R. v. K.M., 2017 ONSC 2373

ONTARIO

SUPERIOR COURT OF JUSTICE

CITATION: R. v. K.M, 2017 ONSC 2373

COURT FILE NO.: CR-16-3-212

DATE: 20170421

B E T W E E N:

HER MAJESTY THE QUEEN

• and -

K.M.

Brian Moreira, for the Crown

Jeff Mazin, for the accused

HEARD: March 13-21, 2017

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Code, directing that the identity of the complainants and any information that could disclose such identity shall not be published in any document or broadcast or transmitted in any way.

K.L. Campbell J.

Reasons for Judgment

A. Introduction

1The accused, K.M., is charged with sexually touching two of his daughters. More specifically, he is charged with (1) sexually assaulting; and (2) touching, for a sexual purpose, while under 16 years of age – both R.M. and A.M. The two offences against the complainant R.M. are alleged to have been committed during the 12½ year period between January 1, 2000 and June 1, 2012, while the offences against the complainant A.M. are alleged to have been committed during the two-year period between June 1, 2008 and June 1, 2010.

2Essentially, both female complainants testified that the accused, their biological father, repeatedly sexually assaulted them by fondling them sexually. The complainant A.M. testified that when she was between six and eight years of age, and sleeping in the same bed as her father, he repeatedly groped her crotch and pelvic area and, even more frequently, grabbed her buttocks. This happened approximately three times a week, at night and during the day. The complainant R.M. testified, essentially, that her father similarly touched her sexually, but over a much longer period of time. This sexual touching, which took place on a weekly basis, included the accused fondling her chest (and her breasts when she got older), and her vaginal area and buttocks. Further, each of the two complainants testified that they witnessed, on occasion, the accused sexually touching the other complainant.

3The Crown contends that the honest testimony of the two complainants establishes beyond a reasonable doubt the commission of the alleged offences by the accused. Defence counsel, on the other hand, relying upon the perceived frailties in the testimony of the two complainants, and the testimony of the complainants’ brother, J.M., that he never saw any incidents of sexual touching, contends that the Crown has not established the alleged guilt of the accused with the requisite degree of certainty.

B. The Main Legal Principles Applicable in This Case

1. The Presumption of Innocence

4The accused is, of course, presumed to be innocent. That presumption of innocence has been with the accused throughout the trial, and remains with him unless and until the Crown establishes his guilt for these alleged offences beyond a reasonable doubt. That heavy burden of proof never shifts. The accused has no obligation to establish his innocence. This important and long-standing principle of our criminal law is constitutionally entrenched in s. 11(d) of the Canadian Charter of Rights and Freedoms. See R. v. Dubois, 1985 CanLII 10 (SCC), [1985] 2 S.C.R. 350, at p. 357; R. v. Pearson, 1992 CanLII 52 (SCC), [1992] 3 S.C.R. 665, at pp. 682-683, 687.

2. The Burden of Proof on the Crown

5It is also important to recall the nature of the heavy burden of proof cast upon the Crown. As juries are typically instructed, a reasonable doubt is not an imaginary, far-fetched or frivolous doubt, or a doubt based on sympathy or prejudice. Rather, it is a doubt based on reason and common sense. It is a doubt that logically arises from the evidence, or the lack of evidence. Of course, it is not enough for a trier of fact, whether it be judge or jury, to believe that an accused is probably guilty or likely guilty, as that is not proof beyond a reasonable doubt. However, the Crown is not obliged to establish, with absolute certainty, the alleged guilt of an accused, as such a standard of proof is impossibly high. Nevertheless, as the Supreme Court of Canada stated in R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144, at para. 242, proof beyond a reasonable doubt is much closer to proof of absolute certainty than it is to proof of probable guilt. At the end of the case, after considering all of the evidence, a trier of fact must be sure that an accused committed the alleged offence before finding him or her guilty of that offence, because it is only at that point that the trier of fact can be satisfied beyond a reasonable doubt as to the guilt of the accused. See also R. v. Lifchus, 1997 CanLII 319 (SCC), [1997] 3 S.C.R. 320, at paras. 13-43; Mr. Justice David Watt, Manual of Criminal Jury Instructions (2015, 2nd ed.), at pp. 261-267.

3. Two Complainants – Separate Consideration of Alleged Offences

6As I have indicated, the accused is charged with the alleged commission of four sexual offences against two complainants. While the allegations by the two complainants are somewhat similar in nature, the Crown never suggested that their evidence should be viewed as “similar fact evidence,” such that the evidence of one complainant could be properly considered in relation to the allegations made by the other complainant. There was certainly never any application by the Crown, pursuant to R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908, to have the totality of the evidence of the complainants considered as “similar fact evidence” across all counts of the indictment.

7Accordingly, the testimony of the two complainants must compartmentalized and viewed separately. The testimony of R.M. in relation to the offences alleged in counts one and two of the indictment must be viewed and considered separately from the testimony of A.M. in relation to the offences alleged in counts three and four of the indictment. The evidence of one complainant cannot be used to consider the allegations made by the other complainant. Of course, a separate decision must be made in relation to each count of the indictment, and those verdicts may be different. See R. v. Rarru, 1996 CanLII 195 (SCC), [1996] 2 S.C.R. 165; R. v. B.M. (1998), 1998 CanLII 13326 (ON CA), 42 O.R. (3d) 1 (C.A.), at paras. 31-43; R. v. H. (F.J.) (2000), 2000 CanLII 5700 (ON CA), 145 C.C.C. (3d) 169 (Ont.C.A.), at paras. 12-14; R. v. Brown, 2007 ONCA 71, at paras. 13-16; R. v. Poulin, 2017 ONCA 175, at paras. 39-40; Mr. Justice David Watt, Watt’s Manual of Specimen Jury Instructions, at pp. 435-436.

8To the extent, however, that one of the complainants testified that she personally witnessed the accused sexually touching her sister, that direct observational testimony is relevant and admissible in considering whether the accused is guilty of sexually abusing that sister.

4. Other Discreditable Conduct by the Accused

9Both of the parties in this case introduced a considerable body of evidence of “other discreditable conduct” on the part of the accused. There was never any objection to the admission of this evidence. Generally speaking, this evidence portrayed the accused as a poor father and husband, one of the root causes of their dysfunctional family, an emotionally needy and demanding individual, and someone with a quick temper and an aggressive and violent disposition.

10I understand that this evidence was introduced by the Crown, without any objection by defence counsel, simply as part of the background narrative of the events, and to understand some of the actions of the complainants. Realistically, the testimony of the complainants would have been very difficult, if not impossible, to introduce and understand in the absence of this important contextual background. See R v. Sutherland (2001), 2001 CanLII 8545 (ON CA), 156 C.C.C. (3d) 264 (Ont.C.A.), at paras. 19-24, leave denied, [2002] S.C.C.A. No. 21.

11I understand that this evidence may have been introduced by defence counsel because it could offer some explanation as to why the complainants might have invented false allegations of sexual misconduct against their father.

12In any event, I appreciate that this entire body of evidence is useful for no other purpose. Beyond providing some background information and a potential motive for the complainants to lie, this evidence, which could potentially be very prejudicial to the accused, must be wholly ignored. More specifically, this evidence is simply not admissible to: (1) support the allegations made by the two complainants; or (2) show that the accused is someone of bad character who is likely to have committed the alleged sexual offences. This evidence cannot be used for those purposes.

5. The Character of the Accused

13Notwithstanding this evidence of other discreditable acts by the accused, other evidence in this case, from the accused’s son, J.M., suggests that the accused is a person of “good character,” at least to the extent that it suggests that the accused is not the kind of person who would sexually abuse his daughters. This evidence is relevant to potentially establish the circumstantial improbability or unlikelihood that the accused would have committed the alleged sexual offences. See R. v. Dees (1978), 1978 CanLII 2269 (ON CA), 40 C.C.C. (2d) 58 (Ont.C.A.) at p. 65; R. v. White (1997), 1997 CanLII 2426 (ON CA), 32 O.R. (3d) 722 (C.A.), leave denied, [1997] S.C.C.A. No. 248; R. v. Flis (2006), 2006 CanLII 3263 (ON CA), 205 C.C.C. (3d) 384 (C.A.), at paras. 37-53, leave denied, [2006] S.C.C.A. No. 120; R. v. E.(F.E.) (2011), 2011 ONCA 783, at paras. 67, 113. Such evidence is itself capable, in appropriate cases, of raising a reasonable doubt as to the alleged guilt of the accused. See R. v. Smith (2001), 2001 CanLII 20968 (ON CA), 161 C.C.C. (3d) 1 (Ont.C.A.), at paras. 99-101, leave denied, [2002] S.C.C.A. No. 156; R. v. M., 2012 ONSC 2595, at paras. 110-117.

14Of course, as a matter of common sense, evidence of “good character” may be entitled to somewhat diminished weight in “sexual assault cases involving children,” as such sexual misconduct typically occurs in private, beyond the view of others, and “in most cases will not be reflected in the reputation in the community of the accused for morality.” See R. v. Profit, 1993 CanLII 78 (SCC), [1993] 3 S.C.R. 637, at pp. 637-638, reversing, (1992), 1992 CanLII 7513 (ON CA), 11 O.R. (3d) 98 (C.A.); R. v. B.(R.) (2005), 2005 CanLII 30693 (ON CA), 77 O.R. (3d) 171 (C.A.), at paras. 25-28; R. v. Prebtani (2008), 2008 ONCA 735, at para. 110, leave denied, [2009] S.C.C.A. No. 153.

6. The Silence of the Accused

15Of course, an accused need not testify in his or her defence and, if the accused elects to remain silent in the face of criminal allegations, as the accused elected to do in the present case, no adverse inference can properly be drawn against him for his reliance upon that important right. As the Supreme Court of Canada has confirmed, an accused’s silence at trial “is not evidence” of guilt and “cannot be used as a makeweight for the Crown in deciding whether the Crown has proved its case.” In other words, if, after considering the whole of the evidence, the trier of fact is not satisfied that a charge against an accused has been proven beyond a reasonable doubt, the trier of fact cannot look to the accused’s failure to testify to remove that doubt and help the Crown prove its case beyond a reasonable doubt. See R. v. Prokofiew, 2012 SCC 49, per Moldaver J. at paras. 4, 10-12, 15, 20-21, 26, per Fish J. at paras. 64-65; R. v. Noble, 1997 CanLII 388 (SCC), [1997] 1 S.C.R. 874, at para. 72. See also R. v. Tomlinson, 2014 ONCA 158, at paras. 97-98; R. v. Caron, 2014 BCCA 111, at paras. 24-26; R. v. Duhamel, 2012 ONSC 6449, at paras. 91-92.

C. Analysis of the Evidence

1. The Background

16The accused and his wife had five children. At the time of trial, their oldest daughter, the complainant R.M., was 19 years of age, their oldest son, J.M., was 17 years of age, their middle daughter, the complainant A.M., was 15 years of age, their youngest daughter, N.M., was 13 years of age, and their youngest son, C.M., was nearly eight years of age.

17The accused and his wife had a dysfunctional marital relationship. According to the complainant, A.M., her parents were each other’s “greatest enemies.” They simply hated one another, and would deceive and manipulate each other. They used their children against each other as “tools of revenge.” They held grudges and were vengeful. They argued and fought regularly. Their fights were followed by periods of silence. Both parents were equally involved in this general “bad behavior.” The accused’s wife, however, also had a problem with alcohol abuse.

18According to R.M., their parent’s relationship was “turbulent and violent and very tense” and it “terrified” her and her siblings, as they never knew when the next “explosion” would be, or how long the “silent treatment” would continue, or whether they were “safe.” R.M. explained that she was very afraid of her father’s anger, but her mother had the tendency to make matters worse, as she liked to argue and seemed to want to bring drama into their lives. Further, her mother could be “pretty violent when she wanted to be.”

19According to J.M., growing up in his family was “tense all the time,” and he lived in “fear and paranoia because of the domestic abuse.” The tension and fear, according to J.M. was caused mainly by the accused, but by his mother as well. J.M. confirmed that his parents did not get along and they fought often, both verbally and physically. There was “domestic abuse” within the home. His own relationship with the accused was not a positive one, in that J.M. often felt like he was “under pressure,” and he was “always antsy and anxious” around his father. J.M. explained that he had the tendency to makes “mistakes” around his father because he would be nervous. J.M. testified that he would try to “force some positivity” as he did “want to love [his] father,” but he was often “targeted” by his father in terms of his “aggression.”

20The Children’s Aid Society became involved in their family in approximately 2009 (or perhaps earlier), but not much changed after this involvement began. J.M. recalled that their parents went to see a marriage counsellor for a time. Eventually, all five siblings were “apprehended” in June of 2012, due to the “physical and emotional abuse” the children received from both parents. A.M. explained that she was scared of both her parents, but was more afraid of her father, as he got physical faster, and was much more violent with her. All five of the children then lived together in foster care for a period of approximately two months. The children were then returned to the accused, and they lived with him for approximately three months between September and November of 2012. The children were then “apprehended” again by the Children’s Aid Society and, thereafter, they all remained in separate foster homes for approximately the next six months to one year. J.M. returned home in approximately April of 2013. In December of 2013, A.M. returned to live in the family home. R.M. also returned briefly to the family home for a couple of months, in February and March of 2014, but then moved out and has lived independently since that time.

2. The Testimony of the Complainant A.M.

21The 15-year-old complainant A.M. testified by way of closed circuit television from an adjoining room. She explained that the incidents of sexual touching by her father started when she was very young, and took place, for the most part, when she was between six and eight years of age, between the years 2007 and 2009. At that time, she was still regularly sleeping with her father in the family residence in Scarborough. It was not until she turned 10 years old that she began to sleep by herself in her older sister’s room. By that point in time, A.M. had begun to feel very uncomfortable sleeping with her father. A.M. conceded, however, that she was not certain as to the timing of the incidents, and agreed that the sexual touching might have started earlier and may have continued after she turned 10 years old.

22According to A.M., during this general time period the sleeping arrangements in the family home changed periodically but, for the most part, the accused would sleep with at least three of his children in the master bedroom, namely, R.M., J.M., and herself. Two queen sized beds were pushed together, and that was where they slept together. Later, when R.M. started sleeping in her own bedroom, N.M. started to sleep with them in the master bedroom. Still later, the complainant A.M. also started sleeping separately as well, in one of the other bedrooms with R.M. As A.M. explained, her mother usually slept separately in the third bedroom with the youngest children, N.M. and C.M.

23A.M. testified that the positioning of the children in the beds changed. It usually alternated between R.M. and A.M., but the three of them would typically argue over which one of them had to sleep next to the accused, as none of them enjoyed sleeping next to their father, although the accused had the final say as to where exactly the children slept in the beds.

24A.M. testified that she did not like sleeping next to her father as it was “unsettling,” in that he did not treat her like his daughter in the way that he held her and touched her. A.M. explained that the accused would mostly touch her around her “waist and pelvic area and her crotch.” While this touching took place over her night clothing it felt more like “groping.” A.M. described how she would normally wear pyjamas or a night dress to bed, with underwear. Sometimes the touching was under her night clothes but still over her underwear. The accused touched her in the same way regardless of how she was dressed for bed. As A.M. described this touching, it was not prolonged, but rather was momentary. There would be no lead-up to it, and it would happen without warning. But it was also repetitive, and it would happen throughout the night. Her siblings would be asleep at the time, or did not appear to know what was going on. Mostly, the touching happened when she had her back toward the accused. Usually, there would be no words exchanged during the touching, but sometimes the accused would tell A.M. that he loved her. A.M. testified that the “furthest” the sexual touching went was when the accused groped her crotch area. Sometimes A.M. thought that her father might have been asleep, but other times he seemed awake and that the touching was “deliberate.” Sometimes, in response to this touching, A.M. would try to subtly move away from him, but would try not to make her movements obvious to her father.

25A.M. testified that the accused also grabbed her bum, and this touching would last a little bit longer, and would happen more frequently. Further, when she was younger, the accused did not appear to mind doing that in front of her siblings when they were awake. This made her feel “quite embarrassed” and a bit “ashamed.” When this happened, it made A.M. feel like she was not “playing the role of a daughter.” She also mentioned that the accused would, every once in a while, touch her chest, but at that age she was “quite under developed.”

26As to the frequency of this sexual touching, A.M. testified that it did not happen every night, as she did not sleep next to her father every night. She provided a “ball park” estimate that it happened probably about three times a week. Sometimes it happened during naps that her father would take with her in the afternoon. She admitted that she was definitely not able to estimate the total number of times she was sexually touched by the accused.

27In her testimony, A.M. explained that, at the time this touching was taking place, she had no real concept of sex, and did not think the touching had any sexual implications, but the touching just made her feel “uncomfortable and humiliated.” With the benefit of hindsight, however, A.M. testified that she now feels that “a line was sort of crossed” by the touching, in that she now understands the appropriate boundaries for sexual matters. Her father put her in a position that she did not want to be in, and in which she did not ask to be put. Knowing that the touching made her so uncomfortable, she now understands that it was “inappropriate behavior” by her father.

28A.M. could not recall the sexual touching ever taking place outside the master bedroom. However, she testified that there were times that the accused would grab her bum in front of her siblings. Indeed, there were times that her father would bite her bum. At the time, she took this touching as a “joke” and thought that her father meant it as a “joke,” although she explained that she did not like it, and felt that it violated her privacy, as she felt “uncomfortable and exposed.”

29During her evidence, A.M. testified that she noticed that the accused and R.M. spent “a lot of time alone together.” She knew that R.M. did not like that, and it made her curious why she would be around him so much. A.M. testified that, on “isolated occasions,” she saw her father pulling R.M. “closer to him” and similarly “groping her near the crotch area,” at which point R.M. would look “very uncomfortable” and “shove him away.” A.M testified that she saw this happen with R.M. on perhaps two or three occasions. A.M. did not perceive this touching as sexual at the time, and thought that her father was just doing it to “bug” R.M., but she now understands why R.M. felt so uncomfortable, “she was being violated.”

30According to A.M., there were occasions, during their childhood, while the “abuse was ongoing,” when she and R.M would discuss the conduct of their father toward them. A.M. recalled, more specifically, discussions between them when R.M. would complain that the accused “treats [her] more like his wife,” and A.M. would express her agreement, and talk about the way the accused “holds [her] in bed.”

31A.M. testified that she never told anyone about what was happening. She “definitely” did not tell her mother about the touching. Rather, A.M. just tried to avoid those kinds of situations, and tried to avoid being alone with the accused for very long. A.M. explained that, at the time, she did not know her mother very well, and did not feel comfortable talking to her about any problems or issues she might be having. Her mother was “very absent” from her children’s lives, being “very detached,” despite her regular physical presence in the family home.

32A.M. explained that she first told someone about these incidents in July of 2013, when she was 11 or 12 years old and living in foster care. Her Children’s Aid worker was telling her (and her foster mother) about the allegations that R.M. had made about her father, and asked her some questions as part of a “protocol.” Hearing her answers, the Children’s Aid worker suggested that she might be interested in speaking to the police. However, A.M. denied that her Children’s Aid worker had “suggested” to her that she had likely been sexually abused too, given the allegations of sexual abuse by her older sister, R.M. According to A.M., this realization on her part came as a “shock, as until then she had seen everything that had been done through a “lens” that had no “sexual implications.” A.M. subsequently spoke to the police about her own allegations against the accused on October 18, 2013. At that point in time the accused was living in Trinidad, his country of origin. A.M. was still in foster care. A couple of months later, in December of 2013, A.M. returned to the care of her mother. Since that time, A.M. has developed a better and closer relationship with her mother, although they continue to have their “bumpy” times, as sometimes experienced between mothers and teenaged daughters.

33When asked about how she feels towards her father now, A.M. responded that she is “still scared of him,” even though she has not lived in the same house as him for some four years. She explained that her memories of her father are now “tainted by sexual motivation.”

34A.M. testified that since R.M. and her have made these allegations of sexual touching by their father, they have not talked to each other about the details of those allegations. A.M. explained that they did not live in the same residence and, while A.M. was allowed overnight visits with their mother, she had no real contact with her sister R.M. She further explained that they were “not yet comfortable” talking to each other about those things.

35A.M. acknowledged that, presently, she had a much better, closer and ongoing relationship with her mother, but had no continuing relationship with her father. When it was suggested to her that, perhaps, this might colour her perception of her prior relationship with her father, A.M. agreed that she might now see her mother as “more human” and have greater empathy for her. However, she testified that she recalled the earlier problems she had with her mother, and how her mother would very frequently lose her temper. A.M. knew that she was the way she was because of the actions of her two parents. However, with respect to the accused, A.M. stated that he “hurt [her] in a way nobody ever has” and it still “affects [her] a lot,” and that is why she still thinks about it.

36As cross-examination revealed, there were some inconsistencies in A.M.’s testimony. For example, in her statement to the police, A.M. did not mention that the accused had fondled her crotch area. That aspect of the sexual touching did not come out until her evidence at the preliminary inquiry. A.M. explained that she had withheld that more “personal” and “unsettling” information from the police as she felt more uncomfortable talking about that touching, and so she waited until she could comfortably and properly explain it.

37Further, A.M. agreed that while she was living in foster care in the summer of 2012, she wrote letters to the accused for his birthday and for Father’s Day. Her father had requested these letters. In these letters the complainant expressed moving sentiments of love, and described the accused as a wonderful father. A.M. explained that some of the sentiments in the letters were true (e.g. sometimes the accused made her laugh), but some were simply not genuine. A.M. testified that writing was one of her strengths, and she knew what her father wanted to hear. A.M. maintained that the accused had a very short and horrible temper, was prone to violence, and was the biggest problem in her life and her biggest fear.

3. The Testimony of the Complainant R.M.

38The 19-year-old complainant R.M. also testified by way of closed circuit television from an adjoining room. At the time of her testimony, she was on two prescription anti-anxiety medications. She was apparently quite nervous about testifying.

39R.M. testified that her biological father, the accused, began to touch her sexually when she was very young, perhaps when she was three or four years of age, in 2000 or 2001, and when their family was living in a third-floor apartment in the area of Victoria Park and Lawrence Avenues. During those early years, she would be asked to go with the accused to take a nap, or to keep him company while he watched television. According to R.M., the accused would hug her and pull her closer to him, and then the touching “crossed lines.” She explained that the accused would put his hands on her chest area, her vaginal area, and on her buttocks, over or under her clothes. As the accused was, at the time, working at night as a security guard, these incidents of touching happened during the day.

40R.M. testified that the touching of her chest did not seem inappropriate, or sexual, especially at that very young age. She assumed it was just a “playful thing.” But, as she got older, it seemed more and more inappropriate. With respect to the touching of her vaginal area or buttocks, R.M. testified that this usually followed some wrestling or play fighting with her father. Sometimes he would bite her bum, hard enough to leave a mark.

41According to R.M., in approximately March of 2003, when she was six years of age, their family moved to the residence in Scarborough. Apart from the times that she lived in foster homes, she lived in that house until 2013, when she was 14 or 15 years of age. R.M. testified that the sexual touching by the accused continued throughout the whole time that she lived in this residence. The last time it happened was when R.M. was about 15 years old.

42R.M. testified that, initially, at the Scarborough residence, the accused did not have job, but was a “stay-at-home-dad.” However, in approximately 2008, the accused began to work part-time during the nights and evenings. According to R.M., her father slept in the master bedroom, with two large mattresses pushed together, typically with A.M., or herself, or their oldest brother J.M. The accused decided which children slept with him on any given night, and who slept beside him. However, as J.M. got older, he became their father’s “least favourite” child, and was often severely beaten. In the result, he was not often asked to sleep with the accused. Typically, their mother slept in one of the smaller bedrooms.

43R.M. testified that, initially, she perceived this continued touching of her chest, vaginal and buttock areas as “playful,” but as she got older she tried to avoid sleeping next to her father. R.M. explained that, when she was approximately 11 to 12 years of age, her mother began to make her “feel guilty” about this, as she would tell her that it was “inappropriate” for a young girl like her to be sleeping with her father. R.M. responded by asking her mother to speak to the accused about this, as R.M. was not able to say “no” to him, but her mother refused. This left R.M. to try herself to “transition” into sleeping in her own room, which she was able to accomplish by the time she was between 13 and 14 years old. According to R.M., before this happened, she and her siblings would argue over who had to sleep next to their father. R.M. did not want to have to sleep next to her father as his sexual touching of her made her feel uncomfortable. When the touching started she just waited for it to be over. She began to dread the nights that she had to sleep with her father.

44R.M. testified that sometimes the inappropriate sexual touching by her father took place in the presence of A.M. and J.M., but not all the time, and sometimes it took place when they were asleep.

45R.M. testified, however, that even after she had her own bedroom, the accused would still sometimes join her in her bed, either during the day for a nap, or during the night, and engage in the same kind of sexual touching. If the accused was coming home late at night, R.M. would make sure that she was wearing pyjama pants in bed. R.M. explained that, on occasion, the accused would “tease” her about “not being a little girl anymore,” and tell her that since she was “getting older” he “won’t be able to do this anymore” referring to his touching of her chest, bum and vaginal areas. Sometimes the touching took place in other areas of the home, but it never happened outside the residence.

46According to R.M., her mother knew that the accused would periodically sleep in her room, and she did not approve. R.M. believed that, sometimes, the accused did it to make his wife angry, whereas on other occasions he tried to hide his activities from his wife. R.M. testified that this behavior put a strain on her mother, and her relationship with the accused. R.M. explained that, on one occasion, her mother took her into the laundry room and told her that “she was not the wife, and not the mother of the household” and she should “stop acting like it” and then slapped her across the face.

47With respect to her buttocks, R.M. testified that sometimes this touching by the accused was over her clothing, and sometimes under her clothing. With respect to the touching of her chest, R.M. testified that this was under her clothes when she was younger. Sometimes, after R.M. had begun to develop breasts, the accused unclasped her bra for this purpose. R.M. testified that she now perceives this touching of her breasts as a “sexual act.” She was unable to say whether her father saw it that way. According to R.M., the fondling and rubbing of her vaginal area took place over her clothing. Sometimes it would be under her pants, but never beneath her underwear. At times, it seemed to be something of a “joke” to the accused, but it was not a “joke” for the complainant, but rather was sexual, and it made her feel uncomfortable.

48R.M. testified that, while she tried to avoid being alone with the accused, and tried to avoid sleeping with him, she never spoke directly to her father about these sexual activities, or how they made her feel. She never told him to stop or pushed him away. She thought that, if she did, she would probably be “beaten” by the accused. The accused was much bigger and stronger physically. She never told her father about any of her feelings, and he never took the time to get to know her. Rather, she was, in effect, her father’s “therapist.”

49According to R.M., the actions of the accused in touching her sexually, were “definitely deliberate,” as he would usually be talking as the touching was taking place. In addition, R.M. described a conversation that she had with her father in the summer of 2005, when she was eight years old, when some extended family members were coming to their home to visit, and the accused told her, while he was touching her himself, that “no one was ever allowed to touch [her] in those areas like that,” except for him (or her mother). This conversation made her feel uncomfortable and caused her to stay away from her male relatives. But it did not cause her to think that it was wrong for her father to touch her in those places.

50As to the “furthest” her father’s sexual touching went, R.M. testified that it was likely when the accused unclasped her bra and then fondled her chest. R.M. testified that she “distinctly remembered” that happening “many times” in bed. She explained that the touching of her vaginal area by her father did not happen as frequently as the touching of the other areas of her body. In cross-examination, R.M. agreed that, in her preliminary inquiry evidence, she testified that the furthest it went was that the accused, under her clothes, grasped her buttocks and her thighs, and unclasped her bra, but did not touch her breasts. R.M. also testified at the preliminary inquiry that the touching of her vaginal area mainly happened when she was younger. R.M. maintained, however, in her trial testimony, that there were, indeed, times when her father touched her breasts after unclasping her bra. She explained that, in her preliminary inquiry evidence, she meant only that the touching of her breasts was not under her clothes. In her trial evidence, R.M. also maintained that her father would sometimes slip his hand down the front of her pants onto her vaginal area, but over her underwear.

51As to the frequency of the inappropriate sexual touching by the accused, R.M. testified that it happened to her on a weekly basis, unless she did something to make him angry and make him “shut [her] out.” The last time it happened was when R.M. was about 15 years old.

52R.M. testified that she did not finally realize that this touching by her father was inappropriate and sexual until 2013, when she was 16 years old, and was having a conversation with an old family friend that she was living with at the time. She began telling R.M. about how she had been sexually abused. Until that time, R.M. thought that “sexual abuse” was “rape,” and thought that what her father was doing to her was “normal” and “happened to everyone.” Her sex education was, admittedly, very poor. R.M. asked her to explain what sexual abuse entailed and, as she did, R.M. “identified” with some of the touching she described. This came as a shock to her and it took her some time to process this information and understand what had happened to her. Initially, R.M. did not want to do anything about this touching. But, she later reported the sexual touching to the Children’s Aid Society in June of 2013, and eventually, after hearing about the allegations made by her sister, R.M. went to the police in October of 2013.

53R.M. testified that she often witnessed the accused engage in similar sexual touching with respect to her younger sister A.M. Indeed, R.M. testified that she saw it “pretty much all the time.” R.M. explained that A.M. was his “favourite” and was, accordingly, the least likely to be “shut out” by him. In addition, they lived together in a small house, and her siblings were always around. More specifically, R.M. testified that she sometimes observed that, when it was A.M.’s turn to sleep next to their father, he would tell her to take off her pyjamas and sleep naked, and the accused would fondle her bum. Once R.M. saw the accused shove tissues into her vaginal area. She also saw their father bite A.M. on her bum.

54Cross-examination revealed some inconsistencies in her evidence, including her evidence about some of the sleeping arrangements in the Scarborough residence, but R.M. disagreed with the suggestion that she was trying to downplay those inconsistencies in her evidence. R.M. explained that it is not surprising that there are some inconsistencies in her evidence, given that it was only in 2013 that she realized she had been sexually assaulted by her father and, since then, she has been re-evaluating her entire life, and trying to remember things from many years earlier. She agreed that some of her earlier memories may have been suppressed, and only came back to her through her psychiatric therapy. R.M. indicated, however, that she was trying to be “as truthful as possible” in her evidence.

55In cross-examination, R.M. testified that she wrote her father a “Christmas Letter” on December 25, 2010. In this letter, R.M. thanked her father for the many things he had done for her, and the things that he had taught her. In this letter, she indicated that she was not able to express how much she loved and cared about her father. In this letter, R.M. suggested that she was trying to convince him that he was a “great dad.” R.M. testified that she recalled writing the letter, and she said that the sentiments she expressed in that letter were sincere. The complainant emotionally explained that this letter expressed that, “no matter what,” he was still her father. R.M. said that it was “hard to go through something like this,” and while her father taught her lots of things, there was a side to their relationship that was a “trap” for her, and was “not always what it seemed.”

56In cross-examination, R.M. also admitted that she wrote similar letters to her father for his birthday and for Father’s Day, in June of 2012, while she was living in foster care.

57In the birthday letter, R.M. expressed regret that she could not be with her father to help celebrate his birthday, and indicated that he had much to celebrate given his accomplishments, especially the fact that he had “five, fairly good children, who love and miss [him] so much.” Again, R.M. admitted that her expressed sentiments were sincere. She agreed that there were times when the accused would support her and care for her, try to help her in her school life, and watch the friends that she kept. She also agreed that there were times that the accused showed that he had a good sense of humour and would joke around with her and her siblings. She also admitted that the accused could be charming and entertaining.

58In her Father’s Day letter to the accused, R.M. indicated that he was the “best father” and was always there to support his children, even to the extent of staying in a “rotten marriage” just so that his children would be “safe and secure” in their home environment. She also noted that the accused took steps to talk to his children, provide them with inspiration, and make sure they were happy. R.M. testified that “some” of the sentiments she expressed in this letter were sincere, noting that the accused was very proud of his children, how smart they were, and how much they had accomplished. R.M. also testified, however, that some of the things were fabrications, and written because she knew that her father wanted to hear them. She wrote these letters to make her father feel better and boost his mood. The accused was in jail at the time, and R.M. felt guilty about this and was afraid.

4. The Testimony of J.M.

59The complainants’ younger brother, 17-year-old J.M., testified as a defence witness. He is the biological son of the accused, and resides with his mother and his younger siblings in the family home in Scarborough.

60As to the sleeping arrangements in the family home when the complainants lived there, J.M. testified that there was “a lot of shifting” around as the family grew. He testified that, normally, most of the family would sleep in the two large beds that had been pushed together in the master bedroom. J.M. normally slept on the bed with his father, and his sisters would sleep on the other bed, sometimes with their mother. Sometimes, however, his father would sleep with one of his sisters, and J.M. would sleep in the other bed with his mother. As time passed, however, and J.M.’s younger brother was born, in 2007, his mother began sleeping with the infant in one of the other bedrooms. Indeed, according to J.M., his mother normally slept in the other bedroom with the youngest child of the family.

61J.M. testified that normally his father would sleep with two body pillows, each about four or five feet long, on either side of him. One of them was usually between his legs. Whoever was sleeping with the accused would sleep on the other side of one of the body pillows. According to J.M., his father was a “fast and heavy sleeper” and would usually fall asleep before he did. J.M. testified that, given his own anxiety disorder, it usually took him an hour or two to fall asleep. J.M. explained that, at night in the master bedroom, sometimes you could still see in the room (from light through the window), but other times it would be “pitch black” (i.e. when the shades were drawn) and you could not even see your hand in front of your face. J.M. agreed that on the nights when it was “pitch black” in the master bedroom (or at times when he was asleep), when one of his sisters would be sleeping next to the accused, he would not be able to see what was going on in the room between his father and his sister.

62According to J.M., his oldest sister, R.M. usually slept on the other bed in the master bedroom, but eventually, when she turned 13 or 14 years of age, she moved into her own bedroom, located just around the corner from the master bedroom. J.M. testified that his sister A.M. also usually slept on the other bed in the master bedroom, and she really never moved out of that bedroom, and into the other bedroom with R.M., until “really late.”

63J.M. testified that sometimes, when the accused got a migraine headache or had been working nights, he would want to take a nap in bed in the afternoon or evening, and he would have J.M. accompany him. J.M. would have to remain beside the accused until he fell asleep. J.M. found this “annoying” as he would often have to stay there for an hour or two, and he just wanted to “get away” from his father when he was a child. Sometimes his father would extend his arm over his pillow just to make sure that J.M. was still there. J.M. described this as like “putting a big baby to bed.” In cross-examination, J.M. agreed that sometimes it would be one of his sisters who would have to accompany their father for one of these naps. He also agreed that, on those occasions, he did not know what might have happened in the bedroom between the accused and his sister.

64J.M. testified that he was notified of the general nature of the allegations by his sisters when he was about 14 years of age, when he was shown an affidavit prepared in some family law proceedings between his parents. Subsequently, he provided a statement to the police in October of 2013. However, he was never informed of the specific details of the allegations by his sisters. Indeed, J.M. agreed that, even at the time of trial, he did not know whether his sisters alleged that the accused had touched them sexually, or had engaged in fully penetrative sexual acts with them, or whether the allegations involved some other kinds of sexual abuse along that spectrum of conduct.

65When he was asked about his “reaction” to these general allegations of sexual abuse, however, J.M. testified that he was “confused and unsure.” J.M. explained that the allegations were “not exactly in line with [his] father’s character.” The accused “may not be the best of people,” but he is a “God-fearing man” despite the “domestic abuse.” J.M. also suggested that there was a “fine line” between where “discipline becomes domestic abuse.”

66J.M. testified that he never saw any “sexual abuse” by his father. He never saw any inappropriate touching of his sisters, and his father never touched him inappropriately. The accused never touched him at all when he slept beside his father in bed, and he never saw his father touch his sisters when they would sleep beside him. J.M. did describe his father, however, as being affectionate towards his wife and his daughters. He would hug his daughters as a “group” when he came home from work.

67In cross-examination, J.M. confirmed that he does not believe that anything sexually inappropriate happened between his father and his sisters, essentially, because he believed the accused to be a God-fearing man and because such alleged conduct was inconsistent with his “overall character.” J.M. agreed that the accused tried to project an image of being a “God-fearing man” with “high morals” to others outside their family, but that he had “a bit of a dark side.” J.M. explained that while he was not suggesting that the accused is a “good guy,” as he would act violently against his wife and children, he was saying that the accused did not seem to be the kind of person who would do that sort of thing. J.M. maintained this position even though he agreed that he was not aware of the specifics of the sexual abuse allegations.

68J.M. agreed that these allegations by the complainants have had the effect of dividing their family along gender lines, with his older sisters and his mother on one side, and he and his father on the other side. J.M. also testified that he felt “alienated” from his sisters from a very young age, as the accused used more aggression and violence against him than his sisters, was more emotionally distant from him than his sisters, and because his sisters would routinely exclude him from their daily play and leisure activities. There was, accordingly, always a “wedge” between he and his sisters largely due to their different genders. J.M. testified that he no longer sees or speaks to his older sister R.M. Further, J.M. does not really have much of a relationship with his younger sister, A.M., even though they still live in the same residence. His relationship with his mother is also distant. J.M. no longer speaks to his father, as the accused is prevented from speaking to him and the rest of his siblings as a result of his bail conditions.

69In cross-examination, J.M. recalled that, when the Children’s Aid Society was involved with their family, both of his parents would encourage him (and his sisters) to lie about the sleeping arrangements in the family home, and would encourage them not tell the Children’s Aid Society worker that he and his sisters would sleep in the same bed as their father. However, at the time, J.M. saw nothing wrong with these sleeping arrangements, as that had always been how they had slept growing up in that family.

D. Conclusions

70Based upon my consideration of all the evidence in this case, and applying the legal principles I have earlier outlined, I find myself satisfied beyond a reasonable doubt that the accused is guilty of the offences of sexual assault and sexual touching in relation to both of the complainants.

71The 15-year-old complainant A.M. is an intelligent, thoughtful and articulate young woman. While giving her testimony, she displayed a maturity well beyond her chronological years. She testified fairly and, in my view, honestly in giving her evidence. A.M. acknowledged that her memory was vague about some of the details of the events from her childhood, many years earlier. She also suggested that, over time, some of her suppressed memories have slowly returned to her. Her understanding of sexual matters developed, predictably, as she grew older and matured. As I have mentioned, there were also some inconsistencies in her testimony. However, A.M maintained, throughout an extensive and probing cross-examination by defence counsel, that her father had fondled her sexually many times over a number of years. While she fairly agreed with some of the suggestions that were made by defence counsel in cross-examination, A.M. was unshaken in her testimony that the accused repeatedly touched her sexually over a period of years. A.M. also maintained that, on occasion, she personally witnessed her father similarly sexually touch her older sister R.M.

72Like her younger sister, the 19-year-old complainant R.M. also struck me as an articulate and intelligent young woman. In my view, she too testified fairly and honestly. While there were some small inconsistencies in her evidence, none of those details cast any doubt on her credibility or reliability as a witness. Her evidence lacked any exaggeration or embellishment. Like her younger sister, R.M. candidly agreed that her father had some good qualities, and she testified without any discernible bias or animus against the accused. But throughout her evidence, R.M. steadfastly maintained that, over a significant period of time, the accused touched her sexually on her breasts, on her buttocks, and on her vaginal area. Like her sister, R.M. was also subjected to a lengthy and detailed cross-examination. Occasionally, this questioning caused her to become emotional. Yet, throughout her evidence, R.M. consistently rejected any suggestions that her father was simply cuddling her, or hugging her, and nothing more. R.M. also maintained that, on occasion, she witnessed her father similarly sexually touch her younger sister A.M.

73As I have indicated, in my view, both A.M. and R.M. testified fairly and honestly. I believe and accept their testimony. None of the suggested frailties of their evidence have caused me to harbor any reasonable doubt as to the overall credibility or reliability of their testimony. Each of the complainants was skillfully and thoroughly cross-examined by defence counsel, yet the substance of their evidence remained unshaken. Significantly, each of the complainants provided effective confirmation for the testimony of the other complainant, as each of them testified that they personally witnessed the accused similarly sexually touch her sister.

74I reject any suggestion that either of the complainants invented their testimony, or manufactured their claim that the accused had sexually abused them. More specifically, I find that they did not falsely implicate the accused in order to punish him for past acts of violence or other perceived parental misconduct on his part. I also find that the complainants did not, at any time, collude together and jointly manufacture their evidence so as to provide mutually supportive and confirming testimony. Indeed, I find that they did not collude at all, for any reason. As I have indicated, I detected no evidence of bias or animus against the accused from either of the complainants. Rather, they both simply testified candidly, honestly, truthfully, and to the best of their recollection.

75As for the testimony of J.M., he was also an articulate and intelligent witness. Like his sisters, he too testified fairly and honestly. He provided his testimony without exaggeration or embellishment. While his father often treated him horribly, J.M. spoke candidly of the accused’s good qualities as well as his character flaws. I accept his evidence that he did not personally see his father engage in any inappropriate sexual touching of his sisters. I also accept his evidence that he did not believe that his father was capable of sexually abusing the complainants given his understanding of the moral character of the accused.

76The testimony of J.M. does not, however, cause me to have any reasonable doubt as to the guilt of the accused. While he did not witness any sexual touching of his sisters, and did not personally believe that his father could sexually abuse his sisters, his evidence does not conflict in any significant way with the testimony of the two complainants. In fact, J.M. candidly agreed that there were times that the accused slept in the same bed as his sisters, both at night and for naps during the day time. J.M. agreed that he did not know what happened in the bedroom between his father and his sisters when he was not there. He also agreed that, on the nights when it was “pitch black” in the master bedroom, or after he was asleep, he could not see what might be happening between the accused and his sisters (on the nights the accused was sleeping next to one of the complainants). Accordingly, the testimony of J.M. clearly left open the possibility that the accused sexually touched his sisters at the times, and in locations within the family home, where J.M. (and others) would not be able to see the sexual touching take place. Indeed, it is hardly surprising that the accused would want to conceal from others (including his son) his sexual abuse of his two oldest daughters.

77It is not difficult to reconcile the testimony of the three witnesses in this case as to the frequency with which they each had to sleep next to the accused. The complainants both testified that they were each regularly chosen to sleep next to the accused. However, their brother J.M. suggested that he was the one usually chosen to sleep next to his father. Given the problems that each of these three witnesses experienced with their father (i.e. the uncomfortable sexual groping of the complainants, and the violent aggression towards their brother), it is predictable that each of them would, quite honestly, recall that they were the one required to sleep next to their father most frequently. Sleeping in such close physical proximity to the person who so frequently was the cause of their own personal discomfort and distress could not help but make such events seem to happen with increased regularity. Without resolving which one of these witnesses is historically accurate in this regard, I have no hesitation concluding that the honestly delivered evidence of all three of these witnesses certainly provided the accused with ample opportunity to regularly sexually touch his daughters. But, more importantly, as I have indicated, I believe and accept the testimony of the two complainants that their father, in fact, repeatedly touched them sexually in the fashion they described in their evidence.

78There is no doubt that there was a long delay between the commission of these sexual offences and their disclosure by the complainants. This factor should be considered in assessing the credibility and reliability of the testimony of the complainants. However, in the circumstances of the present case, I am driven to conclude that this long period of delay is perfectly understandable, if not predictable. The sexual offences committed by the accused commenced when the complainants were young, and not knowledgeable about sexual matters. The offences themselves were acts of sexual touching, not more obviously inappropriate penetrative acts. The perpetrator of these offences was their father who was, to say the least, a powerful and dominant force in their lives. The complainants’ lack of sexual knowledge and understanding, the nature of the offences themselves, and their powerless position in their relationship with their dominant and abusive father, explains why they did not complain to anyone about the sexual touching until they did. See R. v. D.(D.), 2000 SCC 43, at para. 65.

79I have considered the evidence of J.M. as to the “character” of his father, suggesting that the accused is simply not the kind of person, given his moral disposition, who would sexually abuse his daughters. This kind of evidence is certainly capable, in some cases, of raising a reasonable doubt as to the alleged guilt of the accused. However, in the circumstances of the present case, this evidence simply does not raise a reasonable doubt in my mind as to the guilt of the accused. First, J.M. provided this personal opinion on this topic without knowing even what kind of sexual contact was alleged to have taken place between the accused and the complainants. Second, and more importantly, as common sense would dictate, the commission of sexual offences typically takes place in relative privacy. The perpetrators of such offences predictably wish to keep their offences as secret as possible. This is perhaps especially so in cases involving the parental sexual abuse of children. Accordingly, it is unlikely that J.M. would have any particularly useful insights into whether his father is morally capable of sexually abusing his sisters. In the result, in my view the personal opinion of J.M., that his father is not someone who is likely, due to his high moral standards, to sexually abuse his daughters, is not entitled to any significant weight in the circumstances of the present case. In any event, this evidence does not raise any reasonable doubt in my mind as to the guilt of the accused.

E. Verdict

80In conclusion, I am satisfied beyond a reasonable doubt that the accused committed the offences of “sexual assault” and “touching for a sexual purpose” against both the complainants as alleged in the indictment. Accordingly, the accused will be found guilty on all four counts of the indictment.

Kenneth L. Campbell J.