R. v. D.K., 2017 ONSC 6145

R. v. D.K., 2017 ONSC 6145

COURT FILE NO. 2526/15

DATE: 20171013

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Her Majesty the Queen

– and –

D. K.

Kevin Doyle, for the Crown

Ramona Abraham, for the accused

Heard: August 28, 29, 30 & 31, 2017

RESTRICTION ON PUBLICATION

By court order made under s. 486.4(1) of the Criminal Code, any information that could identify the complainant, or a witness, shall not be published in any document, or broadcast or transmitted in any way.

Bale J.:

Overview

1The accused is charged with sexual assault. The offences are alleged to have taken place between 1985 and 1987. The complainant is a step-niece of the accused. At the time the assaults are alleged to have commenced, she was nine years old; the accused was 27.

2Evidence was given at trial by the complainant, her mother, a younger sister, a woman who once dated the accused, and the police officer who arrested him. The accused testified upon his own behalf.

Summary of evidence

Crown evidence

3The complainant is now 40 years old (she will be 41 tomorrow). She is married with four children, and is employed as an inventory auditor by Metro food stores.

4The offences are alleged to have taken place at a small three-bedroom cottage, on a river. The cottage was owned by the complainant’s grandparents.

5The accused was described as the children’s favourite uncle. They enjoyed playing with him, and engaged in “tickle wars” where they would attack, and tickle him.

6The family ate breakfast at a rectangular table. There was an L-shaped bench for seating on one side and one end of the table, chairs on the other side of the table, and a single chair at the other end of the table. The young children would sit on the bench along the length of the table, their grandfather would sit on the bench at one end of the table, and the remainder of the adults would sit on the chairs. Occasionally, if there was room, the accused would sit on the bench with the children.

7The complainant testified that the accused sexually touched her, at breakfast time, on numerous occasions over a three-year period, commencing in 1985. She said that when she sat at the end of the children’s bench, the accused would sit on the chair, at the same end of the table. She said that he would lean forward, run his hand up her leg, and briefly rub her vagina – at first outside, and then inside, her underwear.

8In 1987, the complainant had a friend up to the cottage with her. She testified that she told her friend to watch out for the accused, and that the two of them avoided him during the visit.

9In 1989, following a sex-education class, the school nurse was told by the complainant, or one of her friends, that two years earlier, the accused had reached under the kitchen table, at the family cottage, and felt her vagina, through her underwear. The incident was then reported to the CAS, and to the police, who interviewed the complainant and her parents. A police occurrence report documenting the interview was entered as an exhibit, on consent.

10Later in 1989, the complainant’s step-father was convicted of domestic assault, and served an intermittent sentence.

11When the complainant reached adulthood, she became very angry with her mother, and accused her mother of failing to protect her from the accused.

12In 2014, the complainant’s sister, and the accused and his brother, were living in the complainant’s then-deceased grandparents’ home. Although the complainant and her sister enjoyed a normal relationship, the complainant would not go near the home, and would arrange to meet her sister at the end of the street.

13In August 2014, the complainant reported the assaults to the police, resulting in the present charges. She said that she did so after hearing from her sister that the accused had told her of a conversation that he had with a D.H. with whom he had gone out on a date. According to the complainant, her sister told her that the accused said that D.H. had asked him whether there were any “deep, dark family secrets”, and that he had told her of the allegations about which “we are here in court for.” On this issue, the complainant’s sister said that she did not remember telling the complainant about this conversation with the accused, but she confirmed that it had taken place. The fact of the conversation was also confirmed by D.H. She said that the accused had told her that there was a rumour in the family that he had touched his niece. The complainant’s name was not mentioned. D.H. testified that although the accused told her that he had not done anything, she was devastated – totally shocked.

14In December 2014, the accused was arrested, and interviewed by the police. In his statement, he said that the allegations were completely new to him, that he was shocked to hear them, and that he had no idea what they were about. When advised that D.H. had told the police that he had disclosed the allegations to her, the accused said that he had no idea why D.H. would have done so.

Defence evidence

15The accused denied all of the Crown’s allegations.

16He testified that in the late ’80s, he went to the cottage two or three weekends each summer. He said that the complainant, and her family, were not at the cottage every weekend that he was there, but that they were there for most of them. He confirmed the general layout of the cottage, and the breakfast seating arrangements. He said that it would have been impossible for him to reach under the table and touch the complainant’s leg, based upon the length of the table, the length of the bench, and their position in relation to other objects in the room. In his evidence-in-chief, he admitted that he might have sat on the bench, if all the children were not there, but in cross-examination, denied having done so, and said that his father would not have allowed it.

17The accused admitted that in the late ’90s, his mother told him that the complainant’s mother had made a complaint to CAS about him. He said that he did not know what or whom the complaint related to, or that the police had been involved. When asked why he told the police that he did not know anything about any allegations, he said that he guessed that he did not remember. He said that after hearing from his mother of the complaint to CAS, and not knowing the specifics of the complaint, he had distanced himself from all of his brother’s children.

18In 2014, prior to his arrest, the accused lived at his deceased parents’ home. Both his brother, and the complainant’s sister, had bedrooms in the basement. The accused admitted that although the complainant maintained a normal relationship with her sister, she never entered the home, and that he had “zero contact” with her. He was unable to explain the reason for that, and denied that it was because he had abused her.

19The accused confirmed that D.H. had asked if there were any deep, dark, family secrets that she should know about, and that he told her that his brother’s ex-wife had made some allegations, but that nothing had ever come of it. He said that he had not told anyone else about his conversation with D.H., and that he had no idea how the complainant’s sister would have come to know about it.

Position of Crown

20Crown counsel’s position is that the complainant’s evidence was credible and reliable, and that the accused’s evidence was not. In support of his position, he argues that the complainant’s version of events was corroborated, and that the accused failed to tell the truth in his statement to police, and in his evidence at trial.

Defence position

21The accused denied that the offences occurred. Defence counsel argues that I should accept his version of events, because in giving his evidence, he was straight-forward, and did not waiver under cross-examination. She argues that I should reject the evidence of the complainant, for the following reasons:

• that there were inconsistencies in her evidence, that it was lacking in detail, and that because she was a child at the time of the events in question, her memory may not be as good as those of family members who were adults at the time;

• that the alleged assaults were not possible or plausible, given the physical layout of the cottage kitchen, and the presence of other family members;

• that had the alleged assaults occurred, the complainant would have reacted differently at the time;

• that the complainant delayed in disclosing the alleged abuse, in circumstances where one would have expected her to report it, if it had happened; and

• that the complainant had a motive to fabricate her allegations, namely, a “property dispute” between the accused and his brother.

Discussion

Lack of detail, and inconsistencies, in the complainant’s evidence

22As one of the reasons why I should reject the complainant’s evidence, defence counsel argues that it was lacking in detail, and contains inconsistencies. In particular, she noted: that the complainant could not recall how many times the alleged assaults were repeated; that she could not recall the dates when the accused was at the cottage, or not at the cottage, when she was there; and with respect to the first summer the assaults were alleged to have occurred, that she could not recall whether the first assault had been at the beginning, middle or end of the summer. Counsel argued that the complainant was a child at the time, and that as a result, her memory may not be as good as those who were adults at the time.

23However, the complainant’s description of the events in question contained a relatively high level of detail, given the passage of time, and the fact that she was a 40-year-old testifying about events that took place when she was 9, 10 and 11 years old. Her memory of the summers in question was very similar to the memories of the adults, including (the alleged assaults aside), the memory of the accused.

24In R. v. B. (G.), 1990 CanLII 7308 (SCC), [1990] 2 S.C.R. 30, at pp. 54f, the court remarked that the inability of children to testify as to the exact details of the when or where of an event, does not mean that they have misconceived what happened to them, or who did it. In R. v. W. (R.), 1992 CanLII 56 (SCC), [1992] 2 S.C.R. 122, at para. 26, the court said that “with regard to her evidence pertaining to events which occurred in childhood, the presence of inconsistencies, particularly as to peripheral matters such as time and location, should be considered in the context of the age of the witness at the time of the events to which she is testifying.”

25Considering the level of detail that the complainant was able to recall, its relative consistency, and the comments of the court in R. v. B. (G.) and R. v. W. (R.), I am unable to accept defence counsel’s argument that I should reject the complainant’s evidence because of a lack of detail, or inconsistency.

Whether alleged assaults physically possible, or plausible

26Based upon the evidence with respect to the dimensions of the table and bench, the physical layout of the kitchen, and the breakfast seating arrangements, defence counsel argues that it would not have been possible for the accused to reach under the table, and touch the complainant’s leg. She also argues that it is it is implausible that the touching could have occurred, without other family members noticing. However, there was nothing in the description of the room, or the furniture, or the seating arrangements, which causes me to doubt the complainant’s evidence.

Whether the complainant would have reacted differently at the time

27Defence counsel argues that had the alleged assaults occurred, the complainant would have reacted differently at the time. She notes that the complainant continued to engage in play with the accused, including the “tickle wars”. She says that had the assaults actually happened, the complainant would have withdrawn from this activity.

28However, there are a number of difficulties with this argument. It is premised on the long-discredited notion that there is some “normal” way that victims of sexual abuse will act. Withdrawing from play with the children’s favourite uncle would have also involved withdrawing, at least in part, from play with her young cousins. And finally, it ignores the reasons why victims of sexual assault often delay in reporting the abuse.

Complainant’s delay in reporting alleged abuse

29One of the reasons given by the complainant for not going to the police at an earlier date was that she was afraid of her step-father (the accused’s brother), because he beat her all the time. Defence counsel argues that if this were the case, then if her allegations were true, she would have reported the alleged abuse once her step-father was charged, and as she put it, “out-of-the-way”. However, her step-father was not exactly out-of-the-way (the evidence was that he received an intermittent sentence which he served on weekends), and this argument ignores the fact that there are many reasons why victims of sexual assault delay disclosure of the assaults.

30In R. v. D.D., 2000 SCC 43, Major J. said the following (at paras. 49f):

The significance of the complainant’s failure to make a timely complaint must not be the subject of any presumptive adverse inference, based upon now rejected stereotypical assumptions of how persons (particularly children) react to acts of sexual abuse (citations omitted).

Reasons for delay are many, and at least include embarrassment, fear, guilt, or a lack of understanding and knowledge. In assessing the credibility of a complainant, the timing of the complaint is simply one circumstance to consider in the factual mosaic of a particular case. A delay in disclosure, standing alone, will never give rise to an adverse inference against the credibility of the complainant.

31The comments of Major J. in D.D. are equally applicable in cases of incremental disclosure – there is no fundamental difference between delayed disclosure, and piecemeal disclosure of prior sexual abuse: R. v. D.P., 2017 ONCA 263, at para. 31.

Motive to fabricate

32Although there is no burden on an accused to prove a motive to fabricate, the presence or absence of a motive is a relevant factor to be considered: R. v. Jackson, [1995] O.J. No. 2471 (C.A.), at paras. 4f; R. v. Greer, 2009 ONCA 505, at para. 5.

33In the present case, defence counsel argues that the complainant had a motive to fabricate. The suggested motive is what she referred to as a “property dispute”, between the accused and his brother. The evidence of the accused was that he and his brother have not been able to agree on the disposition of the house and cottage owned by their parents. He said that he would like both properties to be sold, and the sale proceeds to be divided, but that his brother, while not wanting either property to be sold, refuses to buy him out.

34However, the complainant is not a party to the dispute, and has nothing to gain from it one way or the other. If the accused and his brother are equally entitled to both properties, a conviction of the accused for sexual assault would have no effect on that entitlement. No reason was given why the complainant would want to benefit a step-father whom she says beat her all the time. Even if the property dispute might otherwise conceivably have been a motive, the dispute did not exist in 1989, at the time of the initial disclosure. For these reasons, I find that the dispute between the accused and his brother cannot be seen as a motive for the complainant to fabricate her story.

Corroboration of the complainant’s version of events

35Crown counsel points out that the complainant’s evidence was corroborated in a number of details:

• both her mother and sister testified that accused would sometimes sit with the young children on the bench;

• the complainant testified that she told her friend to watch out for the accused, and her mother corroborated her evidence that the two stayed away from him;

• the accused admitted that he distanced himself from the complainant and her sister, after hearing from his mother about the complaint made about him to the CAS;

• the complainant’s evidence that she was extremely angry with her mother, for not protecting her from the accused, was corroborated by her mother;

• the complainant’s evidence that she did not visit her sister at her grandparents’ home when both her sister and the accused lived there was corroborated by her sister, and by the accused; and

• although the complainant did not adopt the contents of the police occurrence report made in 1989, the fact of that disclosure is, in itself, corroborative of her 2014 disclosure.

Evidence demonstrating that the accused was not a truthful witness

36Based upon the statement given by the accused to the police, and his evidence with respect to his knowledge of the allegations prior to his arrest, Crown counsel argues that I should find that the accused was not a credible witness. I agree.

37When the accused was arrested, he told the police that he was completely shocked by the allegations, that he had never heard them before, and that he had no idea what it was all about. In doing so, he was not telling the truth.

38In his evidence, the accused admitted that his mother had told him in the mid-90s that the complainant’s mother had made a complaint about him to the CAS, and that after hearing of the complaint, he had distanced himself from her, and her children.

39The accused’s version of his discussion with D.H. was to the effect that he told her that “there were some things by [his] brother’s ex-wife”, but that nothing ever came of it, and that was all he knew. In putting it that way, the accused was intentionally being vague about his discussion with D.H., and his knowledge of the allegations. D.H. was an independent third party witness, who had no relationship with any members of the complainant’s family. I accept her evidence that the accused told her that there might be some stories in his family about him touching his niece.

40The accused’s mother made him aware of the allegations in the early ’90s, and they remained top-enough in his mind that in August 2014, he felt that he had better mention, and deny, them to D.H., to avoid her hearing about them from other members of his family.

41Defence counsel argues that the police did not give him sufficient information to allow him to associate the allegations they put to him, with the allegations of which he admits he was aware. I disagree. The police mentioned the complainant’s name, her mother’s name, the CAS and D.H. Completely aside from the issue of the truth of the allegations, the information given by the police to the accused was sufficient to make him, and I find that he was, fully aware of the allegations the police were referring to.

42In his evidence at trial, when asked why he told the police in December 2014 that he knew nothing of the allegations, he compounded the lie by saying “I guess I didn’t remember”- a response which, in the circumstances described, is impossible of belief.

Disposition

43I do not believe the accused’s evidence that he never touched the complainant’s vagina, nor does that evidence leave me with a reasonable doubt as to his guilt. I do believe the complainant’s evidence that he rubbed her vagina, at the breakfast table, on numerous occasions, over a period of three summers.

44In the result, I am satisfied beyond a reasonable doubt that D.K. is guilty of sexually assaulting the complainant.