ONTARIO
SUPERIOR COURT OF JUSTICE
CITATION: R. v. W.W., 2017 ONSC 4535
COURT FILE NO.: CR-16-1746-00
DATE: 20170727
B E T W E E N:
HER MAJESTY THE QUEEN
E. Norman, for the Crown
- and -
W.W.
R. Norris, for the defence
HEARD: June 26, 27, 28, 29, 2017, at Brampton
REASONS FOR JUDGMENT
RESTRICTION ON PUBLICATION
By court order made under subsection 486.4(1) of the Criminal Code, information that may identify the person described in this judgment as the complainant may not be published, broadcasted or transmitted in any manner. This judgment complies with this restriction so that it can be published.
André J.
[1] The Peel Regional Police Force charged W.W. with four sexual assault related offences involving J.M., W.W.’s adopted son, which allegedly occurred during a seven-year period ending in 1985. In the course of the trial, the court heard evidence from J.M., two of his sisters, W.W. and his nephew. During his testimony, W.W. professed his innocence and denied all of the allegations against him.
SUMMARY OF THE EVIDENCE
[2] J.M., who is now 46 years old, was born in 1971. His father left his family shortly after J.M. was born. By all accounts, J.M. longed for a father figure in his life to a point of approaching unknown males on the street and asking them to adopt him.
[3] W.W. married J.M.’s mother on August 17, 1978 and formally adopted J.M. W.W. lived with J.M.’s family until 1987 or 1988 when J.M.’s mother asked him to leave the family home. During the decade in which W.W. lived with the family, the family frequently changed residences and lived in a number of cities including Mississauga, Brampton, Etobicoke, North Bay, St. Catharines and again Mississauga. The main reason for moving was W.W. being laid off from his drafting job at various companies where he had secured employment.
[4] The family household was comprised of W.W. and his wife C.W., J.M. and his sisters J.1 and J.2. Of the two sisters, J.1 was the elder. She was five years older than J.M. and by all accounts, was hardly in the house when the alleged sexual assaults took place. J.2 was seven years younger than J.1 and two years younger than J.M.
[5] The siblings had a difficult relationship. J.1 frequently “beat up” J.M. while J.M. in turn abused J.2. The children’s mother, who at times worked two jobs and at others babysat other children, paid scant attention to J.M. who was described as a hyperactive child.
[6] J.M. doted on W.W. and regarded him as his father. W.W. testified that adopting J.M. was J.M.’s idea. J.M., on the other hand, testified that the adoption was W.W.’s idea but that he, J.M., agreed to it. J.M. was so attached to W.W. that he changed his name to W.W. Jr. after W.W. formally entered his life. Even after W.W. left the family in 1988, J.M. visited W.W. and gave him a Father’s Day gift.
[7] The alleged sexual abuse commenced when J.M. was about seven years old. W.W. tried to help him get over a bedwetting problem. W.W. held J.M.’s penis to enable him to pee. He did so while the family lived in Mississauga.
[8] The family moved to Brampton before J.M. turned eight years old. J.M. was baptized in the Mormon Church when he was eight years old. W.W. started to sexually touch J.M. while the two stayed up late on Saturdays looking at hockey during “Hockey Night” on the Canadian Broadcasting Corporation (CBC) program. The hockey season started in September. During these nights, J.1 would be out of the home, while J.M.’s mother and J.2 would be in their bedrooms.
[9] During the hockey game, J.M. sat beside W.W. on the couch. W.W. would ask J.M. to sit on his lap. W.W. would move J.M. around on his crotch and then touch his bottom and other parts. This touching occurred over J.M.’s clothes. J.M. estimated that W.W. touched him over his clothes on at least twenty occasions.
[10] The touching, which started while the family lived in Brampton, escalated. W.W. started coming into J.M.’s room at nights. He would have J.M. touch his penis first over the clothes and then under. He would have J.M. perform oral sex on him. W.W. had J.M. perform oral sex on him during a baptismal rehearsal at the Mormon Church. There was a male adult present in the church’s change room when this occurred. This male, J.E., who adopted two of W.W.’s relatives, saw what happened. W.W. brought J.M.’s head to his groin and put his penis into J.M.’s mouth. J.M. stated that W.W. ejaculated in his mouth.
[11] J.M. never told his mother about the alleged incidents of sexual abuse. W.W. told him that performing the sexual acts was good and that that’s what good sons did.
[12] J.M. stated that W.W. also abused him in J.M.’s room approximately twice. W.W. had him wear J.M.’s sister’s panties. W.W. told J.M. that he liked J.M. to wear his sister’s panties.
[13] Following the incident at the Church, the sexual incidents escalated at the family’s various residences. On one occasion, J.M. told W.W. that the sexual acts “didn’t feel right.” W.W. replied that good sons did what J.M. was being asked to do. He also said that if J.M. told anyone about the acts, it would break up his own family.
[14] J.M. also testified that W.W. rewarded him by giving him a dog at various times. W.W. gave him at least four dogs. J.M. also got pop, chips and video game money from W.W.
[15] The oral sex commenced at the Mormon Church and continued in J.M.’s room while the family lived in Brampton. These acts continued when the family lived in Etobicoke, North Bay and St. Catharines. A relative who was one year younger than J.M. lived with the family at the Etobicoke address. W.W. did not assault J.M. during this month.
[16] After this relative left, the sexual acts continued when the two watched hockey and later in J.M.’s room. W.W. would get mad when J.M. refused to wear panties. W.W. would then have J.M. wear J.2’s panties and, on one occasion, her “lime green” dress. W.W. would have J.M. touch his penis and rub it. W.W. would then ejaculate.
[17] W.W. allegedly performed anal sex on J.M. at the end of the Christmas holidays in 1981 when J.M. was in Grade 4. W.W. first had J.M. perform oral sex on him. He then asked J.M. to stand up. W.W. stood behind J.M. who was then at the foot of the bed and removed the female underwear J.M. was wearing. He then spread J.M.’s buttocks and penetrated him for 15 to 20 minutes. During the incident, J.M. repeatedly told W.W. to stop. W.W. replied that J.M. should stay quiet. J.M. was bleeding after this incident. W.W. accompanied J.M. to the washroom. He retrieved a tampon underneath the sink and placed it in J.M. buttocks. The next day, W.W. told J.M. not to tell anyone.
[18] W.W. had anal sex with J.M. during the following March Break. There were two incidents during this period, both at night time. There was mutual touching in the first incident and J.M. was required to perform oral sex on W.W. Following this incident W.W. wanted to have a shower. The two showered together. W.W. penetrated J.M. “a little” while the two were in the shower. He did so with his finger.
[19] The two returned to J.M.’s bedroom. W.W. raped J.M. again. The incident lasted around five minutes. W.W. ejaculated inside J.M.
[20] J.M. was bleeding after this alleged incident. He got a tampon from the washroom and inserted it into his buttocks.
[21] Later that night, W.W. again came into J.M.’s room. J.M. performed oral sex on W.W. W.W. then pulled out a tampon for J.M. and proceeded to have anal sex with him. Afterwards, J.M. told W.W. that he did not wish to do it anymore and that he would tell his mother. W.W. replied that if J.M. told on him, it would tear the family apart.
[22] A week or two later W.W. got J.M. a dog. Soon after, the sexual touching, masturbation and oral sex started again.
[23] The family moved to North Bay when J.M. was ten years old. Two of W.W.’s nephews lived with them for about a month. Before they did, there was, according to J.M., “a little bit of oral” between the two. The sexual activity continued after W.W.’s relatives left the home. J.M. found some porno magazines and placed them under his mattress. Later, W.W. and J.M. looked at the magazines and then touched each other’s penises. On one occasion during March, W.W. engaged in anal sex with J.M. He also digitally penetrated J.M. On another occasion in North Bay, J.M. performed oral sex on W.W. Afterwards, W.W. had J.M. turn around W.W. then inserted either his penis or finger into J.M.’s buttocks. J.M. suffered bleeding and used a tampon to stop it.
[24] J.M. recalled being anally penetrated in North Bay during March Break when he was eleven years old.
[25] The sexual abuse continued in Kitchener when the family, after living in separate residences, found a residence where they all lived together. J.M. was turning twelve when they moved. During one incident, when J.M. was not at school during March Break, W.W. entered his room late at night and had anal sex with him. There were other incidents of a sexual nature between the two such as W.W. touching J.M.’s penis.
[26] After a year and a half in Kitchener, the family moved to an apartment in Mississauga. There was not much sexual contact at that residence because of rising tension in the home. J.M. was getting beaten up at school and was engaging in destructive behaviour such as lighting fires at school and drinking alcohol which he got from J.1 and her friends. In one incident, W.W. came into J.M.’s room during the night. J.M. performed oral sex on W.W. W.W. then had anal sex with J.M.
[27] J.M. was last touched by W.W. when J.M. was thirteen years old. J.M. could not recall why the sexual activity stopped. He recalled that W.W. moved out of the home. He saw W.W. six months later at a Burger King restaurant and gave him a present.
[28] J.M. told a church counsellor about the abuse when J.M. was thirteen or fourteen years old but the counsellor thought he was lying. He also told his biological father when he was eight years old but this father berated him for stealing ten dollars from him. J.M. did not tell either sister about the abuse.
[29] J.1 did not testify; however her videotaped statement was admitted on consent, for the truth of its contents, as part of the Crown’s case. In it J.1 indicated that she had no knowledge of the abuse and that she thought W.W. was lazy. She also stated that there were no tampons in the house and that she only started to use them when she was eighteen years old. She told the police that her underwear never went missing; however, on a few occasions in North Bay, she found her bathing suit on the floor in J.M.’s room. She also said that she heard footsteps upstairs every night.
[30] J.2 testified that she knew about the abuse when she about eleven years old. On one occasion she saw W.W. walking naked towards J.M.’s room. She saw him go past her room to J.M.’s room. She also heard noises and commotion in the house but kept a pillow over her ears to shut out the noises. She did not see W.W. enter her brother’s room.
[31] J.2 also testified that their mother would lock herself in her bedroom and that J.1 was anywhere but home. She also stated that she had a “green sparkly dress” that went missing.
[32] J.2 noted that there were tampons in the house. They were kept under the sink in the bathroom. She also said that W.W. and J.M. would watch hockey in the living room when she was younger. They would be seated side by side on the couch during hockey games.
[33] J.2 also testified that J.M. and herself were celebrating when W.W. moved out of the home. She said that she disliked W.W. as did J.M. She noted that J.M. was so elated at W.W.’s departure that he broke a vase in celebration.
[34] W.W. denied ever touching or sexually assaulting J.M. He testified that he had a “fine” relationship with his wife’s children. He admitted to looking at hockey with J.M.; however stated that they sat on the floor, not on the couch while doing so. He denied ever having J.M. sit on his lap.
[35] J.M.’s name change was J.M.’s idea, not his. W.W. described J.M. as hyper. He was never alone with J.M. He noted that J.M. helped him pack when he left the family home. The lamp broke when W.W. tripped over its cord. W.W. described the family as a “happy family with no issues.”
[36] S.C., W.W.’s nephew, described W.W. as a hockey fanatic. He said that on one occasion, J.M. told him that he wanted to change his name to Billy and that after doing so, J.M. did not wish to be called Jimmy. He did not witness any inappropriate conduct between W.W. and J.M. J.M. was very curious about S.C.’s family and wanted to belong to the family.
ANALYSIS
Governing Principles
[37] In cases where the credibility of the witnesses is determinative of the guilt or innocence of the accused, the Supreme Court of Canada’s decision in R. v. W.D., [1991] 1 S.C.R. 742, provides an analytical framework to determine whether the Crown has met its evidentiary burden:
(1) If the court believes the accused, then he should be acquitted;
(2) If the court disbelieves the accused’s evidence; but is left in a state of reasonable doubt by it, he should be acquitted;
(3) Even if the court disbelieves the accused’s evidence and is not left in a reasonable doubt by it, the court must nevertheless be satisfied of his guilt beyond a reasonable doubt, based on a totality of evidence it accepts.
[38] This framework does not necessarily involve a meticulous dissection of the evidence of an accused in search of telltale flaws or shortcomings which may support a conclusion that he or she should be disbelieved or that his or her evidence creates a reasonable doubt in the Crown’s case. Indeed, the Court of Appeal noted in R. v. C.F., 2017 ONCA 480, at para. 35 that “acceptance of compelling evidence of a complainant may provide a reasonable basis for rejecting an accused’s denial of allegations.” Furthermore, Doherty J.A. noted in R. v. J.J.R.D., 215 C.C.C. (3d) 252 (Ont. C.A.), at para. 53 that:
An outright rejection of an accused's evidence based on a considered and reasoned acceptance beyond a reasonable doubt of the truth of conflicting credible evidence is as much an explanation for the rejection of an accused's evidence as is a rejection based on a problem identified with the way the accused testified or the substance of the accused's evidence.
[39] I am also mindful of the jurisprudence relating to adults testifying about incidents that allegedly occurred when they were children. In R. v. W.(R.), [1992] 2 S.C.R 122, for example, the Supreme Court of Canada noted at page 134 that:
In general, where an adult is testifying as to events which occurred when she was a child, her credibility should be assessed according to criteria applicable to her as an adult witness. Yet with regard to her evidence pertaining to events which 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.
[40] Is there a reasonable basis in this case for rejecting W.W.’s denial of the allegations or for concluding that it does not raise a reasonable doubt in the Crown’s case? In my view there is. It emerges from both an acceptance of the complainant’s evidence and from concerns arising from the substance of W.W.’s evidence.
[41] First, W.W. testified that the family was fine and that there were no issues. That was clearly not the case. J.1 was virtually always outside the home, interacting with her friends. J.2 testified that she disliked W.W. She indicated that on one occasion W.W. rubbed her underwear on her nose because of her bedwetting. She also testified that most of the time her mother locked herself in her bedroom. Finally, even W.W. testified that J.M. was a liar who was very hyper in his youth. There was also evidence that J.1 often beat up her brother who in turn abused his younger sister. Based on this evidence, it is clear that this was a very dysfunctional family where there was little cohesion or family unity.
[42] Second, W.W. testified that he was never alone with J.M. However, he conceded that there were times when he watched hockey with J.M. J.2 confirmed this in her testimony that the two sat on the couch “side by side” while watching hockey.
[43] Third, W.W. denied that he sat on the couch with J.M. while the two watched hockey. J.2 corroborated J.M.’s testimony that they did.
[44] W.W.’s counsel submits that the court should place little weight on J.2’s testimony given her avowed dislike of W.W.
[45] J.2 was quite candid that she disliked W.W. because of the way he treated her on account of her bedwetting. However, she did not appear to embellish her testimony about the events that she testified about. She said that she saw W.W. walking towards her brother’s room; however, she stopped short of testifying that she saw him enter J.M.’s room. She also testified that she heard voices during the night but stopped short of saying that it was W.W. and J.M.’s voices that she had heard.
[46] Furthermore, there is no evidence of collusion between J.M. and J.2. The fact that she held W.W. to be partially responsible for the alleged sexual abuse is not proof of collusion. Indeed, her evidence suggests that she did not collude with J.M. For example, she testified that both J.M. and herself were happy when W.W. left their house in the 1980s. J.M. however, testified that he was sad when that occurred and that he even gave W.W. a Father’s Day gift after W.W. had left the home. For these reasons, I find that with much of her evidence, J.2 was both a credible and reliable witness.
[47] W.W. denied the rape allegations partly on the ground that there were no tampons in the home at the time of the alleged assaults and the testimony of J.1 to the effect that she only started to use tampons when she was eighteen years old. J.1 also testified that when she asked J.M. about the alleged sexual abuse, he denied that they had taken place.
[48] I have a number of concerns regarding J.1’s statement to the police. She could not testify because, rather unfortunately, she now suffers from dementia. She testified at the preliminary hearing that her memory loss dated back to 2014, well before her December 11, 2015 statement to the police. Additionally, she testified at the preliminary hearing that she started her monthly menstrual cycle at aged fifteen and that she sometimes used tampons whenever her mother purchased them. Significantly, J.1 also testified at that hearing that the tampons were kept in the bathroom.
[49] J.2 contradicted her sister’s statement to the police concerning the presence of tampons in the family home. She testified that J.1 started to get her periods when she was fourteen; or when J.M. was nine years old. She also testified that the tampons were kept under the sink in the bathroom.
[50] I do not accept J.1’s statement that J.M. denied the allegations to her given her dislike for him and her treatment of him in the past.
[51] Given J.1’s illness, her absence from the home, her inconsistent statements and her antipathy towards J.M., I place little weight on her testimony regarding the presence of tampons in the home and what J.M. allegedly said to her about the alleged sexual abuse.
[52] For the above reasons, I do not accept W.W.’s evidence neither do I find that it is capable of raising a reasonable doubt in the Crown’s case.
[53] This leads me to the evidence of J.M. He testified in a straightforward manner, providing details concerning the incidents as he remembered them. He could not recall much of what was said by W.W. during the incidents he described. However, he recalled the family’s various residences and sketched their layouts. He also admitted that he did bad things in his youth such as abusing J.2 and misbehaving at school. When pressed that he was a consummate liar in his youth, he replied that he lied about the fact that everything was fine in his family.
[54] There was nothing contrived or questionable about J.M.’s testimony. There were no internal inconsistencies which raised any concerns about his testimony. W.W.’s counsel raised the spectre of J.M.’s failure to report the incident when they allegedly occurred. J.M. gave reasons for this alleged failure which are entirely plausible. First, he stated that he feared that he would not be believed, given that he was regarded as a liar. Indeed, his fears were confirmed when he was eight years old. He testified that he told his biological father about the abuse but his father berated him instead for the theft of ten dollars.
[55] Second, J.M. did not tell anyone because of W.W.’s threat that he, J.M. would break up the family if he did. To a young man who was obsessed with being accepted in W.W.’s family, this was no idle threat. It is entirely conceivable that J.M. did not report the incident for fear of being without a father once again.
[56] Another perceived inconsistency about J.M.’s evidence is the fact that he asked to meet with W.W. after W.W. had left the home and had even given a gift to his alleged abuser.
[57] That poignant act by J.M. however, does not constitute evidence which impeaches his credibility. To the contrary, it is consistent with the picture of a troubled young man who desperately wanted to have a father in his life. Even W.W. conceded, under cross-examination, that J.M. doted on him. W.W.’s nephew, S.C., also testified that J.M. wanted to be part of W.W.’s family. J.M. even changed his name, either on his own initiative or on someone else’s, to that of W.W.
[58] Furthermore, the assumption that J.M. would have wanted nothing to do with W.W. if W.W. had abused him is based on a stereotypical myth that fails to appreciate the complexities of the adult/child relationship.
[59] J.M.’s mother hardly interacted with her son. J.1 beat him up. He abused his younger sister. He craved the love and attention of W.W. It is hardly surprising that even after being abused, J.M. would harbour feelings of affection for W.W.
[60] Defence counsel submits that J.M.’s demeanour during his examination-in-chief and cross-examination raises concerns about his credibility. He submits that J.M. was direct and straightforward in chief but evasive, argumentative and sarcastic during cross-examination.
[61] In the first place, I cannot place too much emphasis on a witness’s demeanour to assess his or her credibility. Second, J.M. raised his voice several times particularly when describing the incidents involving anal intercourse. His voice broke on several occasions during his testimony prompting the court to take a few unscheduled breaks to enable him to regain his composure. J.M.’s demeanour, in my view, cannot be construed as an indictment of his credibility or reliability; rather, it constitutes evidence of the profound impact his experiences with W.W. have had on him.
[62] J.M.’s account is also credible and reliable because of the virtual absence of any inconsistencies between his testimony and his prior statements. Defence counsel points to one apparent inconsistency in J.M.’s testimony by indicating that J.M. made no mention about performing oral sex on W.W. at the baptism event about which he testified.
[63] J.M. agreed that he told the police that this was the first time there had been any “under clothes” touching between W.W. and himself. In re-examination however, J.M. testified that before making a statement to the police, he had created a timeline at the place he was receiving counselling in which he had written that W.W. made him perform oral sex at the baptism event. This inconsistency is more apparent than real. It does not undermine J.M.’s credibility.
[64] Defence counsel submits that J.M. has a motive or motives to lie. He was angry with W.W. for leaving the family. Second, J.M. was convicted of aggravated assault and sentenced to two years imprisonment less a day. He served five months in jail but was released pending the hearing of his appeal of his conviction and sentence. J.M. testified that he sought insight into the alleged sexual abuse. He was diagnosed with Post Traumatic Stress Disorder and has received counselling for his experiences as a child.
[65] There is no evidence that J.M.’s conviction had anything to do with the allegations against W.W. The incident which led to J.M.’s conviction involved his second wife, who is unrelated to W.W. His reporting of the alleged sexual abuse is unconnected to his sentence. To that extent, J.M’s criminal record is not a factor in the assessment of his credibility.
[66] J.M. candidly admitted that he lied during his childhood. He explained that he lied about having a good father and a good family. Given his feelings about having a family, this desire to portray his family in a good light is not altogether surprising.
[67] J.M. testified that the counselling he received enabled him to recall the traumatic events of his youth. It is incumbent upon this court to ensure that J.M.’s allegations about being abused has neither been invented or implanted. The need to ensure this dictates that in cases involving adult testimony about alleged childhood abuse, it is prudent to determine whether or not there is other evidence which bolsters the account of the witness. This may not be necessary in every case involving allegations of historical sexual abuse but it is necessary in this case.
[68] In my view, such evidence exists in this case. J.2 testified that she saw W.W. walking towards J.M.’s room while naked. He would have walked past the washroom when she saw him. J.2 was not shaken in cross-examination on this evidence. What legitimate reason would W.W. have had to do this? In my view, he would have none.
[69] Second, J.2 testified that she heard noises or footsteps during the night. Undoubtedly, these footsteps could have an innocent explanation such as someone going to the bathroom. They could have been caused by J.1 when returning from a nightly excursion with her friends. However, J.1 also told the police that she heard noises upstairs every night.
[70] Third, J.2 testified that when she was six to seven years old, her underwear frequently went missing. Her green “sparkly” dress also went missing, as did J.1’s red bathing suit. She also found a bathing suit bottom in J.M.’s room. Again, there may be an innocent explanation for this. However, J.M. testified that W.W. required him, on occasion, to wear his sister’s panties and that he took them as a result.
[71] Additionally, J.M. testified about being required to use tampons following anal intercourse. J.2’s evidence confirms not only the presence of tampons in the family residences when the incidents took place, but the place where they were kept. J.1’s statement that there were no tampons in the house during the operative period is neither credible or reliable.
[72] Furthermore, there is corroborative evidence that the opportunity existed in the household for the offences to have been committed. J.2, J.1 and even W.W. all indicated that J.1 was seldom present in the residence. J.M.’s mother, according to J.2, locked herself in her room. J.2 was fearful of disclosing what she had seen and kept the information to herself. She also went to sleep by 8:30 p.m. This evidence confirms that W.W. had the opportunity to be alone with J.M. during Hockey Night and later in J.M.’s bedroom.
[73] Based on the above, I find as a fact that during the six and a half year period set out in the indictment, W.W. engaged in numerous sexual acts with J.M. including “over the clothes” touching of J.M.’s buttocks and penis, “under the clothes” touching including mutual masturbation and anal penetration which caused J.M. to bleed. I also find as a fact that W.W. succeeded in ensuring J.M.’s silence by threatening him with the unwelcome prospect that disclosure of the abuse would lead to a breakup of the family and that J.M. would be the author of this breakup. J.M., who was desperate to keep the family intact, maintained his silence while enduring the sexual assaults.
CONCLUSION
[74] Based on the above, I find W.W. guilty of the following offences:
(1) Count #1, Guilty of buggery during the 7-year period ending on 31st day of December, 1985;
(2) Count #2, Guilty of indecent assault during the 5 year period ending on or about the 3rd of January 1983; and
(3) Count #3, Guilty of sexual assault between January 4, 1984 to December 31, 1985.
[75] Count #4 which alleges an act of gross indecency during the 7 year period ending on 31st day of December, 1985 is stayed based on the Kienapple principle.
André J.
Released: July 27, 2017
CITATION: R. v. W.W., 2017 ONSC 4535
COURT FILE NO.: CR-16-1534-00
DATE: 20170727
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and –
W.W.
REASONS FOR JUDGMENT
André J.
Released: July 27, 2017