ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

A. R. Prihar, for the Crown

• and -

G.A.

J. Neuberger, C. Assié, for the Defendant

HEARD: October 16, 18-20, 23, 25, 2017, at Brampton

REASONS FOR JUDGMENT

HILL J.

INTRODUCTION

[1] G.A. pled not guilty to sexual interference with M.R., his 11-year-old stepdaughter.

[2] The sexual molestation is alleged to have occurred in 2006.

[3] Three witnesses testified at trial – M.R. and her mother (A.R.), and the accused on his own behalf.

FACTUAL BACKGROUND

Early History

[4] The complainant testified at trial as a 22-year-old university student about sexual molestation when she was 11 years old. M.R. testified behind a witness screen with a victim/witness therapy dog at her feet in the witness box,

[5] The accused, aged 39 at trial, unmarried and the father of two children from two common law relationships, testified in his own defence denying the allegations. He commenced a dating relationship with M.R.’s mother, A.R., when the complainant was four years of age and living with her mother in Hamilton. M.R. never knew her biological father.

[6] M.R. and her mother moved to an apartment in Brampton when she was about eight years of age. The two resided at this location from 2002 to June 2006. The accused was then dating A.R. In M.R.’s view, she had a loving and caring relationship with her mother throughout this time period. They spent time together – watching movies, working on M.R.’s homework together, shopping and doing errands.

[7] On A.R.’s evidence, prior to June 2006, the accused adopted a parenting role with M.R. The accused testified that he would see A.R. at her apartment once or twice a week. He did not stay overnight. In his in-chief testimony, the accused maintained that at this time he had no father role vis-à-vis M.R. – he was simply her mother’s boyfriend. In his May 13, 2014 videotaped statement to the police, the accused stated that he had taken on “like a father role” with M.R. when in his “young 20s” trying “to raise her like, that I would if she was my own”. The accused explained the conflict by saying that when he answered the officer’s questions he was looking at his relationship with M.R. as a whole.

Recounting of A.R.’s Sexual History

[8] M.R. described an incident when she was eight or nine years of age, living alone with her mother in Brampton, when the accused asked her mother to speak about all of her past sexual encounters. Her mother did so but was reluctant and very upset. To M.R.’s recall, the accused explained to her that he did this as an example of behaviour to be avoided – she should learn from her mother’s mistakes. The complainant has no recall of her reaction during the event. She felt that this incident affected her relationship with her mother as she came to gradually have lessened respect for A.R.

[9] During cross-examination, M.R. verified the contents of an August 29, 2014 email she had forwarded to the investigating officer as a result of her mother telling her, after charges were laid, to send anything along to the police which she remembered beyond what she had said in her May 13, 2014 videotaped police interview. A.R. had asked her to recall the accused forcing her to relate her sexual history. This email read in part:

Another thing was when I was 8-9 years old he sat me and my mom down and told me about her entire sexual history in an effort to humiliate her. G.A. and my mom were in an emotionally abusive relationship for years and I saw him belittle her multiple times, by pouring water on her head or throwing her things around when he got angry.

[10] Questioned as to the difference between her trial testimony and this email, as to who had explained A.R.’s sexual history, M.R. stated that the accused might have interjected with some of his own stories when A.R. was too upset to talk at some points. The term “emotionally abusive relationship” was one used by her mother over the years.

[11] In cross-examination, M.R. denied that knowledge of her mother’s sexual history came exclusively from overhearing dialogue between A.R. and the accused.

[12] A.R. informed the court that the accused would put her down about her sexual past asserting that this negatively impacted on her ability to discharge her parenting role. A.R. testified that the accused made her reveal all her sexual history to her daughter with details. M.R. was aged 8 or 9 at the time. A.R. viewed the accused’s motivation to be a way of controlling her relationship with him and with her daughter.

[13] In further cross-examination, M.R. was referred to her May 13, 2014 videotaped police statement in which she anchored the sexual history recounting as occurring when she was seven or eight years of age. M.R. testified that the reference to age “seven” was a mistake on her part because at that age she was still residing in Hamilton with her grandparents.

[14] In his testimony, the accused denied forcing A.R. to relate her sexual history to her daughter. The accused recalled an argument on a livingroom couch between himself and A.R. in her small basement apartment in Brampton about their prior sexual partners. In this argument, he did not engage in using derogatory terms or names. The accused testified that M.R., who was 9 or 10 years old, was not in the livingroom – she was in her bedroom which was about 10 metres away with the door open and the light on so “she overheard that”. In cross-examination, the accused acknowledged that while the sexual history of a child’s mother should not be discussed in a child’s presence, their voices may have become louder as the argument progressed.

[15] Only in cross-examination, did the accused testify that, after the argument, M.R. came out of her bedroom asking “What happened?” When he responded, “We had an argument”, she asked “What happened?” He then said the argument was about A.R. having “a number of relationships and she had become pregnant at an early age” – he told M.R. to focus on school and not get involved “in a bunch of relationships” – it was “about her academic future”. He did not refer to A.R. as a slut or use similar language. The witness has no recall of M.R.’s response.

The Brampton Residence

[16] Subsequently, in June 2006, the complainant’s mother and the accused purchased a small, four-bedroom house in Brampton. M.R. was then 10 years of age.

[17] The Brampton residence was a two-storey home with four bedrooms on the upper floor. At no point, did A.R. and the accused share a bedroom – their rooms were at opposite sides of the floor. M.R.’s bedroom was adjacent to her mother’s room at the end of the hallway where the stairs and a washroom were located. There was a workroom in the basement from which the accused worked from home building electronic equipment or components. There was a door at the main floor stairs leading to the basement.

[18] M.R. testified that she spent time with the accused in the small basement workshop including working on projects with him. The witness could not recall whether a ventilation tube was out or through the room’s door. The accused testified that M.R. came to the workshop a number of times to help him and he taught her things such as soldering. The witness testified that the door of the room was never closed, as a ventilation exhaust tube ran along the floor and through the doorway out to the laundry room.

[19] The accused, who has an electrical engineering degree, ran his business on the internet and at home building electronics, mostly amplifiers, in the basement workshop, mainly from 10:00 p.m. into the night.

[20] The accused testified that his decision to sleep in his own bedroom, because he needed his “own space”, was a source of frustration, strain and argument in his relationship with A.R. He was not physically or emotionally abusive to A.R. and, according to his in-chief evidence, he never attempted to be controlling of the complainant or her mother. Nor did he attempt in any way to interfere with their relationship. While he and A.R. had a few arguments over the years, he tried to avoid confrontation. In his police statement, the accused stated:

Well you know I think with the mom I was like jealous and controlling and then that got in the way of things …

[21] Referred in cross-examination to this account of being controlling and to his in-chief evidence of not being controlling of A.R., the accused responded, “They’re both correct” – there was one occasion when he asked A.R. too many questions about a guy she was spending a lot of time with at school – there “may have been other examples but, overall, I was not controlling”. On another occasion, he questioned A.R. about her whereabouts – a time when she was cheating on him.

[22] On the complainant’s evidence, in 2006, she had a daughter-father relationship with the accused – “we were very close”. In his evidence, the accused stated, “We did have a close relationship”. To M.R.’s recall, the accused, who was somewhat of a shy individual, played video games with her mostly in his bedroom but also in the home’s main floor livingroom. They also watched movies in the livingroom where A.R. was sometimes present. A.R. testified that M.R. was fond of the accused and treated him as “her dad”. She observed M.R. and the accused play video games both in the livingroom and alone in his bedroom.

[23] The accused testified that after the move to the new house, he began, for the first time, to take on a fatherly or parenting role with M.R. He talked to the complainant, who he considered talented and “beyond bright”, about school, encouraging her education and maintenance of a positive peer group, as well as not spending excessive time on Facebook and the internet.

[24] The accused recalled that he played video games a few times a week with M.R. mostly in the livingroom where a computer was hooked up to the TV but also at times in his bedroom on his laptop. In his view, he had a good relationship with M.R. She was close both to him and her mother but played more with him. They watched movies on TV and went on bike rides. As a family unit, he and A.R. and M.R. shopped, played volleyball in the backyard, and spent time with A.R.’s parents.

[25] M.R. considered that, as a 10-year-old, her relationship with her mother was “a bit strained” – they were not as close as her and the accused. She did not know why at the time. As a teacher, A.R. was off work during the summer months. A.R. testified that when M.R. was about 10 ½ years of age, she was starting to see “a little bit of a distance between” them with somewhat less affection shown. M.R. acknowledged that she continued to do some activities with her mother. The accused testified that while he was more involved in game-playing with M.R., in his view M.R. and her mother were very close, had a good relationship, and did mother/daughter things together.

[26] M.R. agreed with the suggestion in cross-examination that there were times she would lie about what went on in school or about friends. To the complainant’s recall, the accused was more lax than A.R. about rules in the house. The accused always encouraged her academically. The accused recalled M.R. drawing and writing mini novels.

[27] A.R. testified that, from her observations, there were no inappropriate interactions between M.R. and the accused – they had a good connection. The witness observed M.R. and the accused in horsing-around games. When the two were in the accused’s bedroom, A.R. recalled, on occasion, checking in on her daughter.

[28] M.R. perceived her relationship from 2006 to 2009 with the accused to be affectionate and caring. They would hug and kiss including in A.R.’s presence. At times, when they lived together, they would play a game called “Slugs” while play-wrestling in the livingroom. Slugs could involve slapping or licking the other’s face and then running away and being chased. M.R. had no recall of Slugs involving licking of the vagina or penis. It was a silly, fun game. A.R. was sometimes present.

[29] To the accused’s recall, he played Slugs with M.R. when she was about ages 8 to 12 years. They played once or twice a week along with wrestling and horseplay. During Slugs, only his face or an ear were licked by M.R.’s tongue. There was no kissing on the mouth. As well, he would try to “get her back” unexpectedly in the same way she had gotten him – “it was a reciprocating kind of game”. He never touched her chest or private areas during the game. Slugs was a gross game, not a sexual game. One time, M.R. slapped him on the behind when he was washing dishes – it was horseplay. Asked in cross-examination, if there was any other touching by M.R. which might be considered inappropriate, the accused gave conflicting answers about her holding his hand – “as she got older” versus “when she was younger”. A.R. was often in the livingroom when Slugs was played. According to the accused’s evidence, Slugs stopped in 2008 when P.A. was born as the household became very busy.

[30] In cross-examination, when the accused was referred to a passage in his police statement in which he stated that Slugs began when M.R. was in grade 6 or 7, an age older than 8 or 9, he acknowledged that his answer to the officer was not accurate. In further cross-examination, in light of his answer that the Slugs game had no sexual connotation, the accused was referred to this passage in his police statement:

Q. …she describes her[self] giving you fellatio.

A. Hmmm, maybe she licked my stomach and stuff like that. Like the slug things.

Q. …and could she have licked your penis by accident?

A. I don’t know. I don’t think so.

[31] The accused testified that he felt pressured during this police questioning and said what he thought the officer wanted to hear. At trial, the accused testified that because he suffers from a form of autism, he tries to be non-confrontational and to avoid conflict “and gives answers like that”. Though his answer may have appeared otherwise, Slugs had no sexual element or touching beyond the face and he “was just stretching, trying to think of the closest thing”. At trial, the accused had no recall of M.R. ever licking his stomach.

Alleged Sexual Assault in the Livingroom

[32] Although M.R. told the police that it may have been during the summer of 2006 or 2007 (“I don’t exactly remember when”), that the accused molested her, at trial and at the preliminary inquiry, M.R. was sure that it was 2007 as the move to the new house was June 30, 2006 and during the summer of 2006 they were still moving furniture around.

[33] M.R. testified that it was not uncommon for her to sit on the accused’s lap on a couch in the livingroom. In his testimony, the accused agreed that sometimes M.R. sat on his lap but moreso when she was younger. To M.R.’s recall, on one occasion in the spring or summer of 2007, when she was 11 years of age, when she was alone with the accused in the livingroom watching a movie, and sitting on the accused’s lap or leg, he asked her to touch his penis over his blue basketball shorts. It was night time. Her mother was not around.

[34] At trial, while M.R. could not recall the precise words used by the accused, she testified that the accused did not say why he wanted her to touch him. Asked how she felt about the request, M.R. testified that she thought it was “normal” – she touched his penis over his shorts – for how long she cannot recall. M.R. could not recall how the incident concluded. The accused agreed in his evidence that there were occasions when he was alone with M.R. in the summer of 2007.

[35] The accused testified that this sexual touching never occurred. The witness stated that M.R. may have touched his penis over his clothes by accident during wrestling or horseplay. As well, on one occasion, as she slid off his lap, she accidently grazed his penis.

[36] According to the complainant, in the summer of 2007, the accused, her mother and herself did not spend a lot of time together as a three-person unit. Although her mother, as a teacher, was off during the summer, she spent most of her time with the accused – she did not feel that “close” to her mother.

Video Showings on a Computer

[37] M.R. recalled more than three occasions where the accused, on a computer, showed her what she now recalls to have been internet threads in a body-building forum containing pictures of teenaged girls less than 18 years of age dressed “in little clothing” like bikinis. She was 11 years old at the time. Each time, the accused commented about the girls’ bodies and which ones he considered attractive. She thought this was “normal”. These showings occurred before or during the time period of the touching described below which occurred in the accused’s bedroom.

[38] M.R. identified this paragraph in her August 29, 2014 email to the investigating officer by way of additional information:

The number one thing is that I remember when I was around 10-12 (around the same time as the incident) while I was living in the house on G[…]. G.A. would regularly view a thread on an internet forum that was dedicated to posting semi-nude pictures of underaged girls. I forgot what it was called. He had his laptop plugged into the television and so I would see what he saw. He would sometimes make comments about the girls to me. I thought this was normal at the time.

[39] Cross-examination of M.R. indicated that the photos were of scantily clad, not nude, girls. The viewings were during the day in the summer on the livingroom TV screen. M.R. does not think her mother saw the pictures. The accused gave no evidence on this subject in his in-chief evidence. In cross-examination, he denied that he ever showed M.R., on a TV in the livingroom linked to a computer, pictures of young girls in bikinis from an internet forum.

[40] In cross-examination, when the witness was asked whether he and M.R. ever watched videos or movies with sexual content inappropriate for a child, he replied, “No we never watched anything that was inappropriate”. In his May 13, 2014 videotaped statement to the police, the accused stated that M.R. and him may have viewed a scene in a video showing fellatio. At trial, the accused stated that he has no recall of watching such a movie with M.R. He may have been “stretching for an answer” making the comment to the officer under “the pressure and intimidation of the police room”.

[41] In cross-examination, the accused was pressed further on the issue with reference to his response to the officer’s statement, “…she describes your hand going inside her underwear”: “We watched a lot of those shows in the bedroom”. The accused explained this answer by reference to some YouTube show having nothing to do with sexual content. Asked what his answer to the officer had to do with the question asked by the officer, Mr. G.A. testified, “I don’t know”.

Sexual Touching Games

[42] M.R. informed the court that during the summer of 2007 she often played video games with the accused on his computer in his bedroom. It was before and after midnight. M.R. agreed that she kissed A.R. and said “I love you” to her before her mother went to sleep. She nevertheless felt closer to the accused than her mother. M.R. had no set bedtime during summer months. Her mother was asleep in her own bedroom. The complainant could not recall whether her mother’s bedroom door was kept open or closed.

[43] A.R. testified that during the summer of 2007, when she was pregnant, she was mostly likely to be the one who went to sleep first at night. There was no early curfew for M.R. in the summer. Generally, the accused stayed up at night and slept during the day. A.R. testified that it varied as to whether her bedroom was open or closed at night. As the witness was asleep, she was unable to say whether the accused’s bedroom door was open or closed. Whenever he left the house, he locked his bedroom door.

[44] The accused testified that if he and M.R. were playing video games at night on the couch in his bedroom, A.R. would always pop in to say goodnight and tell them that she was going to sleep. A.R. testified that this would happen. The accused is unable to recall when A.R. would usually go to her bedroom to sleep. The accused testified that A.R.’s bedroom door was open when she slept.

[45] M.R. testified that the video games involved each participant having a controller. She and the accused sat on a mattress on the floor with the computer set on a briefcase in front of them. The bedroom door was closed.

[46] The accused testified that his bedroom door always remained open when he played video games there at night with M.R. It was a small house – A.R.’s bedroom was 12 or 13 metres away. The video games were played with each player using half of the keyboard, not individual controllers. They had the laptop computer between them. In cross-examination, on the subject of his sleeping, pregnant partner not being disturbed by their game-playing, the accused stated that these games “are silent on the computer” “we’re not making noise”. Questioned further about the games’ sound effects, the accused stated, “They have sound effects, but they’re not important to the game play” – “they were on at a very low level”. Although they played the games “for fun”, “there wasn’t too much conversation during the game”. At trial, the accused found it difficult to remember the specifics of any conversation. The accused further testified that his bedroom door remained open when he watched movies there with M.R. even at night when A.R. was sleeping. The movies were not played loudly – “It’s in the suburbs, the atmosphere is extremely quiet at night”.

[47] The complainant testified that, in the summer of 2007, there came a point during their time in the accused’s bedroom playing video games when “touching games” began. The games, which seemed to go on for hours, were described as “Truth or Dare” or “Would You Rather…?” games. They were not noisy when playing games. They took turns, and some turns in these games involved licking or touching of a sexual nature. M.R. recalled that over a number of days there was a progression from mouth-kissing to breast-touching over her clothes. M.R. cannot recall whether she was dressed in her pyjamas or a sleeping outfit. She also touched the accused over his clothes.

[48] M.R. saw nothing abnormal about these activities. The complainant testified that the accused told her that it was normal since they were not blood-related and, because it was a man and a woman in the same house, eventually it would have led to something, and that it was better that she experience those things with him first than with a random boy at school. The accused agreed in his evidence that after he was charged he told the police that he had not wanted M.R. to have a boyfriend until she was 16 – a matter he had discussed with her.

[49] It was M.R.’s evidence that when these activities occurred in the accused’s bedroom, her mother was asleep in her bedroom.

[50] The accused testified in cross-examination that he did play the Would You Rather game with M.R. taking turns asking a question of one another. He had no recall of playing Truth or Dare type games. The accused was referred to this passage in his police videotaped statement:

Q. She describes the, a time you guys playing this dare game.

A. (Nods head yes).

Q. And what was the dare game about? Would you be rather be married to somebody or do something else, what was that game?

A. Ah I guess like some of the guy she like, would you rather be married with this guy or that guy or something like that.

Q. Mm-hmm.

A. So.

Q. And what was the result of the game?

A. I can’t remember. I know we played games like that.

Q. Mm-hmm.

A. Like just involving gross stuff or whatever.

Q. Mm-hmm.

A. I guess we just had to do dumb things like afterwards or something.

Q. She describes a couple of those things of um you touching her.

A. No. If I touched her it’s like we’re playing just dumb…

Q. Yeah…

A. …stuff.

[51] The accused explained his acknowledgement of a dare game in this statement as being part of the Would You Rather game. Asked how the “gross stuff” factored into a Would You Rather game, the accused testified that it was along the lines of “Would I rather marry a really terrible woman or I get to punch you in the stomach”. Asked again, in light of that answer, what the “gross stuff” was, the accused responded at trial, “I didn’t remember gross things…it was more something that you didn’t want to have happen, a slap on the face, a punch in the stomach”. What would happen was “unpleasant”, not gross, as he would end up getting slapped or punched.

[52] In cross-examination, when asked, the accused did not provide an example of the type of question M.R. would ask of him. The accused gave this further evidence:

Q. And so would you take turns asking each other Would You Rather?

A. Yes, she would ask me a question and I would ask her something.

Q. If you asked her, “Would you rather marry a really terrible woman or have me punch you in the stomach?”, depending on her answer, would you punch her in the stomach?

A. No, the … that was more of the things she would do to me.

Q. So what would you do with her in the Would You Rather context?

A. Just a question and answer and then it would be her turn to ask me something.

Q. So is it fair to say then if there was ever any touching that was initiated as a result of the Would You Rather game, it was [M.R.] touching you?

A. It wasn’t… I wouldn’t describe it as touching, it was more of a punch or hit.

[53] On M.R.’s evidence, the in-game touching further progressed to the accused touching and licking her breasts and vagina. At trial, she could not recall who may have removed her clothing or the duration of this touching. M.R. could not recall what the accused may have said when he was touching her.

[54] On any one night, after midnight, they took turns touching one another for some hours. She began touching the accused’s penis with her hands and mouth. She has no recall of the accused giving her instructions of what to do. She cannot recall how long such touching lasted. M.R. testified that the accused was circumcised. She had not seen him naked before the nighttime games. She never saw him walk out of the shower naked. Asked in-chief whether the accused ejaculated during such touching, M.R. responded, “I don’t think so” but she had tasted “like a salty liquid”.

[55] M.R. testified that she could not recall who decided when the games were over – when the sun was coming up, she would make her way to her own bedroom. She would wake up after a few hours and have a normal day. To the accused’s recall, M.R. stayed up from midnight to 1:00 a.m. at the latest. He worked most nights in the basement workshop.

[56] According to M.R., the nightly games with sexual touching of an under-clothes nature lasted one to two weeks. Asked in-chief how those activities terminated, M.R. testified that on the last night, when asked to lick the accused’s penis, and she didn’t want to because she found the smell and taste unpleasant, the accused became annoyed – “that ended it”.

[57] The accused testified that he has been circumcised. On one occasion, M.R., when she was between grades 6 and 8, saw him emerge naked from the washroom when he thought he was home alone. It was for a split second as he said, “Don’t look. Turn away”, and then quickly re-entered the washroom.

[58] The accused informed the court that he never touched M.R. sexually or inappropriately including in the summers of 2006 and 2007. He did not kiss M.R. in his bedroom and never asked the complainant to touch him sexually or to engage in sexual activity. He did not use games as a means of making sexual touching appear to be normal.

[59] M.R. testified that once the touching games ended, the accused began to ignore her and to give her the “silent treatment”. She felt hurt. The complainant was unable to say how long this lasted but would estimate that normalcy did not return for a few weeks. To her recall, the accused and her never discussed what happened on those days in 2007. The accused at no point had threatened her or directed her not to tell anyone. The accused testified that he did not engage in giving M.R. the silent treatment.

The Alleged Workshop Sexual Assault

[60] M.R. informed the court that sometime later, still in the summer of 2007, a further, and final, sexual touching incident occurred. This was in the accused’s basement workshop. She liked going there and at times she helped him with what he did there.

[61] The complainant testified in-chief that they were alone in the workshop. She is uncertain as to where her mother was. She has no recall as to what she was wearing. The workroom door was closed. The accused turned the lights off. As she stood, the accused got on his knees and licked her vagina for less than half an hour although she has no real recall of the duration. M.R. testified that her pants were “off” – she cannot recall who removed her clothing or whether the accused said anything. In his evidence, the accused denied this allegation.

After the Alleged Abuse

[62] After this incident, on M.R.’s evidence, she began to feel that the naked touchings during this summer were not normal – “it felt like something wasn’t right”.

[63] The complainant testified that she did not tell her mother in the summer of 2007 what had been happening with the accused. Asked in-chief why she did not have such a discussion, M.R. stated that she had begun to feel ashamed, like she may have done something wrong.

[64] On M.R.’s evidence, after this incident, her relationship with the accused returned to the way it had been “before any of the sexual stuff happened”. They remained close even though she had viewed that the touchings may not have been “right” – in describing that feeling, M.R. testified, “I put it away” by telling herself over and over again that the “sexual stuff” had not happened and that she had been “making it up”.

[65] In cross-examination, when M.R. was asked if, after the sexual touchings, she had “repressed” her memories of these events for a number of years, she replied, “Yes, although I think the word ‘repressed’ is the wrong term”. The complainant agreed that she had previously used this terminology in saying that she had resumed her relationship with the accused and repressed these memories for at least 5 or 6 years. Only subsequently, did she come to learn that the word repressed referred to a specific psychological idea which is inaccurate for her experience – in her situation she forced “herself to believe it didn’t happen” on “a surface level”. Asked in cross-examination: “So you were not remembering it day to day?”, M.R. responded, “No”. The incidents “came to her in pieces” and that they “blended together like one big blur” and “it was blending of pieces of memory”. M.R. testified that it was hard for her to put words to her memory process.

[66] When asked directly in cross-examination whether the sexual abuse she described could be a mixture of other experiences not involving the accused, M.R. replied, “It’s not possible” and that she was “a hundred percent sure”. M.R. further testified that she has not mixed up the Slugs games with the sexual abuse described in her evidence.

[67] M.R. agreed in her evidence that in high school she was labelled as a gifted student. She had strong grades and excelled academically. She was in choir and the school’s drama club. M.R. acknowledged that she was also gifted creatively – she was an avid and creative writer. She had an interest in film as well.

[68] A.R. and the accused had a daughter, P.A., born on […], 2008. M.R. is unsure whether she knew in the summer of 2007 that her mother was pregnant. Asked in-chief if her relationship with the accused changed when P.A. was born, M.R. stated, “Not really”. They remained close. The accused testified that when they learned in June 2007 that A.R. was pregnant, it was an exciting time – M.R. was informed, the fourth bedroom was readied for the baby, and baby items purchased. A.R. testified that the pregnancy news was shared with M.R. but the witness cannot recall precisely when.

The 2009 Separation

[69] Although M.R. testified at the preliminary inquiry that she went through a rebellious stage in the 10 to 13 year-age range, at trial the witness stated that that was a mistake as that stage was when she was 16 or 17 years old after moving out of the accused’s home.

[70] A.R. and the accused separated in October 2009 when M.R. was 14 years of age and in grade 9. A.R. felt she could not go on in the abusive relationship. The complainant remained living with the accused in Brampton for about another year. M.R. informed the court that this was her decision as she wanted to attend the same school and not leave her friends and, in the witness’ words, “and I was closer to G.A. anyway”. At trial, M.R. was unable to recall the circumstances of her half-sister’s living circumstances. M.R. continued to excel in school including creative writing and video production.

[71] Asked in-chief whether, between the time of the described sexual touching in 2007, and the separation of A.R. and the accused in 2009, the accused had done anything to make her feel unsafe, M.R. stated that he had not. She was not concerned about repetition of the earlier sexual touching because “it just didn’t occur” to her. After the 2009 separation, M.R. continued to tell herself that the sexual touching didn’t happen.

[72] In his evidence, the accused acknowledged that prior to separation, there were “some things” that he and A.R. would argue about. There were ups and downs in their relationship. Parts of the relationship were good and parts had become unhealthy and unloving.

CAS Contact

[73] M.R. agreed in cross-examination that on May 16, 2011, when age 15, she spoke with a CAS case worker. The complainant agreed in her evidence that she spoke to the CAS about a number of matters including that she had good friends and that things were good at home, that she never saw the accused having a drinking or alcohol problem, that she had “a close relationship” with the accused, and that she related more easily “to her father G.A.” than to her mother. M.R. told the worker that she preferred A.R. and the accused living apart so that they did not argue. She made no disclosure about “body safety”, relating to the CAS that she had never been afraid while in her parents’ care and that she felt safe as was her sister.

Deterioration of the M.R./Accused Relationship

[74] A.R. resided in an apartment in Brampton “not too far away” from the accused’s home in 2009. At this point, M.R. resided week-about at each residence. P.A. moved back and forth as well. This arrangement lasted for about a year. In the fall of 2010, a formal separation agreement was executed. According to M.R., while she loved her mother, and believed that A.R. loved her, she did not view their relationship as “close”. The accused testified that he encouraged the ongoing relationship between M.R. and her mother. A.R. testified that her relationship with her daughter at this time had become a little bit distant – they did not talk in depth or on an intimately emotional basis.

[75] M.R. testified that immediately after the separation and for some time thereafter, she continued to enjoy the time she spent with the accused. They got along well. She continued to feel safe and comfortable with him. They watched movies, played video games and had other activities. They lived together as though nothing inappropriate had ever happened. The accused informed the court that he continued to have a good relationship with M.R.

[76] At a point in 2011, A.R. moved back to Hamilton to reside with her parents to save money to buy her own home. M.R. continued to reside with the accused for the remainder of grade 10 and most of grade 11. M.R. would visit her mother and grandparents on some weekends. A.R. testified that although she encouraged M.R. to move to Hamilton to live with her, M.R. wanted to stay at her school and to be with her friends. In cross-examination, A.R. stated that she was not, at this time, hoping to have sole custody of P.A. or to have the child on a primary basis. She was prepared to drive twice a week from Hamilton. On the accused’s evidence this was when A.R. first mentioned P.A. coming to live with her full time in Hamilton.

[77] M.R. testified that at a point when she was aged 16, she and the accused began to become distant and were not talking. There were some arguments in the spring of 2012 with the accused driving her places and then leaving her to her “own devices” to make her way home. M.R. was frustrated by this. M.R. was unaware whether the accused had begun a new relationship with a woman.

[78] The accused testified that there were arguments in the spring of 2012 between himself and M.R. He was in a new relationship. M.R. was out a lot with friends. She expected, often on short notice, that he should be able to drop her off or pick her up at various locations which was not always possible. A.R. testified that, as early as April or May 2012, M.R. told her that she wanted to live with her. On A.R.’s evidence, M.R. told her that she was not getting along with the accused, he was failing to pick her up, he was ignoring her, there were arguments, and she was not getting any attention.

[79] At the end of June 2012, A.R. moved back to a home in Brampton. At age 16, in circumstances described below, M.R. moved in with her mother on a full-time basis because she felt that she was not in a loving home anymore.

[80] M.R. testified that on an occasion when the accused was to pick her up at her friend’s soccer game in Caledon, he failed to appear after two or three hours. To M.R.’s recall, the accused did not have a cellphone at this time. It was dark and really cold. M.R. had to arrange her own ride home. Once home, there was a major argument with the accused and, in the complainant’s words, “He asked me when I was moving out”. She felt that she needed to leave immediately. She felt hurt by the accused kicking her out of his life. Within a few days, she left and went to stay at a friend’s home for one or two weeks until the grade 11 school year finished in June 2012. M.R. cannot recall whether she told the accused that she was leaving. She was angry with the accused.

[81] The accused recalled an attempt to pick M.R. up at a Caledon soccer field. When he arrived, there was no one there. He waited for a half hour and went home. M.R. then called, really upset, saying that she would stay with a friend. He told M.R. not to disturb someone’s parents at night. When M.R. arrived home that same evening, there was a big argument. He asked, “Are you moving out? When are you moving out?”, but not in a tone conveying that he was kicking her out of the house. M.R. moved out the next day.

[82] The accused also testified that on the day before M.R. moved out, he received an email from A.R. stating that M.R. was coming to live with her as he had physically and emotionally abandoned M.R. It is unclear on the witness’ evidence whether this email was received before or after the Caledon argument.

[83] The accused recalled A.R. coming to the house and hastily packing up the contents of M.R.’s bedroom. On this occasion, A.R. told him that she would be seeking full custody of P.A. so that the child could live with her. He was unhappy about this as he wanted to see his daughter.

[84] M.R. then moved to her mother’s home when A.R. took possession of that residence at the end of June 2012. To M.R.’s recall, prior to the Caledon incident, her mother and her had discussed M.R. moving to again live with A.R. In her evidence, the complainant agreed that she told her mother that the accused had abandoned her physically and emotionally. The complainant testified that A.R. immediately took her side and supported her.

[85] M.R. rejected the suggestion that at the time of the argument about the Caledon incident, she then started to remember what the accused had done to her in 2007. M.R. acknowledged stating in her preliminary inquiry evidence on the subject of moving out of the accused’s home, “I felt angry that’s when I started remembering what he did to me”. At that inquiry the next exchange was:

Q. And once you started remembering did you do anything with that memory?

A. I wrote it in my journal.

[86] Questioned about this earlier evidence, M.R. said that she had made a mistake, as she wrote in her journal when she was aged 15 so she had “started remembering way before”. In further explanation, M.R. testified, “I always knew but I didn’t start to articulate what had happened until I was old enough to know what happened”. M.R. agreed that sex education classes began for her in middle school. She has no recall of “good touch/bad touch” education from any source. To the complainant’s recall, the focus of her high school sex education was biological in nature including safe sex.

[87] M.R. agreed in cross-examination that, based on conversations with her mother after June 2012, she knew that A.R. did not like the accused. In M.R.’s view, this did not influence how she viewed the accused. In re-examination, M.R. stated that her mother’s dislike of the accused first began at the point of the October 2009 separation.

[88] According to M.R.’s evidence, after she moved out, the accused tried to contact her. She was still angry with him. Before hanging up the phone, she told him that she no longer wanted to speak to him. The accused testified that he tried unsuccessfully to make contact with M.R. by phone and email.

[89] While in high school, M.R. disclosed to no one the sexual touching which had occurred in 2007. Asked in-chief whether, by June of 2012, her feeling had changed in any way about the sexual touchings with the accused about five years earlier, M.R. stated that she “started to acknowledge that this was something that actually happened” to her instead of denying it. She felt depressed and, since age 15, had felt angry with the accused and herself. She blamed herself for what happened thinking back that it had been something in her control and that she may have been able to stop it.

[90] In cross-examination, the complainant rejected the suggestion that her anger toward the accused was solely because he withdrew from her life and not because of the sexual molestation.

[91] M.R. recalled that in 2012, only a few months after moving out of the accused’s home, she was in Value Village shopping when P.A. came running toward her. M.R. then saw the accused. They spoke only briefly on this occasion.

[92] On M.R.’s evidence, the accused subsequently emailed her when his son, D., was born. She did not respond to this communication.

Custody of P.A.

[93] The accused testified that his contact with A.R. after they separated was only by email and limited to the subject of P.A. going back and forth. There was considerable tension between himself and A.R. The accused testified that, after June 2012, “We just didn’t talk or have contact, just by email and only relating to the drop offs and pickups of P.A.” – “We weren’t on talking terms”. The accused also testified in cross-examination that between June 2012 and his arrest in 2014, A.R. “mentioned numerous times” wanting P.A. to live with her on a full-time basis. In the beginning it was more “casual” – it then became more aggressive and threatening in “just the way she said it” and her “demeanour”. He wanted to see P.A.. He told A.R. that, but when she kept “asking” him about it, he became “silent about it”. He thought A.R. might take the matter to court. The accused agreed in his evidence that A.R. took no steps in court to secure sole custody until after he was arrested.

[94] When Crown counsel referred the accused to his videotaped statement in which he stated both that he and A.R. were, in May 2014, getting along “really good” although communicating only by email not by phone or in person, the accused stated that he was being optimistic and finding the good in a bad situation. The accused agreed that when the police officer asked him if A.R. wanted “anything changed with access” or “whether it was pretty normal, nothing court-wise or anything like that?”, he responded, “No, I don’t think so”.

[95] Asked at trial about her relationship with the accused between October 2009 and May 2014, A.R. stated that it “was up and down through dealings”.

The First Disclosure

[96] M.R. graduated from high school in June 2013 after residing with her mother for the prior year. In September 2013, the complainant moved away to university leaving her personal journal at home. On M.R.’s evidence, her first disclosure of being sexually molested was when she spoke to two of her closest friends in the city where she was attending university. In the circumstances, she felt safe enough to talk to them, albeit without details, about what had occurred.

The Journal Entry

[97] While M.R. was away at university, A.R. found M.R.’s journal in a bag in the closet of M.R.’s room. A.R. looked through the journal. On A.R.’s evidence, she was disturbed on seeing a poem describing M.R. being molested. M.R. was due back from university within a couple of days.

[98] M.R. informed the court that from the age of 13 or 14, she kept a personal journal in which she drew pictures and wrote stories and recorded her “personal thoughts”. M.R. identified a copy of a page of printing she authored in her private journal in which she had described her feelings in the creative form of writing of a poem:

How do I escape my own memories?

The demons that I’ve tried so hard to hide are trying to break free

They press up against my chest and crack my ribcage

Spilling out into my mind and invading my thoughts

I SHOULD’VE KNOW BETTER

How can I write something beautiful when I am anything but?

How do I stop these voices from haunting me like shadowy spirits whispering in my ear

And the worst part? I can’t tell anyone

I can’t tell anyone that I was molested by the person I trusted most.

The burden of a secret weighs down on me and I feel like I’m being buried alive.

As loud as I may scream, nobody can hear me – not even the crows perched upon my gravestone.

And here I lay alone in my casket with only my demons to keep me company.

[99] The page (Exhibit #2) was undated and unnumbered. M.R. testified that her best estimate is that she wrote the text, about what the accused did to her, when she was around 15 years of age as “an emotional outlet” during her depression for which she had not otherwise sought help. The text, “I SHOULD’VE KNOWN BETTER”, was in larger font because, according to the witness, she was angry at herself believing she had been at fault. As of the point of this writing in her journal, M.R. had spoken to no one about the events of the summer of 2007.

[100] Asked about the meaning of the text, “I can’t tell anyone that I was molested by the person I trusted most”, the complainant stated that this was her state of mind as she felt ashamed and embarrassed and as though it had been her fault.

[101] In her testimony, the complainant provided this evidence:

Q. And you say it’s “by the person I trusted most”?

A. That’s correct.

Q. So when you wrote this down, you’re saying this is about G.A.?

A. That’s correct.

Q. And that was the person in your life that you trusted most?

A. That’s correct.

[102] In cross-examination, M.R. was referred to this passage from her police statement:

… for like, the next few years. And then around – when I was 16, it started coming back. And then that’s when I started writing everything down that I remembered, and I like, really started beating myself about it – up about it saying like, I should’ve known better. ‘Cause, uh, it’s not like I didn’t know what’s going on, but I don’t know. It just made it seem like it was normal and now I realize like, how fucked-up it was. Um, yeah, so, I – I don’t know what else to say.

The complainant agreed that she had told the truth to the police.

[103] A.R. testified that when her daughter was back from university, and without specific reference to the poem, and without stating anyone’s name, on May 12, 2014, she asked M.R. if she had ever been molested. When M.R. said “Yes”, A.R. asked, “By whom?”. To A.R.’s recall, the reply was, “You know who, G.A.”. When she asked her daughter whether there had been intercourse, M.R. responded no, she didn’t think so. M.R. was upset and crying. A.R. testified that when she asked whether there was under-clothing touching, M.R. stated that that had been the case. In the witness’ view, her daughter did not want to give details.

[104] The complainant informed the court that in a return visit in 2014 from university, her mother sat her down on the night of May 12, 2014, to talk. A.R.’s husband, R., was also present. When A.R. asked if “G.A.” had ever done anything to her, M.R. replied, “yes”. The complainant repeated this evidence in cross-examination before voicing a self-correction that her mother first asked whether “anyone” had touched her without mentioning G.A.. M.R. testified that when her mother disclosed that she had read the journal, A.R. said that M.R. need not tell her any details. She did not relate many details to her mother. To M.R.’s recall, they both became really upset, and on the same or the following day, they decided to go to the police – “it was the right thing to do”. According to M.R., they wanted to keep P.A. safe from the accused. A.R. testified that the police were contacted to protect P.A. and for justice for M.R.

After M.R.’s Police Interview

[105] M.R.’s journal was provided to the police by A.R. M.R.’s videotaped statement to the police was given on May 13, 2014.

[106] M.R. testified that after speaking with the police, she did not discuss “any of the details with her mother”. She knew, before May 2014, that A.R. was interested in having P.A. on a full-time basis. Discussions about Family Court intervention in this regard, occurred only after May 13, 2014. M.R. became aware that her mother filed legal papers in Family Court immediately after May 13 seeking sole custody of P.A.. M.R. testified that she did not read these legal documents. In her evidence, A.R. acknowledged filing this application on May 14, 2014, alleging a history of emotional and physical abuse by the accused, as well as disclosing the criminal charges faced by the accused as of May 13, 2014.

[107] The accused was arrested and provided a videotaped statement to the police on May 13, 2014.

[108] The accused testified that after he was charged, A.R. brought an emergency motion in Family Court for sole custody of P.A.. Eventually, he was granted supervised access to the child.

[109] In her August 29, 2014 email to the investigating officer, M.R. included this information:

Once when I was 7, in an effort to punish me for something he made me strip down to my underwear and stand outside in the snow for 5-10 minutes.

At trial, the complainant agreed that her mother had suggested that this was information the police should know. Beyond recalling the incident occurring at night, M.R. has no recall of other details about this incident. In her evidence, A.R. recalled this incident occurring after June 2006. M.R. rejected the suggestion in cross-examination that A.R. and her agreed to have the information forwarded in order to make the accused look like a “barbarian”. In his testimony, the accused denied ever punishing M.R. by having her stand out in the cold.

[110] In a November 10, 2014 email to the investigating officer, M.R. forwarded a copy of the accused’s Reply in the Family Court proceeding at her mother’s request. The complainant is confident she did not read the attachment. The email reads:

After my mom learned what happened to me, she went to family court to file an application for custody of my little sister P.A.. I’m forwarding you G.A.’s reply regarding the sexual abuse charges.

G.A.’s claim is that my mom fabricated all the allegations and it was her who had him charged because she had a late miscarriage and lost her baby last august 2013 and she was resentful towards G.A. and his new family.

If you need any other documents from my mom’s case, let me know.

[111] M.R. crafted the second paragraph of the email based on her mother’s oral summary of the Reply’s contents. She did not want to read that document because “it was triggering” for her. A.R. testified that she gave M.R. a copy of the answer filed by the accused in the custody proceedings. The witness has no recall of discussions she had with M.R. about the Family Court proceedings.

[112] M.R. testified that since the September 9, 2015 preliminary inquiry, she has only spoken to her mother less than five times about this matter and only about the criminal process coming up. M.R. also learned that the Family Court had limited the accused’s access to P.A. to a supervised access arrangement in part based on the complainant’s criminal allegations against the accused.

POSITIONS OF THE PARTIES

The Prosecution

[113] Ms. Prihar submitted that the Crown has established guilt beyond a reasonable doubt. By way of non-inclusive summary, the Crown’s position is as follows:

(1) the accused began a parenting role with M.R. before she was 10 years of age

(2) the accused was controlling in his relationship with A.R. and took active steps to increase his closeness to M.R. and to diminish the complainant’s closeness to her mother – the relationship between A.R. and the accused was not close or peaceful

(3) the accused began to groom M.R. toward physical touching and sexual subject matter through the Slugs game and video viewing of young girls

(4) when M.R. was 11 years of age, and closest to the accused, he sexually assaulted her when her mother was not present – he normalized the activities with the child in particular through integration of sexual touching into child-oriented games

(5) the accused self-corrected giving into the temptation to sexually molest his stepdaughter

(6) M.R. came to believe that what had been done to her was not right but was uncertain and made an effort to suppress memories – for reasons explained by M.R., she remained with the accused after her mother left the house

(7) at age 15 or 16, in her own way, M.R. recorded in her personal journal the event of being sexually abused

(8) unexpected discovery of the journal entry led to disclosure to the police of the sexual assault.

[114] It was submitted that the accused’s evidence on several issues ought to be rejected as unbelievable including on the ultimate issue of the commission of the alleged sexual assault.

[115] Ms. Prihar noted what were submitted to be a number of inconsistencies, notably between the accused’s police statement and his trial evidence. This included the age of the complainant when the Slugs game was played, the degree to which he was controlling in his relationship with A.R., the point in time when the accused began parenting/disciplinary roles respecting M.R., the complainant’s age when he advised her about not having a boyfriend, whether sexual-content video material was ever viewed with M.R., whether his relationship with A.R. from 2009 to 2014 was good or bad, and whether by May 13, 2014 there were ongoing child access issues relating to P.A..

[116] Crown counsel submitted that the accused’s explanations for conflicts in his answers over time were unpersuasive. It was argued that responses often reflected efforts to minimize opportunity or to distance himself from realities of actual influence, control and grooming.

[117] It was argued that the accused’s evidence relating to the open state of the bedroom doors in the summer of 2007 was unbelievable and contrary to common sense, in particular considering the game-playing on the upper floor after A.R. was asleep. Further, the accused’s characterization of the happy nature of the household in that summer overshot the true state of affairs.

[118] It was submitted that the accused was unable to explain clearly or consistently the physical limits of the Slugs or the Would You Rather games played with M.R.

[119] Crown counsel described M.R.’s evidence as credible and reliable with her testimony thoughtfully and carefully delivered and without embellishment or vindictiveness. While the complainant, an intelligent and articulate individual, may have presented as a witness with flat affect, aspects of her testimony were emotional.

[120] There were no significant inconsistencies in M.R.’s evidence – certainly none touching on the core account of her allegations of sexual molestation.

[121] It was submitted that M.R. always retained memory of what happened to her. While she attempted to suppress memories of the touching, she was unable to – she reduced her memory to writing in her journal.

[122] It was observed that the complainant was able to readily acknowledge lack of recall or detail. These memory deficits were hardly surprising given that the trial took place over a decade after the alleged sexual assault.

[123] Despite the absence of certain details, M.R. described three separate episodes of sexual abuse including the room location in the house and the type of touching. M.R. was able to describe the odour and taste experience as a child in the bedroom touching, as well as the fact that the accused was circumcised.

[124] It was submitted that there was no inappropriate collusion between M.R. and her mother. The disclosure of sexual abuse was accidental with the discovery of M.R.’s journal. The issue of a Family Court order for sole custody of P.A. only arose after the accused was charged. There is no substance to the suggestion that M.R.’s account was falsely designed to advance her mother’s claim of years’ duration to having P.A. full time and/or as some form of reprisal by M.R. against the accused for kicking her out of his house and life – the disclosure was in 2014 not 2009 or 2012.

The Defence

[125] Mr. Neuberger submitted that the prosecution case fell short of proof beyond a reasonable doubt. By way of overview,

(1) prior to June 2006, when the accused was dating A.R., seeing her only once or twice a week without staying overnight, he assumed no parental influence over M.R. and made no efforts to drive a wedge between mother and daughter

(2) after June 2006, while the relationship between A.R. and the accused may have had its ups and downs, it was not the dark and unhappy household portrayed by A.R. and to a lesser extent by M.R. – there were mother/daughter activities, as a family of three there were activities, the summer of 2007 was exciting with the anticipated birth of a child, etc.

(3) the evidence never clearly explained why a close and loving and bonded relationship between M.R. and A.R. became, as they testified, one of some distance between them – there was no strained or fractured relationship between them

(4) as a child, M.R. may have felt closer to the accused who had some childlike aspects to his personality – there was no grooming – they horsed around, play-wrestled and played Slugs – all fun games, at times in A.R.’s presence, and without sexual engagement

(5) as testimonially denied by the accused, he did not sexually assault his stepdaughter – he loved her, encouraged her education, and acted at all times appropriately as a father

(6) the sexually assaultive behaviour described by M.R. was circumstantially unlikely – A.R. was off work during the summers, and bedroom doors were left open on the upper floor

(7) the truthfulness of M.R.’s account is circumstantially unlikely for other reasons including: there was no indication of threats or promises or encouragement to keep a secret on the part of the accused, there was no timely disclosure, M.R. remained living with the accused, and M.R. made no complaint to CAS in 2011 while maintaining that she was safe

(8) A.R. observed nothing inappropriate between the accused and M.R. and no change in her daughter’s behaviour between 2007 and 2009

(9) A.R. exerted a degree of influence over M.R. in A.R.’s pursuit of sole custody of P.A., with sexual allegations against the accused becoming significant ammunition for A.R.’s Family Court application.

[126] The defence submitted that Mr. G.A. testified well and credibly and earnestly tried to answer all questions. Aspects of cross-examination on his police statement exceeded admissible bounds. The nature and form of the accused’s responses in his police interview and in this trial must be viewed in light of his autism/Asperger’s condition. The accused’s denial of sexually assaulting M.R. should be accepted or minimally raise a reasonable doubt.

[127] It was submitted that were no material inconsistencies in the accused’s evidence detracting from the witness’ credibility.

[128] The defence argued that A.R.’s testimony casting the accused as an abusive and controlling partner, at times meting out unusual discipline to her daughter, was unbelievable – if this was the case, why would A.R. have moved in with the accused in 2006, or have left M.R. with the accused in 2009 when she separated from the accused?

[129] Mr. Neuberger summarized the defence position respecting M.R.’s evidence in part in these terms:

It is essentially the defence position that [M.R.] has either mistakenly accused Mr. G.A. of allegations of sexual abuse that do not involve him as the perpetrator or, for one reason or another, has created a belief of sexual abuse that involve Mr. G.A. that is not true.

[130] Counsel noted inconsistencies in M.R.’s account, for example, uncertainty in speaking to the police in 2014 as to whether the alleged sexual touching occurred in 2006 or 2007, the point in time when M.R.’s memories began to return and come together, when her Exhibit #2 journal entry was made, and whether A.R.’s opening question to her on May 12, 2014 expressly asked if “G.A.” had assaulted her.

[131] As to the facts of the alleged sexual molestation, there were few details. As to the alleged livingroom event, M.R. could not give the time of day or day of the week, or the whereabouts of her mother. As to the bedroom allegation, M.R. described the same nightly routine on the upper floor of the small family house with open bedroom doors with no report of exactly what was said. The complainant’s testimonial details of odour and taste given years after 2007 could have been the product of after-acquired education. The accused provided an explanation of how M.R. came to see him naked, briefly and accidentally. As to the alleged workshop assault, the door of that room could not be closed and A.R. could have come downstairs at any time. Counsel submitted that while M.R. may have provided enough detail for conviction, there was little information upon which to effectively cross-examine.

[132] The defence submitted that the reported process of M.R.’s memory necessitates caution in terms of forgotten memory, piecemeal recovery of memory, blurring and reconstruction, and lack of detail or corroboration.

[133] The complainant’s lack of report of abuse for years (“There is an abundance of opportunity to disclose”), her actions of remaining with the accused in a return to normalcy, and her anger toward the accused in June 2012 (when she moved out of his house) based on rejection not sexual abuse, are all telling as to the believability of M.R.’s evidence. As to some of these submissions, counsel stated:

Are we at the point now that any behaviour is acceptable or common sense or doesn’t detract from credibility or reliability because the person is allegedly abused? Is that where we are? In my submission, no.

[134] As to the journal entry (Exhibit #2), the page is undated. It is unknown where in the diary the page was situated. The accused is not named. M.R. did not testify at trial that the accused was the person she most trusted. There are no details of the abuse. Counsel submitted that:

I’m not submitting that there was a grand scheme prior to the journal being spoken about by the two, but something being formulated afterward that in my respectful submission solidifies certain things in the mind of [M.R.] and there is essentially a marshalling along of these allegations and the sole custody proceeding which both know is at the core of that allegation and in that way there is some form of motive. But in my respectful submission, the absence of motive to fabricate does not equate with a lack of fabrication nor does it solve credibility/reliability issues.

[135] The defence submitted that, on the evidence, the court could well take the view that while A.R. and M.R. had not colluded, M.R. was coopted into A.R.’s narrative or view of the accused “reinforcing [M.R.’s] belief” that the accused “committed abuse on her”. The Family Court documents and A.R.’s ongoing desire for sole custody of P.A. “only served to reinforce in the mind of [M.R.] that Mr. G.A. is the perpetrator of this alleged abuse”. Put differently:

I do not wish to specifically ascribe malicious intent on her [M.R.’s] part, but I do take the position that we know as of October 2009 [A.R.] is not very fond of my client and I will submit that Your honour can accept that on a number of occasions subsequent to their separation, she had suggested having P.A. live with her full time. I will submit to you that if you carefully review [M.R.]’s] cross-examination, she does admit knowing prior to the allegations that there were instances that her mother had expressed wanting P.A. on a primary basis and once this discussion occurs on May 12, 2014, it’s my position that [A.R.] was only too happy to jump on board to have Mr. G.A. charged and to run off and seek an emergency sole custody order with the central feature being the sexual assault allegations.

ANALYSIS

General Principles

[136] "Credibility is a central issue in many criminal cases": R. v. Osolin, 1993 CanLII 54 (SCC), [1993] 4 S.C.R. 595, at para. 55. The court may believe all, none or some of a witness' evidence: R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at para. 65; R. v. Francois, 1994 CanLII 52 (SCC), [1994] 2 S.C.R. 827, at para. 14; D.R. et al. v. The Queen (1996), 1996 CanLII 207 (SCC), 107 C.C.C. (3d) 289 (S.C.C.) per L'Heureux-Dubé J. (in dissent in the result), at p. 318; R. v. M.R., 2010 ONCA 285, at para. 6; R. v. Doell, 2016 ONCA 350, at para. 7. A person may be selectively dishonest, for example in lying to parents, but capable of belief on other matters: R. v. F.L., 2017 ONCA 472, at paras. 12-17. Accordingly, a trier of fact is entitled to accept parts of a witness' evidence and reject other parts, and similarly, the trier can accord different weight to different parts of the evidence that the trier of fact has accepted: R. v. B.H., 2015 ONCA 642, at para. 22; R. v. Howe, 2005 CanLII 253 (ON CA), [2005] O.J. No. 39 (C.A.), at para. 44.

[137] In some prosecutions, whether or not the credibility of a complainant is in issue, her or his reliability, in terms of the accuracy of the witness’ evidence, may be a live issue: R. v. C.(H.), 2009 ONCA 56, at para. 41.

[138] The vast majority of sexual assault prosecutions turn on the evidence of the two principals – the complainant and the accused: R. v. M.(S.C.), [2007] O.J. No. 1624 (C.A.), at para. 3. However, a verdict of guilty may, in appropriate cases, be safely founded on the evidence of a single witness, regardless of the offence or offences charged: The Queen v. G.(A.), [2001] 1 S.C.R. 439, at pp. 453-4; Vetrovec v. The Queen (1982), 1982 CanLII 20 (SCC), 67 C.C.C. (2d) 1 (S.C.C.), at p. 8.

[139] A determination of guilt or innocence must not, however, devolve into a mere credibility contest between two witnesses or a bipolar choice between competing prosecution and defence evidence. Such an approach erodes the operation of the presumption of innocence and the assigned standard of persuasion of proof beyond a reasonable doubt: W.(D.) v. The Queen (1991), 1991 CanLII 93 (SCC), 63 C.C.C. (3d) 397 (S.C.C.), at p. 409; Avetsyan v. The Queen (2000), 2000 SCC 56, 149 C.C.C. (3d) 77 (S.C.C.), at pp. 85-87. However, as recognized in R. v. Chittick, 2004 NSCA 135, [2004] N.S.J. No. 432 (C.A.), at paras. 23-25:

It is not an error for a judge to make a finding of credibility as between the complainant and the accused, particularly where they provide the bulk of the evidence as to what happened. This is a necessary part of the judge's duty. While it is not the end of the journey of decision-making, it is a necessary intermediate step along the way. Indeed, the first two elements in a proper jury instruction on this issue as set out in W.(D.) assume that the jury should decide whether or not they believe the exculpatory evidence of the accused. Those first two steps are:

First, if you believe the evidence of the accused, obviously you must acquit.

Secondly, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.

Accordingly, it was not an error for the trial judge here to assess the credibility of the accused in relation to that of the complainant.

An error under the W.(D.) principle is committed where the judge treats the matter as concluded once this assessment of credibility has been completed. To do so misses the third and critical step in the application of the burden of proof. As described in W.(D.), that last crucial step is as follows:

Thirdly, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

There is no legal requirement to apply W.D. principles in any particular order provided that a trier of fact does “not lose sight of the presumption of innocence and the [Crown’s] burden of proof”: R. v. Stretch, 2017 ABCA 298, at para. 3.

[140] It must be emphasized that mere disbelief of the accused's evidence does not satisfy the burden of persuasion upon the Crown: see W.(D.), at p. 409. In other words, to use disbelief of the accused's evidence as positive proof of guilt by moving directly from disbelief to a finding of guilt constitutes error: R. v. Dore (2004), 2004 CanLII 32078 (ON CA), 189 C.C.C. (3d) 526 (Ont. C.A.), at p. 527 (leave to appeal refused, [2004] S.C.C.A. No. 517); R. v. H.(S.), [2001] O.J. No. 118 (C.A.), at paras. 4-6. The court must be satisfied on the totality of the evidence that there is no reasonable doubt as to the accused's guilt. The obligation of W.(D.) analysis was summarized in R. v. Minuskin (2004), 2003 CanLII 11604 (ON CA), 181 C.C.C. (3d) 542 (Ont. C.A.), at p. 550:

It is important to stress that trial judges in a judge alone trial do not need to slavishly adhere to this formula. This suggested instruction was intended as assistance to a jury and a trial judge does not commit an error because he or she fails to use this precise form of words. Nor is the trial judge expected to approach the evidence in any particular chronology, for example, looking first at the accused's evidence and then at the rest of the evidence. It should, however, be clear from an examination of the reasons that at the end of the day the trial judge has had regard for the basic principles underlying the W. (D.) instruction. One of those principles is that it is not necessary for the trier of fact to believe or accept the defence evidence for there to be a reasonable doubt. Even if the trier of fact believes the prosecution witnesses, the evidence as a whole may leave the trier of fact with a reasonable doubt. As it was put by Cory J. in W. (D.) at p. 757, the trier of fact must acquit even if he or she does not believe the accused's evidence because they have a reasonable doubt as to the accused's guilt "after considering the accused's evidence in the context of the evidence as a whole".

See also R. v. Turmel, [2004] B.C.J. No. 2265 (C.A.), at paras. 9-17. However, “[a]n 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”: R. v. J.J.R.D. (2006), 2006 CanLII 40088 (ON CA), 215 C.C.C. (3d) 252 (Ont. C.A.), at paras. 47-54 (appln for leave to appeal refused [2017] S.C.C.A. No. 69); R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at para. 66; R. v. T.M., 2014 ONCA 854, at para. 68 (leave to appeal refused [2015] S.C.C.A. No. 110).

[141] The court must be satisfied beyond a reasonable doubt on the issue of credibility and reliability where the case turns on the evidence of two conflicting witnesses: R. v. Selles (1997), 1997 CanLII 1150 (ON CA), 101 O.A.C. 193 (C.A.), at pp. 207-8; M.(N.) v. The Queen, [1994] O.J. No. 1715 (C.A.), at para. 1 (affirmed 1995 CanLII 95 (SCC), [1995] 2 S.C.R. 415). Where there are significant inconsistencies or contradictions within a principal Crown witness' testimony, or when considered against conflicting evidence in the case, the trier-of-fact must carefully assess the evidence before concluding that guilt has been established: R. v. S.W. (1994), 1994 CanLII 7208 (ON CA), 18 O.R. (3d) 509 (C.A.), at p. 517 (leave to appeal to S.C.C. refused, [1994] 2 S.C.R. x); R. v. Oziel, [1997] O.J. No. 1185 (C.A.), at paras. 8, 9; R. v. Norman (1993), 1993 CanLII 3387 (ON CA), 87 C.C.C. (3d) 153 (Ont. C.A.), at pp. 172-4. Where a trier of fact accepts a complainant’s explanation for inconsistencies in her or his evidence, “the inconsistencies los[e] their power to raise a reasonable doubt with respect to the accused’s guilt”: Francois, at para. 21.

[142] Assessment of a witness' credibility includes evaluation of his or her demeanour as testimony is provided to the trier(s) of fact in the courtroom - this includes "non-verbal cues" as well as "body language, eyes, tone of voice, and the manner" of speaking: R. v. N.S. (2010), 2010 ONCA 670, 102 O.R. (3d) 161 (C.A.), at paras. 55, 57, affd 2012 SCC 72, [2012] 3 S.C.R. 726. However, a trier's subjective perception of demeanour can be a notoriously unreliable predictor of the accuracy of the evidence given by a witness: Law Society of Upper Canada v. Neinstein (2010), 2010 ONCA 193, 99 O.R. (3d) 1 (C.A.), at para. 66; R. v. Smith, 2010 ONCA 229, at para. 11; Taniwha v. The Queen, [2016] NZSC 121, at paras 1, 26-39; R. v. G.G. (1997), 1997 CanLII 1976 (ON CA), 115 C.C.C. (3d) 1 (Ont. C.A.), at pp. 6-8; R. v. P.-P.(S.H.) (2003), 2003 NSCA 53, 176 C.C.C. (3d) 281 (N.S.C.A.), at paras. 28-30; R. v. Levert (2001), 2001 CanLII 8606 (ON CA), 159 C.C.C. (3d) 71 (Ont. C.A.), at pp. 80-2. Demeanour evidence alone cannot sustain a finding of guilt: R. v. K.(A.) (1999), 1999 CanLII 3756 (ON CA), 123 O.A.C. 161 (C.A.), at p. 172.

[143] The fact that a complainant pursues a complaint cannot of course be a piece of evidence bolstering his or her credibility -- otherwise it could have the effect of reversing the onus of proof: R. v. A.(G.R.) (1994), 1994 CanLII 8756 (ON CA), 35 C.R. (4th) 340 (Ont. C.A.), at para. 3; R. v. Islam, [1999] 1 Cr. App. R. 22 (C.A.), at p. 27.

[144] It may be that in the circumstances of a particular case, the defence wishes to raise the issue of delayed complaint as counting against the veracity of the complainant's account of assault. The significance or evidentiary relevance, if any, of the complainant's failure to make such a complaint is contextual and will vary from case to case depending upon the trier of fact's assessment of the evidence relevant to the failure to make a contemporaneous complaint: The Queen v. D.(D.) (2000), 2000 SCC 43, 148 C.C.C. (3d) 41 (S.C.C.), at pp. 64-7; R. v. A.G., 2000 SCC 17, [2000] 1 S.C.R. 439, at paras. 7, 30; R. v. M.(P.S.) (1993), 1992 CanLII 2785 (ON CA), 77 C.C.C. (3d) 402 (Ont. C.A.), at pp. 408-409; see also, R. v. H., [2011] EWCA Crim 2753, at para. 6.

[145] The existence or absence of a motive by the complainant to fabricate is a relevant factor to be considered: The Queen v. K.G.B. (1993), 1993 CanLII 116 (SCC), 79 C.C.C. (3d) 257 (S.C.C.), at p. 300; R. v. Hughes, 2017 ONCA 814, at paras. 4, 6-10; R. v. Greer, 2009 ONCA 505, at para. 5; R. v. Prasad, [2007] A.J. No. 139 (C.A.), at paras. 2-8; K.(A.), at p. 173; R. v. Jackson, [1995] O.J. No. 2471 (C.A.), at paras. 4, 5. I make this observation, sensitive to the fact that the burden of production and persuasion is upon the prosecution and that an accused need not prove a motive to fabricate on the part of a principal Crown witness. Evidence of a witness' motive to lie may be relevant as well to the accused qua witness: R. v. Laboucan, 2010 SCC 12, at paras. 12, 15, 22; R. v. Murray (1997), 1997 CanLII 1090 (ON CA), 99 O.A.C. 103 (C.A.), at paras. 11-14.

Specific Legal Issues

expert evidence

[146] In an oral ruling on October 20, 2017, the court excluded the expert evidence of a proposed Crown witness – Dr. Louise Sas, a psychologist. The witness’ proposed areas of opinion evidence were considered to be legally unnecessary largely on account of the subject matter of her proposed evidence, as described at para. 154 below, being matters of common sense or contextual judicial notice properly within the working knowledge of judges instructing juries or trying cases alone.

cross-examination of accused

[147] Cross-examination is the ultimate means of demonstrating truth and testing witness veracity – such questioning “is fundamental to providing a fair trial to an accused”: Osolin, at p. 663. Cross-examination of prosecution witnesses is a constitutional right protected by ss. 7 and 11(d) of the Charter: R. v. John, 2017 ONCA 622, at para. 52.

[148] The right of cross-examination is not, however, absolute. “A specific incident of the trial judge’s trial management power is the ability to control cross-examinations”: John, at para. 52.

[149] Cross-examination must of course confine itself within “proper limits of relevancy and probative value”: R. v. Ertmoed (2005), 2006 BCCA 365, 211 C.C.C. (3d) 49 (B.C.C.A.), at p. 71; R. v. Lyttle (2004), 2004 SCC 5, 180 C.C.C. (3d) 476 (S.C.C.), at paras. 44-45 (counsel bound “by the rules of relevancy”).

[150] “[W]here credibility is the central issue at trial, the importance of cross-examination becomes even more critical”: John, at para. 53.

[151] In the present case, the accused was subjected to extensive cross-examination upon aspects of his statement to the police, conceded by the defence to have been a voluntary statement. The prosecution chose not to introduce the accused’s statement during its own case. It became apparent at a point that Crown counsel was of the view that there were effectively no limits, beyond relevance, to her cross-examination of the accused using his prior out-of-court statement. Put differently, counsel intended to use excerpts of the police statement for substantive purposes such as how he answered certain police inquiries, potentially after-the-fact behaviour, and, exploration of subject matter not inconsistent but supplementary to already-provided oral testimony.

[152] Where the prosecution elects not to introduce an accused’s statement in its case, as a general rule, its forensic use of the statement, where the accused testifies, it limited to impeachment by challenging oral testimony with material contradiction in the statement: see R. v. Khan, 2011 BCCA 382, at paras. 93-102.

[153] Although no objection was raised by the defence during the relevant cross-examination, albeit with some reference in closing submissions, the court has only considered prosecution questioning of the accused relating to those passages of his police statement expressly referred to in these reasons.

avoidance of stereotypical thinking

[154] Sensitivity to impermissible stereotyping is critical in sexual crime trials:

(1) there is no inviolable rule on how people who are actually victims of trauma such as a sexual assault will behave after being abused: D.D., at para. 65; R. v. M.M., [2011] EWCA Crim 1291, at paras. 38-9; Crown Court Bench Book ‘Directing the Jury’, UK Judicial Studies Board, March 2010, Ch. 17, ‘The Trial of Sexual Offences’, at p. 353

(2) put differently, determination of credibility in sexual assault prosecutions “should be decided without resort to folk tales about how abuse victims are expected by people who have never suffered abuse to react to the trauma”: R. v. Shearing, 2002 SCC 58, [2002] 3 S.C.R. 33, at para. 121; R. v. Find, 2001 SCC 32, [2001] 1 S.C.R. 863, at paras. 101-103

(3) as noted above at para. 144, and cognizant that “[c]hild sexual abuse has been described as the perfect crime” given the innate power imbalance between perpetrator and victim (R. v. L.(D.O.), 1993 CanLII 46 (SCC), [1993] 4 S.C.R. 419, at para. 31), avoidance of preconceived notions and misleading stereotypical profiling means that there exists no presumptive assumption as to when or to whom a survivor of sexual abuse will disclose their victimization (M.M., at paras. 38-9), nor with respect to incremental disclosure: R. v. D.P., 2017 ONCA 263, at paras. 28-31; R. v. K.M., 2017 ONCA 457, at para. 4

(4) similarly, there should be no presumptive diminishment of the credibility of a complainant’s evidence because of an ongoing relationship or contact with an alleged abuser – the relevance of such behaviour falls to be assessed on the particular circumstances of each case including the complainant’s explanation for her or his actions: R. v. Alipoor, 2017 QCCA 636, at paras. 39-42; R. v. Alie, 2017 QCCA 18, at paras. 7-9, 11-12; R. v. C.A.M., 2017 MBCA 70, at paras. 25, 45-53; R. v. M.P.S., 2017 BCCA 231, at paras. 5-6, 9; R. v. Vassell, 2016 ONCA 785, at paras. 10-13; R. v. Chapman, [2016] EWCA Crim 1631, at paras. 8-10; R. v. A.R.J.D., 2017 ABCA 237, at paras. 4-9, 29-32, 39-48, 47-8, 61, 64-71 (appeal as of right filed [2017] S.C.C.A. No. 306)

(5) while, in historical sexual assault prosecutions, an adult complainant’s credibility must be assessed by her mental development, understanding and ability to communicate, and recognizing that “childhood and the passage of time may well excuse memory gaps or hazy recollection” (R. v. R.P., 2012 SCC 22, [2012] 1 S.C.R. 746, at para. 30), it was observed in R. v. W.(R.), 1992 CanLII 56 (SCC), [1992] 2 S.C.R. 122, at para. 26, that:

In general, where an adult is testifying as to events which occurred when she was a child, her credibility should be assessed according to criteria applicable to her as an adult witness. Yet 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.

(6) as a general rule, children will have a better and more accurate recollection of events shortly after they occurred then they will some weeks, months or years later: R. v. F. (C.C.) (1997), 1997 CanLII 306 (SCC), 120 C.C.C. (3d) 225 (S.C.C.), at pp. 233-234.

diaries/private journals

[155] It is not uncommon in sexual assault prosecutions for an excerpt from a complainant’s diary or private journal to come before the trier(s) of fact in some way, for example: R. v. B.D., 2016 ONCA 673, at paras. 48-51, 57; J.J.R.D., at paras. 3, 11-14, 19, 25, 49-54; R. v. Preston, USCA 9th Cir., Oct. 17/17 (No. 15-10521), at p. 5.

[156] Depending upon circumstances, respecting a complainant’s testimony there could be a “credibility enhancing effect” of a diary: J.J.R.D., at para. 54.

[157] Discussion of diary entries usually implicates consideration of admissibility rules respecting prior consistent statements:

(1) prior consistent statements are presumptively inadmissible

(2) in some circumstances, such a statement may be admissible, although not for the truth of its contents:

a. to rebut an allegation of recent fabrication

b. as a necessary part of the narrative particularly for the limited contextual purpose of helping the trier of fact understand how the complainant’s story came to be disclosed which may, in some cases, additionally assist the trier in the assessment of her or his credibility

See: R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788, at paras. 36-39; R. v. Khan, 2017 ONCA 114, at para. 44 (appln for leave to appeal refused [2017] S.C.C.A. No. 139); R. v. Laing, 2017 NSCA 69, at paras. 74, 78-86; R. v. Warren, 2016 ONCA 104, at paras. 11-16, 22-23, 30; R. v. Luceno, 2015 ONCA 759, at paras. 50-54, 65; R. v. R.M., 2014 ONCA 785, at paras. 61-79; R. v. M.C., 2014 ONCA 611, at paras. 58-66; R. v. C.B., 2008 ONCA 486, at paras. 37-50; R. v. Curto, 2008 ONCA 161, at paras. 31-37

(3) a prior consistent statement cannot however be used as a form of self-corroboration in the sense of credibility enhancement based on repetition

R. v. G.C., 2006 CanLII 18984 (ON CA), [2006] O.J. No. 2245 (C.A.), at paras. 17-22; Khan (OCA), at paras. 39, 41, 43-44; C.B., at para. 46; Luceno, at para. 53; Laing, at para. 80.

Discussion

[158] In this sexual crime judge-alone trial, it is important that:

(1) W.D. principles be honoured in assessment of the evidence in the context of the burden of proof assigned the prosecution

(2) even-handed scrutiny of the principal witnesses’ testimony be maintained, and in particular, avoidance of unreasonable or unprincipled forgiveness of deficits in a complainant’s testimony

(3) the assumption, popular in some circles that the laying of a sexual assault charge and in-court testimony by a complainant should necessarily result in conviction, be rejected.

[159] After considered review of the evidence, there is no reasonable doubt respecting the guilt of the accused. The court accepts the complainant’s evidence, rejects the accused’s denial of sexual abuse, and is certain that, on the whole of the evidentiary record, there is no reasonable doubt that the accused sexually assaulted his stepdaughter.

[160] The complainant presented as a careful witness endeavouring to tell the truth as she recalled it over a decade after the sexual abuse she described. There was no hint of overreach, exaggeration or false enhancement of answers to questions, or of adversarial combativeness during cross-examination. Explanations for inconsistencies are accepted. While M.R. exhibited flat affect while testifying, she was in a courtroom behind a screen in the witness box and well under control apart from a couple of points of emotional upset as she provided her evidence.

[161] As a witness, A.R. was an anxious and somewhat difficult witness. She spoke quickly and over the questioner despite judicial admonitions to exercise better control. The witness appeared to have some difficulty understanding straightforward questions. She had some lapses of memory and presented as a somewhat angry person, it seemed with subsisting hostility toward the accused on account of the experience of their relationship and its breakup as well as on account of her acceptance of what M.R. maintains the accused did to her. A.R.’s upset and teariness during her testimony appeared to originate with her feelings of guilt that she failed to protect her daughter from sexual molestation.

[162] The accused presented as an intelligent individual who maintained in his evidence that he was comfortable in the courtroom. The accused testified that he has autism/Asperger’s Syndrome and that he seeks to avoid confrontation. There is no other evidence before the court particularizing the relevance of this condition. The accused appeared as a high-functioning adult. The accused denied sexual abuse of his stepdaughter. That evidence is disbelieved for the reasons set out below.

[163] On the evidence accepted by the court, in his relationship with A.R., the accused exhibited a controlling nature. There were arguments between them from time to time and ups and downs in their short-term common law marriage with cohabitation lasting just over three years. The evidentiary record here permits no conclusion respecting the degree of any emotional or physical abuse by either of the domestic partners.

[164] While I find it likely that the accused belittled A.R. in front of her daughter respecting A.R.’s sexual history, and that he meted out unusual discipline at times to M.R., these matters do not factor into the court’s assessment of the appropriate verdict.

[165] M.R.’s recall of having a loving and bonded relationship with her mother accords with the evidence of the other witnesses. The evidence does not cogently support an active campaign by the accused to drive a wedge between mother and daughter. That said, I accept that as M.R. entered the pre-teens stage, when for the first time there was an adult male in the home, someone who primarily played fun games with her and was laxer about house rules, the complainant’s relationship with A.R. changed, whether described as somewhat distant or a degree less affectionate. There is no evidence to suggest that any such change, while discernible, was much beyond subtle.

[166] M.R.’s trial testimony explaining her uncertainty in speaking to the police in 2014, as to whether the alleged sexual abuse occurred in the summer of 2006 or 2007, was adequately explained by her at trial as she grounded the events in 2007 when the family was fully moved into their residence. A fair summary of the whole of M.R’s evidence is that on a few days in the summer of 2007, as an 11-year-old, she engaged, or was engaged, in sexual touching with her stepfather with whom she was close. Some of the described touching was integrated into game-playing. She was sexually naïve. Her attempt to stop the touching in the bedroom succeeded. After the workshop episode, she was not again inappropriately touched.

[167] Toward the end of that summer and afterward, the youngster felt that perhaps what had occurred was not “right”. There were feelings of embarrassment and co-responsibility. M.R. made efforts to suppress memories of what happened which were largely successful as the touching ceased and the accused continued to act as a normal, loving and fun parent.

[168] Despite some of the complainant’s language, I do not understand M.R.’s evidence of her memory process to have involved recovered or repressed memories or flashbacks or to have similar peculiarities of memory process – see Francois, at para. 22; R. v. C.M., 2015 ONCA 101, at paras. 2, 6; R. v. R.M.M. (1998), 1998 CanLII 1659 (ON CA), 122 C.C.C. (3d) 563 (Ont. C.A.), at para. 10; R. v. B.M. (1998), 1998 CanLII 13326 (ON CA), 42 O.R. (3d) 1 (C.A.), at pp. 22, 29-30. There was no evidence that M.R. was anything other than intelligent and articulate. There was no evidence of involvement in therapy or counselling, drug-taking, habitual lying, or of confusion between reality and fantasy. The complainant’s memories were suppressed and the complainant made no effort for some years to dwell upon, or to memorize frame by frame the activities with her stepfather in the summer of 2007. M.R. “always knew” she had been sexually touched even though, at a “surface level”, she pushed the memories of details away from her day-to-day consciousness. Then, as a teenager, with less denial, the complainant brought a different focus to what had occurred. While M.R. described recall of events returning as a blur, she was able to recount three discreet episodes of sexual touching.

[169] Mr. Neuberger correctly noted that M.R.’s evidence of the sexual touching is devoid of certain details for example what may have been said, state of dress, who removed clothing, duration of touching, and how the described touching ended. In itself, this absence of detail does not necessitate an adverse inference respecting the witness’ credibility or reliability. Eleven years after the summer of 2007, M.R. was testifying as to events said to have been experienced as a youngster at a time in her life when assimilation of detail may have understandably been less important.

[170] The complainant was nevertheless able to inform the court of three episodes of sexual touching – each in a different room of the residence and each varying in the nature of the reported sexual touching. The described abuse is not entirely generic and lacking in detail. M.R. recalled what the accused wore in the livingroom incident and that the workshop lights were off in the final incident. As to the touchings in the accused’s bedroom, the complainant described, in the context of game-playing, a progression from kissing and over-the-clothes touching to significantly more intrusive sexual touching. M.R.’s evidence of odour and salty taste were adult-reported descriptions of the perceptions she secured as an 11-year-old. M.R. accurately testified to the accused being circumcised. The court accepts beyond any doubt, on the whole of the evidence, that her knowledge in this regard came from no other source than seeing the accused’s penis while in his bedroom.

[171] As to the Exhibit #2 journal entry, there was no disagreement that M.R. was the author of this page from her private journal used for creative writing as well as the recording of personal thoughts. While not a detailed summary, the diary entry described the author being molested by the person she most trusted – abuse not disclosed to anyone. It was not M.R.’s intention to share the journal contents with others.

[172] While the journal excerpt is undated and does not name the accused and does not detail the molestation, contrary to the position of the defence, M.R.’s evidence at trial was clear that it was the accused about whom she wrote. There was no evidence of some third party having sexually abused M.R. While the complainant had indicated in the past that the journal entry was written when she was 16, I find that it is more likely, as she stated at trial, that the entry was made at age 15. Regardless of her age, on the evidence accepted by the court, the entry was not fiction, or written in a vengeful or conspiratorial frame of mind, but was a truthful expression of what M.R. had experienced and her state of mind. Despite M.R.’s testimonial equivocation as to whether her mother first questioned her about having been abused while using the accused’s name, I accept the witness’ self-correction, confirmed by A.R.’s account, that the inquiry was open-ended without identifying the accused as the person likely to be responsible. M.R. was upset and crying as she disclosed to her mother being sexually abused.

[173] On the whole of the record here, including M.R.’s explanations for her behaviour, as accepted by the court, no adverse inferences to the witness’ credibility or reliability are reasonably warranted on account of the complainant remaining with the accused from 2009 to 2012, not complaining to CAS in 2011, or on account of her failure to report sexual abuse to her mother and the authorities until 2014.

[174] As to continued contact and association with the accused, the following factors are significant. The accused was M.R.’s stepfather with whom she was close. He played games with her. He was laxer about house rules. There was no repetition of sexual touching after the summer of 2007. Choosing to stay where she had lived from 2006 to 2009, despite the parental separation in October 2009, allowed M.R. to continue at her same school and to maintain contact with school friends and to have some overlapping days with P.A. at the residence.

[175] The precise context of why there was CAS involvement in 2011 was not explored at trial. As well, M.R. was not directly asked why she made no complaint to the caseworker of being sexually abused. Implicit on the evidence here is that for the reasons animating the complainant’s continued residency with the accused after the 2009 separation, she made no disclosure to CAS.

[176] As to the reported course of disclosure, as previously discussed, the complainant made efforts to suppress memories of what occurred in the summer of 2007. As she grew older, and undoubtedly somewhat more worldly, the complainant felt ashamed and experienced feelings of self-blame for what had transpired. In the circumstances, for a teenager in a split family environment, disclosure respecting intra-familial sexual abuse was not considered as an actionable option. In an effort to deal with her emotions, M.R. used her journal as a partial release outlet. There is no reason to disbelieve M.R.’s evidence that she confided in a couple of friends while away at university. The context of disclosure to the police was A.R.’s discovery of the relevant passage in the complainant’s diary.

[177] M.R.’s 2014 disclosure to her mother and the police was temporally unrelated to points of conflict or upset, for example the 2009 separation of the accused and her mother and the commencement of split custody, or to the June 2012 point in time when M.R. left the accused’s residence feeling abandoned and kicked out of his home and life. The complainant’s journal entry of sexual molestation, and her disclosure based on unexpected discovery of that entry, was not based on concoction or a trumped-up effort in 2014 for example to secure A.R.’s full custody of P.A..

[178] The accused was close to the complainant. He had arguments and ups and downs in his relatively brief cohabitation with her mother. There were times where the accused was alone with M.R. The accused and A.R. slept in separate bedrooms.

[179] Against this background context, as said I do not find that the accused followed a course of deliberate grooming of the complainant over a lengthy period of time. No conclusion can be definitively made as to what age-inappropriate video or movies M.R. may have been shown. The Slugs game was as described by M.R. and the accused – an unusual but fun game involving slapping and face-licking, at times played in A.R.’s presence, and, despite the accused’s statement to the police that M.R. may have licked his stomach during Slugs, played without sexual intent or related touchings on the part of the accused. That said, the Slugs game is not without significance to the allegations. The character of the game involved a degree of back-and-forth physical familiarity with one another including licking with the mouth.

[180] In his testimony, the accused acknowledged playing video and Would You Rather games with M.R. in his bedroom at night including after A.R. had gone to sleep. The evidence of M.R. and A.R., accepted by the court, is that in the summer of 2007, at the end of her first trimester or the beginning of the second, A.R. generally went to sleep first at night.

[181] The complainant’s evidence that the accused’s bedroom door was closed when she was alone with the accused is accepted based on her evidence and the common sense and probabilities of the situation. It was a small house. There was, even at a reduced volume, computer noise and conversation. It makes no sense that, with his pregnant partner asleep across the hallway, these games or movies would go on with the bedroom door open.

[182] As to activities at night in the accused’s bedroom, while the complainant gave a coherent account of the Would You Rather and Truth or Dare games, including progression to kissing and over-clothes touching to more intrusive sexual acts, the accused, on the other hand, struggled in his evidence respecting the games. Testifying at trial that there was only a Would You Rather game, in his police statement the accused did not reject there being a “dare” game. While testifying that the Would You Rather game involved no sexual or inappropriate behaviours, the accused related to the police that the game involved “gross stuff or whatever” without being able to personally explain this apparent difference. In describing this game at trial, the accused claimed that while turns were taken back and forth with questioning, it was only M.R. who would mete out the “or” of a physical touching, not him. This made no sense and was presented to this court in a highly unconvincing fashion.

[183] The accused’s explanation as to how his stepdaughter knew he was circumcised was transparently false in presentation and substance. As said, the court accepts M.R.’s evidence that she never saw the accused naked emerging from a shower or a bathroom. Even on the accused’s version, a split-second exposure to a young person at some undescribed distance, leading to her knowledge on this subject is nonsensical.

[184] The accused normalized his actions with the complainant. I accept that M.R. was told, in the context of game-playing, during their progressively intrusive touching that it was right for that time as opposed to the child learning in the future from some random boy at school. Back and forth physical familiarity first existed in Slugs. The Would You Rather game, contrary to the accused’s evidence, also involved mutual touching depending on answers to posed questions. That reciprocal touching escalated as described by M.R. as the accused gave into sexual temptation with the youngster believing that, given their power imbalance, and in the context of gaming, that no threats or promises or secrecy pact were necessary to avoid detection.

[185] The certainty respecting the bedroom sexual abuse assists in confirming the occurrence of the livingroom and workshop sexually assaultive behaviour.

[186] Turning to the subject of the custodial arrangements respecting P.A., A.R. and the accused shared custody and access by informal agreement from the October 2009 separation until execution of a separation agreement a year later. I accept A.R.’s evidence that despite the inconvenience in shifting P.A. back and forth between households, and at a point between cities, there was no discussion between herself and the accused about Family Court proceedings or changing P.A.’s status to full-time custody with A.R. As I understood M.R.’s testimony, while knowledgeable about her mother’s interest in potentially having full custody of P.A., she first became aware of Family Court involvement in changes to the custodial arrangement respecting P.A. only after May 13, 2014.

[187] The defence is of course quite right that it has no onus whatsoever to establish some motive for the complainant to have made a false accusation of sexual molestation. That said, in his evidence, the accused entirely unpersuasively sought to suggest that A.R. was waging a long-term threat of years’ duration respecting changes to the existing custodial arrangement for P.A.. While telling the police that he had a really good relationship with A.R., the accused repeatedly maintained at trial that his sole contact with A.R. after 2009 was by email. Despite this claim, the accused also testified that A.R. was constantly mentioning this topic with aggressive “demeanour” and “the way she said it”. How this could be in an email is not apparent. The accused engaged in testimonial overreach of the importance of a custody change for A.R.

[188] On the record here, there is no basis to find collusion between the complainant and A.R. respecting advantaging A.R.’s claim for full custody. The subject of a formal Family Court application arose after the journal discussion took place and the decision was made to report to the police for the reasons described by the witnesses.

[189] Apart from the court’s rejection of the accused’s denial of sexual exploitation of M.R., on the whole of the evidence, there is no reasonable doubt as to the guilt of the accused for sexually interfering with his stepdaughter. The complainant’s evidence, including the credibility/reliability enhancing effect of her journal entry, the manner in which she learned of the accused being circumcised, and her upset when finally disclosing the abuse to her mother, powerfully established proof beyond a reasonable doubt.

CONCLUSION

[190] The accused is found guilty of the s. 151 Criminal Code charge. The additional charges are withdrawn at the request of the Crown.

Hill J.

DATE: December 18, 2017

CITATION: R. v. G.A., 2017 ONSC 7493

COURT FILE: CRIMJ(P) 1198/15

DATE: 2017 12 18

ONTARIO

SUPERIOR COURT OF JUSTICE

RE: R. v. G.A.

COUNSEL: R. Prihar, for the Crown

J. Neuberger, C. Assié, for the Defendant

REASONS FOR JUDGMENT

Hill J.

DATE: December 18, 2017