Court File and Parties

COURT FILE NO.: SA-14-6271 DATE: 2017/04/27 ONTARIO SUPERIOR COURT OF JUSTICE

INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION PURSUANT TO SECTION 486(4) OF THE CRIMINAL CODE OF CANADA

BETWEEN:

HER MAJESTY THE QUEEN Applicant – and – R. T. Defendant

Counsel: Ms. K. McVey, for the Crown Ms. N. Chugh, for the Accused

HEARD: November 7-9, 2016

Reasons for Judgment

C.T. Hackland J.

[1] The accused is charged on a six count indictment. Counts 1 and 2 allege that he sexually touched and sexually assaulted the complainant, his daughter, during the period January 1, 2006 to January 1, 2013. Counts 3 and 4 allege sexual touching and sexual assault of the complainant during the period January 1, 2013 and January 1, 2014. Finally, count 5 alleges an act of voyeurism against his daughter on January 8, 2014 contrary to s. 162(1)(a) of the Criminal Code, R.S.C., 1985, c. C-46.

[2] The acts giving rise to the charges relate to incidents between the accused and his daughter in the family home when no one else was present. The key witnesses in this case are the complainant and the accused, both of whom testified. The accused’s position on the sexual touching and sexual assault incidents is that no sexual contact was intended or occurred. As to the voyeurism charge, the accused says that the incident, involving the complainant in the shower, was misunderstood and was an innocent effort on his part to encourage his daughter to hurry and get out of the shower so that he could drive her to school.

[3] The complainant turned 18 years of age shortly before the trial. At the material times, she was living at home with her parents and siblings. I will discuss the relevant events in chronological order.

[4] However, I will first comment on the complainant’s credibility. She was an impressive witness. She presented as a quiet spoken reserved person. She told her story in a direct, albeit concise way. She was prepared to elaborate on her answers when asked for more detail. I detected no effort on her part to exaggerate or embellish her testimony. Significantly, she displayed no resentful or hostile attitude toward the accused and used the word “confusing” to describe her relationship with him. She said she was closer to her dad than her mother and he treated her well apart from the sexual touching. Her family essentially fell apart when she came forward with the allegations, as she feared would be the case.

[5] The complainant testified that over a period of about 10 years, beginning when she was about six, the accused would turn her on her stomach and get on top of her and rub his crotch area against her buttocks. This activity typically lasted five minutes or so. She said she felt trapped – she’d squirm and try and get away and she would tell him to stop and get off her. She testified that this occurred every few weeks, on the weekend when her mother was grocery shopping, and her siblings were not present.

[6] The complainant acknowledged that both she and her father were fully dressed when these incidents happened. She does not know if he had an erection or if he ejaculated. He did not use his hands – the point of contact was his crotch area and her buttocks.

[7] The complainant explained that she did not tell her mother about this and never considered telling her as she did not know how her mother would have reacted. As noted, she was not close with her mother.

[8] However, in the fall of 2010, when the complainant would have been 12 or 13 years of ages, she made a disclosure to her girlfriend. The two girls were relating secrets to each other in a “truth or dare” game. She told her friend that her father was sexually abusing her. She does not remember what details she gave her friend. The friend expressed that she wanted to tell her (the friend’s) mother about this. At first, the complainant said that “was probably not a good idea” because she was “scared the family would hate her…like they do now” but then said to her friend “yeah I guess you can go ahead and tell your mom”. The friend did tell her mom and the Children’s Aid Society (“CAS”) became promptly involved.

[9] The friend testified in this trial and essentially corroborated the complainant’s testimony. She said they were telling each other “the worst thing that ever happened to me.” The complainant confided to her that when her mom was away shopping, her dad would “do stuff to her”. The friend said she was “a bit blurry” on the details related by the complainant. The friend did ask if she could tell her own mother about this and when the complainant reluctantly agreed, the friend did so and the mother reported the matter, apparently to either the school or the CAS.

[10] I note here, parenthetically, that I allowed the friend to relate the complainant’s disclosure to her during this “truth and dare” game for a limited purpose – ie, as narrative to explain the subsequent involvement of the CAS and to rebut the suggestion made to the complainant in cross-examination that a later complaint made to a high school teacher about her father abusing her was a recent invention or concoction to excuse her skipping class. The rule against admission of previous consistent statements permits of these exceptions, see R. v. D.B., 2013 ONCA 578.

[11] Shortly after the CAS learned of this, a child protection worker came to the complainant’s family residence to investigate. I relate the description of this visit as provided by the complainant and by the accused. This visit was in November of 2010. The CAS worker interviewed the complainant’s mother, having asked the accused to wait outside. Later, he interviewed the complainant in the next room and within the hearing of the complainant’s parents. The complainant said her conversation with the CAS worker could be heard “loud and clear”. She was not comfortable with this worker or with the circumstances. She did not tell the CAS worker that what she had told her friend was true but rather that it was invented in a truth or dare game. The complainant testified that she said this because she did not know what would happen and did not want to break up the family. She was also uncomfortable with the CAS worker’s manner and the circumstances.

[12] After the CAS worker left or in subsequent days, her mother approached the issue “cautiously” as the complainant put it, but wanted to know why she would have said these things to her friend. This made her very uncomfortable and she does not recall what she said to her mother. The mother did not testify at this trial, nor did the CAS worker.

[13] The complainant said that following the CAS visit, the abuse “stopped for a bit…maybe a year”.

[14] Subsequently, during the 2013 school year, on a weekend when her mother and brother were home, the accused came downstairs and entered the complainant’s bedroom. It was late morning and she was sleeping in as she liked to do. The accused wanted her to get up and pulled some of the covers off. The complainant was in the habit of wrapping herself in the duvet cover and even pulling it over her head. She testified that her father slid his hand under her pyjama bottoms and over her vagina – keeping his hand over and touching or “cupping” her vagina for about five seconds with a finger penetrating her vagina “a little bit”. She told him to stop and kicked him. He replied “… what? ... I’m just playing” and then he left the room. She did not mention this incident to her mother nor did she talk about it with the accused.

[15] There then occurred what was referred to at trial as the “the shower incident.” This occurred on January 8, 2014 when the complainant would have been 15. I will discuss this further below. Following the shower incident, the accused drove the complainant to school where she disclosed the sexual abuse to a teacher. The teacher testified in this trial and described how genuinely distressed and upset the complainant appeared to be. The teacher did not press for details, but called in the vice principal and the police then became involved and the present charges were laid.

[16] As to the shower incident, the complainant had slept in and therefore missed her bus to high school. The complainant admitted that she was in the habit of sleeping in and missing classes and her attendance record was ‘not great’. This was a source of contention at home and her parents did not appreciate having to drive her to school. On this morning, her mother had gone out somewhere and the complainant had had a noisy argument with the accused about hurrying up to get showered and dressed so he could drive her to school.

[17] She was showering in the basement bathroom. She had engaged the push button door lock as she always did. The glass in the shower stall was clear, not frosted. She testified that she heard the accused come down the stairs and try the locked door. She heard him go back upstairs to the kitchen where she said there is a skewer that can be used to pop open the lock. She heard him come back down the stairs – she said in cross-examination she thought she knew what was about to happen. The accused popped the lock, opened the bathroom door and entered the bathroom. The view of the shower stall was unobstructed. She turned her back on the accused and yelled for him to get out, which he did.

[18] The accused’s version is that he was feeling badly about the argument concerning the complainant missing the school bus again and then not hurrying to shower and get dressed so he could drive her to class. So in an effort to “lighten the mood”, he went upstairs, got a glass of cold water, came down the stairs to the bathroom door, popped the bathroom door lock with a toothpick, opened the bathroom door (outwards) a foot or so, and tossed the glass of cold water in the direction of the shower stall. He denies he ever stepped into the bathroom and denies that he looked at his daughter’s naked body in the shower stall. He says he was only in the doorway a few seconds.

[19] A few minutes later, as his daughter dressed in her room, he called out to her in an attempt at humour or to “lighten the mood”, saying, “I got a picture of your naked butt …(then a pause) … just kidding. No I didn’t”. Both the complainant and the accused agree that this unfortunate comment was made.

[20] The accused acknowledged that his daughter had called out to him to “get out of the bathroom”. Neither the complainant nor the accused specifically recall any conversation in the car on the way to school although the accused thinks he probably expressed that he was sorry.

[21] To state the obvious, this case turns substantially on credibility. The often quoted decision in W.(D.) reminds us that in cases such as this, the question of whether the Crown has discharged its onus of proving the essential elements of offences charged beyond a reasonable doubt, must be assessed on the evidence as a whole – the case must not be viewed simply as a credibility contest between the complainant and the accused. In that regard, see R. v. J.J.R.D., 2006 ONCA 800, [2006] O.J. No. 4749 (C.A.) and R. v. R.E.M., 2008 SCC 51, [2008] 3 SCR 3.

[22] The court has serious issues with the accused’s credibility. I find that his version of the shower incident is not credible. He attempted to portray the incident as a jocular or light hearted effort to encourage his daughter to hurry and get out of the shower and says there was no sexual motivation to his actions. There was no reason offered for him to burst unannounced through a locked bathroom door. He did not knock or shout through the door or announce his presence outside the door or his intention to enter. Tossing a glass of cold water in the direction of the shower stall makes no sense. The complainant did not say that the accused tossed water at her and in cross-examination it was not suggested to her that he had done so. I do not believe the accused’s evidence that he did not see his daughter’s naked body, particularly since he subsequently told her that he’d seen her “naked butt”. He knew she was naked in the shower. There could be nothing accidental about his sudden and unannounced forcible entry through a door that he knew had been locked for privacy reasons.

[23] With regard to the allegation of grinding his crotch area against the complainant’s buttocks on numerous occasions over the years, the accused flatly denied this in his trial evidence. However, in cross-examination, he acknowledged the accuracy of certain answers he provided in a police interview, as follows:

Accused (“A”) – I don’t know what I’ve done Officer (“J.W.”) – Uh…she says that uh…that you would routinely grind her and grab her and hold her down, pin her on your bed… A. – Umhum. J.W. – rub your groin into hers. A. – She always took that as…as playing though. I never…never was the intent to do that though. J.W. – Right. What…what would happen there? A. – That’s mean. (me?) J.W. – What would happen there, the playing? A. – I don’t really remember doing that but…I don’t know. Just typical kid stuff you know? Only kid stuff that you wouldn’t think but anyways… J.W. – But she said that…that she said that you…you’d get on top of her in your bed and you’d put your groin into her behind and grind at her and maul and that sort of stuff. A – I don’t remember doing that. J.W. – But you said uh…just a second ago, you said that it was just kid stuff… A – Yeah. J.W. – That you would… A – Wrestle kind of deal… J.W. – Wrestling yeah.

[24] I interpret the accused’s statements to the police as an admission that the described conduct occurred albeit as “playing” or “kid’s stuff”. It is certainly not a convincing denial to say “she always took that as playing though.” “It never was the intent to do that though”. “I don’t really remember doing that…but I don’t know…wrestle kind of deal.”

[25] Another troubling aspect of the accused’s evidence relates to the visit of the CAS worker in November of 2010. In his testimony, the accused denied knowing or ever being made aware that the CAS was looking into abuse allegations against him made by his daughter. He asserted that he did not speak to the complainant about these issues because the CAS gave him to understand that the allegations were made maliciously by the complainant’s friend’s mother who had some antipathy toward the accused and his wife, and that the CAS really had no concerns. At the same time, the accused said he and his wife decided that she would talk to the complainant about these issues “mother and daughter”. Yet it is clear from the evidence that the complainant’s mother queried the complainant about why she would make such allegations. The accused had to have known that the complainant was saying to her friend that he had abused her. Yet, he personally did nothing about discussing or mitigating the problem nor was he apparently prepared to change his behaviour.

[26] In the court’s view, the accused knew perfectly well (from his wife, if not from the CAS) that his daughter had made sexual abuse allegations against him to her girlfriend. The accused’s complete non-engagement with his daughter during or following the CAS investigation is very difficult to understand. It seems to reflect on attitude that he was happy to have escaped any accountability or potential responsibility in the matter. This was the behaviour of someone unwilling to face a serious problem within his family – a problem he knew was his sexual abuse of his daughter.

[27] The accused testified in chief that the November 2010 CAS visit and the abuse allegation did not change his relationship with his daughter at all. However, when pressed on that point, he stated that “the touchy feely thing, the slaps on the bum, kind of slowed down a little bit…I pulled away a little bit.” This seems to be an admission that the “touchy feely” behaviours were occurring and perhaps slowed down a bit following the CAS investigation. However, this seems to be belied by the June 2013 incident when the complainant’s vagina was touched and the January 2014 shower incident.

[28] In summary, and for the reasons noted above, I did not find the accused’s evidence to be at all credible. He sought to portray himself as an affectionate fun-loving, “touchy feely” father who in retrospect may have not been sufficiently considerate of his teenage daughter’s sensitivities and privacy concerns, but was nonetheless well intentioned. In fact, however, the grinding incidents that he would portray as playfulness were escalating and becoming more problematic to the complainant as she matured and this resulted in the CAS involvement. His view that there was no genuine problem to address at that point was bizarre and self-serving. His interactions with the complainant in the “vagina touching” incident and the “shower incident” had a similarity and showed his persistence in inappropriate touching and interactions with the complainant, notwithstanding the previous CAS involvement and the obvious need to change his behaviour.

[29] In contrast, the complainant’s evidence was clear, direct and exhibited no apparent exaggeration and remarkably, no hostility toward the accused. I accept her evidence.

[30] Defence counsel tested the complainant’s credibility on several points to suggest she was not accurate in some of her recollections and tended to embellish. The complainant related that when she was much younger, she recalled her father calling her up to his bedroom and she refused, telling him that she did not want him to “put his pee-pee in her pee-pee”. While she recalls saying that, she was clear that she has no recollection of him actually doing that to her. The implication intended by the complainant seemed to be that perhaps he did assault her in this manner because why else would she say that to him? The complainant was somewhat general and non-specific about the particulars of the “grinding incidents” that sometimes occurred on weekends and she was also vague as to her age and school grade at various points in her testimony. In the courts opinion, none of this affected the complainant’s reliability in a significant way and indeed is typical of a child’s evidence - see R. v. H.C., 2009 ONCA 56, [2009] O.J. No. 214 (C.A).

[31] I view the teacher’s observations about the complainant’s extreme emotional distress when she confided her concerns to him, as supporting the genuiness of her belief that her father had been abusing her. It has been recognized that the conduct and emotional state of a complainant after an alleged offence can be considered by the court in assessing her credibility, see R. v. Woollam, 2012 ONSC 2188, [2012] O.J. No. 3867 (Durno J.) Also bolstering the complainant’s credibility is the apparent absence of any motive to lie, see R. v. Badiru, 2012 ONCA 124, [2012] O.J. No. 776 (C.A.)

[32] In conclusion, the court is satisfied that the Crown has proven counts 1 – 4 beyond a reasonable doubt. There will be a finding of guilty on the two sexual assault counts (counts 2 and 4). The two sexual touching counts (counts 1 and 3), are conditionally stayed on the Kienapple principle.

[33] I turn now to the voyeurism charge, count 5. The indictment alleges that the accused “…did without lawful excuse, surreptitiously observe his 15 year old daughter while she was showering…”

[34] I quote s. 162(1)(a) of the Criminal Code:

162 (1) Every one commits an offence who, surreptitiously, observes — including by mechanical or electronic means — or makes a visual recording of a person who is in circumstances that give rise to a reasonable expectation of privacy, if a. (a) the person is in a place in which a person can reasonably be expected to be nude, to expose his or her genital organs or anal region or her breasts, or to be engaged in explicit sexual activity; (Underlining added)

[35] The evidence establishes the accused knew the complainant was naked in the shower and that she had locked the bathroom door. On the accused’s own evidence, he deliberately popped the lock and opened the bathroom door without any advance warning. The complainant screamed “get out” and he did so immediately. He says he did not look at her. I find that he did indeed look at her and as he said to her later, in his own words, he “saw your naked butt”.

[36] Given that the complainant was naked in the shower and he knew this prior to entry, the only issue is the “surreptitiously, observes” requirement. I note that sub-sections (a), (b) and (c) of section 162(1) of the Criminal Code are disjunctive so that the act of “observation” does not have to be for a sexual purpose when a person is observed in a shower.

[37] However, I cannot conclude the accused’s entry to the bathroom was surreptitious in any normal usage of that word. It was not done secretly, clandestinely or by stealth, which is the ordinary dictionary meaning of the word surreptitious. The accused loudly barged into the bathroom, at least partly to encourage his daughter to hurry and get out of the shower. She reasonably believed his real purpose was to observe her naked. In any event, this was not a surreptitious or “peeping tom” scenario as required by s. 162(1) of the Criminal Code, although it was certainly an egregious breach of the complainant’s privacy. The accepted rules of statutory interpretation favour a narrow interpretation of criminal provisions.

[38] For that reason, ie. the lack of any “surreptitious” entry into the bathroom, there will be a finding of not guilty on count 5 of the indictment.

Mr. Justice C.T. Hackland

Released: April 27, 2017

COURT FILE NO.: SA-14-6271 DATE: 2017/04/27 ONTARIO SUPERIOR COURT OF JUSTICE INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION PURSUANT TO SECTION 486(4) OF THE CRIMINAL CODE OF CANADA B E T W E E N: HER MAJESTY THE QUEEN Applicant – and – R. T. Defendant REASONS FOR Decision Hackland J. Released: April 27, 2017