R. v. J.M., 2016 ONSC 1615

CITATION: R. v. J.M., 2016 ONSC 1615

COURT FILE NO.: CR-14-50000342

DATE: 20160307

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

J.M.

Defendant

Kelly Simpson, for the Crown

Joshua Frost, for the Defendant

HEARD: January 18-22, 25-27, 2016 at Toronto, Ontario

REASONS FOR JUDGMENT

Michael G. Quigley J.

Introduction and Overview

[1] JM is charged with nine sexual assault and sexual interference related charges against three complainants. Those offences allegedly occurred over a 20-year period from 1990 until 2010.

[2] The first three charges of sexual assault, sexual interference and invitation to sexual touching relate to the complainant KC1. The offences against KC1 allegedly occurred between 2002 and 2008 when KC1 was between five and 12 years of age. The fourth and fifth charges of sexual assault and sexual interference relate to the complainant KC2 and allegedly occurred between 2005 and 2008 when she would have been between six and nine years of age.

[3] The final four charges relate to AP and involve two distinct events. Counts six and seven allege sexual touching that occurred in or around 1990 when AP was seven years of age. At that time, JM was living with AP’s family. Counts eight and nine relate to an incident where an alleged sexual assault took place when AP was 17 years of age, in or around the year 2000.

[4] The first two complainants, KC1 and KC2, are sisters. The third complainant, AP, is a cousin of KC1 and KC2. The accused, JM, is the uncle of KC1 and KC2, but he is not related directly to AP. AP is the cousin of KC1 and KC2 because their mother, SM, and AP’s mother are sisters, but by different fathers.

[5] SM is married to JC, the father of KC1 and KC2. . KC1 is 19 years of age now, born on […], 1996. She is a student in first year at a local community college. Her sister, KC2, is now 17 years of age. She is a student in grade 11. Their cousin, AP, is now 30 years of age and she works in the retail sector. She is also now married and has children of her own.

[6] In the early 1990’s, during the period of the first two offences alleged against AP, JM lived with AP’s mother, as well as AP’s mother's brothers and half-brothers. They lived in an apartment located on Kipling Ave. W. These individuals, including JM, had all recently immigrated to Canada from Ecuador, in 1990 or 1991.

[7] The first offence allegedly occurred against KC1 when she was five years old, in or about 2001. The other occurrences against KC1 and KC2 allegedly took place at a later time, commencing in about 2004 and continuing until late 2008. During that period, JM lived in a second floor room in the family apartment on Sheppard Avenue in Toronto where JC, SM and their four children resided. Their four children are these two complainants, KC1 and KC2, and their younger sister and brother, KC3 and JC2. The alleged occurrences against KC1 and KC2 ended when their family moved out of Toronto in 2008. JM did not accompany the family when they moved.

Factual summary

[8] The first of the alleged offences in this case was disclosed to police authorities by KC1 in 2013. She had been skipping school. Her mother, SM, caught her at McDonalds with a boyfriend on the morning of Friday, March 22, 2013, when SM happened to stop at that restaurant for a coffee on her way to work. SM was very upset at the discovery and arranged to meet with the school principal the following Monday to discuss the situation. The evidence of KC1, KC2 and their mother SM was all consistent that the mother yelled at her and took away KC1’s cell phone, but did not otherwise speak or deal with her over the weekend. As KC2 described it, KC1 received the cold shoulder treatment throughout the weekend, but that KC1’s seemingly uncaring response was, “whatever.”

[9] On Monday, SM met with the principal in the principal’s office. KC1 was called down from class. After the mother and principal confronted KC1 about skipping school, KC1 claimed in her testimony that she yelled back at her mother stating, “Why would you care when you did nothing when I told you that JM sexually assaulted me years ago.” KC1 then gave an emotional report of the incident to her mother, stating that JM had touched her sexually repeatedly after he moved into their family home on Sheppard Avenue around 2003 or 2004, about a year or two years after that original incident.

[10] SM was shocked at the disclosure. She immediately called her husband, JC. He came to the school. A police officer who was normally at the school was not there at the time, so they left the principal’s office and took KC1 directly from school to report to the police at 23 Division that day. KC1 gave her video statement to police on Monday, March 25, 2013, just after 2:00 o’clock in the afternoon.

[11] After they came home from the police station, SM and JC gathered their other children in a room. KC1 was not present at that time. SM asked the other children if JM, “Tio J” (Spanish for “Uncle J”) had touched them. The two younger ones said no, but KC2, the second eldest child, lowered her head, started to cry and nodded in the affirmative. She told SM and JC that she had been touched by JM. As a result, the parents took her to the police station on Wednesday, March 27, 2013, where KC2 gave her statement to the police just after 10:00 in the morning.

[12] SM was shocked and very upset in light of the disclosures made by her daughters. SM also spoke to her sister’s daughters, including AP, the same day that KC2 gave her statement to the police. SM testified she was very close to her sister’s daughters, but not to her sister, C. She spoke to them separately that day at two different times. She called AP’s sister on the phone, but she went personally to AP’s workplace to speak to her.

[13] The one niece indicated JM had not touched her, but when SM told AP that JM had touched KC1 and KC2, and asked if anything had ever happened to her when he had lived with her mother when she was a child, AP responded that she too had been assaulted by JM. She said it happened several times when she was about 7 years old in the early 1990’s, and again following a camping trip 10 or 11 years later when she was 17 or 18 years of age. Following this disclosure to SM, AP also went to give a statement to the police on Thursday, March 28, 2013 at 14:41 in the afternoon.

[14] Then, almost a year later, KC1 went to the police to make a further disclosure of further abuse that she had not described in her first statement to the police. That statement was given in January, 2014.

[15] That is the ordering of events and the chronology of disclosure as the alleged sexual assaults were discovered and disclosed, as statements were given to the police, and that resulted in these charges being laid against JM relative to these three complainants.

[16] Turning to the allegations, the first complainant, KC1, alleges that JM molested her before and during the time he lived with them from the age of 5 to 14 years. She alleges that when she was 5 or 6 years old, before he moved in with her family, JM carried her upstairs, laid her on his bed and touched her under her clothing on her chest and vagina. She remembered him whispering to her not to tell anybody.

[17] KC1 also alleges that during the later time when JM lived with her family, he would touch her several times a week over and under her clothing on her breasts, buttocks and vagina. She alleges that he exposed himself and showed her with his hand how to masturbate him, pulling her hand and placing it on his penis. When he was finished doing these things to her, he would tell her not to tell her parents, and would give her some money. Further, KC1 remembers that when she was in grade 6, she went into the kitchen and JM was there, wearing a towel. She alleges that he grabbed her head and forced it onto his groin area, telling her to kiss his penis, which was exposed.

[18] KC1 makes two other specific allegations against JM. One day after she had a shower, she was sitting on the edge of a bed in the room next to JM’s room. She did not normally like to go into that room, because it was next to JM’s room, but she said that was where her clothes were located. As she went in, she had a towel wrapped around her, but her cell phone rang and she started to have a conversation with a boyfriend. They were talking about ice cream. While this was going on, KC1 claims that JM came into the room, pushed her on her chest back onto the bed and then started to use his mouth on her vagina. She said she was on the phone so could not tell him to get off. She thought it lasted for about two minutes, but that was the only occasion it happened. She was in grade 6, and about 11 or 12 years of age, and she said that he never tried to do that again. He also gave her money after this incident.

[19] KC1 said that JM gave her money off of the dresser on occasions after he had abused her. Usually it would be Loonies or Toonies, i.e., $1.00 or $2.00 coins, or sometimes a $5.00 bill. She also testified that on one occasion, JM showed her a video from his cell phone of his girlfriend, J, giving him oral sex. She was able to testify that that must have taken place in the bathroom located in their apartment, because she could recognize the floor covering.

[20] Finally, KC1 alleges that on one occasion when her mother went out from the kitchen to get something from the car, her mother left JM to watch the children, but while SM was gone, JM pushed her over a stack of chairs in the kitchen area, pulled down his pants as well as hers, and pressed himself for several minutes up against her buttocks with his penis, which was exposed. She had a detailed recollection of leaning forward over the chairs and described exactly what parts of the chair she was looking at as the assault took place. She said she was in grade 7 or 8 at the time of that event.

[21] Other than in regard to the first event when she was five, KC1 did not tell her parents about any of this abuse going on in their own home unbeknownst to them. She testified she felt weird and dirty for doing those things, and that she thought she would get in trouble for what she had done. She believed she was in grade 6 at the time these later events occurred. She claimed JM told her nobody had to know and that they would not believe her. She did not know how to tell her parents.

[22] KC1 remembered telling JM not to touch her sister, KC2, "because you are already doing it to me," so she told him to leave KC2 alone. She also recalled that when she would shower she would be worried that JM would walk in on her, and so she asked her sister KC2 to come and sit in the bathroom while she had a shower to ensure he could not enter. However, KC1 was certain that she never told her sister why she wanted her there.

[23] KC1 testified that the abuse finally stopped after they moved out of the apartment on Sheppard Ave. She remembered telling JM that it would stop now because they were moving to a new house, and that he would not be moving with them.

[24] KC2 alleges that JM molested her when he lived with her family. She alleges that when she was between the ages of 6 and 9 years, JM would take her to his room, bend her over his bed, and rub his penis on her vagina or buttocks while both were clothed. After each time that he did this, he would tell her not to tell anybody what had just happened, and would give her money in the form of toonies or loonies. Although she said the door to his room at the top of the staircase was open when this happened, he would listen to hear and make sure no-one was coming up the stairs. Those distinct remembrances of physical aspects of the conduct go to the reliability of her evidence as addressed later in these reasons.

[25] Finally, the third complainant, AP, alleges that JM sexually assaulted her on several occasions in 1991 or thereabouts, when she would have been about seven years of age. JM would come out onto the balcony where she was playing and would ask her to sit on his lap, while he was sitting in a chair facing out towards the city, and where the apartment windows would only permit the upper parts of their bodies to be seen. AP alleges that when she sat on his lap, JM would put his hands up underneath her clothing and digitally penetrate her vagina.

[26] While never witnessed by others, evidently AP’s mother discovered those events at or about that time. AP testified that her mother caught her engaged in excessive touching of her vaginal area and asked what she was doing. AP told her mother she “was doing the same thing as JM was doing to her.” AP and her mother never spoke of the matter again, however, she believed that her mother spoke to and confronted JM, though she does not know what was said. She said that JM moved out of that apartment immediately after. The matter was not reported to the police, and AP did not see JM again for many years, until she was in her late teens.

[27] Then, however, AP alleges that when she was 16 or 17 years of age and was living on her own, she became friends again with JM. On one occasion, JM and some of her friends had been on a camping trip and had returned to her apartment. AP alleges that while she was under the influence of alcohol, JM took her to her bed, where he touched her breasts and vagina under her clothing and penetrated her anus with his penis, causing her pain. Furthermore, when she woke up in the morning, she noticed that money was left on the dresser beside her in the bedroom. She reported that later that day, JM called her on the phone and asked her if she had received the money.

[28] Prior to giving their statements to the police, none of the three complainants had ever spoken to each other about what happened to them, and none of the three complainants were aware at the time that it was happening to anyone else.

Similar fact evidence and collusion

[29] On this trial, Crown counsel asks the court to admit evidence of alleged discreditable conduct of JM as similar fact evidence on a count-to-count basis. I am asked to admit the evidence of KC1, KC2 and AP as evidence of other discreditable conduct of the accused (or similar fact evidence) in order to establish the accused’s modus operandi, to provide corroboration of each allegation, and to establish that there was a consistent pattern of conduct to the assaults alleged by the three complainants against JM. Moreover, the Crown asserts there is no evidence of any collusion between the complainants, and in addition, since giving their statements to police, all complainants testified at the preliminary hearing that they had not talked about these events to each other, and testified here at trial that there has been no detailed discussion of these matters.

[30] On the other hand, apart from claiming that there is only limited similarity to the evidence of the sexual assaults, defence counsel raises the prospect of collusion between the witnesses. Those claims are framed against the Crown’s contention that the evidence clearly demonstrates that none of the three complainants had ever spoken to each other about what happened to them, apart from the simple fact that they were all sexually assaulted by the accused.

[31] Evidence of similar fact or prior discreditable conduct evidence of an accused person[^1] is presumed to be inadmissible at trial. That presumption arises out of the concern that it may be founded on the propensity or disposition of the accused, and lead a trier of fact to the conclusion that it is more likely that the accused is guilty of a current offence simply because of having exhibited the same or similar conduct in the past or in other circumstances.[^2] The concern is particularly acute where the trial is by jury. In a judge alone trial, like this one, it is presumed that as trier I will be able to self-instruct and disabuse myself of any inclination towards forbidden propensity reasoning.

[32] Similar fact evidence will be admitted, however, where the Crown is able to establish on a balance of probabilities that the evidence is relevant and probative to a live issue at trial, provided its probative value outweighs its prejudicial effect.[^3] In order to be admissible, the quality of the evidence and its similarity to the current matter must be such that, in the absence of collusion, “it would be an affront to common sense to suggest that the similarities were due to coincidence.”[^4]

[33] Plainly, apart from its similarity and the potential to improperly raise the prospect of propensity by the accused, the admissibility of the evidence is unquestioned. It is relevant because it is the substance of the several complaints by each of the complainants against JM. The question is not relevance for those purposes, but rather whether it is relevant to provide similarity as between counts and permit evidence of one alleged assault against one complainant to be used as evidence relative to one or both of the other two complainants. Thus, the only real issue on this similar fact evidence application is the use that I can make of that evidence. The burden of proof to justify its reception as evidence across counts requires the Crown to show the requisite degree of similarity on a balance of probabilities standard and that the evidence is more probative than prejudicial.

[34] Crown counsel contends in this case that the alleged similar fact evidence is relevant as between counts because it shows: (i) the modus operandi of JM, (ii) corroboration at least as between KC1 and KC2, (iii) a pattern of conduct by JM in which he used his position of trust relative to these children to engage in similar touching and fondling, (iv) a pattern of behaviour to ingratiate himself and to thereby incite these three young girls to gratify him sexually, (v) providing each of them (apart from the incident when AP was 7) with money after the events, and (vi) that he is aggressive, opportunistic and brazenly daring to commit these offences when other people are nearby, adults who trust him with their children.

[35] As Binnie J. emphasized in R. v. Handy, above, I must identify the degree of connection and similarity between the alleged acts and decide whether the “objective improbability of coincidence has been established.” Only then may the alleged similar fact evidence have sufficient probative value to be admitted for consideration across counts. Handy instructs on seven factors against which the evidence must be measured in considering the degree of similarity that is present, to determine whether the required “connectedness” is met. These include (i) proximity in time of the alleged similar events, (ii) the degree of similarity between them, (iii) the number of occurrences, (iv) the circumstances surrounding them, (v) the distinctive features, if any, underlying them, (vi) the existence, if any of intervening acts, and (vii) other facts tending to support or rebut the underlying unity of the alleged similar facts.

[36] Counsel for the defence argues here that the probative value of the evidence does not outweigh its potential prejudice, and that the similarity between the conducts alleged in each count is minimal and lacks the requisite “high degree of similarity” that could justify the reception of the evidence to prove guilt on other counts. Specifically, there is claimed to be a lack of sufficient similarity in detail and circumstances, and no distinctive features unifying the various incidents such that the evidence is incapable of proving a mode of operating, of corroborating each allegation, or of establishing a pattern of conduct attributable to the accused. It is argued the evidence does not move beyond showing general propensity, and thus serves only to stigmatize JM as a bad person: Handy, at para. 72.

[37] I do not make any determination at this point of the weight that I would accord to the cross-count evidence for the purposes of proving each of the individual counts beyond a reasonable doubt, nor do I consider the evidence of each complainant to be of equivalent value or similarity on a count to count basis. However, there are considerable similarities present in a contextual sense that do meet the connectedness requirement in the Handy test. Defence counsel's parsing of the alleged similarities looks with surgical precision for features that are identical rather than merely similar, but that is not the requirement.

[38] For example, contrary to the defence position, I am not persuaded but there is an absence of similarity when counts 1, 2 and 3 were perpetrated against KC1 between the ages of five and 14 years, when count 4 was perpetrated against KC2 between the age of six and nine years, and at least with respect to count five and six, when the alleged sexual abuse against AP in the early 1990’s took place when she was seven years of age. All three of those sets of complaints reflect a sexual preference for pre-pubescent girls of a generally comparable age, by an assailant who occupied a position of trust, and in circumstances of risk given the presence of other adults nearby while the assaults occurred.

[39] The following contextual similarities are present between all three complainants relative to the assaults claimed when they were pre-pubescent: (i) the acts were performed while adults or others were in close proximity, (ii) JM never said anything other than not to tell their parents, (iii) no threats were ever used, (iv) the accused was in a position of trust relative to all three complainants, and (v) all of the sexual assaults occurred in the home.

[40] In the case of KC1 and her sister KC2, there are further specific similarities: (i) JM would grind his pelvic region against them, (ii) he forced KC1 and KC2 to bend over and pressed up against their buttocks with his penis, whether dressed or undressed, and (iii) he gave both of them money after the sexual acts. It is also a similar detail that the touching was claimed to be under their clothing in the case of KC1 and AP.

[41] Trafford J. explains this kind of similarity in the decision of R. v. Cook.[^5] At paragraphs 12 to 14, he observed that in the case of sexual offences, it may not be the actual sexual aspects of the offences that are distinct as much as the circumstances in which they occur, the precise situation claimed by Crown counsel to be present here. The similarity must be capable of establishing an inference that the defendant has a specific propensity to commit certain acts, or in a certain way, or in certain circumstances. Where the evidence is tendered on the issue of credibility of the complainants, the similarities need not be striking, but neither can they be generic in nature if their probative value is to outweigh the moral prejudice that may result from their admissibility. Trafford J. continued at paragraph 14:

It is also important to determine which similarities are compelling. In cases of sexual assault, the similarities or dissimilarities between the alleged sexual acts are relevant, but usually not as important as the circumstances surrounding them because there is nothing unusual about the sexual acts themselves. It is their context that may, or may not, make them distinctive. See R. v. B. (L.), supra, at para. 37.

[42] In my view, that is the same circumstance here. However, I find little similarity between the conduct alleged against the three complainants when they were young girls or pre-teens relative to counts 8 and 9 of sexual assault against AP when she was 17 or 18 years of age. None of those other contextual or environmental similarities are present with counts 8 and 9, and so I find that in the absence of such similar evidential value, the evidence can serve no function relative to those two counts, other than to demonstrate propensity. It would be more prejudicial than probative to permit the other similar evidence to be admissible relative to those two counts.

[43] I am satisfied that the evidence relative to counts 1-7, taken as a whole, does display the degree of similarity required under the factors outlined by Binnie J. in Handy. It meets the “connectedness” test that is a precondition to admissibility across counts, a degree of similarity sufficient to allow the evidence to be used for the cross-count purpose, but with its weight to be determined by me separately as the trier of facts. As Martin J.A. stated in R. v. Simpson,[^6] at pp. 345-46, referred to in R. v. Arp,[^7] at para 65.:

It was, of course, for the Judge to decide as a question of law whether the evidence on each count was admissible on the other. His decision in that respect, in the circumstances, depended upon his being satisfied that the similarities in the offences were such as to be capable of supporting a reasonable inference that both offences were likely committed by one man. It was entirely within the province of the jury, however, whether they would draw that inference; whether they drew such inference would depend upon their view of the similarities in the circumstances of the two offences. [Emphasis added.]

[44] Certainly and obviously, there is more weight to the cross-count evidence as between the assaults claimed by KC1 and KC2 than AP because of the increased number of occasions where those similarities play out in a home over a period of several years, not simply on several occasions within a constrained time period.

[45] More importantly on this application, however, is the claim of the defendant’s counsel that there was a serious risk of collusion present that must undermine the ability of the evidence to be admitted at all as similar fact evidence, and that undermines the reliability of the evidence of the three complainants relative to the particular counts, entirely separate and apart from this similar fact evidence application.

[46] Duhaime’s Legal Dictionary defines collusion as a secret agreement between two or more persons, who seem to have conflicting interests, to abuse the law or the legal system, to deceive a court or to defraud a third party. The example is given of a husband and wife agreeing to lie about the duration of their separation in order to secure a divorce before the requisite separation period has passed. The definition references Scott v Scott[^8] where the court stated that "[c]ollusion may be defined as an improper act done, or an improper refraining from doing an act, for a dishonest purpose." More recently, in Royal Bank v Victor,[^9] also cited in the definition, Meredith J. defines collusion as "... a deceitful agreement or compact between two or more persons to do some act in order to prejudice a third person."

[47] Collusion was a central issue in Handy. Binnie J. addressed the issue head on at para. 104 when he observed that the issue is a critical core consideration because “if collusion is present, it destroys the foundation on which admissibility is sought,” namely that the events described by the three complainant witnesses testifying independently of one another in this case, or the ex-wife and the complainant testifying as it was in Handy, “are too similar to be credibly explained by coincidence.” As such, I must carefully consider whether there is an objective improbability of coincidence here, and if so, whether that improbability is undermined by collusion between the witnesses.

[48] At paras. 110-112 of Handy, Binnie J. states in part as follows:

110 …[S]uspected collusion is more than just another "factor". Cogency is derived from the improbability of coincidence. Collusion is a factor, yes, but more than that it is a crucial factor because the existence of collusion rebuts the premise on which admissibility depends.

111 Charron J.A. found, and I agree, that there was an issue of potential collusion between the complainant and the ex-wife. The evidence went beyond mere "opportunity", which will be a feature in many cases alleging sexual abuse with multiple complainants. The issue is concoction or collaboration, not contact. If the evidence amounts to no more than opportunity, it will usually best be left to the jury. Here there is something more. It is the whiff of profit. The ex-wife acknowledged that she had told the complainant of the $16,500 she received from the Criminal Injuries Compensation Board on the basis, she agreed, that "[a]ll you had to do was say that you were abused". A few days later the complainant, armed with this information, meets the respondent and goes off with him to have sex in a motel room.

112 The Court in Arp, supra, concluded that the test for the admission of similar fact evidence is based on probability rather than reasonable doubt (paras. 65, 66 and 72). Accordingly where, as here, there is some evidence of actual collusion, or at least an "air of reality" to the allegations, the Crown is required to satisfy the trial judge, on a balance of probabilities, that the evidence of similar facts is not tainted with collusion. That much would gain admission. It would then be for the jury to make the ultimate determination of its worth. [My emphasis]

[49] In R. v. C.(B.),[^10] Charron J.A., as she then was, describes how the risk of collusion can arise, but does so in a context very different from the facts present here, and more akin to those present in Handy. In that case, there was evidence that the witnesses had had some discussions and opportunities for communication with each other regarding the sexual conduct that was alleged. J.H., who was the granddaughter of the accused, told her mother, D.L., the daughter of the accused, about the events of one assault on the day after they occurred. That caused D.L. to tell her, for the first time, about her own experiences with the accused. At that time, J.H. also told her mother about her prior experiences with the grandfather.

[50] In circumstances that are quite different from those present here, in that case, D.L. testified that she did not believe she had told anyone else about the incidents with her own father (J.H.’s grandfather), but her own sister, J.S., seemed to contradict her. Instead, J.S. thought that she had discussed the matter with her sisters D.L. and S.S. when they were growing up. It is also entirely different from this case in that J.S. also said she spoke with J.H. and S.S. before she spoke to the police. Moreover, S.S. also testified in that case that she had discussed the incidents with her sisters J.S. and K.W.

[51] It is against that specific factual background, after referring to para. 112 in Handy, that Charron J.A. states the following, at paras. 40-41:

40 Collusion can arise both from a deliberate agreement to concoct evidence as well as from communication among witnesses that can have the effect, whether consciously or unconsciously, of colouring and tailoring their descriptions of the impugned events. In this case there was evidence of, or at least the opportunity for collusion in the various discussions regarding the incidents reported by the complainants. Furthermore, taken together with the anger regarding the dismissal and pay issues between one complainant and the appellant and the joint lawsuit by the complainants for damages, there was clearly an air of reality to the possibility of collusion in this case.

41 It was therefore incumbent on the trial judge, in considering the admissibility of the similar fact evidence, to determine whether he was satisfied on a balance of probabilities that the evidence was not tainted by collusion. In his ruling admitting the similar fact evidence, the trial judge did specifically refer to the fact that the witnesses had discussed some of the evidence with each other.

[52] In Handy, the existence of collusion was obvious as demonstrated in paragraph 111. However, the admissibility of similar fact evidence cannot be rebuffed simply by the possibility of discussions between complainants. There must be more than mere opportunity. The allegation of collusion must have an air of reality. Here, there was at least one conversation or discussion involving KC1, KC2 and their mother, SM, but there is no evidence of consultation and design between the complainants. There is nothing more than contact between these individuals. There is no evidence of concoction. Prior to giving the statements to the police, none of the complainants had ever spoken to each other about what happened to them or that what happened to them was happening to anyone else.

[53] Apart from the first episode when she was five years of age to which I will return later in these reasons, KC1 never disclosed any of the sexual abuse that she claims JM visited upon her after he moved into their family home two years after the initial event. She only came forward five years after they moved from that home and away from him to their new residence in the suburbs, precipitated by the altercation in the principal's office in relation to KC1’s truancy from school. There is no evidence in this case of any fabrication or sharing of stories having occurred between any of the three complainants.

[54] As they gave their evidence, each complainant appeared genuine in relaying the events that had occurred to them. The complainants gave no appearance of fabrication or trying to maintain consistent stories, of the kind that will frequently emerge in circumstances of actual collusion or fabrication when the witnesses have difficulty maintaining consistency of the fabricated story in the face of cross-examination, when they do not have each other's help to ensure that the predetermined story is consistently maintained.

[55] Defence counsel says that they simply stonewalled him and “would not remember”. as he put it, when he pursued avenues designed to try to demonstrate that there was collusion or more than mere opportunity. Defence counsel contended that a veneer of discomfort is created when witnesses respond that they do not remember whether certain events occurred. Here, it is claimed there is an air of reality to collusion, as SM, KC1 and KC2 do not specifically remember if there was a second conversation between them after the first that they acknowledged. Defence counsel said “there had to be more”, but I find that to be speculative.

[56] Looking first at KC1, her parents SM and JC took her directly to report to the police from the principal's office at the school on Monday, March 25, 2013. Apart from an absence of evidence for any motive or reason why the allegations would or could have been fabricated in this case, there was no evidence of collusion or collaboration that took place over the weekend after KC1 was caught skipping school. The allegations had not yet been disclosed.

[57] KC1, SM and KC2 all testified in different ways relative to how that weekend was spent before they went to the principal's office on Monday morning. The mother acknowledged she was very angry with her daughter because of the importance of school and had determined to give her nothing but the cold shoulder treatment for the weekend until they went to the principal's office on Monday, after taking her cell phone away from her. KC1 acknowledges that her mother was very angry, took her phone away and did not speak to her over the weekend. In her evidence, KC2 confirmed the mother's anger, but remembered her yelling at KC1 and remembered that KC1 professed that she didn't really care, responding "whatever." The fact that SM may have yelled at KC1 does not undermine their evidence that there was no discussion. Apart from the single incident of yelling when SM took away KC1’s phone, KC2’s evidence was entirely consistent. I can find no air of reality much less evidence of collaboration on the fabrication of a story relating to sexual assaults against KC1 having taken place over that weekend.

[58] On Monday, after KC1 made her statement, the police told the parents two important things. First, to go home and ask the other children if any of them had been abused, and second, they were not to talk about what happened to KC1. The parents did as they are asked by the police; they went home and with KC1 absent from the room, asked the other children whether any of them had been touched by JM.

[59] The evidence of SM is that the two younger ones denied any improper touching, but that KC2 hung her head down, was nervous and started to cry as she disclosed that she was touched by JM, displaying exactly the same conduct that she showed as she gave her evidence here at trial. She sobbed uncontrollably and hyperventilated and was physically incapable of starting her testimony until we took a couple of breaks and spoke reassuringly to her, thankfully successfully, to try and get her to calm down. Only then could she begin her evidence. Once she began, she was able to regain composure and quietly, but thoughtfully and directly responded to all of the questions she was asked. There is no evidence at all here that her evidence is tainted in any way by SM planting stories in her mind, or putting specific examples of sexual abuse to her by JM.

[60] After acknowledging she had been touched, KC2 was taken to the police to give her statement on March 27, 2013. She was not told anything further about what had happened to KC1. There is no evidence that KC2 knew any detail of what happened to KC1. Moreover, there is a notable difference between the complaints made by KC2, as compared to the variety of types of abuse that KC1 claims JM committed towards her. In the case of KC2, the conduct is always the same: JM bending her over or pushing her back on his bed in his bedroom at the top of the staircase and grinding his penis into her pelvis or backside, but always when they are clothed. It is unlike the detail of JM's touching of KC1 in its variety and method, as the touching of KC1 is always underneath clothing. It seems improbable to me that those differences would be present if the allegations of abuse were the product of collusion.

[61] Finally, relative to AP, there is no evidence that AP went to the police simply to feed them a story based on her aunt, SM, coming to her and telling her that JM was being investigated and that if anything had ever happened to her, the time to come forward was then. I accept the criticism of defence counsel that SM should perhaps not have done this herself, and instead let the police do their jobs, but she testified she was very close to these two nieces, even though not close to her own sister, so her concerns and actions are understandable. However, even they do not give an air of reality to claims that the stories are fabricated or colluded. AP went to give her statement to police the same day SM came to speak to her, and there is no evidence that she spoke to KC1 or KC2 before going to the police. There is simply no cogent evidence of any collusion, collaboration or conspiracy to cause JM to face multiple charges as he does here.

[62] More importantly, as her evidence shows, AP’s own disclosure is inconsistent with claims of collusion insofar as she discloses two very discrete events of sexual assault, separated by a span of ten years. The first episodes are the touching of her vagina under her clothing by JM when she sat on his lap on the balcony of the apartment in the early 1990’s when she was seven years of age, and the second is the very different disclosure of the episode following the camping trip when she was 17 or 18. There is no evidence I can see of inadvertent collusion.

[63] Crown counsel argues, correctly in my view, that it is mere speculation by the defence to raise allegations of collusion, concerns that are not supported by the evidence. I am satisfied on the evidence of the witnesses, and having regard to the whole of the circumstances pertaining to the disclosure and reporting to the police, that they never became “weighed down” with detail sufficient to permit any of the three complainants to actually know, beyond the fact that each of them had been abused by JM, any of the specifics or details of the abuse perpetrated in each individual case. Each of them explained why they had not discussed detail. They knew from the initial disclosure to the police, and the subsequent disclosures of KC2 and AP, that they could not discuss the details of their experiences with each other before trial.

[64] Reference is also made in R. v. C. (B.), above, to R. v. Shearing,[^11] where it seems to me the facts regarding at least the possibility of collusion were similar to those in this case. Some of the complainants in respect of the alleged sexual assaults had been in touch with each other prior to the trial, and in that case civil proceedings had actually been commenced by the complainants. The Supreme Court of Canada referred with approval to the trial judge's instructions to the jury on the possibility of collusion or collaboration between the complainants where he defined collusion as “the possibility that the complainants in sharing their stories with one another, intentionally or accidentally allowed themselves to change or modify their stories in order that their testimony would seem more similar and more convincing.”

[65] In this case, however, there was no cogent or persuasive evidence that any of the three complainants had “shared their stories with one another,” at all, much less intentionally or accidentally. In Shearing, it was left for the jury, as it is now left for me here as trier of fact, to make the ultimate determination, as I have, that the evidence was "reliable despite the mere opportunity for collaboration" and that no "less weight or no weight should be given to evidence” of the complainants when there was no evidence of any cogency in my opinion that their respective stories “may have been influenced by the sharing of information" (para. 44).

[66] In this case, subject to several weaknesses described above but which in my view do not cause the prejudicial effect of the evidence to exceed its probative value, which I consider further in my weighing of the evidence, I have granted the Crown’s application to admit similar fact evidence on a count-to-count basis as between the allegations of all three complainants, but only on counts 1, 2, and 3, counts 4 and 5, and counts 6 and 7. However, I have concluded the evidence on those counts is more prejudicial than probative relative to counts 8 and 9, or vice-versa for the reasons indicated, and is thereby inadmissible relative to the proof of those two charges.

Assessment of Credibility and Reliability of the Complainants

[67] Finally, to the extent I have not already done so in the preceding portion of these reasons, I turn to the assessment of the credibility and reliability of the evidence of the three complainants and whether the Crown has proven the offences beyond a reasonable doubt. The defence called no evidence, as was its right, and as such, the question falls to be determined solely on the basis of my assessment of the evidence of the Crown witnesses.

[68] As Crown counsel observed, at the commencement of this analysis it is important to remember that these are allegations of historic, albeit not long past, sexual abuse of children and to remember the context in which these offences are alleged to have occurred. In R. v. L. (D.O.),[^12] the Supreme Court reminds us, at para. 31, of the nature of the crime of sexual assault:

31 Child sexual abuse has been described as the perfect crime. The combination of the power imbalance between the victim and the perpetrator, both through the dynamics of age and gender, acts in conjunction with the fact that there are likely no other witnesses to the crime other than the assailant and the young victim. [Citations omitted]

[69] The truth of this observation is plain when one looks at the complainants in this case. KC1 and KC2 were ready victims. KC1 was assaulted when she was five years old and considered that she would not be believed relative to the abuse that occurred later, over several years after JM moved out of their home. She held that view because she firmly believed that her parents had not believed her on the earlier occasion. KC1 and KC2 were both vulnerable children. So too was AP at the time of the initial alleged offences when she was seven. She also disclosed the abuse to her mother at that time, but her mother would not speak to her about these matters. Although JM quickly vacated that family apartment after the disclosure was made, it was never spoken of again between AP and her mother. Thus, it is not surprising that she tried as a teenager to forget those events, evidently regaining trust and becoming a friend and acquaintance of JM only to believe that that trust was violated by the sexual assault that she claims he perpetrated against her when she was 17 or 18.

[70] These three complainants are perfect victims for an adult who is in a position of trust. For at least KC1 and KC2, JM was their uncle, their "Tio”, and for AP, while not an uncle, he was certainly family. KC1 and KC2 testified that he was fun to be with, that he came to their soccer games, and that he gave them money to buy ice cream and treats, apart from the money he allegedly also gave them after he sexually assaulted them. Clearly there is a power imbalance.

[71] The initial episode involving KC1 when she was five clearly led to a confrontation between JC and JM, a confrontation where JM evidently denied having abused her. However, SM, could not fully bring herself to believe that JM was innocent, notwithstanding that her husband JC did believe JM's denials. Nevertheless, they did not see JM for over a year or more after that, and it was only a year or two after the alleged assault of KC1 at five years of age, when JM fell on some tough economic times, and JC asked SM if JM could move into the bedroom at the top of the staircase in their apartment. She claims to have somewhat reluctantly acceded to her husband’s wish and allowed him to move back into their home. Defence counsel claims that SM would never have permitted JM to come back into their home if she honestly believed that he had assaulted KC1, but I think that that ignores the internal dynamics of the relationship between SM and JC, that JC believed JM's initial denials, even if she did not, and that he was able to influence her to permit JM to reside with them again after that time gap because her brother was facing financial difficulty. The important point is that there had certainly been some trust reestablished for them to have permitted him to live in their home. And once permitted to again live in their home, KC1 and KC2 allege in their testimony that JM took advantage of his position of trust and the power imbalance that existed between them, and perpetrated sexual abuse against them, unbeknownst to each other.

[72] I turn now to the assessment of the credibility and reliability of the evidence of the Crown witnesses who testified here, and in particular the complainants KC1, KC2 and AP. Key guidance relative to the assessment of the evidence of child witnesses who testify when older to events that are “historic” can be found in R. v. C.C.F.,[^13] and particularly R. v. W.(R.).[^14] Those guidelines apply even if not going back decades in this case, as is frequently the case in historic abuse cases. In C.C.F., at para. 47, the court refers to Wilson J.’s observation in R. v. B. (G.),[^15] at p. 55 that:

[A] flaw, such as a contradiction, in a child's testimony should not be given the same effect as a similar flaw in the testimony of an adult. . . . While children may not be able to recount precise details and communicate the when and where of an event with exactitude, this does not mean that they have misconceived what happened to them and who did it.

[73] Thus, although the credibility of each witness must be assessed, it will not always be appropriate in assessing the credibility of young children to apply the standard that would apply to an adult's evidence. This approach to the evidence of children was reiterated in R. v. W. (R.) , at pp. 132-34 where McLachlin J. acknowledged that a skilful cross-examination can cause significant confusion for a child, even if she is telling the truth, and that the peculiar perspectives of children can affect their recollection of events. At para 26 of R. v. W.(R.), she states as follows:

26 It is neither desirable nor possible to state hard and fast rules as to when a witness's evidence should be assessed by reference to "adult" or "child" standards -- to do so would be to create anew stereotypes potentially as rigid and unjust as those which the recent developments in the law's approach to children's evidence have been designed to dispel. Every person giving testimony in court, of whatever age, is an individual, whose credibility and evidence must be assessed by reference to criteria appropriate to her mental development, understanding and ability to communicate. But I would add this. In general, where an adult is testifying as to events which occurred when she was a child, her credibility should be assessed according to criteria applicable to her as an adult witness. Yet with regard to her evidence pertaining to events which occurred in childhood, the presence of inconsistencies, particularly as to peripheral matters such as time and location, should be considered in the context of the age of the witness at the time of the events to which she is testifying.

[74] In considering whether the evidence of the witnesses is credible, I have considered and assessed their honesty and truthfulness and made findings as to whether or not I believed the witness was being truthful and telling the court what they actually recalled as best as they were able. That is the test of credibility. It is necessarily a personal and subjective assessment, but is based on root objective assessment criteria. Where I have found the evidence of a witness to be credible, either on its own, or as confirmed by the evidence of other witnesses in the absence of collusion, I have then considered the reliability of their testimony.

[75] Even though credible, all or part of a witness’s testimony may be unreliable in circumstances where the witness’s ability to make accurate observations, or to recall the events in question or to describe them consistently or accurately, is questionable. Testimony must be found to be unreliable where the witness is unable to recall events or actions accurately, or there is a demonstrated inability of the witness to observe, or where their evidence displays favouritism or bias. Alternatively, evidence of the witness may also be unreliable because it is vague, non-specific or the product of a “reconstructed memory."

[76] Blair J.A. emphasizes these aspects of reliability in paragraphs 34-38 of R. v. Sanichar,[^16] noting that even where a complainant appears to be "sincere," "truthful," and "honest," and even if the complainant believed what she was saying, it does not follow necessarily that what she was saying was reliable. He notes that credibility alone is not enough, particularly where the accused is facing charges based on allegations of historical sexual abuse, and where there are serious reliability issues. He observes that we have long recognized that even an apparently convincing, confident and credible witness may not be accurate or reliable where there are contradictions and inconsistencies in the evidence because memory is fallible.[^17]

[77] As in Sanichar, the allegations in this case relate to events that occurred many years before the trial, when the complainant was a little girl and a teenager. She was 20 years older when she testified. At para. 38, Blair J.A. admonishes that:

38 In such cases - cases evolving out of allegations of distant events, including allegations involving historical acts of physical and sexual abuse - particular caution and scrutiny are called for in approaching the reliability of evidence. Rosenberg J.A. highlighted the need to be cautious about relying upon adult memories of childhood impressions in R. v. M.(B.) (1998), 1998 13326 (ON CA), 42 O.R. (3d) 1 (C.A.), at p. 29. Memories become increasingly frail over time. Evidence that might have existed had the matter been dealt with earlier may have disappeared. Or it may become contaminated. Life experiences can colour and distort the memory of what occurred.

[78] There are several points I would note before commencing my assessment of the evidence of the witnesses in this case. First, while the Supreme Court in Sanichar unanimously sided with Laskin J.A.’s dissent relative to whether a trial judge needed in all circumstances to self-instruct on the principles that affect determinations of reliability, they had no quibble with the importance of bearing the principles themselves in mind while assessing reliability. I have also tried here to bear these principles and concerns in mind when assessing the reliability of the witnesses’ testimony.

[79] Nevertheless, while that is important, particularly in the case of AP’s evidence, I would emphasize that there is no gap of 36 years in this case between the time when KC1 and KC2 allege these assaults were perpetrated and the time the complainants came forward. In this case, KC1 and KC2 make their disclosures to the police only four or five years after the abuse ended when they moved with their parents from the apartment on Sheppard Avenue to the new house outside of Toronto.

KC1

[80] In the case of KC1, as noted, the initial occurrence of abuse allegedly occurred when she was five years of age. The occasion was a family get-together at their apartment, which occupied two levels in a building located at 2000 Sheppard Ave. W. There were a number of guests visiting, including her uncle, JM. After the guests left, the evidence showed that her mother, SM took her sister, KC2, up to her room, her father, JC, took the two youngest ones to another bedroom, and she and her parents all remembered that JM took KC1 up to bed. The parents came back downstairs, but they said that JM was slower to come down again. They thought he might have been delayed in the washroom.

[81] However, KC1 testified that JM took her up to the first bedroom that was empty, laid her on the bed and started touching her chest and vagina with his hands underneath her clothing.

[82] KC1 distinctly remembered telling her parents what happened, sometime following that event but she was not sure exactly when. She remembered that the disclosure took place before she was a teenager. However, her parents also distinctly recalled and testified to that revelation and say it was made the very next morning. KC1 remembered, and her parents confirmed, that they took her upstairs to that room at the top of the staircase to show them what happened in that bedroom. Her parents both remembered it was the very next day because they recalled the party that preceded it, and specifically recalled not only who took which children up to bed, but that “Tio JM” (“Uncle JM in Spanish) volunteered that he would carry KC1 upstairs. They also recall JC going to confront JM with KC1’s allegations and that he “swore” that he did not touch her. JC believed him, but SM did not. As a result, JM was not welcome at their home or seen for over a year, if not more.

[83] Then, KC1 testified that after JM moved into their house, the abuse commenced again. There was touching underneath clothing, oral sex, kissing, and instances of JM rubbing his penis against her backside. The abuse progresses from simple touching to become more adventuresome, to the point where KC1 recalls 15 specific instances of him touching her; she testified that it was happening “all the time.”

[84] KC1 had difficulty testifying, but I found her to be a straightforward and honest witness. She did not elaborate or embellish in the course of giving her evidence. She told the court when she could not remember detail. She was absolutely sure of what JM did to her, and had good recall of the layout of the two-floor apartment and other telling detail. She recalled reenacting the events of the abuse when she was five for her father and mother, and her father corroborated her testimony in his recollection of going with her and SM up to the bedroom at the top of the stairs for her to show him what had happened the night before.

[85] Importantly, notwithstanding the suggestion that it was merely a dream, KC1 was 100% sure that JM touched her on that occasion when she was five because she specifically recalled seeing his face in front of her. She told her parents “Tio JM touched me.” It defies common sense to my mind to suggest that this was merely a dream, when the language used is what one would expect a five-year-old to say, and when it is improbable and implausible that a five-year-old child would actually have a dream of having been sexually touched by JM if it were not actually true, given the innocence of childhood, but a likely absence of sexual understanding at the age of five.

[86] KC1 did not try to embellish her evidence, for example, by suggesting that more than one occasion of him performing oral sex on her took place. It happened on the bed in the room next to JM's room, when she was sitting on the bed wearing a towel after taking a shower and talking to a boy. She specifically recalls they were talking about ice cream. It is improbable to my mind that that kind of detail would be remembered if it were not true. Given that she claimed to have been abused on numerous other occasions, but had not reported it, that explains why KC1 was unable to tell JM to get off of her while talking to a boyfriend on the phone. Neither did she ever indicate that any threats were made against her, although she was consistent that JM told her not to tell her parents, that no one would believe her, and gave her money to buy her silence.

[87] KC1 was not aware of the abuse being perpetrated against her sister. She told the truth about talking with her mother and sister on only one occasion that she could recall with certainty, while being sure that none of the details of JM's assaults against her were discussed or described.

[88] Relative to her sister, it is important that the evidence of KC2 and her mother corroborate KC1’s evidence of being afraid to take a shower on her own in the upstairs bathroom out of fear that JM would burst in on her. As a result, to ensure that did not occur, KC1 constantly insisted that KC2 come in and sit on the toilet to accompany her if she was taking a shower when JM was in the house. KC2 acknowledged and remembered those events independently, and confessed that it annoyed her, because she did not know why KC1 made her do that. Their mother, SM, also specifically recalled that conduct, but noted that it ended when they left the two-floor apartment on Sheppard Avenue and moved outside of the city. The obvious explanation was that KC1 no longer required a chaperone while taking a shower because JM no longer resided in the family home.

[89] It was disconcerting to me that KC1 would not provide the name of the boy that she was meeting with when she was skipping school (or the unnamed and now unknown boy she was talking to on the phone about ice cream when JM performed oral sex on her). She was adamant that she would not alter that position, even when it was put to her that it might be important to my decision and assessment of her testimony that she was unprepared to provide it. Indeed, the Crown would have preferred if I had ordered her to tell that individual's name, but I am certain it would have made no difference. I accept her answer and reasons. She was consistent that she never told that boy what JM had actually done to her. They simply talked about how she might go about disclosing something to her parents that needed to be disclosed without any detail of what that was actually passing between them. The same was true of the boy on the phone.

[90] Thus from her perspective, and given (i) that she no longer was involved with that boy, and (ii) the embarrassment and the shame and some evident self-guilt from her perspective of what had been done to her, I could understand her unwillingness to disclose that individual's name. It would have been helpful to have that name, and perhaps that individual could have been found and called to give evidence, but there was other external corroborating evidence of other aspects of KC1’s testimony that caused me to be less concerned about the absence of that one individual.

[91] In the end, I find that this disclosure was not a story created by KC1 to try and distract from some other reason that she was skipping school. She acknowledged that she had to catch up for the classes that she had missed, but the only real punishment she received from her family for skipping school was the cold silent treatment from her mother for two days, and having her cell phone taken away from her.

[92] It makes no sense that KC1 would have created these allegations as an explanation for skipping school. Rather, the more logical explanation, as she testified, was her sense of disbelief and hurt that her parents had not believed her when she disclosed the initial abuse to her when she was five years of age, and thus felt incapable of disclosing any of what happened to her in the several years during which JM lived with them before they moved out of the city in 2008. From her perspective, they had not believed her before so why would they now? I found this to be an exceptionally telling, sincere and valuable moment in her evidence. It is not surprising to me that in her early teen years, she would be looking for a way to unburden herself of the weight of JM's conduct that she had been carrying, that it caused her to be unfocused and listless in her schoolwork, and that it caused her to seek the advice and help of a boyfriend of her own age as to how that disclosure could be made to her parents.

[93] The defence expresses concern relative to possible or alleged exchanges of information between KC1 and her mother, but she did not remember telling details of the abuse to her mother when they were in the principal's office. She testified that she simply told her mother that JM had sexually touched and abused her. She testified that she provided no specific details of the specific nature of the conduct. On the other hand, it is totally reasonable for her mother, faced with such a revelation, to ask questions of her daughter who has just disclosed to her that she was sexually abused. From KC1’s perspective, however, all she provided to her mother were “bits and pieces”, not the whole story or even extensive detail. There is nothing in her mother’s testimony to suggest that there was collaboration or fabrication or collusion here. However, I also note that KC1 was never cross-examined on whether she actually did disclose those specific points to her mother.

[94] In any event, as I have found in the preceding portion of these reasons relating to the similar fact evidence, I am satisfied that there was no collusion between these witnesses and while it would be unrealistic and unreasonable to expect that nothing was ever said about these events in the family home, I am satisfied that there were no conversations involving KC1, KC2, and their mother SM or their father JC that disclosed actual detail of their respective allegations to each other, or that there was any occasion of concoction, contrivance or fabrication.

[95] Defence counsel contends that KC1’s evidence is problematic relative to the occasion when her mother went out to the car and JM was left to watch the children, and he bent her over a stack of chairs in the kitchen, pulled down her pants, pulled down his pants, and rubbed his penis up against her backside. It is true that KC1 initially testified that she was bent over a “single chair”, and then testified before me at trial that it was a “stack of chairs”, but I find the difference in detail inconsequential. More importantly, the clarity of her answer about why she knew it was a stack of chairs was telling because she specifically described the features of the backs of the chairs she was looking at as she was bent over them while JM abused her.

[96] Defence counsel also contends that these were implausible events that were "wildly risky" and could not have happened with the claimed frequency in public areas of the house. However, I reject the claim that this conduct is wildly implausible for the simple reason that the evidence plainly shows increasingly brazen and aggressive behaviour by JM over a period of several years with the full knowledge that there were trusting adults located nearby. We frequently say that you "can't make these things up" and this is one such example. Rather than concoction, I am instead satisfied that it is entirely consistent with the increasingly brazen behaviour that JM exhibited towards KC1 that finally ended when they moved out of the city, or as they were packing to do so when she told him she would not have to put up with his abuse anymore because he would not be moving with them.

[97] I have found KC1 to be a credible and reliable witness. I believe and accept her evidence for the reasons I have explained.

KC2

[98] Like her sister, KC2 was an easy target for an uncle who was a person in a position of trust. She testified that JM used his hands to push her on her back or on her front, and to then rub his penis against her, either against her pelvis or against her backside. They were always clothed. She said this happened frequently, and described it as “all the time when they were alone.” She also testified that he gave her money each time after he was finished abusing her. KC2 testified that she continued to permit this to go on because she did not want him to get mad at her if she refused to allow him to touch her.

[99] Unlike KC1, only this one kind of touching took place between KC2 and JM. I found KC2 to be a very honest and credible witness. At the commencement of her evidence by close circuit TV, she was sobbing uncontrollably when any questions were asked to the point that she could not actually begin her testimony. Her tears caused her to start to hyperventilate and it took some effort to calm her down, to get her breathing slowly, and to encourage her to just start to answer questions slowly as best as she was able to.

[100] Any suggestion that that demeanour at the commencement of her evidence was either an acting performance, or the reaction of someone involved in some kind of conspiracy to implicate JM in sexual assaults, is simply incredible. Her emotions were genuine. It was very difficult for her to testify, but then she was able to regain her composure and able to answer the questions as they were asked. I found her to be honest and straightforward in all of the answer she provided, not only in chief, but also in cross-examination. There was nothing combative or embellished or exaggerated about her evidence. While it may well be that the sexual assaults perpetrated against her by JM did not occur every day, her answer that they happened “all the time when they were alone” is totally understandable given the fact that she was seven years of age when this took place. From her perspective of a seven year old child, it must surely have seemed that the abusive conduct was persistent and continuing whenever circumstances permitted it.

[101] KC2 was forthright and honest about all of them coming to court together in the same car, her sister, KC1, herself, her mother SM, and her cousin AP. It seemed to be an innocent answer, and it was plain from her evidence that she did not appreciate that there could have been any issue of collaboration as a result of the four of them driving together to court each day that this trial was ongoing. I accept her evidence that there was no discussion on any detail, and particularly that she did not speak about any of what was done to her after she gave her statement to the police, because the police told her not to talk about it.

[102] In addition to these indicators of truthfulness, I found KC2 to be reliable in her evidence because she remembered detail about the layout of the apartment, the amounts of money that were provided to her by JM, and from where in the room he would retrieve the money, that is, from the top of the dresser adjacent to where she was lying. She remembered being given loonies and toonies, but importantly, her parents also remembered that she told them that her uncle had given her money, but they did not ask why. KC2 also remembered the numerous occasions when her sister, KC1, made her come into the bathroom while KC1 was taking a shower, and simply sit on the toilet to keep her company. It was also evident from her testimony that it annoyed her because she did not know why she was being asked to do that. She did not know that she was serving as an unknowing chaperone to KC1 to protect her from her fears that JM would come into the bathroom while she was having a shower. There was nothing concealing or suspicious of this evidence. It was just an honest recounting of the circumstances as she remembered them.

[103] One important aspect of KC2’s evidence related to whether the door of JM's bedroom at the top of the staircase was open or closed when he pushed her on his bed and rubbed his pelvis against her. She testified that the door was open. She testified that you could hear if someone was coming up the staircase, a two level staircase like in a split-level house, with the first portion leading up to the doorway to the apartment, and the second rise of stairs leading upstairs to the bedrooms and the upstairs bathroom.

[104] Defence counsel contends that description itself must cause concern in my mind. He suggested that the testimony that sometimes people would walk by while the abuse was taking place was an implausible possibility and asked how that could be? It was implausible in his submission, because if anybody walked by that bedroom door while this was going on, they would have seen what JM was doing to KC2, and in his submission, that casts doubt on the entirely of KC2’s report.

[105] However, the evidence provides a clear and refuting answer to that position. While the evidence reflected that people may have walked by that room when she was in it with JM, there was no evidence on what was meant by the door being open, and whether it was fully open or just ajar, but regardless, KC2 was clear that no one ever walked by while he was actually perpetrating his abuse against her. She was clear that she was never on the bed when someone walked by.

[106] The truth of this aspect of her testimony is confirmed when combined with her demonstration of how JM would respond if any sound was heard of anyone seemingly starting to come up the stairs. KC2 leaned back in her chair and looked over her shoulder to demonstrate how JM would respond, his back to the open doorway, to listen more closely if he thought he heard any sounds that suggested he might get caught. But it was clear in the manner in which she leaned back to demonstrate his action that this was not something that she invented. As with the balance of KC2's testimony, she testified that that was the manner in which he acted on those occasions, and I accept that is what happened.

[107] Finally, I note again that KC2 denied having detailed discussions with her mother about what had been done to her, and there is no evidence to the contrary. It frankly makes no sense to me that these allegations would be made up merely to provide support for the allegations of her sister, KC1. I found no basis in the evidence of KC1, KC2 or their mother, SM, to conclude that her allegations were fabricated at the instance of her mother, and that she was put through this ordeal simply to provide corroboration for KC1’s evidence. That is a suggestion that defies common sense in the context of the evidence as a whole.

[108] To summarize, I found KC2 to be entirely honest, credible and reliable in the evidence that she gave to this court. I am satisfied that she did not discuss details of the abuse that was perpetrated against her by JM, just as she promised to the police, and that she did not participate in some sort of collusive effort as suggested by defence counsel to implicate JM. I believe and accept her evidence in its entirety.

AP

[109] Turning to the last of the complainants, AP, I have no doubt that she was being sincere in the testimony that she gave to this court and telling the court what she actually could recall or reconstruct as best as she was able to. I do not believe that she was part of a collusive effort to come up with charges against JM. Regardless of my belief relative to the sincerity of her testimony, however, I have concluded for several reasons that I cannot rely upon her evidence as the foundation to convict JM of counts 6, 7, 8 or 9.

[110] Dealing first with the episodes when she was seven years of age, I accept APs evidence that the four occurrences could have happened as she described them, notwithstanding that there were other adults living in that apartment. The defence contends those other individuals would necessarily have seen any abuse perpetrated by JM against AP, but that does not follow. AP testified and was un-contradicted that the windows in that apartment that overlooked the balcony started at waist height. Thus, a person sitting on a chair on the balcony located close to the apartment wall, and with their back to the windows, would likely only have been seen from the shoulders up. Because the windows were not floor to ceiling, the wall portion below those windows could easily have served as a screen to prevent the people inside the apartment from seeing anything that JM was doing to AP while she sat on his lap.

[111] Moreover, there is no indication that she resisted him or that there was any tussle between them. From the viewpoint inside the apartment, assuming that there were adults there and watching at any time when the abuse took place as AP claimed it occurred, and I note she never knew whether any other adults were watching, there would have been no outward signs to indicate that anything untoward was going on. The image that would have been seen by anyone inside the apartment would simply have been a seven-year-old child sitting on the lap of a person who was like an uncle to her.

[112] One unusual and difficult aspect to her testimony related to the involvement of AP's mother and AP’s testimony that she disclosed this abuse to her mother contemporaneously. The Crown did not call her to testify. That was surprising to me given AP’s evidence that she did tell her mother that the abuse that was happening, the circumstances, and that strong words were evidently exchanged between her mother and JM in the mother's bedroom. AP could not overhear exactly what was said, but knew that very soon thereafter, JM left the apartment and did not return to live there again. So one might have thought that her mother would naturally be called to provide corroboration for that disclosure which she claims she made coincident with the time of the first incidents of abuse. The absence of that evidence raised the question in my mind why that evidence would not have been called. The answer to that question is unknown but it inferentially suggests that it would not have been supportive of AP's position.

[113] Ironically, the suggestion was made close to the end of the Crown's case that defence counsel was going to call AP's mother to give evidence in support of the defence, presumably in the belief that she would have contradicted AP relative to the disclosure, or otherwise undermined her daughter's testimony. In the end, however, the defence also declined to call AP's mother. This suggests he could not be certain what she would say, and so he chose to call no defence evidence. In the end, it is speculative but we were left with that seeming absence of evidence and not knowing what AP’s mother would have said if she had testified.

[114] There is an inconsistency of considerable importance that must be addressed relative to AP’s testimony on the sexual touching when she was seven. That inconsistency is between the statement she initially gave to the police on March 28, 2013, the evidence she gave at the preliminary inquiry and the evidence she gave before me at trial. In her initial statement to the police, AP was plain in her response to several probing questions by the police officers that she was certain that when the offences took place on the balcony when she was seven, JM had touched her underneath her clothing.[^18] She was definitive that it had not been on top of the clothing. She was definitive that he put his hands underneath her underwear.

[115] At the preliminary inquiry, however, when asked those questions she indicated initially and then clarified and was more particular in her evidence that he had touched her over top of her underwear.[^19] At the end of her examination in chief, however, even though the witness gave no indication of any need to have her memory refreshed, and despite the objection of defence counsel at that time, Crown counsel sought to refresh AP’s memory relative to what she had said in her earlier statement to the police on the basis of the very old but well known 1956 decision of the Supreme Court in R. v. Coffin.[^20] The preliminary hearing judge permitted this to be done even though there was no issue that the witness had become adverse in interest. Not surprisingly, after reading the transcript of her police statement to ‘refresh her memory’, AP suddenly recalled that all of the touching had been underneath, not over her clothing and underwear.

[116] Then again here, when she testified before me, AP insisted that he had touched her under her clothing and she endeavored to explain these important discrepancies by indicating that she was nervous and scared when she testified at the preliminary inquiry, and that it was the first time she had spoken about those events. However, it was not the first time, even though it may have been the first time in public, because she had already disclosed those events to the police officers in the interview that she gave the same day that SM came to her and she went to the police. She was asked several times to confirm her statement, yet gave the opposite evidence at the preliminary inquiry. I note that there is no inconsistency in her testimony that the event happened, but she described the actus reus of the offence entirely differently, did not realize she had made a mistake and correct the error herself, and had to specifically have her memory refreshed from her statement before her preliminary inquiry testimony lined up with her original police statement.

[117] Crown counsel sought to cause the witness to reaffirm the original story in her re-examination, but I remained troubled with the inconsistency on a central feature of the evidence. My uncertainty was not assuaged by certain other answers given by AP in response to Mr. Frost’s cross-examination, and indeed by the uncertainty that is reflected in AP’s original police statement at page 9, where, at the end of the questioning about the touching having been over or under clothing, AP states “Under everything….he’ll like lift up everything. I try to block these things out so I know there must have been more than one time.” [My emphasis]

[118] That is an important error on the most important aspect of her testimony, and the follow up comment adds to the uncertainty. The factual error is central to whether the Crown has established the elements of those offences beyond a reasonable doubt. I regard it as an important inconsistency, not something that is merely peripheral. Once again, I do not doubt the sincerity of AP’s testimony, but I find myself being uncertain on a core element of the offence and have found myself obliged to concluding that that testimony cannot be relied upon. More importantly, as also seemed evident in her testimony about the later alleged assault, I was very concerned that despite the sincerity of her testimony, AP did not actually have a specific distinct memory about what had happened, but was instead engaging in a deductive process relative to these matters where she was testifying, not about what she actually specifically remembered in her mind’s eye, but rather about what she had been able to piece together and deduce from her memory, such as it was, of events that she tried to block out, by her own admission, and that had allegedly happened more than 20 years before.

[119] The difficulties with AP’s memory on the second alleged assault when she was 17 or 18 years of age was that she could not be sure of exactly what happened. She herself indicated that she only "kind of remembered", and at both the preliminary inquiry and before me at trial effectively acknowledged that she was sufficiently intoxicated from a combination of alcohol and marijuana to be unable to remember what had transpired. She concluded that JM had tried to penetrate her anally because she had a sore behind when she woke up the next morning.

[120] The problem is reflected in her evidence given at the preliminary inquiry, where on two separate occasions when giving evidence about that event, she acknowledged that she had been "putting 2+2 together" to come up with the conclusion that JM had tried to have anal intercourse with her. She did not actually know or remember the event. She had never said that before, and it is very disconcerting because it is the core conduct relating to the offence on which she has no certain memory. Nevertheless, in testimony before me, she claimed again to definitively remember JM trying to have anal sex with her, but she could not remember that without prompting. In her testimony here, she ultimately said that she did remember, and that she could not stop him. But I find it difficult to reconcile these distinct and important differences in her testimony relative to the core events. In light of her conclusion that she was "putting 2+2 together", I am not confident that the offence took place as she described it, notwithstanding her sincere belief that it did.

[121] In the result, while I have no question of the sincerity of AP’s beliefs and her efforts to testify before me, and on prior occasions to the best of her ability and to tell the truth as she recalled it, I find I cannot be sure that these offences occurred because I remain uncertain that her evidence is reliable, despite her sincerity and efforts to recount what she remembered to the best of her ability. As well, to deal with it in a sentence, notwithstanding my finding of similarity between AP’s allegations and those of KC1 and KC2, there is plainly insufficient weight to those similarities to permit the evidence and my findings on the other counts to overcome my uncertainty on all of AP’s allegations.

SM and JC

[122] I found both SM and JC to be very honest, credible and reliable witnesses. These were two parents who are exceptionally distraught at allegations of abuse made by their daughters against their uncle, and they would obviously be concerned with these occurrences. I dismiss the claims that they are involved in some effort to fabricate evidence or to feed evidence to their daughters in an effort to have JM convicted of this range of sexual offences.

[123] SM fairly described the moment when she discovered her daughter at McDonald's in the company of the young man, confirms that she was angry with her throughout the weekend, but gave her the cold shoulder treatment, apart from taking her cell phone away. She testified her immediate response when the confrontation took place in the principal's office on Monday morning, when KC1 breaks down and discloses the abuse to her, is one of shock, calling her husband, JC, and telling him to come immediately, and then both of them immediately proceeding with their daughter to 23 Division to give the police a statement. There are no delays in that sequence of events, and there was no evidence before me beyond mere speculation that any of KC1’s allegations might have been contrived over the weekend.

[124] SM confirms that when they returned from the police station, she and her husband confronted the other children and that KC2 started to cry and nodded her head that she too had been touched, but provided no further detail. Their father, JC, confirms that evidence.

[125] SM and JC also confirm the incident that KC1 reported at age five. It made sense that JM visited with them often before that incident, as SM testified, because SM and her brother had a close relationship. There had been no difficulties between them. There is no evidence before me that she had or has any reason to fabricate this story against him. The key to her evidence, and its credibility and reliability is her recollection of KC1 being scared on the Sunday morning when she disclosed what her uncle, JM, had done to her. SM then told JC immediately. Both of them have specific recollection of the night before. Both of them corroborate KC1’s evidence.

[126] Interestingly and tellingly, there were tears and enormous sadness in the eyes of JC when he acknowledged that he had believed JM initially following their confrontation when JM denied that he had touched KC1 improperly. It was his continued belief that JM had not done so that permitted JM to move back into their apartment a year to two later. This belief also permitted him to again persuade and insist that SM accept his explanation that nothing had occurred, and permit JM to live with them in light of the difficult economic circumstances he was confronted with at that time. JC was clearly upset and I could see him look over at the defendant with bitterness and tears in his eyes, seemingly for the consequences that had flowed from his belief in JM's initial denial.

[127] There were two other important aspects to SM's evidence. First, she corroborated KC2’s testimony that KC1 insisted that her sister serve as a chaperone when she showered, but KC1 no longer asked her to do that after they moved out of the city. Secondly, contrary to the suggestion that this could not have happened in that apartment, SM acknowledged that it would have been possible for JM to assault one or the other of the two daughters even when she might have been home because of the two floor layout. I accept her evidence that this could have occurred upstairs while she was downstairs attending to household matters. There was no evidence of any threats, or of either KC1 or KC2 crying out for help that would have been heard by others in the apartment. The assaults were carried out in silence.

[128] Finally, as noted, I found JC to be a very credible witness. He was a man of few words. However, he confirmed the incident at age five and that KC1 had taken he and his wife up to the bedroom at the top of the stairs to show them where JM had touched her improperly the night before. He remembered asking and her telling him that JM was not on his knees. It was also important to me that the extent of his emotions and his feelings of guilt as a father were so evident. He had permitted his daughters to be assaulted by permitting his wife's brother to come back into their home, when he gave that individual the benefit of the doubt. He appeared and conveyed his feelings of betrayal.

[129] I was not surprised either that JC did not know and did not want to know the details of any of the abuse that had been perpetrated against his daughters. He testified that as a father, it made him feel sick simply to know that it had occurred and he did not want to know any of the detail. Whether he heard any detail at a bail hearing of JM relative to the allegations does not provide a foundation for collusion or fabrication as the defence would construe it.

[130] I am satisfied on the evidence of both SM and JC that there is no evidence of contamination. I am also satisfied that both SM and JC had independent evidence and were truthful in the testimony that they gave to the court. Neither SM nor JC's evidence is contradicted in any way that undermines its reliability. I accept and believe the testimony of both of those witnesses, particularly as it corroborates the testimony of their daughter, KC1, relative to the initial incident of abuse when she was five.

Conclusion

[131] On the forgoing basis, I have found the evidence of KC1 and KC2, on their own and as corroborated by the evidence of each other and other witnesses, to be credible and reliable. On the evidence as a whole, I am satisfied that the Crown has established the elements of counts 1, 2, 3, 4 and 5 beyond a reasonable doubt. I am satisfied to the criminal standard that JM perpetrated these offences against them and find JM guilty as charged on counts 1, 2, 3, 4 and 5.

[132] In the case of AP, however, despite her sincerity and efforts to testify about matters as she best remembers them, I found there to be critical issues of reliability in her testimony that relate to central features of the offences charged about which she simply had no certainty. I accept that AP tried her best to clarify the inconsistencies but I am not satisfied that they meet the required standard of reliability. The evidence she gave may meet a balance of probabilities standard of proof, but it does not satisfy the much more onerous obligation that rests on the Crown in a case like this to prove beyond a reasonable doubt that the offences occurred as the witness described them. I have necessarily concluded it would be unsafe to find the accused guilty of the offences alleged by AP. As such, JM is acquitted of counts 6, 7 and 8. Because of AP’s testimonial uncertainty whether she was 17 or 18 when the second alleged assault occurred, count 9 is incapable of proof to the criminal standard and so is withdrawn with the concurrence of the Crown, on the basis of a directed verdict granted after the conclusion of the Crown’s case.

[133] In the result, JM is convicted of counts 1-5 and acquitted of counts 6-9. Judgment shall be entered accordingly.

Michael G. Quigley, J.

Released: March 7, 2016

CITATION: R. v. J.M., 2016 ONSC 1615

COURT FILE NO.: CR-14-50000342

DATE: 20160307

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

J.M.

Defendant

REASONS FOR JUDGMENT

Michael G. Quigley, J.

Released: March 7,2016

[^1]: R. v. L.B.; M.A.G., 1997 3187 (ON CA), 35 O.R. (3d) 35 (C.A.).

[^2]: R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908, at para. 31; R. v. B. (C.R.), 1990 142 (SCC), [1990] 1 SCR 717, at p. 7.

[^3]: R. v. Handy, at para. 55.

[^4]: R. v. B. (C.R.), at para. 72.

[^5]: 2006 39321 (Ont. S.C.).

[^6]: (1977), 1977 1142 (ON CA), 35 C.C.C. (2d) 337 (Ont. C.A.).

[^7]: [1998] 2 S.C.R. 339.

[^8]: 108 LT 49 (1913).

[^9]: 1986 765 (BC SC), 7 B.C.L.R. (2d) 151 (BCSC, 1986).

[^10]: 2003 32894 (ON CA), 171 C.C.C. (3d) 159 (Ont. C.A.).

[^11]: 2002 SCC 58, [2002] 3 S.C.R. 33. See also R. v. Moore, 1994 8730 (ON CA), [1994] O.J. No. 1685 (C.A.), at para 9, where was no evidence that any of the complainants gave or received details of the incidents that were included in the accounts and the evidence pointed to nothing more than contact and general discussions.

[^12]: 1993 46 (SCC), [1993] 4 S.C.R. 419.

[^13]: 1997 306 (SCC), [1997] 3 S.C.R. 1183.

[^14]: 1992 56 (SCC), [1992] 2 S.C.R. 122.

[^15]: 1990 7308 (SCC), [1990] 2 S.C.R. 30.

[^16]: 2012 ONCA 117, 280 C.C.C. (3d) 500.

[^17]: See also: R. v. McGrath, [2000] O.J. No. 5735 (S.C.), at paras. 10-14; R. v. Stewart (1994), 1994 7208 (ON CA), 18 O.R. (3d) 509, at pp. 515-18; R. v. Norman (1993), 1993 3387 (ON CA), 16 O.R. (3d) 295, at pp. 311-15, all cited at para. 35 of Sanichar.

[^18]: Transcript of March 28, 2013 interview of AP by DC Todd Jones and DC Jennifer Hutzel, at pages 8 and 9 of 54.

[^19]: Transcript of Evidence of AP at preliminary hearing held x, 2014, at pages 56-57, 69-71.

[^20]: 1956 94 (SCC), [1956] S.C.R. 191. The majority in that infamous case confirmed that s. 9 of the Canada Evidence Act does not forbid refreshing the memory of a witness by means of a previous testimony which she has given. There was no attempt to discredit or contradict the witness Petrie in that case and she admitted that her memory was better at the time of the preliminary inquiry. Moreover, the court held that whether to permit such refreshing of memory is a question for the judge's discretion. In this case, however, I note that there was no inquiry made in the instant case relative to AP’s memory at the time of her initial statement as compared to that at the preliminary hearing.