. rides home with K.T. present. He also said that he had driven her alone, maybe more than once. Under cross-examination, he described M.M.’s evidence that K.T. always accompanied them when he drove M.M. home as “pretty accurate”. He said that 99% of the time K.T. was with them and 1% of the time she was not. He used his green van. He denied ever taking M.M. on a route that involved going in behind the Legion. It was his evidence that there are now motion sensor light behind the Legion and that there are surveillance cameras.

[84] The defence called Dawn Marie Johnson to testify about the lighting and cameras behind the Legion.

[85] Mr. D. testified that K.T. lived in his home, as did her mother, Ms. T., and her brother, I.T., until May 2011. At that time, Mr. D. was arrested on the basis of allegations made by K.T. and I.T. The three members of the T. family moved out of the home in May 2011. An undertaking dated May 27, 2011 was filed as an exhibit and makes clear that there was to be no communication between Mr. D. and these T. family members after that date. Mr. D. said that after this K.T. was never again at his home.

[86] Mr. D. testified about conversations he claimed to have had with M.M. and her mother after K.T.’s allegations about him were made to the police. He testified that M.M. had said that she did not believe K.T. and that she and her mother told him that K.T. had said that M.M. should say the same thing as K.T. had so that he would be charged. Mr. D. said that M.M. said to him that she would not lie for K.T.

[87] Mr. D. testified that after K.T. moved out, M.M. continued to come to the house to see J.D. and another boy J., (the son of a subsequent partner of Mr. D. who lived in the home) and would hang out with them.

[88] Mr. D. testified about a number of times when he was with M.M. in a vehicle after the time she alleged the sexual assaults had occurred. These included:

• an occasion when he took M.M., her mother and her friend K.T. to Hamilton for tattoos;

• an occasion in April 2012 when he was in hospital in London and his grandmother died. M.M., her boyfriend and her mother drove to London to pick him up.

• a driving trip to Quebec that he took in the summer of 2013 in which his family was accompanied by M.M. and her mother;

• one occasion when he drove M.M. and her previous boyfriend to the Owen Sound court house to drop off forms for O.D.S.P. He thought that this was September or October of 2013;

[89] Mr. D. denied ever having had the conversation with M.M. that she described had occurred in January 2014 when she was with D.H.

iii) Evidence of others’ conversations with M.M.

[90] The defence called both B.D. and J.D. to testify about their relationship with M.M. and conversations they had with her.

[91] B.D. is the 18 year old son of R.D. and Ms. M., Mr. D.’s former wife. He is a half-brother of N.D. and now lives with Mr. D.

[92] B.D. recalled that while K.T. lived at the D. home, he did not live there himself, but visited regularly because his brother N.D. lived there. He recalled seeing K.T., though he did not hang out with her. He also recalled M.M. visiting K.T. and J.D. He was able to recall the death of his uncle, R.D., in 2010. He thought that K.T. had moved from the home by that point and believed that she had moved out in 2009.

[93] After K.T. moved out, B.D. learned from his mother that K.T. had made allegations against Mr. D. He moved into the D. home with his father that summer. It was his evidence that M.M. came to the house and that he hung out with her, as did J.D. He thought she came over once a week and said that she sometimes stayed at the house a couple of days. He agreed under cross-examination that M.M. did not visit as frequently as when K.T. lived there and that she might have come over as little as once a month.

[94] B.D. recalled the family trip to P.E.I in 2013 and said that after that, M.M. came over to their home, sometimes with her boyfriend, and sometimes with her mother.

[95] B.D. testified that a couple of months after K.T. moved out, M.M. told him that K.T. had told her to lie about Mr. D. touching her and that she said she was not going to lie about this. He recalled M.M. saying this once when he and J.D. were in the room. After refreshing his memory from his police statement, B.D. testified that M.M. told him that K.T. wanted her to lie about Mr. D. touching her and that she had said no because it would be a lie and a false accusation.

[96] J.D. is the 20 year old daughter of Mr. D. and his first wife. She has lived with Mr. D. all of her life.

[97] J.D. recalled R.D.’s death in 2010. J.D. also recalled Ms. T. moving out of the home in 2011 after K.T. and I.T. accused her father of things.

[98] J.D. said that before K.T. moved out, she had been best friends with M.M. for years. After K.T. left, M.M. still came over to the house, but not as frequently. J.D. said that M.M. came without her mum, and came with her boyfriend, or came alone. J.D. said that M.M. would visit her in her room in the basement.

[99] J.D. also testified about the family trip she took in the summer of 2013, in which M.M. and her mother drove with them to Quebec when they went to P.E.I.

[100] J.D. said that after the P.E.I., trip M.M. came over to her home a couple of times and that she thought she had come once by herself.

[101] J.D. also testified about a conversation with M.M. that she said took place a couple of weeks after K.T. left. J.D. said that M.M. told her that she was asked to lie and say that Mr. D. did something to her, and that she was not going to lie. J.D. said that B.D. was around when M.M. said this. She testified that M.M. said this a couple of times.

C. Applicable Legal Principles

[102] It is important to review some of the relevant legal principles applicable to this case.

[103] The accused Mr. D. is presumed innocent of the charges. This presumption remains with him unless and until the Crown proves his guilt on each count charged beyond a reasonable doubt. This is a heavy burden that remains on the Crown and never shifts. Mr. D., like all those accused of crimes in this country, was not required to testify or call any evidence. Nor is he required to explain anything.

[104] I remind myself of the meaning of the phrase proof beyond a reasonable doubt. A reasonable doubt is not an imaginary, far-fetched, or frivolous doubt. It is not a doubt based on sympathy for or prejudice against anyone involved in this trial. It is a doubt based on reason and common sense. It is a doubt that logically arises from the evidence, or the absence of evidence. It is not enough for me to believe that Mr. D. is probably or likely guilty. However, I recognize that proof beyond a reasonable doubt is not proof to an absolute certainty. The standard of proof beyond a reasonable doubt falls much closer to absolute certainty than to probable guilt. I recognize that I must consider all of the evidence and be sure that the accused committed each offence before I can be satisfied beyond a reasonable doubt of his guilt.

[105] In this case, where Mr. D. has chosen to testify, I remind myself of the important principles set out by the Supreme Court of Canada in R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742 at pp. 757-758 that must be applied when I determine whether the Crown has proven Mr. D.’s guilt beyond a reasonable doubt. First, if I believe the testimony of Mr. D. that he did not commit the offences with which he is charged, I must find him not guilty. Second, even if I do not believe the testimony of Mr. D. that he did not commit these offences, if his testimony leaves me with a reasonable doubt of his guilt regarding any of these offences, I must find him not guilty of those offences. Third, even if the testimony of Mr. D. does not leave me with any reasonable doubt as to his guilt regarding of any of the alleged offences, I may only find him guilty of any count only if, based on the evidence that I do accept, I am satisfied beyond a reasonable doubt of his guilt on that count.

[106] The Crown has provided me with the recent decision of Lacelle J. in R. v. S.W. 2016 ONSC 287 in which, at paras 11-17, she reviews some of the authorities that guide the assessment of credibility. I have reviewed her helpful summary and am guided by the factors set out in those cases.

[107] The Crown invites me to remember that this is a case in which I am assessing the evidence of young witnesses. He asks me to consider that both D.C. and M.M. are young people and that both have had trouble with school and have some intellectual challenges.

[108] After submissions, the Court of Appeal’s recent decision in R. v. C.K.T. 2016 ONCA 66; [2016] O.J. 285 was brought to my attention. In that decision, Hourigan J.A., writing for the majority, reviews the principles applicable to the assessment of adult witnesses testifying about events that occurred when they were children.

[109] Justice Hourigan cites the court’s earlier decision in R. v. A.M. 2014 ONCA 769, 123 O.R. (3d) 536, in which the 19 year old complainant in a sexual assault case testified about events that occurred between the time she was 7 and 17 years old. In that case, the court, at para. 11, said the following about assessing the credibility of an adult who testifies about events when she was a child:

Generally when an adult testifies about events that occurred when she was a child, her credibility should be assessed according to the criteria applicable to adult witnesses. However, the presence of inconsistencies, especially on peripheral matters such as time and location, should be considered in the context of her age at the time the events about which she is testifying occurred.

[110] The trial judge in A.M. was found to have erred when he assessed assess the 17 year old’s evidence as if she was a child. The Court of Appeal stated at para 25:

The trial judge was obliged to assess her credibility according to the criteria applicable to adult witnesses, not the somewhat lessened standard of scrutiny associated with child witnesses…While the trial judge was entitled to apply a less exacting standard to peripheral matters that occurred during the complainant’s childhood, he erred in assessing the complainant’s credibility as if she were testifying as a child”….

[111] Justice Hourigan applied the principles of A.M. in C.K.T. and concluded that there was a risk that the jury instructions could have erroneously have been interpreted by the jury to mean that they were to assess the complainant’s credibility as if she were 12, rather than 17. A new trial was ordered.

[112] I understand from these authorities that when adult witnesses, like D.C. and M.M., who are 21 and 19, testify about events that took place when they were children, their evidence is to be assessed according to the criteria for adults. However, inconsistencies about peripheral matters must be assessed in the context of their ages at the time of the events about which they are testifying.

[113] There is a further important legal principle applicable to this case. This is a case in which while Mr. D. faces charges in relation to two complainants. There is no similar act application before me. Accordingly, the evidence adduced in relation to one complainant is not admissible in relation to the other complainant.

[114] At the outset of the trial, I dismissed Mr. D.’s application to sever the counts relating to one complainant from the counts relating to the other complainant. In dismissing that application, I emphasized the legal obligation not to use the evidence adduced in relation to one complainant in relation to the other complainant. I specifically caution myself about the potential danger of propensity reasoning in this case, and about the importance of ensuring that there is no cross-pollination in my reasoning.

D. Analysis

i) Findings on Counts 7 and 8 in relation to D.C.

[115] There is no doubt that D.C. spent time at the D. home over a period of several months leading up to Christmas and into the new year. D.C alleges that he was sexually assaulted in Mr. D.’s bedroom in the period after Christmas and New Year’s, though he is not sure of the year. Mr. D. was also uncertain about D.C.’s age at the time he stayed and what year it was. Neither the Crown nor the defence are concerned about the absence of certainty about the year. Everyone agrees that there were overnight visits in the period before Christmas and into the new year of either 2008-2009 or 2009-2010, both times at which D.C. was under the age of 16.

[116] The important issue to decide is whether the Crown has proven beyond a reasonable doubt that the sexual offence alleged by D.C. took place.

[117] I found the complainant D.C. to be credible. He appeared to be someone who was honest and candid about his past, even though it was not particularly favourable. For instance, he acknowledged that he had been a troubled teen and explained that he had been in fights at school and been expelled. He agreed that he had been in a s. 23 school, which I understand is a special school for children who have had difficulties in the regular system. He agreed that he had experienced anger issues and issues with authority, including teachers.

[118] When D.C. described the sexual assault, he did so in a manner that appeared to have the ring of truth. He described the events that he said took place in Mr. D.’s bedroom in what I find to be appropriate detail for the circumstances. He recalled critical details about how Mr. D. had touched him. He conceded that there were details that he could not recall. I find nothing unusual or troubling about the fact that he could not recall such details as what movie they watched or which shorts he was wearing. I accept his evidence as truthful.

[119] Moreover, I found that D.C. was fair and forthright about acknowledging points that might not be in his favour. For instance, he agreed that he could have got away from Mr. D. when the accused had his arm around him during the movie. He also agreed that he could have left when the accused was rubbing his penis, but that he did not.

[120] D.C. also provided what seemed to me to be a very reasonable explanation for the fact that he did not disclose anything to anyone at the time or for years after. He said, in emotional testimony that I found to be a genuine expression of affection for his grandmother, that he did not tell her what had happened because he was more concerned about her health than what had happened to him. She was the person to whom he appears to have been closest. It makes sense to me that he would have chosen not to share what had happened with her in these circumstances.

[121] The fact that D.C. did not tell anyone about what had happened until the police approached him appears to me to be consistent with how he viewed this incident. He was uncomfortable with what had happened. After it had occurred, he arranged his life so that he never had to go back to the D. home and subject himself to what had happened again. He had decided to keep this to himself and he did just that.

[122] I turn now to the evidence of Mr. D.

[123] I found Mr. D.’s evidence about his interactions with D.C. to be difficult to accept. When he spoke of D.C., he did so with anger, frequently injecting gratuitous negative comments about D.C. into his evidence. For instance, when he described having tried to get D.C. up for school, he spoke about having had to fight with D.C. “for hours” and revealed through the manner in which he spoke that he continues to have real animosity towards D.C. Similarly, when asked about how long D.C. stayed at his home, he did not respond to the question and, instead, said with a cruel tone that the other kids would be tired of him and so he would send D.C. home.

[124] While he clearly agreed to have D.C. stay at his home while DC’s grandmother underwent radiation and chemotherapy treatments, Mr. D. does not appear to me to have embraced this responsibility like the adult that he was. He gave up trying to have D.C. go to school. He agreed that he provided marijuana to D.C and smoked it with him to try to “calm him” down. I accept D.C’s evidence that Mr. D. also provided to him some of the Tylenol 3 medication that he had in the home and that these were sometimes consumed by the two of them in combination with the marijuana. It makes no sense to me that D.C would have had the knowledge that he did about the Tylenol 3’s if he had not been taking them. I reject Mr. D.’s denials about giving D.C Tylenol 3’s.

[125] I find that there were occasions when Mr. D. and D.C. smoked marijuana together. I also find D.C. frequently watched television in Mr. D.’s bedroom. Mr. D. acknowledged that they smoked marijuana together and that it probably happened in his bedroom. His denial of ever being alone in the bedroom made no sense. His explanation appeared to be that the kids in the home fought with each other and so he made a rule that everyone had to have their doors open and that he never closed his own door. But D.C. had not testified that the door was shut – only that he and the accused were alone in the room after Ms. T. left for work. Mr. D.’s evidence was unresponsive to the questions asked and did not make sense to me.

[126] I accept D.C.’s evidence that on one occasion, after smoking marijuana and taking Tylenol 3’s with Mr. D., he felt the effect of the drugs while they watched television. I accept his evidence that Mr. D. put his arm around him and pulled him closer. I also accept D.C’s evidence that Mr. D. put his hand down his pants and rubbed his penis for the last 15 minutes of the movie. I reject Mr. D.’s denials of having touched D.C. in a sexual manner.

[127] It seems that Mr. D.’s conduct over the movie progressed from a hug to masturbation of D.C. because he encountered no resistance from D.C. D.C. was honest and forthright in acknowledging that he could have left. He said he was uncomfortable and stoned and did not know what to do. This makes sense to me and seems like a very reasonable response for a boy of 14 or 15 who was with a much older adult whom he trusted.

[128] I found that D.C.’s explanation of his immediate departure from the D. home that evening, and his return to his grandmother’s house, made sense and rang true and makes much more sense than the version of events presented by Mr. D.. In his examination in chief, Mr. D. offered no explanation for the end of D.C.’s visits to his home. Under cross-examination, however, he claimed that he had effectively asked D.C. to leave after D.C. tried to kick J.D. in the head. No evidence was elicited from J.D. about such an incident.

[129] While both D.C. and Mr. D. described an angry encounter at D.C’s grandmother’s home a few days after the sexual assault, their versions differed. D.C. claimed that Mr. D. tried to force his way into his bedroom to speak with him and he banged Mr. D.’s head with the door. Mr. D. said little about such a visit during examination in chief. However, under cross-examination, he acknowledged having gone to the grandmother’s and claimed that he had done so to collect a cell phone and that D.C. had thrown the phone at him.

[130] I find D.C.’s explanation about why his visits to the D. home ended and his evidence about what happened a few days after the sexual assault is much more logical and reasonable than Mr. D.’s. I note that no suggestion was ever made to D.C. that he had tried to kick J.D. in the head and that this is what led to the end of his trips to the D. home. Similarly, it was never suggested to D.C. that the purpose of Mr. D.’s visit to D.C’s grandmother’s home a few days later was to retrieve a cell phone. I find the failure to cross-examine on these important points to be troubling (R. v. Quansah, 2015 ONCA 237 (C.A) at paras. 84-86). The absence of cross-examination is relevant to my assessment of Mr. D.’s evidence about the end of the D.C visits. I prefer D.C.’s evidence about over that of Mr. D. respecting the end of the D.C.’s visits to the D. home.

[131] I have considered all of the evidence about the D.C. stays at the D. home, including both D.C’s evidence about the allegations and the evidence of the accused. I accept D.C.’s evidence about having been sexually assaulted by Mr. D. in the manner he described. I do not believe Mr. D.’s evidence and it does not leave me with a reasonable doubt. I am satisfied, on the basis of all of the evidence that I do accept, that the Crown has proven beyond a reasonable doubt that Mr. D. committed the offences of sexual interference and sexual assault. I find him guilty of these offences.

ii) Findings on Counts 1-6 in relation to M.M.

[132] M.M. was a frequent visitor at the D. home during the period that K.T. lived there as she and K.T. were longstanding best friends.

[133] During her examination in chief, M.M. described three assaults that she was sure took place in the summer of 2011. While she is very soft-spoken, I found that she gave her evidence in a manner that was straight-forward and made sense. I found her evidence to be believable.

[134] However, when M.M. was subjected to cross-examination, and when I consider her evidence as part of the totality of evidence before me, I have concerns about her credibility and reliability. I will summarize some of the specific aspects of the evidence that give me pause.

[135] For M.M., the assaults are all intimately linked to time that she spent at the home with K.T. She believes that they occurred in the summer of 2011. On the basis of all of the evidence, however, I am satisfied that M.M. is mistaken as to the dates that she spent time at the D. home. It is clear to me that K.T. permanently left the D. home in May of 2011. Thus, M.M.’s allegations must relate to the summer of 2010.

[136] In the circumstances of this case, I am somewhat troubled by the fact that M.M. is wrong as to the year of the offences. She is very firm and refused, under cross-examination, to accept that she might be wrong about the year. She recalls the sexual assaults happening at a time when she was about to go into high school. Her timing is inaccurate. She recalls that they were not shortly after the accidental death of R.D. in March 2010. This is also inaccurate.

[137] That said, even though she is an adult, M.M. is not unlike a number of other witnesses in this case in that she had difficulty with years. She was testifying about events that occurred more than five years ago. Mr. D. had a piece of paper with dates on it written down to try to assist him in remembering years and he was unsure about years at a number of points in his evidence. I cannot and do not reject M.M.’s testimony because she is incorrect about which summer her allegations relate to. I do, however, consider this fact when I assess the reliability of her evidence as a whole.

[138] There are other matters that trouble me about the evidence of M.M. I am concerned by the evidence about what happened after the assaults. M.M. was adamant in her evidence that after the sexual assaults, she never again put herself in a position of vulnerability to Mr. D.

[139] While I accept that M.M. may have taken steps to reduce her vulnerability, I was concerned about some of her evidence when under cross-examination. Under cross-examination, when asked about subsequent visits to the D. home, M.M. she initially said that she had been to the home twice and insisted that she was only “in and out”. She then agreed that she had been to the home with her mum, but said that she had stayed in the car. At a subsequent point she acknowledged having gone over to see J.D. after K.T. moved out, but testified that she had not gone “fully” into the house.

[140] I am not as troubled by the fact that M.M. went to the D. home (although that fact does undermine her assertion that she was scared of Mr. D.) than I am by the way her evidence came out under cross-examination. It seemed to me as though she was more concerned with creating the impression that she stayed away from the home than in being truthful about the fact that visits took place. For instance, the idea of not going “fully” into the house seemed incredible to me, and appeared to be fabricated to avoid acknowledging the truth about being in the home.

[141] Similarly, under cross-examination, she was asked about times other than at the D. home when she had been physically proximate to Mr. D. after the third assault. It is my view that M.M. actively tried to downplay her contact with Mr. D. after the summer of the sexual assaults in order to bolster her evidence that she was fearful of him. She minimized time she saw him when he visited her mother, minimized the trip to Quebec that she clearly took, tried to minimize the fact that he was present for the Toronto trip to get tattoos and denied the trip to London after his grandmother’s death. Again, I am less concerned about the fact that she was in Mr. D.’s company, and more concerned about the way in which she seemed to shape her evidence so as to minimize contact with Mr. D.

[142] I am also concerned about the manner in which M.M. responded under cross-examination to several suggestions that her evidence was inconsistent with what she had said previously. I accept that honest witnesses often forget small details or make mistakes. Mistakes may be the hallmarks of truthfulness. But, with M.M., her reaction to being challenged called her credibility into question.

[143] For instance, M.M. was cross-examined on whether she was wearing shorts or capris during the second sexual assault in the van. She was sure she wore shorts. When reminded of her evidence at the preliminary inquiry, which was arguably different from her trial testimony, her evidence became very confused. Her evidence seemed to be based on her recollection of her wardrobe, rather than her memory of the events. She tried to reconcile the obvious inconsistency by suggesting that the capris pants she wore were probably the type that were above her knee. While it would not have been concerning to me that she could not recall what pants or shorts she wore, the manner in which she answered these questions did not make sense, was not believable and made me less sure that she was a truthful witness.

[144] Similarly, when confronted with an inconsistency between her trial testimony and her preliminary inquiry evidence as to whether it was she or Mr. D. who undid her seatbelt in the van during the second sexual assault, M.M. again tried, with little success, to reconcile the obvious contradiction about a relatively insignificant detail in a manner that I found to be incredible.

[145] I am also concerned about the credibility of her evidence relating to the sexual assault in the van behind the Legion. M.M.’s explanation as to why she accepted a lift home from Mr. D., alone did not make sense. M.M. had learned that her mother could not pick her up. Her explanation for going with Mr. D., notwithstanding her fearfulness about him, was that she would get in trouble if she did not get home at 9:00. It made little sense to me that she feared getting into trouble when the reason she would have been late was her mother’s inability to pick her up.

[146] Moreover, the idea that K.T., who was 14, was told by Mr. D. that she had to go downstairs and get ready for bed, because she normally went to bed at 9:00 p.m. on a summer weekend evening, did not accord with common sense.

[147] I was also concerned about M.M.’s answers to questions about the presence of her cell phone in the van that evening. She agreed that she had a phone. Yet, when it was suggested to her that she had it for safety and security, instead of agreeing with the obvious logic of the question, she twice said that it was for her parents to get hold of her, as though it somehow was not also for her own safety. While she did agree that she had it to get hold of them, and that she thought about getting it out, she offered no explanation for not using it.

[148] In relation to the third sexual assault that took place in K.T.’s bedroom, I found M.M.’s inconsistencies to raise real issues as to the credibility of her evidence. At trial, she was sure she had her shorts on when Mr. D. entered the room. At the preliminary inquiry, she had said that she had removed them. At trial, she said that K.T. went into the bathroom to change, was not showering, and then went upstairs. At the preliminary inquiry, she had said that K.T. went to shower. When this was put to her, M.M. tried to explain the inconsistency by saying that she heard the water running but that K.T. “didn’t fully shower”.

[149] It is difficult for me to accept the version of events that M.M. provided in which K.T. went into the bathroom and then went upstairs, and while she was there, Mr. D. entered the bedroom and sexually assaulted M.M. It seems to me that this would have afforded little time to Mr. D., and there would have been an obvious risk apparent to him that K.T. could have come back down at any moment. Yet, that was the evidence that M.M. gave in chief.

[150] Under cross-examination, M.M. appeared to me to change her evidence to say that K.T. showered. However, she maintained that Mr. D. came downstairs and sexually assaulted her while K.T. was upstairs. Again, I find this version of events unlikely and implausible in the circumstances.

[151] There is evidence before me that M.M. spoke to J.D. and B.D. about K.T. having asked her to accuse Mr. D. of sexual abuse and her saying that she would not lie for K.T. I am not particularly swayed by this evidence one way or another.

[152] B.D.’s evidence, generally, was not particularly credible. He was clearly testifying to assist Mr. D. When he said that M.M. had spent nights at the D. home after K.T. had left, I became convinced that he was saying anything that he thought would assist Mr. D., rather than speaking the truth. I do not accept his evidence that M.M. told him that she would not implicate Mr. D. because it would be a lie.

[153] Similarly, I find that J.D.’s evidence was tailored to try to assist her father. For instance, when she was asked whether M.M. ever came over to the house after the 2013 P.E.I. trip, she said that it had happened a couple of times. She was asked if M.M. had come alone, and said that she thought she had come over once by herself. I found this to be wholly implausible evidence given by J.D. She would have no reason to recall the number of trips M.M. had made to the D. residence on her own after the P.E.I. trip. She knew that saying that there were trips on her own assisted her father. This causes me to disbelieve that J.D. was an honest witness. I reject J.D.’s evidence that M.M. told her that she would not be part of a false accusation against Mr. D.

[154] The defence says that the evidence of B.D. and J.D., together with the evidence of Mr. D., is a basis upon which to conclude that M.M. had said that making accusations against Mr D. would be a lie. The Crown says that all M.M. said was that she would not be part of a false accusation against Mr. D.

[155] I need not decide what exactly was said by M.M. in relation to this issue.

[156] M.M. says that she decided not to tell anyone about the sexual assaults by Mr. D. until January 2014. The defence invites me to conclude that the timing of M.M.’s disclosure to the police is concerning. It is important to observe that there is no one way in which those who have been sexually assaulted do disclose what happened or can be expected to disclose what happened to them. For some, disclosure is immediate. For others, it is delayed for days, months, years or decades. While some might think that M.M. would have disclosed her allegations to her mother after K.T. made her allegations against Mr. D., she has provided an explanation for her decision not to do so and I draw no inference against her for not saying anything earlier.

[157] M.M. says that her allegations to the police followed a chance meeting she and her boyfriend D.H. had with Mr. D. that made her concerned. Mr. D. denies that such an encounter ever took place.

[158] At the same time, M.M. found out in late January or early February that she was unexpectedly pregnant. She says that she was unaware of this when she made her police statement on January 27, 2014. But, she knew that her father would not be pleased about this. In view of the Facebook messages she sent to D.H., she was clearly aware of the pregnancy by February 7, 2014. If she is to be believed, she did not suspect she was pregnant on January 27th but by 10 days later had suspected she was, bought and done a home pregnancy test, and was joking about being pregnant on Facebook

[159] The defence suggests that she made up the allegations against Mr D. in order to deflect the attention away from the fact that she was pregnant. I am not persuaded that M.M. has made up the allegations and am certainly not prepared to make a finding that she did so to deflect her father’s anger from the fact that she was pregnant.

[160] I have carefully reviewed the evidence of Mr. D. While he often injected unnecessarily disparaging comments about M.M. into his evidence, his testimony respecting the denial of any sexual impropriety in relation to M.M. was internally consistent. Overall, his evidence about his relationship with M.M. seemed to me to be truthful: he agrees she was regularly in his home, he agreed that he drove her home, including alone, he agreed that he was best friends with her mother. He has adamantly denied ever having committed a sexual offence on M.M.

[161] There are areas of Mr. D.’s evidence that I do not accept. I do not accept that M.M. told him that she did not believe K.T.’s allegations and that she had said making allegations against him would be a lie. His evidence on this issue causes me to have some doubts about his credibility generally.

[162] I have considered all of the evidence before me. I accept that M.M. may well have told the truth about having been sexually assaulted by Mr. D. There was much that was believable about her testimony, though there are also areas that I have outlined where I had doubts about her reliability and credibility.

[163] I do not accept Mr. D.’s evidence denying the allegations.

[164] However, I am left with a reasonable doubt in this case. That doubt arises primarily because of my concerns about M.M.’s evidence. As I have set out, there are too many areas in which I found M.M.’s testimony to be lacking in credibility, to be internally inconsistent, or to be inconsistent with the other evidence that I accept. There are also aspects of her evidence that I find to be inherently implausible. Collectively, my concerns with her evidence leave me with concerns about the credibility and reliability of her version of events.

[165] My reasonable doubt also flows from the evidence of Mr. D. While I do not accept his evidence in relation to M.M., it does leave me with a reasonable doubt.

[166] The burden of proof is onerous. I just cannot be sure that that Mr. D. committed the sexual offences alleged in relation to M.M. I am unable, therefore, to find that the Crown has proven the allegations in counts 1 through 6 beyond a reasonable doubt. Mr. D. is acquitted of these counts.

E. Conclusion

[167] I find the accused Mr. D. guilty of counts 7 and 8 and not guilty of counts 1 through 6.

WOOLLCOMBE J.

Released: March 2, 2016

CITATION: R v. D.D. 2016 ONSC 1473

COURT FILE NO.: CR 15-902

DATE: 2016 03 02

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

• and -

D.D.

REASONS FOR JUDGMENT

WOOLLCOMBE J.

Released: March 2, 2016