R. v. L.H. 2017 ONSC 7291
COURT FILE NO.: CR-14-40000 363-0000
DATE: 20171222
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
L.H.
Respondent
Kathy Nedelkopoulos, for the Crown
Sayeh Hassan and Sonny Dudani, for the Respondent
HEARD: October 30, 31, November 1, 2, 3, 2017
REASONS FOR JUDGMENT
B. P. O’Marra, J.
OVERVIEW
[1] L.H. is charged with a series of sexual related offences on a seven count indictment with offence dates ranging between January 1, 1980 and December 31, 1996. The alleged incidents were first reported to police in February 2013. I will refer to the complainants by their first name only for the purposes of this judgment. The accused pleaded not guilty to all counts and the trial proceeded before me without a jury.
ALLEGATIONS RELATED TO MATTHEW
[2] Counts one and two of the indictment are as follows:
L.H. stands charged that he, sometime between and including the 1st day of January in the year 1980 and the 31st day of December in the year 1982 in the Municipality of Metropolitan Toronto, in the Toronto Region, did indecently assault Matthew, a male person, contrary to s. 156 of the Criminal Code of Canada.
L.H. stands further charged that he, sometime between and including the 1st day of January in the year 1980 and the 31st day of December in the year 1982 in the Municipality of Metropolitan Toronto, in the Toronto region, did commit gross indecency with Matthew, contrary to s. 157 of the Criminal Code of Canada.
ALLEGATIONS RELATED TO MICHAEL
[3] Counts 3 – 7 inclusive are as follows:
L.H. stands further charged that he, sometime between and including the 1st day of January in the year 1982 and the 31st day of December in the year 1983 in the Municipality of Metropolitan Toronto, in the Toronto Region, did indecently assault Michael, a male person, contrary to s. 156 of the Criminal Code of Canada.
L.H. stands further charged that he, sometime between and including the 1st day of January in the year 1982 and the 31st day of December in the year 1987 in the Municipality of Metropolitan Toronto, in the Toronto Region, did commit gross indecency with Michael, contrary to s. 157 of the Criminal Code of Canada.
L.H. stands further charged that he, sometime between and including the 1st day of January in the year 1982 and the 31st day of December in the year 1987 in the Municipality of Metropolitan Toronto, in the Toronto Region, did commit buggery with Michael, contrary to s. 155 of the Criminal Code of Canada.
L.H. stands further charged that he, sometime between and including the 4th day of January in the year 1983 and the 31st day of December in the year 1987 in the Municipality of Metropolitan Toronto, in the Toronto Region, did sexually assault Michael, contrary to s. 246.1 of the Criminal Code of Canada.
L.H. stands further charged that he, sometime between and including the 1st day of January in the year 1988 and the 31st day of December in the year 1996 in the Municipality of Metropolitan Toronto, in the Toronto Region, did sexually assault Michael, contrary to s. 271 of the Criminal Code of Canada.
[4] This case involves graphic and sordid allegations of sexual abuse by a stepfather against his two stepsons from the early 1980s. The complainants were physically and mentally young and vulnerable when the alleged events occurred. All of the alleged offences occurred in the family home. The Crown did not apply for a count to count similar act ruling. Thus, the acceptance of one complainant’s evidence cannot be used to bootstrap, bolster or confirm the evidence of another complainant. R. v. F.T., 2015 ONCA 904 at paras. 5, 27; R. v. J.R.M., 2015 ONCA 229, paras. 13 and 14.
[5] The accused testified and denied all of the allegations. The principles set out in R. v. W. (D.) 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742 must be applied.
EVIDENCE OF MATTHEW
[6] Matthew was 11 years old when the accused began living in the family home as his stepfather. He testified that within a month the accused “made his introduction”. He was referring to an incident when he walked into the kitchen. The lights were off and he saw the accused masturbating with his pants down. There were no words exchanged. Matthew testified that the accused was aware that he had walked into the kitchen. There was no physical contact between them in that incident.
[7] Matthew described another incident when the accused started to have sex with Matthew’s mother while Matthew was in the room. A pornographic video was playing on a television in the room. The incident ended when Matthew announced that “Long John is here”. That was a reference to a large man who lived nearby. Matthew said this to stop the sexual activity and it worked.
[8] Matthew described another incident in the family home. The accused entered the bathroom as Matthew urinated. The accused proceeded to perform fellatio on Matthew. When it was finished, the accused told Matthew that he had “a big cock for a 12 year old”. This incident occurred during the daytime and the accused was the only adult home at the time. Matthew did not recall saying anything during this incident.
[9] As a result of this incident, Matthew readily admitted that he became so vindictive against the accused that he did whatever he could to make the accused leave the family home. Matthew routinely stole money that belonged to the accused. He often chose not to go to school. He referred to himself as “truant, a bad kid”. He stole “to survive to get out of the house”. He was placed in a foster home as his mother and stepfather could not control his behaviour. He was apprehended by police for various incidents and received an open custody disposition as a young offender. When his release date arrived, he told the authorities that he did not want to go home. After some further time in open custody, he eventually went home. He referred to his stay at the group home as “one of the best times of my life . . . people cared about me . . . they kept me safe”. He continued to steal whatever he could from the accused, including alcohol and money. By age 17, he was kicked out of the home. By age 18, he was using and then “hooked” on crack cocaine.
[10] Matthew very candidly testified that he lived a criminal and addicted lifestyle. His extensive criminal record starts as a youth in 1985 and extends through numerous adult convictions and jail terms through 2014. In cross-examination, he testified that he usually pleaded guilty to what he was charged with. Most of his convictions were for property crimes committed to support his drug habit. He still uses crack cocaine. He still resents his mother for the situation that he endured at home with the accused. Whether she actually knew of the sexual abuse Matthew felt she had “put her child in second place”.
[11] During one of his jail terms, Matthew wrote a letter to his brother Michael. He could not recall the year he wrote the letter. His memory was refreshed by reference to a statement he gave to police in February of 2013. That statement refers to the letter being written in 2005. He testified that the letter referred to his being molested as a child by his stepfather without further details. He had not spoken previously to his brother about the sexual abuse. The letter was sent to his grandmother’s home in Espanola, Ontario where Michael stayed from time to time. He testified that he did not discuss the letter with his brother after he sent it.
[12] Matthew testified that over the years whenever he got charged with criminal offences, he told various people that he had been sexually molested. These included the police, parole officers, crown counsel, lawyers and judges. None of these resulted in any actions until he told a parole officer in 2013. Dianne Curran is a parole officer who assumed supervision of Matthew on September 11, 2012. On February 14, 2013, Matthew disclosed to her that he had been sexually abused as a child by his stepfather. She told Matthew that she was obliged to report this allegation to the police unless Matthew did so himself. Matthew said he would. On February 19, 2013, she phoned Matthew who confirmed that he had spoken to Detective MacKay of Toronto Police Service. On February 21, 2013, Matthew contacted her and said that he and his brother Michael had both attended the police station and reported the alleged sexual abuse to the police.
[13] In cross-examination, Matthew acknowledged that he still resents the accused and did not like him from the moment they met. The accused was very controlling and occupied the affection of Matthew’s mother. Matthew could not tell his mother what happened and tried as best he could to force the accused out of the family home. The only weapon he had was to steal from the accused as often as possible. He agreed that he became a “habitual thief”. He did not physically resist the sexual incident in the washroom due to the size difference between himself and the accused at that time.
[14] In cross-examination, Matthew said that the letter of 2005 did not refer to oral sex. He did not know that Michael had also been molested but he suspected it. It was not until just before the two of them went to the police station in February 2013 that he knew of Michael’s allegations. Since sending the letter Matthew said he has been more open about what happened but was only specific with the police. The only thing he told Michael was that he was molested in the washroom. In cross-examination, Matthew testified that Michael may have assumed that it involved oral sex.
[15] In cross-examination, Matthew recalled that his stepfather accused him in 2006 of stealing thousands of dollars’ worth of property from the garage adjacent to the family home. Matthew denies he stole that property and was never charged by police for that incident. He acknowledged that he did not like the people involved in the legal system based on his regular arrests and jail terms. However, he denied that he lacked respect for the legal system or the players in it. It was all related to his “addiction lifestyle”. In re-examination, he testified that, based on his own sentencing history, he did not want to put someone else in jail.
EVIDENCE OF MICHAEL
[16] Michael was forty-five years old when he testified. The first alleged incident occurred in 1982 when he was ten years old. He first met the accused in 1980 when the accused moved in with his mother. He described his relationship with the accused as “ok” at first, although he would be punished for misbehaviour. He never knew his father and was looking for a father figure.
[17] In 1982, the accused started making “slow advances” toward Michael. He would ask Michael to sit on his lap. There was nobody else home when this happened. The accused would hold onto his wrists with his arms extended. The accused told him how strong he was. Michael was happy to hear that and had no idea that anything was wrong. On a later occasion as he sat on his lap, he felt the pelvis of the accused against his rear end. It felt “weird . . . like something, rubbing against (my) back”. It felt wrong to him but he could not tell what it was. Looking back, he now believes that the accused was pushing his penis toward his back area. At the time, Michael thought no more of it and simply went out to play afterward. He believes his mother was still at work when this happened.
[18] Michael testified that there were numerous such incidents. The next major incident occurred one day after school. His mother was still at work. The accused was naked and sitting on a chair watching a pornographic movie. The accused was “playing with himself” as he watched the pornography. He asked Michael to come in and motioned for him to do so. Michael recalls that he was ten or eleven years old when this incident occurred. The accused asked him to watch the movie and asked him to show his penis. In cross-examination, he agreed that he had not mentioned this in his police statement or at the preliminary hearing. Michael testified that he showed his penis and the accused stroked it. Michael did not know what was happening. The accused told Michael he had a “big dick”. The accused asked Michael to “play” with his penis. Michael did not want to but the accused guided his hand onto the penis of the accused. Michael was told it “felt nice” and was asked how it felt for him. Michael believes that the accused ejaculated but he is “not 100% sure”. Michael then went outside to play.
[19] Michael testified that there were similar incidents on other days. During one incident a few days later, Michael again saw the accused naked, watching a pornographic movie and masturbating. He asked Michael to come in and show his penis. The accused then proceeded to perform oral sex on Michael. He cannot recall whether or not he ejaculated. Similar incidents occurred on numerous occasions for several years. They happened weekly, sometimes twice a week. Each time, the accused became more demanding physically. When Michael was thirteen or fourteen years old, the accused stood naked in front of him and asked Michael to “suck on his penis”. Michael turned his head and said no. The accused said “I suck on yours, you can suck on mine”. Michael eventually did so. The accused aggressively tried to push his penis into Michael’s mouth.
[20] On another occasion, Michael came home from school and the accused was the only adult there. The accused asked him to come upstairs and lay on the bed with him. The accused asked him to perform oral sex. Michael did so until the accused ejaculated. The accused said Michael was “good at it”. Michael then ran to the washroom and threw up.
[21] When Michael was fourteen years old, there was a further incident. The accused performed oral sex on Michael until he had an erection. The accused then put a condom over Michael’s penis and asked Michael to insert it “in his bum”. In cross-examination, Michael said there was one incident where the accused placed a condom over Michael’s penis and it broke after he anally entered the accused. Michael testified that he later went for an HIV test as a result. He agreed that this was first mentioned by him at trial. At age fifteen, after a similar incident Michael reluctantly agreed to allow the accused to perform anal intercourse on him. Michael testified that he did so “because he (the accused) was the elder in the house . . . I thought this was normal”. This incident occurred in Michael’s bedroom. Michael asked him to stop because it was hurting. When it was completed, the accused said “you took it like a champ”. The accused also complimented Michael on the size of his penis and said he “loved sucking on it”. Michael did not know what to think and went outside to play. Michael recalls that this was the only incident of anal intercourse by the accused. In terms of injuries, Michael testified that he had “blood in my poop”. A few days later, he met with a doctor and described the appearance of his feces. He did not tell the doctor about the sexual incident. The doctor told him the pain could be a constipation issue. Michael denied in cross-examination that this issue related to a digestive problem.
[22] Michael testified that the accused told him not to tell anyone about their sexual interactions. The accused reminded Michael that he was an active hunter and “accidents can happen”. Michael interpreted that as a reference to the fact that the accused and his mother occasionally went hunting with firearms. Michael feared that his mother could be hurt on such a hunting trip if he disclosed what the accused was doing to him. The threat was not specific but planted a fear for his mother’s safety.
[23] Michael testified that the accused possessed and viewed a wide range of pornographic videos, including some involving farm animals. Michael watched many of them with the accused. One day, the accused left out a porn video for Michael to view. The accused would put these videos away when Michael was present and Michael then knew where to find them for himself.
[24] When Michael was fifteen years old, the accused made a video of Michael masturbating. Michael thought it was “cool” at the time. He watched the video right after it was made. Michael told the accused not to show the video to anyone and the accused agreed. Within a few weeks, the accused told him he had destroyed or disposed of the video.
[25] Michael testified that “99% of what happened” was in the family home. There was an incident when they were on a fishing trip. The accused and Michael were in a public washroom. The accused sat in a stall and “played with himself”. There was no physical contact between them in this incident.
[26] Michael agreed that when he was young he was fascinated by fire and caused damage to property.
[27] Michael has an extensive criminal record commencing as a young offender in 1988 when he was sixteen years old. The vast majority of his convictions involve crimes of dishonesty. He says he pleaded guilty “95% of the time”. From the onset of his criminal history he preferred to be in jail rather than at home and subject to sexual abuse. It was while in jail that he came to understand that the sexual conduct was wrong. It was viewed negatively by other inmates. He lived with his maternal grandmother in Espanola for extended periods of time starting in 1990. When he was age seventeen or eighteen years, he lived with his brother Matthew in Edmonton for almost a year. He eventually returned home and there were further incidents of sexual abuse until the mid-1990s when he “basically said no” to further incidents with the accused.
[28] Michael recalled that when he was twenty-nine or thirty years old, he was living with his grandmother in Espanola. That would be 2001 or 2002. He received a letter from his brother Matthew who was in jail. His memory was refreshed by reference to his police statement in February 2013. That statement refers to the letter being received in 2005. The letter referred to “what (the accused) did to my brother” without much detail. Later, his grandmother found the letter and questioned Michael about it. He told her that his brother had written the truth. He now recalls that the letter referred to the accused “touching him (Matthew) and making him do things”. Michael understood this referred to oral sex even though those words were not used.
[29] Michael testified that sometime later his brother told him that the letter was intended only to be read by him. Michael explained that their grandmother had found and read the letter.
[30] Michael spoke to Matthew a week before Matthew reported the issues to police in February 2013. Michael told Matthew what had happened to him as Matthew did not know. Matthew told him about the oral sex incident. They discussed pressing charges against the accused. Michael testified that based on their own incarceration history, they “tend not to put (other) people in jail . . . hear nothing, say nothing.” He and his brother did not view the police as friendly as “most criminals don’t”.
[31] Michael testified that his shame and fear for his mother’s safety prevented him from going to the police until he spoke to his brother in February 2013. In 2010, his former fiancé had told him he should report it after he told her. When Matthew said he would report the incident, Michael said “if you are brave enough, I will go with you”.
EVIDENCE OF G.C.
[32] G.C. is the mother of the two complainants. The accused is the father of her third child, a daughter born in 1982. They lived together as spouses starting in 1980. Michael seemed all right with his new stepfather at the outset but Matthew was less so. For several years, G.C. had a full time job at Simpson’s. She usually worked five days a week, 8 a.m. to 5 p.m. In cross-examination, she said she routinely worked a lot of overtime. The accused was initially working for CP Rail but then joined the City of Toronto. His hours there were 7 a.m. to 2 p.m. Sometimes he was home earlier.
[33] G.C. testified that from the age of twelve years, Matthew would often skip school and run away from home. He seemed to be out of control. The Children’s Aid Society was contacted and Matthew was placed in a foster home.
[34] G.C. first heard of the alleged sexual impropriety in 1996. She and the accused were in the bedroom watching a video. The accused said he had something to tell her. She testified that the accused told her he had “touched” the boys. This admission occurred in the midst of a conversation between them about another matter involving the accused being before a court. On the consent of crown and defence, I heard very little further information as to the context of that conversation as it related to a matter that eventually led to the accused receiving a pardon. The accused did not provide details of what he had done. G.C. did not think he would have done such a thing. She later asked her sons if they had been touched and they both said no. Based on that she did not think it was serious.
[35] G.C. was not asked and did not refer in her testimony to any incident where she and the accused had sex in their bedroom while a pornographic video played, nor did she refer to Matthew being in the room during such an incident.
[36] Several years later, G.C. received information from her mother (now deceased) based on a letter from Matthew. Her mother said she had found the letter and it indicated “that the boys had been abused”. Based on the evidence of Matthew and Michael, this would appear to relate to the letter written and sent by Matthew to his brother in 2005.
[37] In 2006, G.C. and the accused ended their spousal relationship and he moved out of the family home. In cross-examination, she confirmed that she helped him move into a separate residence. She also invited him over for Christmas dinner after their separation.
[38] In 2013, her sons told her that they were going to report sexual abuse by the accused to the police. She told them not to bother. She did not know the details of the alleged sexual abuse. She thought it related only to “touching” as mentioned to her by the accused in 1996. Her sons were not happy with her reluctance to bring the issue forward. She later found out that the sexual abuse was far more serious and had occurred over a long period of time. She then supported her sons in proceeding to court.
[39] G.C. testified that Matthew said he had been abused by the accused once or twice without further details. She understood that Michael had been abused more often. Her sons told her that they were still scared in 2005 and that is why they did not tell her what had happened. Michael told her of the comment by the accused that “accidents happen when you hunt”. G.C. testified that she and the accused owned firearms and went on hunting trips together while they were spouses. Michael told her he feared for her safety based on the comment by the accused.
[40] In cross-examination, G.C. testified that she now resides with Matthew and Michael.
EVIDENCE OF L.H.
[41] L.H. was born in July 1952. He has a grade 8 education. He came to Toronto from Newfoundland as a teenager looking for work. His last employment was with the City of Toronto where he worked for thirty-two years. He has been retired for four years and currently lives in Newfoundland.
[42] In 1980, he and G.C. became common-law spouses and lived together. She had two sons, Matthew and Michael from a prior relationship. A daughter was born in 1982 from their union. He and G.C. enjoyed activities together, including hunting with rifles. His work hours with the City of Toronto were 7 a.m. to 4 or 5 p.m. but he sometimes finished early. He agreed that most days he would be home before his spouse.
[43] He described Matthew as difficult to control virtually from the outset of the new family relationship. Matthew “stole, lied and caused trouble” on a regular basis. The final straw for the accused that precipitated the split of his spousal arrangement was an incident in 2005 or 2006. He was very upset to find that property valued at approximately $50,000 had been stolen from the family garage. He strongly suspected that Matthew was the culprit. The accused found the entire situation intolerable. He parted ways with G.C. They continued to live together for six or eight months before he left. As part of their legal separation, she agreed to pay him $20,000. She helped him move into his own residence. After they had split up, she stayed in contact with him. They went on hunting trips and she invited him over for Christmas dinner.
[44] While Matthew lived at home, the accused disciplined him by slapping for lying or being disrespectful to his mother. He denied hitting either boy with a stick. The accused sometimes gave G.C. money for her to help Matthew get a place of his own. Matthew’s conduct continued to be out of control.
[45] The accused denies there was any sexual incident with Matthew and denies he ever masturbated in Matthew’s presence. He claims that he first heard about a letter from Matthew to Michael from 2005 at trial in 2017. Counsel agreed that the accused was present at the Preliminary Hearing in this matter when the 2005 letter was referred to in the evidence of Matthew and Michael. He denies that he ever told G.C. that he had touched the boys, or that she had confronted him about such allegations. He denied that he was ever confronted about the sexual allegations before being charged by the police in 2013. He denied possessing or viewing pornographic videos or that he made a video record of Michael masturbating. He denied having any sexual contact with Michael.
DELAYED DISCLOSURE
[46] In R. v. D.D., 2000 SCC 43 at paras. 63 and 65 the court addressed the issue of a failure to make a timely complaint in cases involving sexual allegations:
63 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: R. v. M. (P.S.) (1992), 1992 CanLII 2785 (ON CA), 77 C.C.C. (3d) 402 (Ont. C.A.), at pp. 408-9; R. v. T.E.M. (1996), 1996 ABCA 312, 187 A.R. 273 (C.A.).
65 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.
CRIMINAL RECORDS OF THE TWO COMPLAINANTS
[47] Both of the complainants have lengthy criminal records. Matthew’s record includes thirty-one convictions for crimes of dishonesty and four convictions for obstruct police. Michael’s record includes twenty-seven convictions for crimes of dishonesty. All of these convictions are particularly relevant in assessing the credibility of those witnesses. Both Matthew and Michael admitted that they committed other acts of dishonesty for which they were never charged by police.
[48] Matthew testified that he habitually stole from the accused after the alleged sexual incident as a means to drive the accused out of the family home. Those were dishonest acts that he was never charged for. Matthew also testified that as a young person, he continued to commit crimes outside the home because he preferred to be in foster care or jail rather than be at home and subject to further abuse.
[49] It is not uncommon that victims of sexual abuse subsequently come into conflict with the law as a result. This is particularly so where the victim was young when the offences occurred. They have diminished self-respect and feelings of shame that may lead to negative choices in their later lives. This is a difficult and sensitive issue for a court to assess. However, in this case, the sheer length of the records and the number of convictions for crimes of dishonesty is a significant negative factor in assessing the credibility of both complainants.
EVIDENCE OF AN ADMISSION BY THE ACCUSED
[50] G.C. testified that in 1996, the accused told her he had “touched the boys”. She said they were in the bedroom watching a video when he said that. No further details were provided to her by the accused. There was no further evidence as to the context of this alleged utterance. The accused has testified and denied that he made any such admission.
[51] As a result of what she heard, G.C. later asked her two sons if they had been touched. She testified that they both said no. Neither complainant was asked by either counsel about this exchange with their mother.
[52] In the absence of further detail and context, and also the denial by the accused, this evidence is of little or no probative value. The words attributed to the accused do not specify sexual contact, although G.C. suspected that it referred to some kind of improper conduct towards her sons.
[53] There was no application by the Crown to recall either complainant to ask them whether G.C. had asked them if they were touched by the accused. Matthew had testified that he went to great lengths to steal from the accused to persuade him to leave the family home. If his mother asked him whether the accused had touched him, there was a clear opportunity to tell her about the sexual incident. That may have led to removal of the accused from the home. The only evidence I have on this issue is that Matthew denied that he had been touched.
INFORMATION PROVIDED BY MICHAEL FOR THE FIRST TIME AT TRIAL
[54] Both complainants provided statements to police in February 2013 and testified at the preliminary hearing in April 2014.
[55] Michael agreed in cross-examination at trial in October 2017 that he provided certain information for the first time including the following:
In the first incident, the accused was watching a pornographic movie and asked Michael to show him his penis.
In a later incident, the accused put a condom on Michael’s penis and asked Michael to perform anal intercourse. They had done this before. In cross-examination, Michael testified that on one occasion the condom broke. As a result, Michael said he went for an HIV test. This last information was not mentioned before trial in his statement to police or at the Preliminary Hearing, nor was it mentioned in his evidence in chief.
[56] Where adult witnesses testify years later regarding events that occurred while they were children some variation in their memories and in the accounts they told are to be expected. R v. F.P., 2005 CanLII 23218 (ONCA) at para. 11, R. v. M.C., 2014 ONCA 96 at para. 6. In cases involving offences and particularly sexual offences against young children, absolute precision with respect to the timing of an alleged offence will often be unrealistic and unnecessary. R. v. P. (M.B.), 1994 CanLII 125 (SCC), [1994] 1 S.C.R. 555 at p. 567.
[57] When a witness provides information at trial inconsistent with prior statements and prior testimony, the trier of fact must consider any explanation for the inconsistency. In the same vein, where a witness provides evidence at trial that was not provided in prior statements and/or testimony, the trier of fact must consider any explanation for the late arriving information. Such a situation does not necessarily detract from the credibility of the witness. However, when new and specific information is forthcoming at trial for the first time with little or no explanation, there may be reasonable concerns related to credibility and reliability of the witness.
[58] The two examples of new information provided by Michael for the first time at trial are very specific. The lack of a precise date, month or even year for those two events is not problematic. However, the specificity of the new information is troubling. Michael’s current and new memory of a broken condom and then seeking an HIV test without explanation detracts significantly from his credibility and reliability.
CONCLUSIONS
[59] The accused had the opportunity to commit these alleged offences when he was alone with either of the complainants when his wife was not yet home from work. There is no forensic evidence implicating the accused. There is no third party who witnessed any of the alleged sexual acts against either complainant. The law does not require that there be corroboration of the complainants’ evidence for there to be convictions. The accused has testified and denies all the allegations. He also has denied making any veiled threat to cause harm to G.C. if Michael reported the alleged incidents.
[60] In R. v. J.J.R.D., 2006 CanLII 40088 (ON CA) at para. 53 the court indicated as follows:
An outright rejection of an accused’s evidence based on a considered and reasoned acceptance beyond a reasonable doubt of the truth of conflicting credible evidence is as much an explanation for the rejection of an accused’s evidence as is a rejection based on a problem identified with the way the accused testified or the substance of the accused’s evidence.
[61] Based on the concerns I have referred to the evidence of the complainants in the case before me does not provide a basis to reject the evidence of the accused. There is no articulable basis to disbelieve his denials. On that basis he is entitled to acquittals on all counts.
[62] I am grateful to both counsel for the way they have dealt with this case. These types of historical allegations present challenges to both the crown and defence.
RESULT: Counts 1 – 7 inclusive are dismissed.
B. P. O’Marra J.
Released: December 22, 2017
CITATION: R. v. L.H. 2017 ONSC 7291
COURT FILE NO.: CR-14-40000 363-0000
DATE: 20171222
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
L.H.
Respondent
REASONS FOR JUDGMENT
B. P. O’MARRA
Released: December 22, 2017