CITATION: R. v. S.A., 2017 ONSC 3169
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
S.A.
Accused
Simon Heeney, for the Crown
Hillson Tse, for the Accused
HEARD: April 25, 26 & 27, 2017
B.A. ALLEN J.
REASONS FOR JUDGMENT
BACKGROUND
1The Crown requested under sections 486.2 (1) and 486.1 (1)of the Criminal Code, on consent of the defence, that the complainant, KS-K, have the assistance of a victim support person and that she testify outside the courtroom. I granted the requests.
2The accused, SA, was arrested on December 9, 2014 and faces one charge for each of the following offences: sexual assault, sexual interference, and sexual exploitation, threatening bodily harm, common assault and assault with a weapon. It is alleged he committed these offences from […], 2006 to April 30, 2014 against KS-K who was his stepdaughter.
3In the early 1990s, KS-K, now 19 years of age, immigrated to Canada from Malaysia with her mother when she was about five years of age. She is currently attending high school. KS-K and her mother moved into a home owned by the accused at C[…] St. (“C[…] St.”) in Scarborough. The accused lived in the home and rented rooms to up to nine tenants at a time. The accused slept in the living room on the first floor. KS-K and her mother slept in the master bedroom on the second floor. Other tenants occupied rooms in the basement and on the first floor of the house. KS-K and her mother lived at C[…] St. off and on from 2006 and 2014.
4KS-K testified she and her mother moved to C[…] St. when she was in grade 1 and she thought they last lived there when she was in grade 10. During that period KS-K and her mother also lived at C[…] Drive (“C[…] Drive”) in Scarborough where she lived in 2007/2008 while in grade 4 and then moved to Ajax, Ontario (“Ajax”) for one-half of grade 9 for four to six months; then back to C[…] St.; then to O[…] Crescent (“O[…] Crescent”) in Scarborough; and lastly to E[…] Rd., (“E[…] Rd.”) in Scarborough.
5Most of the alleged sexual abuse occurred at C[…] St. where KS-K estimated she and her mother lived for about eight or nine years in total. When they moved out of C[…] St. to E[…] Rd. they never returned to C[…] St.. An acquaintance of KS-K and the mother, NC, lived with them at E[…] Rd. for only a few months. While NC lived at E[…] Rd. she witnessed an episode involving KS-K and the accused. This occurred in about April or May 2014 and was the last incident of alleged sexual abuse. I will discuss this incident later.
The Relationship between the Accused, KS-K, and her Mother
6KS-K testified she thought her mother and the accused were friends. KS-K referred to him with the title “Uncle”. According to the accused, he and the mother were first dating and then got married sometime around 2007/2008. The accused said the mother asked him not to tell the daughter they were married. The accused admitted this was a sham marriage which he arranged with the mother so he could sponsor her and KS-K to obtain permanent resident status in Canada. The mother and the accused separated after the mother and KS-K finally moved out of C[…] St. in 2013.
7The mother worked during earlier times delivering food with the accused for his business. She cooked food for the household which included the tenants at C[…] St.. KS-K testified she cooked lunch and dinner every day. The accused stated that the mother cooked only dinner and not on a regular basis. He stated the mother was at school and doing volunteer work sometimes and did not cook. He said he and his own mother helped with the cooking. It appears for the most part a main source of financial support for the mother and daughter was social assistance.
8The accused testified he worked at the restaurant preparing and delivering food every day starting at 3:00 a.m. or 4:00 a.m. and finishing anywhere from 12:00 noon to 2:00 p.m. depending on the amount of work.
9The accused testified that from KS-K’s early childhood until her teens he helped raise her. He said he looked after her. He considered her to be his daughter. He would buy games for her and give her money just as he would his own children. KS-K testified the accused never took her to school. She and her mother did not eat meals with him.
THE SEXUAL OFFENCES
The Crown’s Evidence
Overview
10KS-K testified that the accused sexually assaulted her at C[…] St., at C[…] Drive and at E[…] Rd.. KS-K testified that after the first assault, he assaulted her in the same way almost every day. She testified when she came home from school he would be at home. The mother would arrive home at around 5:00 p.m. KS-K testified the accused would attack her in the master bedroom when the mother was not present, often when the mother was downstairs in the kitchen cooking. KS-K stated that the sexual abuse happened until she was age 15.
11KS-K denied on cross-examination that anyone ever walked in during the assaults, except at E[…] Rd., over the eight or nine years the accused was in her life. She said he only assaulted her when no one was around.
12Defence counsel questioned KS-K’s evidence that the sexual abuse happened almost every day after the first assault on her eighth birthday, suggesting she was exaggerating. KS-K did not waver in her evidence. She insisted that is what she recalls.
13KS-K said there was sexual intercourse with his penis penetrating her vagina during some of the episodes. He would also hit her and insert his finger and tongue into her vagina on many occasions.
14KS-K testified the accused would give her money after the assaults in amounts from a loonie to $5.00 to $20.00 to $50.00. He would never say what the money was for.
15KS-K testified that as a child she did not know what was happening. She thought the accused was punishing her for something she had done. She mentioned the assaults to no one and the accused never said anything about the assaults to her.
16After KS-K and her mother moved back to C[…] St. from C[…] Drive when she was in grade 6, the assaults happened more often than at C[…] Drive. She indicated that she understood more about what the accused was doing to her. She stated that she began receiving sex education in school in grade 5 where she learned about good touching and bad touching. However, she still did not tell her mother what the accused was doing to her. During the further two years at C[…] St. the accused continued to abuse her.
17On cross-examination, defence counsel questioned her as to why after she had learned about and understood sexual abuse, she did not tell her mother with whom she was very close. As I discuss later, KS-K testified that the accused threatened that he would hurt her, her mother and her friends if she ever told anyone.
18KS-K testified that there were no sexual assaults during the four to six months they lived with a friend of the mother in Ajax. However, she indicated that the accused would pick them up in Ajax and take them to C[…] St. where, on a few occasions, he sexually abused her there. The mother and KS-K moved from Ajax back to C[…] St. for a brief period. KS-K said there was no sexual abuse during that period because she had injured her knee and was on crutches. The mother and KS-K next moved to E[…] Rd..
19KS-K indicated she could recall the details of three distinct instances of sexual abuse.
KS-K’s Eighth Birthday at C[…] St.
20KS-K testified that the first time the accused sexually abused her was at C[…] St. on her eighth birthday on […], 2006 when she was in grade 2. A birthday party was planned. She testified her mother left the house for about 20 minutes to buy goodies for the party. She said it was while her mother was gone that the accused attacked her.
21KS-K was watching TV in the master bedroom shared by herself and her mother. The accused came into the bedroom and said, “Happy Birthday” and asked her if she wanted a present. She said, “No.” He walked closer to her and sat beside her on the bed. He first touched, twisted and played with her hair and then moved his hand to her cheek. He stood up in front of her and gently pushed her down on the bed and got on top of her. The accused took off her shirt and her pants. KS-K testified every time she tried to look at him he would tell her to watch TV. She recalled that “Sponge Bob” was on TV.
22The accused separated her legs and put his finger into her vagina. It was very painful. She then saw him stand up and take off his pants. He kept repeating “Watch TV. Watch TV.” He then put his penis into her vagina. She was in a great deal of pain. He kept up what he was doing until he heard her mother open the front door of the house. He quickly pulled up his pants. He went into the ensuite bathroom in the master bedroom. She put on her clothes. He came out of the bathroom, looked at her, gave her a toonie and said nothing. KS-K testified she had no idea what had just happened to her. She was bleeding from her vagina. But she did not tell her mother right away.
23KS-K stated that her relationship with the accused before and after this assault was friendly. She said he acted friendly and kind before and after the assault.
C[…] Drive
24KS-K testified that when she was 10 or 11 years old the accused would sexually abuse her at C[…] Drive when he would deliver food for her there. During the year she and her mother lived there, her mother worked nights. The mother would call the accused and ask him to deliver food for KS-K. She said she did not recall how many times the sexual abuse occurred at that address. She testified it would occur on the couch or on the bed in the living room.
25KS-K recounted a time when her mother asked the accused to deliver McDonald’s takeout for her. Her mother told her to open the door for him when he arrived. He knocked on the door and she hesitated to open it. She opened the door and he barged in with a McDonald’s bag of food and a drink which he placed on the table. She said, “Goodbye and thank you”, hoping he would leave.
26Instead, the accused locked the door and tried to hug her. She kept pushing him off telling him to leave. He pushed her onto the bed in the living room, pulled up her shirt and pulled down her pants and touched her in a rough manner. He pulled down his pants and inserted his penis into her vagina. KS-K testified she screamed very loudly and he got scared and backed off and pulled up his pants. KS-K testified that before he left he said, “Don’t forget to lock the door.”
E[…] Rd.
27KS-K described another incident that occurred in March or April 2014 just before her birthday. This is the only incident at E[…] Rd. that she recalled. She and her mother moved to that address when KS-K was in grade 10. As noted earlier, the tenant, NC, came to live with them for a brief few months.
28KS-K testified she came home from school and her mother was in the apartment as was the accused. Her mother asked her to go downstairs with her to the accused’s van to get a ticket allowing him to park at the apartment. The mother had forgotten to take the keys with her and asked KS-K to return upstairs to retrieve them from the accused.
29KS-K said she went to the apartment and she asked him for the keys. He took them out of his pocket and asked her whether she wanted them. She said. “Yes”. But he would not give them to her. Every time she tried to get the keys he would touch her on some part of her body. When she got the keys she tried to run quickly out of the apartment. She said he came behind her while she was outside the apartment door and grabbed her from behind. She testified she screamed loudly and he covered her mouth and dragged her back into the apartment.
30KS-K stated that he tried to touch her chest and arms but she resisted. He then pushed her onto the floor. She said he was rough with her as he tried to take off her shirt and pants. He tried to stop her from screaming and from moving around. Her mother then knocked on the door. That was when KS-K realized the apartment door was locked. She knew she had not locked the door. She let her mother in and when she looked around she saw the accused casually sitting on the couch. The mother yelled at her for locking the door.
31KS-K testified she told her mother everything. She said she cried and her mother cried even more.
32KS-K testified that is when she heard the tenant, NC, walking from the bathroom telling the mother something bad had happened. NC, age 28 years, had recently moved into the apartment with the mother and KS-K. NC first met the accused when she moved into the apartment. She did not know the mother or KS-K very well and since the incident after she moved out she has not been in contact with them very often.
33NC testified about her experience with what happened. She testified she had worked until the early hours of the day and was in a deep sleep in a bedroom. She could hear KS-K’s voice and other voices. She then heard KS-K shout in a loud voice, “Let me go!” “I have to give the keys to my mom.” She thought it was KS-K and her boyfriend or her friends.
34NC said she decided to get up to ask KS-K to be calm because she was sleeping. NC opened the bedroom door. She saw a man in the hall and KS-K was lying on the floor on her back in the hallway outside her bedroom door in front of the main door to the apartment.
35NC testified a man was sitting on top of KS-K with his back to NC straddling KS-K with his legs on either side of her. She could not see his hands. She heard KS-K’s voice grow hoarse and she assumed, without witnessing this, that she was being choked. She was shocked because she had never seen anything like this before.
36NC testified she got frightened and went back into the bedroom. She admitted she was scared for her own safety and not as concerned about the safety of the young girl being assaulted. NC got back into bed and covered herself completely. She hoped they did not notice her. There was no lock on the bedroom door so after about ten minutes she went into the bathroom where she could lock the door. When she opened the bedroom door KS-K and the accused were no longer in the hall. He was lying on the couch. NC saw KS-K open the apartment door to let her mother in.
37NC said she shouted to the mother, “I don’t want to live here anymore.” “He was on top of her.” She went down to the lobby in her night clothes and called her friends. The mother called NC to come back upstairs and asked her what had happened. NC gave the mother a brief account of what she witnessed. When NC was talking to the mother, KS-K kept quiet. NC told KS-K she had to tell her mother what happened. KS-K started crying and NC left while the mother spoke with KS-K.
Disclosure by KS-K of the Sexual Abuse
38KS-K testified that when she disclosed the history of sexual abuse to her mother in March or April 2014, her mother urged her not to go the police. She told KS-K she did not want their lives to change. She was worried her daughter would get a poor reputation. KS-K testified she did not know what her mother meant by getting a bad reputation. But she did as her mother asked and did not go to the police.
39KS-K testified that she did not initiate police involvement. Her evidence is that one of her teachers noticed a change in her mood, that she was not her cheerful, happy self. This occurred in the fall school semester in 2014 when KS-K was in grade 11, several months after the incident at E[…] Rd.. The teacher told her guidance counsellor about her concerns.
40The guidance counsellor came to KS-K. She said she felt she could trust the guidance counsellor so she told her about a few of the incidents. KS-K testified she felt relieved after she disclosed the abuse. Unanticipated by KS-K, the school social worker called the police. The police came to her home. She testified she did not expect this and she was “really shocked”. She subsequently gave a video statement at the police station.
The Defence’s Evidence
41The accused denies that he ever sexually abused KS-K. He said he had watched out for her since she was a small child and treated her like his daughter.
42While emphasizing the natural father-daughter relationship, he tried at the same time to impress on the court that he was never alone with her and he never hugged her except in the presence of her mother. Crown counsel questioned how he could claim he treated her like a daughter when he took great pains to make sure they were never close enough to be alone together or hug each other without the mother’s presence. The accused did not relent in saying they were never alone in the eight or nine years of his relationship with KS-K and her mother.
43The accused recalled KS-K’s eighth birthday. He said he recalled some of KS-K’s friends came to the party and that tenants came by with well wishes. In chief, defence counsel asked him whether he touched KS-K in a sexual manner that day. The accused did not answer that question promptly. His answer was non-responsive: “I did not meet her but asked whether anyone was coming in the evening.” Defence counsel put that question to him again and his response was: “Because I took care of her as a child. Whatever she asked, I bought her.” He finally answered the question with “no” after being asked a few times.
44In chief, the accused was asked if he ever attended C[…] Drive. He again did not answer the question directly. He was asked whether he ever went there to drop off McDonald’s takeout and he admitted to that. His version of that incident however was very different from that of KS-K.
45The accused said the mother called and asked him to take McDonald’s takeout to her daughter. He said when he arrived outside the apartment building he called the mother to call KS-S to come out. He stopped his vehicle in the driveway space in front of the building door. He explained that if KS-K were to come out the door she would not be able to get back in. So he waited and handed her the food when she came to the door. The accused denied going into C[…] Drive and denied sexually touching her that day.
46The accused also testified about the incident at E[…] Rd.. Again, his account differs widely from the narratives KS-K and NC related.
47The accused testified he went over to the apartment at around 3:00 p.m. He said KS-K was not there when he arrived. He said at one point the mother and KS-K left the apartment to go to his van to place a parking permit on it. The accused said he was lying on the couch when KS-K returned and asked him for the car keys. He asked her to get the keys from his pocket in his jacket on the other couch. He said he did not realize he had the keys in a pocket on his person.
48The accused said he then took the keys from his pocket and threw them at her. He testified he did not know whether she caught the keys or whether they fell but he heard her scream. He referred to the injury to her knee and first said the key hit her in the injured area. Then when questioned by defence counsel about this he seems to have changed his evidence to say the key did not hit her knee. He said she tried to catch the key and lost her balance and hurt herself.
49The accused testified KS-K landed on the floor holding her knee. He said he apologized. He testified he was in front of the door near the couch. In chief, the accused said that KS-K sat on the floor in the corridor and that he rushed outside the door to massage her knee. He said he held her shoulder and had his other hand behind her neck. The accused testified that KS-K then said she was okay and left.
50On cross-examination, Crown counsel pointed out that KS-K’s knee injury was sustained one year earlier. His answer to that was that she screamed in pain and in a few minutes she was up and walking fine. Contrary to what the accused said in-chief, on cross-examination he said KS-K sat on the floor inside the apartment. The accused denied saying in-chief that she sat down outside in the corridor. He denied chasing her outside and dragging her into the apartment as KS-K had testified. He denied sitting on top of her as KS-K and NC had testified.
Analysis of Sexual Offences
Delay in Disclosure
51I find for reasons that follow that I believe KS-K’s evidence about the sexual abuse by the accused. Her evidence was generally internally consistent and consistent with the evidence provided by the tenant, NC, about the abuse at E[…] Rd.. It is not often that a victim of sexual abuse has a witness’s evidence to corroborate their evidence. NC’s evidence assisted in supporting the reliability and credibility of KS-K’s evidence. KS-K’s evidence went largely unchallenged under cross-examination on the material facts of the offences.
52Defence counsel challenged KS-K on her delay in reporting the abuse by the accused. He pointed to her close relationship with her mother and questioned why it took her eight years to tell her mother.
53Children are commonly reluctant to report abuse. They often fear they will not be believed or fear the adverse effect disclosure could have on the family relationships. Abusers frequently threaten the child with harm or with being removed from the family if they tell anyone. Courts have recognized that delayed reaction by children in reporting abuse, especially involving a family member, should not be viewed through the old stereotypic perspective as a sign of fabrication or falsehood:
It surely would not surprise the jury to hear, for example, that some children who are sexually abused by a parent are so humiliated that they do not want to tell anybody, but want instead to take the secret to their graves. This jury must decide whether, on the basis of their experience in life, this complainant acted after the alleged incident in a way that is consistent with her story. To assess that, the jury must consider the state of mind of the witness at the time, her age and level of maturity, her sense of confidence and composure, and the relationship between her and her alleged abuser. It may well be that the jury can draw no conclusions of consequence about her subsequent behaviour, and will decide that it is not a telling point one way or the other on the truth of her story.
[R. v. T.E.M., 1996 ABCA 31, at para 11, (A.B.C.A); see also, R. v. D.D., 2000 SCC 43, at paras. 31 and 32, (S.C.C.); R. v. C.B., 2008 ONCA 486, at paras. 38-40, (Ont. C.A.)]
54I do not find KS-K’s delay in telling her mother and speaking to the police create a credibility problem for her. We heard evidence, from what KS-K knew, that the accused was a close friend of her mother. She and her mother relied on him for a place to live, for financial support and the mother’s employment. KS-K called the accused “Uncle”. He treated her like he was her father from a very young age.
55I considered the evidence that her mother warned her about life changes and a bad reputation if she went to the police. She trusted her mother and complied with her wishes. Also important is the fact that it was KS-K’s teacher, guidance counsellor and school social worker who got the police involved because of changes in KS-K’s demeanor. Because of the concerns expressed by her mother, it was not KS-K’s intention to go to the police.
56I accept KS-K’s evidence that the accused threatened to hurt her, her mother and her friends if she told anyone about the abuse. I accept for reasons discussed later that the accused threatened her. This, I find, is a valid reason for KS-K not to have told her mother earlier, despite her understanding sexual abuse after grade 5. According to NC’s evidence, which I accept for reasons I will discuss later, KS-K had to be coaxed into telling her mother what had happened to her during the incident at E[…] Rd.. KS-K was reluctant to tell even with the support of NC as a witness.
Failure to Recall Details of Abuse
57Defence counsel challenged KS-K throughout her evidence with her failure to recall some facts related to dates, times and other peripheral details surrounding the incidents of sexual abuse. I, however, did not find that any failings in her recall adversely affected her credibility as a whole. I found her evidence to be internally consistent on the material areas of her experiences with abuse at the hands of the accused. I found her evidence consistent with NC’s evidence in relation to the confined area of NC’s observations.
58In arriving at that conclusion, I am mindful of the caution other courts have expressed in relation to assessing the evidence of children and the evidence of adults looking back and recalling childhood abuse. KS-K was age 19 at trial. She was an eight-year old child in grade 2 when the accused started to abuse her. The Supreme Court of Canada commented on the change in perspective in the law on assessing the credibility and reliability of the evidence of child witnesses:
While children may not be able to recount precise details and communicate the when and where of an event with exactitude, this does not mean that they have misconceived what happened to them and who did it. In recent years we have adopted a much more benign attitude to children's evidence, lessening the strict standards of oath taking and corroboration, and I believe that this is a desirable development. The credibility of every witness who testifies before the courts must, of course, be carefully assessed but the standard of the "reasonable adult" is not necessarily appropriate in assessing the credibility of young children.
[R. v. B. (G.), 1990 CanLII 7308 (SCC); and [1990] 2 S.C.R. 30, at p.p. 54-55, (S.C.C.)]
59In a later decision the Supreme Court of Canada held:
Every person giving testimony in court, of whatever age, is an individual, whose credibility and evidence must be assessed by reference to criteria appropriate to her mental development, understanding and ability to communicate.
[R. v. W. (R.), 1992 CanLII 56 (SCC); [1992] 2 S.C.R. 122; 74 C.C.C. (3d) 134, at p. 144, (S.C.C.)]
60The Ontario Court of Appeal affirmed the trial judge’s application of the Supreme Court caution in a case where adult complainants gave evidence of sexual assaults committed by the accused when they were children.
At p. 42 of [the trial judge’s] reasons, he noted the Supreme Court’s direction in R. v. W. (R.), at p. 134, that when the evidence of an adult witness concerns events that occurred in childhood, “the presence of inconsistencies, particularly as to peripheral matters such as time and location, should be considered in the context of the age of the witness at the time of the events to which she is testifying.” He also observed, at p. 42, that: “[t]he credibility of any witness, including children, is to be considered in the context of the witness’ capability, mental or otherwise, in the circumstances of the case.” This accords with McLachlin J.’s caution in R. v. W. (R.), at p. 144.
[R. v. O.M., 2014 ONCA 503, at para. 51, (Ont. C.A.)]
Credibility
KS-K’s Credibility
61I found KS-K to be a credible and sincere witness. She held her own under cross-examination about very embarrassing and demeaning parts of her life. She was very articulate and clear in her presentation. She spoke straightforwardly and steadfastly and was very open in admitting when she did not recall the dates or times when the incidents occurred. She did not come to court with an attitude to completely damn the accused. In spite of what she described as cruel and painful experiences, she described the accused as friendly and kind before and after the first sexual assault at C[…] St.. She called him “Uncle”. She even continued to call him “Uncle” during the trial after several years of estrangement from him.
62Defence counsel suggested she was exaggerating when she testified the abuse happened almost every day; that she was exaggerating incidents that never happened. He suggested that it is not believable with that frequency of assaults someone did not walk in or come to check what was happening during the incidents other than the one at E[…] Rd..
63As the Supreme Court has pointed out young children do not have command over peripheral matters like times, periods of time and dates. It is possible that the accused sexually assaulted KS-K almost every day. It is not entirely impossible that the accused found numerous periods of time when he could be alone with her. But even if KS-K’s account is an overstatement of the frequency of abuse, to a young child’s mind, multiple incidents of traumatic sexual assaults over a prolonged period of time may have seemed as though they occurred almost every day.
64Defence counsel challenged KS-K’s evidence that, although she screamed loudly at C[…] St. when she was being attacked by the accused, no one came to see what the screaming was about. KS-K testified that the walls in the house were thin and that there were at all times several tenants living at the home. She testified that her mother was also at home during some of the times she was being abused. But KS-K also stated that the accused would place his hand over her mouth at times to stop her from screaming.
65The master bedroom was on the second floor of the house. The tenants were on the first floor and in the basement. It may well be that tenants heard some screaming. That does not necessarily mean that they would venture forth to look into the cause. The accused agreed with the Crown that he was the patriarch of the household and that the tenants respected him and were required to obey the rules of the house. He was their landlord and he admitted he held under his sway their entitlement to shelter in his home. I find it is entirely possible that tenants might have heard screaming and chose not to interfere, in other words, to mind their business.
66Regarding the mother not discovering the abuse, KS-K testified that her mother was either not home at each of their residences, or as in the case at C[…] St., downstairs cooking or elsewhere. KS-K testified her mother cooked lunch and dinner every day at C[…] St.. The accused testified the mother did not cook every day and that she cooked only dinner. Be that as it may, KS-K said that when she got home from school she would go to the master bedroom and the accused would come into the room and assault her.
67I found KS-K’s evidence credible and plausible in view of the strength of her other evidence that the accused would come into the master bedroom and assault her without the mother being aware. If he held his hand over her mouth and threatened her as KS-K says he did and with the mother being on the floor below, it is not unreasonable to imagine the mother did not hear the assaults.
68The defence suggested to KS-K that she had a motive to fabricate. The defence pointed to the sale of C[…] St. and the fact the accused shared none of the proceeds with the mother who at the time was his wife. In spite of the fact KS-K testified she knew nothing about the sale of the house or whether her mother received any funds from the sale, defence counsel argued not receiving any money from the proceeds prompted the stories against accused.
69The problem with that theory is that KS-K did not initiate the complaint to the police, the school authorities did. Moreover, the complaint to the police occurred in the fall before the closing of the sale and the distribution of the proceeds.
70I can find no reason to doubt the credibility of KS-K’s allegations against the accused. While unfortunate for NC, her presence during the incident at E[…] Rd. and her encouragement afterwards gave KS-K the courage to tell her mother about the many years of abuse. NC’s evidence elevated this case from a purely “he-say-she say” case to one where there is some substantiation of the victim’s allegations. I find this has the overall effect of lending credibility to KS-S’s evidence as a whole.
The Accused’s Credibility
71I am not impressed with the credibility of the accused’s testimony. I found him evasive and prone to presenting evidence too difficult to be believed.
72I was first struck by the accused’s attempt to avoid answering the simple question posed by the Crown as to whether he committed sexual acts against KS-K at C[…] St. on her eighth birthday. All the answer required was a simple “yes” or “no”. But neither of those answers came from his lips until after the question was posed a few times. The answers he did give were unresponsive to the question. He referred to things that had nothing to do with a denial of sexual assault.
73After the question was posed several times the accused finally answered in the negative, but with none of the expected disgust that should accompany the denial of such an accusation. The accused is charged with committing a heinous crime against a young eight-year old girl, someone he said he treated like his own daughter. Rather than evasive dodging of the question one would expect a quick answer fervently repudiating the allegation. I did not find his late and tepid denial capable of persuading me that he did not commit that assault.
74I also considered his version of the incident at E[…] Rd.. His account strongly contrasts with those of KS-K and NC.
75NC testified that she heard KS-K’s hoarse screams asking to be left alone and to be allowed to take the keys to her mother. That brought NC out of a deep sleep and to open the door of the bedroom. She said she saw a man sitting on top of KS-K in the hallway in front of the entrance to the apartment unit. KS-K was lying on her back. The accused’s back was toward her and she could see the accused’s legs straddled on either side of KS-K’s body. NC said she could not see the accused’s hands.
76NC testified that what she saw and heard terrified her. She admitted to the court she was afraid for herself more than for the young girl she saw being attacked. I find that admission lends credibility to NC’s account since it is a statement against her interest, that is, it puts her in an unfavourable light. She was afraid of getting attacked herself. She was nonetheless still prepared to admit that sentiment as an indication of her level of fear at what she observed. She went back into bed and completely covered herself and then ran into the bathroom and locked the door.
77KS-K recounted that she returned to the apartment to retrieve the keys to the accused’s van. While she was reaching for the keys the accused touched her body. When she got the keys she tried to flee but he came behind her, grabbed her and pulled her back into the apartment from the corridor. She screamed and the accused covered her mouth. She resisted his attempts to touch her chest. He pushed her onto the floor and tried to take off her shirt and pants. Her mother then knocked on the door. She got up to let her mother in. The door had been locked and KS-K knew she had not done this herself. When she looked around she saw the accused casually sitting on the couch.
78The accused paints a rather innocuous picture of what occurred. He testified that when KS-K asked for the keys, he tossed them to her and then she screamed in pain. At first he testified the keys hit her injured knee causing her to scream and then stated she lost her balance and hurt her knee. The fact is the injury to her occurred a year earlier and KS-K testified she no longer used crutches.
79The accused had some difficulty keeping parts of his story straight. He first said that KS-K sat on the floor in the corridor and then denied this saying she sat on the floor inside the apartment. He denied she was in the corridor. He denied dragging her from the corridor. He said he apologized and held her by her shoulder and just massaged her knee. He denied sitting on top of her. He denied sexually assaulting her. He testified that within moments she got up and was walking just fine.
80NC’s account compliments that of SK-K. She came out of the bedroom after she heard the scream and could only make observations from behind the accused. But like KS-K she said KS-K was lying on her back with the accused on top of her. I accept NC’s account of her level of fear at what she heard and saw. This evidence accords with KS-K’s account of her desperate screams and attempts to escape the attack by the accused.
81I can see no motive for NC to fabricate her account. She did not know the mother or KS-K before she moved in with them. She had only lived there a few months when the incident occurred. She left the apartment a few months later and has not kept close contact with them. She has nothing to gain from testifying as she did. I find this lends credibility to her evidence.
82The accused’s evidence on the other hand had internal discrepancies and was inconsistent with the accounts of the two other witnesses, the victim and a close observer. The testimonies of KS-K and NC stood essentially unchallenged in any meaningful way. KS-K described being the victim of a frightening attack at the accused’s hands and NC vividly described her terrified reaction to what she witnessed. The fear she said she felt was palpable from the witness stand. I believe KS-K was sexually assaulted by the accused at E[…] Rd. as KS-K has alleged.
83Added to the accused’s other credibility problems is his staunch insistence that he was never alone with KS-K in the many years she and her mother had a relationship with him, even though they resided together for some eight years. He would hug her but never unless her mother was present. The accused maintained that contention side-by-side with his attempt to persuade the court of how much he cared for KS-K and treated her like one of his own.
84That assertion by the accused is implausible to say the least. It is nothing but a weak and desperate attempt to distance himself from KS-K and the heinous charges against him and to impress the court of his innocence. To my mind this actually points to guilt.
Conclusion on Sexual Offences
85For reasons set out above, I must conclude that the accused was not a credible witness. Looking at his credibility problems in the context of the totality of his evidence and the evidence of KS-K and NC, I find his guilt has been proven beyond a reasonable doubt.
86There were many instances of abuse, which I accept as a fact. KS-K could recall the details of three incidents. The accused is charged with one count each of sexual assault, sexual interference, and sexual exploitation. The E[…] Rd. incident alone supports the essential elements of all three charges. KS-K was under the age of 16 years in circumstances where, like many times before, the accused exploited her vulnerability. The accused touched KS-K’s body directly for a sexual purpose with his hands and body pushing her to the floor and sitting on top of her while he forcefully tried to remove her clothes.
87I believe as well, in relation to many other incidents, including at C[…] St. on her eighth birthday and at C[…] Drive, that he forced vaginal intercourse and digital penetration on KS-K.
88I find the Crown has proven beyond a reasonable doubt the accused’s guilt of sexual assault, sexual interference and sexual exploitation.
THREATEN BODILY HARM
89KS-K testified that as she got older the accused threatened her. She testified that when she was in grade 5 and living at C[…] Drive, he threatened that if she ever told anyone about the sexual abuse he would hurt her, her mother and her friends. He made this threat several times at C[…] Drive and KS-K said she took him seriously. This frightened her and made her not want to tell her mother.
90The accused denied this. When I view the denial in the context of the accused’s overall credibility problems, I cannot accept it. It stands to reason that part of KS-K’s reason for delaying to disclose the abuse to anyone for so many years is fear of the accused, fear he would make good his threats. She only gained the courage to tell her mother because someone else saw something horrible happening to her. She only spoke to the police after school authorities reported the abuse first causing the police to unexpectedly visit her home.
91I find the Crown has proven beyond a reasonable doubt that the accused threatened KS-K with bodily harm.
COMMON ASSAULT
92KS-K testified the accused started treating her more roughly as she got older. He would hit her and push her forcefully. One of those times was when he attacked her at E[…] Rd.. She testified he pushed her to the floor onto her back. The accused denied ever assaulting her in any way.
93When I consider the evidence as a whole nothing in the defence’s or Crown’s evidence raises a reasonable doubt in my mind that the accused assaulted KS-K at E[…] Rd. and on many other occasions.
ASSAULT WITH A WEAPON
KS-K’s Evidence
94KS-K testified that when she was about age 10 or 11, in grade 9 or 10, while living at C[…] St. the accused hit her with a cable wire while she was with her mother doing her homework on the bed in the master bedroom. She said she saw a spider on the accused’s shoulder so she thought she could get it off by throwing a crayon at it. She had no intention of hitting him and in fact she said the crayon flew past him without hitting him. This is why she thought the accused got so angry. She was wrong about that.
95KS-K testified he stormed furiously over to the TV and pulled out the cable wire and began beating her with it. Her mother tried to protect her but KS-K pushed her mother away and took the brunt of the beating. The accused struck KS-K on her back, arms, legs and head. She remarked that she still has a small dent on the back of her head until today. KS-K testified she went to the doctor for the injury. But she did not report the cause of the injury because she was under age and feared the doctor might call the Children’s Aid Society.
The Accused’s Evidence
96The accused testified about the real reason he got angry with KS-K that day. He admitted to hitting KS-K with the cable wire. However, his evidence fluctuated between him saying he did not actually strike her with the cable wire because the mother prevented it, to saying he hit her once before the mother stopped him, to saying he was slapping her not very hard over her clothes. He said after he was done he threw the cable wire on the bed and left the room.
97The accused was asked on cross-examination why he would hit a 10 or 11-year old girl with a cable wire. The accused explained that on that day he was asleep on the couch in the living room. Someone knocked at the front door and one of the tenants answered the door. The verbal exchanges involving the boy who knocked at the door are hearsay which I accept as narrative and to explain the accused’s state of mind. The tenant was speaking to the person, a black boy, who when asked why he was there, told the tenant he came to speak to KS-K. The tenant called the accused to the door.
98The boy told the accused that he wanted to speak to KS-K. The accused turned profoundly angry on the witness stand when speaking about this, so much so that Crown counsel suggested he settle down. He testified he responded angrily telling the boy that KS-K was not at home and he went on to tell the boy, “If you come again I will call the police”. The accused said the tenant told him the boy was KS-K’s boyfriend. The accused admitted he stormed into the master bedroom where KS-K and her mother were sitting on the bed and furiously told KS-K she did not need a boyfriend. He asked her, “Are you bringing all the black people here?” He told her he did not want her to bring unknown people to his house.
Conclusion
99An assault does not require a finding of a hard hitting. An assault can be a soft touch or even a threat. The accused admitted as much, to lightly slapping KS-K over her clothes with the cable. However, given his admissions as to his level of anger and his courtroom demeanor, I am more inclined to believe KS-K’s evidence that the accused beat her very hard with the cable wire, hard enough to leave a dent in her head.
100A weapon for the purposes of criminal law is:anything designed to be used as a weapon; anything that a person uses as a weapon, whether that thing is designed as a weapon or not; and anything that one intends to use as a weapon regardless of its design: R. v. Cassidy, 1989 CanLII 25 (SCC), [1989] 2 S.C.R. 345 (S.C.C.). The accused used the cable wire as a weapon when he beat KS-K with it.
101I find the Crown has proven beyond a reasonable doubt that the accused assaulted KS-K with a weapon.
VERDICT
102For the foregoing reasons, I am satisfied the Crown has proven SA’s guilt beyond a reasonable doubt on counts 1, 2, 3, 4, 5 and 6 on the indictment.
103I find SA guilty on counts 1 to 6 on the indictment and convictions will be entered accordingly.
B.A. ALLEN J.
Released: May 24, 2017
CITATION: R. v. S.A., 2017 ONSC 3169
COURT FILE NO.: CR-16-30000296-0000
DATE: 20170524
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
S.A.
Accused
REASONS FOR JUDGMENT
B.A. ALLEN J.
Released: May 24, 2017