ONTARIO
SUPERIOR COURT OF JUSTICE
CITATION: R. v. M.D., 2017 ONSC 466
COURT FILE NO.: 15-158-00
DATE: January 20, 2017
B E T W E E N:
HER MAJESTY THE QUEEN
Elizabeth Ives-Ruyter, for Her Majesty the Queen
Applicant
- and -
M.D.
Mark Huckabone, for the Respondent
Respondent
HEARD: January 9 to 13, 16, 2017
Restriction on Publication:
By order of the court pursuant to section 486.4 of the Criminal Code,
any information that could identify a complainant or a witness shall not be
published in any document or broadcast or transmitted in any way.
DECISION
JAMES J.
The Facts
[1] This case involves numerous charges against Mr. M.D. arising from allegations of a sexual nature made by three daughters. The two oldest complainants, G.F. and D.D., are step-daughters of Mr. M.D.. The third complainant, D.D.1, is one of two biological daughters of Mr. M.D.. The youngest daughter, D., is not a complainant.
[2] Mr. M.D. is 48 years old. He previously served in the Canadian Forces for thirty years and retired as a corporal.
[3] For the sake of clarity and convenience, I will sometimes refer to the complainants by their first names because two of them share a common surname.
[4] At the conclusion of the evidence portion of the trial, Crown counsel requested that several counts be withdrawn. They are counts 14, 16, 18, 19 and 20, all in relation to the complainant, D.D.1, leaving one count each of sexual interference, sexual assault and sexual exploitation in place in relation to this complainant.
Evidence of G.F.
[5] Ms. G.F. is the eldest of the four D. girls. She is 30 years old. Her surname at birth was K. and she was adopted at some point by her step-father, Mr. M.D., after he married G.F.’s mother, C.D..
[6] She was 7 years old when her family moved to Petawawa as a result of Mr. M.D.’s transfer from Oromocto, New Brunswick. They lived in the PMQs at G[…].
[7] She testified that it was common for Mr. M.D. to play with G.F. and her younger sister D.D. on Saturday mornings. This play included tickling. The girls would be in their pyjamas. She recalled that there were times during this play that Mr. M.D. pressed his penis against her, usually in the area upper leg/thigh portion of her body. She thinks he had an erection but is not sure. She can remember his penis pressing against different parts of her body, usually somewhere below the waist, and the uncomfortable feeling she got when it happened. She said that her memory of this activity is vivid.
[8] When G.F. was 10 years old the family moved to a house her parents purchased on S[…] Road in nearby Alice Township. She cannot remember any instances of Mr. M.D. pressing his penis against her after they moved to their new house on S[…] Road.
[9] At around 12 years of age G.F. recalls Mr. M.D. making inappropriate comments about her appearance. Once when she was wearing a bathing suit Mr. M.D. said she was sexy looking. She thought his comment was intended to be complimentary but to her it was inappropriate and out of place. Another time he told her that her breasts were bigger than her mother’s. Once he said that if he was younger, he would be all over her. These comments were unwelcomed and made her feel uncomfortable. By way of explanation, Mr. M.D. said that he may have made similar comments but they were intended to boost G.F.’s confidence about her appearance.
[10] G.F. testified at age 13 there were instances when Mr. M.D. provided her with alcohol, sometimes as a mickey of whisky, and cigarettes. When she was caught by her mother with alcohol, in an effort to avoid being grounded, she said her dad had provided the alcohol. This disclosure led to Mr. M.D. not speaking to G.F. for six months.
[11] Mr. M.D. agreed he gave her what he called the silent treatment, just as G.F. described, but said it was because of her impertinence in her dealings with her parents. He denied providing her with alcohol and said that she stole his cigarettes. He did not give them to her.
[12] G.F. said the atmosphere in the home was charged with anger and conflict. Everyone tended to argue a lot, yelling was common and it was not unusual for Mr. M.D. to throw things when he was angry. Her parents frequently had angry confrontations. Mr. M.D. acknowledged in his testimony that he had a very bad temper.
[13] G.F. said she resented her mother because she felt her mother was not doing enough to protect her from her father’s punishments. She wasn’t afraid that Mr. M.D. would be violent towards her. It was his meanness that made her feel unsafe. She testified that she called Family and Children’s Services (“FCS”) as a young teenager because she wanted to leave the home and she thought that FCS might facilitate her living elsewhere. She said she did not recall very much about this call.
[14] G.F. moved out of the home in 2001 when she was 15. She lived with the family of a friend for about a year and a half until she enrolled in college in North Bay.
[15] She dropped out at Christmas and enrolled in another program at A[…] College in Ottawa the following September. Again she did not complete the program. She returned to A[…] College again. This time she successfully completed the Law Clerks program and obtained employment in the Crown Attorney’s Office for two years.
[16] G.F. left the Crown Attorney’s Office to enroll in a BA program at Queens, later transferring to the University of Ottawa where she obtained her degree. This was followed by her acceptance into the B.Ed program at Ottawa U. which she completed successfully. Currently she works as an occasional teacher in Ottawa.
[17] Between the ages of 15 and 18, after moving out of the family home, G.F. would sometimes return for as much as a week at a time. On one of these visits, while she was sleeping alone in a bedroom and lying on her back, Mr. M.D. entered the room and kissed her on the mouth. She was awakened by the kiss and asked her father what he was doing. He told her to go back to sleep and left the room. The next morning she asked him why he had kissed her and he said that she was mistaken and must have been dreaming. She said there were many possible innocent explanations for the kiss, such as he loved her or missed her or was glad to have her back in the home, but when he flatly denied that it had happened, his denial triggered a red flag. She was sure that the kiss had happened and his denial indicated to her that something wasn’t right. The kiss was completely out of character for her father. She testified that this was the only time in her entire life that she can recall Mr. M.D. giving her a kiss. She added that although she sought his affection while growing up, he never reciprocated by telling her that he loved her or by showing her affection in return.
[18] G.F. said that her father told the family in 2008 that he wanted a divorce. He had been living in North Bay for almost two years at the time. G.F. was living independently in Ottawa. Her mother’s attitude changed immediately. Now she wanted to make things difficult for Mr. M.D.. G.F. said her mother had her own agenda vis-à-vis her husband that G.F. didn’t want any part of.
[19] There was an ugly incident that took place at the family home after her parents had formally separated. Mr. M.D. returned to the house to get some belongings. G.F. and D.D. had travelled with their father from Ottawa. D.D. had some things she wanted to get as well. Mr. M.D. notified the police in advance that he was planning to go to the house. There were two police officers there when they arrived. An argument broke out on the back deck. Katherine accused her husband of molesting the children to which G.F. said she responded by saying, “And you did nothing”.
[20] In response to the suggestion in cross-examination that G.F. denied that she had been molested, G.F. said that she did not deny being molested. She did not think her mother was including her in the comment about the children being molested. G.F. knew in general terms that there had been allegations respecting her sisters, but she did not know the details. When G.F. said “And you did nothing”, she was referring to the alleged inaction of her mother in response to the allegations that the other girls had made.
[21] Mr. M.D.’s version of the discussion was that G.F. responded to her mother’s allegation by saying, “Not me” and D.D. said, “Me neither”.
[22] G.F. said her relationship with her mother has been quite difficult, especially when G.F. was between the ages of 18 to 25. There was a period of about four years when they did not speak. She said her mother tried to guilt her into going to the police, presumably with allegations against Mr. M.D., but G.F. didn’t want to have anything to do with what she perceived as her mother’s manipulative behaviour.
Evidence of D.D.
[23] D.D. is currently 29 years old. She was about 4 or 5 years old when Mr. M.D. became her step-father. She was about 5 years old when the family moved to Petawawa. She recalled an incident in the family home when they were living on the PMQs. It was on a weekend. She was in the basement watching cartoons. The basement was unfinished but there was a couch, a TV and a play area. Her sister G.F. was nearby. She testified that Mr. M.D. lifted her onto his lap facing him. She was wearing a purple nightie and underwear. As she sat straddling his lap, Mr. M.D. lifted her nightie a little and she could feel his penis against her vaginal area. He was wearing jeans and a shirt. She said he was pulling her into him with his hands on her hips. She said it felt like there was something hard in his pants. His breathing became more heavy and rapid than it had been a moment before. After a few minutes he lifted her off his lap. She saw that his fly was unzipped and she thought she could see the skin of his penis. No words were spoken and they went about the rest of the day in a normal way.
[24] It was not clear how old she was at the time but D.D. would have had to have been between the ages of about 5 and 9 because the family moved to a house on S[…] Road when she was 9 years old.
[25] D.D. does not recall any other incidents while they lived in the PMQs in Petawawa but there were several more incidents after they moved to their new house.
[26] The house on S[…] Road was one storey with a basement. G.F. had her own room. Her parents had a bedroom and D.D. shared a room with D.D.1. Later Mr. M.D. constructed a second bedroom in the basement. The sleeping arrangements changed over time.
[27] D.D. said there were several more incidents of Mr. M.D. pressing or grinding against her while she sat on his lap. It usually occurred on Saturdays while sitting on the couch in the living room. Sometimes she was facing Mr. M.D. and other times she sat on his lap facing away from him. No words were spoken.
[28] This activity occurred more than ten times. No one came into the living room when it was taking place. She did not tell her mother.
[29] D.D. said she reached puberty around age 13. As she developed breasts Mr. M.D. started reaching under her shirt to touch her breasts. These incidents usually occurred in the evening before bedtime. They took place frequently. Sometimes it took place in her room. Sometimes it occurred in the hallway outside her room. She was usually wearing a nightie or pyjamas. There was skin to skin contact with his hands. It made her feel uncomfortable.
[30] Eventually she told her mother which led to a three way conversation where Mr. M.D. apologized for making her feel uncomfortable. The incidents stopped for about six months. Around this time Mr. M.D. was deployed by the Canadian Forces for several months, one of three tours he served overseas.
[31] She disclosed to her mother on one occasion only.
[32] D.D. testified about another incident that took place while visiting the mall with Mr. M.D. and some of her sisters. There was some playful pushing and shoving during the course of which Mr. M.D. pulled her close and licked the side of her face including her ear.
[33] There was evidence that D.D. said something to a counsellor at school at around this time. It is not clear exactly what she disclosed. This led to a meeting with the counsellor and another person, a man, who may have been from FCS. She only disclosed the ear licking incident to them.
[34] A few months later, D.D. said something to her friend M. that M. told her mother who called FCS. D.D.’s recollection of the events involving FCS is incomplete and unclear. She recalled two people being present, one of whom, as it turns out, was likely a female police officer. She was nervous and didn’t want to open up to strangers. She said she was in a small room with people she didn’t know and she didn’t know how to respond to their inquiries. At trial she said that at the time part of her regretted not saying more.
[35] When this meeting with FCS took place in the sequence of events is not clear.
[36] There was another incident when she was 13 or 14 when she was ill. She was in her room. Mr. M.D. came in and took her temperature. He lifted her top and put his hand on one breast then the other and repeated this more than once.
[37] When she was 14 there was an incident when Mr. M.D. entered her bedroom on a Saturday in the early afternoon. She was wearing pyjamas. He started tickling her then pinned her arms above her head with one hand and lifted her pyjama top with the other. He put his mouth on the nipple of her breast then on her tummy. She tried to push him away then he let her up.
[38] The next night Mr. M.D. put his hand up her pyjamas. She became upset and her mother asked her what was wrong. She told her mother what Mr. M.D. had just done and about the incident the day before. Katherine said she would have a talk with Mr. M.D..
[39] D.D. installed a lock on her bedroom door. At this time she did not share a room with any of her sisters. The incidents with Mr. M.D. came to an end. D.D. acknowledged that conflicts with her sister over clothing were also a factor in wanting a lock for her room.
[40] D.D. said she that sometime after disclosing to her mother she disclosed to G.F. as well. She did not disclose to her younger sister D.D.1 but she observed an incident involving D.D.1 and Mr. M.D. that led here to say to D.D.1 that it wouldn’t stop unless D.D.1 told their mom what was happening. The incident that D.D. said she observed took place in the family home. It was during the summer. She was lying on the floor in the living room and D.D.1 was sitting in a chair. She saw a reflection in the glass of the TV stand of Mr. M.D. putting his hand down D.D.1’s shirt. She turned to face them and Mr. M.D. told her to turn around unless she wanted some of this. A few weeks before, D.D.1 had disclosed to D.D. that Mr. M.D. was doing things to her. As a result of what D.D.1 had disclosed and what D.D. saw in the living room, D.D. encouraged D.D.1 to tell their mother what was going on.
[41] Like her older sister, D.D. moved out of the home when she was 15. She said she left because she didn’t feel safe and because Mr. M.D. was inappropriate with her. She returned to visit occasionally but never went back to live there while her parents were still together.
[42] She testified that Mr. M.D. would make inappropriate comments about her physical appearance. During a Christmas visit to the family home when she was 17, she said Mr. M.D. commented about her cleavage, buttocks and breasts. Another time Mr. M.D. said that she had a nice ass and a nice body and if only she had her sister’s tits, she would be perfect.
[43] D.D. said that although she felt she had a good relationship with her mother while D.D. was living at home, she doesn’t have much of a relationship with her mother now. They see each other occasionally and don’t talk regularly on the phone. She said she is angry with her mother for not protecting her.
[44] As for her relationship with Mr. M.D., she said she can’t say she had a bad relationship with him. She found the situation confusing and felt conflicted about her feelings towards her father.
[45] Years later she invited him to her wedding. She said she didn’t want to invite him but she was encouraged by her sister G.F. to extend the invitation and she did. Mr. M.D. gave her money towards the cost of her wedding dress.
[46] In addition, Mr. M.D. would visit D.D. and her younger sister D. at D.D.’s apartment in Ottawa. D. is 12 years younger than D.D.. Although the evidence was unclear on this point, there may have been a supervised access element to the contact between D. and Mr. M.D. and for that reason the visits took place at D.D.’s apartment. By this time D.D. had a son, Ethan, and they would have family outings with Mr. M.D. when he visited Ottawa. D.D. said she thought that D. should have a relationship with her father and D.D. facilitated contact between D. and Mr. M.D..
[47] There was an occasion when D.D. and her then boyfriend Tyler were visiting her mother at the S[…] Road house and she learned that her mother was planning to dispose of some tools. D.D. sent a text to her father who made arrangements to attend and recover the tools which Tyler stored for him for a while.
[48] D.D. also agreed that there was an occasion when Mr. M.D. was planning to travel from his home in Trenton to visit her in Ottawa but he was short of money and could not afford to buy a new tire for his motorcycle. D.D. lent him money to buy a tire so he could visit.
[49] She said that when she was with her previous partner she didn’t feel strong enough to give up her connection with her father. When D.D.’s relationship with her former partner ended in 2013, she moved back with her mother for about a year.
[50] D.D. subsequently established a relationship with a new partner. She decided it was time to move on with her life and stopped having contact with Mr. M.D..
[51] About two years ago D.D. was receiving counselling. She was having bad dreams. She decided to make a report to the police about the abuse she said she experienced as a child and the matter went forward from there. Her sisters G.F. and D.D.1 gave statements implicating Mr. M.D. after being contacted by the police.
Evidence of D.D.1
[52] M.D.1, also known as D.D.1, is currently 24 years old. She is six years younger than her half-sister G.F. and five years younger than her other half-sister, D.D.. She is six years older that her sister D..
[53] She testified that Mr. M.D. abused her from an early age. Her first recollection was when they lived in the PMQs in Petawawa. She was in the bathroom upstairs. Mr. M.D. had her touch his penis with her hand. She has only a vague memory of this incident and cannot remember any details surrounding it. The family moved from the PMQs when D.D.1 was about 4 years old so obviously she was very young at the time of this incident. There were no other incidents that she can remember from the time they lived in Petawawa.
[54] She testified that after they moved to S[…] Road she was in her bedroom and Mr. M.D. came in and performed oral sex on her. She can’t recall any details of events leading up to the assault. They were together on the floor of the bedroom. Mr. M.D. pulled her pants down to her ankles. She was very uncomfortable. She told him to stop because he was tickling her. As her mother was about to enter the room, Mr. M.D. quickly pulled up her pants. She thinks she was between 4 and 6 years old. Her mother asked her some questions about what had just been going on but D.D.1 doesn’t think she provided any answers. She just stared at the floor.
[55] She testified about a similar event but this time it was in the bathroom. Again they were on the floor together. Mr. M.D. pulled down her pants and started to perform oral sex on her. Her mother entered the room and Mr. M.D. pulled her pants up. Her mother asked her what was going on. She didn’t know what to say to her mother and didn’t answer her questions. D.D.1 doesn’t recall how old she was at the time but thinks the incident occurred in the evening because everyone was at home. She thinks it was in the winter.
[56] She testified that there was an incident when she was 8 years old and in Grade 2. Mr. M.D. was helping her with a school project. They were in the laundry area of the basement. She recalled standing on a stool while Mr. M.D. pulled down her pants and performed oral sex on her. No words were spoken.
[57] D.D.1 cannot say how many times she was assaulted by Mr. M.D.. She said there are only three incidents that she has a good, her word was vivid, memory of. She said she started wearing one piece pyjamas so that they could not be pulled down so easily and would take longer to remove. She thinks the first incident of oral sex occurred when she was about 4 years old and the incidents ended when she was 6 or 7.
[58] D.D.1 testified about the last incident which she thinks may have occurred when she was 10 or 11 years old. This incident did not involve oral sex. She said she had reached the age of puberty at the time. She was lying on her back in bed with her sister D. who was asleep. Mr. M.D. entered the room to get her up. It was early in the morning. Mr. M.D. reached under the bed covers and under her pyjama tops as well. He touched her breast with his hand. She is not sure if he touched one or both breasts.
[59] D.D.1 testified that when she was very young, around 5 years old, she disclosed to her sister D.D. that Mr. M.D. was doing things to her. Later, when she was 11, D.D. asked her if Mr. M.D. was still doing things. When D.D.1 said yes he was, D.D. told her to tell their mom which she did. Her mother asked her to show her what Mr. M.D. had done by demonstrating on a doll. D.D.1 started to cry. She was very nervous. They went for a drive to talk. She disclosed the oral sex to her mother but not the breast touching.
[60] D.D.1 said her mother frightened her by saying that if what her father had done became known, the children might be taken away or their dad might get custody of the girls. Her mother didn’t want her to disclose to anyone outside the family. D.D.1 remembers being very hurt by her mother’s response.
[61] D.D.1 recalls thinking at the time that it was unlikely that her father would get custody and part of her looked favourably on the prospect of being taken away, but she went along with her mother’s request.
[62] D.D.1 testified that the incidents were more frequent when she was younger and became less frequent as she got older. There were no further incidents after she spoke with her mother.
[63] D.D.1 discussed the situation with her older sister D.D.. Neither of them was satisfied with their mother’s decision not to inform the authorities. While D.D.1 and D.D. confided in each other to a limited extent, D.D.1 said she did not get into specific details with her sister. At trial D.D.1 summarized the situation by saying they each respected the other’s choice not to share.
[64] D.D.’s friend M. became aware of some allegations of abuse by Mr. M.D.. M. told her mother who in turn notified FCS. This led to an interview where D.D.1 disclosed that Mr. M.D. had performed oral sex on her on two occasions but she did disclosed few details, did not refer to a third incident of oral sex and did not refer to any more recent incidents. She said her mother coached her on what to say and suggested that she should blame someone else rather than her father. She told the worker that Paul, a family acquaintance, had done something to her but she also mentioned her father as well. Both parents became angry with D.D.1 following her disclosure to FCS and her father stopped talking to her.
[65] She saw a counsellor a few times at the Phoenix center but that did not last very long.
[66] D.D.1 said that during the years from when she was about 12 until she left home there were some good aspects to her family life but mostly it was bad. On the positive side she recalls camping trips and going rock climbing as a family. On the negative side, although the abuse had stopped, her parents argued a lot, usually every day, and this made the atmosphere in the home very unpleasant.
[67] D.D.1 tried to avoid being at home as much as possible. Her outlook on life and her self-image was bleak. She contemplated suicide. She began cutting herself. She overdosed on prescription medication when in Grade 8 and spent a night in hospital.
[68] By the time D.D.1 was 14 or so, Mr. M.D. was staying in North Bay most of the time. She left home at about 16 years of age, just as her older sisters had left at about the same age. She was about 16 when her father announced to the family that he wanted to get a divorce.
[69] D.D.1 testified that her mother suggested that D.D.1 should undergo repressed memory therapy and hypnotherapy but she refused.
[70] D.D.1 resumed seeing a counsellor in Ottawa when she was between the ages of about 15 to 18. She chose not to get into details with the counsellor about the sexual abuse she said she had experienced at the hands of her father.
[71] When asked at trial about whether she had more recent contacts with Mr. M.D., she said she hadn’t seen the guy for years.
Evidence of M.D.
[72] Mr. M.D. said the family moved to Petawawa in 1993. G.F. was about 7 years old, D.D. was 6 and D.D.1 was about 1 year old. D. was not born until1999. They lived in the PMQs at G[…]. His wife C.D. did not work outside the home except for a few short term jobs. He described their marriage as good at the time. They engaged in family activities such as camping and going to the beach. Later they obtained a seasonal camping spot at Black Bear Park.
[73] Mr. M.D. said he was not the touchy-feely type. He never kissed the girls goodnight and tended not to say good night either. Hugs were not common. He would play with the girls, on Saturday mornings. Tickling was a common feature of their playing together. Other activities including putting them on his shoulders or spinning them around the room by holding their hands and feet. He would carry them and hold their hands on outings.
[74] He said he never touched G.F. inappropriately and he denied the pressing his pelvis into her as she sat on his lap.
[75] As a result of Mr. M.D.’s overseas tour, the family had enough money to buy a small bungalow on S[…] Road in 1996. There were three bedrooms on the main floor- one for the parents, one for G.F. and D.D. and D.D.1 shared a room. Originally the basement was mostly unfinished. There was a laundry area in the basement and eventually a workbench and some shelving. Later he added a bedroom in the basement which became occupied by the parents at about the time that C.D. was pregnant with their fourth daughter, D..
[76] He agreed that sometimes he tickled D.D. as well during their play sessions but he denied pressing his pelvis against her. He said the kids did not seem uncomfortable with his manner of playing and tickling.
[77] He agreed that he was not careful with his words, especially when referring to or describing women. He agreed with the suggestion that he didn’t have a filter that kept him from verbalizing his thoughts. Sometimes as the girls got older he would make comments about their appearance. Occasionally the comments were intended to express his displeasure with their manner or style of dress. For example, he might say that one of them was dressed like a hooker. Sometimes he would unilaterally dispose of the offending article of clothing. On other occasions, he made comments that he said were intended to boost their ego and self-image. For example, he might say that one of the girls looked sexy or that she had a nice butt or that if he was younger, he would be all over them.
[78] His daughters described these comments as unwelcomed and inappropriate.
[79] He denied providing alcohol and cigarettes to G.F. when she was 12 or 13. Sometimes she would steal his cigarettes.
[80] He specifically denied touching D.D.’s breasts in a sexual way. He said he may have rubbed Vicks, a cough remedy, over her chest but that would have been when D.D. and the others were children, not teenagers.
[81] He said he never had any other reason to put his hand up D.D.’s clothing and he denied her allegations that he would reach under her clothes and rub her breasts.
[82] He said D.D.’s learning disabilities became apparent in elementary school. She was held back a year due to deficits in math and literacy skills. He said they were told that she suffered from something called global learning disability. Both parents spent time providing D.D. additional learning support at home with flash cards and other teaching aids. D.D. did not get along well with other students and had few friends.
[83] Mr. M.D. agreed that there would have been times when he was home alone with D.D..
[84] In addition to denying that he touched D.D.’s breasts, he also denied the allegation that he licked the nipples of her breasts as described by D.D.. He said he did something he called belly farts with the girls where he would put his mouth against their tummy and make sounds by blowing air against their skin. He said there was nothing sexual about belly farts. The girls wouldn’t have been older than 8 or 9.
[85] Mr. M.D. specifically denied the incident described by D.D. when she was lying on the floor watching television and she saw the reflection of Mr. M.D. put his hands down D.D.1’s shirt. Mr. M.D. said there was no chair in the living room as described by D.D. when he allegedly put his hand down D.D.1’s shirt.
[86] He agreed that by the time D.D. moved out at age 15 or 16, he did not have much of a relationship with her. Sometimes Mr. M.D. and his wife would visit her in the new place where she was living in Petawawa and give her rides when needed.
[87] Mr. M.D. co-signed the lease for her apartment in Ottawa when she wanted to move. She had a baby within a couple of years of moving out of the family home. He would visit her in Ottawa. He bought her groceries at times and they would go on outings with D. who was living in Ottawa too by this time. Sometimes he stayed overnight at her place.
[88] Mr. M.D. says there was an incident at the S[…] Road house when he went there with G.F. and D.D. to pick up some things. The police were there when they arrived. When everyone was present, C.D. made a comment to the police that Mr. M.D. had molested all her children. He said he heard G.F. say “not me” and D.D. say “me neither” in response to their mother’s allegation.
[89] In response to D.D.1’s allegations that Mr. M.D. performed oral sex on her, he denied this completely. In reference to her evidence that there was an incident that took place in the basement while working on a school project, Mr M.D. said he recalled this project and remembered that they worked on it in the dining room, not the basement.
[90] Mr. M.D. also denied the suggestion that his wife walked in and caught him in the act of abusing D.D.1, or that she had sent him out of the room so she could question D.D.1 about what was going on.
[91] Mr. M.D. said that he had only limited contact with D.D.1 after she moved out of the family home. She stopped communicating with him following D.D.’s wedding in 2010.
[92] When asked about D.D.1’s suicide attempt, Mr. M.D. did not recall that event but said he knew that she was cutting herself. He referred to this period of time as D.D.1's Goth phase. He thinks she was about 12 or 13 at the time. He discussed the situation with his wife and summarized the situation by saying, “She was the mother. It was her call”.
Discussion and Analysis
(a) Elements of the Offences Charged
i) Sexual Interference
During the years from 1989 to 2005 this offence consists of touching a young person under the age of 14 years for a sexual purpose. The age limit was subsequently increased to include complainants who are 16 or younger. Touching for a sexual purpose occurs if it is done for the sexual gratification of the accused, or to violate the complainant’s sexual integrity including any act meant to degrade or demean the complainant in a sexual way. The presence or absence of an apparent motive for the touching, such as sexual gratification, is simply one of many factors to be considered. In determining the purpose of the touching, the court must consider all the surrounding circumstances, including what was said and what was done. While it is relevant to consider what part or parts of the body were touched, it is not necessary to prove contact with any specific part of the human anatomy.
(i) Sexual Exploitation
[93] The offence of sexual exploitation is made out when Crown counsel has proven beyond a reasonable doubt that Mr. M.D. touched a young person within the specified age for a sexual purpose in circumstances where Mr. M.D. was in a position of trust or the complainant was in a state of dependency. For our purposes, the age bracket applicable in this case is over 14 and under 18.
[94] On the facts of this case, there is no issue that the complainants were in a state of dependency and that Mr. M.D. was in a position of trust.
[95] Touching for a sexual purpose occurs if it is done for the sexual gratification of Mr. M.D., or to violate the complainant’s sexual integrity including any act meant to degrade or demean the complainant in a sexual way. The presence or absence of an apparent motive for the touching, such as sexual gratification, is simply one of many factors to be considered. In determining the purpose of the touching, the court must consider all the surrounding circumstances, including what was said and what was done. While it is relevant to consider what part or parts of the body were touched, it is not necessary to prove contact with any specific part of the human anatomy. Acts of oral sex, or licking breasts, or touching and fondling breasts as described by the complainants would satisfy the requirement that Crown counsel must prove beyond a reasonable doubt that the contact was for a sexual purpose.
[96] Although multiple incidents have been alleged against Mr. M.D., Crown counsel only needs to prove that there was at least one incident of a particular offence in relation to each complainant in order for there to be a finding of guilt for that offence in relation to that complainant.
(iii) Sexual Assault
[97] Sexual assault is an intentional application of force to another person, whether forceful or gentle or direct or indirect, in circumstances of a sexual nature, such that the sexual integrity of the complainant is violated. An accidental touching is not the intentional application of force. The word “intentional” applies to the state of mind of the accused when he applied the force. The nature of the contact, any words or gestures that accompanied the contact and all the surrounding circumstances may be considered in determining the attitude or state of mind of the accused.
[98] The test to be applied in determining whether the impugned conduct has the requisite sexual nature is an objective one: Viewed in the light of all the circumstances, is the sexual nature of the assault visible to a reasonable observer. Acts of oral sex, breast licking and breast touching or fondling as described by the complainants would satisfy the requirement that Crown counsel must prove beyond a reasonable doubt that the sexual integrity of the complainant was violated.
(b) Applicable Legal Principles
[99] Mr. M.D. is presumed to be innocent unless and until Crown counsel proves his guilt in relation to any particular count in the indictment beyond a reasonable doubt.
[100] The burden of proof always remains with the Crown. Mr. M.D. does not have to prove anything. Proof of likely or probable guilt requires that Mr. M.D. be acquitted because Crown counsel would have failed to prove guilt beyond a reasonable doubt.
[101] Also, the suggestion that there is an absence of demonstrated motive on the part of the complainants to give false testimony against Mr. M.D. is not the same as an absence of motive. Sometimes motives can lurk below the surface and not be readily apparent. The absence of an apparent motive to fabricate does not conclusively establish that a witness is telling the truth. The presence or absence of motive to fabricate is only one factor to be considered in assessing credibility. I should add that there was no evidence of collusion among the complainants. If anything, they seemed to resist their mother’s efforts to co-opt the girls into making trouble for Mr. M.D..
[102] The determination of whether guilt has been proven beyond a reasonable doubt involves more than a credibility contest between competing versions of events. The presumption of innocence and the requirement of proof beyond a reasonable doubt mean that guilt or innocence cannot be determined by preferring one side’s version of what happened over that of the other side. I am required to apply the principles in R. v. W.(D.), 1991 93 (SCC), [1991] 1 S.C.R. 742. If I believe Mr. M.D.’s evidence, I must find him not guilty. Even if I do not believe his evidence but his testimony leaves me with a reasonable doubt as to his guilt, then I must find him not guilty. I may only find him guilty if, based on evidence I do accept, I am satisfied beyond a reasonable doubt that he committed a particular offence.
[103] Notwithstanding that guilt cannot be determined simply by choosing which witnesses are more likely to be telling the truth, Mr. M.D.’s evidence can be rejected based on a considered and reasoned acceptance beyond a reasonable doubt of the truth of conflicting credible and reliable evidence (see R. v. J.J.R.D. (2006), 2006 40088 (ON CA), 218 O.A.C. 37 at para. 53 and R. v. R.D., 2016 ONCA 574 at paras. 7, 15-19).
(c) Assessing Credibility
[104] I will begin with an assessment of Mr. M.D.’s credibility when he testified. Mr. M.D. answered questions politely and directly. His answers tended to be brief. Sometimes he spoke in short phrases rather than sentences. His answers had a clipped aspect to them. Usually he gave yes or no answers. He struck me as a man of few words.
[105] I did not find his evidence to be evasive or defensive. He was consistent. He acknowledged saying and doing things that tended to show him in a bad light. He was not argumentative or hostile. He was not contradicted on significant points. His evidence was neither impressive nor unimpressive. He did not seem to bear any animosity towards his accusers.
[106] His defence, being a general denial, was necessarily short of details.
[107] I will now refer to the testimony of the eldest daughter, G.F.. Ms. G.F. impressed me as an intelligent and insightful young woman. Despite the adversity in her life, she achieved academic success against great odds, and is now pursuing a career as a teacher.
[108] She had a quiet sense of confidence about her and she seemed sure of her views. It appeared to me that she chose her words carefully and took care to articulate her answers accurately. G.F. spoke clearly and directly; she was polite and worked at keeping her emotions in check. She seemed to be recounting real events and true life experiences.
[109] I found that her account of the dysfunction in her parents’ relationship disclosed her insightfulness and maturity. In her view her mother, C.D., had her own agenda vis-a-vis Mr. M.D. after he announced he wanted a divorce. G.F. thought that her mother had urged her to report abuse by her father to further her mother’s own ambitions and G.F. wanted no part of it.
[110] In answer to the question, do you hope or expect to have any sort of relationship with your father when all of this is over, she said she was confused and uncertain. She seemed to want to maintain a connection with her father. At the same time, she said she did not know the precise details of the abuse being alleged by her sisters, and she thought that knowing those details would help inform her thinking going forward. I found her answer to be thoughtful and balanced.
[111] In summary, I found G.F.’s evidence to be credible and even-handed.
[112] I will now turn to the evidence of D.D.. D.D.’s personal situation is a little different that of G.F.’s in that D.D.’s learning disabilities prevented her from excelling in school. Despite leaving the family home at a young age, D.D. appears to have achieved a level of stability in her life. She has at least one child and was due to deliver another at the time of trial.
[113] D.D. gave her evidence politely, directly and confidently. Under cross-examination she did not appear defensive or evasive. She did not exaggerate.
[114] I found her credibility was enhanced by her description of her contacts with her father after she was living on her own in Ottawa. Her sister D. lived close by. She wanted to facilitate D. having a relationship with her father. D.D. wanted to play a role in helping D. and her father get to know one another. As an aside, I should add that there was no suggestion at the trial that D. was sexually abused by Mr. M.D..
[115] Sometimes witnesses tend to minimize or discount the nature or extent of their subsequent contacts with the person they say abused them. It is as though they are concerned that it will make them less credible or detract from the authenticity of their story. I detected none of that here.
[116] There were no significant inconsistencies or contradictions in D.D.’s testimony. She gave her evidence in a matter of fact style. She was not emotional or dramatic. Her recollection of events seemed good. There was no hint that she had an agenda in testifying against her father. Her evidence seemed authentic and sounded believable, both in content and in the way she recounted the events. I am prepared to accept her testimony as reliable and credible.
[117] Lastly I will refer to the evidence of D.D.1. D.D.1 seemed sure of herself as she described her allegations of abuse. She did not recall many details leading up to or after the events involving oral sex but she was unshaken in her account of the core elements of what transpired.
[118] Her explanation of wanting to wear only one piece pyjamas so they could not be pulled down as quickly sounded authentic as did her explanation for wanting to sleep with her younger sister D. after D.D. moved out of the house. She said it made her feel safer to have someone in bed with her.
[119] For two of the three allegations of oral sex, D.D.1 said her mother became suspicious and asked her questions. On one occasion they went for a drive and D.D.1 made a disclosure to her mother. Her mother allegedly told her to keep it in the family and that she might have to live somewhere else if her allegations became known.
[120] As pointed out by defence counsel, D.D.1 disclosed to the FCS that there were two incidents of oral sex whereas at trial she described three incidents. She also said at trial she believed there had been more than three incidents in all. This was the main inconsistency that defence counsel was able to point to. I have two comments on this point. Firstly, the role of her mother in providing coaching before she spoke with personnel from FCS provides important context to what she was prepared to disclose. Secondly, the inconsistency, if that is what it is, does not directly cast doubt on the core allegation that abuse occurred.
[121] D.D.1 gave her evidence in a direct, matter of fact manner. She seemed candid about what she could and could not remember. D.D.1 appeared to me as a mature and resilient young woman. She did not present as vengeful or vindictive. She remained unshaken in her essential allegations in cross-examination. I find that she gave credible and reliable evidence.
Disposition
[122] Respecting the counts of the indictment in relation to G.F., I find Mr. M.D. not guilty. In coming to this conclusion, even though I found G.F.’s evidence to be credible, the pressing by Mr. M.D. as she described can be seen as ambiguous. When a child is sitting on a man’s lap in the circumstances present here, the point of demarcation between criminal and non-criminal behaviour does not always appear as a bright line. When weighed in the balance against the presumption of innocence and the burden of proof, I find that Mr. M.D. is entitled to the benefit of the doubt. (counts 1-4)
[123] I am of the same view for the similar allegations of D.D. during the time they were living in Petawawa (count 7) and in Laurentian Valley (count 8)
[124] As for the kiss on the mouth in the middle of the night, I understand why the event raised a red flag in G.F.’s mind. Again, like the groin pressing, the evidence respecting this incident is sparse and without more evidence to support a conclusion, I am not certain there was a sexual purpose to the kiss or that it violated G.F.’s sexual integrity. Even Mr. M.D.’s denial that it occurred, which I do not accept, does not assuage my uncertainly about his state of mind. (counts 5 and 6)
[125] In finding Mr. M.D. not guilty in relation to the counts involving G.F., I do not want to be taken as saying I believe his evidence where it conflicts with hers. I do not. It is the inadequacy of acceptable evidence, an inadequacy based on the paucity of surrounding circumstances that point to culpability, that creates the basis for the finding of not guilty.
[126] A similar situation does not exist with respect to the other two complainants. To borrow a phrase from J.J.R.D. ibid, at para. 53, when Mr. M.D.’s evidence is stacked beside the evidence of D.D. on the allegations of breast touching and breast licking that relate to her, and stacked beside the evidence of D.D.1 on the allegations of oral sex and the early morning breast rubbing incident that relate to her, I am satisfied that there is sufficient credible and reliable evidence to overwhelm Mr. M.D.’s denials, to displace the presumption of innocence and to satisfy the burden of proving his guilt beyond a reasonable doubt.
[127] The similar facts application by Crown counsel dismissed. Therefore each count must be determined solely on the evidence that applies to that count and I have taken this into consideration in weighing the evidence.
[128] I have reminded myself that all previous out of court statements made by the complainants that are consistent with their testimony at trial were admitted as narrative evidence only, and as such cannot be used to prove or reinforce the veracity of their in-court statements or to buttress their credibility whereas any previous inconsistent statement, not adopted as true while giving evidence in court, can be used in assessing the truthfulness of that witness’s in court testimony.
[129] Similarly, I have reminded myself that the brief reference by Mr. M.D. to the military proceedings involving allegations of child pornography creates the risk of prohibited propensity reasoning. This vague evidence should play no part in determining the outcome of this trial. Crown counsel submitted that this information could be used in assessing Mr. M.D.’s credibility but even such a limited role is problematic. There was neither a statement of the charges alleged nor a record of any disposition or penalty filed as an exhibit. I have ignored this evidence for all purposes.
[130] Defence counsel has requested that I draw an adverse inference from the decision of Crown counsel not to call C.D. as a witness for the prosecution. Mr. Huckabone submitted that she could have provided important corroborative evidence and the fact that she wasn’t called gives rise to an inference that she would not have supported the evidence of the complainants. On the available record, it is appears that the probative value of the evidence from this witness could reasonably be foreseen to be compromised because of the animus towards Mr. M.D. and the suggestion that her perspective changed completely after Mr. M.D. announced he wanted a divorce. The decision whether to call a potentially problematic witness is essentially a tactical one and at bottom, absent special circumstances such as in R. v. Jolivet (2000), 2000 SCC 29, 144 C.C.C. (3d) 97 (S.C.C.), the Crown need only call such evidence as may be required to prove the offences alleged.
[131] I appreciate that when an accused person has testified on his own behalf and has declared that the allegations are false, especially in circumstances where there are no obvious flaws in his testimony, the court must critically evaluate and carefully scrutinize the evidence tendered by Crown counsel to ensure that it meets the very high standard required to sustain a conviction. I have endeavoured to do so in this case.
[132] In the result, I find Mr. M.D. guilty on counts 9 (sexual assault relating to D.D.), 11 (sexual exploitation relating to D.D.), 15 (sexual assault relating to D.D.1) and 17 (breast touching relating to D.D.1). There will be findings of not guilty on counts 1, 2, 3, 4, 5, 6, 7, 8, 10, 12, and 13.
[133] The issue of whether any offences for which findings of guilt have been made ought to be conditionally stayed under the Keinapple principle shall be dealt with on a date to be set.
Mr. Justice Martin James
DATE RELEASED: January 20, 2017
CITATION: R. v. M.D., 2017 ONSC 466
COURT FILE NO.: 15-158-00
DATE: January 20, 2017
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Applicant
- and –
M.D.
Respondent
DECISION
James J.
DATE RELEASED: January 20, 2017