CITATION: R. v. D. (D.), 2016 ONSC 3269
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: R. v. D. (D.)
BEFORE: The Honourable Mr. Justice D.A. Broad
COUNSEL: Jennifer Caskie, for the Crown
Bruce Ritter, for the Accused
HEARD: February 16, 17, 22, and 24 and March 17 and 24, 2016
REASONS FOR JUDGMENT
Background
1The accused is charged with three sexual offences alleged to have been committed against the complainant M. P. between the 1st day of April, 2010 and the 31st day of December, 2012. The three counts are as follows:
Sexual assault contrary to section 271 of the Criminal Code of Canada;
Touching for a sexual purpose a person under the age of 16 years, directly with a part of his body, contrary to section 151 of the Criminal Code of Canada; and
Inviting for a sexual purpose a person under the age of 16 years to touch directly with a part of her body, to wit: her hand, the body of the accused, to wit: his penis, contrary to section 152 of the Criminal Code of Canada.
2The complainant M. P. was 10 years of age at the beginning of the charge period and was 12 years of age at the end of the charge period. The complainant is the daughter of the accused’s then common-law spouse K. P.
Basic Principles
3It is useful to review the basic principles which apply to this prosecution and the nature of the burden of proof which rests on the Crown.
4The first principle is that D. (D.) is presumed to be innocent of the charges, unless or until the Crown has proven each of the essential elements of the individual counts in the indictment beyond a reasonable doubt.
5Reasonable doubt is not far-fetched or frivolous doubt. It is doubt based on reason and common sense and which logically arises from the evidence or lack of evidence led at trial. In order to convict him, it is not enough to find that D. (D.) probably or likely committed the offences with which he is charged. However, the Crown is not required to prove with absolute certainty that he committed the offences.
6The existence or non-existence of reasonable doubt is to be based on the totality of the evidence. It is not necessary for the Crown to prove each individual piece of evidence beyond a reasonable doubt.
7Since M. P. was a minor child at the time of the alleged incidents giving rise to the charges, consent is not a relevant issue in respect of any of those incidents.
Principles Governing the Assessment of the Evidence
8Particularly in the case such as this, involving alleged sexual offences dating back a number of years, recognizing the distinction between credibility and reliability is essential to a proper analysis of a witness’ evidence.
9As confirmed by Watt J.A. in R. v. C. (H.) 2009 ONCA 56 (Ont. C.A.) credibility has to do with a witness' veracity, whereas reliability has to do with the accuracy of the witness' testimony involving a witness' ability to accurately observe, recall and recount events in issue. Veracity refers to the truthfulness or honesty of the witness. Although a witness whose evidence on an issue is not credible cannot give reliable evidence on the same point, credibility is not a substitute for reliability. A credible witness maybe honestly mistaken and may thereby give unreliable evidence.
10The paramount question is whether, on the whole of the evidence, I am left with a reasonable doubt about the guilt of the accused. That is the central consideration before me. A verdict of guilt must not be based on a choice between the evidence of the accused and the Crown’s evidence, as such an approach would undermine the presumption of innocence and the requirement of proof beyond a reasonable doubt (see R.v. Vuradin, 2013 SCC 38 at para. 21).
11Although it is fundamental that an accused is not required to testify, where he chooses to do so, as D. (D.) did in this case, the law requires that I take the following approach:
(a) if I believe D.(D.)’s evidence that he did not commit the offences charged, I must find him not guilty;
(b) even if I do not believe D.(D.)’s evidence, if it leaves me with a reasonable doubt about his guilt, or about an essential element of an offence with which he is charged, I must find him not guilty of that offence; and
(c) even if D.(D.)’s evidence does not leave me with a reasonable doubt of his guilt, or about an essential element of an offence with which he is charged, I may convict him only if the rest of the evidence that I do accept proves his guilt of it beyond a reasonable doubt.
(see R.v. W. (D.) 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742 (S.C.C.))
The Evidence
(a) Testimony of the Complainant M.P.
12M. P., was sixteen years of age at the time of trial and enrolled in Grade 11. She testified that she suffers from a learning disability related to “speed processing” which renders her slower at taking in information. Notwithstanding this, she is doing well in school and is hoping to go on to University. M.P. testified that she currently lives with her biological father and step-mother and has done so for two years. Her mother resides in Newfoundland with her two half-siblings.
13M.P. testified that she first met the accused when she was four years of age. At that time she was living with her mother, who was separated from her father, in the south end of Kitchener. The accused moved into the family home when she was quite young. She testified that she grew quite fond of the accused. Two younger siblings Z.D. (male) and M. D. (female) were born of the relationship between her mother and the accused. At the time of trial Z.D. was 10 and M.D. was 9. The family moved from Kitchener to a new home in the Township of Wellesley in 2010.
14M. P. testified that after Z. D. and M.D. were born, her mother and the accused began to drift apart from each other and her mother’s mental state declined, causing M.P. to spend a lot of time with the accused and to cling to him. She said she would often go to the accused for advice.
15M. P. testified that until the age of four she had been seeing her biological father every second weekend but when the accused entered the household contact with her biological father ended.
16M.P. described her relationship with the accused as being very affectionate during the period leading up to what she described as the first sexual contact between them. They would often lie on the couch together watching television and the accused would cuddle her. She took this as fatherly affection. She stated that most of the time they were in a “spooning position” with the accused behind her on the couch.
17M. P. testified that the first sexual contact between her and the accused took place when she was at 9 or 10 years of age, after the family had moved to the Township of Wellesley. The two of them were driving alone in the family van after visiting a doughnut shop in New Hamburg. She stated that the accused asked her if she would stroke his penis and she did so. The van was moving at the time. The accused was wearing blue nylon shorts which he pulled down. M.P. testified that she stroked the accused’s penis under his clothes. The incident lasted 10 to 15 seconds before it ended when “he put himself away”. She said there was no conversation between them while the incident was occurring and she could not remember any conversation about it afterward. M.P. described the situation as “extremely awkward”. She stated that as soon as she grasped the accused’s penis she thought “Oh my God why am I doing this?” She stated that the incident changed the relationship from that of a normal step-father who loved her to a feeling on her part of being used.
18M.P. testified that she had had many conversations about sexual matters with the accused in the time leading up to the first incident, when she was 8 to 9 years of age. He would ask her what she thought sex was and he would “egg her on” to talk about the issue. He would ask her whether she masturbated and would tell her that it is normal, was nothing to be ashamed of and that she should masturbate. He would talk about other young children masturbating. M.P. testified that the topic of masturbation was mentioned in most of the interactions she had with the accused during this period.
19M.P. testified that the second incident of a sexual nature between her and the accused occurred 1 to 2 weeks after the incident in the van. She and the accused were sitting on the couch in the living room (also called the family room) at around 9:00 PM. She said the accused said “you could masturbate in front of me” and she did so. The accused masturbated as well. She stated that her younger brother and sister were sleeping upstairs and her mother was either upstairs or in the office adjacent to the living room. M.P. testified that the accused was sitting with his back against the back of the couch with his legs forward and she was beside him. She was wearing pyjama shorts and top and the accused was wearing nylon shorts and a long-sleeved muscle shirt. She stated that she masturbated for 5 to 10 minutes until she had an orgasm. The accused was also masturbating until she finished but he did not orgasm. Afterwards they talked more about masturbation, the accused asking her if she was okay and if she was comfortable and saying that she should be comfortable around him.
20M.P. stated that, after the first incident, the masturbation happened frequently - on a “daily basis” while they were watching TV between 9:30 PM and 10:30 PM, which was their routine. The incidents would start off the same with each of them masturbating. She stated that it “slowly escalated” to her touching the accused’s penis and him touching her vagina. She said it progressed to cunnilingus and oral sex. She stated that it was two weeks to a month from the first incident on the couch until she and the accused began touching each other. The accused asked her “would you like to touch my penis” and she did so. She said that he went ahead and started touching her vagina. She said the accused would tell her “you look so grown-up” and afterwards he would often ask her “did you enjoy it?” and “how was it for you?”
21M.P. testified that while these incidents were taking place her brother and sister were asleep in bed and her mother was either upstairs watching television or was on the computer in the office next door to the living room.
22M.P. testified that during the incidents she would either be on the one side of the accused on the couch or he would “spoon her” by lying behind her on the couch. When asked how old she was the first time the accused had touched her body she guessed that she was ten to eleven years old.
23She testified that two to three months after the first incident on the couch the accused performed cunnilingus on her. She stated that she must have been 11 years of age at the time. M.P. testified that at the time of the first incident of cunnilingus she was wearing shorts with a picture of a baby cow on the shirt. She said she took her pyjamas down to her ankles and when it started she was masturbating. There was no conversation between them about oral sex beforehand. She said that the incident lasted for 20 seconds and it ended when he stopped and walked to the kitchen, which was attached to the living room, and washed his mouth out with the retractable faucet. The accused did not say anything to her. She stated that the accused washing in that way made her feel that something was wrong with her.
24M.P. stated that about a week after the first incident of cunnilingus she “sought him out” to perform oral sex on him saying “it’s only fair - I want to please you”. She said that she wanted him to feel loved and wanted. She said that he was “iffy about it” but said “oh maybe.” She testified that she was sitting with her back against the couch and with the feet on the floor and the accused was standing and came towards her with his penis and hit her face with it. She said he may have had a shirt on and his pants were either completely down to his ankles or were off. She said that he played a “teasing game” by bringing his penis towards her mouth and pulling it away. She said she put his penis in her mouth for a few seconds after which he continued masturbating. She said that she thought that he ejaculated.
25M.P. stated that she did not give the accused oral sex very often, estimating that it happened 3 to 4 times. She said that it took place in the same way, in a “game fashion.”
26M.P. testified that she never had sexual intercourse with the accused, although the accused did suggest it very early, perhaps during the third incident when he asked her, while they were masturbating “would you like to join them”. M.P. testified that she did not think that she was comfortable with it at the time. She described another incident in which the accused dragged her off the couch onto the floor. While she was on her back the accused was on his knees and started rubbing his penis on her vagina for a few seconds before he pulled away. She said there was no conversation between them while this was happening. She indicated that she was around 11 years old at the time of this incident.
27M.P. described another incident towards the end of the period during which they were having sexual contact when the accused was “spooning” her and he placed his penis between her “butt cheeks” and tried to penetrate her or to “hump” her but it “never worked out”.
28M.P. described her relationship with the accused while these incidents of sexual contact were going on as “very bizarre”. On the days after the incidents the accused would be distant with her and he started putting her down in front of the family.
29M.P. testified that she never told anyone about the sexual contact with the accused during the time that it was taking place. She said she knew that if she approached her mother she would not be able to handle it. She thought that if she came out with it the family would “alienate” her.
30M.P. stated that the sexual contact with the accused ended around 2012 when she was 12 years old. She stated that it got to the point that she knew that it was extremely wrong. On one occasion after an incident of sexual touching the accused said to her “this isn’t right” and he was afraid that it would come out. They made an agreement that it would not happen again. She testified to an occasion after that when the accused was sitting on a chair in the living room masturbating and he looked at her standing in the kitchen and she told him “I’m not coming over.”
31M.P. testified that she initiated the conversation about ending the sexual behaviour. However there was one more incident of mutual masturbation after their agreement to discontinue it. M.P. stated that she made it clear that that was to be the last time and the accused agreed.
32M.P. testified that the environment in the home was “always sexualized”. She said that the accused would walk around shirtless, wearing nylon shorts and he would have an erection. She stated “I didn’t even know that a limp penis was even a thing.” She said that the accused expressed to the family quite frequently that nudity was an “okay thing.” She said that he suggested multiple times that the family should go to a nudist resort. She said that the concept of nudity was always present in the home. She reported that the accused said on one occasion “I get hard when I’m around you and your mom.”
33M. P. testified that she resumed contact with her biological father on December 26 or 27, 2014. She had expressed to her mother that she would like to see her father and she went to visit him at his parent’s home. After that her father regularly came to pick her up on weekends.
34M.P. testified that when she earlier tried to speak to the accused about wanting to see her father he would respond that he did not want to hear anything about it and “totally just pushed me away”.
35M.P testified that after she began seeing her biological father her relationship with the accused changed. The accused at one point said to her “I’m just your roommate-you are nothing else to me.”
36M.P. described in her testimony the events leading up to her disclosing in March 2014 the sexual contact with the accused first to her mother and then to police. She stated that at that time she had been dating an older boy A.M. but was keeping it secret from her mother and the accused. The accused had frequently expressed to her that she was not allowed to have a boyfriend, telling her that “boys will hurt you and use you.” She stated that her mother was of the same mindset as the accused. As a result she kept her relationship with A.M. secret from them and lied to them about her whereabouts when she was seeing A.M.
37One day in March her friend E.C. came to her house upset. M.P’s mother and E.C.’s uncle had a telephone conversation in which it was disclosed to M.P’s mother that she had been dating A.M. Her mother became very upset with her and she admitted the relationship to her mother. Her mother told M.P. to inform the accused. She went downstairs and told the accused “you were right about A.M.” She testified that the accused “freaked out,” told her that she was a “bitch” and started crying. He started punching the walls and punched a hole in a closet door. M.P. testified that the accused left the home and did not come back until 3 AM the next morning.
38On the next day the accused expressed to M.P’s mother that M.P. should be sent to stay with her grandparents temporarily and she was driven there.
39M.P. testified that during a conversation with her grandmother she thought” I am living a lie” and told her grandmother that the accused “is not what you think he is.” Her grandmother called her aunt about what M.P. was coming forward with and the two of them called M.P’s mother.
40She was sitting in her grandparents’ with her aunt and mother when she told her mother that the accused “has done all kinds of bad things to me.” She testified that her mother started “freaking out” and slapped her. M.P. left and went to her other grandparents’ home. On the following day her mother instructed her to tell a police officer what had happened to her.
41On cross examination M.P. was questioned about a statement that she gave in December 2015 in which she described an incident at age 6 or 7 when the accused was tucking her into bed. She described how she would tug at the accused’s shorts or pants. She recalled on one occasion having her hand on the accused’s penis and him standing there with an erection. At that time the family was living in their former home in Kitchener. She acknowledged that in both her initial statement to police in March 2014 and at the preliminary inquiry in December 2014 she had stated that there had been no sexual impropriety involving the accused prior to the age of 10 when she was in grade 6 and that in particular there had been no incidents of sexual impropriety at the family’s former home in Kitchener.
42M.P. explained that in her statements to police and at the preliminary inquiry she was trying to describe intentional acts of the accused and “didn’t really incorporate” the incident at age 6 or 7 into what had happened later. She said it had recently popped back into her head and she had not been thinking about it when she made her initial statement to police. She described it as a mixture of not thinking that it was important and not remembering it. She said she was aware of the incident but did not incorporate it into the sexual abuse that had happened to her later at the family home in Wellesley.
43On cross-examination M.P. denied that she engaged in absentmindedly masturbating or touching herself in the living room while watching TV and denied that the accused or her mother ever cautioned her about it.
44M.P. testified that she engaged in sexual contact with the accused and sought him out because she was looking for reaffirmation of his love. She felt that the occasions of sexual contact were the only times that the accused was loving towards her and that she had to have that connection with him. She indicated that the first time it occurred she had not sought out the accused. When it first happened she definitely knew it was wrong and did not want it to happen, however the accused was an authority figure and she wanted to make him happy.
45M.P. stated that when the first incident in the home occurred her mother was not in the office next door to the TV room. However there were times that the sexual contact did happen when her mother was in the office. She could tell from light coming through the door if someone was in the office.
46On cross examination M.P. stated that the sexual contact between her and the accused took place over an approximately two year period, commencing in 2010 and ending in 2012. She acknowledged that in her initial statement to police on March 23, 2014 she had stated that the sexual contact had taken place over a period of 2 to 3 months. She stated that in giving her initial statement she could have been “totally off” with her time estimate. It could have been a year or it could have been one month. She stated that she was stressed out of her mind and was 14 years of age at the time she was giving her initial statement. She wanted to speak out about the incidents and she also wanted to keep her dignity. She stated that she did not have time to truly think about dates and times while giving her initial statement.
47M.P. admitted that when she made her first statement to police she was embarrassed and was not totally open. She was not intentionally untruthful but she was emotional and withdrawn. Her estimate of the length of time of the sexual contact with her best guess at the time. She realized that it had occurred over 1 to 1 ½ years, and not over 2 to 3 months when she sat down and thought about it as the preliminary inquiry approached.
48She acknowledged that she had testified at the preliminary inquiry that she told her biological father that the sexual contact with the accused took place over three years. She said that she had known solidly that it happened for a year, but she is not good with dates.
49With respect to the frequency of the sexual contact, M.P. testified that it occurred every day, always in the TV or family room. She and the accused had a daily routine of watching the Teletoon channel which broadcast adult cartoon shows commencing in 9 PM. She had a scheduled bedtime between 9:30 and 10 PM. When the cartoon Futurama came on at 9 PM every evening the accused would begin masturbating. He would always be wearing nylon gym shorts which made it easy him to pull up one leg. As she walked into the room the accused’s penis would be out and he did not cover himself up. She stated that her mother did not enjoy the type of programs that were on Teletoon and thought they were vulgar.
50M.P. stated that there were a couple of times that she was aware that her mother was in the office next door to the TV room however for the majority of the sexual incidents her mother was probably in her bedroom. That was her assumption. Her mother spent a lot of time alone in her room.
51M.P. acknowledged that in her initial interview with the police on March 23, 2014 she stated that the sexual contact had “happened more than four times” and went on to say that she “didn’t really count but it was a daily thing.” She also acknowledged that when asked at the preliminary inquiry how frequently the incidents had occurred she responded “I wouldn’t say hundreds” and that “I just said more than 10 times because that’s what I can recall.” When she was asked on cross-examination if the incidents were taking place on a daily basis why she would say “more than four times” in her initial statement, M.P. testified that she was trying to keep a shred of dignity. She said she “gave the truth but not all of the truth.” She stated that “when it comes to dates and times it is very hard to incorporate something that I tried every day to block out of my head.” When asked why she had,at the preliminary inquiry, put a limiting number of 10 on the frequency of the incidents, M.P. stated that she was just trying to give a reference and was trying to “give the court a visual” of what had occurred. She said that if she were to sit down with a calendar she was sure that it would add up to close to 100 times. She said the routines of the assaults were always the same, the same place, the same time, and the same way. She said that they “shifted together”.
52M.P. stated that she struggles with math and dates. For instance she does struggle with the difference between 10 and 100. She does understand the difference but if there is a very simple math question she cannot answer it in her head. When she was asked on cross-examination if her evidence was that the sexual contact happened every day her response was “yes”. In her earlier statements she was just trying to “give a numerical visual but didn’t succeed in that.”
53At trial M.P. testified that the initial incident in the van took place when she was 10 years of age and in grade 6. She acknowledged that when she gave her initial statement to police on March 23, 2014 she said it had taken place when she was 12. She acknowledged that the statement was off and apologized. She came to the realization that she was not 12 but rather was 10 years of age when the sexual abuse started before the preliminary inquiry.
Statement Given by the Accused to Police
54A voir dire was held respecting verbal utterances by the accused to Constable Jarrett Brown of the Waterloo Region Police Service at the accused’s family home in Wellesley Township on March 23, 2014. Constable Maureen Ahern and Constable Brown were each called to testify and were cross-examined by defence counsel. At the conclusion of the voir dire the voluntariness of the statement was conceded by counsel for the accused and the evidence given on the voir dire was agreed by counsel for the parries to form part of the Crown evidence at trial.
55Constable Ahern testified that in the late morning of March 23, 2014 she was dispatched to the accused’s family home in Wellesley Township in response to a call received by the police service from a female in relation to a domestic dispute. The caller was verbally belligerent on the telephone and hung up on the dispatcher. Constable Ahern had no information on the nature of the domestic dispute. She attended at the address to determine what prompted the call to police. She had no information and that an offence has been committed.
56On arrival in full uniform Constable Ahern was greeted by the accused’s common-law spouse, and M.P’s mother, K.P. She asked to be admitted to the residence and observed the accused part way up the stairs. It was apparent that there had been a verbal argument going on between the residents and Constable Ahern endeavoured to separate them until backup arrived. She requested the accused to go upstairs and she directed the two young children to the basement. The accused complied at with her request to go upstairs.
57Constable Ahern spoke to K.P. who presented as confused and agitated and had difficulty getting to the issue giving rise to her call to police. K.P. denied that there had been any physical altercation.
58Constable Brown arrived at the residence and Constable Ahern directed him to go upstairs. Constable Ahern had spent 5 to 10 minutes with K.P. prior to Constable Brown’s arrival, however she did not relate any of her conversation with K.P. to Constable Brown.
59Constable Brown testified that he arrived at the residence in full uniform having been dispatched there to provide assistance to Constable Ahern on a domestic issue.
60Constable Brown received no information from Constable Ahern upon arrival. His intention upon going upstairs was to try to figure out what was going on and to investigate a domestic dispute. When he arrived upstairs he could hear the accused crying inside the bathroom. At Constable Brown’s request the accused came out of the bathroom into the master bedroom at which point Constable Brown asked him what had transpired. The accused gave him some of the family history, including how long the parties had been together as common-law spouses and the number of children in the household. Constable Brown described the accused as extremely emotional. The accused stated that he was going to lose his children and when Constable Brown asked him why he stated that he had “f…ed up”. Constable Brown asked him what he had done. The accused kept repeating that he was a good father who loves his children.
61The accused said to Constable Brown that he had a 14-year-old stepdaughter who “didn’t deserve what happened to her” or words to that effect. The accused said “I did something I shouldn’t have.”
62Constable Brown believed that the accused had most likely done something sexual involving his stepdaughter and at that point stopped the accused and read him his rights to counsel in respect of an investigation of sexual assault and asked the accused if he understood. The accused responded “no lawyer thanks.”
63Constable Brown then read the accused the standard caution, indicating that he may be charged with sexual assault, to which the accused responded “yeah I get it”. The accused was crying throughout the conversation and Constable Brown described him as extremely emotional, upset and hard to speak to. Constable Brown asked the accused if his daughter needed medical attention to which the accused responded “no we didn’t have intercourse - it was just touching. I’m not like that. I’m so sorry.” Constable Brown asked him if he had had inappropriate sexual contact with his stepdaughter to which the accused responded “yes”. He said again that he would lose his kids for it. Constable Brown determined at that point that he had reasonable and probable grounds to believe that an offence been committed and he arrested the accused for sexual assault.
Testimony of the Accused
64The accused testified that he was in a relationship with K.P. the mother of M.P., for 12 years and they lived together for 10 years, first in Kitchener commencing in 2007 and then in Wellesley Township where they moved in March 2010. He and K.P. both worked at an insurance company in Kitchener until 2012 when K.P. lost her employment. After they moved to Wellesley Township K.P. started a business selling weight management products out of the home. She ran that business for over six months. K.P. used the den beside the family room as an office where she would sometimes work after the younger children were put to bed at 8 PM.
65The accused, in his testimony, absolutely denied sexually assaulting M.P. at any time, whether in the vehicle or in the home. He said it “never happened”. He stated that he never masturbated in front of M.P.
66The accused did acknowledge having been alone with M.P. in the family room watching television and that there had been times when they were lying on the couch together. He said this could have happened when they were alone or when someone else was present. He indicated that when this occurred K.P. was either in the family room with him and M.P. or was in the office next door. After K.P. lost her job in 2012 she was often upstairs in the bedroom on the computer looking for work or on Facebook, as by that time the family had WIFI, allowing her to work on the computer anywhere in the home.
67The accused stated that the doorway to office was about 3 feet from the doorway to the family room.
68The accused testified to what was going on in his relationship with K.P and M.P. in the months leading up to the police coming to the home on March 23, 2014. He described his relationship with M.P. prior to October 2013 as very close. They did activities together such as riding bicycles and playing sports. They also watched a lot of TV together and he helped her with her homework.
69The accused testified that his relationship with M.P. began to change around October, 2013. She participated in a “battle of the bands” event in Kitchener which the accused and K.P. attended. A 17 year old boy from Wellesley Township named A.M. had come to the event to see M.P. The accused said he never liked A.M. from when the family first moved to Wellesley Township. He said that when he saw M.P. hugging A.M. he “had issues with that boy.” He believed that there was something going on between the two of them and he became suspicious that there was a relationship notwithstanding M.P.’s denials. The accused stated that there were many indications in the ensuing months that in fact M.P. was dating A.M.
70The accused testified to another issue which affected the relationship. On Boxing Day 2013 the accused learned from K.P. and M.P. that M.P. was going to see her biological father. He said that this “blew him away”. He felt that K.P. and M.P. had not even considered him and that he had been lied to. He felt “horrible, like I was nothing to them.”
71The accused stated that for the next two weeks he did not speak to M.P.
72M.P. continued to see her biological father on a regular basis causing the accused to become more withdrawn.
73On March 13, 2014 the accused planned to go rock climbing with the younger children and invited M.P. to come along. The accused said that when M.P. declined because she was going to see her father he felt hurt. In response the accused began shutting her out again. He said there were times when M.P. tried to hug him but he could not bring himself to hug her in return, to which M.P. responded “you don’t love me anymore.”
74The accused stated that at the time he thought M.P. deserved his treatment of her because of the way he felt he was being treated. He said that, looking back on it, he recognizes that his behaviour was very immature and inappropriate.
75During the week prior to the police coming to the residence the accused described his relationship with M.P. as “not good”. He was continuing to ignore her that week. For instance when she would come down to watch TV around 9:30 PM he would get up to go to bed. She questioned why he was leaving, as it was their time to watch TV. When he left, she would say “you don’t love me anymore.”
76On Monday, March 17 the accused said he believed that M.P. had been talking on the phone with A.M. When he and K.P. confronted M.P. about it she denied having anything to do with A.M. The accused stated that he was very concerned about M.P., at age 14, being involved with a boy of 17 and about “who he was.” He wanted to make K.P. aware that there was a real possibility that M.P. was having sex and that she could be pregnant.
77On Thursday, March 20 M.P. approached the accused and told him that he had been right, that she had been seeing A.M. but that she would not be seeing him again. The accused said that he “lost it at that point” and told M.P. he was disgusted with her due to her having lied to him over a prolonged period. He stomped out of the house and went drinking with his grown son.
78On the next day, being Friday, March 21, K.P. informed the accused that M.P. would be staying home with a sore throat. The accused stated that he was suspicious and he told K.P. that she should have M.P. spend the weekend with her grandparents.
79After M.P. had left for her grandparents’ home the accused accessed M.P’s Facebook account and discovered that she had been communicating with A.M. The accused said this made him feel disgusted. He believed that she had stayed home from school in order to have relations with A.M. and he was upset that M.P. was continuing to lie to him. He approached K.P. and told her that she needed to take action and if she did not he would.
80On Saturday, March 22 K.P. went to speak to M.P. at her grandparents’ home. The accused did not see K.P. again until the next morning, at which time K.P. instructed him to go to his parents’ home apparently because of how upset she perceived he was about his treatment of M.P. on Thursday.
81K.P. then informed the accused that M.P. had made accusations about him. He could not recall K.P.’s exact words, however, based on everything that was happening, he believed that M.P. was making sexual allegations against him.
82The accused said that he thought the only thing that could be considered sexual between him and M.P. had been M.P.’s inappropriate behaviour in touching herself in the family room with members of the family present. He asked K.P. if she recalled walking in on M.P. masturbating in her bedroom when she was 12 years of age. He also told K.P. that M.P. would touch herself in the family room when the children were around. He also said that he related to K.P. an incident that occurred when M.P. was 10 years old. He and M.P. were lying together under a blanket on the couch watching TV when he saw M.P. touching herself in her private area and he grabbed her arm in order to take her hand away. She grabbed his hand and started to pull it down towards her private area, whereupon he took her hand off his. He said he might have slapped her hand at that point.
83The accused said K.P. blew up in response to his telling her about this incident. K.P. asked him if he had had intercourse with M.P. to which he responded “are you kidding me?” She asked him he if he had touched M.P. The accused became upset and angry. K.P. told him that what he had said or done had given her the right to full custody of their children, with visitation only for him. The accused said that he “lost it” at that point. He became very emotional and started crying. He said that he was upset with K.P., with M.P. and with himself. K.P. called the police at this point.
84The accused confirmed that when Constable Ahern arrived she told him to go upstairs to the bedroom. When Constable Brown later came upstairs the accused was still crying and feeling very upset. He thought that Constable Brown was there because K.P. had called the police about the sexual allegations that M.P. had made about him. Although he did not know for sure that Constable Brown had spoken to K.P. to obtain any details, he assumed that the two officers had had a discussion with K.P. and that Constable Brown knew the full details of what was going on in the home.
85The accused testified that when he told Constable Brown “I f…ed up” he was referring to his behaviour on the previous Thursday when he stormed out of the house and told M.P. that he was disgusted with her. He said that when he told the officer that “I did something I should not have” he was referring to the way he had treated M.P. on Thursday and had sent her away to her grandparents on Friday.
86The accused testified that he became very angry at Constable Brown for asking him about whether M.P. needed medical attention. He said that he had just been cautioned on sexual assault and thought that Constable Brown was suggesting that he had raped his step-daughter. He wanted to make it absolutely clear that there had been no intercourse and that all that had occurred was the incident that he had told K.P. about, namely M.P. engaging in inappropriate touching in the family room. When he had said “I’m so sorry,” he was referring to treating M.P. badly, not only on the previous Thursday but earlier in response to M.P. seeing her father as well as his behavior in ignoring her.
87The accused said that when he had responded affirmatively to Constable Brown’s question as to whether there had been inappropriate sexual contact between himself and his stepdaughter, he was referring to the inappropriate contact on M.P.’s part that he had described earlier to K.P. He testified that he had said that he was going to lose his kids because of K.P’s comment to him about that and “just because of the allegations themselves.”
88The accused testified that he did not intend to admit to Constable Brown that he had had inappropriate sexual activity with M.P. He repeated that, when he acknowledged inappropriate sexual contact had occurred, he was not trying to convey that he had done anything wrong, but rather was referring to M.P.’s inappropriate conduct that he had earlier told K.P. about. The accused said that he believed that Constable Brown knew about what he had told K.P. regarding that incident. He maintained that he had been very adamant with Constable Brown, especially when he had mentioned medical attention for M.P., that there had never been anything of a sexual nature between him and M.P.
Analysis
89This case falls to be decided on the principles laid down by the Supreme Court of Canada in W. (D.) as set forth above. I will repeat those principles again. If I believe the accused’s evidence that he did not commit the offences alleged against him, I must acquit him. Even if I do not believe the accused I must acquit him if his evidence leaves me with a reasonable doubt. Even if the accused’s evidence does not raise a reasonable doubt, I must only convict him if the rest of the evidence that I do accept persuades me of his guilt beyond a reasonable doubt.
90The accused offered an outright denial, with little elaboration, that he had ever sexually assaulted M.P. He said that it never happened.
91Speaking generally, the failure of a person accused of historical sexual assault to give more than a simple denial of wrongdoing is not an indication that his evidence is unworthy of belief. As Finlayson, J.A. observed in R. v. Norman (1993) 1993 CanLII 3387 (ON CA), 16 O.R. (3d) 295 (C.A.) at para. 52 “an innocent man is unlikely to have a detailed memory of distant uneventful occasions.”
92However, in this case the Crown relies upon what it characterizes as an admission by the accused to Constable Brown as part of its substantive case.
93When the Crown introduces a statement relied upon as an admission it is for the trier of fact to consider the whole statement, including any passages that contain explanations or qualifications favourable to the accused that bear upon the passages said to constitute admissions, and to decide whether, as a whole, the statement constitutes an admission. If the trier of fact finds the statement to constitute an admission, it may rely upon it in proof of the facts stated (see Watt’s Manual of Criminal Evidence (2015) at p. 658, citing R. v. Donaldson (1977), 64 Cr. App. R. 59 (C.A.)).
94When Constable Brown arrived the accused made the following unprompted utterances: “I f…ed up”, “I did something I shouldn’t have” and M.P. “didn’t deserve what happened to her”. Constable Brown then read the accused’s right to counsel and criminal caution for sexual assault and then asked if M.P. required medical attention. The accused’s response was “it wasn’t intercourse, it was just touching. I’m not like that. I’m so sorry”. Constable Brown then asked the accused specifically if there had been inappropriate sexual touching between himself and M.P., to which the accused responded in the affirmative.
95The accused offered explanations and qualifications for his utterances to Constable Brown. He says that he never intended to admit to Constable Brown that he had had inappropriate sexual contact with M.P. He said that when he stated “I f…ed up”, “I did something I shouldn’t have” and, M.P. “didn’t deserve what happened to her” he was referring to his immature and poor treatment of M.P. over the preceding three months, by shutting her out and not speaking to her, culminating in the events of Thursday and Friday when he told her that he was disgusted with her and sent her to stay with her grandparents. He maintained that when he said “it wasn’t intercourse, it was just touching. I’m not like that. I’m so sorry” in response to Constable Brown’s inquiry as to whether M.P. needed medical attention and his affirmative response to his question as to whether he had had inappropriate sexual contact with his stepdaughter, he was referring to a single incident four years previously when M.P. had been touching herself and had attempted, without success, to guide his hand to her private parts.
96In my view, these explanations make no sense, particularly in the context of what was happening in the accused’s home at that time, his behavior and demeanour during his encounter with Constable Brown, and what had been said between himself and K.P. a short time before, as well as between himself and Constable Brown.
97K.P. had told him that M.P. had made allegations of improper sexual behaviour on his part, had specifically asked him if he had had intercourse with M.P. and had asked him if he had touched M.P. He testified that he believed that Constable Brown was there because K.P. had called the police about the sexual allegations that M.P. had made against him. Constable Brown’s questions about whether M.P. required medical attention and whether he had had inappropriate sexual contact with his stepdaughter followed directly upon Constable Brown reading his right to counsel and criminal caution for sexual assault. He must be taken to have known that, in posing these questions in this context, Constable Brown was asking him about his own behaviour, not that of M.P.
98With respect to his unprompted statements prior to Constable Brown reading him his rights to counsel and caution, his explanation that he was referring to his inappropriate behaviour in not speaking with M.P., ignoring her and sending her to her grandparents’ home similarly makes no sense. The accused’s poor treatment of M.P. had persisted for several months. At no point did he seek to correct his behaviour nor did he apologize for it. He had become very angry with M.P. on the previous Thursday when she admitted to deceiving him about her relationship with A.M. Nothing had changed between that time and March 23 which could explain his sudden transformation from being uncontrollably angry at M.P.’s deceit to being remorseful about his poor treatment of her to the point of uncontrolled crying.
99K.P. had been to see M.P. at her grandparents’ home and had not come back with any overtures of reconciliation from M.P. nor with reports about the effect on M.P. of the accused’s treatment of her during the week. K.P. was relaying allegations made by M.P. of improper sexual contact on his part. The accused testified that, in speaking with K.P., he had “lost it” after she had accused him of sexual impropriety towards M.P. and threatened him with taking custody of their children. He was upset and crying to the point that Constable Brown had difficulty communicating with him. In the context of the accused facing serious allegations of sexual impropriety and the threat of losing custody of his children as a result, an attempt to explain his statements by pointing to a feeling of remorse over how he had treated M.P. by ignoring her over the previous three months, telling her that he was disgusted with her and sending her to her grandparent’s home for the weekend makes no sense.
100On the first step of the W.(D.) formulation I do not believe the accused’s evidence that he did not commit the offences alleged against him. The accused’s outright denial of sexual assault of M.P. is not believable as it is inconsistent with his admitted utterances to Constable Brown. The accused’s explanations for and qualifications of these utterances are illogical and unbelievable.
101On the second step in W.(D.) the accused’s evidence does not leave me in a reasonable doubt on whether he committed the offences. As indicated above, reasonable doubt is not far-fetched or frivolous doubt but rather is doubt based on reason and common sense and which logically arises from the evidence or lack of evidence led at trial. In my view, the accused’s intended meaning in his utterances to Constable Brown was clear. He admitted to having engaged in inappropriate sexual contact with M.P., that M.P. did not deserve what had happened to her, that he did something that he should not have, that although there had not been sexual intercourse with M.P. there had been touching, that he was sorry and that he had “f…ed up”. For the reasons set forth above, I find that the accused’s explanations for his utterances are far-fetched and illogical and do not raise a reasonable doubt.
102Is therefore necessary to turn to the third step in W.(D.), namely whether the rest of the evidence that I do accept persuades me of the accused’s guilt beyond a reasonable doubt. This calls for a consideration of the evidence of M.P. along with the accused’s statements to Constable Brown. In considering this evidence, it is important to recall that the onus of proving the accused’s guilt beyond a reasonable doubt remains on the Crown notwithstanding that I do not believe the accused’s evidence that he did not commit the offences nor do I find that his evidence leaves me in reasonable doubt.
103As indicated above, M.P. was 16 years of age at the time of trial and was testifying to events in the charge period alleged to have taken place when she was between 10 and 12 years of age. In her testimony she also made reference to earlier events alleged to have taken place when she was as young as eight years of age.
104The Supreme Court of Canada has given guidance in the case of R. v. R.W. 1992 CanLII 56 (SCC), [1992] 2 S.C.R. 122 (S.C.C.) on the assessment of evidence of events which occurred when the witness was a child. McLachlin, J. (as she then was) observed that “every person giving testimony in court, of whatever age, is an individual, whose credibility and evidence must be assessed by reference to criteria appropriate to her mental development, understanding and ability to communicate.” She went on to direct that, in general, when an adult is testifying as to events which occurred when she was a child, her credibility should be assessed according to criteria applicable to an adult witness, yet with regard to 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 testified to (see para. 26).
105There was no issue taken with the question of whether the evidence of M.P., if accepted, would satisfy the required elements of the offences with which the accused is charged. The issue is whether the events occurred at all.
106Mr. Ritter for the accused argues that M.P.’s testimony at trial that sexual contact between her and the accused took place on the couch in the family room on a daily basis from when she was 10 to when she was 12 years of age cannot possibly be reliable, even on the relaxed standard for acceptance of evidence of events alleged to have taken place during a witness’ childhood.
107Mr. Ritter says that, on the basis of M.P.’s evidence, the incidents took place hundreds of times over a period of up to three years. Her evidence was that, with the exception of the first incident in the family van, the events took place in the family room while three other people were in the home, including K.P. who was, at least on many of the occasions described, only steps away in the adjacent office separated only by glassed French doors dividing the hallway from the family room. There was nothing blocking the view into the family room from the hallway. A person in the adjacent office would only need to enter the hallway, turn and advance a few steps in order to enter the family room where the events were alleged by M.P. to have taken place.
108Mr. Ritter submits that it defies reason for these events to have taken place because there was a virtual certainty of the accused and M.P. being caught in the acts described by M.P. M.P. testified that the accused was, at least on occasion, naked, was standing up while she performed oral sex on him and at least on occasion had his pants down around his ankles. He says that on M.P.’s evidence the sexual contact was not a “one off” but was repeated daily over weeks, months and years.
109Mr. Ritter submits that, on the version of events described by M.P., there was a virtual certainty of the accused being caught performing the sexual assaults. He submits that a man in the accused’s position would not risk acting in a way that would virtually assure him of being caught. He pointed out that there was no evidence of any attempt by the accused to take M.P. into a bedroom or other less public space to perform the acts, nor was there any evidence of any effort on his part to check where K.P. was before engaging in them. Nor did M.P.’s evidence suggest that the incidents only happened after her mother K.P. had retired for the night.
110Mr. Ritter points to M.P.’s claim that on one occasion she walked into the family room and caught the accused in the act of masturbating. Although the accused denied this happened, Mr. Ritter submits that it underlines the point that one of the other occupants of the home could have easily walked in and witnessed a sexual assault in progress.
111Moreover, Mr. Ritter submits that there are numerous significant inconsistencies in M.P.’s evidence. He says that these include the following:
(a) The length of time over which the incidents took place. He points out that, between M.P.’s initial statement to the police, the preliminary inquiry and the trial, this time went from two or three months to up to three years, which ought to cause the court to question the reliability of her evidence;
(b) The frequency of the occurrences. Mr. Ritter points out that in her initial statement to police M.P. stated that the sexual assaults took place more than four times and at the preliminary inquiry more than 10 times, each of which were seriously inconsistent with the frequency which she testified to a trial, being virtually every day for up to three years;
(c) The date when the incidents commenced. Mr. Ritter pointed out that in her initial statement to the police she said she was nine or 10 years of age, at trial she said she was 10 years of age and at the preliminary inquiry she said she was 12 years of age. When asked whether she was intentionally lying or mistaken about this she responded “a bit of both”;
(d) Issues surrounding oral sex performed by M.P. on accused. In her initial statement to police M.P. started that she had not given the accused oral sex, at the preliminary hearing she said that she licked but did not suck his penis and at trial she testified that she gave him oral sex 3 or 4 times. Mr. Ritter submits that, although M.P. testified that she was trying to preserve her dignity, her willingness not to be forthright with police and with the court at the preliminary inquiry ought to cause the court concern;
(e) Issues concerning oral sex performed by the accused on M.P. At trial M.P. testified that the accused did this 4 or 5 times, whereas in her initial statement to police she stated that he did it only once and she “felt that he knew it was wrong and after that never did it again.” Mr. Ritter submits that this suggests someone who is not forthright with the court;
(f) The interval between the first and second incidents. At the preliminary inquiry M.P. testified that the first incident in the home occurred months after the initial incident in the van whereas at trial she said that the interval was 1 to 2 weeks. Mr. Ritter submits that although this is not significant on its own it represents one more inconsistency;
(g) “Spooning” and “Dry-humping”. Mr. Ritter submits that there was uncertainty in M.P.’s evidence as to whether she was completely naked or just had her bottoms down when these events took place. She testified that the accused was naked and was putting his penis between her buttocks. At the preliminary inquiry she testified that there was no blanket covering her and the accused, whereas at trial she testified that there was. He argues that M.P. was forced to introduce the blanket into her story at trial when she realized her previous evidence of the accused being naked with no covering with K.P. in the office next door was untenable; and
(h) Counselling and “recovered memory”. Mr. Ritter submits that there was an inconsistency in M.P’s evidence relating to the role played by counselling she received prior to the preliminary inquiry in assisting her to recover her memories of the incidents. At trial she said that the counsellor did not help her recover her memories, whereas at the preliminary inquiry she testified that the counsellor did help her do so. Mr. Ritter argues that this is a significant inconsistency which should cause the court concern.
112Mr. Ritter, on behalf of the accused, also argued that M.P. had a motive to fabricate allegations against the accused because of the accused’s treatment of her following her reconnecting with her biological father and her lying to him about her relationship with A.M. She testified that she found out that the accused and her mother had caused the police to call A.M. and that they had forbidden her to see A.M. Although on cross examination M.P. denied that she wanted the accused out of the house, she later testified that she wanted to make sure that her brother and sister would not endure the same thing she had and that the only chance for her, her mother and her siblings to flourish and have a decent life was for her to disclose what the accused had done to her. She said that she wanted to break away from “this freaking demon.”
113In reviewing M.P,’s evidence, it is clear that there were imperfections in it. There were a number of examples of internal inconsistencies in her story as told at various intervals, first in her initial statement to police, at the preliminary inquiry, in a statement given in December, 2015 and at trial. However, I found M.P. to be a credible witness. I agree with the submission of Ms. Caskie for the Crown that M.P. remained composed, polite and responsive throughout both her examination in chief and cross-examination. She testified with a maturity that was beyond her years.
114M.P. did acknowledge inconsistencies when they were pointed out to her and she was able to explain them in a way which made sense. She did not become argumentative upon being confronted with inconsistencies. Moreover, many of the inconsistencies had to do with the number of times that sexual contact had occurred, when it commenced, and how long it continued and with respect to details of events which had occurred several years previously when she was much younger. Her explanation that she was trying to maintain her dignity when giving her initial statement to police at the age of 14, by understating the frequency of the incidents and denying that oral sex had occurred, makes sense.
115Moreover, the specificity, spontaneity and candour of M.P.’s recounting of certain events supports her credibility and reliability, and is inconsistent with an attempt to fabricate. She was able to describe in detail the specific pyjamas she was wearing when the accused first performed oral sex on her. Her description of watching the accused wash his face with the retractable faucet after performing oral sex on her, and the feelings which this evoked in her, was specific and vivid, as pointed out by Ms. Caskie, as was her description of her performing oral sex on the accused in a “game -like” fashion. M.P. admitted to conduct which would be embarrassing and humiliating to her, such as seeking the accused out to perform oral sex on him, which runs counter to a suggestion of fabrication.
116M.P.’s description of a progression of conduct on the accused’s part, beginning with sexualized conversations, to masturbation in the presence of each other, to mutual masturbation, to oral sex, first by him on her and then by her on him, to attempted intercourse, makes sense and was of a nature that would be not expected of a 14-year-old to be able to fabricate.
117M.P.’s description of her psychological attachment to the accused, resulting from her lack of contact with her biological father and in dealing with a mother with a declining mental state, helps to explain many aspects of her testimony, including her willingness to do things that she did not want to do in order in order to make the accused happy and to maintain the bond between them. Her description of her feelings of closeness with the accused during the sexual contact and the contrast between that and how he treated her at other times was vivid and rang true.
118There were also significant aspects of consistency between what M.P. described and what the accused described in his statements to K.P. and to Constable Brown. In his story to K.P. the accused described an event that occurred when M.P. was 10, on the living room couch, while he and M.P. watched television together, lying on their sides with her back pressed against his front and involved M.P. touching her genitals. In his statement to Constable Brown the accused denied that intercourse occurred, but rather there was only touching. M.P. also denied that intercourse had occurred.
119In my view, the suggestion that M.P. was motivated to fabricate serious allegations of sexual assault against the accused because he treated her poorly by ignoring her after she had renewed a relationship with her biological father and by sending her to her grandparents’ home and because he interfered with her relationship with A.M. makes no sense. The accused’s behaviour in ignoring M.P. had continued for a period of almost three months. Although they discussed the issue of M.P.’s father on a few occasions, there was no evidence that it was a constant or even frequent source of disagreement or conflict between them. The accused sending her to her grandparents’ home would not evoke such an extreme reaction. The evidence indicated that she visited her grandparents’ home frequently and was very close to them. Moreover, it was not just the accused who disapproved of M.P.’s relationship with A.M. and had confronted her about it but also her mother K.P. It was M.P. who approached the accused on Thursday March 20 to confess to him that she had been seeing A.M. and had been lying to him about it.
120The most problematic aspects of M.P.’s testimony have to do with where she described the incidents as having taken place and their frequency, being in the family room, a space which could be readily accessed by other members of the family, and on a virtually daily basis. The defence position is that these factors render M.P.’s story highly improbable, or at least raise a reasonable doubt.
121The Ontario Court of Appeal gave guidance to the proper approach to be taken in a case which the complainant’s evidence is uncorroborated in the case of R. v. Gostick (1999), 1999 CanLII 3125 (ON CA), 137 C.C.C. (3d) 53 (Ont. C.A.), at para. 14, as follows:
The proper approach to the burden of proof is to consider all of the evidence together and not to assess individual items of evidence in isolation: see R. v. Morin (1988), 1988 CanLII 8 (SCC), 44 C.C.C. (3d) 193 (S.C.C.). This is particularly true where the Crown's case depends solely on the unsupported evidence of the complainants and where the principal issue is those witnesses' credibility and reliability. As Rowles J.A. emphasized in R. v. B. (R.W.) (1993), 40 W.A.C. 1 (B.C. C.A.), these issues are not to be determined in isolation. She said at p. 9:
Where, as here, the case for the Crown is wholly dependent upon the testimony of the complainant, it is essential that the credibility and reliability of the complainant's evidence be tested in the light of all of the other evidence presented.
122In the present case the complainant M.P.’s evidence that inappropriate sexual contact took place between her and the accused is not uncorroborated, but rather was confirmed by the accused’s utterances to Constable Brown.
123There was no evidence that K.P. was in the habit of entering the family room between 9:00 p.m. and 10:30 p.m. when M.P. said that she and the accused had sexual contact while watching adult-oriented cartoons on television. However the accused did testify that K. P. was in the family room between these times occasionally. There was evidence that her habit was to either be in the office using the computer or upstairs in her bedroom during that time and that she did not like that type of television programming and avoided it.
124With respect to the frequency of the incidents as related by M.P., for the reasons set forth above, I am required to take into account the fact that M.P. was testifying to events which occurred a number of years ago when she was a young child of 10 to 12. Her evidence must be assessed by reference to criteria appropriate to her mental development, understanding and ability to communicate, including the fact that she has a learning disability. What M.P. conveyed was that the incidents which she described happened with a high degree of frequency. Because of the commonality of the sexual acts she described, it is not unexpected that, to a large degree, they would meld together in her mind, and she would perceive that they happened more frequently than they may have.
125In light of all of the evidence presented, including the entire recounting of the incidents by M.P. and what I have found to be unequivocal statements of the accused, I am not left with any reasonable doubt that the offences set forth in the indictment were committed by the accused.
Disposition
126The accused is found guilty on all three counts.
D.A. Broad J.
Date: May 24, 2016