R. v. A.(E.G.), 2017 ONSC 5315

COURT FILE NO.: 14-5A5104

DATE: 2017/10/02

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

A. (E.G.)

Accused

COUNSEL:

John Ramsay, for the Crown

Samir Adam, for the Accused

HEARD: May 8, 11, 12, 15, 16 and 18, 2017

SUBJECT TO ANY FURTHER ORDER BY A COURT OF COMPETENT JURISDICTION, AN ORDER PURSUANT TO s. 486.4 OF THE CRIMINAL CODE HAS BEEN MADE IN THIS PROCEEDING DIRECTING THAT THE IDENTITY OF THE COMPLAINANT AND ANY INFORMATION THAT COULD DISCLOSE SUCH IDENTITY, INCLUDING THE NAMES OF OTHER CROWN WITNESSES, SHALL NOT BE PUBLISHED IN ANY DOCUMENT OR BROADCAST IN ANY WAY.

REASONS FOR JUDGMENT

Corthorn, J.:

[1] The charges against E.G.A. stem from alleged incidents of historical sexual offences involving his daughter and occurring between January 1, 1974 and December 31, 1979. The incidents are alleged to have occurred in the family home in Ontario and during road trips taken by E.G.A with the complainant. The complainant was between the ages of four and ten at the time of the alleged offences. She was 47 years old when she testified at trial.

[2] The charges are based on offences as they were defined in the Criminal Code during those years. The section numbers listed below are the historical numbers. The offences with which the accused is charged are:

1. Sexual intercourse with a female under fourteen who was not the wife of the accused (section 146 (1));

2. Sexual intercourse with a female person, who was not the wife of the accused, without the consent of the female person (section 144);

3. Indecent assault on a female (section 149);

4. Sexual intercourse with a person who was by blood relationship his child (section 150(2)); and

5. Gross indecency (section 157).

[3] The full version of each of the sections of the Criminal Code referred to above is attached as Schedule ‘A’ to these Reasons.

Publication Ban

[4] There is a permanent publication ban pursuant to s. 486.4 of the Code. No person is entitled to disclose any information that would identify the complainant or the two other witnesses called by the Crown.

[5] To give effect to the publication ban and to further protect the privacy of the complainant and the two other witnesses called on behalf of the Crown, in these reasons I refer to:

a) The accused as “Mr. Brown”;

b) The complainant as “Joan”;

c) The two other witnesses called by the Crown as “Ms. Green” and “Ms. Woods”;

d) The other province in which the Brown family lived (after leaving Ontario) as Alberta, although it is not the province to which they moved; and

e) Other locations in a generic fashion and not by name.

Overview

[6] In 1979, Mr. Brown, the complainant, and the balance of their family moved to Alberta. In 2013, Mr. Brown plead guilty, in Alberta, to sexually assaulting the complainant from 1979 to 1987.

[7] The circumstances that led to charges being laid and the guilty plea being entered in Alberta form part of the evidence in the matters now before the Court. The complainant relies, in part, on those circumstances to explain the delayed disclosure with respect to the alleged incidents alleged to have occurred prior to the family’s move to Alberta. Mr. Brown maintains that, with his guilty plea in 2013, he accepted responsibility for his sexual conduct involving the complainant, all of which occurred after the family left Ontario.

[8] Joan’s family in Ontario consisted of Mr. Brown, her mother, and a brother one year older than Joan. Joan’s parents separated, following which Mr. Brown had custody of both children. Joan did not continue to see her mother on a regular basis.

[9] It is alleged that Mr. Brown’s sexual contact towards Joan began in Ontario after her mother left the home and prior to when Joan started school. The conduct giving rise to the charges against Mr. Brown includes:

• Mr. Brown fondling Joan’s breasts, buttocks, and vagina;

• Mr. Brown penetrating Joan’s vagina with his finger;

• Mr. Brown forcing Joan to touch and rub his penis, with Mr. Brown guiding the movement of Joan’s hand;

• Mr. Brown forcing Joan to perform fellatio, with Mr. Brown ejaculating into Joan’s mouth; and

• Mr. Brown having intercourse with Joan.

[10] The witnesses called by the Crown were Joan and her two childhood friends from Alberta, Ms. Green and Ms. Woods.

[11] The documentary evidence includes an Agreed Statement of Facts (the “ASF”). That document sets out the facts upon which Mr. Brown’s guilty plea and sentence in 2013 were based. The ASF was filed in this trial on the consent of the Crown and defence counsel. I refer to defence counsel as “counsel” throughout the balance of these reasons.

[12] The agreement pursuant to which the ASF was filed includes that the conduct of Mr. Brown described therein, as it relates only to Joan, may be treated by the court as similar fact evidence.

[13] There were two other exhibits: (a) on behalf of the Crown, notes made by Joan during her adult years; and (b) on behalf of Mr. Brown, copies of two diplomas earned by him between 1974 and 1980.

[14] Mr. Brown elected to testify. No other witnesses were called on his behalf.

[15] On behalf of Mr. Brown, counsel asks me to either accept Mr. Brown’s denial or find that Mr. Brown’s evidence leaves me with a reasonable doubt as to Mr. Brown’s guilt on the offences with which he is charged (R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742, at p. 757). Counsel submits that Joan’s evidence is replete with frailties; the frailties impact on Joan’s credibility and, to a greater extent, on her reliability as a witness; and, as a result, Joan’s evidence does not support a finding of guilt on any of the charges. Counsel also submits that the evidence of Ms. Green and Ms. Woods, both individually and collectively, does not eliminate the reasonable doubt left by Joan’s evidence.

[16] The Crown submits that there are a number of striking features about Mr. Brown’s evidence that ought to result in its rejection. These features include the following:

a) Mr. Brown was not prepared to stand by the contents of the ASF upon which the guilty plea and sentence were based in 2013;

b) His evidence is in large part internally inconsistent; and

c) His evidence on a number of significant matters lacks any air of reality.

[17] The Crown submits that it has met the onus of proving, beyond a reasonable doubt, that Mr. Brown is guilty of all of the offences with which he is charged.

The Evidence

a) The Agreed Statement of Facts

[18] The conduct of Mr. Brown that forms the basis of the guilty plea entered and sentence imposed in 2013, with respect to events in Alberta, is described in the ASF as follows:

• Mr. Brown touched Joan’s breasts and digitally penetrated her vagina on numerous occasions. These events occurred in the family home;

• Mr. Brown would come late at night to Joan’s bedroom. She had a double bed. Mr. Brown would get into bed with Joan and rub her breasts, rub her vagina, and stick his finger into her vagina;

• Mr. Brown would, in the presence of Joan’s friend, Ms. Green:

− Put his hands up Joan’s top to touch her breasts;

− Put his hand down Joan’s pants to touch her bottom;

− Kiss Joan’s stomach and breasts;

− When throwing Joan in a swimming pool, slide his hands under Joan’s legs (between her vagina and her bottom), to lift Joan and throw her in the water; and

− Dry Joan off with a towel, after Joan played outside in water the summer, and, when doing so, cup her breasts.

[19] Mr. Brown did not, at trial, agree that the conduct described above spanned the entire period mentioned in the ASF. The time period covered by the ASF is discussed below in “Issues with Mr. Brown’s Evidence”.

b) Mr. Brown’s Evidence

[20] Given that Mr. Brown denies having any sexual contact with Joan prior to the family’s move to Alberta, much of his evidence relates to events in that province. I start with the year 2013 and Mr. Brown’s plea of guilty to charges of sexual assault based on Mr. Brown’s conduct towards Joan while the family lived in Alberta.

[21] In his evidence at trial, Mr. Brown insisted that the only period during which he had sexual contact with Joan was between 1984 and 1987. He denied having any sexual contact with Joan prior to 1984. In particular, he denied having sexual contact with Joan when she was “very young”.

[22] When testifying, Mr. Brown wanted to “carefully stick” to 1984 as the year in which the sexual contact with Joan began. He gave a number of reasons for wanting to do so:

a) “Because that’s what I remember”;

b) “Because that’s what I plead to”; and

c) It was not until after the family moved to Alberta that Joan matured physically.

[23] The ASF upon which the 2013 plea and sentence are based, identifies the period during which the sexual assaults occurred as 1979 to 1987. Mr. Brown testified that immediately after he plead guilty and received his sentence in 2013, he spoke with his then defence counsel in an effort to have the time period covered by the plea changed to 1984 to 1987. Mr. Brown’s evidence was that his counsel responded that it was too late in the proceeding for that change to be made.

[24] Ultimately, in re-examination, Mr. Brown testified that he understood when he plead guilty that the charges against him related to the period from 1979 forward when the family lived in Alberta.

[25] Mr. Brown gave evidence as to the communication between him and Joan during the incidents of sexual contact to which he plead guilty in Alberta. Initially, Mr. Brown testified that he did not recall (a) Joan asking him to stop, or (b) him telling Joan either how much he loved her or that his conduct was his way of showing Joan how much he loved her. Mr. Brown later testified that there was no communication whatsoever between him and Joan during or immediately upon the conclusion of the sexual contact.

[26] Mr. Brown was unable to recall on how many occasions or how frequently the sexual contact with Joan occurred in Alberta. He recalled in some detail the physical locations (a) in Alberta in which the sexual contact occurred, and (b) in Ontario and elsewhere in which the sexual contact is alleged by Joan to have occurred between 1974 and 1979 (the “Ontario years”).

[27] Mr. Brown testified that in 1984, as a result of an unrelated complaint, it was recommended that he, his second (current) wife, and Joan attend for family counselling. Mr. Brown denied that the counselling recommended at the time had anything to do with his sexual contact with Joan.

[28] In cross-examination, Mr. Brown acknowledged being made aware that Joan had in April 1984 spoken to the RCMP and disclosed to them incidents of sexual contact by her father. Mr. Brown’s evidence was that as of April 1984, he had been having sexual contact with his daughter for approximately three months.

[29] Returning to the counselling undertaken in 1984, in cross-examination Mr. Brown testified that:

a) The counselling was not related exclusively to family issues (as he had testified in-chief);

b) The counselling was to address “family and the neighbourhood”;

c) As a result of the counselling he became a “two-metre person” and refrained from being physically close to others; and

d) At some point between 1984 and 1987, Mrs. Brown told him that his behaviour made others uncomfortable.

[30] Mr. Brown’s evidence includes that when Joan left the family home unexpectedly in 1987, he and his wife made efforts to locate Joan. Upon learning where Joan was, Mr. Brown did not personally speak with Joan or make any effort to have her return home.

c) The Complainant’s Evidence

[31] Joan testified that after her parents separated, her father hired a live-in caregiver. The woman resided in the basement of the Brown home in Ontario. The caregiver became pregnant, and moved out of the Brown home at the end of her pregnancy. This evidence is consistent with Joan’s statement to the RCMP in 2002, wherein she said that the caregiver left the Brown family home at the end of her pregnancy. (Mr. Brown testified that the caregiver, together with her son, continued to live with the Browns until the boy was one year or 18 months old.)

[32] Joan recalled in some detail the family home in which she lived with her family in Ontario. For example, Joan recalled that the bathroom had a green sink and bathtub. (Mr. Brown recalls the fixtures as being beige or cream.) Under cross-examination, Joan:

• Recalled where her bed was positioned in her bedroom in the family home in Ontario;

• Did not have any specific memory of what her Ontario bedroom looked like;

• Testified that her bedroom was changed a couple of times when the family lived in Ontario; and

• Acknowledged that she does not have a very good memory of what her father’s bedroom in the Ontario home looked like.

[33] Joan recalled her father remarrying, with Joan fulfilling a role in the small ceremony performed by a Justice of the Peace. (Mr. Brown testified that a religious ceremony was performed at a university location.)

[34] Joan testified that she did not initially appreciate or understand that her father’s sexual conduct towards her was inappropriate or anything other than normal. When she began to attend school, she heard her teachers say that children her age should not be sleeping in their parents’ bed. This information served to reinforce in Joan’s mind that what had been happening was typical of other families and girls her age.

[35] Joan described that her father would lure her to his bedroom by offering her treats or the opportunity to watch television. Following the consumption of the treat or watching television, the sexual conduct would occur.

[36] Joan also described that her father would utilize bath time as an opportunity to digitally penetrate her vagina; in his words, to ensure she was clean. The digital penetration of her vagina was painful and would remain painful or uncomfortable for a number of days after the incidents.

[37] Joan testified that at times during the sexual contact she would cry. Her father would tell her (a) how much he loved her, and (b) that his conduct was his way of showing her how much he loved her.

[38] Joan’s evidence was that the first time Mr. Brown had intercourse with her was after Joan had bathed; the intercourse occurred on the bathroom floor. Joan testified that after the first incident of intercourse, she no longer went to her father’s bedroom.

[39] Joan testified that the intercourse was painful at the time; it would take a couple of days for the pain to dissipate. Joan recalls that on at least one occasion, her father gave her a bag of frozen peas to apply in an effort to ease the pain following intercourse.

[40] It was Joan’s evidence that the fellatio and intercourse occurred when it was dark out, in her bedroom, in her father’s bedroom, and in the family room. No one else, such as Joan’s brother or Mr. Brown’s girlfriend at the time (and now his wife), was around. Joan testified that Mr. Brown ejaculated inside her; she was uncertain if he ever ejaculated on her.

[41] Joan estimated that the acts of intercourse and fellatio each occurred at least 50 times during the Ontario years. The fondling and digital penetration occurred more frequently.

[42] The fondling occurred so frequently that it was “like every day” and “a natural every day thing”. Joan described that Mr. Brown would find ways to be physically near her, fondle her, and then behave as if his touching her was accidental. The fondling occurred at any time of day. On occasion, Joan’s brother and/or Mr. Brown’s girlfriend (previous to his current wife), were around when the fondling occurred.

[43] Joan recalls a number of incidents of intercourse occurring away from the Brown family home, during the Ontario years. The incidents include:

• In Mr. Brown’s white pick-up truck during a family trip (including her stepmother and brother) to an amusement park in the United States;

• At Christmas time (both in Ontario and in Mr. Brown’s home province), with Mr. Brown encouraging Joan to be a good girl and do what she was told because Santa was watching;

• At the roadside during a car trip taken by Mr. Brown and Joan to visit Alberta; and

• At Joan’s paternal grandparents’ home, in a room in which “there were a lot of flowers”.

[44] Subsequent to leaving home in 1987, and prior to the trial in Ontario, Joan had seen her father on two occasions. Joan first saw her father less than a year after leaving home. She saw him in court, as part of the process of claiming support from Mr. Brown so that she could pursue post-secondary education. Joan did not see her father again until 2013, when she attended court for Mr. Brown’s plea of guilty to the charges in Alberta.

[45] Joan testified that prior to attending court in Alberta for the plea of guilty in 2013, she was not aware of the specific charges that Mr. Brown faced with respect to her and the two other girls. In addition, she was not aware that the charges did not include an offence based on intercourse. Joan testified that she was not present when the Crown and Mr. Brown’s defence counsel at the time discussed and reached an agreement with respect to the contents of the Agreed Statement of Facts.

[46] The balance of Joan’s testimony includes evidence with respect to (a) the timing and manner of disclosure, in the 1980’s and thereafter, of the events upon which the charges in Ontario are based, and (b) her contact in 2000 and later with one or both of Ms. Green and Ms. Woods. Those portions of Joan’s evidence are discussed in a subsequent section of these Reasons.

d) Other Evidence

[47] In the Analytical Framework section below, I address the evidence of Ms. Green and Ms. Woods.

[48] The Crown sought to introduce evidence with respect to incidents alleged to have occurred in the early 1960’s and involving Mr. Brown’s second cousins. The Crown also sought to introduce evidence from one of the two other complainants from the case in Alberta.

[49] The Crown’s application was based on the submission that by his evidence, Mr. Brown had put his character in issue. Having done so, it was open to the Court to consider the similar fact evidence described above.

[50] In summary, I ruled that Mr. Brown had not put his character in issue. As a result, the Crown was not permitted to cross-examine Mr. Brown on what was described as similar fact evidence. I did not make a ruling as to whether the matters referred to by the Crown fell within the scope of similar fact evidence.

Analytical Framework

a) General Comments

[51] In any criminal proceeding, the analysis begins with the presumption of innocence. Mr. Brown is presumed to be innocent on each of the five offences with which he is charged.

[52] It is not incumbent upon a person charged with an offence to assert their innocence through their own evidence or through other evidence called on their behalf. Mr. Brown had the right not to call evidence; he chose to testify.

[53] The underlying facts to the charges against Mr. Brown are in dispute. The court must carefully consider the credibility and reliability of all of the testimony offered.

[54] Credibility relates to the witness’ veracity; reliability addresses the accuracy of the witness’ testimony. It is only after consideration of all of the evidence and only if that evidence is found to establish guilt beyond a reasonable doubt that the presumption of innocence is set aside and a finding of guilt can be made. It is not sufficient for the Crown to establish possible, probable, or likely guilt. A reasonable doubt is not far-fetched or frivolous. Reasonable doubt does not involve proof to an absolute certainty or proof beyond any doubt, which is often impossible (R. v. Starr, 2000 SCC 40, 190 D.L.R. (4th) 591, at para. 231).

[55] For a finding of guilt to be made, the Court must be sure that the offence was committed.

[56] I have considered the credibility and reliability of the testimony of each of the witnesses. My assessment of credibility and reliability takes into account that many individuals called upon to give evidence at a criminal trial are not familiar with the process, may never have experienced a courtroom setting, and are required to rely upon their memory of events that transpired a number of years ago.

[57] I am mindful of inconsistencies and contradictions in the testimony of any witness. However, perfection in the testimony of witnesses is not expected and may be suspect.

[58] Consistency is an element of truthful testimony. Minor inconsistencies are also an element of truthful testimony. Contradictions within a witness’ testimony and those demonstrated through consideration of the witness’ prior accounts of events are important considerations. Significant inconsistencies or contradictions are treated much differently and can, in some circumstances, result in a witness’ testimony being rejected in whole or in part.

[59] Mr. Brown’s denial of the alleged events does not give rise to a duty upon the court to decide whether his or the complainant’s account of events in Ontario is the most truthful, plausible, and accurate. The outcome in this matter is not determined on the basis of a credibility contest between Mr. Brown and the witnesses called by the Crown.

[60] With Mr. Brown having testified, the outcome in this case is determined on the following basis:

• If Mr. Brown’s denial is believed, he must be acquitted;

• If I do not believe Mr. Brown’s evidence but his evidence leaves me with a reasonable doubt, he must be acquitted; and

• Even if I am not left in doubt by Mr. Brown’s evidence, only if the evidence I accept is sufficient to establish Mr. Brown’s guilt beyond a reasonable doubt is a finding of guilt made. (See R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742, at p. 758.)

[61] I recognize that the potential exists for Mr. Brown to be acquitted on some of the charges and found guilty on one or more of the other charges.

b) The Evidence of Children

[62] I turn to this topic because although Joan was 47 years old when she testified at trial, her evidence was in part with respect to events she alleges occurred when she was five to nine years old—30 to 40 years ago. Consideration is to be given to her age at the time of those events.

[63] I am mindful of and have applied the guidelines established by the Supreme Court of Canada for the assessment of the credibility of child witnesses: see R. v. B.(G.), 1990 CanLII 7308 (SCC), [1990] 2 S.C.R. 30, [1990] S.C.J. No. 58,. The perspectives of children and how they experience the world are a factor to be considered. In her decision in R. v. W.(R.), McLachlin J. said, “[s]ince children may experience the world differently from adults, it is hardly surprising that details important to adults, like time and place, may be missing from their recollection” (1992 CanLII 56 (SCC), [1992] 2 S.C.R. 122, [1992] S.C.J. 56, at para. 24).

[64] The guidelines with respect to the perspectives of children are also relevant to my consideration of the evidence of Ms. Green and to Ms. Woods. I pause to note that Ms. Woods is slightly younger than both Joan and Ms. Green.

Issues with the Evidence of Mr. Brown

[65] For the reasons set out below, I find that Mr. Brown is not a credible witness. I reject his denial of the events giving rise to the charges. In addition, I find that his evidence does not leave me with a reasonable doubt as to his guilt on any of the charges.

[66] In these Reasons, I touch upon the following areas covered by Mr. Brown’s testimony:

a) The Agreed Statement of Facts;

b) Joan as a teenager;

c) Communication during and/or about sexual contact; and

d) The physical locations in which incidents occurred or are alleged to have occurred.

[67] My concerns with respect to Mr. Brown’s evidence are not limited to these four subject-matters. I review these four subject-matters so as to provide examples of the nature and extent of my concerns with respect to Mr. Brown’s credibility.

a) The Agreed Statement of Facts

[68] The circumstances in this case are unusual because Mr. Brown’s conduct towards his daughter is addressed in two separate proceedings, with the two proceedings separated by a number of years. Also contributing to the unusual nature of this case, Mr. Brown now denies that the contents of the ASF accurately reflect his conduct towards Joan when the family lived in Alberta.

[69] The ASF was filed (a) at an early stage in this trial, and (b) on the consent of the Crown and counsel. The sole caveat expressed by counsel when the ASF was filed, was that only the conduct described therein with respect to Joan could be relied upon as similar fact evidence in this trial. The conduct described in the ASF with respect to two other individuals, to which conduct Mr. Brown also plead guilty in 2013, does not form part of the similar fact evidence. I pause to note that Ms. Green is one of the other two individuals.

▪ Time Period Covered by ASF

[70] When the ASF was filed on consent, no caveat was expressed with respect to the time period covered by the ASF—1979 to 1987. Yet when Mr. Brown testified, he insisted that the only period during which he had sexual contact with Joan was between 1984 and 1987.

[71] There are three references in the ASF to the period of time covered by the plea:

• The investigating officer is said to have been contacted with respect to historical sexual assaults that occurred between 1979 and 1987 in Alberta;

• Joan said that her father had, between 1984 and 1987, touched her breasts and digitally penetrated her vagina “on numerous occasions” when she was living at the residence [in Alberta]; and

• Joan said that the incidents “started when she was very young and ended when she had completed high school in 1986-87”.

[72] Mr. Brown testified at trial as to his level of education and professional accomplishments. It is difficult to accept that someone with his level of education and experience did not appreciate, prior to the plea being entered, the specifics of the events, including the period of time in which they occurred, to which he was pleading guilty.

▪ The Post-Plea Scenario

[73] Mr. Brown gave evidence as to efforts he made, after the plea was entered, to have his counsel change the time period to which the plea applied (i.e. to narrow it to 1984 to 1987). There are at least two issues with the post-plea scenario described by Mr. Brown.

[74] First, the evidence as to what was said by counsel at the time is hearsay. That evidence does not meet the requirements of the principled approach to hearsay exceptions and is inadmissible.

[75] Second, the post-plea scenario described lacks plausibility. The defence counsel had an obligation to his client to rectify the situation if an error was made in terms of the time frame covered by the plea. It is improbable that a defence counsel faced with the post-plea request that Mr. Brown said he made, would do nothing in response to the request.

[76] In summary, I reject Mr. Brown’s evidence as to steps taken by him post-plea to narrow the period of time covered by his plea of guilty.

b) Joan as a Teenager

[77] Joan turned 15 in 1984. Mr. Brown’s evidence was that his sexual conduct towards Joan did not begin until that year. Even if I were to accept Mr. Brown’s evidence in that regard (and I do not), it would be difficult to reconcile that evidence with other aspects of Mr. Brown’s testimony.

[78] Mr. Brown denied any sexual conduct towards Joan until she reached puberty. It was not until Joan displayed a degree of physical maturity that Mr. Brown began his sexual conduct towards her. Yet, Mr. Brown also testified that when Joan reached her teenage years, his sexual conduct towards her decreased. This internal inconsistency in Mr. Brown’s evidence with respect to Joan reaching and the events occurring during her teenage years is significant.

[79] In addition, it is difficult to believe that a girl, between the ages of 15 and 18, would be lifted up by her father and thrown into a pool or be dried off by her father after getting wet through water-based, summer activities. That type of conduct is in keeping with a younger girl.

[80] I find that Mr. Brown’s sexual conduct towards Joan was present from at least the time the family moved to Alberta.

c) Communication During and/or About Sexual Contact

[81] There is no air of reality to a scenario of sexual contact by a father towards his daughter, for a period of a number of years in the family home, without a word spoken between the two. Mr. Brown’s testimony to that effect strains credulity.

[82] In addition, that testimony runs contrary to Mr. Brown’s evidence at trial that he did what he could to keep the sexual contact between him and Joan a secret. At a minimum, his efforts in that regard would have included imploring or requesting Joan to keep the incidents a secret. Yet he testified that he did not ask Joan to keep the incidents a secret, nor did he ask her not tell anyone about the incidents.

[83] Mr. Brown’s description of a complete lack of communication between him and Joan is in striking contrast to the contents of the ASF. In the ASF, the communication between Joan and Mr. Brown is described as follows:

• Joan would ask her father to stop; and

• Mr. Brown would continue what he was doing and tell Joan that he loved her and that by his conduct he was showing Joan how much he loved her.

[84] When testifying at trial, Mr. Brown did not identify that portion of the ASF as inaccurate and something that he sought to have corrected as part of the post-plea scenario.

[85] Mr. Brown was unable to say on how many occasions or how frequently the sexual contact with his daughter occurred in Alberta. That evidence is puzzling given Mr. Brown’s certainty there was never any communication between him and Joan. If he is unable to recall the number or frequency of the incidents, how can he, at the same time, be certain nothing was ever said between the two?

d) Physical Locations of Incidents

[86] Mr. Brown testified that he does not have a good memory for dates. Mr. Brown’s self-professed poor memory for dates and his lack of recall with respect to either the frequency or the number of incidents of sexual contact in Alberta is in contrast to his detailed recollection of physical locations (in Alberta, Ontario, and elsewhere).

[87] For example, Mr. Brown recalled: that at the family’s Ontario home, the bathtub was beige and the toilet was cream. Mr. Brown volunteered that he has a “clear visualization” of the bathroom. Mr. Brown also testified that the family drove to an amusement park in the United States in a white pick-up truck owned by Mr. Brown. He volunteered that his memory of this trip is “very vivid”, because he recalls the traffic in the large urban centre where the amusement park was located.

[88] I found Mr. Brown’s voluntary and self-described “vivid” memories disconcerting when contrasted with his total lack of recall about matters critical to the offences with which he is charged.

[89] Mr. Brown’s evidence was that when the family lived in Ontario, he did not go into Joan’s room at night. He only went in her room during daylight hours. For a number of years before the family moved to Alberta, Mr. Brown was a single parent to Joan and her older brother. It is difficult to believe that at no time did Mr. Brown, as a single parent, enter his young daughter’s room at night, for example to comfort her during a thunderstorm, to check on her when she was under the weather, or to check on her at all.

[90] Mr. Brown testified that, as a single parent in Ontario, he always bathed Joan and her older brother together. He was “absolutely” certain that he never bathed the children individually. He acknowledged, however, that he could not say with certainty that he was never alone with Joan in the bathroom at the Ontario house.

[91] The definitiveness on Mr. Brown’s part in these aspects of his evidence simply does not ring true.

e) Summary

[92] Not everyone is able to equally well and reliably recall places, dates, and events. It is possible that Mr. Brown’s visual memory is better than his memory for dates. In addition, some allowances must be made for the passage of time. The events giving rise to the charges against Mr. Brown are alleged to have occurred 30 to 40 years ago.

[93] Regardless, I am unable to accept Mr. Brown’s evidence with respect to the alleged events during the Ontario years. Mr. Brown was able to recall details of places, events, and times or time frames when it served him well to do so. When pressed on points or matters significant to either the offences to which he plead guilty in Alberta or to the charges he currently faces, Mr. Brown was unable to recall matters with any degree of specificity. For some of the more significant matters, both in Ontario and in Alberta, Mr. Brown had no memory at all.

[94] Given the nature and extent of my concerns with respect to Mr. Brown’s evidence, I am unable to accept his denial that sexual contact of any kind occurred with Joan during the Ontario years. Mr. Brown’s evidence does not leave me with a reasonable doubt as to his guilt on the offences for which he is charged.

[95] I therefore turn to the evidence of the complainant, Ms. Green, and Ms. Woods, to determine whether the Crown has met the burden of establishing beyond a reasonable doubt that Mr. Brown is guilty of any one or more of the offences with which he is charged.

Issues with the Crown’s Evidence

[96] Counsel submits that Joan’s evidence is replete with frailties that impact the credibility and, most importantly, the reliability of her evidence. The frailties highlighted by counsel are:

a) Collaboration, if not collusion, between Joan and Ms. Woods with respect to events alleged to have occurred during the Ontario year;

b) Recent fabrication of memories based on Joan’s acknowledgement that some of her memories were triggered during a hospital admission in 1998; and

c) Absence of reliable evidence that Joan disclosed to anyone that Mr. Brown had sexual contact with her when the family lived in Ontario.

[97] The Crown describes Joan as a credible and reliable witness. The Crown highlights that with little exception, Joan was unchallenged on the significant details. Her evidence is described by the Crown as internally consistent and logical.

[98] Joan’s evidence at trial is said by the Crown to be consistent with previous out-of-court statements. The prior consistent statements are submitted as circumstantial evidence of the truth of Joan’s testimony (R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788, at para. 38). The prior consistent statements are referred to in response to the submissions of defence counsel of (a) recent fabrication, and (b) collusion between Joan and Ms. Woods. In addition, the Crown emphasizes that Joan has no motive to fabricate the events she alleges occurred in Ontario between 1974 and 1979.

a) Disclosure of Events in Ontario – Pre-1998 Hospital Admission

[99] Counsel submits that the disclosure of the events alleged to have occurred during the Ontario years was not made until after Joan’s 1998 hospital admission to address mental health issues. In particular, there was no disclosure by Joan prior to that admission that intercourse occurred between her and her father during the Ontario years.

[100] Counsel submits that Joan’s recollections, subsequent to her 1998 hospital admission, of the events alleged to have occurred during the Ontario years, must not be given significant weight:

• The recollections are described as “recovered memories”;

• The memories were recovered during Joan’s hospital admission, at a time when she was under a significant amount of strain; and

• Joan admitted that when she was in the hospital she experienced psychotic episodes.

[101] It was Joan’s evidence that after leaving the Brown family home in Alberta and prior to her subsequent meetings with the RCMP (i.e. in 2000 and later), her memories of the events in Ontario were triggered by her psychiatric admission to a hospital in January 1998. The admission followed allegations against Joan that she had harmed one of her children. Ultimately no charges were laid. However, Joan lost custody of her children.

[102] To rebut the allegation of recent fabrication, the Crown relies on statements made by Joan prior to 1998. The Crown asks the Court to conclude that the pre-1998 statements are consistent with descriptions given by Joan subsequent to 1998 of the events that occurred during the Ontario years and, as such, are circumstantial evidence of Joan’s truthfulness.

[103] Counsel submits that when all of the evidence is considered, including prior consistent statements (if any), there is a lack of reliable evidence that Joan disclosed to anyone that she was sexually abused, in particular including intercourse, when the family lived in Ontario.

[104] It is therefore necessary to consider the disclosure made by Joan, from 1984 forward, of events that she alleges occurred prior to the Brown family’s move to Alberta.

[105] For the reasons set out below, I am unable to find that, prior to her hospital admission in 1998, Joan disclosed to anyone, including the RCMP, that Mr. Brown had intercourse with her during the Ontario years. I address separately, with respect to counts 3 and 5, the timing of disclosure of the conduct other than intercourse.

▪ 1984 – The Green Family Home and Joan’s First Meeting with the RCMP

[106] Ms. Green testified about Joan’ first meeting in 1984 with the RCMP. In 1984, Ms. Green’s mother brought Joan to the Green family home. Ms. Green testified that she, her mother, and Joan sat at the kitchen table. Mrs. Green inquired of Joan about Mr. Brown’s conduct. Ms. Green’s evidence was that in response, Joan, in a bashful manner, described her father’s sexual conduct towards her, dating back to when Joan was five years old. The conduct described did not include intercourse. Mr. and Mrs. Green took Joan and Ms. Green to the RCMP detachment in the area where she was living in Alberta.

[107] Joan testified that she initially thought she and Ms. Green were being taken to the RCMP to disclose Mr. Brown’s sexual conduct towards Ms. Green; conduct Joan had witnessed during the years in which she and Ms. Green were friends. Both Ms. Green and Joan gave evidence as to what Joan told the RCMP on that occasion:

• Joan’s evidence was that she disclosed to the RCMP that Mr. Brown had fondled her and digitally penetrated her vagina. She testified that she did not, at that time, disclose to the RCMP the acts of intercourse. She did not do so because she was petrified; and

• Ms. Green described Joan as visibly afraid when in the meeting room with the RCMP; Joan’s arms and hands were shaking. She also testified that Joan did not disclose to the RCMP the acts of intercourse.

[108] Ms. Green testified that at a time when the RCMP officer was out of the room, Joan said that her father had come into her bedroom and tried to rape her. Mrs. Green asked Joan if her father had sex with her. Ms. Green described Joan “nodding”, which Ms. Green interpreted as a positive response to the question. It was Ms. Green’s evidence that it appeared to her that Joan was simply unable to verbalize the words “sex” or “intercourse”.

[109] Joan’s evidence was that her responses to Mrs. Green’s inquiry related to the acts of intercourse in Alberta and did not include the Ontario years. I accept Joan’s evidence in that regard.

[110] In summary, there is no evidence that, prior to or during Joan’s meeting with the RCMP in 1984, she disclosed to anyone that Mr. Brown had intercourse with her during the Ontario years.

▪ 1984-1987 Paper Route with Ms. Woods

[111] Both Ms. Woods and Joan testified that Ms. Woods would frequently accompany Joan as she delivered papers on her daily paper route. They also both testified that during these times Ms. Woods would inquire about and Joan would disclose Mr. Brown’s sexual conduct towards her.

[112] Ms. Woods testified that Joan made her aware of intercourse occurring in Alberta. The disclosure was made when Ms. Woods regularly accompanied Joan on her paper route and the two girls discussed Mr. Brown’s conduct towards Joan.

[113] Joan’s evidence was that she does not recall telling Ms. Woods anything about intercourse when they walked Joan’s paper route together.

[114] Regardless of the contradictory testimony of Ms. Woods and Joan’s on this point, there is no evidence to support a finding that prior to 1987, when Joan left the Brown family home, she disclosed to Ms. Woods that Mr. Brown had intercourse with Joan during the Ontario years.

▪ 1987 – Discussions with her Boyfriend

[115] Joan had a boyfriend during her Grade 12 year. It was Joan’s evidence that she thought she should tell her boyfriend about Mr. Brown’s conduct towards her. However, because she found it difficult to tell the boyfriend what was happening, she made him ask questions, which she answered. In answering her boyfriend’s questions, Joan disclosed that her father had been having intercourse with her. The boyfriend asked Joan if her father had “sex” with her, to which Joan responded “yes”. Joan’s evidence in that regard is consistent with her statement in 2010 to the RCMP (following Mr. Brown’s arrest on the charges in Alberta).

[116] The manner in which Joan chose to disclose to her boyfriend that Mr. Brown had sex with her does not support a conclusion that the disclosure extended to the Ontario years.

▪ 1987 – Joan’s Second Meeting with the RCMP

[117] Joan next spoke with the RCMP when she was 17 years old. She went to the RCMP to complain to them about her father’s continued sexual conduct towards her. It was Joan’s evidence that on this occasion, she disclosed that her father had intercourse with her.

[118] Joan’s evidence was that in the period (approximately two years) between the first and second meetings with the RCMP:

• Her father’s sexual conduct towards her continued. It remained the same in nature as it had been, but the frequency of the conduct decreased;

• The fondling became more pronounced, in that Mr. Brown no longer tried to be “sneaky” about it;

• The frequency of the intercourse decreased;

• Ms. Green stopped being Joan’s friend. Ms. Green was told by the RCMP to stay away from the Brown family home; and

• Joan felt ostracized by the neighborhood children and their parents. Her one remaining friend was Ms. Woods.

[119] The second meeting with the RCMP arose because of Joan’s disclosure to her track and field coach, and in turn to the vice-principal of the high school, of Mr. Brown’s sexual conduct towards Joan. It was initially Joan’s evidence that she could not be certain that she disclosed to the coach that her father had sex with her in either Alberta or Ontario. Joan’s evidence in that regard is consistent with the statement she gave to the RCMP in 2010 (following Mr. Brown’s arrest on the charges in Alberta). Joan’s evidence at trial was that she is now, more certain than she was in 2010, that she disclosed to the coach the acts of intercourse.

[120] The coach and vice-principal spoke with the parents of Joan’s boyfriend; the latter agreed that Joan could move to their home and live with them.

[121] Joan, Ms. Green, and Ms. Woods each testified that after Joan met with the RCMP in her Grade 12 year, and disclosed to the RCMP the acts of intercourse, she was advised to go with her friends to the family home, pack up her things, and leave the home. Joan understood from the RCMP that they intended to speak with her father and stepmother.

[122] Joan left the Brown family home, stayed for one night with the vice-principal, and then stayed at her boyfriend’s family home. Joan never returned to the Brown family home.

[123] The responses respectively of the coach, vice-principal, and RCMP could each be said to be the type of response reasonably expected following the disclosure of a father’s intercourse with his daughter. The coach and vice-principal took significant steps to ensure that Joan was removed from the family home. However, it is not possible to determine if they would have responded in the same way to disclosure of the conduct (i.e. other than intercourse) to which Mr. Brown ultimately plead guilty.

[124] Even 30 years ago, the disclosure by a teenage girl to the RCMP of her father’s act of intercourse with her would have been expected to generate a more pro-active response from the RCMP than the one described by the Crown witnesses.

[125] I am unable to conclude that in 1987 Joan disclosed to one or more of the coach, the vice-principal, and the RCMP acts of intercourse, including during the Ontario years.

▪ Summary

[126] I am unable to conclude that prior to her admission to the hospital in 1998, Joan disclosed to any of her friends, their family members, her boyfriend, or the RCMP that her father had intercourse with her during the Ontario years.

b) 1998 – Hospital Admission

[127] Joan testified that during the admission, she received individual psychiatric counselling and participated in group sessions. At times she became disassociated and regressed. During these periods of disassociation and regression, she wrote notes. Joan testified that periods of disassociation and regression began in approximately 1989 and continue to the present.

[128] The 56 pages of notes were admitted as evidence (a) on consent, and (b) for the limited purpose of providing circumstantial evidence. The notes are not in evidence for the truth of their contents. They represent only a portion of the notes Joan wrote during her six-month admission.

[129] Joan was approximately 30 years old when the notes were written. She does not recall writing significant portions of the notes. Regardless, Joan’s evidence is that all of the writing is hers.

[130] The notes include both printed, child-like handwriting and cursive writing. The former are at least in part incomplete sentences and appear to reflect the feelings and emotions of the writer contemporaneous with the conduct described therein of a male person referred to in the notes. The printed notes include drawings of a home and stick figures of people inside the home. The cursive notes appear to be the reflections of an adult about past events and how to handle the impact of those events on the adult’s life.

[131] The cursive portions of the notes describe a number of events, including specific events about which Joan testified at trial. However, the notes include no information (dates, age of individuals) that assists in determining when the events occurred. The only event to which a time frame is attached is an incident, said to have occurred in “junior high”, when Joan took “a whole bunch of pills”, became very ill, and told no one she had taken the pills.

[132] I am unable to find that the notes provide circumstantial evidence of Joan’s truthfulness. More extensive evidence is required, including from expert witnesses, as to the veracity and potential significance of notes written by an individual during periods of disassociation and regression. Absent such evidence, I place no weight on the substantive contents of the notes.

[133] My finding with respect to the contents of the notes, does not, however, negate Joan’s testimony at the trial that the 1998 hospital admissions served as a “trigger” for her memories of events, including the alleged acts of intercourse that occurred during the Ontario years. I therefore turn to the disclosure made by Joan in the years subsequent to the hospital admission and her evidence at trial with respect to the intercourse she alleges occurred during the Ontario years.

c) Joan’s Evidence – Acts of Intercourse

[134] I turn first to Joan’s evidence because the narrative of the disclosure made subsequent to 1998 of the act of intercourse, can, at most, serve a circumstantial evidence of the truthfulness of Joan’s evidence at trial.

[135] There are a number of internal inconsistencies in Joan’s evidence with respect to the location in which and the number of times the act of intercourse is alleged to have occurred during the Ontario years. I remain mindful that she was, at age 47, re-counting events alleged to have occurred when she was between five and nine years old. Even cast in that light, I find that the internal inconsistencies are significant.

[136] Joan’s memory with respect to the locations in which the intercourse is alleged to have occurred in the Ontario family home has varied over time:

• In examination-in-chief, Joan testified that the intercourse occurred in her bedroom, Mr Brown’s bedroom, the family room, and the bathroom; and

• When she was interviewed by the Ottawa police in the fall of 2013, Joan said that the intercourse occurred in her bedroom, in Mr. Brown’s bedroom, and in the bathroom. She did not include the family room.

[137] Joan’s explanation for not including the family room when speaking with the Ottawa Police in 2013 was that it was an oversight on her part. The oversight was the result of pressure she put on herself to be as accurate as possible. She added in her testimony at trial that the intercourse occurred primarily in the bedroom and the bathroom.

[138] Joan’s memory as to where the act of intercourse occurred for the first time in the Ontario home has also varied over time:

• At trial, it was Joan’s evidence that the first act of intercourse occurred in the bathroom; and

• In her statement to the RCMP in 2002, Joan said that the first act of intercourse occurred in Mr. Brown’s bedroom. Thereafter, a single incident of intercourse occurred in the bathroom. Otherwise, the acts of intercourse occurred in her bedroom.

[139] It was also Joan’s evidence at trial that after the first act of intercourse (in the bathroom), she never went to her father’s bedroom again. That evidence implies that no act of intercourse ever occurred in Mr. Brown’s bedroom. That evidence is inconsistent with Joan’s testimony and/or prior statements that (a) at least one act of intercourse occurred in Mr. Brown’s bedroom, and (b) the intercourse occurred primarily in her bedroom and Mr. Brown’s bedroom.

[140] I find these contradictions and inconsistencies to be significant. I find that Joan’s evidence with respect to the location and number of occurrences of the act of intercourse is not reliable.

d) Post-1998 Disclosure as Narrative

[141] The evidence of the disclosure made by Joan, subsequent to her 1998 hospital admission, does not provide circumstantial evidence of the truthfulness of Joan’s testimony at trial.

[142] There is contradictory evidence as to whether, in 2000, Joan disclosed to Ms. Green the acts of intercourse during the Ontario years. It was Joan’s evidence that she met with Ms. Green at her home sometime prior to attending at the RCMP for a third meeting. Ms. Green’s evidence was that during this meeting, Joan described the sexual abuse from her father beginning when Joan was five years old. The abuse described included intercourse. Joan testified that she does not recall telling Ms. Green about Mr. Brown’s acts of intercourse. By 2000, when this meeting took place, Joan was an adult.

[143] The meeting at Ms. Green’s house occurred before Joan met with the RCMP for a third time. Joan understood following her second meeting with the RCMP that Mr. Brown would be charged. However, she heard nothing thereafter from the RCMP; she followed up with them in 2000. Once again, Joan provided a statement to the RCMP.

[144] On this occasion, Joan told the RCMP that her father had started to (a) have intercourse with her when she was six or seven, and (b) put his penis in her mouth when she was five or six. Joan referred specifically her father having intercourse with her on the floor of the bathroom of the Ontario home.

[145] Joan told the RCMP that (a) she had pretty much blocked out in her mind the period between her first and second meetings with the RCMP, and (b) it had only been “recently that [she] allowed things to re-surface again”.

[146] That Joan recalls in some detail the matters disclosed to the RCMP in 2000, but does not recall any disclosure in the same year of intercourse to her close childhood friend, calls into question the reliability of Joan’s memory of events, even as an adult.

[147] The reliability of Joan’s memory is further called into question because of her inability to recall whether she included intercourse in the contents of one or both of the statements she wrote for the RCMP. Joan’s evidence at trial was that she recalled disclosing intercourse in both statements. She acknowledged in cross-examination that when she met with the RCMP (for a fourth time) in 2002, she was “pretty sure” she had referred to intercourse in the statement written in 1987.

[148] Ms. Woods testified that before Joan submitted her written statement to the RCMP in 1987, she showed Ms. Woods the statement. Ms. Woods read the statement. At trial Ms. Woods had no doubt that the statement referred to intercourse dating back to the Ontario years.

[149] Both Ms. Green and Ms. Woods described that subsequent to Joan’s first meeting with the RCMP in 1984, Ms. Woods became Joan’s closest friend. Ms. Woods described being placed in the position, as a child, of being the only person making any effort to protect Joan from the sexual abuse she was experiencing. Ms. Woods perceived that the adults to whom Joan had turned (the RCMP for example) or could turn (the stepmother) did nothing to help Joan.

[150] It is clear from Ms. Woods’ evidence that she was and remains significantly affected by the events in her and Joan’s lives as children—understandably so. It is also clear that Ms. Woods carries animus towards Mr. Brown—again understandably so.

[151] I accept Ms. Woods’ evidence that she read the statement written in 1987. However, I find that the reliability of her memory as to the specific contents of the statement is impaired by (a) the passage of time, (b) her emotional experience as one child protecting another, and (c) her animus towards Mr. Brown.

[152] As the final part of the narrative, the Crown relies on Joan’s meeting with the Ottawa Police in October 2013. That meeting occurred before Joan was aware that Mr. Brown would plead guilty to the charges against him in Alberta. At this meeting Joan described a single incident of intercourse in the family home in Ontario; an incident in the bathroom.

[153] Crown counsel highlights that Joan had no reason to ‘add’ to her description of events as of October 2013; she did not introduce (i.e. for the first time) intercourse at that time because she was concerned that the plea later in 2013 would be to offences that did not involve intercourse. She could not have known the latter.

[154] I view the context of Joan’s statement to the Ottawa Police in 2013 differently. If Joan was unaware in the fall of 2013 of the nature of the charges against her father and preparing to give evidence, it would be reasonable for her to be doing her best to recall as much as possible about her father’s conduct. It is difficult to reconcile the lack of memory of more than one incident of intercourse during the Ontario years with someone who was expecting to testify about all of her father’s sexual conduct. I also note that 3.5 years later, when testifying at trial, Joan recalled multiple acts of intercourse occurring during those years.

▪ Summary

[155] Based on the totality of the evidence, I am left with a reasonable doubt as to whether the act or acts of intercourse occurred during the Ontario years. As a result, the Crown has failed to prove beyond a reasonable doubt that Mr. Brown is guilty on counts 1, 2, and 4. Mr. Brown is acquitted on those charges.

Indecent Assault and Gross Indecency

[156] The elements of each of the offences must be considered and a determination made of whether the Crown has established, beyond a reasonable doubt, Mr. Brown’s guilt on one or both of these offences (counts 3 and 5). Neither offence requires that the Crown establish that the act of intercourse occurred.

a) Indecent Assault

[157] An essential element to the offence of indecent assault is lack of consent (R. v. Lawrence (1974), 1974 CanLII 1430 (NS CA), 16 C.C.C (2d) 404, 6 N.S.R. (2d) 627 (N.S.S.C. App. Div.). It is not necessary that the act constituting the assault be in itself indecent in nature. It is a question of fact, whether, in the circumstances in which the act was committed, the act was done indecently (R. v. McKeachnie (1975), 1975 CanLII 1256 (ON CA), 26 C.C.C. (2d) 317 (Ont. C.A)).

b) Gross Indecency

[158] Gross indecency is defined as “a very marked departure from the decent conduct expected of the average Canadian in the circumstances [found to have existed]” (R. v. St. Pierre (1974), 1974 CanLII 874 (ON CA), 17 C.C.C. (2d) 489, 3 O.R. (2d) 642 (Ont. C.A), at para. 26). Lack of consent is not an element of this offence.

c) Analysis

[159] I have already concluded that Mr. Brown’s sexual conduct towards Joan was present from at least the time the family moved from Ontario to Alberta (see paragraph 80, above). What remains to be determined is (a) whether Mr. Brown’s sexual conduct occurred during the Ontario years, and (b) if so, whether the Crown has established beyond a reasonable doubt that Mr. Brown is guilty of one or both of the offences in counts 3 and 5.

[160] Neither count includes the act of intercourse as an element. I pause to note, however, that fellatio, if proven, could support a finding of guilt on one or both counts. It was Joan’s evidence that the alleged acts of intercourse and fellatio occurred in the same rooms, at the same time of day, and approximately the same number of times during the Ontario years.

[161] I find that Joan’s evidence with respect to the alleged acts of fellatio is subject to the same lack of reliability as is her evidence with respect to the alleged acts of intercourse. As a result, for counts 3 and 5, I have considered the Crown’s evidence with respect to Mr. Brown’s conduct, other than intercourse and fellatio, during the Ontario years.

[162] It is understandable that between 1974 and 1979, before leaving Ontario, Joan made no disclosure of her father’s sexual conduct towards her:

• Initially, she had no appreciation that her father’s behaviour was anything other than normal as between a father and a girl her age;

• The guidance received from her first teacher was interpreted by Joan in such a way as to confirm the normality of what had been occurring;

• Joan’s mother was not in the picture as an adult figure in whom Joan could confide;

• There were no other adult figures in the Brown family home with any consistency, after Joan’s mother left, until Mr. Brown re-married a number of years later; and

• With her mother having left, Joan would reasonably have been concerned that disclosure of her father’s conduct would lead to family strife and possibly her stepmother leaving. It was Joan’s evidence that the presence of her stepmother in the home led to a decrease in the frequency of Mr. Brown’s sexual conduct towards Joan; she might lose what little protection she had.

[163] It is plausible and reasonable that once the family moved to Alberta, (a) Joan developed friends (including Ms. Green and Ms. Woods), (b) in her pre-teens and early teenaged years, Joan better understood that her father’s conduct was anything but normal, and (c) Joan was inclined to disclose his conduct and did so. It is clear that even with the support of Ms. Green and her mother, it was difficult for Joan to disclose her father’s conduct.

[164] I find that when Joan made the initial disclosure to the RCMP in 1984, she was clear with them that her father’s conduct began when she was “very young”. Joan has, since 1984, been consistent in her statements to that effect to the police. Those consistent statements are circumstantial evidence of Joan’s truthfulness with respect to her father’s conduct (other than intercourse and fellatio) towards her commencing during the Ontario years.

[165] The narrative the Crown asks the Court to consider with respect to the timing of the disclosure includes the evidence of the RCMP’s response to the information disclosed in 1984. Joan testified that in response to the disclosure, the RCMP advised her to return home and inform her stepmother of what was going on; Joan did so. Her stepmother responded to the disclosure by (a) advising Joan to place a hanger on the door to her bedroom, and (b) saying that she would take care of it and Joan was never to mention it again.

[166] Joan acknowledged that the first meeting with the RCMP is “a big jumble in [her] brain”; she was terrified during the meeting. She left thinking that the RCMP did not believe her; otherwise, why would they have told her to return home?

[167] Joan testified that she used the hanger once, but it did not deter Mr. Brown. Therefore, she did not continue using it. It was also Joan’s evidence that a couple of weeks after her disclosure to the RCMP and her stepmother, Mr. Brown questioned why Joan would speak about his conduct. He repeated that he loved Joan and that he was not trying to hurt her.

[168] Joan’s disclosure to Mrs. Green, the RCMP, and her step-mother did nothing to change the circumstances in which she found herself. It is not surprising that it was several more years before Joan returned to the RCMP to try once again to address her father’s conduct towards her.

[169] There is also consistency between Joan’s description of her father’s conduct, first disclosed in 1984, summarized in the ASF, and at trial.

[170] I conclude that the Crown has established beyond a reasonable doubt that:

a) Mr. Brown’s conduct towards Joan during the Ontario years includes the following:

i) Fondling Joan’s breasts, buttocks, and vagina;

ii) Penetrating Joan’s vagina with his finger;

iii) Forcing Joan to touch and rub his penis, with Mr. Brown guiding the movement of Joan’s hand;

b) Joan did not consent to that conduct;

c) Mr. Brown’s conduct was done indecently; and

d) Mr. Brown’s conduct was a “very marked departure from the decent conduct expected of the average Canadian in these circumstances”.

[171] There will be a finding of guilt on counts 3 and 5.

Collaboration between Joan and Ms. Woods

[172] Counsel questions the reliability of Joan’s testimony at trial generally because of what he describes as a “collaborative effort”, at a minimum, between Joan and Ms. Woods to reconstruct and recreate their respective memories including, most importantly, Joan’s memories of events during the Ontario years. It is not suggested that Ms. Green is included in the collaborative effort.

a) Contact between Joan, Ms. Green, and Ms. Woods – 2000 to 2017

[173] Joan reached out to Ms. Green in 2000, before returning to the RCMP to follow up as to what had happened regarding charges against Mr. Brown. As of that year, Joan had heard nothing from the RCMP in follow-up to her meetings with them in 1984 and 1987. The two women met at Ms. Green’s house and remained in contact, to a limited extent, until sometime after 2013 when Mr. Brown plead guilty in Alberta.

[174] Ms. Green testified that at all times, to and including the trial in Ontario, she and Joan were diligent in following the request of the investigating officers that they not discuss the events in Alberta and the alleged events in Ontario. Joan’s evidence was that they did not discuss the events and alleged events per se; they discussed the effect of the events on her life.

[175] It was Joan’s evidence that sometime in 2011 or 2012, she had lunch with Ms. Green and Ms. Woods at Ms. Green’s house. Ms. Woods was visiting her parents at the time. The women did not discuss the abuse Joan had experienced.

[176] Ms. Green testified that she initiated the lunch in an effort to put Joan in contact with Ms. Woods, appreciating the importance of the friendship between Joan and Ms. Woods in the mid to late 1980s. Joan’s evidence was that she first reached out to Ms. Woods after one of the investigating RCMP officers first spoke with Ms. Woods (in approximately July 2012). Ms. Woods gave statements to the RCMP in July 2012 and April 2014.

[177] Joan and Ms. Woods have remained in contact since the summer of 2012. They were in contact on a number of occasions before Joan attended court in 2013 in Alberta. Joan was assisted by Ms. Woods when writing her victim impact statement for the sentencing in 2013. Joan stayed at Ms. Woods’ home in Ontario, during this trial.

b) Return to the Ontario Home

[178] Joan acknowledged that before attending court in Alberta, she went to the Ontario home with Ms. Woods. At the time, she was not aware that Mr. Brown would plead guilty; she anticipated that she would be required to give evidence at a trial in Alberta.

[179] Joan denied that the return to the Ontario home was made in an effort to jog her memory of events there, in particular out of concern that her memory was failing. Her evidence was that upon walking through the home, she (a) found the home to be smaller than she remembered it, and (b) appreciated that it had undergone changes since she lived there.

[180] Ms. Woods testified that Joan wanted to return to the Ontario home so as to be certain that her memory was clear with respect to the locations in which events had occurred. Ms. Woods emphasized that it was for the purpose of achieving clarity of memory and not to retrieve memories that Joan wanted to return to the Ontario home.

[181] Ms. Woods considered that by going with Joan to the Ontario home she was (a) being a good friend, and (b) helping Joan to deal with the events from a mental health perspective. Ms. Woods acknowledged that when Joan was at the Ontario home, she spoke to Joan making reference to events generally and saying “try to remember this” or “try to remember that”. Ms. Woods did so based on information she had previously received from Joan about events that had occurred in the home.

[182] Joan denied that she discussed with Ms. Woods events and locations in Ontario in an effort to reconstruct her memory of the events. Ms. Woods was emphatic in her testimony that at no time did Joan tell her what she remembered as a result of walking through the Ontario home. I accept their evidence in that regard.

c) Summary

[183] I find that the contact between the two women generally and specifically the trip to the Ontario home did not result in the creation of memories that she did not already have of the events that transpired in the home. The events described by Joan in her evidence at trial are consistent with the descriptions previously given by her from 1984 forward.

Assessment of the Witnesses

[184] I shall not repeat my assessment of Mr. Brown as a witness in this section of my reasons. My concerns with respect to the reliability of Joan’s evidence are restricted to her evidence as to the alleged acts of intercourse and fellatio during the Ontario years. I found her testimony to otherwise be reliable.

[185] With respect to Joan’s credibility, I highlight the following. She answered the questions posed of her regardless of whether they were posed in chief or in cross-examination. I found her responses to be spontaneous. Joan did not embellish her answers—they were straight-forward. Her hesitation in responding was minimal and understandable given that she was, for the most part, being asked about events that occurred 30 or more years ago.

[186] I also found Joan to be forthright about the quality of her memory generally—for example her description of the first meeting with the RCMP as a “big jumble” in her brain.

[187] I found friend Ms. Green to be credible. She acknowledged when she was unable to recall. Her responses to questions—whether in examination-in-chief or in cross-examination—were spontaneous. There was no protracted hesitation on Ms. Green’s part when answering questions.

[188] Ms. Green was a thoughtful and mature witness. By way of example, she when Ms. Green was cross-examined about the two girls being taken to the RCMP in 1984 she described that day as changing everything and at the same time not changing anything. The goal of taking Joan to the RCMP was to help her get out of the Brown family home; that goal was not achieved.

[189] I have already set out my assessment of Ms. Wood’s testimony. I shall not repeat it here.

Summary

[190] There will be a finding of not guilty on counts 1, 2, and 4. There will be a finding of guilt on counts 3 and 5.

Madam Justice Sylvia Corthorn

Released: October 2, 2017

SCHEDULE A

Rape

144. A male person commits rape when he has sexual intercourse with a female person who is not his wife,

(a) without her consent, or

(b) with her consent if the consent

(i) is extorted by threats or fear of bodily harm,

(ii) is obtained by personating her husband, or

(iii) is obtained by false and fraudulent representation as to the nature and quality of the act.

Sexual intercourse with female under fourteen

146.(1) Every male person who has sexual intercourse with a female person who

(a) is not his wife, and

(b) is under the age of fourteen years, whether or not he believes that she is fourteen years of age or more, is guilty of an indictable offence and is liable to imprisonment for life.

Indecent assault on female

149.(1) Everyone who indecently assaults a female person is guilty of an indictable offence and is liable to imprisonment for five years.

Incest

150.(2) Every one commits incest who, knowing that another person is by blood relationship his or her parent, child, brother, sister, grandparent or grandchild, as the case may be, has sexual intercourse with that person.

Act of gross indecency

157. Every on who commits an act of gross indecency with another person is guilty of an indictable offence and is liable to imprisonment for five years.