R. v. M.C., 2016 ONSC 3040

R. v. M.C., 2016 ONSC 3040

COURT FILE NO.: CR-15-10000429

DATE: 20160506

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

M.C.

Accused

Jennifer Gibson, for Her Majesty The Queen

Paul Gosio, for the Accused

HEARD: April 25, 26, May 3, 4, 2016

Subject to any further Order by a Court of competent jurisdiction, an Order has been made in this proceeding directing that the identity of the complainant and any information that could disclose such identity shall not be published in any document or broadcast in any way pursuant to s. 486.4 of the Criminal Code of Canada

REASONS FOR JUDGMENT

DUNNET J.: (Orally)

1M.C. has been charged with sexual assault, sexual interference and incest.

U.C.’s First Video Statement

2On September 26, 2014, U.C. was thirteen years old. As a result of a conversation that she had with her teacher on that day, the police were called to her school. She gave Police Officers Laura McFatridge and Amy McGuire-Leary a video statement about an incident involving her father M.C. that occurred in her bedroom nine days earlier.

3She said that around nine or ten o’clock in the evening, her father came into her room and told her that she was supposed to do things and that she could not tell anyone about anything that happened between them. He started taking off her clothes and touching her body. She kept telling him to stop and he kept telling her to be quiet. He did not insert anything. It lasted ten or fifteen minutes and when he was done, he walked out of the room.

4U.C. was confused about what had happened and she did not know what she was supposed to do. She sent an electronic text message to her school friend T.R. and told her what had happened. T.R. sent U.C. a text message, telling her that the term was “raped.”

5U.C. told the police officers:

And I said, I knew what raped meant, but I didn’t know what exactly to call what he was doing. So then, from then on, I was just like, he raped me.

6T.R. convinced U.C. to speak to her teacher about what had happened. Afterwards, she was waiting for her parents to arrive at the school. They said that they were going to take her home, but that was not what she was expecting. She told the officers, “I knew they weren’t going to take me home because the teacher would never do that.”

7U.C. told the officers that her father was schizophrenic and her parents argued a lot. They were always yelling and swearing at her and accusing her of lying and stealing. She said that she was supposed to be a boy and she thought that it was normal for parents to treat their children like that. When she was asked if she was afraid of her parents, she answered, “Very.”

8She said that her mother beat her three or four times a week. In March 2014, her father started beating her. He would punch her in the face or arm or stomach and it would sometimes leave a mark. Six or seven days before she gave her statement, her father slapped her three times “pretty hard” on her face. She was shocked and started to cry. He did not tell her why he hit her and she was “pretty upset” about it.

9U.C. was asked to describe what had happened with her father. She said that around nine or ten o’clock in the evening, she was lying down on her bed reading a book. He entered her bedroom and told her that she needed to know that no one cared about her and whatever happened between them was always between them. He said that no matter what she told anyone, no one was going to be able to help her. He did not even know why she had any friends.

10She thought that her father hated her and she asked him to “get to the point.” After that she did not say anything more because she was afraid of what he might do.

11He sat down beside her and started to unbutton her shirt. She tried to move his hand, but he used his other hand to hold onto her hand. He continued to unbutton her shirt. She tried to push him with her legs, but she could get him to stop.

12He pulled her pants down. He was touching her thighs, her back and her “boobs” under her training bra. Then he started to pull down her underwear. He took off all of her clothes and touched her everywhere.

13He put his hand under her body and was touching her bum. He was kissing her neck, her stomach and her thighs. He did not get any further than that. He just kept touching her and smiling. It lasted ten or fifteen minutes. She did not realize what he was doing. He did not say anything and he left the room.

14After a few minutes, U.C. realized that she was not wearing any clothing. She put on some clothes, went to the bathroom and washed her face. She stayed in the bathroom for five minutes trying to take everything in. Then she heard her mother and brother come home.

15When she was asked, “Is there anything else,” she replied, “He didn’t do anything else.” She was asked, “Did anything happen to your vagina?” She lowered her head and nodded no. When she was asked if he touched anything else, she nodded her head no.

16After the incident, her father pretended that nothing happened. U.C. tried to ignore him. If he told her to do something, she would do it and then go to her room.

The Text Messages

17In a conversation the following day between U.C. and her school friend T.R. that was electronically captured, U.C. said: “… My dad sorta Uh Raped me Yesterday.”

18She also said:

He did things that felt horrible. I can’t even explain. … I can’t I’d never ever I can’t say this to anyone I only told you. … He touched me, my clothes weren’t on me anymore.

19In response to a question that T.R. asked,

Okay you know what im not gonna stop myself from asking this. this is serious so im just gonna ask. did he put his dick in you,

U.C. replied: OMFG yes.

U.C.’s Second Video Statement

20On October 2, 2014, U.C. underwent a medical examination at The Hospital for Sick Children. The genital findings neither confirmed, nor excluded the possibility of sexual abuse.

21While she was at the hospital, U.C. gave a video statement to officer McGuire-Leary. She said that at nine or ten o‘clock in the evening on September 17, 2014, she was lying on her bed reading a book when her father entered the room. He started yelling at her and told her that she had no reason to live; no one liked her and she did not belong there.

22He sat on the bed beside her and started to touch her shoulder. He took off her shirt and pants. She kept trying to move him away, but it was not working. He ended up taking off all of her clothes. He was touching those parts of her body that are kept covered and she felt very uncomfortable. He did not listen to her and when he was done, he left the room. She was naked and she was thinking to herself:

What just happened and what was he doing and why did he just leave like that and not say anything?

23She grabbed some clothes and put them on. She went to the bathroom and washed her face “and stuff like that.” A few minutes later, her mother and brother came home.

24In response to questions asked by the officer, U.C. said that her father was wearing a lungi, a traditional garment worn around the waist by Bangladeshi men. He took off her shirt and pants. He touched her arms and the parts of her body that are usually covered. He touched her stomach and around her thighs. He did not touch her vagina.

25When she was asked if he did anything more than touch her with his hands, she said, “He didn’t do anything else.” When she was asked if he kept his clothes on, she said, “Ya.”

26U.C. told the officer that her brother sent her a text message telling her that her mother was really upset; her father was not talking to anyone and her brother wanted her to come back home.

27When she was asked how that made her feel, she said:

Well like it makes me feel bad about what happened but then like I didn’t do anything to make it happen to me, so it’s not really like you know I was planning on doing this and getting myself out of the family.

28She knew that her father would be arrested for what he did and that made her feel “bad a little bit” because he would leave her mother and her mother would have to take care of her brother.

29The officer asked her why she told T.R. that she went to the hospital when that did not happen. U.C. said that she felt alone and she did not want to go to the hospital because she was “scared of what they would say.”

30The officer read to U.C. from her discussion with T.R. that was electronically captured. When the officer quoted from T.R.’s message that read “did he put his dick in you,” the officer said to U.C.:

you wrote OMFG, so that’s oh my fucking god and you wrote yes. Can you talk to me about this?

and U.C. replied, “He did, he did it.”

31When she was asked why she did not tell the officer that part in the beginning, U.C. said, “I was scared what you guys would say.” When she was asked what she meant, she said that she was afraid because when this sort of thing happens, they have “serious types of tests and stuff like that.” She was thinking about it every single day and about whether she should call the officer and tell her “right now while I still can.”

32The officer asked U.C. what had happened. She said that her father came into her room and told her that no one liked her. He sat beside her and took off her shirt and pants. He kept touching her everywhere and after he touched her boobs, he touched her on her vagina.

33He took off his lungi and he was not wearing any underwear. He made her lie all the way back down on the bed. He put his body over hers and pushed her legs wider apart. She said:

He opened my vagina wider with his hands and then he put his dick inside of the bottom hole - what do you call it - and he did it once slowly and then he did it faster.

34She said that it went in deep and it hurt a lot. He was breathing heavily and she was screaming and crying and trying to move him, but he was not listening. She was asked if her father was making any noises and she said, “It was sort of like yawning, but it wasn’t yawning. … It was like groaning–ish.” He did it for five or ten minutes and after he was finished, he put his lungi back on and walked away without saying anything.

35The officer asked U.C. if she knew what it meant when a man gets an erection or a boner, but she did not. The officer asked her to describe what his penis looked like. She said that it was really big with black hairs covering it and it was not really hanging down. It was a little bit higher. She said, “It wasn’t hanging. It was hovering.”

36After her father left the room, U.C. washed her face and her body and changed into different clothing. She did not tell her mother about what had happened because she did not understand what was going on herself. She did not tell her mother a lot of things because her mother beat her with cooking utensils.

37The next day, her vagina felt really painful and she had a bad stomach ache.

U.C.’s Testimony

38U.C. testified that her father made her go to an Islamic private girls’ school where she was required to wear a hijab that covered her hair and clothes that covered her body. She was required to pray and read the holy book every day.

39She testified that when she gave her first statement to the police, she told the truth, but she did not tell the whole story because she was afraid that the punishment for her father would be worse.

40After she gave her statement, the Children’s Aid Society became involved and she went into foster care for one month. She also changed schools and stopped wearing the hijab.

41In cross-examination, U.C. testified that since November 2014, she has been living at home with her mother and brother. The relationship with her mother has changed dramatically because the physical and emotional abuse has stopped. The religious rules are not as strict and she has more freedom with the clothing she wears and with her friends.

42U.C. agreed that her brother was not abused as much as she was because he was a boy. She agreed that she did not always want to follow the religious rules at home which were enforced by her father and supported by her mother. She was afraid of her parents and she wanted to get away from the abuse.

43She agreed that she was not allowed to tell anyone that she was being beaten and she had to make up excuses for her injuries. It was hard to concentrate at school and maintain relationships with friends.

44Although she was reticent to admit that several months before her allegations, she had thoughts of killing herself, she agreed that she could no longer take her living situation and she felt alone and scared.

45She testified that she thought that there was nothing left to do, but commit suicide and she sat down in the middle of the road with the intention of getting hit by a car. She never told her parents about her attempted suicide.

46She agreed that she lied to T.R. and the police in her first statement when she said that she had already been to the hospital.

47She agreed that before she gave her second statement, she knew that T.R. had sent the police a copy of their electronically captured conversation and they had two different versions of her story.

48She agreed that when she talked to her teacher about what had happened with her father, she knew that they would not send her home.

49She denied that she made up a story about the sexual assault. She disagreed that her father was an easy target because he was schizophrenic.

50In re-examination, M.C. testified that after the incident, the teachers in her school did not want her there and her father stopped paying the tuition.

The Evidence of M.C.

51M.C. was born in Bangladesh in 1969 and came to Canada in 1992. He married his wife in Bangladesh in 1997 and his daughter and son were born in Canada. U.C. is his biological daughter.

52M.C. testified that when his daughter was in the sixth grade, she started to look at bad internet sites on the computer and he enrolled her in an Islamic private girls’ school. He testified that in the beginning, she agreed to attend the school, but he noticed that she was always spending time on the internet and listening to Western music.

53He received a complaint from the school that U.C. was not completing her homework on time and he tried to discuss the situation with her in a calm voice and convince her to stay on the right path.

54He took his daughter to the bus for school every day. She tried to kiss him before she boarded the bus and he did not feel comfortable about it because she was growing up and that is forbidden in his religion. Also, he knew that the bus driver was a religious man.

55U.C. testified that his wife was responsible for discipline. When she physically assaulted their daughter a couple of times, M.C. objected and told his wife that she should speak to U.C. in a calm voice.

56A couple of days before September 17, 2014, his wife told him that their daughter had misbehaved and would not listen to her. He suspected that U.C. was falling into the wrong company. He did not like that and he “got scared.” He denied that he physically abused U.C.

57He testified that he had plans for his daughter to marry his friend’s son and he had discussed the arrangement with his friend who was agreeable. He did not discuss the matter with his wife or daughter.

58He denied that he went into his daughter’s room on September 17, 2014 and had sexual intercourse with her. He testified that he never went into her bedroom, except with his wife to clean the room.

59He went to see his family doctor in December 2013 because he had been having difficulty maintaining an erection whenever he had sexual intercourse with his wife and she was not happy about the situation.

60In cross-examination, M.C. agreed that on September 17, 2014, he was unemployed and his wife worked part time in the evenings. His son often played soccer in the park with his friends.

61He agreed that he went to the mosque every day for afternoon prayers as well as the final prayer one and one-half hours after sunset. He agreed that in the fall, the final prayer was held between nine and ten thirty at night.

62He agreed that he wore the lungi at home and no undergarments.

63He testified that when his daughter was twelve, she started watching pornography involving teenagers on the internet. This caused him great concern because it was against the teachings of his religion. At the end of the seventh grade, he and his wife decided to use a secret password in order to monitor the times that U.C. would be able to use the computer. He testified that she was permitted to use the computer for a longer period of time than her brother.

64He maintained that his daughter asked him if she could attend the private girls’ school because she wanted to learn more about Islam. His son, who is three years younger than U.C., went to public school and walked to the bus on his own.

65When U.C. started to become undisciplined, M.C.’s wife began to hit her with a wooden spoon. He testified that he was “scared” because U.C. told her mother that her friends had sex with different boys and she asked why she could not have sex with boys.

66He denied that he started to beat her in 2014 because he was frustrated with her behaviour.

67He denied that shortly before she spoke to the police, he had slapped her across the face. He testified that on September 17, 2014, he suspected that U.C. might do something because she had told her mother that if she beat her again, she was going to call the police.

68He testified that when he went to his family doctor about his failure to maintain an erection, the doctor told him that there was nothing wrong with him physically.

69He denied that he went into her bedroom and told U.C. that she was worthless. He denied that he took her clothes off against her protests or that he touched and kissed her all over her body. He denied that he had vaginal intercourse with her as he held her down.

The Position of the Parties

70The Crown submits that M.C. confirmed the evidence of U.C. in her statements about their family life in general and the physical abuse she suffered at the hands of her mother. It is submitted, however, that much of M.C.’s evidence was internally inconsistent and did not make sense.

71The Crown accepts that there was delayed disclosure, but asserts that U.C. was not trying to lie about what had happened to her and her explanations made sense. Further, her evidence as to what happened during the vaginal intercourse had the ring of truth.

72The position of the Crown is that the evidence of M.C. cannot be believed and the court should be persuaded beyond any reasonable doubt on the whole of the evidence that he had vaginal intercourse with his daughter.

73The position of the defence is that M.C. is a religious man and he gave his evidence in a truthful and straightforward manner. He denied the allegations of sexual assault.

74The defence submits that the evidence of U.C. is neither credible, nor reliable. It is submitted that her two statements are significantly different. In the first, she said that there was inappropriate touching and kissing and when the police gave her the opportunity to tell them if anything else happened, she said that nothing else happened.

75The defence contends that even though U.C. knew that the police were in possession of the text messages from T.R. before she gave her second statement, she did not mention that there was vaginal intercourse until the police produced the text messages U.C. sent the following day.

76It is asserted that U.C.’s stories are riddled with inconsistencies. Further, she lied about whether she attempted to commit suicide, whether she knew that she would not be returning home and whether she went to the hospital after the incident.

77It is the position of the defence that U.C. had a motive to fabricate her story in order to be taken from her home because of the physical and emotional abuse and on the whole of the evidence, the court cannot be satisfied beyond a reasonable doubt that M.C. is guilty of the offences charged.

Analysis

78The issue in this case is whether the events alleged to form the basis of the crimes charged ever took place. It is clear that the court cannot decide what happened by simply comparing U.C.’s version of events with M.C.’s version and choosing one of them.

79M.C. testified that his daughter began to watch pornography on the computer at home when she was twelve. Yet, it was not until one year later that he and his wife put limits on U.C.’s ability to use the internet and she was permitted to use the computer for a longer period of time during the day than her brother.

80If M.C. had concerns about his daughter looking at pornography, it defies reason why he waited a year before restricting her use of the internet. Defence counsel did not ask U.C. about this issue during his cross-examination.

81M.C. testified that U.C. asked her mother why she could not have sex with different boys. U.C. was also not asked about this issue during cross-examination. Given the physical and verbal abuse visited on U.C. by her mother, it makes no common sense why she would approach her mother on such a contentious subject.

82M.C. testified that he accompanied his daughter to the school bus in order to ensure that she boarded the bus. It is clear from his evidence that her access to boys was clearly limited by her father, as was her access to social media.

83M.C. also testified that he never went into his daughter’s bedroom, except to clean the room in the company of his wife.

84He said that he had difficulties with erections, but admitted in cross-examination that he did not take any medication for the problem and that he was told that there was no physical reason for his inability to have sex.

85I do not find M.C.’s evidence to be truthful or internally consistent. Much of his evidence about his daughter simply did not make sense.

86In R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742, the trier of fact is instructed by the second and third branches to consider the evidence of M.C. as follows:

If you do not believe the testimony of the accused, but you are left in reasonable doubt by it, you must acquit.

Even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

87M.C.’s evidence confirmed some of the salient points of his daughter’s evidence in her first statement. He agreed that he was unemployed and his wife worked in the evenings. His son played soccer with his friends. His wife beat their daughter with a cooking utensil. He wore a lungi around the house with no undergarments and he attended the mosque daily to pray.

88There is no issue that U.C. was being physically abused by her mother and that she wanted to get out of the situation at home. It was suggested that she had a motive to fabricate the sexual abuse because her father had slapped her on the face. He emphatically denied that he physically abused her.

89U.C. told her girlfriend within twenty-four hours that her father had vaginal intercourse with her and the conversation was electronically captured. T.R. persuaded her to tell her teacher at school and as soon as she did, the police became involved.

90U.C. testified that she did not tell the police the entire truth in the first statement when she said that he did not insert anything. When she was specifically asked if anything happened to her vagina, she lowered her head and nodded no.

91In R. v. D.D., 2000 SCC 43, [2000] S.C.J. No. 44 at para. 65, the Court held:

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.

92In R. v. L.K., 2011 ONSC 2562, [2011] O.J. No. 2553 at para. 24, Trotter J. accepted that incremental disclosure may be addressed by the trier of fact in the same manner as delayed disclosure.

93In her second statement, U.C. explained that she was getting pressure from home. Her brother texted her and told her that her mother was really upset about what had happened and her father was not talking to anyone. Her brother told her that he felt like an only child and he wanted her to come back home.

94U.C. told the officer that she felt bad about what had happened because her father was going to be arrested and leave her mother.

95When she was asked why she lied to T.R. and the police about going to the hospital, she said that she felt alone and she was afraid of what they would say.

96On the video, the officer reads the text message from T.R. asking U.C. whether her father had vaginal intercourse with her and U.C.’s response that he did. The officer then says, “Can you talk to me about this?” U.C. appears shattered. Her head is down and she quietly says, “He did, he did it.”

97When she was asked why she did not tell the officer about that part before, she said that she was “scared” of what the police would say. Then she told the officer that she was sorry.

98By all accounts, U.C. was a sheltered girl, which makes her evidence about the act of intercourse all the more compelling. She did not know what the term erection or boner meant. She went on to describe her father’s penis as really big. It was not hanging down. It was a little bit higher and it was hovering.

99She described how he got on top of her and pushed her legs wider. He used his hands to open her vagina wider and put his penis inside her bottom hole. He did it once slowly and then he did it faster. It went in deep and it hurt a lot. He was breathing heavily and groaning. She was crying and screaming and she was “scared” of her Dad.

100After he left the room, she changed into different clothes and the next day, she had a bad stomach ache. She did not tell her mother because she was afraid that her mother might beat her.

101In my opinion, U.C. was telling the truth about what her father did to her. She had the ability to make accurate observations and the ability to recall and describe the events. She struck the court as a bright and articulate girl who was not prone to embellishment.

Disposition

102Accordingly, taking into account the delayed and incremental disclosure, the inconsistencies in her evidence and her explanations, I believe U.C.’s evidence that her father had vaginal intercourse with her. I am not left in reasonable doubt on the whole of the evidence or from the contradictory evidence of M.C. The guilt of M.C. has been established beyond a reasonable doubt.

Dunnet J.