R. v. H.F., 2017 ONSC 5310

COURT FILE NO.: CR-16-40000399-0000

DATE: 20170908

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

H.F.

Accused

Geleta McLoughlin, for the Crown

Margaret Osadet & David D’Intino,

for the Accused/Applicant

HEARD: February 27 & 28, 2017; March 1, 2, 3 & 10, 2017; April 3, 4, 5, 6 & 7, 2017; and May 11, 2017

PUBLICATION RESTRICTIONS NOTICE

A non-publication order in this proceeding has been issued pursuant to subsection 486.4(1) of the Criminal Code. By order of this court, any information that could identify the complainant shall not be published in any document, broadcast or transmission.

B.A. ALLEN J.

REASONS FOR JUDGMENT

BACKGROUND

The Charges

[1] The accused, HF, was charged on June 2, 2015 under the Criminal Code with sexual offences against the complainant, LFR: three counts of sexual assault (s. 271), three counts of sexual interference (s. 151) and one count of invitation to sexual touching (s. 152). The allegation is that HF, LFR’s step-father, sexually abused her on three occasions between 2010 when she was about age 11 and 2013 when she was about age 14.

[2] LFR was 19 years of age at the time of trial. The Crown applied under s. 486.2 of the Criminal Code, uncontested by the defence, for LFR to testify outside the courtroom. She testified from a separate room accompanied by a victim support worker.

[3] The first incident is alleged to have occurred at the home where LFR’s family lived in Toronto sometime between June 19, 2010 and July 31, 2010 when LFR was 11 or 12 years of age. LFR alleges the second incident occurred a few months later after the family moved to Pickering. The third incident occurred sometime between September 1, 2012 and July 1, 2013 when LFR was age 14.

Family Background

[4] LFR’s mother brought her and her younger sister, RF, from the Philippines to Canada on June 19, 2010. LFR was age 11 at the time. The mother travelled with her spousal partner, HF, to the Philippines where he met her daughters. They all travelled together to Toronto.

[5] The mother immigrated to Canada in 2005 and has worked as a personal support worker. At the time the mother brought her children to Canada she had been an in-house personal support worker for six years for an elderly woman, D.S., living at V[…] Court in Toronto. Ms. D.S. was very elderly when the mother began working for her. By the time of trial she had worked for Ms. D.S. for over ten years. The mother moved her two children into Ms. D.S.’s home where the mother had an apartment in the basement. While they lived at V[…] Court LFR and her sister slept together in one bed in the basement.

[6] LFR was born during the mother’s previous marriage in the Philippines. Her sister has a different father. LFR had no relationship with her biological father. The mother was married again in Canada and divorced in 2008.

[7] On July 31, 2010 the mother, sister, LFR and HF moved to a home they bought in Pickering, Ontario. HF’s parents also moved into the house. HF has a son, N., and a daughter, A., who came to stay at the home in Pickering on weekends. The home was under renovations until about the end of August 2010. LFR, HF and the step-brother slept on air mattresses on the basement floor for a short while. The mother, HF, the step-daughter and HF’s parents slept upstairs.

[8] HF immigrated to Canada in 1992. He first worked as a personal support worker. He attained his licence to practise as a nurse in 2007. He had worked as a nurse until he got charged in 2015. His two children, A. and N., were born during his first marriage. He was employed at two locations at the time the charges were laid.

[9] HF met the mother in 2009 and they got married in December 2014.

Living Arrangements

[10] There is inconsistency as between LFR’s evidence on one hand and the mother’s and HF’s evidence on the other hand about the sleeping arrangements at V[…] Court and at the home in Pickering.

[11] LFR testified that HF lived at V[…] Court with the family until they moved out on July 31st. She said HF slept upstairs with her mother and was therefore at the home in the evenings.

[12] HF denied living there. He testified the only time he entered that home was on July 31st when he was moving the family’s belongings out when they were moving to Pickering. When he and the mother went out on dates, he would wait outside in the car for her to come out.

[13] The mother confirmed HF’s evidence. She testified that she had worked in-house for Ms. D.S. for about six years before her children came to Canada. After her family moved out, the mother continued to work for Ms. D.S.. She stated that the home was her place of work and she did not invite people to visit her there except her sister on one occasion for lunch.

[14] The mother stated that Ms. D.S. had a rule that no one but the children were to visit or stay at the house. The mother testified she would never have HF over because that would not be a respectable thing to do in Ms. D.S.’s home. She did not want to lose Ms. D.S.’s respect. The mother supported HF’s evidence that HF only entered the house to move the mother’s and her children’s belongings out. Furthermore, the mother testified that Ms. D.S.’s daughter and son-in-law were very strict about Ms. D.S.’s household. They would come around the home without notice to bring groceries and check on the household and Ms. D.S..

[15] The mother testified that when the children arrived she slept in a room upstairs which had been the then deceased Mr. S.’s office. She testified there was a small single-person cot in that room where she slept until the family moved. The mother pointed out that this would not have allowed room for HF to sleep over.

[16] LFR testified that when the family moved to the Pickering home, during the renovations, she slept alone on one of the air mattresses and her step-brother and her sister slept together on the other air mattress.

[17] HF denied this was the case. He testified that his son slept alone on one air mattress and LFR and her sister slept together on the other.

[18] The mother supported HF’s evidence. The mother testified that her children only met HF’s children on one occasion at Canada’s Wonderland, on July 13th, before they moved to the home in Pickering. This was to celebrate LFR’s 11th birthday. N. was age ten and LFR’s sister was age six at the time. The mother asserted that she arranged that LFR and her sister would sleep together on the larger of two air mattresses and the step-brother on the smaller one. She stated that she supervised their sleep arrangements and bedtimes. The mother testified LFR and her sister always slept together.

[19] Once the renovations were completed in around August or September 2010, LFR and her sister were moved first to sleep in the bedroom over the garage at the front of the house. As the weather got colder and that bedroom was not warm enough, they moved across to another bedroom near the master bedroom at the back of the house. The mother’s evidence was that LFR and her sister stayed together in that room until LFR moved to the basement in 2014.

The Mother’s and HF’s Employment Hours

[20] As a personal support worker for Ms. D.S., the mother generally worked eight hours per day, usually seven days per week. If the mother had plans or needed to be away from the house on weekends or during the week one of two of her relatives would relieve her. The mother had another job as a personal support worker at a nursing home while she worked full-time for Ms. D.S.. The mother would work a few short shifts on weekends and a night shift once or twice a month for four hours from 7:00 a.m. to 11:00 a.m. The mother is currently studying to be a nurse.

[21] HF worked full-time from 3:00 p.m. to 11:00 p.m. for Extended Care Canada. He also had a part-time position working from 7:00 a.m. to 3:00 p.m. at Leisure World, an elder care facility. HF testified he worked seven days per week. For Extended Care Canada he worked a permanent rotating five-day shift with every Friday off. When he had days off from his full-time job he would work at his part-time job.

THE EVIDENCE

The Allegations

The First Incident

[22] LFR testified the first incident occurred in June or July 2010. She alleges the incident occurred at Ms. D.S.’s home before the family moved out. Her mother was working outside the home on the night shift at the time. LFR said she had gone to bed. LFR testified that about 20 minutes later, HF entered the room and lay on the bed beside her. Her sister was sleeping on the other side of her. This occurred between midnight and 1:00 a.m. LFR indicated HF touched and squeezed her left breast under her shirt for about two to five minutes. She says she started to cry and she left the room. She testified HF tried to comfort her by hugging her and apologizing.

[23] LFR stated that she did not tell her mother about this because she was scared. She did not know her mother well. She was just getting to know her.

The Second Incident

[24] LFR testified the second incident occurred in August 2010 when her mother was working a night shift. It was a few days after the family moved to the Pickering home. She stated she went to bed and fell asleep on the air mattress set up for her in the basement. She stated that she was sleeping alone. She said HF was supposed to be sleeping upstairs in the master bedroom.

[25] LFR alleged she was asleep on her back. A man awakened her by lying on top of her. She said she thought it was HF because he was the only man in the house. LFR said his breathing and his body weight made her believe it was HF on top of her with his chest against hers. She alleges he pulled up her top and squeezed her breast with his hand. HF then removed her shorts and pulled down her underwear and digitally penetrated her vagina with his fingers. He removed his hand from her breast and tried to kiss her. She moved her head and his lips touched her jawline.

[26] LFR testified she was shocked that he did that again and she started to cry. She said when she woke up the next day she had her clothes on. She thinks she blanked out what had happened. She said she was debating whether to tell her mother or not. She decided not to tell her. She was new to Canada and did not know what would happen. She did not know her mother well and she thought her mother seemed happy with HF and his family.

The Third incident

[27] LFR testified the third incident happened in about 2013 during the day at the home in Pickering.

[28] LFR testified this occurred when she was age 14 in grade 9, about two years after the second incident. The weather was warm that day. HF came and picked her up from school before lunch because she was ill. He took her to a 7-Eleven convenience store and purchased her a “slushy”. LFR alleges she was about to go to her own room to lie down when HF told her to go to the master bedroom. She agreed because her room was too sunny and the master bedroom had curtains in the window so the sun did not come through.

[29] LFR testified she lay down on the bed. She alleges that after a few minutes she heard HF enter the bedroom. She slowly got up. LFR alleges she was half standing and he grabbed her hand and pulled her to the bed. He put her hand into his red basketball shorts and made her touch his penis. LFR testified she felt the skin on his penis and it was hard.

[30] LFR testified she did not tell her mother about this incident. She said she did not tell anyone because she was scared. She testified that before she was in grade 9, there was a fight between her mother and her aunt, MLC, who had stayed with their family for a few months. She said the aunt made a report to “social services”. LFR alleges that when that occurred, her mother told her and her sister that if anything happened she and her sister would be taken from each other and her.

LFR’S DISCLOSURE OF THE SEXUAL ABUSE

Disclosure to Family Members

[31] LFR testified she first reported the sexual abuse to a cousin in February 2015. LFR had moved out of the house at this time. LFR stated that her female cousin, CV, called her and asked her what was going on with her and her mother. She did not tell her cousin right away.

[32] There had been problems with LFR’s boyfriend coming to visit LFR in the basement, without her mother’s knowledge, where LFR was sleeping at that time. The mother asked HF to put a padlock on the door to the bedroom in the basement. When LFR saw the padlock she said she felt like she had been evicted. She wrote her mother two notes and, I assume sarcastically, thanked her for evicting her from the house on Family Day. LFR said hers and her mother’s relationship deteriorated when the boyfriend came into the picture in November 2014.

[33] LFR made statements about the alleged abuse to family members which are prior consistent statements amounting to hearsay. These statements are accepted not for the their truth but rather only as part of LFR’s narrative.

[34] According to LFR, her cousin, CV, and her husband were surprised that LFR would leave home because of her boyfriend. LFR stated that because her cousin did not believe she left because of her boyfriend, she told her cousin, in not much detail, what HF had done to her. Others were present at her cousin CV’s apartment at the time so she went into her cousin’s bedroom so she could speak privately. She testified she was crying because she did not want to tell anyone.

[35] LFR testified she told her mother about HF after she told her cousin, CV, because her cousin advised her to do so. About two weeks later, the cousin, CV, called the mother to the cousin’s apartment and the three of them talked. LFR stated that she told her mother what happened with HF but did not tell her the details. LFR said because her mother was raising her voice as though she did not want to listen to her she thought her mother did not want her to finish her account and did not believe her.

[36] LFR testified that in March 2016, she emailed a male cousin, K, to tell him what happened. She said she was afraid to report directly to the police. The cousin, K, then reported the sexual abuse to the police.

Disclosure to the Police

[37] LFR gave two statements to Det. Heidgress. She first went to the police on April 23, 2015. Her first statement was two hours in duration and her second about one hour.

Cross-Examination of LFR

On the Living Arrangements and the First Incident

[38] LFR was cross-examined on her evidence that HF lived at V[…] Court. She was asked where HF kept his clothes and LFR indicated she did not know and that she did not recall seeing his clothes. When defence counsel put to LFR that she did not see HF’s clothes at V[…] Court because he did not stay there, LFR responded, “I don’t know.” LFR then insisted that he was always there unless he was at work. When defence counsel challenged LFR that HF never entered V[…] Court until July 31st when he helped their family move, LFR again responded, “I don’t know.”

[39] Defence counsel asked LFR where HF kept his car when he stayed at V[…] Court. LFR responded she did not know. She said she only saw her mother’s car.

On the Second Incident

[40] Defence counsel cross-examined LFR on the sleeping arrangements for the children during the renovations at the Pickering home. She sought to challenge LFR’s evidence that her sister and step-brother, N., slept together. Counsel started with asking how many times LFR and her sister had met the step-brother before they moved to Pickering on July 31st. LFR recalled meeting him for the first time on July 13th during the Canada’s Wonderland outing. She did not recall any other time seeing the step-brother before July 31st.

[41] Defence counsel questioned the unlikely truth of LFR’s evidence that her mother would arrange for her six-year-old daughter to sleep with a ten-year-old boy she had only met once previously. When defence counsel put to LFR that her sister slept with her on the air mattress the entire time they slept in the basement, LFR responded, “I don’t recall”.

[42] LFR confirmed she shared the room above the garage with her sister in 2010 and shared other rooms with her sister in 2012. She shared with her sister, on and off, because she would stay in her step-sister A.’s room when her step-sister was away during the week, until LFR moved to the basement in 2014.

[43] Regarding the facts of the sexual abuse, defence counsel first confirmed LFR’s evidence in-chief, and LFR agreed that HF only lifted her top but did not take it off. Counsel then pointed to the police interview where LFR stated that HF took her top and her pants completely off. To that LFR responded that she did not recall saying that to the police.

On the Third Incident

[44] Defence counsel recounted to LFR her evidence that she immediately lay on the bed in the master bedroom and that within moments HF went into that bedroom. LFR agreed that when he entered the room, he had on his red basketball shorts and his penis was erect. She had not fallen asleep and when he entered she got up slowly. Defence counsel recounted LFR’s evidence, and she agreed, that as she got up HF grabbed her hand and pulled her toward the bed.

[45] LFR agreed HF then sat on the bed beside her and grabbed her left hand and put it on his penis. He put her hand into his shorts for three to four minutes to touch his penis. LFR testified she felt his erect penis in his shorts but she did not see his penis. She said she therefore could not describe his penis. LFR also agreed that she pulled her hand out and quickly ran out of the bedroom.

[46] Defence counsel questioned LFR about the contents of the email she sent to her cousin, K. She sent the email in March or April 2015, sometime after she moved out of her mother’s home. LFR agreed that she had reviewed that email before trial. She agreed that she initialed each page of the four-page email during her first interview with Det. Heidgress.

[47] The email indicates that LFR told her cousin, K, that the third incident occurred in the evening. Defence counsel pointed out that LFR had sought at the preliminary inquiry to amend only one fact in the account and that was that she ran out of the master bedroom into her bedroom rather than into the bathroom. LFR agreed that was the only change she requested.

[48] Defence counsel questioned LFR about her account in the email that the third incident in the master bedroom occurred in the evening. The email also states she was sleeping when HF came into the room unlike her trial testimony that she was awake. LFR agreed that the email was written closer in time to the incident and that her memory of what happened would be more accurate at that time than at trial.

[49] Nonetheless LFR insisted that the incident actually happened in the morning, not the evening. She explained that her mother was not at home because she was on the morning shift at that time. She also testified she was not sleeping when HF entered the master bedroom.

[50] Defence counsel made a more fundamental challenge to LFR’s account of the third incident. Defence counsel referred her to her videotaped police statement. LFR indicated she had reviewed the video recording of the interview before trial.

[51] LFR agreed that HF’s penis was never exposed during the incident and that her hand was just placed into his shorts. A portion of the police statement was played. Defence counsel then confronted LFR with her evidence in her police video recording where LFR states that HF pulled down his shorts. This would mean, as defence counsel pointed out, that his erect penis was exposed. To this LFR responded, “I don’t know”.

[52] Defence counsel asked LFR if there was anything unusual about HF’s penis, whether there were any piercings or tattoos or other irregularities. LFR responded that there was nothing unusual.

[53] Defence counsel also replayed another portion of the police video statement where LFR states that she stayed home all day the day of the master bedroom incident. LFR’s answer to that was, “I think what I meant is, I came home. Yah, I wasn’t at school.” Defence counsel reminded her that in the email to her cousin, K, she said she was so sick that she went to sleep and that the incident happened in the evening because her mother was on the evening shift.

LFR’s Relationship with her Mother

[54] LFR’s relationship with her mother became antagonistic when LFR’s boyfriend came into LFR’s life in November 2014. LFR acknowledged under cross-examination that her mother did not approve of her drinking alcohol with her boyfriend and other friends. LFR agreed with defence counsel’s suggestion that her mother wanted her to stop partying with her friends and focus on her studies.

[55] Defence counsel questioned LFR on an incident that occurred at the Pickering home on the evening of November 7, 2014. At this time LFR was sleeping in the basement. LFR agreed she had her boyfriend and some friends over and they were drinking and playing loud music. LFR agreed they had two bottles of alcohol and they remained in the basement for several hours. Her mother was at work and HF and LFR’s step-sister were at home. She admitted that her female friend got very intoxicated that evening. LFR acknowledged that HF came downstairs and said something to her but she did not recall what he said.

[56] LFR acknowledged defence counsel’s suggestion that it was after this incident that her mother told her boyfriend to leave LFR alone. She agreed that her mother texted the boyfriend and told him never to contact her again and to never come inside or outside their home. The mother thought the boyfriend was ruining LFR’s life. LFR also agreed that in her mother’s messages to the boyfriend she threatened to call the police on the boyfriend for being in a relationship with an under-aged girl.

[57] LFR agreed her mother stopped her from seeing the boyfriend because she thought he was destroying her future. LFR admitted she found this difficult because she was in love with her boyfriend. She kept seeing him behind her mother’s back. LFR admitted at trial to sneaking him into the basement at night to sleep over.

[58] Defence counsel put to LFR the fact that the mother had found out about the boyfriend sleeping over. LFR agreed that she had used her mother’s cellphone to send her boyfriend a Facebook message. On February 15, 2015, the mother saw the message which referred to her sneaking her boyfriend into the basement.

[59] LFR wrote a note to her mother after she discovered the Facebook message and denied she was sneaking him in. At trial, LFR adopted the words in the note where she told her mother the Facebook message was about “Two messed up teens having a joke.” LFR also acknowledged a second note she wrote where she told her mother she felt unloved by her and knew her biological father was “a deadbeat dad”. She felt her mother was kicking her out of the house.

[60] LFR accepted defence counsel’s suggestion that her mother then told LFR she had to sleep upstairs and asked HF to padlock the basement bedroom. She slept upstairs on February 15th. LFR agreed when she saw the padlock she decided to leave home and to go live at her boyfriend’s house. At the time of trial LFR continued to live there.

[61] Defence counsel suggested she left home because of her boyfriend. LFR denied this saying that was not the reason. She stated she left home because HF had sexually abused her.

HF’s Evidence

The Sexual Abuse Allegations

[62] HF insisted the first incident did not happen because he never entered into or stayed at V[…] Court. He also flatly denied the other two incidents. As noted earlier his evidence on the second incident was in accord with the mother’s that LFR’s sister slept with her on the inflated mattress at the Pickering home. The step-brother slept alone on another mattress.

[63] In terms of his working life, HF pointed out he continuously worked the 3:00 p.m. to 11:00 p.m. shift until he was charged. On cross-examination HF stated that he would get home at about 11:45 p.m. to 11:50 p.m. Once he arrived home he would eat until midnight and, during the renovations, he would continue with that work.

[64] Defence counsel asked HF about the two versions of the third incident that LFR gave. He again denied that he would do such a thing. He testified he never owned red basketball shorts. HF denied the suggestion that on the mother’s request when she was working he would routinely pick up LFR from school when she was ill. He said he recalled picking her up on one occasion and buying her a slushy and a donut. He was adamant that he never sexually abused LFR on that occasion or at any other time.

[65] HF was questioned by defence counsel about the features of his penis and whether there was anything unusual about it. He testified that he had piercings with four beads sutured onto his penis. He drew to scale two pictures of his penis which depicted four beads the size of green peas that were sown around his penis just below the rim situated so they were visible to the eye. He testified he had the beads imbedded there when he visited the Philippines in 2009. He removed them sometime after he got married to LFR’s mother. They were married in December 2014. The mother confirmed HF’s evidence and stated that after they married she asked that the beads be removed because she thought it looked “extra-terrestrial” and made her feel uncomfortable during intercourse.

HF’s Relationship with LFR

[66] HF testified that he and the mother agreed that they would each discipline their own children. He did not have disciplinary authority over LFR. He would just tell the mother if he had any concerns about LFR and her sister. HF testified that before November 7th his relationship with LFR was normal.

[67] HF testified about the November 7, 2014 incident when LFR had her friends over. His evidence was not fundamentally different from LFR’s account.

[68] HF testified that around 9:30 p.m. her friends came over including her boyfriend. The step-sister, A., was in the basement and brought HF downstairs because of the noise and the drinking. He told them they are young and should not be drinking and asked them to turn down the music. He returned upstairs and the noise continued. HF asked LFR to tell her friends to go home. He went back upstairs and texted the mother to tell her what was going on.

[69] HF stated he returned downstairs and saw LFR and her boyfriend on the couch with his hand between her thighs. He saw the female friend in a serious state of drunkenness so much so that she could not stand. The mother called and asked him to call the police. HF told her the friends had already left by 10:55 p.m.

[70] HF testified his relationship with LFR declined. She knew he had reported her for what happened at the house on November 7th. He told her mother that her boyfriend and she were engaged in inappropriate sexual activity. Her mother confronted her with this. LFR testified this made her very angry. HF testified he believed LFR blamed him for her mother’s disapproval of her boyfriend. HF said LFR was telling her mother that HF was lying about her.

The Mother’s Evidence

On Learning of the Sexual Abuse Allegations

[71] The mother testified she first learned about the sexual abuse allegations on March 18, 2015 when LFR’s cousin, CV called to have a meeting between them and LFR. The mother testified that on that occasion LFR only told her that HF hugged her, that she cried, and that HF said he was sorry.

[72] On March 29, 2015 the mother spoke with the boyfriend’s parents. There was a second meeting at cousin CV’s apartment. There were several relatives present. The mother testified that LFR told her that HF touched her on her breast and vagina. Then LFR started crying and left the room. The mother testified she told LFR’s aunt to tell LFR to tell the truth. The mother tried to convince LFR to return home but to no avail. The mother testified that she did not believe LFR because she had been lying to her about other matters in relation to her boyfriend.

[73] The mother confirmed that after she learned of the boyfriend sleeping over in the basement, she told LFR to move upstairs to sleep and asked HF to put a padlock on the bedroom door in the basement. The mother confirmed she saw the Facebook message on her cellphone sent by LFR to her boyfriend about him sneaking in and sleeping over. The mother testified she had been suspicious about this because she had found the back door to the basement unlocked and had seen footsteps in the snow.

ANALYSIS

The Test in R. v. W.D.

[74] It is for the Crown to prove beyond a reasonable doubt HF’s guilt of the sexual offences. It is not the Court’s task to simply compare the Crown’s evidence with that of the defence and choose between them. This would improperly burden HF with proof of his innocence. The burden remains with the Crown. The Supreme Court of Canada has developed an oft-cited guideline to assist trial courts to assess reasonable doubt.

• If the court believes HF’s evidence that he did not commit the sexual offences against the complainant, the court must find HF not guilty of the offences.

• Even if the court does not believe HF’s evidence, if it leaves the court with a reasonable doubt about his guilt of the sexual offences against the complainant, the court must find HF not guilty of those offences.

• Even if HF’s evidence does not leave the court with a reasonable doubt of his guilt of the sexual offences against the complainant, the court may convict him only if the rest of the evidence the court does accept proves his guilt of those offences beyond a reasonable doubt.

[R. v. W. (D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742 (S.C.C.)]

[75] For reasons I set out below, I find the Crown has not satisfied me beyond a reasonable doubt of HF’s guilt of the charges. The evidence supports to my satisfaction my belief that HF did not commit the sexual offences against LFR. I believe HF. I find the first test in R. v. W. (D.) has been met.

Evaluation of the Evidence

[76] The problems with LFR’s evidence on all three incidents compel me to disbelieve her allegations against HF.

[77] Starting with the first incident, I accept HF’s and the mother’s evidence that HF did not live at or visit the V[…] Court address.

[78] I believe that he never visited that household until the day he helped the mother and children move their belongings to the Pickering address. I found that the mother testified in a sincere manner about her respect for the elderly woman whom she had taken care of for so many years. It was important to the mother to maintain the respect of Ms. D.S. and Ms. D.S.’s daughter and son-in-law. To the mother’s mind, to bring a man, to whom she was not married, into Ms. D.S.’s household would be to violate that respect.

[79] HF’s testimony was also persuasive that he had never been inside V[…] Court until July 31, 2010, the day the family moved out. On cross-examination, LFR did not appear to be so certain about her evidence that HF either lived there or was always there. When defence counsel on an occasion put to LFR that HF never entered V[…] Court until July 31st, LFR responded, “I don’t know.”

[80] It would not have been possible for HF to have committed the sexual abuse in the basement of V[…] Court based on the evidence I accept as true. LFR repeated a serious falsehood about that incident of abuse. I find the credibility problems with the first incident also go on to affect the credibility and reliability of her evidence on the other incidents.

[81] Regarding the second incident, I find for a number of reasons, I do not accept LFR’s evidence that HF sexually abused her on the air mattress at the Pickering home.

[82] LFR insisted in examination-in-chief that she slept alone on the air mattress in the basement during the renovations upstairs. She testified that her six-year-old sister did not sleep with her. She tried to convince the court that her sister slept with their ten-year-old step-brother on the other air mattress. I did not find LFR’s evidence easy to believe. LFR admitted that she and her sister slept together at V[…] Court and slept together after they moved upstairs at the Pickering home. The mother confirmed that evidence.

[83] I also considered the fact that before the family moved to Pickering, LFR and her sister had only met the step-brother N. on one previous occasion, when the family went to Canada’s Wonderland for LFR’s 11th birthday. The mother testified she planned and supervised the sleeping arrangements. She provided a double mattress in the basement for LFR and her sister to sleep on and a single mattress for the step-brother.

[84] It does not stand to reason that the mother would have her six-year-old daughter sleep on the same mattress with the step-brother when there was an alternative arrangement available. This is especially so when the children had only met once previously and when the sister had always slept with LFR. Why would the mother have LFR sleeping alone in the circumstances?

[85] Then the question becomes, why would LFR make up a falsehood about her sleeping alone on the air mattress? I think I can safely conclude LFR did not give that evidence without a reason. I find the reason she gave the false evidence is to make her evidence that HF climbed on top of her on the mattress and sexually abused her more believable. It would not seem as plausible that the abuse happened if her sister was beside her at the time. The likelihood would be that the sister could wake up. LFR wanted to avoid that being a possible conclusion that could be drawn.

[86] I find that the falsehood goes to the heart of LFR’s credibility on the other incidents.

[87] LFR’s evidence on the third incident has critical problems. LFR gave two versions of the alleged abuse and the factual context surrounding the abuse.

[88] LFR’s first version of that incident was given in her videotaped statement to the police. She told the police she had been home all day on the day that incident occurred. She stated that she did not go to school that day because she was ill and that she was in bed in the master bedroom when HF sexually abused her. LFR told the police the abuse happened in the evening when her mother was on the night shift.

[89] At trial LFR testified HF picked her up at school before lunchtime because she did not feel well. He took her to 7-Eleven to get a slushy. LFR stated that the abuse happened in the daytime when her mother was on the day shift.

[90] These contexts are entirely inconsistent with each other. So too are LFR’s descriptions of the nature of the abuse.

[91] LFR told the police in her statement that when the alleged abuse happened she was asleep in the master bedroom when HF entered the room. He had on red basketball shorts and she could see his erect penis in his shorts. LFR stated the she began to get up and he pulled his shorts down exposing his erect penis. HF grabbed her hand and placed it on the penis. LFR told the police she saw and felt the penis.

[92] At trial, LFR stated that she was awake lying on the bed in the master bedroom when HF walked in. He had on red basketball shorts. She sat up when he entered the room. He approached her pushing her toward the bed. He grabbed her hand and forced it into his shorts making her touch his erect penis. She testified she felt the penis but did not see it.

[93] LFR did not provide a sensible explanation for the discrepancy between the different accounts of the third incident of abuse.

[94] I accept HF’s and the mother’s evidence that HF had beads sewn onto his penis that would have been visible. LFR’s evidence was that she did not see or feel anything unusual about HF’s penis. If HF had pulled down his shorts and made her touch his penis, I believe, based on the diagram HF drew to scale that LFR would have seen and/or felt the beads on his penis. The inconsistencies and implausibility of LFR’s evidence in this area contribute to my conclusion that LFR fabricated the master bedroom incident.

CONCLUSION

[95] I can only conclude LFR fabricated her allegations about the three incidents of sexual abuse. While I need not find a motive, I believe one is evident from the evidence. It appears that LFR might have been acting out of anger with HF and her mother over the fallout over her boyfriend. HF reported her to her mother for having her boyfriend and other friends over drinking underage for several hours in the basement. HF told the mother that LFR and her boyfriend were engaged in inappropriate sexual conduct that evening. LFR admitted that made her very angry. The mother found out she was sneaking her boyfriend into the basement to sleep with her. The mother had the basement bedroom padlocked and made her sleep upstairs. This greatly upset LFR so much so that she left her mother’s household and has never returned.

[96] This could provide a motive for LFR to strike back at her mother and HF by making false allegations against HF, the man her mother had married just months before she left the home.

[97] I find the Crown has not proven HF’s guilt of the sexual offences beyond a reasonable doubt. The credibility and reliability problems with LFR’s evidence have raised a reasonable doubt in my mind.

VERDICT

[98] I find HF not guilty on counts 1, 2, 3, 4, 5, 6, and 7 on the indictment. Acquittals will accordingly be entered on the record.

B.A. ALLEN J.

Released: September 8, 2017

CITATION: R. v. H.F., 2017 ONSC 5310

COURT FILE NO.: CR-40000399-0000

DATE: 20170908

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

H.F.

Accused

REASONS FOR JUDGMENT

B.A. ALLEN J.

Released: September 8, 2017