Court File and Parties

COURT FILE NO.: DATE: 2017/03/01

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN Susan Bruce, for the Crown

• and -

C. L. Renée E. M. Gregor, for the accused

HEARD: January 30 to February 3 and February 6 to February 10, 2017

Publication Restriction Notice

An order restricting publication of any information that could identify the alleged victims in any way has been made under ss. 486.4 of the Criminal Code.

Ellies J.

Reasons for Decision

Overview

[1] C. L. (to whom I will refer in these reasons as “the accused”) was charged with sexual interference and invitation to sexual touching contrary to ss.151(a) and 152(a), respectively, of the Criminal Code. The allegations involved four different complainants. At the close of its case, the Crown conceded that the count involving one of the complainants was not made out. Accordingly, a finding of not guilty was entered with respect to that count.

[2] At the conclusion of the trial, I acquitted the accused of the remaining six counts for reasons which I summarized orally at that time. I indicated that I would provide more detailed written reasons later. These are those reasons.

Background

[3] The accused is the biological uncle of two of the three complainants, namely D. D. and G. L.-D. D. D. and G. L.-D. are the daughters of the accused’s older sister, A. L. The accused and A. L. were raised in different households. They had only limited contact until the accused was about 17 or 18 years old. At that time, the accused discovered that his sister lived in the Sudbury area and the two of them made contact. From that point forward, there was a slow, but steady, growth in their relationship.

[4] The accused is now 31 years old.

[5] D. D. and G. L.-D. are A. L.’s children from her first marriage. A. L. and her husband, R. D., also had a son, D. Because the complainant, D. D., is in the process of changing her name, I will refer to her in these reasons as “T. D.”. In that way, there will be no confusion if I refer to her brother as “D. D.”.

[6] A. L. and R. D. separated when the three children were quite young. The children went to live with their father in Alberta, while A. L. remained in Ontario. A third complainant, D. G. is the biological daughter of A. L.’s second husband, T. R., and his previous partner. At all times material to this case, D. G. would spend every second weekend, as well as alternating Christmas holidays and March breaks, with her father and A. L. She could spend as long as she wanted with them in the summer.

[7] Beginning in or about the year 2004, the accused began living with A. L. and T. R. In the spring of 2011, they moved to a house in Hanmer, in an area known as “the Radar Base”. I will refer to this residence in these reasons as the “Radar Base residence”.

[8] In July of 2011, T. D. and G. L.-D. returned from Alberta to begin living with A. L. The accused and his girlfriend at the time continued to live at the Radar Base residence for about one to two and one-half months after the children arrived.

[9] A. L., T. R., and the children remained at the Radar Base residence until about 2013, when they moved to a residence on Arvo Avenue, in Sudbury. They remained there for two or three months before moving again in 2013, to a home on Laforest Avenue. Finally, in early 2014, the family moved to a residence on Frood Road.

[10] The accused maintained contact with his sister and her family after he stopped living with them. In addition to visiting them, he would babysit for his sister and her husband when they were at work on occasion. According to A. L., the accused never visited while they lived at the home on Laforest Avenue. None of the offences are alleged to have occurred there.

[11] The accused and his sister had a falling out in the spring of 2014, following which they did not speak. The present allegations emerged in December of that year. I will deal in more detail with how they emerged as I outline the allegations of each of the four complainants, to which I now turn.

The Allegations

[12] The Crown in this case related each count in the indictment to a specific event rather than following the amorphous approach taken in so many prosecutions, in which the Crown takes the position that any one of a number of separate incidents could lead to a conviction on any one of a number of counts. The Crown is to be commended for this common sense, fair approach.

Count #1 (sexual interference)

[13] Four of the most serious counts on the indictment relate to T. D. All four are alleged to have occurred while the family lived at the Radar Base residence.

[14] Count #1 involves an allegation that the accused touched T. D. in the vaginal area when she was under the age of 16.

[15] T. D. was born in 1999. She testified that, one summer afternoon when she was 12 years old, the accused asked her to go for a car ride in his four-door grey Volkswagen car. She said that she sat in the front passenger seat. While they were driving down a back road somewhere, the accused asked T. D. if she wanted to learn a “life lesson”. When she said “okay”, he asked her to show him her “couchie”. She said “no” several times, but eventually she pulled her shorts and her underwear down.

[16] T. D. testified that the accused reached with his hand to touch her vagina after she pulled her shorts and underwear down, but she pushed his hand away. He tried again, and she did the same thing. He tried a third time, and succeeded.

[17] T. D. testified that the accused started rubbing her vagina with his fingers. She testified that the rubbing lasted about five minutes and ended when she told him they had to go back for supper.

Count #2 (sexual interference)

[18] This count involves another allegation that the accused touched T. D.’s vagina.

[19] T. D. testified that when she was 12 or 13 years old, she was playing a game of hide and seek while the accused was babysitting. Her brother, D. D., was the seeker. T. D. testified that she hid in D. D.’s closet. As she was hiding, the accused came into the closet. He asked T. D. if she wanted “a rubbing”. She said “no”, but he did it anyway. He began to rub her vaginal area over top of her shorts. He used both a circular and an up and down motion. The touching lasted about five minutes. It ended when T. D. heard D. D. coming and jumped out of the closet to let him find her.

Count #3 (sexual invitation)

[20] This incident involves an allegation of oral sex.

[21] T. D. testified that when she was 12 or 13 years old, she was in her room one evening, talking to a friend on Facebook. The accused came into the room and asked T. D. if she wanted to come upstairs. She agreed to do so and joined him on the couch in the living room. The accused had A. L.’s laptop. He put still pictures of naked women touching themselves on the screen, which were apparently obtained from the Internet. When T. D. pointed out to the accused that he was using her mother’s laptop, he told her that he would simply delete the browsing history. T. D. said that the accused then pulled out his “dick” and she looked away. He told her she did not need to be afraid and he asked her to suck on it. She testified that the accused’s penis was erect. She said “no” multiple times, but the accused continued to ask her to suck on his penis. Eventually, T. D., she did it.

[22] T. D. testified that she sucked on the accused’s penis for about 30 seconds. The incident ended when T. D. heard her parents pulling into the driveway and she ran back downstairs. According to T. D., the accused never ejaculated.

Count #4 (sexual interference)

[23] This count involves an allegation that the accused touched T. D.’s vagina with his penis.

[24] T. D. testified that when she was about 12 or 13 years old, she and her step-sister, D. G., were in her bedroom. The accused came downstairs and asked them if they wanted to play a game. They said “sure” because they were bored. The accused suggested that they play “truth and dare”. [1] When they agreed, the accused dared T. D. to make out with him. Although she refused at first, T. D. eventually kissed the accused on the lips.

[25] D. G. then left the room to go upstairs. As T. D. and the accused were starting to do likewise, the accused pulled T. D.’s shorts down and tried to stuff his penis “into her vaginal area” while they were standing in the doorway.

[26] The incident lasted a few minutes and ended when T. D. heard her brother coming and pushed the accused away.

Count #5 (sexual invitation)

[27] This is the count that was dismissed at the close of the Crown’s case. It involves an allegation that the accused invited G. L.-D to touch his body while she was under the age of 16. Although it was dismissed, I will set out the gist of G. L.-D.’s evidence because it formed part of a similar fact application brought by the Crown, to which I will refer below.

[28] G. L.-D. was born in 1998. She testified that she went on three, perhaps four, car rides alone with the accused while they lived in the Radar Base residence. One of them took place in 2011, when G. L.-D. was 13 years old. She testified that the accused told her during the ride that, when she was eight years old, she came into his room naked in the middle of the night and got him to touch her. G. L.-D. testified that no such thing ever happened.

[29] G. L.-D. testified that, in that same year, she took another car ride with the accused. She said that the accused was going to help a friend at some sort of a campground located around Shopper’s Drug Mart, in Hanmer. He asked her if she wanted to play the game “naughty or nice”. G. L.-D. picked “nice”. According to G. L.-D. the accused then said “Either show me your chest or let me touch you”. G. L.-D. said nothing in reply. Two to three minutes later, the accused said he was only joking about it. They arrived at the Radar Base residence about ten minutes later.

[30] This count was dismissed because, when G. L.-D. was asked by the Crown, she testified that she could not remember if the accused said anything about her doing anything to him.

Count #6 (sexual interference)

[31] This count involves an allegation that the accused touched the vaginal area of D. G. when she was under the age of 16.

[32] D. G. was born in 2000. She testified that, while her step-sisters were living at the house on Arvo Avenue, the accused came to visit one summer night while they were watching a movie in the living room. Present in the living room with D. G. were T. D., G. L.-D., and D. D. D. G. said that, during the movie, the accused asked T. D. to go and spend some time with him alone. They left the living room and returned a while later. When they returned, the accused sat down beside D. G. on the couch. He poked her in the arm with his index finger and asked her to go spend some time with him alone, as he had done with T. D. D. G. said “no”, because she wanted to finish the movie. When the movie ended, she and the accused went into the bedroom she occupied with T. D. when she was visiting the residence.

[33] The accused sat close to D. G. on the bed. Without saying anything, he touched her vaginal area in a circular motion. D. G. told the accused to stop, but he did not. She told him to stop again and she moved his hand away. D. G. left the room and the accused followed her out. The two of them rejoined the others in the living room, who were watching a second movie by that time.

Count #7 (sexual invitation)

[34] The final count in the indictment is the only one in which the complainant is not related in some way to the accused. It involves an allegation that the accused invited E. L., a friend of T. D.’s who was also under the age of 16, to suck his penis.

[35] E. L. was born in 1998. She testified that she slept over at T. D.’s on three occasions. One of them, perhaps the last, was in 2014. E. L. was to shadow T. D. at school the following day. E. L.’s mother dropped her off at T. D.’s house in the evening. The accused was there. E. L. went with T. D. to T. D.’s bedroom, where she put her things. The two of them then went downstairs to watch television. As they were watching television, the accused asked them if they wanted to go for a car ride. T. D. asked her mother, who said that they were allowed to go.

[36] E. L. testified that T. D. sat in the front seat and she sat behind her. According to E. L., they drove “everywhere”, passing through Val Caron, Hanmer and Chelmsford. During the ride, they stopped at two places. The first was a Tim Horton’s, where the accused told the girls that they could buy a drink. They did so. When they returned, at the direction of the accused, E. L. sat in the front seat and T. D. sat in the back, behind her.

[37] The second place they stopped was at a strip mall. The accused parked the car in the parking lot in the mall and told T. D. to go get something in one of the stores. Both E. L. and T. D. told the accused that the stores were closed, but he insisted that he saw lights on and that the stores were open. However, no one got out of the car.

[38] E. L. said that the accused kept asking her “sexual questions”. He then asked her if she would suck “his dick”. She said that she would not do that. The accused then turned to T. D. in the back seat and asked her, “Will she actually do it?” The accused then asked E. L., “How can I trust you if you’re not going to suck it?” E. L. responded that he could just trust her. He then asked if he could grab “her boobs”, to which she answered “no”.

[39] E. L. testified that there was then a pause, following which the accused slapped his hands on his thighs. He asked E. L., “Why?” She responded, “Because I’m not like that. I would not do that. I would not let you do that to me, either”. E. L. said that the accused then got upset and drove off.

[40] They drove to T. D.’s house without stopping. It was dark by the time they got there. T. D.’s mom, step-father (T. R.), and G. L.-D. were at the residence. The girls went into the house first and went up to T. D.’s room. The accused later came upstairs to say goodnight to the girls and everyone then went to bed.

The Disclosure

[41] None of the allegations came to light until the end of December, 2014. A. L. and T. R. had separated the month before. A. L. moved into a woman’s shelter. G. L.-D. and D. D. went to live with their biological father, R. D. T. D. was supposed to stay with her mother. However, A. L. testified that T. D. refused to stay with her at the shelter. Instead, she stayed with H. H., her boyfriend at the time. H. H. was living with a roommate, Dallas (last name unknown).

[42] A. L. testified that sometime between Christmas, 2014, and New Year’s, there was an “impromptu” meeting between T. D., H. H., and H. H.’s mother and step-father. The meeting took place outside of the apartment building of a friend of A. L.’s, where A. L. was staying from time-to-time.

[43] A. L. and H. H.’s mother had already had a discussion in which they agreed that T. D. and H. H. were spending too much time together. During the meeting outside of the apartment building, they expressed their concerns to T. D., whom A. L. said “didn’t like it”, but apparently agreed.

[44] According to A. L., about 20 minutes later, while the group was still outside the building, “all of this came out”.

[45] A. L. recommended to T. D. that she call the police and T. D. did, using H. H.’s mother’s cell phone. According to A. L., they went to speak to the police the next day. The police statements used during the trial show that day to have been December 27, 2014. The other three complainants attended at the police station to give statements over the course of the next two days, at the request of T. R.

The Similar Fact Application

[46] At the close of its case, the Crown brought an application to have the evidence from each count, including the count involving G. L.-D., apply in support of the other counts.

[47] The accused resisted the application on two grounds: (1) that the evidence was not similar enough; and (2) that the Crown had not disproven collusion amongst the complainants.

[48] I allowed the application in part. As I summarized orally at the time, the issue to which the evidence relates is whether the actus reus occurred. The question is whether the similarities in the evidence of each count made it unlikely that the complainant on another count was either lying or mistaken about what happened to her, absent collusion or contamination of the similar fact complainant’s evidence: R. v. Thomas, 2004 ONCA 33987, 190 C.C.C. (3d) 31 (Ont. C.A.), at para. 54, per Rosenberg J. A. I will refer to both collusion and contamination in these reasons as “tainting”.

[49] My task in the similar fact application brought at the close of the Crown’s case is to determine only the threshold question of admissibility. However, that question involves some weighing of the evidence because its admissibility is bound up with, and dependent upon, its probative value: R. v. Handy, [2002] 2 S.C.R. 208, 2002 SCC 56, at para. 134.

[50] As I stated orally, in deciding the similar fact application, it is important to bear in mind the fact that such evidence is presumptively inadmissible and that, where there is an air of reality to the possibility of tainting, the Crown had the onus of disproving the same on a balance of probabilities: Handy, at paras. 55 and 112.

[51] In this case, there are a number of similarities in the evidence of the complainants. Not all are present in each of the complainants’ evidence, although some are. The similarities consist of the following:

(1) The time period of the allegedly similar acts. All of the alleged offences took place within a period of less than three and one-half years, between early June, 2011, and mid-October, 2014. (2) The sex of the complainants. All of the complainants in this case are female. (3) The ages of the complainants. All of the complainants were in their late childhood or early teen years at the time of the alleged events. The youngest of the complainants was 12. The oldest of the complainants is E. L., at 15 years of age. (4) The relationships of the complainants to the accused. T. D., D. G. and G. L.-D. were all related in some way to the accused. The accused made his connection with E. L. through T. D. (5) The use of a car. The allegations of G. L.-D., E. L. and some of those made by T. D. all involve the use of the accused’s car. (6) The use of sexualized talk. Both E. L. and G. L.-D. testified that the invitations to sexual touching were preceded by sexualized talk. In the case of E. L., the questions were about her sex life. In the case of G. L.-D. the accused told her about what she had asked him to do when she was eight. (7) The use of “on the spot” questions. Three of the complainants testified that the accused’s invitation to sexual touching arose with very little preamble. In the case of T. D., he asked to see her “couchie”. In the case of G. L.-D., he asked to see her chest or let him touch her. In the case of E. L., he asked her if she would suck his penis. (8) The use of games. Both T. D. and G. L.-D. testified that the invitations to sexual touching and/or the sexual interference was undertaken in the context of a game proposed by the accused. (9) The manner in which the accused first touched the complainant. Both T. D. and D. G. testified that the accused first touched them by rubbing his fingers on the outside of their vaginas.

[52] In my view, as a result of these similarities, the probative value of the evidence referred to above exceeds its potential prejudicial effect, especially in a judge alone trial: R. v. B. (T.), 2009 ONCA 177, 95 O.R. (3d) 21 (Ont. C.A.).

[53] However, I am not persuaded on a balance of probabilities that the evidence of T. D. and E. L. is not tainted. T. D. testified that she and E. L. did not discuss what had happened to them when they returned home from the car ride with the accused. She testified that they simply “hung out”. She testified that neither she nor E. L. ever talked to one another about what had happened to them at the hands of the accused.

[54] T. D.’s evidence on this point was strongly contradicted by the evidence of E. L. E. L. testified that the two complainants did discuss what happened in the car ride with the accused on the very night that it occurred. She testified that T. D. asked her if they should tell someone and that E. L. said they should just wait. She also testified that T. D. told her that the accused had tried to have sex with her previously. To quote E. L., she testified that T. D. said to her, “You know the car ride we were just on? I had worse.”

[55] E. L. testified that the communication between the two witnesses continued after the sleepover at T. D.’s house. They continued to text one another over the issue of whether they should tell someone what occurred. After T. D. told her mother and the others gathered in front of the apartment building on December 26, 2014 about what had allegedly happened to her, she texted E. L. to advise her of that fact. E. L. then provided a statement to the police.

[56] It is tempting to conclude that the discussions between T. D. and E. L. go beyond mere contamination, to collusion. E. L. was confronted during cross-examination by her testimony at the preliminary inquiry. At the preliminary inquiry, she testified that the two witnesses had never had any conversation about what happened during the car ride with the accused, including via Facebook. These are significant contradictions that leave me wondering how E. L.’s evidence about her communication with T. D. at the preliminary inquiry could have been so different from her evidence at trial.

[57] However, I do not believe that the witnesses colluded. Having watched E. L. testify, I believe that her memory has been affected by the discussions she had with T. D. E. L. testified that she suffers from fetal alcohol spectrum disorder. She indicated that, as a result, she suffers from short-term memory loss and a learning disability. Her learning disability was quite evident during the trial. For example, she testified as to the year in which she went for a car ride with the accused, but could not properly calculate her age at that time. When she was asked how long she had been in the Sudbury area, she testified that she moved there when she was only a couple of months old, but could not calculate how long she had been here given her present age.

[58] E. L. testified that she has “flashbacks” concerning the car ride she took with the accused which she testified were like a “daydream”. While I would require expert evidence to know the effect of these daydreams on E. L.’s condition, her admission that she suffers short-term memory loss, combined with her evidence that she has discussed with T. D. not only what happened to her but also what happened to T. D. makes it impossible for me to conclude on a balance of probabilities that her evidence has not been tainted. For that reason, I ruled that the evidence on the counts involving these two complainants was not admissible as similar fact evidence.

[59] With respect to the evidence of T. D. and G. L.-D., I find that there is an air of reality to the possibility of tainting. During her examination-in-chief, G. L.-D. testified that she never told T. D. about what the accused had said to her. She testified that her only conversation with T. D. about what happened to T. D. was after T. D. had gone to the police. However, during cross-examination, she was confronted with her evidence at the preliminary inquiry and agreed that T. D. “opened up a little bit” to her in the summer of 2014. At the preliminary inquiry, she testified that she did tell T. D. a little bit about what had happened to her, to tell her that she had been through the same thing. However, she also testified at the preliminary inquiry that she did not tell her that it was with the accused.

[60] Despite the evidence of G. L.-D. at the preliminary inquiry, I am satisfied that there is no tainting of the evidence. At the preliminary inquiry, G. L.-D. went on to say that she told T. D. that she had been through the same thing as a result of a bad relationship that she had had with an ex-boyfriend. This is supported by the trial testimony of A. L., who said that T. D. told her only that “something” had happened to G. L.-D., but did not say that it happened at the hands of the accused. I am satisfied on a balance of probabilities that there is no tainting of the evidence between these two complainants.

[61] With respect to the evidence of D. G., there is no air of reality to the possibility of tainting as between her evidence and that of the other complainants. The only evidence in this respect is the evidence that T. R., D. G.’s father, told her that “something” happened to T. D. when he asked D. G. to give a statement to the police. That is insufficient to give an air of reality to the possibility that D. G.’s evidence has been tainted by that of T. D.

[62] For these reasons, I ruled that G. L.-D.’s evidence of what occurred to her was admissible as similar fact evidence on counts #1, #4, and #7. I found that D. G.’s evidence on count #6 was admissible on counts #1 and #2. Lastly, I held that T. D.’s evidence on counts #1 and #2 was admissible on count #6.

[63] I will address the issue of the weight to be given to this evidence in my conclusion.

The Accused’s Evidence

[64] The accused testified. He denied that any sexual touching or invitation to sexual touching ever occurred with any of the complainants.

[65] Of course, if, in the context of all of the evidence, I believe the accused, he must be acquitted. Because of the burden of proof beyond a reasonable doubt in criminal cases, the accused must be acquitted even where I do not believe him, but I am left with a reasonable doubt by his evidence. Even if I am not left with a reasonable doubt by the evidence of the accused, he must still be acquitted if I am left with a reasonable doubt by the rest of the evidence: R. v. W. (D.), 1991 SCC 93, [1991] 1 S.C.R. 742.

[66] I do not believe all of the accused’s evidence. He testified in astounding detail with respect to all of the events alleged by the complainants. I will give two examples here. I will give a third, later.

[67] When the accused was asked about rides he had given to the children, he testified that the first person he drove was T. R.’s daughter, J. R. Although this would have happened while the accused was living in Hagar between the spring of 2010 and the spring of 2011, the accused purported to remember that J. R. was the first because she wanted to get an ice cream cone. He testified that D. D. was the next child that he took for a ride and that he did so because D. D. had won a foot race. He testified that, although he could not remember who the third child was, he did take T. D. for two or three car rides. He was very deliberate in his testimony that the first time he took T. D. was during a “random visit” to T. D.’s family. He testified that A. L. had given T. D. $5.00 for taking out the garbage without being asked and that T. D. wanted to spend it. He said that, as he was leaving the residence, A. L. came out of the house and asked the accused if he would mind taking T. D. to the store. As a result, he drove her to the Esso gas station, in Hanmer. The accused even purported to remember that T. D. sat in the rear passenger seat, although no explanation was given as to why she could not sit beside him in the front passenger seat, as would normally happen with a person of her age.

[68] The accused demonstrated the same incredible feats of memory when he testified about the occasions upon which he babysat the children. For example, he said that he remembered a time in May, 2012, when he began to babysit at 4 p.m. His sister had switched shifts with a co-worker as a result of which she finished at 8:30 p.m. rather than supper time, thereby creating the need for a babysitter. He testified that D. G., D. D., G. L.-D., “Patrick” from next door, and Patrick’s brother, “Savanna” were all there.

[69] Judges are entitled to bring their life experiences to bear on the fact-finding process. In my experience, it is not normal to remember this level of detail so many years after the fact.

[70] In her closing argument, defence counsel sought to explain the accused’s amazing memory as being due, at least in part, to painstaking preparation on his part. However, there was no evidence called about how the accused prepared himself to testify. Even if there had been such evidence, for example that he spent many hours trying to recall events and meticulously checking his recollection against extrinsic evidence such as work records and gas receipts, I would not be persuaded. These events occurred a number of years before the accused was charged. At the time they occurred, there would be no reason to make any of the events more important than any other daily occurrence unless, of course, the complainants were telling the truth. This is especially true where, as the accused testified, he was suffering from an ever-worsening addiction to opioid drugs. The accused testified that he began using OxyContin at about age 16. He progressed to mixing prescription drugs such as OxyContin and Percocet and moved from there to cocaine. Later, he added “meth” (which I take to mean methamphetamine) to the mix and began to smoke “crack” (which I take to mean a type of cocaine). He also admitted to using heroin and, in his late 20’s, fentanyl, which he used hourly. This sort of drug abuse continued until the end of June, 2016, when the accused began a methadone program.

[71] Counsel for the accused submitted that the court cannot take judicial notice of the effect of these drugs on the accused’s ability to perceive and recall events. She submitted that expert evidence would be necessary on the subject. I agree. However, at one point during the accused’s evidence, defence counsel advised the court that the accused was taking an abnormally long period of time to answer questions because of the effect of drug abuse on his memory. In the absence of the expert evidence referred to by defence counsel, I do not accept that the effect of this drug use is limited only to the accused’s ability to recall or recount the events, and not also to his ability to perceive them.

[72] Moreover, if the accused’s uncanny memory was due to painstaking preparation, one would have expected that his lawyer would know what he was going to say and would have questioned witnesses such as A. L. about things such as how T. D. first came to take a ride with the accused or how the accused came to babysit the children. This was not done.

[73] Nonetheless, as I will explain when I deal with the charges involving E. L., there are aspects of the accused’s evidence that I do accept or that at least leave me with a reasonable doubt. I will now turn to my analysis of the evidence of each of the counts.

Analysis

Count #1 (the “life lesson” allegation)

[74] One of the difficulties I have with this count is the same one that I have with all of the counts involving T. D., namely the way in which the complaint first emerged. As I indicated, A. L. testified that “all of this” came out within 20 minutes of T. D. being confronted by A. L. and members of H. H.’s family about the amount of time that they were spending together. She testified that, prior to that moment, she had no suspicion that anything improper was happening.

[75] I am left wondering if T. D. thought she might be given some latitude in the time she spent with her boyfriend if both families thought she might need his support. Certainly, it seems odd that she would chose that moment to make the disclosure to her mother. As well, the evidence indicates that T. D. did get to spend time with H. H. after the confrontation outside of the apartment building. She admitted during cross-examination that she ended up going back to live at his place afterwards.

[76] If this was the only problem I had with T. D.’s evidence, it might not cause me to reasonably doubt her testimony. After all, she did tell certain people that she had been abused by the accused before the meeting outside of the apartment building. However, it is not the only problem. The statements T. D. made prior to that meeting contradicted her trial evidence in material ways.

[77] With respect to this count, in particular, T. D.’s former best friend, E. G., testified that T. D. told her in drama class in grade 10 that the car in which she was abused by the accused had “weapon-type” things in the back. She said that the accused pulled the car into a back alley and told her that if she didn’t do what he wanted, he would get her in trouble with her mother. E. G. said that T. D. told her that the accused tried to get her to play with his penis and that her underwear ended up in the back of the accused’s car along with his weapons. T. D. said none of this in her evidence-in-chief.

[78] E. G.’s evidence about this was supported by what T. D. said to the police and the evidence T. D. gave at the preliminary inquiry. T. D. told the police that the accused had threatened her in order to get her to show him her vagina. More importantly, she told both the police officer who interviewed her and the judge who presided over the preliminary inquiry that the accused inserted his finger (“fingers”, in her statement to the police) inside of her vagina.

[79] These inconsistencies are not minor. Nor are they the only inconsistencies in T. D.’s evidence.

Count #2 (the “hide and seek” allegation)

[80] T. D. told the police that D. G. was in the closet with her at the time that the accused was touching her, that the accused touched her underneath her underwear after touching her on top of them, and that he then tried to get her to “make out” with him. All of this contradicts her trial testimony.

[81] T. D.’s statement to the police also contradicts the trial testimony of D. G., who said nothing about being in a closet with T. D. at any time, let alone while T. D. was being assaulted.

[82] This allegation is also at odds with the evidence of the witnesses who testified that D. D.’s closet was full of clothes, and garbage bags full of clothes. A. L. testified that the closet was also filled with boxes of tiles. This evidence makes it unlikely that there was room in the closet for two, or three, people.

[83] In addition, T. D.’s evidence is at odds with the evidence of the witnesses who testified that D. D. was experiencing behavioural problems at the time, that he hated anyone going in his room or touching his things, and that the siblings had been asked by the parents not to “set D. D. off”. This makes it unlikely that T. D. would have hidden in D. D.’s closet.

Count #3 (the “pornography” incident)

[84] The evidence is this case also makes this allegation highly unlikely.

[85] T. D. testified that the accused was using her mother’s laptop. However, A. L. testified very convincingly that her laptop, like the rest of the electronics she and T. R. owned, were locked up in their bedroom at the Radar Base residence. She testified that her laptop was password protected. D. G. testified likewise. There is no evidence that the accused had access to A. L.’s laptop, or that he knew her password.

[86] Nor is there any evidence that the accused ever brought his own computer over to the house. The accused testified that he did not own a laptop at the time. Instead, because he was a “gamer” he owned a desktop computer. I accept this evidence.

[87] There is no evidence that the accused was ever alone in the Radar Base residence with T. D. All of T. D.’s family, as well as the accused, testified that he would babysit from time-to-time. However, on every occasion, the evidence was that the accused was babysitting more than one child. Even if the accused was alone with T. D., it seems highly unlikely that he would be showing T. D. pornography and asking her to perform fellatio on him in the living room of the house, as opposed to some less visible location. According to T. D.’s own evidence, the incident ended when her mother and step-father pulled into the driveway. The diagrams drawn of the Radar Base residence by both the accused and T. D. show that the living room was visible as soon as one opened the front door of the residence. It would be an unlikely place for such an occurrence, especially when the accused was using a laptop, which is highly portable.

Count #4 (the “truth or dare” incident)

[88] I have two main difficulties with the evidence on this count.

[89] The first relates to an important contradiction between T. D.’s evidence at trial and what she has said elsewhere about the incident. At trial, T. D. said that the accused attempted to stuff his penis into her vaginal area. However, H. H. testified that T. D. told him that the accused had “raped her”. H. H. was confronted by the Crown in cross-examination with his evidence at the preliminary inquiry, in which he testified that T. D. told him that she was “sexually assaulted by her uncle”, rather than “raped”. However, H. H.’s evidence at trial is supported by the evidence of E. G., who testified that T. D. told her that her uncle “took her virginity”. E. G. was unshaken in cross-examination. Indeed, she said that T. D. first told her that her uncle had tried to steal her virginity, and later told her that he had succeeded. I accept the evidence of H. H. and E. G. with respect to these previous inconsistent statements on the part of T. D.

[90] The second difficulty I have with the evidence on this count relates to a significant contradiction between the evidence of T. D. at trial and that of her half-sister, D. G. T. D. testified that D. G. was present for the “truth or dare” part of the incident in question. However, D. G. never mentioned any such thing in her evidence. That is a significant discrepancy. It is similar to the discrepancy between D. G.’s evidence and that of the other family complainants about count #6, to which I will turn now. Before I do, however, I would point out that the inconsistencies and improbabilities I have mentioned regarding counts #1 to #4 have both an individual and a cumulative effect.

Count #6 (the incident with D. G.)

[91] D. G. testified that the incident in which she was assaulted arose after she, T. D., G. L.-D. and D. D. watched one movie and before they began to watch a second. However, neither T. D. nor G. L.-D. said anything about D. G. ever going into a bedroom alone with the accused while they were watching a movie. Indeed, although she testified about four separate incidents involving the accused, T. D. never said that she was taken into the bedroom and touched as D. G. alleges happened before D. G. herself was assaulted.

[92] Like the last count, I also find D. G.’s allegations improbable. I find it unlikely that the accused would remove the two complainants from a group, assault them, and allow them to return to the group. He would have been taking a substantial risk that one of the complainants might say something. According to D. G., she had never been assaulted by the accused before. For that reason, the accused could not know that D. G. would say nothing. At trial, D. G. denied that the accused threatened her or asked her not to tell anyone. However, this contradicted what she told her mother when she first disclosed the alleged abuse.

[93] D. G.’s evidence was also contradicted in another way by what she told her mother. A handwritten note made by the mother at the time of the disclosure (exhibit #11) indicates that D. G. said that she told the accused to stop, and that he did.

Count #7 (involving E. L.)

[94] This was the count regarding which I denied the Crown’s similar fact application on the basis that the evidence of E. L. was tainted by the evidence of T. D. This tainting also causes me to be left with a reasonable doubt about this count. There is one other reason for that doubt, namely the evidence of the accused.

[95] As he did with all of the other counts, the accused testified in great detail about his car ride with E. L. As with his evidence on the other counts, I found the amount of detail to be beyond what he would be expected to remember. He testified that he stopped by the family’s Frood Road residence one summer Saturday evening after just getting off work. T. D. was with E. L. and A. L. asked T. D. to introduce E. L. to the accused, which she did. The accused was at the residence for about a half-hour. During his visit, he overheard his sister and her husband, T. R., arguing upstairs. T. R. was apparently supposed to give E. L. a ride home, but A. L. asked E. L. to call her mother to come and get her, instead. The accused asked E. L. where she lived. She replied that she lived on Main Street, in Val Caron. He asked her whether her house was on the left or right side of the street and she told him that it was near the beach. As it was not out of his way, the accused offered to give her a ride home and told her just to point out the house when they got there.

[96] The accused testified that the trip took about 15 minutes and that he dropped E. L. off at the end of a driveway, two to three houses past Sandy Beach Road, on the left side of the road.

[97] According to all of the evidence, E. L. only ever took one car ride with the accused. According to E. L. and T. D., they both went on the ride and it ended at T. D.’s house, not E. L.’s. Thus, the accused could not have been testifying about another ride. Although I do not accept that he would remember details like the precise day of the week on which it occurred, I accept the core of the accused’s evidence about this car ride. Otherwise, it is unexplained how he would know where E. L. lived at the time. If he was not telling the truth about where he dropped E. L. off, he was taking a very big risk that the Crown would call reply evidence to refute what he was saying about where she lived. The Crown did not call any such evidence.

Conclusion

[98] Because of the significant inconsistencies and improbabilities in the evidence of the complainants, the similar fact evidence loses much, if not all, of its probative force. Even the evidence of G. L.-D., whom I found to be one of the most believable witnesses, suffered from such frailties. The charge in which she was the alleged victim involved an allegation that the accused asked her to touch him. That charge was laid after G. L.-D. gave a statement to the police. It survived a preliminary inquiry. Obviously, she said something significantly different to the police and to the court on those occasions than what she said under oath before this court.

[99] For these reasons, I am left with a reasonable doubt about all of the charges that remained on the indictment following the close of the Crown’s case. Accordingly, those counts were dismissed at the conclusion of the trial.

Ellies J. Released: March 1, 2017

Footnotes

[1] I believe that T. D. merely misspoke and that she meant to refer to the game, “truth or dare”.