R v. S. (J.), 2017 ONSC 6758
CITATION: R v. S. (J.), 2017 ONSC 6758
COURT FILE NO.: CR-15-30000565-0000
DATE: 20171110
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: R. v. S. (J.)
BEFORE: S.F. Dunphy J.
COUNSEL: Liesha Earle, for the Crown Applicant
Stephen Lyon, for the Respondent
HEARD at Toronto: October 23, 2017
REASONS FOR JUDGMENT
[1] On August 19, 2014, twelve-year old M.S. told her foster mother that when she was little she had “sucked her father’s dick”. The accused Mr. J.S. is her father. After child welfare authorities were contacted, M.S. was brought to the police station and provided a more detailed statement nine days later. Now fifteen years of age, she has adopted that statement and confirmed her story under cross-examination.
[2] The accused J.S. testified in his own defence and denies the allegation completely. He is charged with one count of sexual assault and one count of sexual interference contrary to s. 271 and s. 151 of the Criminal Code, R.S.C., 1985, c. C-46 and was tried before me without a jury.
[3] In a prior ruling, I found that the Crown had satisfied the conditions set forth in s. 715.1 of the Criminal Code for admitting as evidence the 2014 video statement given by M.S. to police subject to her adopting that statement in her viva voce testimony at trial. She has done so and been examined upon it.
Background and overview of evidence
[4] The indictment charges that the offence took place between August 1, 2006 and February 1, 2008. This is the time frame during which the family lived in a three bedroom apartment in a now-demolished R[…] building. The time frame covers the entire time that J.S. and his four children lived together with his then-girlfriend S.P. in that apartment, ending with the date they moved together to another address.
[5] The following is a timeline of some of the events that play a part in this matter. None of these dates or events is particularly contentious. The parties made efforts to ensure that background facts at least were proved or admitted as smoothly as possible in order to focus the trial time on the real issues to be decided.
(a) […], 2000 – Son J.S. born to J.S. and then-wife S..
(b) […], 2001 – Daughter M.S. (the complainant) born to J.S. and S..
(c) […] 2003 – Daughter A.S. born to J.S. and S..
(d) […], 2004 – Son O.S. born to J.S. and S..
(e) 2005 – S. leaves J. and abandons all four children shortly thereafter. She plays no further part in the lives of her children. J. is a single parent.
(f) August 2006 – A pregnant S.P. moves in with J.S. and his four children (J.S. M.S., A.S. and O.S.) in their three-bedroom R[…] apartment. S.P. has a son “T” who was then in care of child welfare authorities.
(g) August 2006 – Child welfare case worker Natasha Bogle begins regular visits to S.P., but at her now-expanded family including J.S. and his four children.
(h) September 7, 2006 – M.S. enrolled in school.
(i) […] 2006 – home-birth of J.D. (daughter of S.P. and former spouse E.D); child welfare authorities return “T” to S.P.’s care as well.
(j) April 2007 – police investigate sexual assault allegation at day care centre where M.S. and some of the children had attended. Allegations date back to 2005. Some of J.S.’s children were interviewed, but there was no evidence any of them were involved in these allegations nor that the suspect in that case had ever visited the family home.
(k) September 6, 2007 – M.S. enrolled in F[…] School.
(l) […], 2007 – Daughter A.P-S born to S.P. and J.S.
(m) February 1, 2008 – S.P., J. and their 7 children move out of R[…] apartment to semi-detached home in the area.
(n) August 20, 2008 – all of the children are apprehended by child welfare authorities and placed in foster care for reasons not related to complaint made six years later by M.S.
(o) September 5, 2008 – statement to police by six year old M.S. denies inappropriate actions by father.
(p) May 2010 – court proceedings regarding apprehension of children ended and children (including M.S.) are confirmed as Crown wards.
(q) June 2010 – A.S. placed in foster care with S.X.
(r) June 2011 – M.S. placed in foster care with S.X.
(s) August 19, 2014 – M.S. first mentions incident to foster mother S.X.. Child welfare authorities immediately notified.
(t) August 28, 2014 – M.S. provides video statement to police.
[6] The incident giving rise to the present charges was described by M.S. in her video statement of August 28, 2014 as well as in her viva voce testimony in court. The former was recorded when she was twelve years of age while her testimony in court occurred when she was a week short of her sixteenth birthday.
[7] The described incident occurred no later than February 1, 2008, when the family moved out of the R[…] apartment. It was thus at least 6 years and seven months in the past at the point it was first told in 2014. M.S., born in late 2001, would have been no older than six and half years of age at the time of the incident alleged. She was unable to narrow the time frame further than the time the family lived with S.P. in the R[…] apartment (August 2006 until February 1, 2008).
[8] The following is a summary description of the event she described. M.S. was playing in her bedroom at the R[…] apartment. Her step-mother S.P. was in the kitchen while she was playing in the bedroom she shared with her three siblings. Everyone was at home. Her father was in the bathroom which was immediately beside her bedroom. Her father called her into the bathroom. He was seated on the toilet clothed above the waist but with his lower body exposed, his pants around his ankles. He told her to “suck his dick” and she did so. She remembered having to kneel down to do it. Something white came out and she began to gag. He told her to swallow it and she did so. She sucked it again, but no white stuff came out. She had no clear memory of how things ended. She believes she left and went back to her room.
[9] J.S. testified in his own defence. He denied that the incident ever occurred. While he admitted to having a bad temper, he said that he would never hurt his children. I shall refer to other aspects of his testimony below.
Issues to be decided
[10] There is but one issue to be decided in this case: has the Crown met its burden of proving beyond a reasonable doubt that the incident alleged by M.S. and described above occurred in fact?
[11] If the incident occurred substantially in the manner described by M.S., then the Crown will have established all of the essential elements of the two charges faced by J.S. in this case. He is alleged to have touched M.S. by placing his penis inside her mouth for sexual purposes when she was under the age of sixteen and unable to consent.
Discussion and analysis
(a) Legal Principles: Presumption of Innocence, Burden of Proof and child witnesses
[12] The evidence for the Crown in this case depends entirely upon the credibility and reliability (the two are not synonymous) of the complainant M.S. There is other evidence and some of it does provide a measure of corroboration to elements of the evidence of M.S., but it is her evidence upon which the Crown’s case relies. This is also a case where the accused elected to testify.
[13] Were a jury deciding this case, I should be required to give very careful and detailed instructions to the jury upon how to consider the burden of proof, the presumption of innocence, the assessment of the evidence of child witnesses and the interplay between the presumption of innocence and the assessment of the credibility and reliability of the evidence offered by the defence. Sitting as I am without a jury in this case, it is incumbent upon me to instruct myself in these matters in no less careful a fashion.
[14] The burden of proof of course lies with the Crown and lies with the Crown throughout the trial. The burden of proof and its corollary the presumption of innocence is discharged only with proof of guilt that is beyond a reasonable doubt. Of course this does not require proof to absolute certainty. Such a standard could never be met in a court composed of humans with their frailties. It is, however, closer to that celestial standard than the “mere” civil standard of balance of probability. “Doubt” does not mean “theoretical doubt” or “hypothetical doubt”. It is “reasonable doubt”. It is a doubt that reason and common sense must admit is a reasonable possibility; it is a doubt that is reasonably consistent with the evidence. It is not a doubt for which there is no foundation in the evidence or that is based upon mere conjecture. We instruct juries that they must be sure of their verdict and that “probably” or “likely” will not do. We must not allow ourselves as judges to do less.
[15] The assessment of the evidence of child witnesses requires special care in a case such as this. In effect, we have testimony of three child witnesses in one to contend with: the 2008 video statement of M.S. as a six year old, the 2014 video statement of M.S. as a twelve year old and M.S. as a fifteen year old testifying in court. Each of these raises potentially different issues related to the age of the witness that must be carefully considered.
[16] In R. v. D.D., [2000] 2 S.C.R. 275, 2000 SCC 43, Major J. noted (at para. 65) the following in relation to a complaint of sexual abuse by a child:
A trial judge should recognize and so instruct a jury that there is no inviolable rule on how people who are the victims of trauma like a sexual assault will behave. Some will make an immediate complaint, some will delay in disclosing the abuse, while some will never disclose the abuse. 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.
[17] In R. v. W. (R.), [1992] 2 S.C.R .122, 1992 CanLII 56 (SCC), McLachlin J. (as she then was) noted that the old law that a child’s testimony must be corroborated to found a conviction is no longer the law. That does not mean that such testimony is not to be treated with caution particularly where merited in the particular circumstances of the case, but it is not to be discounted automatically nor treated as inherently unreliable. Rather, there must be a sensitivity to the peculiar perspectives of children. At para. 24, she found that “[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.”
[18] Courts must carefully assess the evidence of children, but apply a common sense approach rather than applying the same standards as are applied to adults. This does not mean that we are to apply a lower standard of proof. In R. v. B. (G.), [1990] 2 S.C.R. 30, 1990 CanLII 7308 (SCC), Wilson J. also commented upon the evidence of children (at para. 48):
While children may not be able to recount precise details and communicate the when and where of an event with exactitude, this does not mean that they have misconceived what happened to them and who did it. In recent years we have adopted a much more benign attitude to children's evidence, lessening the strict standards of oath taking and corroboration, and I believe that this is a desirable development. The credibility of every witness who testifies before the courts must, of course, be carefully assessed but the standard of the "reasonable adult" is not necessarily appropriate in assessing the credibility of young children.
[19] Finally, I must consider the impact of the testimony of the accused. J.S. did not have to testify, but chose to do so. In so choosing, he did not shift the burden of proof upon him nor alter the presumption of innocence from which he benefits. In a case such as this where there are essentially two competing versions of events, there is a danger of losing sight of these basic principles. The subtle, but natural inclination of the human mind when faced with two witnesses recounting two conflicting stories is to “pick one”. That is a mistake since it has the indirect effect of shifting the burden of proof to the testifying accused. The accused does not have the “burden” of being believed – he has no burden at the beginning, middle or end of the case. It is not a binary choice between his evidence and that of the complainant. There is a third option, namely that the accused may not be believed but the evidence nevertheless leaves the trier of fact with a reasonable doubt.
[20] The Supreme Court of Canada has addressed this problem in the case of R. v. W.(D.), [1991] 1 S.C.R. 742, 1991 CanLII 93 (SCC). Where the accused has testified and denied guilt, the “W(D)” instruction leaves the trier of fact three options: (a) if I accept the evidence of the accused, I must acquit because his evidence is exculpatory; (b) if I do not believe the accused but his evidence leaves me with a reasonable doubt, I must also acquit; and (c) even if his evidence does not leave me in reasonable doubt, I must consider whether, based on the evidence I do accept, I am convinced beyond a reasonable doubt by that evidence of the guilt of the accused. Reasonable doubt applies both to the facts that I determine and, by extension, to the findings of credibility and reliability by which I find them.
(b) Credibility of M.S.
[21] M.S. presented as a very credible, poised and mature witness. I listened to her carefully and found that I accepted her story without hesitation or doubt.
[22] M.S. has had a very difficult life until now. Her biological mother abandoned the family when she was very young. There is no doubt that this had a profound impact upon M.S. as a young girl and even today. Her father stayed and became the sole parent upon whom she depended both materially and emotionally. A step-mother moved into their lives. A short while later, she and all of her siblings were taken away from their father. At the time, all she wanted was to go home. She was only six years old when this happened and she and her siblings have been living in foster care ever since. While she has been able to maintain some contact with her siblings, she lives with only one sister and, before being placed with her current foster mother S.X., had been moved among a number of temporary foster homes for several years.
[23] The unstable home life she endured through no fault of her own gives M.S. every reason to be a mess today. She isn’t. Through it all, this bright and resilient young woman has somehow managed to maintain solid grades in school and has developed high ambitions to pursue post-secondary education.
[24] Demeanor alone is no basis to assess evidence. Witnesses may be sincere but they may be sincerely wrong for a variety of reasons. Her convincing demeanor and strong presence as observed by me are both factors, but not by no means the only ones supporting my assessment of her credibility and reliability.
[25] Her evidence is also quite consistent with the totality of the evidence before me, including even certain admissions of her father. It is through this careful assessment of her evidence in the light of the totality of the evidence that her story acquires the additional weight that demeanor alone cannot provide.
[26] I start by examining some of the factors that are not present. I am of course well aware that the absence of motive, for example, cannot be used as a basis to conclude the witness is being truthful: R. v. Stewart (1994), 1994 CanLII 7208 (ON CA), 18 O.R. (3d) 509 (C.A.). There can be no obligation upon the accused to explain why a witness would fabricate or tell an untruth. These are not decisive factors, but are elements that must be considered and, in conjunction with all of the other evidence, may contribute to the assessment process.
[27] This is not a case of recovered memory. M.S. has never forgotten what her father did to her even if she kept the secret to herself through the intervening years of turmoil in her life. She did keep it secret, but did not suppress it to the degree of forgetting it. The fact that this memory recounted in 2014 has been ever present is a factor supporting her credibility.
[28] This is not a case of a suggestion inadvertently planted in the mind of a child that might have been transformed into a sincerely believed, but false memory with the passage of time. There is simply no evidence that M.S. was ever exposed to such ideas. There is some evidence of an investigation undertaken by police in 2007 regarding a day care worker who was charged with sex abuse. There is no basis to infer from this that anything as specific as the allegations made by M.S. could somehow have been suggested to her then. Her father was advised not to press his children for details regarding the subject of that investigation (and followed that advice) and there is nothing to suggest investigators would have either. The target of that investigation was never at her home. There is no evidence of M.S. being exposed to pornography or sexually explicit television. There is no evidence of her being exposed even accidentally to the sort of sexual acts described by her. The act alleged by her is very specific in terms of what happened, how it happened and where it happened.
[29] This is not a case of accusations born of malice or other similar motive. There is no evidence of motive to tell anything other than the truth as she remembers it. M.S. loves her father still and would like to have some kind of relationship with him. She does however want him to understand that what he did to her was wrong. She betrayed not a hint of vindictiveness.
[30] The circumstances of M.S. first telling her story also suggest lack of motive or indeed any prospect of the allegation being the product of recent suggestion.
[31] M.S. told no one about this incident until August 19, 2014. On that day, she told the story to her foster mother S.X. with whom she had then been living for just over three years (the longest stretch she had spent in one place since being taken into custody at the age of six). S.X. had been given only the sparsest of information about M.S.’s past when she took on M.S. as a foster child. She certainly had been given no reason to suspect a past history of sexual abuse nor any mandate to probe into such matters. That day, S.X. was in a hurry and wanted to run an errand to Walmart. She wanted to get it done quickly and didn’t want M.S. to come along. M.S. had invited herself to come and S.X. was a bit cross with her for having done so. When they got to the parking lot, M.S. volunteered that she had something to tell S.X.. S.X. was impatient with her and was clearly not looking to hear any story. It was only then that M.S. told her story. S.X. did not draw this story out of M.S.; M.S. had reached the point where she was ready to tell it and did.
[32] I turn next to the circumstantial evidence from the relevant time frame. While there are no direct witnesses to the events described apart from M.S. and her father, there is circumstantial evidence that offers some level of corroboration of her story and her memory of it. This corroboration includes (i) testimony about details of her living arrangements, (ii) testimony about her father’s parenting style; and (iii) testimony and admissions about the nature of her father’s relationship with her:
• M.S. was only five or six years of age when the incident is alleged to have occurred. Nevertheless, she was able to give a very detailed and accurate account of her living arrangements including the lay-out of the bathroom where the incident occurred. Those memories at least are corroborated to a significant degree by other witnesses (including her father) who described the arrangements in terms that broadly agreed with her own description.
• M.S. was also able to give an account of aspects of her father’s parenting style and, in particular, his approach to discipline although she has not been in his care since the age of six. Her account of her father’s discipline methods included references to spanking, the administration of hot sauce and cold showers – the latter two at least being somewhat unusual or unique. She also described quite graphically the problems the family had with a bedbug infestation. Her testimony about these matters was corroborated by other, older witnesses including to some degree by her father (although he said that S.P. was the one who administered the cold showers when he was not present). These accounts confirm the quality of her surviving memory from that era.
• It was admitted that J.S. had a bad temper and that Ms. Bogle - the social worker who visited the family at least weekly - observed M.S. becoming very meek and obedient as a result.
• J. described M.S. as respectful and obedient and agreed that she was probably afraid of him.
• The evidence also confirmed the very hands-on role J.S. played in raising his children after their mother left in 2005. He took them to school and day care, he went to meetings at school when needed, he did much of the cooking as well.
[33] While the facts concerning J.S.’s relationship with M.S. do not corroborate her story per se, they provide some additional basis to ascribe credibility to it in that they help explain both how the incident could have occurred to a young girl who was emotionally dependent upon her father after being abandoned by her mother and who was rendered as obedient as she was by fear of her father’s bad temper. These facts also help explain why the same girl would have remained silent about it thereafter.
[34] Next I look at the quality of her memory of the incident. This is an event from a long time ago that occurred to a very young child. Nevertheless, the detail retained by M.S. also supports the credibility and reliability of her account. While she was unable to narrow the time frame when the incident occurred by very much, she was able to describe it in quite chilling detail. She remembered being called in to the bathroom where her father sat on the toilet with his pants around his ankles. She remembered kneeling down in order to suck her father’s penis as she was told to do. She described her father’s penis as being brown. She remembered her father’s penis in her mouth and sucking it until white stuff came out and how it made her gag. She remembered complying with her father’s order to swallow it. She described sucking it again only no more white stuff came out. She remembered hearing her step-mother’s voice coming from the kitchen.
[35] It is also significant that M.S. described the incident as occurring in the bathroom. Given the number of children and the presence of S.P. in the apartment, this particular location would have been about the only place at that time where the alleged offence could have taken place without risk of discovery.
[36] M.S. first described the incident as a twelve year old and did so using age-appropriate language. Whereas the six year old M.S. in the 2008 statement had referred to a penis as a “lollipop”, twelve year old M.S. called it a “dick”. She knew what health class had taught an erection was, but did not known what ejaculation was.
[37] I note here that six year old M.S. employed a somewhat unusual word for “penis” in her 2008 statement (“lollipop”). Children commonly use childish words to describe their own private parts or those of the opposite sex. There is no evidence of where the six year old M.S. got this odd word from. It may have been from her father, but it may also have come from her mother, her stepmother, her siblings or other children. There is simply no way to know at this point. Nevertheless, the childish name “lollipop” given by the younger M.S. to a penis is a troubling circumstance in the context of the allegations in this case.
[38] I have considered what weight should be given to the video statement given to police by the six year old M.S. in September 2008. In that statement, she denied having seen or touched her father’s penis. In my view, the 2008 video does not detract from the credibility or reliability of the story of M.S. as told in her 2014 statement and strongly reiterated before me at trial.
[39] Fifteen year old M.S. obviously recognized herself in the video, but had little to no present recollection of most of what her younger self said. Six year old M.S. denied that she had ever seen her father’s “lollipop” or that she had ever touched one. Fifteen year old M.S., having seen the video statement, testified that this aspect of the statement by her younger self was a lie. She described her younger self as just wanting to go home and resenting her sister for talking so much. This latter observation is a significant one because M.S. felt for many years that her sister’s speaking to adults played a role in the family’s separation, an event that was obviously traumatic for her. Six year old M.S. had reason to be wary of telling adults some things and that wariness is palpable in viewing the statement given then.
[40] There are a number of troubling aspects to the 2008 statement when viewed as a whole. The statement was not taken in accordance with what would be considered to be best practices today. No effort was made to avoid leading the young witness. Numerous inducements and promises were extended to her that might have been very persuasive to the young ears of M.S. who wanted to go home. As well, M.S. made a number of comments that betrayed a level of sexual awareness that seems quite unusual in someone of her young age. While these aspects of the statement are troubling, there is little that can be done with such a statement at this juncture. There is no telling where she learned such things. The defence highlights the denials contained in the statement, the Crown highlights the sexualized comments. Each would seek to draw opposite inferences from the same evidence. I am reluctant to place much weight on this statement in either direction – it is at best quite equivocal.
[41] What weight does the timing of M.S. revealing this incident bear? There is nothing at all unusual about a victim of sexual abuse keeping a secret for many years.
[42] That a young girl in such circumstances should have kept to herself a story of sexual abuse by her father, a man upon whom she had become completely dependent and whom she both loved and feared is not at all surprising. It is indeed quite understandable. That she should have waited until she was old enough to have acquired greater insight into what she had been through as a child and until she was in a place of relative stability to feel comfortable enough to tell her story is also quite understandable. Her compassionate and talented foster mother S.X. has clearly worked wonders in providing a measure of comfort and stability in her life in which she has thrived. It was this circumstance of security that permitted an always-present story of pain to emerge safely from the heart of a child who had kept it to herself until then without ever forgetting it.
[43] I find that M.S.’s evidence was highly credible, reliable and compelling. Both the story and the timing of its recounting are consistent with the totality of the evidence.
(c) Credibility of J.
[44] I turn now to consider J.S.’s evidence. I do so conscious of the fact that he bears no burden and his evidence may either be accepted, it may raise reasonable doubt or it may be rejected, but even so require me to consider the existence of reasonable doubt from all other angles based on the evidence I do accept. I am not choosing which of two competing accounts I prefer; I am sifting through all of the evidence in search of the truth and in search of a qualitative assessment of my findings when measured against the high standard of reasonable doubt.
[45] J.’s life has been a difficult one. His son J.S. – on the verge of adulthood himself and displaying an uncommonly wise perspective for one his age – summed up his views of his father as someone who “did the best he could”. He was under tremendous pressures from numerous sides and dealing with very adverse circumstances. It may well be that J.S. was over his head in many ways, but I must concur with his son’s assessment. J.S.’s life has been a long struggle with adversity.
[46] J.S. is 38 years old and currently lives with his mother on a disability pension. His disability arises from three sources. Since 2008, he has suffered from clinical depression related to the loss of his children for which he is being treated. He had a tumour behind his eye that required surgery to remove it. The removal of the tumour has had on-going effects upon his memory, both short-term and long-term. He has also had surgery on his knee from problems dating back to a high school car accident.
[47] His background before 2008 was challenging. His father left the family when he was only three and he was raised by a single mother. He was diagnosed with ADHD and had difficulties in school. He graduated from high school, but was unable to pursue further studies. After high school he worked at a variety of jobs, but was unable to secure full-time long-term employment. He was married at the age of 21 years to S.. That marriage produced four children but S. ultimately left him for another man and abandoned her children as well. J.S. was left raising four young children – the eldest being only five years of age – on his own with limited income before he became involved with S.P.
[48] He did not claim to have any particular problems with drinking or with drugs. Nevertheless, he recognizes that he has had a problem controlling his temper and admitted that his bad temper resulted in Ms. Bogle observing M.S. to be meek and obedient in his presence. He also conceded that his daughter M.S. was probably afraid of him.
[49] J.S. lived on his own with the children for about a year in the R[…] apartment after S. left. He began a relationship with S.P. and she moved in with him in August 2006. S.P. had a young son (“T”, born in 2004) who had been taken into care by child welfare authorities. S.P. was working with Native Child and Family Services and it was through their supervision of S.P. that the family of J.S. also came under the purview of social workers from that agency.
[50] At some point in their relationship, J.S. learned that S.P. was also pregnant with a child from her then-former spouse. That child – a daughter J.P. – was born in […] 2006 at about the same time as T. was returned to the care of his mother S.P. Soon afterwards, S.P. became pregnant by J.S. and a daughter was born to the couple in […] 2007 bringing the family up to a total of seven children.
[51] During the subject time frame, J. worked for a period of time in the warehouse of a courier company and also worked as a security guard part time through a temp agency. He worked nights and evenings or weekends when he could but his hours meant that he was available to walk his children to school or daycare or to receive calls from the schools when the children had to be picked up (as happened from time to time due to lice issues). He also did much of the cooking for the family.
[52] While at R[…], the family was subject to a serious bedbug infestation that resulted in the children’s beds being disposed of and replaced with sleeping mats. As well, the children periodically suffered from lice and were sent home from school for long periods of time. J.S. was the one who dealt with the schools and day cares about these issues and had to pick up his children when they were being sent home.
[53] There were clearly significant issues happening in the family in the 2006-2008 time frame based upon the testimony of Ms. Bogle and Mr. Lomax. While the defence questioned the credibility of Mr. Lomax by reason of his alleged animus against J.S., I found that his testimony was quite closely corroborated by Ms. Bogle and most of the particulars of his testimony were ultimately conceded by J.S. under cross-examination. Nevertheless, the evidence of living conditions is of only peripheral relevance to the central question in this trial.
[54] The children of J.S. were all taken into custody by the child welfare authorities in August 2008. The reasons for the apprehension of the children by the authorities or the Crown ward declaration that was eventually finalized in 2010 are not before me. It is sufficient for me to note that the apprehension and Crown wardship declaration were for reasons not directly related to the allegations M.S. eventually made in 2014 and are thus not germane to the issues before me.
[55] J.S.’s testimony about the time he and the family lived with S.P. in the R[…] apartment was subject to some inconsistencies that detracted from his credibility. Three in particular stand out:
(a) In a voluntary statement to police, J.S. characterized M.S. as his “favourite” and his “angel”, but he named his eldest son J.S. as his favourite at trial;
(b) In the same voluntary statement to police, he appeared to try to leave the impression that he had a lower level of involvement with the children (including M.S.) after S.P. came into the family. At trial, he admitted that he was in fact very much involved in the day-to-day care of the children and especially the older children whom he walked to and from school or day care;
(c) During his examination in chief, J.S. forcefully denied having performed the acts alleged by M.S. claiming that he would die for his children and would never hurt them. He was compelled to admit under cross-examination that he had in fact pleaded guilty to assaulting his daughter A.S. for which conviction he received a discharge.
[56] Overall, I could not find J.S. to be a very credible or reliable witness. His admitted memory issues did not improve that picture.
[57] He was demonstrably evasive in the three instances mentioned above. In each instance, his evasiveness appeared to be with a purpose. He was attempting to portray himself in whatever light he thought at the time to be most favourable given the charges he faces. The impact of this evasiveness was to attempt to mischaracterize his relationship with M.S. in a way that might tend to make her allegations appear less probable. In fact, the evidence strongly supports my finding that he had a relationship with his daughter at the relevant time characterized by her fear of and emotional dependence upon him, his bad temper and her consequent meekness and obedience to his commands.
[58] I am unable to accept his evidence in relation to the incident alleged by M.S.
(d) Conclusions of fact
[59] I have rejected the evidence of J.S. in relation to the incident alleged by M.S. upon which the charges are based. That rejection of course is not dispositive of this case. I must nevertheless conclude that the Crown has proved the facts alleged beyond a reasonable doubt having regard to the evidence I do accept.
[60] I have also found the evidence of M.S. to be credible, reliable and compelling. I find that she was called in to the bathroom by her father and that he asked her to suck his “lollipop” or his “dick” (which of those words were actually used is not material – whichever word he used was intended to refer to his penis and was so understood by M.S.). I find that he inserted his penis in her mouth and that, by reason of her very young age she was unable to provide her consent to the act. I find that he ejaculated in her mouth and compelled her to swallow his ejaculate. The touching in question was clearly for a sexual purpose. The events in question occurred while S.P. lived with the family in the R[…] apartment between August 1, 2006 and February 1, 2008.
[61] These findings of fact establish all of the essential elements of sexual assault (s. 271 of the Criminal Code) and sexual interference (s. 151 of the Criminal Code) with which J.S. stands charged.
Disposition
[62] I therefore find the accused J.S. guilty as charged of count 1 (sexual assault contrary to s. 271 of the Criminal Code) and guilty as charged of count 2 (sexual interference with a minor under the age of 16 years contrary to s. 151 of the Criminal Code). A date for sentencing shall be determined concurrently with the delivery of these reasons.
S.F. Dunphy J.
Date: November 10, 2017