CITATION: R. v. G.W., 2016 ONSC 5946
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
G.W.
Defendant
Alan Spiegel, for the Crown
Steven Stauffer, for the Defendant
HEARD: September12-20, 2016
REASONS FOR JUDGMENT
(This judgment is subject to a s. 486.4 non-publication order as to any information that could identify the victims or witnesses)
a. O’Marra J. (orally)
1The accused, G.W. is charged on one indictment with committing a number of sexual offences involving his two step-daughters, M.B.1 and M.B.2, and his niece S.P., alleged to have occurred between January 1998 and December 2006 while the accused was in a relationship with A.W., mother of M.B.1 and M.B.2.
2A.W. testified to observing a sexual assault committed by the accused on her daughter, M.B.2. M.B.1 and S.P. testified to the accused having sexually assaulted and interfered with them when they were children.
3The accused testified on the trial and denied that there was any sexual contact with his step daughters or niece.
4The issue in this case is one of credibility. However, I must consider the whole of the evidence in accordance with the considerations set out in R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742 to determine if the Crown has proven the allegations beyond a reasonable doubt.
5At the outset of the trial the Crown brought a similar fact application in which it sought to have admitted the evidence of each complainant relating to the alleged offences to:
Demonstrate a pattern of behaviour of the accused’s situation-specific propensity to sexually abuse his female step-daughters and niece,
To negate a defence the complainants fabricated their allegations, and
To support the account of each complainant.
6The parties agreed that the evidence heard on the trial proper could be considered on the similar fact application at the end of all the evidence tendered on the trial.
7First, let me provide an overview of the witnesses’ evidence with respect to the alleged offences.
A.W.
8A.W. (B.) is the biological mother of M.B.2 (born […], 1989) and M.B.1 (born […], 1993), and the aunt of S.P. (born […], 1993), the daughter of P.T.,A.W.’s sister. Sometime in the late 1990’s after her marriage to F.B. the father of M.B.2 and M.B.1 dissolved, she met the accused with whom she began a romantic relationship. Between 1999 and 2002 the accused resided with A.W. and her children at S[…] Street, Toronto. They married April 6, 2000 and divorced June 2003. Subsequently, A.W. reverted to using her former married name for business purposes.
9Ms. A.W. testified that after they were married, the accused would stay for periods of time, leave to stay with other women and later return. She described him as a kind, friendly and loving man, and from her perspective good to her children. She said that she trusted him to watch the children completely which he was willing to do. Also, she emphasized that her sexual relationship with him was very good. Even after he had left the relationship he would continue to return frequently to engage in sexual relations with her.
10The first indication of an aberrant interest in her children was in the spring of 2002. As she recalled, she found the accused crouched on the floor beside the bed of her daughter, M.B.2 then 11, with his head between her legs. M.B.2 was lying back on her bed with her hands covering her face. A.W. hit the accused in the head stating “what the hell are you doing?” When he moved his head from between M.B.2’s legs she saw that her underwear was pulled aside exposing her vagina. A.W. described it as the most disgusting thing she had seen. She claimed that the accused said afterward to her that if she killed him he would not blame her.
11M.B.2 did not testify on the trial.
12A.W. testified she went to the police and spoke with a police officer about what she had seen, but she was told that before anything could be done she needed to bring M.B.2 in to provide a statement. M.B.2 refused to do so. She said that she went to the police twice and received the same direction.
13Notwithstanding what she said she had seen in relation to her daughter she continued her relationship with the accused - even after he had moved out because as she said the sex was very good.
M.B.1
14M.B.1 is now 23 years and mother of a 7 month old child. She is in school studying to become a nurse. She testified that when she was about 4 or 5 the accused started to live with her mother sister and brother at S[…] Street. She described the relationship between her mother, and the accused as being “on and off”. She recalled that during those early years her mother worked a lot and many times the accused would provide child care for them, such as ensuring they were fed and ready for school. She regarded him as a father figure.
15M.B.1 testified that he started to molest her when she was about 4 years old and lasted until she was 11. It started with him picking her up from her bed and taking her to her mother’s bed where he would remove her nightgown and “he would touch me, touch my vagina, he would make me perform oral sex on him, he would do it to me, he touched my vagina and make me touch his penis…” She described a particular instance when he tried to put his fingers inside her vagina, but was unable to do so. Then he told her to try to put her fingers inside herself. He told her to go to the washroom and to see how far her fingers would go inside and then to come back and show him.
16On other occasions when he would take her from her bed into her mother’s bed he would turn on pornographic videos on the television. He would rub her vagina, perform oral sex on her and have her masturbate him and perform oral sex on him.
17She testified that sometimes the accused would lay face up on her mother’s bed and have her lay face down on him and have her squeeze his erect penis with her legs.
18She recalled one instance in which her younger brother F.B. was also in the bedroom watching the pornographic video when he had her perform oral sex on him.
19At the S[…] Street address and E[…] Street, where they moved to in 2003, the accused would sit at the computer in the living room and while he used it he would have her sit between his legs under the computer table and perform oral sex on him.
20He would fondle and rub her vagina frequently through her clothing and on occasions underneath her clothing. She recalled one specific instance when he fondled her vagina while helping her to dress.
21On another occasion she was in the bathtub when he came in to the washroom naked and got into the bathtub. She could feel his penis touch her back. She told him to get out, which he did. She testified that afterwards he gave her $20. When he gave her money he told her not to tell her mother because he would get into trouble.
22There were times when he gave the other children, M.B.2 and her younger brother F. Jr., money to go to the store. During the time they were away he would sexually touch her.
23She testified that at some point, not liking what was happening to her she wrote a note to leave in her mother’s bedroom for her to find. However, her sister M.B.2 read the note. Tore it up and said she was a liar.
24The last incident occurred when she was 11. She had put a chocolate bar down her shirt between her breasts which the accused grabbed at touching her breasts. She told her mother which led to a confrontation with the accused in front of her mom, which he denied. She recalled him running off quickly to avoid the situation.
25A.W. recalled the chocolate bar circumstances somewhat differently. She testified that after M.B.1 told her what happened there was a physical altercation between her and the accused in which they pushed each other back and forth. A.W. knocked him down and was prepared to “stomp him” with her foot when M.B.1 told her not to do it. She did not and he left.
26M.B.1 confirmed that S.P, her cousin, who lived nearby would visit frequently. However, she knew nothing of any involvement between the accused and S.P until she spoke with her sometime when they were both in high school. M.B.1 did not want to disclose at that time as to what had been happening to her.
27The CAS became involved later when her mother A.W. contacted them because she had learned that the accused after their divorce was going to enter into relationship with another woman who had several daughters. A.W. testified that she called the CAS out of concern for the woman’s children. When a woman from the Children’s Aid Society approached M.B.1 to ask if her anything happened to her she denied there had been any sexual contact between herself and the accused.
28She had little contact with the accused for many years, but when he contacted her in 2013 via Facebook after she had had an accident, she became upset when he refused to acknowledge what he had done to her years before. She decided as a result to go to the police to report what had happened to her as a child.
S.P.
29S.P., 25 years is the daughter of P.T., A.W’s sister. S.P lived with her mother and sisters, C.1, C.2 and brother J. at R[…] Street, an apartment building next to S[…] Street where her similarly aged cousins, M.B.2 and M.B.1 lived with A.W..
30S.P testified that between the ages of 7 to 9 she would often go to her aunt’s house to play with her cousins. It was there that she first met the accused. She would go to play with her cousins and to use A.W.’s computer on occasion to print school assignments and to play games.
31She testified that on a number of occasions the accused had sexual contact with her. On more than 15 occasions the accused had her sit on his lap while he used the computer. He would massage her shoulders, her breast area and make his way down with his hands to her “private area”. She said that he would try to make it like a game, but in her view he was just trying to “feel me up”. He would touch her inner thighs and move his hands over her clothing to her vagina. She recalled that on one occasion when she was wearing jeans with holes in them that exposed parts of her thighs, he stuck his fingers through the holes to tickle her. He then began to caress her vagina through her underwear.
32On several occasions he took her hand in his and moved it to his genitals. When he sat behind her on his lap she could feel his penis, which she described it as being “stiff”.
33There were other incidences which caused S.P to be uncomfortable. She said that on at least one occasion the accused have been standing in the bedroom by the open door and as she walked by he removed the towel from around his waist exposing his penis to her.
34There were other occasions when S.P would be in the washroom sitting on the toilet when the accused would walk in and stand there watching until she finished. Then as she passed he would graze against her. On another occasion when he asked her to participate in a group photograph with soccer tournament trophies he asked her to put on a jersey, even though she was not a member of the soccer team to participate in the photograph. She went to the washroom to remove her shirt and to place on the jersey and he followed in and watched her change.
35S.P recalled an incident on their church day, which was Saturday in their faith, during the afternoon when she was walking to the bathroom in A.W.’s apartment, as she passed A.W.’s bedroom, the accused called out to her to come in. He was lying on the bed watching a pornographic video on the TV. He reached out and pulled her towards him. He asked her to lie down on top of him. She asked him repeatedly “why”? He said that she should not worry, it would feel good. As this exchange occurred, M.B.1 came into the room. He told M.B.1 to lie on top of him as he had requested S.P, which M.B.1 did. He then said to S.P, “why can’t you do it” and pulled her closer. She said she gave in and got on top of him. M.B.1 was on one side and she was on the other side with her private area rubbing against his upper thigh. M.B.1 was on the other side doing the same thing. She said that she could feel that his penis was stiff. He rubbed their backsides up and down and she heard him moan and groan.
36She was upset about what had happened and when she returned to her home she told her mother about the things that the accused was doing. Her mother called A.W.. Her mother was upset and after the telephone call told her she could not ever go back to A.W.’s place.
37Both A.W. and P.T. testified that a phone call had been made after S.P had disclosed to her mother that the accused had been touching her. A.W. recalled P.T. calling up and saying that the accused had S.P sitting on his lap and asked her how she could she have let him into their lives. A.W.’s response was that if P.T. wanted she should call the police. P.T. testified she decided not call the police, but forbade her children from going to A.W.’s residence and because A.W. said she loved the accused.
38As a result of that incident, the sisters grew apart and as a result have a strained relationship to this day. Similarly, S.P had little contact with M.B.1 and they too grew apart over the years.
39After she complained to her mother and she was forbade from attending to the cousins’ apartment she had no further contact with the accused until her grandfather’s funeral in 2008 when he was there. The only thing she said to him was for him not to talk to her and “don’t touch me”.
40Even though she and M.B.1 had grown apart, in November 2013 M.B.1 contacted her and told her that she was going to the police to report the accused for what he had done to her. M.B.1 wanted to know if it would be alright for her to mention S.P’s name to the police as well. S.P agreed.
G.W.
41G.W. testified he was not circumcised as corroborated by A.W., contrary to M.B.1’s assertion that he was circumcised. Further, he never had any sexual contact with M.B.2, M.B.1 or S.P. He never exposed himself to S.P as she described. Moreover, he never wore a towel in or out of the washroom, but rather he always wore his underwear. He never went into the washroom when S.P was in it.
42During the course of his relationship and marriage to A.W., he did not have any ongoing relationship with other women as A.W. alleged. He testified that A.W. was “insanely jealous” and accused him repeatedly of staying out late to be with other women. He worked hard and long hours and played soccer in the evenings.
43Mr. G.W. testified that he lived continuously with A.W. until he could stand it no more and left in December 2001. He did not live with her in an on or off basis as she described, rather he would return on occasion on a Friday evening to assist her with preparing food for their church where they celebrated the Sabbath on Saturday. He would stay over and accompany her and the children to church in the morning and for Bible study in the afternoon and evening. On Sundays he would take the children, other than M.B.1 to play soccer.
44He said that at the same time A.W. was working at F[…], a nursing home, he worked full time at S[…], a metal fabrication business. He got up in the mornings at 4:30 am in order to be at work by 6:00 or 6:30 a.m. and he worked through until late afternoon. In the evenings he practiced or played soccer. He was never left alone with the children during the week. He did not prepare breakfast or ready them for school, ever, as suggested.
45Mr. G.W. acknowledged that after he left at the end of 2001, he would return regularly in order to have sex with Ms. A.W.. He had been a faithful husband to Ms. A.W. and as a deacon in their church he had obligations and responsibilities which he fulfilled each Sabbath without fail.
46He acknowledged that there were situations where he used the computer in the house and when the girls, M.B.1 and S.P, wanted to use it he would have them stand on either side of his legs and ask them age appropriate math questions. The first one to get the correct answer would be given access to the computer. Further, he would give the children money to help teach them its value and the benefit of saving.
47Mr. G.W. testified as an example of Ms. A.W.’s insane jealousy, when he had met another woman, G., who had several daughters, she called her and made allegations about him. He believed she contacted the Children’s Aid Society as well. He was not involved in anything that followed thereafter.
48Mr. G.W. had a daughter, S. who arrived from Jamaica in 2001 to his surprise. Initially, she lived with A.W. and Mr. G.W. at S[…] Street, but then lived with his sister, also a resident in Toronto. After he left A.W., he would often take S. to visit the girls there. She would stay for periods of time.
49He lived at that time with his mother, but decided to rent an apartment where S. could live with him. He went to Ms. A.W.’s residence to get S., however she refused to leave. He was accosted by A.W., M.B.2 and M.B.1, and left. Later, he was contacted by the police and told not to attend to Ms. A.W.’s residence without written permission. He stopped all support for S., but did provide money when she made requests through his sister, but never directly to him.
50Ms. A.W. testified that one of the reasons she continued to have ongoing sexual relations with Mr. G.W. was to have him bring S. to her apartment where she felt she could protect her from him, because S. had no one else to do so. Mr. G.W. testified that in his view the reason S. stayed with Ms. A.W. was because he had too many rules and she had none.
51Ms. A.W. continued to have contact with Mr. G.W.. After her father died in 2008, she asked him to come to her home to help to prepare food for the funeral. Further, in 2011 after he heard that Ms. A.W. had had an accident he sent her money at her request. In addition, he had contact with M.B.1 in 2013 after he had learned that she had an accident and he wanted to forward scripture to her to help her.
52In substance, Mr. G.W. testified that he had been a good husband to A.W. and father to her children. None of the aberrant behaviour as described by A.W., M.B.2 or S.P occurred. In addition to testifying to the math quiz conducted to determine the girl’s access to the computer he acknowledged that there had been an occasion where he had asked S.P to put on a soccer jersey when he was taking photographs. In that instance, it had happened in the living room. She was quite small, so she simply put the oversized jersey over her clothing in the living room and not as she described in the washroom, where he watched her take her top off and put the soccer sweater on.
Similar Fact Application
53The accused is charged in a multi-count indictment with committing sexual offences against his two step-daughters, M.B.2 and M.B.1 and niece, S.P..
54Evidence of bad character is presumptively inadmissible. However, there is an exception to the rule where the Crown establishes on a balance of probabilities that the probative value of the evidence in relation to a particular issue outweighs its potential prejudice, thereby justifying its reception.
55In R. v. Handy, 2002 SCC 56, [2002] S.C.J. No. 57 at para 55 the Supreme Court of Canada set out the following steps to determine whether similar fact evidence is admissible:
(a) Identification of the live issue in question
(b) The similarities and differences between the facts charged and the similar fact evidence considering:
Proximity and time of the similar acts
The extent to which other acts are similar in detail to the charge conduct
Number of occurrences of the similar acts
Circumstances surrounding or relating to the similar acts
Any distinctive features unifying the incidences
Intervening events
Any other factor which could tend to support or rebut the underlying unity of the similar acts (see: Regina v. Handy, at para 82).
56The three principal criteria for considering admissibility is the identification of the live issue, the degree of similarity, and a relative cogency of connecting factors.
57In considering the admissibility of the evidence the Crown is required to demonstrate a case sufficiently strong to support the inferences it advances. In this instance, the Crown argues that an inference can be drawn based on the evidence relating to M.B.2, M.B.1 and S.P that the accused has a situation-specific propensity to seek out young females connected by family relationships with whom he is in a position of trust, and to negate a defence that the witnesses have fabricated the allegations of sexual molestation.
58Whether or not the acts alleged by the complainants occurred is a live issue on the trial. The Crown contends that the evidence if accepted shows that the accused has a situation specific propensity to sexually abuse female children with whom he stands as a person of trust.
Two of the victims are the accused’s step-daughters and the third the accused’s niece by marriage. They are of similar ages when the alleged assaults occurred - between the ages of approximately 6 to 12 years.
The alleged assaults M.B.2, M.B.1, and S.P take place in various locations all within the family homes at S[…] Street, and later at E[…] Street. The assaults occurred while M.B.2 and M.B.1’s mother was either at work or in another part of the apartment.
The similarities between M.B.1 and S.P’s evidence as to what occurred are that some of the abuse took place at the computer desk, A.W.’s bedroom and the washroom. Further, as between M.B.1 and the incident as described by A.W. involving M.B.2, the location was in the girls’ bedroom.
59With respect to the nature of the sexual abuse alleged there are numerous similarities as between the descriptions provided by M.B.1 and S.P:
The accused rubbed his penis against them while in bed with them on top of him.
The accused touched their vaginas without penetration.
The accused fondled them through her clothing.
The accused watched pornography while the complainants were present.
The accused exposed his penis to them, and
Sexual activity with the complainant took place in the presence of another child.
60There is a similarity in that the accused is alleged to have engaged in cunnilingus with M.B.1 and M.B.2.
61There are dis-similarities to consider as well. The alleged abuse took place in different locations within A.W.’s apartment. Only M.B.1 reported receiving money from the accused relative to the alleged abuse. Only M.B.1 said the accused told her that he would get into trouble if she told anyone, and only S.P said that the abuse was described by the accused as a game or fun activity.
62Notwithstanding the dis-similarities as between the witnesses’ description of the accused’s alleged conduct, I find that they are of little consequence in diminishing the probative value of the complainants’ evidence due to the numerous similarities. I am satisfied that the threshold for admissibility has been met. However, the assessment of the weight of the evidence will be made in the context of all of the other evidence tendered on the trial.
Credibility Assessment
63The central issue on the trial as noted above is one of credibility. I remind myself that to decide this issue, it is not a contest to determine who is more credible, rather it is whether the Crown has met its onus of proof beyond a reasonable doubt. The onus never shifts to the accused. The assessment of credibility involves an evaluation of both the honesty and the reliability of the witnesses' evidence.
64When making findings of credibility and to determine if the Crown has met its burden of proof, I must follow the analysis as set out in R. v. W. (D.), supra, at page 757. I must instruct myself on the following basis: first, if I believe the evidence that raises a defence, I must acquit; second, if I do not believe the evidence that raises a defence, but I am left in reasonable doubt by it, I must acquit; third, even if I am not left in doubt by evidence raising a defence, I must determine on the basis of the evidence I accept, whether I am convinced beyond a reasonable doubt by that evidence of the accused's guilt.
65Here, Defence counsel has argued that all of the Crown witnesses are unbelievable and unreliable because of a number of discrepancies and inconsistencies in their evidence.
66In terms of A.W., had she witnessed an assault on M.B.2 as she described, counsel submits her evidence that she went to the police two times and no police investigation was instituted is simply not credible. Had she reported that her husband had sexually interfered with her child an investigation would have occurred, yet there is no record of one. Further, after she says she comforted M.B.2 she never asked if anything like that had happened before, or asked the other children if anything involving her husband had happened to them.
67Later, Ms. A.W. did not take the opportunity to report what she saw in relation to M.B.2 or about S.P’s complaint about the accused’s interference of her to P.T. to the police or to the CAS after she placed a call purportedly out of concern for the accused’s new fiancé’s children. If what she says happened, and she knew of the accused’s misconduct with S.P as a result of P.T.’s telephone call and the chocolate bar incident involving the accused’s alleged groping M.B.1’s breasts, surely she would have ceased all contact with the accused, as well as reported him. Yet, she continued to have an ongoing sexual relationship with him after their divorce, at least until 2005.
68Counsel submitted the most significant discrepancy in M.B.1’s evidence that undermines her credibility is her evidence given earlier on the preliminary inquiry that in her recollection Mr. G.W.’s penis was circumcised, but on trial she was unsure. A.W.’s evidence and that of Mr. G.W. is that he was not circumcised. Counsel contends that had the accused exposed his penis to her and caused her to perform fellatio she would have known.
69Counsel submitted that M.B.1 gave a different version of the chocolate bar incident from A.W.’s version. According to M.B.1, after she had complained to her mother and the accused’s denial, he left. Whereas A.W. testified that there was a physical confrontation in which she knocked the accused to the floor and then he fled.
70Further, when M.B.1 met the Children’s Aid Society worker she made no report of any sexual misconduct by the accused. Indeed, she indicated nothing had happened to her.
71In terms of S.P., counsel submits that her description of the telephone call made by her mother P.T. to A.W., in which she only referred to the accused having S.P sit on her lap is contrary to her evidence that she told her mother everything that occurred. P.T. indicated that all she could remember was the comment about the accused having S.P sit on her lap, and he fondled her breasts and vaginal area. That is all she remembers because at the time she was pregnant, she had high blood pressure and she was in a state of shock at what her daughter told her.
72Counsel further submits that S.P described an incident in A.W.’s bedroom with the accused that also involved M.B.1, yet M.B.1 did not testify as to any event in which S.P was present.
73S.P in response to that omission in M.B.1’s description of events said that when she spoke with M.B.1 years later about the accused’s involvement with her and she told her of her about that occasion when M.B.1 was there M.B.1 seemed genuinely surprised.
74In terms of the other events described by S.P, counsel submitted that S.P must just have been confused in terms of the computer event and there is no evidence that the accused intentionally exposed himself in removing a towel as she explained.
75Counsel also suggests that S.P’s evidence should be discounted because she described herself as now being an advocate for the prevention of such abuse to others as one of the reasons she agreed to come forward to explain what had happened to her when M.B.1 contacted her in 2013.
76Counsel submitted that in addition there was ample opportunity at earlier times for the complainants to have disclosed what had happened. In R. v. D.D., 2000 SCC 43, [2000] S.C.J. No. 44, the court observed at para. 65:
A trial judge should recognize and so instruct a jury that there is no inviolable rule on how people who are the victims of trauma like a sexual assault will behave. Some will make an immediate complaint, some will delay in disclosing the abuse, while some will never disclose the abuse. Reasons for delay are many and at least include embarrassment, fear, guilt or a lack of understanding and knowledge. In assessing the credibility of a complainant, the timing of the complaint is simply one circumstance to consider in the factual mosaic of a particular case. A delay in disclosure, standing alone, will never give rise to an adverse inference against the credibility of the complainant.
77In this instance, it must be kept in mind that M.B.1 was a child and it was not until her adulthood that she chose to disclose. She had attempted to disclose to her mother the details in a note when she was a child however, she had been called a liar by her sister and as a result refrained from doing so again. She explained that she did not speak to the CAS lady because she had been approached by the woman whom she did not know and at that point the abuse had ceased. She felt she wanted no further involvement and had no contact with the accused.
78She did disclose to her mother the molestation when she was about 16 years. She explained that at that time she fully understood that it had not been her fault and that she had not caused it. She felt safe from it happening again and that it was safe to tell her mother what had happened.
79She decided to speak to the police in 2013 only after the accused started to messenger her via Facebook and he refused to acknowledge what had happened or express any remorse. She was married by then with a child and felt it necessary to disclose her childhood abuse.
80With respect to S.P, she testified that she did disclose to her mother in and around the time the acts had occurred, as corroborated by P.T. and A.W. by the telephone call about her complaint that led to their estrangement. Further, she disclosed to the police after she had been contacted by M.B.1 who declared her intention to do so.
81Finally, counsel argues that the court should reject the evidence of the complainants, M.B.1 and S.P on the basis there was opportunity over the years for collusion. S.P testified that when both she and M.B.1 were in high school they talked about what had happened. The next time they talked was many years later in 2013 when M.B.1 contacted her to see whether she would talk to the police about what happened involving the accused.
82The opportunity for collusion exists in any situation that involves multiple complainants particularly in a family situation. However, evidence of mere opportunity for collusion is not sufficient to prevent consideration of the evidence with respect to the similar nature of the complaints. In this situation, while there was opportunity I accept the evidence that the families of A.W. and P.T., more specifically S.P and M.B.1 grew apart. I find that there is no evidence of collusion. Moreover, when there was an acknowledged discussion between the cousins in high school in which S.P told M.B.1 what she recalled happening to her and M.B.1 in A.W.’s bedroom with the accused, M.B.1 did not recall any incident when the accused was interfering with her that involved S.P. Further, I accept S.P’s evidence that when she talked about it with M.B.1 she appeared genuinely surprised. It is important to note that M.B.1 did not incorporate the same description of events as testified to by S.P.
83Counsel submitted that M.B.1’s evidence should be rejected because often in cross-examination she would respond that she did not know the answer. It must be borne in mind that she was between the ages of 4 to 11. Although she had fragmented recall of events that in and of itself does not detract from her credibility. I find that her responses were in keeping with her having been a child at the time of the events. However, there were certain instances in which she was able to give specifics based on her recollection. Where she was hesitant or unknowing it was with respect to the number of incidences that had transpired over many years, particularly as to “peripheral matters such as time”.
84In listening to M.B.1’s evidence, I noted that she expressed no anger or malice towards the accused – as she said she was at peace with herself and just wanted to move forward. Similarly, with respect to S.P there was no indication of any animus toward the accused other than for the sexual transgressions she said he committed when she was a child. The accused had long been removed from both their lives. There was nothing else in their relationship to suggest any basis for malice or animus.
85The most significant inconsistency with respect to M.B.1’s evidence is with respect to her observation as to the accused’s penis. At the preliminary inquiry, as noted earlier she testified that she had a distinct recollection that he was circumcised. However, her mother and the accused had testified that he was not circumcised. At trial, she indicated that she was uncertain. I bear in mind that M.B.1 was testifying to events which occurred many years ago in her life when she was a child. In her description of events there were obvious times when his penis would have been exposed such as during instances of fellatio or masturbation. I take into consideration that the difference between a stimulated circumcised or uncircumcised penis may have been less obvious to a child than to an adult.
86In my view, the other concerns raised by counsel, such as the difference between her evidence and A.W.’s as to the confrontation with the accused after the chocolate bar incident do not detract from her credibility. I also accept that when she was approached by an unknown person from the CAS her denial of anything happening to her it was in keeping with the circumstances of her life at the time, a teenager with no further contact with the accused and wanting no involvement.
87In so far as my assessment of Ms. A.W. credibility, it is difficult to reconcile Ms. A.W.’s continued relationship with Mr. G.W., with her knowledge of his observed conduct in relation to M.B.2. However, I found she was candid and forthright in admitting she continued to see him after their divorce for her own sexual gratification, and in belief she could keep him away from her daughters. Her shame and guilt was palpable as she testified.
88In considering the evidence of Mr. G.W., I find that in his denial of any misconduct he tried to minimize any opportunity to be alone with the children, such that it undermined his credibility. He said that he worked long hours and was out evenings with soccer practice or games. He never spent any time alone with the children when he lived at S[…] Street. On weekends he would help A.W. Friday nights to prepare meals for Church the next day. On Saturdays mornings he would take them to church and the rest of the day he devoted to bible study. On Sundays he would take the children, other than M.B.1, to soccer.
89He maintained he had no time alone with the children. However, He acknowledged in cross-examination that during that first year and a half living with A.W., she would work every other weekend and on occasion she would be called in on the other weekends. There was ample opportunity for him to have been alone with the children.
90Even though he said that A.W. was insanely jealous, which led to many arguments it did not inhibit his long term sexual relationship with her, or his decision to let S., his daughter stay at various times with A.W., and later to leave her there to reside.
91I must evaluate his evidence in the context of all the evidence adduced at trial. In R. v. Hull, 2006 CanLII 26572 (ON CA), [2006] O.J. No. 3177 at para 5 and 6, the Ontario Court of Appeal stated in the context of an accused denying the allegations of the complainant:
W. (D.) and other authorities prohibit triers of fact from treating the standard of proof as a credibility contest. Put another way, they prohibit a trier of fact from concluding that the standard of proof has been met simply because the trier of fact prefers the evidence of Crown witnesses to that of defence witnesses. However, such authorities do not prohibit a trier of fact from assessing an accused’s testimony in light of the whole evidence, including the testimony of the complainant, and in doing so comparing the evidence of the witnesses. On the contrary, triers of fact have a positive duty to carry out such an assessment recognizing that one possible outcome of the assessment is that the trier of fact may be left with a reasonable doubt concerning the guilt of the accused.
92In considering M.B.1’s evidence I found her to be an honest and credible witness. She did not exaggerate or embellish her evidence. When she was uncertain or she did not know she said so. Her embarrassment and sense of shame in describing events was palpable at times as she testified.
93Similarly, with respect to S.P, I found her to have been extremely credible. She was truthful and reliable. Notwithstanding the difference in the description of the content of the call made to A.W. by her mother, I accept as corroborated by the evidence of A.W., S.P and P.T. that indeed the call was made because of S.P’s compliant about the accused interfering with her. It was a call that led to the estrangement of two sisters to this day.
94The accused`s evidence does not leave me in a state of reasonable doubt. In considering the whole of the evidence, the similarities as between the evidence of M.B.1 and S.P as to his misconduct, and that in relation to M.B.2 as testified to by A.W. I am satisfied beyond a reasonable doubt that G.W. sexually assaulted and interfered with M.B.1, M.B.2 and S.P. at various times described when they were children.
95In the result, I find G.W. guilty on the following counts:
Count 1 invitation to sexual touching, M.B.1,
Count 2 sexual interference of M.B.1,
Count 3 sexual assault of M.B.1,
Count 4 invitation to sexual touching, M.B.1,
Count 5 sexual interference of S.P.,
Count 6 invitation to sexual touching, S.P.,
Count 7 sexual assault of S.P.,
Count 8 sexual interference of S.P.,
Count 10 sexual interference of M.B.2, and
Count 11, sexual assault of M.B.2
96There was no evidence that G.W. exposed his genitals to M.B.2, I find him not guilty on Counts 9.
A.J. O’Marra J.
Delivered Orally: November 18, 2016
CITATION: R. v. G.W., 2016 ONSC 5946
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
G.W.
Defendant
REASONS FOR JUDGMENT
A.J. O’Marra J.
Delivered Orally: November 18, 2016