R. v. K.R., 2016 ONSC 2000

COURT FILE NO.: 14-68

DATE: 2016/04/29

ONTARIO

SUPERIOR COURT OF JUSTICE

IMPORTANT: CONTENTS CANNOT BE PUBLISHED, BROADCASTED OR TRANSMITTED PURSUANT TO AN ORDER UNDER SECTION 486.4 (both victim and accused) OF THE CRIMINAL CODE OF CANADA DATED JANUARY 11, 2016 OF THE HONOURABLE MR. JUSTICE RONALD M. LALIBERTE JR.

BETWEEN:

HER MAJESTY THE QUEEN

– and –

K.R.

Respondent

Isabel Blanchard, counsel for the Crown

Donald W. Johnson, counsel for the Respondent

HEARD: Trial date of January 11, 12, 13 and 14, 2016.

Written submissions of defence received on February 22/16.

Written submissions of Crown received on March 31/16.

Defence’s reply received on April 8/16.

REASONS FOR JUDGMENT

LALIBERTE, J.

INTRODUCTION

[1] The accused, K.R., is charged with having sexually assaulted and sexually interfered with his step-daughter, M.T., and his biological daughter, A.T.

[2] Specifically, in regards to M.T., he is charged with 3 counts of sexual assault under section 271 of the Criminal Code and 3 counts of sexual interference pursuant to section 151.

[3] The alleged incidents would have occurred during the period of September 7, 1998 and September 6, 2004 in the Township of South Glengarry.

[4] The essence of the allegations is that he, on a number of occasions, touched her vagina by inserting his fingers. It is also alleged that on one occasion, he rubbed her vagina with a washcloth.

[5] As for A.T., there are 2 counts under section 271 and 151. It is alleged that he touched her vagina on 2 or 3 occasions by moving his fingers and had her touch his penis. This would have occurred during the period of December 22, 2003 and December 21, 2005 in the Township of South Glengarry.

[6] K.R. testified and denied the allegations.

[7] The Court’s decision rests on issues of credibility and reliability of the witnesses.

[8] Properly articulated, the question for the Court is whether the Crown has proven each of the essential elements set out in section 271 and 151 beyond a reasonable doubt.

THE EVIDENCE

[9] Looking first at the evidence, Crown counsel called the following 3 witnesses:

− The complainant, M.T.;

− The complainant, A.T.; and

− C.F.

[10] Pursuant to section 655 of the Criminal Code, the accused person admitted certain facts pertaining to the police investigation. Specifically, the following time line was conveyed to the Court on consent:

− That complainant M.T. first reported this to the police on May 9, 2013;

− The investigation was assigned to Detective Constable Maxius on May 14, 2013; he contacted M.T. on that date;

− The officer met complainant M.T. on May 15, 2013 and she provided a video statement;

− On May 16, 2013, complainant A.T. is interviewed by the officer;

− On June 5, 2013, witness C.F. is interviewed.

[11] The Court was also advised that identification was not in issue.

[12] Lastly, it was agreed that Crown counsel could cross-examine K.R. on the statement he had provided to the Detective Maxius on June 18, 2013. Voluntariness is admitted.

[13] Defence called the following witnesses:

− The accused, K.R.;

− The mother of accused’s wife, J.S.;

− The daughter of accused’s wife, K.S.;

− The accused’s sister, C.R.;

− The accused’s nephew, R.R.

[14] The Court will now review the evidence.

M.T.

[15] M.T. was born in 1989. She has 2 half-sisters, one of whom is the other complainant A.T., and one-half brother.

[16] Her mother is J.T.

[17] She has known the accused for as long as she can remember. He is her step-father and resided with him up to age 16.

[18] Her evidence is that the accused did inappropriate things which went on from ages 7 to 14. These would have occurred at 3 different locations namely, Bonville, Summerstown and Lancaster.

[19] While residing in Bonville in a 2 storey house with a blue exterior, she describes that the accused was giving her a bath. She was 7 years old. She is pretty sure A.T. was also in the bathtub. Her mother was downstairs.

[20] She testifies that K.R. was rubbing her vagina with a washcloth. She describes the rubbing as “hard” and that it was hurting her. She doesn’t remember how long this lasted. Maybe 2 minutes. He wasn’t washing any other part of her body.

[21] She told him it hurt. He told her to get out.

[22] M.T. testified that she told her mother. She doesn’t know if he gave her baths after this.

[23] She states that she would see him undressed walking to the washroom.

[24] They then moved to Summerstown which is off Highway 2 across the St. Lawrence River. They lived in a little green one storey house with 3 bedrooms.

[25] She resided there from grade 4 to half of grade 6.

[26] M.T. describes the following sexual contacts with the accused as having taken place in Summerstown:

1. " She was with the accused in the St. Lawrence River and he was trying to show her how to swim;

" She doesn’t remember the grade she was in, nor the part of the summer, nor if there was anybody else around;

" She had a one piece bathing suit; she can’t recall color or fabric;

" She states that he fingered her when asked what happened;

" She describes being on one of his arms with her face on the palm of his hand. Her body was on his arm and he was touching her with his other hand. He was touching her vagina. He was inserting his finger in her vagina;

" This would have lasted roughly 2 minutes. She can’t recall what happened after the touching. She doesn’t know if she stayed in the water;

" As a result of this, she told him she didn’t want him to teach her how to swim any more. She didn’t say anything. She doesn’t recall if he told her anything;

" To this day, she can’t swim.

[27] When asked by Crown counsel if she disclosed this to anyone, she confirms that she did not at the time. She was scared of not being believed and of being punished. She didn’t know what the outcome would be.

2. " M.T. describes an incident which would have occurred in her bedroom at nighttime while sleeping on the top bunk bed. She doesn’t know if this happened before or after the swimming incident;

" She shared a bedroom with her sister A.T. L.T., her younger sister, had her own bedroom;

" She relates that her cousin R.R. and his girlfriend L. were visiting and sleeping over in the livingroom on a folding bed type couch;

" She testifies that she remembers the accused rubbing her. She uses the words “fingering me”. She asked him what he was doing. She was awakened by him touching her. He would have inserted his fingers inside her vagina;

" She had a nightgown on and assumes she had underwear;

" She could see him as there was lighting from the livingroom and a large window which formed part of the enclosure of this bedroom;

" He would have told her that he was just getting a pillow and to go back to sleep. He was standing at the foot of the bed where the stairs were to get to the top bed. He was positioned closer to her lower body;

" She doesn’t know how long this lasted. While unsure, she believes her mother was in the kitchen;

" She tried to go back to sleep. There was nothing else she could do;

" She can’t remember the time of the year this would have happened;

" She is again asked by Crown counsel if she told her mother about this event. She states that she did not since her mother would not have believed her. She states that she is only one person. It’s her word against his. So she decided not to tell her mother anything.

3. " Thirdly, M.T. describes that K.R. would watch her through a large window, which she describes as a “bay window”;

" Exhibit #1 is a diagram drawn by the witness. It shows that one of the enclosures or wall to this bedroom was a large window with no curtains;

" Her evidence is that she regularly saw him peeking through this large window and most of the time, this is while she was changing. She could only see his upper body.

" He wouldn’t say anything. She didn’t tell him anything;

" This made her feel uncomfortable.

[28] She never told her mother.

4. " The last type of abuse which would have occurred in Summerstown would have taken place in the accused’s bedroom;

" M.T. testified that the accused would ask her to rub his feet in the morning. He would touch her inner thigh;

" She doesn’t recall when it started but it would only be in the morning in his bedroom;

" When asked where her mother was she responds “sometimes she was sleeping…she would generally be outside the bedroom”;

" The accused was lying on the bed on his back and she was on the bed close to his feet;

" He would start touching her vagina. He was slouching meaning that his body was leaning towards the right;

" He would use his hand. He touched the inside of her thigh. This lasted for a couple of minutes. It would stop when she told him that she didn’t want to rub his feet. He would tell her to go and get her sister;

" She states that he inserted his fingers in her vagina. It would last for a couple of minutes till she felt uncomfortable. She didn’t’ say anything nor did he;

" She would just get up and leave. She explains that “feeling uncomfortable” means that she couldn’t take it anymore;

" This would have happened on a multiple of occasions. She qualified that it happened once in a while;

" She never told anyone.

[29] The next move was to Lancaster when she was in grade 6. She states that they moved to Lancaster.

[30] M.T. describes the house as looking like a trailer. It was a one level house with a basement. There were 3 bedrooms on the main floor. Later on, 2 bedrooms were added to the basement.

[31] In regards to the sleeping arrangements, at the beginning she shared a bedroom with A.T.

[32] She explains that a year after they moved to this home, the accused would have cut their bedroom door in half. He would have cut the top half of the door. She doesn’t recall why. He just told her he was cutting the door with no explanation.

[33] At one point both her and A.T. moved to the basement bedrooms.

[34] She states that her room was opened. There were no walls. Then walls were built. Plywood was placed on beams. The walls were out of shape and you could see in the bedroom.

[35] She states that it bothered her when the accused cut the bedroom door. This took away any privacy.

[36] She alleges that the following sexual misconduct occurred while living in Lancaster:

1. " She states that there was a furnace on one side of the bedroom in the basement. She alleges that she could see the accused peeking through the walls. There was a light which was always on in the furnace room. She saw him peek once in a while while she was changing. This made her feel uncomfortable. She didn’t say anything;

2. " She would also rub his feet in Lancaster but not as often. She indicates maybe 2-3 times per week. He would also touch her vagina while in his bedroom;

3. " Thirdly, she states that the accused would peek through a skylight on the roof on the bathroom ceiling. This was mainly while she was taking a bath. It would have happened more than once;

" She saw him peek for a couple of minutes. This was generally during the day as she would go to bed early sometimes as early as 6:00 p.m. She would shut the bathtub curtains;

" She felt unsafe and lacking privacy;

" She didn’t tell her mother or anyone else.

[37] She later provided the following details:

− Sometimes the accused was naked when she rubbed his feet. Other times he had boxers;

− He was covered by a blanket;

− She never touched him. He did ask her to touch higher on his high but she declined;

− Sometimes she used lotion to rub his feet;

− Her mother knew she was rubbing his feet;

− She states that she often saw A.T. rubbing the accused’s feet. There is one time where she states having seen his hand on A.T.’s thigh as she was walking to the washroom. She didn’t say anything nor speak to A.T. about what she had seen.

[38] M.T.’s evidence is that the touching continued up to age 14 at which point she told her mother. She provides the following particulars in regards to this disclosure:

" She was 14;

" As to why: she states she was sitting in the bathtub and couldn’t take anymore;

" She didn’t feel safe;

" She yelled for her mother to come to the bathroom;

" Her mother came in and she told her;

" The accused was out hunting for a couple of hours with his friend C. who is the husband of her mother’s friend C.F.;

" C.F. was in the kitchen with her mother;

" She told her how the accused was touching her and that he was peeking;

" She states that her mother initially started to cry and left the bathroom;

" She then returned to the bathroom and asked her if was sure. She then called the accused and told her to go to bed;

" The next day, her mother told her that it could have been a dream. To act as if it was a dream and that her dad had said that it didn’t happen.

[39] This made her feel worthless. That there was no point telling her mother.

[40] She didn’t speak to anybody else about this at that time. Her mother didn’t believe her so nobody else would.

[41] There were no other incidents after she told her mother at age 14.

[42] M.T. describes how she would punch herself in the stomach before going to bed at night out of fear of being pregnant. She would have stopped doing this at 13. She gave up.

[43] She moved out of the home at age 16. She couldn’t live there anymore. She had met her ex-fiancé and moved in with him. He is now deceased.

[44] In regards to contacting the police, she states that she was feeling anxiety. She was concerned for her one year old nephew as the accused was allowed to see him. So that she decided to report this to the O.P.P.

[45] She hadn’t talked to A.T. about this before calling the police.

[46] She states having told A.T. that she was coming forward but it was up to her.

[47] She didn’t discuss in any detail what happened to her.

[48] In cross-examination, she states that she is pretty sure she never asked the accused if she could move in with her boyfriend.

[49] She confirms having gone to the police when she was 23 or 24 years old. She had trust issues and was concerned for A.T.’s son. The CAS were not involved when she spoke to the police. The boys were involved with CAS in December 2014. When she went to the police, there was no question of the accused getting the care of her nephews.

[50] She is cross-examined on the accused bathing her and A.T. in Bonville. The accused would bath both. He started as early as she can remember. She was 9 or 10 when started to bathe alone.

[51] She re-affirms that one time the accused was rubbing her with a cloth. This hurt and she told her mother.

[52] She recalls seeing him naked standing in his bedroom with door opened as she walked by.

[53] She is questioned on the swimming lesson incident in Summerstown. She states the following:

" She doesn’t agree with the suggestion that lots of people would come over to their home;

" He was teaching her how to swim. There was just the 2 of them. She can’t remember if there was anybody else;

" She was lying across his arm. He moved her swimsuit aside. She was under the water. She can’t give a clear description. She doesn’t remember the procedure he took. The water was right above his chest. She can’t recall which arm she was lying on;

" She told him she didn’t want any more swimming lessons. She can’t remember what happened after.

[54] In relation to the bunk bed incident, he would have told her that he was getting a pillow but he never took one. There was no reason for him to get a pillow in her bedroom.

[55] She was awakened when she felt his hand on her thigh.

[56] She asked what he was doing. When she woke up his finger was in her vagina. She didn’t know what to think. She didn’t yell out. There were lots of people in the house.

[57] He proceeded to leave the room. She eventually went to sleep.

[58] As for the rubbing of the feet incidents, she states the following:

" This happened almost every day;

" She is questioned as to what time school started and she doesn’t remember;

" Her mother was home all the time. She was up having a cigarette or watching t.v.;

" Most of the times he would touch her vagina. He would digitally penetrate her ¾ of the times;

" She never told her sister A.T. She didn’t know what she would do. She states: “I was a kid and didn’t know any better.”;

" She never told her teachers;

" She later describes that she was sitting on the bed with her legs straight out. The accused would bend his torso. Then he would gradually insert his finger;

" She didn’t go see a doctor as it meant telling her mother;

" It was uncomfortable and painful.

[59] She is certain that the door had not been cut in half when they moved in Lancaster. She didn’t see the accused cut the door. She was told that he did.

[60] The touching continued but not as often as in Summerstown. Towards the end, she had started to cross her legs and placed a pillow.

[61] She states that the accused started to ask A.T.

[62] She would have slept upstairs for a year or so and then slept in the basement from age 12 to 16.

[63] He never came downstairs to touch her.

[64] She is questioned in regards to the accused peeking through the skylight. She provides the following details.

" He looked through the skylight;

" He told her mother that he was going to fix shingles on the roof;

" This would occur 3 times a week;

" He would tell her mother in front of her that he was going on the roof to fix shingles;

" He went up on a ladder which was on the patio;

" She saw his face. He had more facial hair and wasn’t wearing glasses.

[65] She again describes the disclosure to her mother when she was 14.

" The accused was gone hunting;

" Her mother started crying and left the washroom;

" She returned and asked her if it was true;

" Her mother called the accused and told her to go to bed;

" She states that she is not the one who said “I may have dreamt this.”;

" The following day, her mother told her it was a dream;

" Nothing happened after this…he never asked her to rub his feet.

[66] She left the home she was 16. She assumed something was going on with A.T.

[67] As to why she decided to go to the police, she states that she did so for herself and her nephews.

[68] She never spoke to A.T. about this.

[69] She confirms that the CAS was involved with both of her sisters. A.T.’s kids were taken in December 2014. She had gone to the police a year and a half prior.

[70] She doesn’t know when L.R.’s children were taken by CAS.

[71] Lastly, she is questioned on why she would punch her stomach. She explained that she didn’t know how one gets pregnant. She would punch herself thinking this would stop herself from getting pregnant.

[72] She doesn’t recall being injured by the insertion of the accused’s fingers in her vagina. She doesn’t know how deep he inserted his fingers.

A.T.

[73] A.T. was born in 1990. She is the accused’s biological daughter. She has 1 sister, 2 half-sisters and 1 half-brother. The other complainant is one of the ½ sisters.

[74] She testified that inappropriate things happened with her father. When asked if she remembered where these took place, she responded:

− Once in the bedroom;

− In the office;

− And in the bathroom.

[75] This was while they were living in Lancaster. She describes the home and the bedroom arrangement. There were 3 bedrooms on main floor and 2 bedrooms in the basement.

[76] She resided with her father, mother, ½ sister, full sister and at one point her ½ brother.

[77] She can’t recall her age but she states having resided in Lancaster from grade 5 to grade 10-11.

[78] Later on in the examination in-chief, she explained that the events she is alleging would have transpired over a period of one year which she sets closer to when she was in grade 5.

[79] She first described the incident referred to as having occurred in the computer room.

[80] It was during the morning. It wasn’t a school day. While in the house, she doesn’t remember where her mother and sisters were. She can’t recall the month or time of year.

[81] She was in the room and was kneeling down right next to him. He was sitting on an office type chair. She was helping him on the computer.

[82] She stated “his hand ended up in my pants…”

[83] She doesn’t remember what she was wearing. He was touching her vagina. His fingers were moving. His hand reached in from the front.

[84] It lasted a couple of seconds and then she walked away.

[85] She cannot describe movement with his fingers.

[86] He didn’t say anything and she can’t recall saying anything.

[87] She didn’t tell anybody at that time.

[88] She then described what was referred to as the bedroom incident.

[89] A.T. describes the bedroom arrangements as her sharing a room with M.T. for a couple of months and then ended up in the basement.

[90] There were 2 bedrooms in the basement. The walls were up but there was no isolation. She states it was white with boarders. The walls were ½ an inch thick.

[91] The incident would have taken place in the accused’s bedroom.

[92] According to her evidence, the accused asked her to rub his feet. It is while she was rubbing his feet that on one occasion, he had her touch his back, his stomach and then would have slid her hand in his boxers. She touched his penis which was erected. She stopped and walked away.

[93] Crown counsel asked A.T. if he had touched her while in his bedroom. Her response was:

− “No, not in the bedroom.”

[94] She is asked whether he had touched her anywhere else? She answered:

− “No, other than the office, that’s it.”

[95] She describes that the accused was lying on his bed on his back when she would rub his feet. She was positioned at his feet with his feet on her lap.

[96] The record shows that on July 10, 2014, complainant A.T. had testified at the preliminary inquiry.

[97] She had reviewed a transcript of her testimony at the preliminary inquiry the morning she testified in this trial.

[98] Crown counsel sought permission which was granted by the Court, to allow the complainant to review pages 65 to 66 of the said transcript to refresh her memory.

[99] After reading pages 65 to 66, she responded “a little” when asked by Crown counsel if her memory was refreshed.

[100] She is then asked:

Q. Do you recall anything else happening in the bedroom?

[101] Her answer was:

A. “Yes he touched my vagina.”

[102] Next question was:

Q. Do you recall how – in what context he touched your vagina?

[103] She responded:

A. I don’t.

[104] She states that he touched her vagina with his hand. It was underneath her clothing. He was moving his fingers. It happened 2-3 times when she was rubbing his feet. He wasn’t saying anything while doing this.

[105] She describes the position she was in when he touched her vagina. She was sitting on the bed. The accused was lying on the bed.

[106] The touching was only for a few seconds. She got up and walked away.

[107] The incident where he placed her hand in his boxer shorts was after these incidents.

[108] She didn’t tell anyone. Her mother and sister were in the home but she doesn’t know where.

[109] As for the bathroom incident, witness A.T. testifies that she was taking a bath and that she saw his face looking through a skylight.

[110] She describes that the sun was going down. He was there looking for 5 to 10 minutes.

[111] She was not wearing any clothing. She got up and closed the curtains.

[112] She didn’t tell anyone nor did she speak to the accused about this.

[113] She does however indicate that a year afterwards, she told her mother. When asked what she had told her mother, she states:

A. “pretty well told my mom what I just told you”

[114] Her evidence is that she told her when “she felt comfortable telling her.”

[115] The accused and her mother then broke up for a bit and returned together after. She was 16-17 when she moved out of the home.

[116] In regards to her half-sister M.T., and exchange of information, her evidence is as follows:

− She never spoke to M.T. before;

− M.T. asked her to report it;

− M.T. told her she had the same situation;

− She didn’t go in details with her;

− M.T. disclosed this to her just before it was reported. She didn’t know beforehand.

[117] In cross-examination, she is questioned on how she ended up speaking to the police.

[118] She explains that Constable Maxius called her and stated he wanted to talk to her about her father. This was in May 2013. The officer picked her up.

[119] She provided a video statement which she has reviewed. A.T. states that she has memorized what’s in the statement.

[120] She states “I remember what happened”.

[121] She confirms having read the preliminary transcript and states not having memorized it.

[122] The incidents occurred in Lancaster where she resided with the accused, her mother and her 2 sisters. She is unsure of her age when she moved to Lancaster but she was in grade 5. The move was in 2000. She would have been 10 or 11.

[123] M.T. is 1 year older so that she would have been 11 or 12.

[124] A.T. is questioned as to her cognitive abilities. She describes herself as a “slow learner”. She has 4 high school credits. She is on ODSP. She has 2 children and not married.

[125] When questioned on the rubbing of the accused’s feet, she states that this was done on a daily basis. It was just her.

[126] He was lying on the bed wearing boxer shorts. She was at his feet which were on top of her legs.

[127] He didn’t slouch over. He took her hand 2-3 times and slid it to his privates. This turned into him touching her.

[128] She touched his penis. She is positive that it was hard.

[129] She was cross-examined on her evidence given on July 10, 2014 at the preliminary inquiry.

[130] The following questions and answers are noted at page 64 of the preliminary inquiry transcript:

“Q. And did you touch anything?

A. Uhm, at the time, his penis.

Q. His penis. And how was his penis when you touched it?

A. I don’t remember.

Q. You don’t remember?

A. And it’s not a thing that I want to remember.

Q. Okay. So you don’t remember if the penis was erect or something like that?

A. No.”

[131] She knows that she was fully dressed each time he touched her vagina. She is asked to explain how he was able to touch her vagina if she was fully dressed and responded:

A. “I don’t know.”

[132] When she was 16 or 17, she testifies having been kicked out of the home by her mother. Her parents were not together. She denies having asked the accused to move in with him. She moved to Alexandria.

[133] On the question of the door for the room in Lancaster, A.T. states that there was a half door when they moved in. The accused did not cut the door. He eventually installed a full door.

[134] She is cross-examined on her evidence at the preliminary inquiry in relation to the skylight. The following was noted at page 67 of the transcript:

“A. I was taking a bath. I’m pretty sure I was taking a bath.

Q. And do you know how often that happened?

A. I only saw him up there once.

Q. You saw him up there once. And was it day or was it the night?

A. It was at night.”

At page 82:

“Q. It was very light outside?

A. Yes.

Q. And you say and saw somebody looking through the skylight?

A. Yes.

Q. And you said you think it was K_ _ _ _ or you’re not sure?

A. I said I’m sure it was him, but I’m not too sure.

Q. I see. Okay. Because it was too dark to see if anybody was even there right?

A. Well, I knew there was somebody there.”

[135] A.T. confirms having had issues with the Children’s Aid Society last year. The accused never tried to get her children. This was in relation to her sister L.R.’s children. This is information received from her sister L.R. The accused had applied to have her kids.

[136] She is cross-examined at length on a note dated October 10th, 2012 which was filed as Exhibit #2.

[137] This note reads as follows:

“…to who this may concern, whatever my mom…has said about my dad is not true witch she has said about my dad touching us two girls is not true and whatever else has been said.”

[138] She provides the following evidence in regards to this note:

− She recognizes the note;

− The accused made her sign it;

− She doesn’t remember who wrote it;

− She signed it;

− She was forced to sign it but doesn’t know how she was forced;

− The note was signed well before she went to the police which was on May 16, 2013;

− She never mentioned the note to the police. She states: “I honestly forgot about the note”;

− She explains that her memory is bad;

− It was written at the accused’s residence;

− She had walked to his place having been asked to go for a few seconds and the note popped up;

− She states that the accused made her sign it. There were no threats and no force. He told her to sign it;

− She didn’t want any problems;

− Her spouse R.D. was present when she signed the note. She never told the police that R.D. was present;

− The accused’s wife, T.R. was also present;

− It was signed during the day;

− She just forgot about it;

− She later states that she didn’t read the note before signing it. She didn’t know what it said. The first time she read it was at the preliminary inquiry.

[139] She denies ever having told anyone that nothing happened between her and the accused. Nor has she spoken to an individual named K.S. about this. She has spoken to K.S. but not about this.

[140] She never asked the accused if she could move in with him. She moved to Alexandria. Nor did she often go to his place to visit.

[141] He never babysat her child.

[142] She doesn’t remember being affectionate with the accused with people being around and witnessing this show of affection.

[143] She doesn’t know a J.S. and has no knowledge of pictures being taken at Easter and her sitting side by side with the accused.

[144] In re-examination, she states that “maybe she would have been able to testify if she hadn’t reviewed her video interview given to the police.

[145] She states that she hadn’t read the note. She went in and left. It was already written. The accused had explained to her what the note was about.

[146] Following defence evidence, Crown was allowed to recall witness A.T. in response to previous oral statements she allegedly made according to some of the defence witnesses.

[147] The record will show that the Court felt that defence had not provided A.T. the circumstances of the supposed statements sufficient to designate the particular occasion as mandated by section 11 of the Canada Evidence Act. Thus the reason why leave was given for her to be recalled.

[148] As will be seen later in reviewing defence evidence, the accused’s sister, C.R., reports having had a conversation with A.T. and L.R. about the alleged abuse.

[149] A.T.’s evidence is that she did visit her aunt C.R. with her sister L.R. but that the aunt never raised the subject of whether she had been sexually abused by her father K.R.

[150] She states “that conversation never came up”.

[151] Again as will be seen, K.S. testified that A.T. stated that “it wasn’t true”. K.S. is the daughter of the accused’s wife, T.R.

[152] A.T. testified that she recalls a situation where she had visited her father. There was a discussion about D., who is L.R.’s child, the Children’s Aid Society and her father and his wife T.R. wanting to take the child but doesn’t remember much of this discussion. She only remembers the child having been taken.

[153] Her evidence is that she never said it wasn’t true and that she was prepared to write a note.

[154] In relation to J.S., she didn’t know this person’s name but knows that she is T.R.’s mother. She met her once at her father’s home. She visited her father once at Christmas but T.R.’s mother wasn’t present.

[155] In cross-examination, she denies having used the word “bullshitter” when talking to C.R. about her mother.

[156] She states that she wasn’t aware that CAS was refusing that the accused and his wife T.R. care for L.R.’s child because of allegations of sexual abuse. There was no mention of that.

[157] Finally, in regards to J.S., she only met her once. They were both friendly. Never had a fight. One time she was with her for a couple of minutes.

C.F.

[158] C.F. presents herself as a long-time friend of the complainants’ mother, J.T. She has known her for 25 years. They met through her husband who was a childhood friend with the accused K.R.

[159] She describes an incident where she would have been made aware of allegations of sexual misconduct by the accused towards the complainant M.T.

[160] Counsel for the accused objected to the admission of this evidence as it amounts to hearsay evidence.

[161] The Court allowed this evidence on the basis of the doctrine of “recent fabrication”.

[162] The Court noted that M.T. was cross-examined on why she had never complained and there was certainly a suggestion that she came forward with these allegations in response to Children’s Aid Society’s involvement with her nephews and the accused wanting to care for these children.

[163] The Court’s view is that this suggestion allows for the introduction of a prior statement.

[164] C.F. cannot be specific as to exactly when this incident occurred. She indicates between 1998 and 2000.

[165] She describes that she was at the complainant’s home. The accused and her husband had gone “racoon hunting”.

[166] M.T. would have come out of her bedroom. They were in the kitchen. She would have told her mother:

− That K.R. was touching her;

− That he was watching her.

[167] She testified that the child did not go in details. She just said that he was touching her.

[168] J.T., the mother, would have told the child to make sure this was true. Child began crying and she was put to bed.

[169] She was then asked by J.T. what she would do. She told her to look into it.

[170] C.F. testified that J.T. later woke up the child, got her outside her bedroom and brought her to the kitchen. The child would have said the same thing.

[171] They waited for their husbands to return. J.T. was asking what she should do.

[172] The men returned at around 1 or 2:00 a.m.

[173] J.T. confronted the accused. She describes him as being very defensive. He started to swear.

[174] C.F. and her husband would have left as they didn’t want to be in the middle of it.

[175] In cross-examination, she indicates that this conversation occurred in Lancaster.

[176] She confirms that she heard M.T. just saying he touched her and looked through “skylight”.

[177] J.T. would have asked her if she should believe her daughter.

[178] She doesn’t recall if she heard the words “maybe was dreaming”.

[179] She is asked how she got contacted by the police and whether she had spoken to either M.T. or J.T. prior to speaking to police.

[180] She responded that she had been told some 2 months prior to police involvement that M.T. was intending on charging K.R. She was told this by J.T. with whom she use to speak to once a week. J.T. use to call her once a week.

[181] She explained that the police had come to her home.

K.R.

[182] The accused testified in this trial. He is 49 years old. He is married to T.R. This is his 3rd marriage.

[183] He was married to J.T. with whom he had 2 daughters, namely the complainant A.T. and L.R. The complainant M.T. was 6 months old when he married J.T.

[184] He has a son T. with his first wife.

[185] K.R. states that they did reside in Bonville for 2 and a half to 3 years. He initially thinks it’s in 1989. He refers to the ice storm.

[186] It was a farmhouse with 3 bedrooms.

[187] A.T. was born in 1989. He is unsure as to when L.R. was born. He thinks 2001.

[188] He denies giving the girls a bath. He states that he would get the water ready. Put 2 little cups and then would leave the washroom. He never washed them nor rub their vagina with a cloth.

[189] He states that he was working part-time and farming. He had animals.

[190] K.R. then explains that they moved to Summerstown on Highway 2, a distance of 8 to 9 miles from Cornwall.

[191] There were 2 bedrooms and confirms that the girls’ bedroom had a window which was 8 by 10. He denies having peeked through this window while M.T. was changing. He had no reason to look through this window. His wife was on ODSP and she was there all the time.

[192] When asked when they moved to Summerstown he states 1989, 3 months after the ice storm. He states that he “will correct his story” meaning that he was initially wrong on when moved to Bonville.

[193] He confirms that the girls shared a bunk bed.

[194] He denies the incident when R.R. had slept over. He wouldn’t go in M.T.’s bedroom to get pillows and R.R. did not have a girlfriend at that time.

[195] Reference is made to the swimming lessons. He admits having taught M.T. how to swim. There were lots of people around. There were other children and neighbours.

[196] He describes holding her with both arms as he was teaching her how to swim. He never touched her vagina. She was probably 8 or 9.

[197] He doesn’t recall M.T. ever rubbing his feet and states there was no touching. He had a double bed. M.T. never came in his bed when his wife wasn’t there. He never asked her to come in and rub his feet. Both M.T. and A.T. went to school.

[198] He was never approached by his wife in regards to allegations made by his daughters while residing in Summerstown.

[199] He is adamant that there was no rubbing of feet.

[200] They lived in Summerstown for two and a half year. They then moved to Lancaster in 2004 or 2005. They had bought the house.

[201] He testifies that he was working at 401 Bar and Grill. Then at the Tim Horton in Lancaster for almost a year. He subsequently worked at Walmart up to two and a half years ago. He injured his back.

[202] K.R. describes the house in Lancaster.

[203] He denies having cut the doors. He states that the doors were already cut when he bought the house. The owners had animals. He bought new doors which he installed and painted.

[204] He states that he did not sexually assault his daughters. Nor did he look at them through a skylight.

[205] He explains that there were 3 skylights one of which was over the bathroom. They had put a brand new roof on that side of the house.

[206] As for the basement, he explains that he had built a 2 bedroom apartment. He had rented this to this nephew R.R., his girlfriend and their 2 children for 3-4 months.

[207] A.T. and M.T. moved to the basement. He denies having peeked through the walls while in the furnace room.

[208] He again denies having his feet rubbed or having the girls in his bed while living in Lancaster.

[209] He also denies the computer room incident alleged by A.T. He explains that there was a computer room located off the kitchen. There were 3 computers with 3 desks. He states that there was no reason why A.T. would be kneeling next to him.

[210] He goes on to describe his work hours while living in Lancaster. He worked 12 hour shifts. He left home at 7:30-8:00 a.m. The night shifts were from 3:00 p.m. to 11:00 p.m.

[211] He is questioned in regards to the disclosure made by M.T. to her mother. He acknowledges that this happened. He provides the following details:

" He was hunting with a friend;

" His phone rang at 11:30 p.m. – midnight. His wife called;

" She told him that he needed to come home. There was something serious;

" She brought it up once he got home; he told her it wasn’t true;

" She asked M.T. if it was true; M.T. stated “I don’t know” and was told to go back to bed;

" He didn’t get angry; he didn’t use foul language;

" Then everything was fine; nothing more was said; they spoke to their daughter.

[212] He then refers to M.T. moving in with an individual whose name he couldn’t remember. He stayed with his wife.

[213] He eventually left his wife. He stayed with his mother for a while in Lancaster.

[214] He describes an occasion when M.T. called him crying and stating she had an argument with her mother. She wanted to bring her boyfriend and he said no as she was just 14.

[215] As for A.T., they maintained contact. She came over to his house when she had a baby. They got close to him. He doesn’t recall the baby’s name. They babysat this child.

[216] There were other people present when A.T. came over with her child. He mentions his step-son, step-daughter, his mother-in-law, father-in-law and R.D.

[217] The only time M.T. came over was when he was living on St. L. Street.

[218] In regards to Exhibit #2 which is the note dated October 10, 2012, he explains that he received a call from his ex-wife’s aunt and was told that the girls would make allegations against him.

[219] A.T. would have said “I will make sure it never happens…” “I will write a letter.”

[220] He states that he didn’t force her. He told her “it’s up to you if you want to write it”. She would have given him a kiss on the cheek and left.

[221] He was eventually arrested.

[222] In cross-examination, he confirms that M.T. is not his biological daughter. He states that he has had her since she was “6 weeks old”.

[223] He is questioned in regards to his nephew R.R. He admits that he came to the house in Summerstown for sleepovers but he wasn’t dating L. at that time. He doesn’t know when R.R. was born. He believes he is presently 26 or 27 years old. He figures there is a 3-4 year age difference between R.R. and his daughters.

[224] He states that he frequently taught M.T. how to swim. It was every second or third day some two to three times per week for about 2 months.

[225] However, he was never alone with her in the water. He refers to his son T.’s, neighbours and their children, there was always lots of people around. The same 12 individuals were always present.

[226] He confirms that M.T. was wearing a one piece swimsuit.

[227] He confirms that R.R. did sleep on the couch in the livingroom but it wasn’t a pull out bed.

[228] He wasn’t working while they lived in Summerstown. While he did activities with the children, he was never alone with them.

[229] He never bathed the girls except when they were small. He refers to them being “eight weeks, six months…maybe a year.”

[230] Around 2002-2003, they moved to Lancaster. M.T. was in grade 6. A.T. was in grade 5.

[231] He confirms that the doors were already cut when moved there.

[232] There was a computer room. A.T. was never with him in this room. She never helped me with the computer.

[233] There was a skylight in the bathroom.

[234] He testifies that there were lots of issues with the roof. He repaired the roof on one side. It was leaking around the skylight.

[235] It was fixed with the help of his brother and nephew. It took them a day and a half. It had been leaking for a long time.

[236] He states that he never went up on the roof alone.

[237] There is much confusion as to who moved in first in the basement apartment. Reference is made to his son T. moving in in the home. His son would have stayed there for 3-4 years before his nephew moved in. His son slept upstairs. He doesn’t remember the year his son moved in.

[238] He can’t remember the year his nephew R.R. and his girlfriend and 2 children moved in. He believes they had been in Lancaster for 3 and a half to 4 years when they moved in.

[239] He figures he himself lived in the house in Lancaster for 3 and a half to 4 years.

[240] He left for 4 to 5 months and then returned.

[241] M.T. would have moved out of the home when she was 16 but she returned and lived with her boyfriend who is now deceased. They lived in the basement.

[242] He is cross-examined on the October 10, 2012 note.

[243] His ex-wife’s aunt named B.A.T. called and told him that he was going to be charged.

[244] He states that she called him 1 or 2 weeks before he was charged.

[245] He asked A.T. if this was true and this is when she wrote the note. His new wife T.R. was present when B.A.T. called.

[246] He testifies that he called A.T. and asked her to come over.

[247] He then states that it was in 2012 that he received information from B.A.T. That he had earlier made a mistake.

[248] He explains that he has memory problems. That he has taken two overdoses. The dates are mixed up.

[249] He is then questioned on part of his statement given to Constable Maxius on June 18, 2013. Defence had conceded that this statement was given voluntarily.

[250] The accused would have twice overdosed 2 years ago because of his ex-wife. He can’t remember when moved out of Bonville. He thinks they then moved to Summerstown. He doesn’t remember.

[251] He told the officer “everything from back then has been erased…”

[252] The cross-examination continued on the October 10, 2012 note. He explains that he asked A.T. to come over. He told her what was going on. He didn’t ask her to write the note. He did ask if it was true that complaints were coming. His wife was standing next to him in the livingroom. She wasn’t saying anything. He doesn’t recall if she spoke to A.T.

[253] According to him, R.D. was not present.

[254] A.T. would have stated that it wasn’t true and that she would write a letter. He told her she didn’t have to but she offered.

[255] A.T. would have written the letter on a coffee table in the livingroom. His wife had gotten the pen and paper. A.T. wrote the note. She was there for 25 minutes.

[256] He is again questioned on his ability to recollect. He states that he still has problems with his memory once in a while. He forgets things until somebody gives him a little of what happened and then it comes back.

[257] He is questioned on his guilty plea under the Excise Tax Act for cigarettes stored in his garage. He states having pled guilty to protect someone.

[258] He agrees with Crown counsel’s suggestion that details are missing because the drug overdoses… He states “…some of it yes…”

[259] He denies the following:

− His daughters rubbing his feet;

− Him touching them;

− Touching M.T. while in the top bunk;

− Touching A.T. in the computer room;

− Asking A.T. to write the note.

J.S.

[260] J.S. is the mother of the accused’s wife T.R.

[261] She testifies having met the complainant A.T. on a number of occasions.

[262] The essence of this individual’s evidence is to describe the interactions between the accused and A.T.

[263] She was reminded on a number of occasions during her testimony that she could not provide an opinion based on her own experience as a child and the observations she made of A.T.

[264] She provided the following observations:

" A.T. seemed very happy;

" She was friendly with her father;

" She would kiss and hug him;

" She displayed no fear of her father;

" She would hand over her child to the accused;

" They would chat.

[265] In cross-examination, she can’t quantify how many times she has seen A.T. with the accused.

[266] She states that A.T. would sometimes leave her child with the accused.

[267] She was told by T.R. that the accused was being charged. She never spoke to T.R. and/or the accused about this. T.R. kind of explained to her what the girls were saying.

K.S.

[268] K.S. is 25 years old and is T.R.’s (the accused’s wife) daughter.

[269] She has known the accused for 4 to 5 years. She has met his daughters L.R. and A.T. She would see them once or twice per week.

[270] She knows that the child D., who is L.R.’s child, was involved with the Children’s Aid Society.

[271] She recalls being at her mother’s home on 1st Street. She was there for half an hour. A.T., the accused and T.R. were also present.

[272] She states that the question of the accused having sexually abused his daughter came up.

[273] She states that A.T. turned around and said it wasn’t true.

[274] In cross-examination, she is asked who had raised the issue of the CAS.

[275] She believes the accused or T.R. brought this subject up. There was mention that they could not get the child D. because of allegations that the accused had sexually molested one of his daughters when she was young.

[276] Her evidence is that A.T. stated “No” … that never happened… and offered to sign a letter.

[277] The letter wasn’t signed when she was there.

[278] This was either in 2012 or 2013.

C.R.

[279] C.R. is the accused’s sister.

[280] She knows the complainant A.T. and her sister L.R. She reports that they had moved close to her home and that they would visit her every couple of days.

[281] She testified that she found out from family members that there were allegations that her brother had sexually abused his daughters.

[282] This was in late 2011 or 2012. She reports being told by the girls, meaning L.R. and A.T., that this wasn’t true. They had not been molested by their father and this had been brought on by their mother.

[283] She is more specific in cross-examination. She provides the following details:

" This conversation was around 2011-2012 in the summertime;

" She was alone with the 2 girls outside of her residence on C. Street. They had a few cigarettes. The girls stayed for 1 hour to an hour and a half;

" Both girls were pregnant. They had moved in together in an apartment on C. Street;

" They would visit twice a week;

" She doesn’t know how the subject came up. She asked if it was true that their father had molested them. This was directed at both L.R. and A.T.;

" L.R. responded and A.T. agreed;

" L.R. stated it was her mother and A.T. followed by stating that her mother was a lying “bullshitter”;

" That was the only time she spoke to the girls about this.

[284] She is questioned as to why she didn’t contact the police to provide this information. Her response was that she didn’t see the need. She stayed out of it. He was already charged.

[285] She did take steps to contact K.R.’s lawyer.

[286] She testifies that it is impossible that L.R. was the only one talking.

[287] She describes the following sequence:

− She asked the girls “is it true you were molested by your father”;

− L.R. responded: “not true, all our mother”;

− A.T. came in and said “she wasn’t going to go through with the bullshit”.

R.R.

[288] R.R. is the accused’s nephew. He sees him quite frequently.

[289] He is familiar with the home in Summerstown. He would go over to give K.R. a hand. The accused has always been there for him. He never really had a father.

[290] In 2001, he was 17 years old and was residing with his grandmother.

[291] He did not have a girlfriend by the name L. at the time. He never went to the house in Summerstown with L.

[292] R.R. testifies that he did live with the accused and his family in Lancaster. He doesn’t recall the year. The accused’s daughters A.T. and M.T. were also living there.

[293] He slept mainly on the couch.

[294] The two girls had their own bedroom or slept in the basement.

[295] He is not working at the present time. He is on ODSP. He has a learning disability.

[296] In cross-examination, he confirms that he did date L. He doesn’t recall when. He had 4 children with her. He can’t recall the age of the 4 children. He thinks his oldest child is going to be 13. He states that he has a learning disability.

POSITION OF THE PARTIES

The accused

[297] The accused’s position is that the Crown has failed to prove his guilt beyond a reasonable doubt. Accordingly, he should be found not guilty.

[298] He identifies credibility and reliability as the central issues to be decided by the Court. His view is that the evidence of both complainants raise significant credibility and reliability concerns.

[299] In regards to complainant M.T., he submits that her evidence is fraught with discrepancies and inconsistencies.

[300] If the rubbing of M.T.’s vagina with a cloth incident in Bonville did occur, the touching is not of a sexual nature but consistent with a parent giving a bath to a child.

[301] He qualifies the allegations in Summerstown as questionable and unlikely. Reference is made to his nephew R.R. who confirms his evidence that he did not have a girlfriend at the time.

[302] He reminds the Court of the issue of the bedroom doors having been cut by him which was contradicted by the complainant A.T.

[303] He submits that M.T.’s account of the disclosure to her mother J.T. is contradicted by the witness C.F. in regards to the year, her age and location in the home when she spoke to her mother.

[304] The looking through the large bedroom window in Summerstown and the skylight in Lancaster is seen as a red herring in an attempt to cast a bad shadow upon him. It is unreasonable to suggest that he would go on the roof two to three times per week to repair the shingle.

[305] The accused challenges M.T.’s credibility and reliability on the basis of her failure to disclose the alleged sexual abuse to anyone. The notion of “non-disclosure to anyone” is repeated on a number of occasions in his written submissions filed with the Court.

[306] As for the complainant A.T., he states that her evidence is problematic both in respect of credibility and reliability.

[307] He describes her evidence as vague and not definitive as to times and actions.

[308] He notes a number of examples in support of his position. These include the following:

− She testified having memorized her evidence;

− She changes her evidence in terms of frequency from once to two or three times;

− He suggests that the position of the bodies as described by her in the computer room and on the bed is such that it made it impossible for him to touch her and her touch him as alleged;

− He raises contradictions between her evidence at the preliminary inquiry and the trial; for example, whether the accused’s penis was soft or hard, the lighting condition during the skylight incident;

− Her evidence is filled with phrases such as “I don’t know” and “I don’t remember”;

− She is contradicted by defence witnesses K.S., C.R. and J.S.;

− Reference is made to the October 10, 2012 note signed by A.T.

[309] The accused opposes the Crown’s application based on “other discreditable conduct”. His position is that the Crown has not met the required burden of proof.

[310] He argues that the Crown has failed to establish relevancy to an issue. He states that the Crown has not defined the purpose for requesting the admissibility of the impugned evidence. The Crown’s true purpose is to bolster the credibility of both complainants.

[311] The accused submits that the probative value of such evidence is outweighed by its prejudicial value. He also raises concerns with possible collusion between both complainants.

[312] With respect to the drawing of negative inferences for failing to call witnesses, the Court notes that the accused is not asking the Court to draw such inferences against the Crown.

[313] He acknowledges that the failure to call witnesses by either the Crown or defence must be looked at with great caution. He reminds the Court that the failure to call a witness can depend on many factors.

[314] The Court understands the accused’s position to be that no such inference should be drawn against him or the Crown.

[315] Finally in relation to his evidence, he submits that same further substantiates that the Crown has not met its burden of proof.

[316] While he recognizes that his evidence is “not perfect” and “somewhat confusing at times”, in the end any confusion is subsequently clarified as to dates and the parties involved.

[317] He suggests that his denial of the allegations was not shaken in cross-examination.

[318] The admissions made by him in his testimony (location of residence, teaching M.T. how to swim, repairing roof) are supportive of his credibility.

[319] The hours worked by him while residing in Lancaster should cause some concern to the Court with regards to the allegations and his availability to perform the alleged acts.

[320] The accused rejects Crown counsel’s suggestion that the Court should find that he lied to the Court when he pled guilty under section 32 of the Excise Act to facts he was denying. His view is that this question was decided by the Court and ruled to be irrelevant and collateral.

The Crown

[321] The Crown’s position is that the accused’s guilt has been proven beyond a reasonable doubt. Accordingly, he should be found guilty.

[322] Crown counsel’s submissions are based on the framework set out by the Supreme Court of Canada in the case of R. v. W. (D.).

[323] She argues that the accused is not reliable nor credible. He should not be believed. Nor should the Court be left with a reasonable doubt on the basis of his evidence.

[324] In support of this position, the Crown raises the following points:

− The accused, of his own admission, has memory problems;

− The accused corroborates a significant portion of the information provided by the complainants; the argument is that despite memory problems, he is able to confirm/corroborate most of the testimony provided by the complainants; that he only denies the information which is incriminating;

− He is not credible when he states that he was never alone with the complainants; this is illogical and improbable;

− It is highly improbable and illogical that he would not have attempted to fix the leaking roof in Lancaster;

− He admitted lying to the Court when he pled guilty under section 32 of the Excise Act.

[325] The Crown submits that the witnesses produced by the accused at trial testified only as to collateral matters and are not reliable.

[326] In reviewing the evidence of these defence witnesses, the Crown makes the following submissions:

R.R.

− He is not a reliable witness;

− He is unable to say when he dated L.;

− He can’t provide the age of his own children;

− Since he is presently 31 years old, he was old enough to have a girlfriend at the relevant time.

C.R.

− She is not a reliable witness;

− While she reports that A.T. had denied being touched by the accused, her evidence is unclear and very ambiguous as to what was said, and by whom;

− A.T. denied that this was the subject matter of a conversation with this witness.

K.S.

− Her evidence creates reliability and credibility issues with respect to this witness and the accused;

− The accused never referred to the alleged statement made by complainant A.T. in the presence of this witness;

− The point is made that Crown counsel was unable to cross-examine the accused on this alleged conversation as it was only brought during K.S.’s evidence;

− Logic is such that the conversation described by K.S. cannot relate to the October 10, 2012 note that was signed;

− It is argued that since it is likely a different conversation and that the accused did not refer to this other conversation in his evidence, the Court should draw a negative inference against him in terms of his ability to remember or that conversation referred to by this witness never occurred.

J.S.

− The Court should not give any weight to the opinion provided by this witness;

− She is not an expert.

[327] The Crown argues that its evidence should be accepted and found to establish guilt beyond a reasonable doubt.

[328] As part of its case, the Crown has brought an Application seeking the admission of “other discreditable conduct”.

[329] The essence of the Crown’s request is that the evidence of one complainant be considered in assessing the evidence of the other complainant.

[330] The Crown’s view is that it has met its onus to show, on a balance of probabilities, that the probative value outweighs the potential prejudicial effect of the proposed use of the collective evidence of both complainants.

[331] It argues that the relevancy is found in the following reasons:

− To establish a pattern of behavior with respect to the manner in which the accused sexually assaulted the complainants;

− To establish and support the Crown’s theory of the case;

− To provide essential “narrative”, “background” and “context” to the alleged offences;

− To fill “evidentiary” gaps such as delay in reporting;

− To provide motive;

− To rebut possible defences;

− To explain the elements of the offence.

[332] The Crown also argues that the Prosecution would be overly prejudiced in its ability to make out its case if the ruling sought is denied by the Court.

[333] In assessing its own witnesses, the Crown provides the following insight:

M.T.

− She is a reliable and credible witness;

− She testified in a logical, straightforward manner; nor was she shaken in cross-examination;

− The accused confirms most of her evidence save for the incriminating aspects;

− There is an air of reality to her evidence;

− The fact that she disclosed the sexual abuse to her mother J.T. at age 14 rebuts any suggestion of recent fabrication;

− The fact that she is contradicted on the question of the cutting of the doors is not significant and does not undermine her credibility and reliability;

− She is detailed in her account of the relevant events.

A.T.

− The Crown concedes that there are a number of inconsistencies with A.T.’s evidence; however, it is argued that these are to be viewed in light of the fact that she is an adult testifying as to events which occurred when she was a child; the Court is also reminded that evidence is to be assessed in light of the witness’s “mental development, understanding and ability to communicate”;

− The Court is asked to consider M.T.’s evidence that she suspected that the accused was also touching A.T.; reference is made to M.T.’s evidence that as she had walked by the accused’s room, she had seen him touch A.T.’s inner thigh;

− It is submitted that there is an air of truth to her allegation of having been touched while in the computer room;

− The fact that she testified having been forced to sign the October 10, 2012 letter; she testified that she does not agree with its content;

− Her allegations are clearly not a recent fabrication; she had told her mother; the accused admitted having been confronted by J.T.; the fact that the letter was signed on October 10, 2012 and that the police investigation started in May of 2013 rebuts any suggestion of recent fabrication.

C.F.

− She is a credible and reliable witness;

− Her difficulty in remembering the date does not detract from the fact she testified in a very credible, reliable and trustworthy manner;

− She was not shaken in cross-examination.

[334] On the question of the drawing of negative inferences for failing to call witnesses, the Court notes that the Crown’s position mirrors the accused’s submission.

[335] The Court is left with the understanding that the Crown’s position is that no such inference should be drawn against either party.

THE LAW

[336] In deciding this matter, the Court will be guided by the following legal principles:

[337] K.R. is charged with sexual assault and sexual interference.

[338] The essential elements of sexual assault are as follows:

1. There was an intentional application of force by the accused on complainant;

2. The complainant did not and/or could not consent by reason of her age, the relevant age is 14…there are other factors which may vitiate consent but these are not relevant in this matter;

3. The accused knew that there was no consent or he or she was reckless and/or wilfully blind on whether there was consent;

4. The contact took place in circumstances of a sexual nature.

[339] The essential elements of sexual interference are:

1. The complainant was under 14…which was the age set out in section 151 at the relevant time;

2. There was touching;

3. The touching was for a sexual purpose.

[340] Perhaps the most fundamental principle of our criminal law is the presumption of innocence. K.R. is presumed innocent and so remains if and until the Crown proves that he is guilty.

[341] We started this trial with the presumption that he had not committed the offences alleged against him. This presumption of innocence stays with him throughout the trial. It is only defeated if the Crown has met its burden of proof.

[342] There is no burden of proof placed on an accused person. K.R. doesn’t have to present any evidence. He doesn’t have to prove anything. From start to finish, the burden rests solely on the prosecution.

[343] The Crown’s burden is to prove the allegations beyond a reasonable doubt. The Crown must prove each of the essential elements of the offences beyond a reasonable doubt.

[344] As the trier of facts in this trial, I have instructed myself on the concept of “reasonable doubt” in accordance with the instructions of the Supreme Court of Canada in R. v. Lifchus 1997 CanLII 319 (SCC), [1997] 3 S.C.R. 320.

[345] The concept of reasonable doubt is fundamental to the presumption of innocence. A reasonable doubt is not a doubt which is far-fetched or frivolous.

[346] It is not based on sympathy or prejudice. It must be based on reason and common sense. It is a doubt that logically arises from the evidence or the lack of evidence.

[347] It is not enough for the court to believe that an accused person is probably or likely guilty. Probable or likely guilt is not proof beyond a reasonable doubt.

[348] However, the Crown is not required to prove guilt on the standard of absolute certainty. It would be nearly impossible to meet such a standard.

[349] The court’s task is to consider all of the evidence and decide whether it is sure that the accused has committed the offences. An acquittal must follow if at the end, based on all of the evidence or the lack of evidence, the court is not sure.

[350] In a matter where reliability and credibility is the ultimate issue, as in this case, the court is reminded that the rule of reasonable doubt applies to the assessment of reliability and credibility. In assessing the evidence, I must apply the directives set out by the Supreme Court of Canada in the matter of R. v. W. (D.) (1991) 1991 CanLII 93 (SCC), 1 S.C.R. 742 which can be summarized as follows:

Firstly, if the court believes the accused, then he must be acquitted;

Secondly, if the court doesn’t believe the accused but his evidence creates or raises a reasonable doubt in the court’s mind, then again, he must be acquitted;

Thirdly, even if the court is not left with a reasonable doubt with the accused’s evidence, the court must ask itself whether, based on the evidence that is accepted, am I convinced beyond a reasonable doubt by this evidence that the accused is guilty?

[351] As already stated, this matter revolves around the reliability and credibility of witnesses. In assessing the evidence of witnesses, the court must carefully and with an open mind consider all of the evidence presented in this trial. The court must decide how much or little to believe and rely upon the testimony of the witnesses. The court may believe some, none or all of it. Such an assessment is truly an exercise in common sense. There is no magic formula, no crystal ball, there are no scientific formulas to assist the court.

[352] The Court is alive to the important distinctions between the concepts of credibility and reliability.

[353] Credibility relates to a witness’s sincerity and belief that he or she is speaking the truth.

[354] Reliability relates to actual accuracy. A credible witness may not be reliable.

[355] In properly assessing the witnesses in this trial, I will consider all of the circumstances including the following:

1. The witness’s ability to observe the relevant facts in light of circumstances which may have impacted on this ability to perceive such as:

− Age;

− Impairment " alcohol, visual, intellectual;

− Emotional state;

− Physical position in relation to the relevant event.

• The premise is that there is a relationship between reliability and ability to perceive.

2. The witness’s ability to remember the event. Indicators of recollection include:

− The details provided;

− Confusion – clarity;

− Uncertainties – vagueness;

− Contradictions.

• In weighing this, the court must be mindful of the historical nature of the event. Passage of time will impact on the ability to remember details.

• The court must also consider the significance of the event for the witness at the time it was perceived. Is there a reason why it would be remembered?

So that the premise is that there is a relationship between reliability and the ability to remember.

3. Demeanour of a witness in the “witness box” defined as “appearing to tell the truth” is not, in and of itself, an appropriate means of measure for reliability and/or credibility. However, there are indicators of how a witness presents to the court which may be properly considered.

The court must not make findings based solely on which person makes the better appearance of sincerity in the witness box. Justice cannot depend on who is the best actor.

Having regard to the particulars of the witness such as age, sophistication, and limits, it is proper to consider the manner in which the witness presented to the Court. For example:

− Whether the witness was argumentative;

− Whether the witness was responsive to the questions;

− Whether the witness was evasive;

− Whether there was hesitation;

− Whether there was a show of emotion.

As stated by the Ontario Court of Appeal in R. v. Boyce 2005 CanLII 36440 (ON CA), [2005] O.J. No. 4313 at paragraph 3:

“Trial judges are not required to ignore demeanour in their assessment of a witness. They can use it in conjunction with their assessment of all the evidence and in the full context of the trial.”

[356] There are a number of indicators or badges of honesty which assist courts in assessing whether a witness is deliberately attempting to mislead.

[357] These are based on common sense, life experience and reason.

[358] These indicators or badges include the following:

1. Whether the evidence finds support in extrinsic evidence such as other witnesses, physical evidence or the circumstances;

2. The ability to provide a detailed account of the relevant event and the surrounding details which would be significant to the event;

3. If the witness’s version is internally consistent being mindful that some details may be more significant than others;

4. Whether the version is inconsistent with extrinsic evidence such as other witnesses, physical evidence or circumstances; again, the significance of the details must be considered;

5. Whether the witness has an interest in the outcome, a motive, any bias or partiality.

I am very mindful that the question of motive is to be addressed with care. As stated by the Ontario Court of Appeal in R. v. Batte 2000 CanLII 5751 (ON CA), [2000] O.J. No. 2184 at paragraph 121:

“What must be avoided in instructing a jury is any suggestion that the accused has an onus to demonstrate that a complainant has a motive to fabricate evidence, that the absence of a demonstrated motive to fabricate necessarily means that there was no motive or finally, that the absence of a motive to fabricate conclusively establishes that a witness is telling the truth. The presence or absence of a motive to fabricate evidence is only one factor to be considered in assessing credibility.”

At paragraph 120, the court states:

“…Juries are told to use their common sense and combined life experience in assessing credibility. It is difficult to think of a factor which, as a matter of common sense and life experience, would be more germane to a witness’ credibility than the existence of a motive to fabricate evidence. Similarly, the absence of any reason to make a false allegation is a factor which juries, using their common sense will and should consider in assessing a witness’ credibility.”

6. Whether the version is plausible when looked at through the lens of common sense, life experience, logic and/or reason;

7. Whether the version is unreasonable and/or improbable when considered against the backdrop of facts which are not in dispute;

8. As explained by the Ontario Court of Appeal in R. v. J.J.R.D. 2006 CanLII 40088 (ON CA), [2006] O.J. No. 4749 at paragraph 53:

“An outright rejection of an accused’s evidence based on a considered and reasoned acceptance beyond a reasonable doubt of the truth of conflicting credible evidence is as much an explanation for the rejection of an accused’s evidence as is a rejection based on a problem identified with the way the accused testified or the substance of the accused’s evidence.”

[359] Whether a witness is an adult, a child or an adult testifying about historical events, the standard of proof remains beyond a reasonable doubt. However, the Court must be mindful that the complainants were children at the time of the alleged events.

[360] As explained by the Supreme Court of Canada in R. v. W. (R.) 1992 CanLII 56 (SCC), [1992] S.C.J. No. 56, children may experience the world differently from adults. Details important for adults, such as time and place, may be missing from their recollection. At paragraph 26, the court provides the following instructions:

“56. 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.”

[361] The issue of failing to complain and disclose the alleged abuse was raised during the evidence of the complainants and in the written submissions.

[362] Through section 275 of the Criminal Code, Parliament has abrogated the rules relating to evidence of recent complaint which in essence allowed for the drawing of a negative inference against a complainant who failed to report or complain soon after the events.

[363] The guiding principle on this issue is set out at paragraph 65 of the Supreme Court of Canada’s decision in R. v. D.D. 2000 SCC 43, [2000] 2 S.C.R. 275. The Court states:

“65. A trial judge should recognize and so instruct a jury that there is no inviolable rule on how people who are the victims of trauma like a sexual assault will behave. Some will make an immediate complaint, some will delay in disclosing the abuse, while some will never disclose the abuse. Reasons for delay are many and at least include embarrassment, fear, guilt, or a lack of understanding and knowledge. In assessing the credibility of a complainant, the timing of the complaint is simply one circumstance to consider in the factual mosaic of a particular case. A delay in disclosure, standing alone, will never give rise to an adverse inference against the credibility of the complainant.”

[364] Also raised in these proceedings is the question of the court drawing a negative inference for failing to call witnesses. This was raised by both counsel while cross-examining witnesses.

[365] Reference was made to the Court of Appeal’s decision in R. v. N.L.P. 2013 ONCA 773, [2013] O.J. No. 5878.

[366] Consideration of the failure to call a witness should only be used with great caution.

[367] There are many reasons why counsel may choose not to call a witness. The court should rarely question the decision of counsel.

[368] Great care must be taken not to effectively reverse the onus of proof and place same on an accused person by drawing an adverse inference for failing to call a witness.

[369] There is no obligation on the defence to call a particular witness.

[370] As explained by the Court of Appeal in R. v. N.L.P. at paragraph 63:

“63. The defence is ordinarily under no obligation to call a witness…An important exception is where a defence is raised on which the burden of proof is on the defence, for example, in an alibi defence. But even here, great caution must be taken.”

[371] At paragraph 68, the Court explains:

“68. The defence sowed the seeds, in chief, of an explanation for the absence of the appellant’s father as a witness for the defence; the Crown could not and did not leave this explanation untested in cross-examination. The fact in issue was introduced by the defence, thereby raising the corroborative significance of the missing witness to the defence. This is a situation, echoing Wigmore, where the trial judge could draw an adverse inference, since the evidentiary burden was assumed by the defence in raising the issue.”

[372] Having reviewed the written submissions filed by counsel, the Court is not asked by neither to draw a negative inference against the other based on failure to produce witnesses. Therefore, the Court will not draw any such inference in this matter.

[373] Finally, the Crown has brought an Application allowing for the collective use of both complainants’ evidence as “other discreditable” conduct.

[374] The legal framework in relation to the admissibility of other discreditable conduct can be summarized as follows:

1. Such evidence is presumptively inadmissible;

2. The burden rests on the Crown to establish admissibility on a balance of probabilities;

3. What must be shown is that:

i) The evidence is connected through relevancy to an issue in the trial;

ii) The probative value outweighs the prejudicial effect;

4. The Court must be mindful that if there is evidence of collusion between witnesses or if there is an air of reality to the suggestion of collusion, then the Crown must establish, on balance, that the evidence has not been tainted;

5. The evidence must be highly relevant and cogent to an identified issue such that as a matter of human experience and logic, the existence of the other discreditable conduct, directly or indirectly, makes the existence or non-existence of a material fact in the trial more probable than not;

6. The factors to be considered include the following:

i) Proximity of time;

ii) Similarity in details;

iii) Number of occurrences;

iv) Circumstances surrounding or relating to the similar acts;

v) Any distinctive feature unifying the incidents;

vi) Interviewing events.

7. In general terms, the cases have structured the concept of prejudice under two distinct headings, namely moral prejudice and reasoning prejudice;

8. Moral prejudice is concerned with the risk that the trier of fact would infer guilt from the fact that the accused is a bad person, deserving of punishment;

9. Reasoning prejudice is concerned with the potential for confusion and distraction for the trier of fact;

10. In the usual course, frailties in the evidence would be left to the trier of fact; however, where the admissibility is bound up with, and dependent upon, probative value, the credibility of the similar fact evidence is a factor that the trial judge, exercising his or her gatekeeper function is entitled to take into consideration, the evidence may be found too prejudicial to be admitted unless it meets the threshold of being reasonably capable of belief.

− R. v. Handy 2002 SCC 56, [2002] 2 S.C.R. 908, paragraph 134

DISCUSSION

[375] The Court will now apply the relevant principles to the facts in this case and provide its analysis and findings.

[376] In keeping with the framework set out by the Supreme Court of Canada in R. v. W. (D.) op. cit., the Court’s first task is to assess K.R.’s evidence. If I believe him or if I am left with a reasonable doubt on his evidence, then my duty is to find him not guilty.

[377] The accused has chosen to testify. He denied any wrong doing with both complainants.

[378] His evidence raises a number of concerns with the Court. These go to his credibility and reliability.

[379] The Court is somewhat troubled with the accused’s self-reports in regards to his inability to remember. This issue was raised by him when first questioned by the investigating officer on June 18, 2013. The essence of his explanation was that “everything from back then has been erased…” Reference is made to the fact that he had twice overdosed two years ago because of his ex-wife and that there was “so much going on”.

[380] In cross-examination, he confirms that “once in a while”, he still has problems with his memory. He explained that he forgets things until someone gives him a “little of what happened” and then “it comes back”.

[381] When questioned by his counsel in re-examination, he states that he meant “memory loss” when he used the word “erased” with the officer. He is able to recall some of the events.

[382] While the use of the word “erased” was tempered by the accused, the end result is that, if believed, the Court is left with an individual whose ability to remember is challenged by reason of two overdoses. This is found to impact on the accused’s reliability as a witness. It goes to his ability to properly recollect and convey historical events.

[383] Judicial experience shows that a witness’s ability to recall becomes frail with the passage of time. The impact of such frailties on reliability will vary in accordance with their significance to facts and issues in the trial.

[384] The concerns with K.R.’s ability to remember go beyond the passage of time. He has told the police that “everything from back then has been erased”. He has told the Court that he is “…able to remember some of the events…”. Of his own admission, this is as a result of two overdoses.

[385] How then can the Court find any level of comfort in his evidence that he was never alone with the complainants? That he only went on the roof on one occasion? That he did not attend M.T.’s room to get pillows?

[386] What if he is simply unable to remember such events by reason of his condition? What if his memory has not been triggered by what others have told him?

[387] There are a number of inconsistencies and uncertainties in the accused’s evidence. Some are seen as significant and others are not found to affect his reliability and/or credibility. Generally, little consideration is given by the Court to issues revolving around years.

[388] The following are examples of inconsistencies and uncertainties which weigh against the accused’s reliability and/or credibility:

− Whether he stopped bathing his daughter alone at the age of eight weeks, six months or maybe a year;

− Whether they moved from Bonville to Summerstown in 1989 or 1999;

− Whether the complainant M.T. came into his family when she was six weeks or six months;

− His initial suggestion that he had been arrested by the police a week and a half following the note written by the complainant A.T. on October 10, 2012; he was actually arrested on or about June 18, 2013;

− The evidence given during his examination in-chief that he had built the basement apartment in Lancaster for his nephew R.R., his girlfriend L. and their two children; in cross-examination, he corrects himself and states that his daughters had lived in the basement first;

[389] K.R.’s insistence that he was never left alone with his daughters bears on his credibility. Life experience and common sense suggest that it is highly improbable that a father would not, during a period of some fifteen years of living in the same home, be at least occasionally alone with his daughters.

[390] His following evidence is seen as unreasonable by the Court:

− The only place he was ever alone with his daughters is in the livingroom watching television while his wife J.T. was closely in the kitchen;

− He never put the children to bed alone;

− He never prepared the children for school alone in the morning;

− He never cared for the children alone;

− The children never came to see him in the bedroom in the morning;

− J.T. never went grocery shopping and/or to medical appointments on her own; they always went together and the girls would be babysat;

− He always left the bathroom before the girls entered; he would prepare items such as shampoo and little cups but then exited as soon as they entered.

[391] At one point, the accused acknowledged that he did bath his daughters but only when they were “small”. There is no explanation as to why his firmly held practice of never being alone with them wouldn’t have applied when they were “small”. Furthermore, he offers a fairly wide range of age as to what he means by “small”. He indicates “eight weeks, six months….maybe a year…that’s it”.

[392] It is also unlikely that the same twelve individuals who were identified by the accused would always be present when they swam in the St. Lawrence River. He describes that they would swim two to three times per week for a period of two to three months. While the presence of these same twelve individuals is not impossible, the frequency and period of time make it improbable.

[393] The Court is mindful of the accused’s explanation for not being alone with his daughters. He testified that people spoke of J.T. having been sexually abused by her father in front of the complainants. He was concerned that he would be accused of the same thing.

[394] The Court fails to see how J.T. having been apparently sexually abused by her father and people raising this in front of the complainants could possibly result in such allegations against him.

[395] J.T.’s reaction when she was told by M.T. that the accused was touching her and watching her through the skylight is telling on the issue of the accused never being alone with the complainants.

[396] If the accused is truthful, J.T. would have known that he was never alone and that she was always around. If he was never alone and she was always around, then logically, she would know that the accused could not have touched M.T. She would know that he never had the opportunity to do so.

[397] Yet, J.T.’s reaction as described by the witness C.F. and the accused is not consistent with someone who would have known that the allegations brought by M.T. were impossible since there was never any opportunity.

[398] C.F. describes that J.T. confronted the accused and that he became very defensive and used foul language. She left with her husband as they didn’t want to be in the middle of it.

[399] K.R. testified being called by J.T. and told to come home as there was something serious they needed to talk about. She brought it up once he got home. He told her it wasn’t true. The complainant M.T. was called in from her bedroom to the kitchen and asked by her mother if it was true. The child responded that she didn’t know. J.T. then told her that she must have been dreaming about it and to go to bed.

[400] The end result of K.R.’s evidence that he was never alone with the complainants and that J.T. was always around is found to impact on his credibility. It is seen as an attempt to exclude any opportunity for him to commit the alleged offences. In attempting to shield himself, he provides a setting which is improbable and unreasonable. It is contrary to life experience and common sense.

[401] The same reasoning applies to K.R.’s evidence in regards to the leaking roof at the home in Lancaster. The significance is that the leaking roof is part of the allegations. It is presented as the reason why he stated to J.T. that he needed to go on the roof. In turn, it allowed for the opportunity to peek at the complainants while in the washroom.

[402] The Court finds that the accused’s explanation is suspect and improbable.

[403] His evidence is that there were lots of issues with the roof. It had been leaking for a long time and he had done nothing about it for a long time. Nor had he ever gone on the roof alone as he had never done such work before. He refers to leakage around the skylights. He states that it was repaired some two and a half year after moving in. He was helped by his brother and nephews.

[404] This evidence is again seen as an attempt by the accused at shielding himself from the allegations brought by the complainants. In doing so, he provides an explanation which is improbable and unreasonable.

[405] The accused’s description of the events which followed the complainant M.T.’s disclosure to her mother J.T. is found, in good part, suspect and unusual. It is also contradicted by the evidence of C.F.

[406] He denies being angry and using foul language as described by witness C.F. He states that he was shocked and denied that it was true. This part would be expected.

[407] According to the accused, once M.T. was told to go back to bed, they sat down at the kitchen table, talked and finished their coffee. C.F. and C. then left the home.

[408] C.F.’s version is that they left because of the accused’s demeanor and not wanting to be in the middle of this. She describes him as angry, defensive and using foul language.

[409] C.F. is found to be a believable witness. There is no question that she witnessed the events surrounding M.T.’s disclosure to J.T. This is consistent with the accused’s own evidence. He confirms that C.F. was at the home while he had gone hunting with her partner C. and that he received a call from J.T. as described by the witness.

[410] The fact that she is uncertain of the year when this event occurred does not detract from this finding. Nor does the issue of the complainant’s location in the home when she disclosed to J.T. seen as significant. She is supported in most of her details by the accused’s evidence. She is clear that this incident occurred in Lancaster. There is no apparent reason why she would want to mislead the Court on the question of the accused’s demeanor when he returned home. She was responsive to the questions during her testimony.

[411] The Court finds that the accused is contradicted by a credible witness as to his reaction when advised of M.T.’s disclosure to J.T.

[412] When one considers K.R.’s evidence that he was historically afraid of being accused of touching his daughters, one would expect a stronger response then the one reported by the accused.

[413] His evidence that “everything was fine…after that nothing was said…” is improbable. How can everything be fine following a statement by a 14 year old daughter that her step-father was sexually touching her and peeking at her through a skylight while she is in the washroom?

[414] In the end, the significance of M.T.’s disclosure in regards to the accused’s credibility are twofold:

− He is contradicted by a witness found to be credible;

− His evidence is seen as an attempt at minimizing the significance of the disclosure made by the complainant M.T.

[415] The Court agrees with Crown counsel’s submission that the accused’s evidence that his nephew R.R. was too young for a girlfriend while they resided in Summerstown is not supported by the evidence. In fact, the evidence would suggest otherwise. This is significant since the complainant M.T. testified that R.R. had slept over with his girlfriend L. when she alleges that the accused entered her bedroom looking for a pillow and she was awakened by the accused digitally penetrating her vagina.

[416] R.R. is presently 31 years old. There is much confusion as to when the accused moved from Summerstown to Lancaster. It varies from 2002 to 2005. The accused testified that they moved in 2004 or 2005.

[417] Whether 2002 or 2005, the point is that R.R. would have been old enough to have a girlfriend during that period of time. He would have been 15 years old in 2000. He would have been 20 in 2005.

[418] The Court also notes that while unsure of the exact age, R.R. testified that one of his four children with L. is turning 13 years of age. This is certainly consistent with him having a relationship with his girlfriend L. during the relevant period of time.

[419] The end result is that the accused’s evidence on the issue of his nephew not having L. as a girlfriend at the time of the alleged incident of digital penetration is contradicted by uncontested evidence.

[420] Having considered the accused’s evidence, the Court finds that he is not a credible and reliable witness. He is not believed by the Court. His evidence does not raise a reasonable doubt.

[421] These findings are based on the cumulative effect of the consideration and factors raised by the Court.

[422] The next part of the analysis is whether based on the evidence that is accepted, the Court is convinced beyond a reasonable doubt by this evidence that the accused is guilty of the counts brought against him?

[423] Firstly, I wish to deal with the Crown’s application on the issue of other discreditable conduct.

[424] The true essence of other discreditable conduct and its value as circumstantial evidence is found in the notion of objective improbability of coincidence.

[425] There is no question that the allegations of both complainants are highly similar in nature as argued by the Crown. The facts as between the complainants are strikingly similar.

[426] The more fundamental question for the Court is whether the probative value of the evidence of both complainants when looked at collectively outweighs its prejudicial effect.

[427] As will become clear in these reasons, the Court is left with significant concerns with the complainant A.T.’s evidence.

[428] This is not meant as subjective criticism of A.T. The Court is mindful of her limitations. She described herself as a “slow learner”.

[429] The Court has come to the conclusion that she is not reasonably capable of belief.

[430] As stated by the Ontario Court of Appeal in R. v. J.W. 2002 CanLII 49418 (ON SC), [2002] O.J. No. 654, at paragraph 43:

“…in exercising a gatekeeper function, there are times where the trial judge is entitled to take into account the credibility of the evidence. Where the question of admissibility and probative value are totally bound up with one another, the evidence may be too prejudicial to be admitted unless it is reasonably capable of belief…”

[431] The Court finds that the complainant A.T.’s evidence does not meet the “reasonably capable of belief” threshold. As such, the prejudicial effect of the collective evidence of both complainants is found to outweigh the probative value.

[432] Therefore, the Court rejects the Crown’s application based on other discreditable conduct.

[433] As already alluded to, the Court has significant concerns with the complainant A.T.’s evidence. These go to the core issue of her reliability and credibility. The Court is left with a reasonable doubt on her evidence when looked at, in the totality of the evidence presented in this trial.

[434] In saying this, the Court, again, is mindful that these concerns may be linked to intellectual limitations. Objectively looked at, her evidence does not rise to the level required to establish guilt beyond a reasonable doubt.

[435] The concerns go beyond what is expected when the Court is called upon to assess evidence given by an adult as to events that happened when he or she was a child.

[436] The note signed by A.T. on October 10, 2012 is a significant concern for the Court. It is a prior signed statement which absolves the accused of any wrong doing. It states that:

“…whatever my mom has said about my dad is not true. Witch she has said about my dad touching us two girls is not true and whatever else has been said.”

[437] In cross-examination, she acknowledges having signed this document. She states that the accused made her sign it. She was forced to sign it. However, she is unable to describe how she was forced to sign it. Her evidence is that she doesn’t know how she was forced. There was no force used or any threats.

[438] What the Court is left with is a bare assertion that she was forced to sign this note with no evidentiary foundation allowing for an assessment of the circumstances which led to her signing same. Without any evidence, the Court cannot conclude that she was forced to sign this note. Therefore, we are left with a statement signed by her confirming that she wasn’t touched by the accused. This amounts to a prior inconsistent statement which goes to the core issue of whether or not she was sexually touched by the accused. This goes to her credibility.

[439] At trial, she testified that she didn’t know who had written this note and that her spouse R.D. was present when this was signed by her. This is noted to be contrary to her evidence given on July 10, 2014 at the preliminary inquiry.

[440] At paragraph 9 of page 88 of the transcript of the said preliminary inquiry, she provided the following evidence:

“Q. Did you tell your boyfriend or whoever it was at the time that I was forced to write this note?

A. No.

Q. You didn’t tell anybody?

A. No.”

[441] It is also noted that she had not mentioned this note to the police. She states that she “honestly forgot about the note”. She confirms that her memory is bad. This goes to her reliability.

[442] A.T.’s evidence discloses a number of contradictions in relation to the alleged touching by the accused. In fact, there are significant internal inconsistencies in her description of what the accused allegedly did to her. These are noted as going to the very core of the allegations.

[443] During the examination in-chief, she describes an incident where the accused would have touched her vagina while she was kneeling next to him in the computer/office room.

[444] She is then asked by Crown counsel if the accused had touched her while in any other room. Her response was:

“…no….other then the office…that’s it…”

[445] She is then asked whether he had touched her while in his bedroom. Her response was:

“…no…not in the bedroom…”

[446] Crown counsel sought and was granted leave to allow A.T. to refresh her memory by reviewing pages 65 and 66 of the preliminary transcript.

[447] After doing so, she indicates that her memory was refreshed “a little” and that yes he had touched her vagina while in the bedroom on two or three occasions.

[448] During cross-examination, she confirms that she had reviewed both her statements given to the police and the preliminary inquiry transcript prior to testifying in this trial.

[449] This evidence impacts on both credibility and reliability. It is difficult to appreciate how an individual would forget such significant events. She was adamant that he had never touched her while in his bedroom. There was no uncertainty. She states having been touched only after being shown a prior inconsistent statement. This goes to credibility. On the other hand, if she was unable to remember such events then this goes to her reliability as a witness.

[450] The Court is concerned with A.T.’s response to Crown counsel in re-examination that “maybe” she would have been able to testify if she hadn’t revised her video statement to the police. She had earlier told defence counsel that she had “memorized” what was in her video statement.

[451] The following inconsistencies are also noted by the Court:

− In examination in-chief, she stated that he had started by touching her vagina and the touching of his penis was after; in cross-examination, her evidence was that her touching his privates turned into him touching her;

− She initially indicated that he had slid her hand into his boxers on one occasion; she later indicated “he took my hand two-three times and slid it to his privates;

− At the preliminary inquiry, she had testified (pages 64 and 74 of transcript) that she couldn’t remember whether his penis was erected or soft when he slid her hand in his boxers; at trial, she stated that she was positive that his penis was erected;

− At the preliminary inquiry, she testified (page 82 of the transcript) that she wasn’t too sure that the accused was the one looking at her through the skylight while in the washroom; she knew there was somebody there; at trial, she stated that she saw his face looking through the skylight; she is now certain it was him since he was the only male in the house.

[452] A.T. denies having separately told defence witnesses C.R. (sister of the accused) and K.S. (daughter of the accused’s wife) that she had not been sexually touched by her father as reported by both witnesses.

[453] Having reviewed their evidence, the Court finds that there is no objective basis to dismiss the evidence of C.R. and K.S.

[454] The Court is mindful of the accused’s family ties with these individuals. However, they are found to be credible and reliable. Their evidence was delivered in a straightforward manner. They were responsive to the questions. They were not shaken in cross-examination. They were consistent in their version.

[455] There is no suggestion that these individuals discussed their evidence and yet provide similar evidence.

[456] The proposition that A.T. would have denied being touched by her father to C.R. and K.S. is not unreasonable and unrealistic when one considers her denial found in the October 10, 2012 note. The note is certainly supportive of their evidence.

[457] Therefore, the evidence of these two witnesses presents as external contradictions going to A.T.’s credibility and reliability.

[458] Lastly, the evidence of defence witness J.S. (mother of the accused’s wife) has very little bearing, if any, in the Court’s assessment of A.T.’s evidence.

[459] J.S. was obviously intent on providing the Court with her opinion, based on her personal experience as a child, that A.T.’s interactions with the accused was not consistent with her allegations of having been abused. She was reminded on a number of occasions not to do so.

[460] The Court will simply indicate that judicial experience and wisdom have shown that a victim’s demeanor with the person who is sexually abusing him or her is rarely, if ever, a reliable indicator.

[461] The end result is that the Court is left with a reasonable doubt with respect to the complainant A.T.’s evidence.

[462] The Court will now deal with the evidence of the complainant M.T.

[463] Having carefully reviewed her evidence both internally and in the context of the whole of the evidence, which includes the accused’s denial of any wrongdoing, the Court finds that M.T. is a believable and reliable witness.

[464] Her version of the facts is accepted as true beyond a reasonable doubt. The Court is convinced beyond a reasonable doubt that K.R. sexually touched her as she described in her testimony.

[465] Considering that M.T. is an adult testifying about childhood events, the Court was struck by the very detailed account of the relevant events provided by her. These incidents occurred a number of years ago when she was 7 to 14 and yet, she is able to provide significant details. The following are noted as examples:

− Her description of how she was positioned on his arm as he was teaching her to swim; the bathing suit she was wearing, how he proceeded to set aside her bathing suit and inserted his finger in her vagina;

− Her description of how she was awakened by the accused inserting his finger in her vagina while she was sleeping on the top bunk; he was standing closer to the foot of the bed; closer to her lower body; he told her he was just getting a pillow to go back to sleep; she could see him from the reflection of the light in the livingroom; the presence of R.R. and his girlfriend L. in the livingroom; how she had felt his hand on her thigh;

− The detailed account of how she would rub his feet while on his bed; she was sitting on his bed with her legs straight out; he would slouch over, his body leaning to the right towards the side of the bed; she was closer to his feet; he would touch the inside of her thigh and then touch her vagina by inserting his finger;

− She describes how towards the end, she started to cross her legs and placed a pillow to avoid him touching her.

[466] The details provided by M.T. in describing the sexual touching are seen as an indication of credibility and reliability.

[467] The evidentiary record before the Court suggests that M.T. has been internally consistent in her description of the relevant events. Her evidence was consistent throughout her testimony during both examination in-chief and the cross-examination. Consistency is seen by the Court as a measure of credibility and reliability.

[468] Her ability to describe how she felt at the relevant times is found to be supportive of the Court’s finding that she is speaking the truth. Her display of insight is compelling. The Court highlights the following examples:

− She was scared;

− Afraid of not being believed;

− Afraid of being punished;

− She felt that there was nothing she could do;

− It was his word against hers;

− How him peeking through the bedroom window and the skylight made her feel uncomfortable;

− She didn’t know what to think;

− How she felt unsafe and lacking privacy;

− She felt worthless;

− Her evidence in regards to her fear of becoming pregnant is compelling; she didn’t know how a child was conceived; she would punch herself in the stomach thinking that this would stop a potential pregnancy.

[469] Her demeanour as a witness is found to be appropriate. She was responsive to the questions. She was calm and articulated. Her answers were clear. She did not venture an answer when she didn’t know.

[470] There is no basis to believe that she exaggerated her evidence. When asked she clearly and readily indicated that she never touched the accused.

[471] The showing of emotion by a witness must be looked at with caution. It is only one of many considerations since appearances may be deceiving. However, the Court notes that M.T. twice became emotional during her testimony. The Court finds that her show of emotion was appropriate and tempered.

[472] A significant number of details provided by M.T. find support in external evidence. In fact, the accused’s evidence confirms much of her testimony. More notably:

− Where the family resided;

− The description of the homes;

− The swimming lesson in the St. Lawrence River;

− How she was positioned during the swimming lesson;

− The presence of R.R. in the livingroom;

− The type of bathing suit she was wearing;

− The large 8’ by 10’ bedroom window;

− The presence of a freezer;

− The leaking skylight in the washroom;

− The fact that she told her mother that she was touching her;

− The sleeping arrangements in the basement and the furnace room.

[473] M.T. was asked why she hadn’t disclosed the touching to her mother, her sister A.T. or her teacher. The accused argues in his submissions that her failure to do so goes to her credibility.

[474] The Court’s view is that M.T.’s failure to disclose does not affect her credibility. Her explanation for not doing so prior to age 14 is reasonable and certainly in keeping with the Supreme Court’s instructions in R. v. D.D. op. cit. to the effect that there are no set rule on how victims of sexual abuse behave. Some immediately complain, some will delay and others will never disclose. Embarrassment, fear, guilt or lack of understanding is identified as some of the reasons why such victims may delay in reporting the abuse.

[475] M.T. told us why she didn’t report the touching before age 14. She was scared of not being believed. Scared of being possibly punished. She didn’t know what the outcome would be. She was just a kid.

[476] The evidence reveals that M.T. did ultimately disclose to her mother. This was confirmed by herself, witness C.F. and the accused. This disclosure must be looked at in its proper perspective. What consideration, if any, is to be given to this disclosure in assessing the complainant’s credibility and reliability?

[477] This prior complaint was raised without objection during her examination in-chief. It was also the subject of cross-examination.

[478] The Crown called C.F. who was present in the home at the relevant time. Counsel for the accused raised an objection on the basis of the hearsay rule when the witness was asked to repeat what the complainant had told her mother. The Court ruled that the statement was admissible as there had been an allegation of recent fabrication by defence.

[479] As explained by the Supreme Court of Canada in R. v. Evans 1993 CanLII 102 (SCC), [1993] 2 S.C.R. 629 at paragraph 35:

“35. …it has been held that there need not be, in cross-examination, any express allegation of recent fabrication for the prior statements to be admissible. It is sufficient if, in light of the circumstances of the case and the conduct of the trial, the apparent position of the opposing party is that there has been a prior contrivance.”

[480] It was fairly clear and explicit during the cross-examination of both complainants that the accused’s suggestion is that they had gone to the police in May 2013 and fabricated allegations in response to the accused wanting to care for the nephews who had been involved with the Children’s Aid Society.

[481] In identifying the proper use to be made of the prior statement, the Court is guided by the following words of the Ontario Court of Appeal in R. v. Divitaris 2004 CanLII 9212 (ON CA), [2004] O.J. No. 1945, found at paragraphs 30 to 34:

“30. …the purpose of allowing evidence of the prior consistent statement is to demonstrate that the statement was not recently fabricated because the person made a similar statement at a time before the impugned recent complaint. For that purpose, it is still not admissible for the truth of its contents, but to rebut the allegation of recent fabrication and to assess the credibility of the person who made the impugned statement…

31. …the prior statement is not evidence of the facts it relates but may only be used to assist in determining the credibility of the impugned statement and its maker…

32. …the reason that the repetition of a statement becomes probative of the credibility of its maker, when according to the original rule, repetition of a statement does not make it more likely to be true, can be explained by the timing of the prior statement. When the prior consistent statement was made at a time before the person who made it would have had a reason to concoct the statement, the prior statement has some indicia of reliability….

33. …repetition does not make the statement more likely to be true. However, because the prior statement was made at a time when there was no motive to fabricate, the likelihood that the prior statement was true, together with the consistency of the statements, could make the prior statement probative of the veracity of the second statement.”

[482] The Court finds that this reasoning applies in assessing M.T.’s credibility and reliability. The first disclosure is not used for the truth of its content. It is seen as circumstantial evidence of her veracity as articulated by the Court of Appeal. It is not determinative but part of the Court’s overall assessment of her evidence. In the end, she made a prior similar complaint some twelve years ago when she had no apparent motive for doing so.

[483] The Court has considered and weighed the arguments raised by the accused in challenging M.T.’s credibility and reliability. These do not individually and collectively change the Court’s view as to the quality of her evidence.

[484] The Court is mindful that she was contradicted on the question of the doors being cut in Lancaster. It is her belief that the accused had done so. On balance, she is found to be wrong. That is not seen as a significant point when looked at in the whole of her evidence.

[485] Consideration was also given to the questions of frequency of events and lack of opportunity having regard to the mother J.T. being in the home, the complainant attending school and the accused going to work.

[486] The evidence before the Court is that K.R. was not working while residing in Summerstown. According to M.T., this is where the morning touching of her vagina was more frequent. She testified that in Summerstown the rubbing of the accused’s feet was a daily occurrence in the morning. That he would have touched her vagina on a “multiple of occasions”. She describes that the touching was “three quarter of the time”. She explained that the frequency went down when they moved to Lancaster. She indicated “two to three times” per week.

[487] Her evidence was that the touching of her vagina would not last for very long. She stated “…for a couple of minutes till I felt uncomfortable and that was it…”.

[488] M.T. testified that her mother J.T. was elsewhere in the home. She was either cooking, having a cigarette or a coffee.

[489] It can also be reasonably assumed that their position on the bed, as described by M.T. was not such that it would be readily compromising if observed.

[490] The differences between the evidence of C.R. and the complainant in regard to the year and location in the home when the disclosure to J.T. took place are also not seen as a significant concern. The reality is that the disclosure did occur and the accused confirms most of the peripheral details surrounding this event. The Court’s finding in regards to M.T.’s credibility and reliability is supportive of the Court’s view that the accused’s evidence does not raise a reasonable doubt. Based on the analysis set out by the Ontario Court of Appeal in R. v. J.J.R.D. 2006 CanLII 40088 (ON CA), [2006] O.J. No. 4749, the acceptance of M.T.’s evidence beyond a reasonable doubt serves as a further basis to reject the accused’s evidence.

[491] The Court is convinced of his guilt beyond a reasonable doubt in relation to the incidents in Summerstown and Lancaster.

[492] However, in regards to the allegation that the accused had forcefully rubbed the complainant’s vaginal area with a washcloth while bathing her, the Court finds that the Crown has not established guilt beyond a reasonable doubt.

[493] The Court is not provided with much detail. M.T. indicates that she is pretty sure her sister A.T. was present with her in the bathtub. She cannot remember how long the rubbing of her vagina with the washcloth lasted. She guesses maybe two minutes. She states that it hurt, she told him and she was told to get out.

[494] While it is suspicious when one considers the touching in subsequent years, the Court is left with a reasonable doubt as to the sexual nature of the touching.

CONCLUSION

[495] The end result is as follows:

1. The accused is found not guilty under counts 1 and 2 (assumption is that these refer to events in Bonville);

2. The accused is found guilty on counts 3 and 4 (assumption is that these refer to events in Summerstown); Crown is to identify on which count conviction is to be registered; other count to be stayed;

3. The accused is found guilty on counts 5 and 6 (assumption is that these refer to events in Lancaster); Crown is to identify on which count conviction is to be registered; other count to be stayed;

4. The accused is found not guilty on counts 7 and 8.

Justice Ronald M. Laliberte Jr.

Released: April 29, 2016

CITATION: R. v. K.R., 2016 ONSC 2000

COURT FILE NO.: 14-68

DATE: 2016/04/29

ONTARIO

SUPERIOR COURT OF JUSTICE

IMPORTANT: CONTENTS CANNOT BE PUBLISHED, BROADCASTED OR TRANSMITTED PURSUANT TO AN ORDER UNDER SECTION 486.4 (both victim and accused) OF THE CRIMINAL CODE OF CANADA DATED JANUARY 11, 2016 OF THE HONOURABLE MR. JUSTICE RONALD M. LALIBERTE JR.

HER MAJESTY THE QUEEN

– and –

K.R.

Respondent

REASONS FOR JUDGMENT

Justice Ronald M. Laliberte Jr.

Released: April 29, 2016