ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR-15-00001387

DATE: 20180620

BETWEEN:

HER MAJESTY THE QUEEN

– and –

T.G.

Defendant

Joanne McIntyre, for the Crown

Philip Norton, for the Defendant

HEARD: May 11, 2018

REASONS FOR DECISION

DI LUCA J:

[1] T.G. stands charged with a number of sexual offences allegedly committed against his step- daughter A.G. when she was approximately 8 to 10 years of age.

[2] T.G. initially elected to have a jury trial. That trial was held before me starting on June 26, 2017, and lasted almost three weeks. During the course of final jury instructions, an issue involving the conduct of one juror was brought to the court’s attention. An inquiry was conducted and following submissions from counsel, I declared a mistrial on July 12, 2017.

[3] On March 8, 2018, following a further judicial pre-trial, T.G. re-elected his mode of trial to judge alone, before me, with the evidence from the jury trial applying. The Crown consented to this process. In the circumstances, counsel are to be commended as the process adopted spares the complainant from testifying again, and it also spares T.G. from going through and funding a second trial.

[4] Given the passage of time as well as the fact that T.G.’s original trial counsel was appointed to the judiciary in the interim, Crown and new defence counsel were permitted an opportunity to make fresh closing submissions to supplement the closing arguments made before the jury back in July 2017. I was also provided with a transcript of the trial evidence, which I have reviewed in its entirety.

The Charges

[5] T.G. stands charged with seven offences.

[6] First, he is charged with three counts of sexual assault, particularized as follows:

That between the 1^st day of January in the year 1999 and the 31^st day of December in the year 2001, T.G. did commit a sexual assault on A.G. contrary to Section 271, subsection (1) of the Criminal Code.

[7] He is also charged with three counts of sexual interference, particularized as follows:

That between the 1^st day of January in the year 1999 and the 31^st day of December in the year 2001, T.G. did, with a part of his body, for a sexual purpose, directly touch the body of a person under the age of fourteen, namely A.G. contrary to Section 151 of the Criminal Code.

[8] Lastly, he is charged with one count of invitation to sexual touching, particularized as follows:

That between the 1^st day of January in the year 1999 and the 31^st day of December in the year 2001, T.G. did, with a part of his body, for a sexual purpose, directly touch the body of a person under the age of fourteen, namely A.G. contrary to Section 151 of the Criminal Code.

[9] I will start with a brief recitation of the applicable legal principles, then a summary of the evidence and then my analysis and findings.

The Structure of Indictment and the Issues to be Determined

[10] In her evidence, A.G. related a number of incidents of sexual touching occurring during the time frame of the indictment. For the purpose of the counts on the indictment before the court, the evidence revealed three main incidents of sexual contact. For ease of analysis, the main incidents can be factually grouped to certain counts in the indictment. In this regard, each main incident relates to one count of sexual assault and one count of sexual interference. The third incident also relates to the count of invitation to sexual touching. Each count on the indictment stands as an individual charge that must be determined on the evidence that relates to that specific count. That said, I remain cognizant of the need for consistency as between the verdicts that I render. Given the specific facts of this case, the counts in relation to each incident permit a singular finding consistent as between counts. However, on the evidence the findings in relation to the various incidents may, but do not need to be consistent. In other words, if I am satisfied that the Crown has proven one of the main incidents beyond a reasonable doubt, the findings on the counts relating to that incident will be the same in view of the live issues. However, my conclusion on one incident does not mean that I must reach the same conclusion in relation to the other incidents.

[11] Given the complainant’s age, consent is not a live issue. There is also no issue that if the events occurred as A.G. has described them in her evidence, the offences charged are established. In other words, there is no issue that if I accept A.G.’s evidence beyond a reasonable doubt, that evidence makes out as a matter of law the offences of sexual assault, sexual interference and invitation to sexual touching.

[12] The core issue to be determined is whether the Crown has proven beyond a reasonable doubt that the incidents of sexual contact as described by A.G. occurred.

[13] If I have a reasonable doubt about whether the incidents of sexual contact as described by A.G. occurred, T.G. must be acquitted.

[14] T.G. is presumed innocent. The Crown bears the entire onus of proving his guilt beyond a reasonable doubt. T.G. is not obligated to prove anything. In particular, he is not required to prove or explain why the complainant would make a false allegation against him, should that be the case.

[15] In R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 SCR 742, the Supreme Court of Canada determined the legal framework to be applied when determining credibility cases such as this one.

1. First, if I believe T.G.’s evidence that the events described by A.G. never happened, I must acquit him;

2. Second, if I do not believe the testimony of T.G. but am left in a reasonable doubt by it, I must acquit him; and

3. Third, even if I am not left with a reasonable doubt by T.G.’s evidence, I must ask myself whether, on the basis of the evidence which I do accept, I am convinced beyond a reasonable doubt of T.G.’s guilt.

[16] The W.(D) analysis is not a rigid formula for the assessment of credibility. It is an example of an analytical framework that recognizes supremacy of the presumption of innocence and the burden of proof on the Crown.

[17] In applying the framework, I am guided by the following additional principles:

In undertaking steps 1 and 2 of the W.(D) framework I must consider all of the evidence, not just the accused’s version of events in isolation.

The second step of the W.(D) analysis is important: (i) even if an accused is disbelieved in part, parts of his or her testimony may be accepted and may raise a reasonable doubt; or (ii) I may simply conclude that I do not know whether or not to believe the accused’s testimony, in which case the accused is entitled to an acquittal.

Even if the accused is entirely disbelieved and I am not left in a reasonable doubt by his evidence, in order for there to be a finding of guilt I must still be persuaded beyond a reasonable doubt by the evidence that is accepted that the accused is guilty.

I am not to treat the assessment of the evidence as a credibility contest by simply preferring the evidence of the Crown’s witness over the defence witness. If at the end of my assessment of the evidence I am not sure who to believe, I must acquit the accused even if I prefer the evidence of the complainant.

The Meaning of Reasonable Doubt

[18] The Supreme Court has said that a reasonable doubt is not an imaginary or frivolous doubt. It must not be based upon sympathy or prejudice. Rather, it is based on reason and common sense. It is logically derived from the evidence or absence of evidence.

[19] Likely or even probable guilt is not enough.

[20] On the other hand, proof to a level of absolute certainty is not required.

[21] That said, proof beyond a reasonable doubt falls much closer to absolute certainty than to proof on a balance of probabilities.

[22] In short if, based upon the evidence before the court I am sure that T.G. committed the offences, I must convict him since this demonstrates that I am satisfied of his guilt beyond a reasonable doubt.

[23] If I am not sure, I must acquit.

Credibility Assessments in Sexual Assault Cases

[24] The testimony of a complainant in a sexual assault case, like all testimony in any criminal case, stands to be measured against the heavy burden of the criminal standard of proof. Oftentimes that testimony either stands alone or stands in diametric opposition to the evidence of the accused. Credibility assessments in this context are notoriously difficult, though routinely undertaken. Convictions can be, and often are supported on the uncorroborated testimony of a single Crown witness.

[25] Judges and juries are instructed to use “common sense” in determining credibility. That “common sense” must be informed by a current understanding of sexual assault dynamics and the realities of human interaction. “Common sense” must not act as a thin veil hiding improper or unfounded credibility assessments based on outdated stereotypical assumptions. Legal history is replete with credibility assessments tainted by assumptions relating to how stereotypical sexual assault victims are supposed to act, see R. v. Seaboyer, (1991), 1991 CanLII 76 (SCC), 66 C.C.C. (3d) 321 (SCC) and s. 276 of the Criminal Code. Other examples include R. v. D.D., 2000 SCC 43, where the Supreme Court held that there was no inviolable rule on how persons who are the victims of trauma will act, particularly in relation to the failure to make a timely complaint, and more recently R. v. A.R.J.D., 2017 ABCA 237 affirmed at 2018 SCC 6, where the majority of the Alberta Court of Appeal noted that an assessment of the complainant’s failure to exhibit avoidant behaviour in relation to the accused was not a factor counting against her credibility, as it relied on a stereotypical assumptions about how a young victim should act.

[26] The court must be cautious to ensure that a complainant’s evidence is fairly tested on the basis of appropriate considerations. Evidence must not be automatically disbelieved on the basis of ill-informed or discredited assumptions, biases or prejudices. Conversely, the court must not automatically believe a complainant simply because the evidence reveals the commission of a sexual offence. The challenge in these cases is to fairly assess the evidence in the context of a criminal trial, which is premised on the presumption of innocence and proof beyond a reasonable doubt, see R. v. Nyzik, 2017 ONSC 4391, at paras. 16 and 17.

[27] In this regard, I instruct myself that in approaching A.G.’s evidence I must be careful to make sure that I am not judging her against a stereotypical standard. I instruct myself that nothing automatically turns on the fact that alleged abuse was only revealed years after the fact. I also instruct myself that the mere fact that A.G. did not take steps to distance herself from T.G. says little, if anything, about whether these offences took place. Abused persons will often stay with an abuser for years after the abuse, hiding the existence of the abuse from other members of the family as well as the public. Parent-child relationships are complex, layered and nuanced. It is too difficult, and therefore unfair to draw out broad generalizations about how a person should act in the face of abuse, or how someone should treat his or her abuser in the years following the abuse. It is even more unfair to base credibility findings on these generalizations.

[28] I also instruct myself to keep in mind that A.G. testified before me as an adult, remembering things that primarily occurred when she was a child. She was asked many questions regarding the details of the various incidents, including specific recollections of times, dates and places. Where an adult witness testifies about things that happened during childhood, vagueness or uncertainty on minor or peripheral details is not unexpected, and does not necessarily detract from credibility and reliability in the same way as when an adult witness testifies about things that happened during adulthood, see R. v. A.M., 2014 ONCA 769 and R. v. W.R., 1992 CanLII 56 (SCC), [1992] 2 S.C.R. 122. That said, on central and important issues, A.G.’s evidence is to be assessed in accordance with her age at trial.

[29] I caution myself about relying too much on A.G.’s testimonial demeanour. While demeanour is a factor to be considered, it is simply one factor amongst many to be considered and should not be accorded governing or controlling weight. Standing alone, demeanour is a notoriously unpredictable determinant of credibility, see Law Society of Upper Canada v. Neinstein, 2010 ONCA 193, at para. 66.

[30] I also consider A.G.’s motive to fabricate. A.G. was cross-examined in an effort to demonstrate that she had a motive to fabricate the allegations against T.G. To state the obvious, T.G. is under no obligation to explain why A.G. might fabricate the allegations against him. Such an obligation reverses the burden of proof. As well, in assessing A.G.’s evidence and the Crown’s suggestion that she had no reason to make up the allegations, the court must be cautious in differentiating between an absence of evidence of motive to fabricate and evidence of an absence of motive to fabricate, see R. v. L.(L.), 2009 ONCA 413. The absence of evidence of motive to fabricate does not mean that a witness is, therefore, telling the truth. A witness may have a hidden or undisclosed motive for not telling the truth.

Background to the Trial Evidence

[31] A.G. was born in 1991. Her mother Mrs. G. was in a long term relationship with T.G. that started in 1995. While T.G. is not A.G.’s biological father, he raised her as his daughter. In addition, Mrs. G. and T.G. had three children of their own, born in 1996, 1998 and 1999.

[32] The G. family initially lived in British Columbia but moved to Ontario in 1998, staying in York Region until 2005 and then moving to Winnipeg, Manitoba. While in York Region, the G. family lived at a number of locations, and as a result of the various moves A.G. was required to attend different schools.

[33] The relevant events for the purposes of the counts on the indictment occurred between 2000 and 2001, while the G. family was living in Maple, Ontario.

[34] In July 2006, following the family move to Winnipeg, Mrs. G. and T.G. split up. T.G. moved out but A.G. remained with her mother and siblings.

[35] In 2007, T.G. started a new relationship with L.P. and in March 2008 T.G. moved into L.P.’s home in Winnipeg. L.P. had three children of her own when T.G. moved in.

[36] In spring 2008, A.G. also moved in with T.G. and the P. family. She had been experiencing difficulties with her mother and decided that it would be best if she moved back with her father.

[37] In March 2011, A.G. contacted the Winnipeg police and made a complaint against T.G. She was 19 years old at the time of the complaint.

[38] The complaint resulted in charges in Winnipeg in relation to alleged incidents that took place while the family was living in Winnipeg. Those charges did not proceed to trial.

[39] Charges in York Region were investigated in late 2013 and early 2014. In February 2015, T.G. was charged with the offences currently before me.

The Incidents

[40] A.G. testified that the first main incident of sexual contact occurred while the family was living in Maple. The family lived at this address for approximately two years. A.G. would have been in grade 4 to grade 6 during this time, between the ages of 8 and 10. Her siblings were younger than her.

[41] In terms of sleeping arrangements in the house, A.G.’s brother had a bedroom, the two youngest sisters shared a room and A.G. had a room. A.G. was afraid of the dark and would at times sleep in the same room as her sisters. That bedroom had a bunk bed in it.

[42] In terms of the first incident, A.G. testified that one evening she was in the bottom part of the bunk bed with her two sisters. All three were together on the bottom bunk, which was larger than the top bunk. A.G. was closer to the outside of the bunk. The inside of the bunk was against the wall. Her sisters were between her and the wall.

[43] A.G. was wearing a blue nightgown with bunnies on it. Her mother was not home at the time. She was a bingo, which was a bi-weekly occurrence on Friday nights.

[44] According to A.G., T.G. entered the room and got into the bed. As he was saying goodnight, he slowly put his hand up her nightgown and grabbed her breast. A.G. indicated that while she was young at time, she had started to develop and was going through early puberty. In cross-examination, A.G. agreed that in an earlier police statement she had indicated that T.G. had placed his hand down her shirt and grabbed her breast, not slowly up her nightgown starting from the thigh area as she testified in-chief. She also agreed that she did not mention in her statement that T.G. laid down beside her in bed. Further, she agreed that she was inconsistent in her statement as between whether the incident occurred in her room or in her sisters’ room, though at trial her recollection was that it occurred in her sisters’ room. A.G. agreed that when she testified at the preliminary inquiry her evidence was that she and her sisters had gone to bed at the same time, whereas at trial her evidence was her sisters had gone to bed before her. As well, she agreed that at the preliminary inquiry she indicated that the light was on in the bedroom during the incident, while at trial she indicated that the light was off.

[45] While this incident was the first incident she could recall, she indicated that this type of conduct occurred frequently at the Maple residence. The first incident scared her, but it did not make her scared of T.G. It was the moment of the contact that scared her. Nothing was said to her during these incidents. She could not recall how they ended other than noting that he would just leave.

[46] In terms of the second main incident, A.G. indicated that on one occasion T.G. came into her bedroom. She was home with her siblings and T.G. Her mother was out at bingo again.

[47] She recalled being on her hands and knees and he was behind her. She was dressed only in her underwear and T.G. pulled her underwear down to her knees. T.G. was on his knees. He was not wearing anything apart from a robe and she could see his chest, stomach, legs and his circumcised penis. He was rubbing his penis against her. His penis was touching her inner legs and vagina. He touched her vagina with his fingers, though this recollection may have been related to other incidents. He also kissed her vagina.

[48] In cross-examination, A.G. agreed that in her initial statement to police in 2011 she did not mention the fact that her father touched her with his penis during this second incident. She also agreed that in her subsequent statement to York Region police in 2014, she did not mention that her father touched her with his penis. Further, while at the preliminary inquiry in York Region, A.G. did not initially mention that her father touched her with his penis, it was only after the Crown returned to the topic and asked if he had touched her with anything else that she mentioned his penis. The first time the touching with the penis had been mentioned was at the preliminary inquiry that had occurred earlier in Winnipeg.

[49] In terms of the third incident, A.G. indicated that she was in the television room on a couch or sofa. She was watching America’s Funniest Home Videos on television. She believes her mother was out at bingo. The television room was an open room in the Maple residence. A.G.’s siblings were present in the home when the incident occurred.

[50] She recalled being on the couch lying on her back, and T.G. standing over her rubbing his penis on her face. He had one knee on either side of her face and he was rubbing his penis around her mouth. He was wearing a robe that was open. She was scared that he was going to put it in her mouth, and she asked him not to and he stopped.

[51] Prior to testifying at the preliminary inquiry in Winnipeg in April of 2012, A.G. had an opportunity to review her statement. While doing so she spotted an error in her earlier recitation of events. In the statement she told police that during the third incident in the television room, T.G. had put his penis in her mouth. That was an error. He never put his penis in her mouth. She believed he was trying to put his penis in her mouth. A.G. advised the Assistant Crown Attorney of this correction prior to testifying in Winnipeg.

[52] In cross-examination, A.G. agreed that what she said to police initially about T.G. putting his penis in her mouth was not truthful. She agreed that she told the Winnipeg police very clearly that her father had put his penis in her mouth. A portion of her testimony from the preliminary inquiry in Winnipeg was then put to her, containing the following exchange:

Q. And did you make any changes to the statement with respect to this incident that you describe about the penis being put in your mouth?

A. I did yes.

Q. And what changes did you make?

A. When I told the police, I led them on to believe that – that he actually put it inside my mouth but I want to make it clear that he didn’t actually put it in my mouth.

Q. Now you indicated you led the police to believe that he did put in your mouth?

A. I guess they interpreted it, sorry, interpreted that way.

[53] In her evidence before me, A.G. explained that she was emotional when she was speaking with the police, and this was the first time she was explaining what had happened to her. While she agreed that what she said to police was not true, she would not agree that she knew at the time that it was not true. The following exchange occurred:

Q. Okay. And you suggested, at that time at least, that you had led the police on to believe that he had put his penis in your mouth, correct?

A. Yes.

Q. Which was not true, right?

A. Right.

Q. He had not put his penis in your mouth?

A. No.

Q. And you obviously knew that at the time of your March 2011 statement when you were speaking to police, right?

A. I don’t recall.

Q. You don’t recall?

A. No, it was – it was the first time I ever talked about it to anybody and it was a lot.

Q. I appreciate it’s the first you’ve, well it’s not the first time you’ve talked to anybody, it’s the first time you’re talking to the police about it. Certainly, what you had said to the police on that day was not true, right?

A. Right.

Q. You knew the day that you were giving that statement to the police, on March 28, 2011 – you knew that it was not true to say that “he inserted his penis in your mouth”?

A. At the time, no.

Q. You didn’t know that was not true at that time?

A. Again, it was the first time I talked in detail about it and it just – I’d never spent time thinking about it. So it was just – it all came out in a big jumble. I didn’t have time to clarify that was it. I said it and I left.

Q. Well, I’ve mentioned to you a few times that it actually – the topic came up in your statement, right? It came up more than once in that March 2011 statement, right?

A. Yes.

Q. The topic of him putting his penis in your mouth came up a couple of times, two or three times, right?

A. Yes.

Q. And at no time did you ever seek to clarify with the police that in fact his penis was not inserted in your mouth, right?

A. Right.

Q. You just stuck with that story?

A. Right.

[54] According to A.G., while these incidents happened frequently at the Maple residence, they did not continue after the family moved. She only recalled one incident where T.G. tried to put his penis inside her mouth. While she could recall more than one time when he kissed her vagina, she could not recall how many times it happened. She agreed that when she gave her statement to police, she told the investigating officer that there was one incident of kissing of the vagina that she “could remember.”

[55] However, A.G. did indicate that there were subsequent inappropriate incidents of touching above the clothing, as well as a prolonged kiss on occasion.

[56] Following the family move to Winnipeg, T.G. and Mrs. T.G. ended their relationship. T.G. eventually moved in with L.P. A.G. would visit her father along with her siblings, though on some occasions her siblings went without her. A.G. met and came to know L.P.’s children, and there were no issues with T.G.’s new family arrangements.

[57] A.G. did, however, begin to have trouble with her mother Mrs. T.G. They were not getting along and A.G. was talking back and not listening. This went on for months and ended when A.G. moved in with T.G. and L.P. This occurred in grade 11 in 2008, and lasted for a few years. During that time there were no problems in the T.G. and L.P. residence – she got along well with her father and with the P. children. Her relationship with her mother remained strained.

[58] In January 2011, A.G. was visited by a friend S.F. S.F. came to Winnipeg from London, England. A.G. and S.F. met online and formed a friendship. One night, A.G. and S.F. and a number of others were at a restaurant. At a certain point, A.G. and S.F. were outside having a cigarette and A.G. revealed that she had been molested as a child. This was the first time she had revealed the abuse. She did not give details. There was nothing specific that prompted the revelation. Alcohol had been consumed, and after the revelation A.G. and S.F. rejoined the dinner table without notice.

[59] In February or March of 2011, there was an instance of inappropriate touching that occurred during a Super Bowl get together. Following the incident, T.G. and L.P. went on holiday to Mexico and while they were gone, A.G. disclosed what had happened to her to the K.P., Linda’s daughter, and her boyfriend G.

[60] Following the revelation, K.P. and G. brought A.G. to speak with K., L.P’s son, and his girlfriend M.

[61] When L.P. and T.G. returned from holiday, L.P. was asked to come over to K.’s house and was told about A.G.’s revelation. L.P. was upset and crying, as was A.G. L.P. told A.G. that she had to tell her mother what had happened.

[62] By that time A.G.’s relationship with her mother had improved, and following the revelation she moved back in with her mother.

[63] A.G. called her mother, who came over to K.’s house and learned of the allegations against T.G. A.G. was very emotional when telling her mother, who was also very upset.

[64] Following the disclosure, Mrs. T.G. contacted police and arrangements were made for A.G. to give a statement.

[65] A.G. was subjected to a lengthy cross-examination. The cross-examination focussed on a number of themes and inconsistencies, many of which do not need to be reviewed in detail. The themes include the fact that A.G. had a motive to concoct the allegations against T.G., because he had back-tracked on a promise or suggestion that he was going to leave L.P. and instead had decided to stay with L.P., renovate the home and take a fancy vacation. Some of the themes hinted at the involvement of Mrs. T.G., who did not testify, as an instigator or behind the scenes manipulator.

[66] One central theme was that the nature of her relationship with her father belied the existence of any sexual abuse. A.G. was cross-examined on the fact that despite the alleged abuse, she got along well with her father, she developed a trusting relationship with him and shared confidences. They would take rides in his car and discussed personal matters. He sought her advice and she gave it. When circumstances forced her to leave her mother’s residence, she moved back in with her father even though she had other options. She would hug her father and he would often give her a kiss on the cheek. Her father never threatened her, nor did he tell her not to tell anyone about the abuse. She did not fear him or feel uncomfortable being around him.

[67] At one point during the trial, excerpts from a video taken at a Bar Mitzvah party that occurred around the time of the abuse was played for A.G. In the video she can be seen dancing with her father, having a good time, acting much like any loved child would be expected. While the articulated basis for putting the video to A.G. was to confirm her stage of physical development at that age, the implicit message, hinted at in argument, was that the video depicting a young girl dancing happily and closely with her father belied the existence of sexual abuse.

[68] A.G. was also cross-examined on her recollection of details of the incidents, including locations, times and dates. For the most part, this cross-examination demonstrated minor variations and inconsistencies that would normally be expected when an adult witness is being asked to recount events that occurred over a decade ago, when the witness was between 8 and 10 years of age.

[69] Some inconsistencies were more substantial. In addition to the example already referenced in my review of the evidence, I add the following. While A.G. testified at trial that T.G. never had sexual intercourse with her, in her initial statement to Winnipeg police she indicated that she did not know whether sexual intercourse occurred. When asked about this, A.G. indicated that both versions were true. In other words, when she gave the police statement she truly was not sure whether intercourse had occurred, but by the time of trial she “went back into her memories” and was not certain that no intercourse had taken place.

[70] Another instance relates to whether she was ever alone with her father once she moved back to Winnipeg. At trial she indicated that when she was back in Winnipeg she and her father were often alone together in his car or elsewhere, and they would have private discussions. In her statement to Winnipeg police, when asked when the touching stopped, she stated “pretty much when I moved in ‘cause I was never alone. Me and K.P. are - we get along really well so were always together”.

[71] As well, on a number of occasions A.G. could not recall details about household routines and practices, particularly those involving T.G., as well as details regarding the many moves the family underwent over the years.

S.F.

[72] A.G. was cross-examined extensively regarding her interactions with S.F. She denied speaking to S.F. before testifying at trial, and indicated that she last spoke to her in 2011.

[73] A.G. indicated that S.F. came to Winnipeg in December 2010 to January 2011. In May 2011, A.G. went to England to visit S.F. Initially in her testimony she indicated that it was for the whole month of May 2011.

[74] A.G. was then asked whether she was staying with S.F. when S.F. gave her statement to police on May 12, 2011.

[75] A.G. denied knowing that S.F. gave a statement to police on May 12, 2011. She could not remember whether they had any discussions about the details of the incidents during her May visit to England.

[76] A.G. denied that S.F. mentioned the fact that she had been contacted by police to give a statement. Their relationship came to end at some point after the trip to England.

[77] Later in the cross-examination, counsel returned to the issue of A.G.’s knowledge of S.F. giving a statement. When it was pointed out to her that on her evidence she would have been present in England when S.F. was contacted by police to give a statement, A.G. back- tracked and indicated that while she was in England for a month, it was not for the entire month of May. That said, she maintained that she had no knowledge that the police reached out to S.F.

[78] S.F. testified by video link from England. She confirmed that she met A.G. online in early 2010, and that they became good friends. In late December 2010, S.F. came to visit A.G. in Winnipeg. She stayed at the G./P. residence. She recounted the events from the evening at the restaurant, where A.G. revealed that she had been sexually molested as a child. A.G. was tearful in making the revelation and indicated that she had never told anyone before.

[79] S.F. confirmed that A.G. came to visit her in England, but noted that the dates were around May 27, 2011 to June 13, 2011. The relationship changed after this trip ended and the communication between A.G. and S.F. waned. S.F. eventually decided to end the relationship as it did not appear to be working out.

[80] In cross-examination, S.F. confirmed that she was contacted by police on May 11, 2011, and that she responded on May 12, 2011. At the time of the police communication she was in regular contact with A.G. S.F. indicated that she advised A.G. that she had been contacted by police. She did this by text on the Skype app. While her recollection did not appear certain, her recollection was that this communication occurred before she responded to police. In any event, S.F. clearly indicated that A.G. asked if she could see her statement, that is, S.F.’s statement to police. S.F. asked her “Is that legal?”, and A.G. apparently consulted with her mom and indicated that it would be okay. As a result, S.F. sent her statement to A.G. The statement was provided to A.G. after S.F. provided it to police.

T.G.

[81] T.G. testified and denied ever sexually abusing A.G. in any fashion.

[82] His testimony covered in detail the history of his relationship with Mrs. T.G. and their families, as well as his subsequent relationship with L.P. He described the nature of the break up and the new relationship, as well as the various changes that occurred in terms of living accommodations and custody of and access to the children. He also testified about all the various moves the family made in Ontario, British Columbia and Manitoba.

[83] T.G. testified that while A.G. was not his biological daughter, he raised her as his own and considered her his daughter. Indeed, his name was ultimately placed on A.G.’s birth certificate.

[84] He indicated that when the children were young, he would routinely assist with the bedtime routine. He would read to them, lay down with them, tickle them, talk about their day and the like. As A.G. got older, he spent more time with the younger kids. As time progressed, he would simply give A.G. a kiss good night and then spend time with the younger kids. He agreed that sometimes A.G. would sleep in her sisters’ room, and on those occasion that same sort of bedtime routine would occur.

[85] T.G. indicated that eventually his relationship with L.P. went through a rough patch, and during this time he confided in A.G. and discussed matters with her. During these discussions, he indicated he was planning on leaving the relationship and she indicated that she was prepared to go with him. Despite a number of these discussions, T.G. eventually patched things up with L.P. and they undertook a number of trips, including a trip to Toronto, a trip to Mexico where they purchased a timeshare, and they also decided to renovate their home.

[86] When asked to describe how he felt when learned of the allegations, T.G. indicated that it was hard to explain, “it just hits you out of nowhere like it’s not shock, it’s just like a numb reaction.”

[87] In cross-examination, it was suggested to T.G. that he said in-chief that he was not surprised when he learned of the allegations. T.G. correctly indicated that this was not his testimony and that he said he was numb, not shocked. He denied the suggestion that he felt this way because he had sexually assaulted his daughter.

[88] Also in cross-examination, T.G. confirmed the busy work schedule and hectic pace of life in the G. household when the kids were growing up. He agreed that bingo was a regular activity for Mrs. T.G., and that there were set times for Mrs. T.G. to come and go to bingo. He knew the times, and knew he would be home alone during those times.

[89] When asked about the nature of the bedtime routine he engaged in with the children, T.G. was not consistent on whether he would kiss the children on the lips. He ultimately settled on not having a specific recollection of kissing them on the lips after they were babies.

[90] While he agreed that he is circumcised, he also indicated that he was never naked in front of A.G., nor did A.G. ever have the chance to see him in an open bathrobe or in the bathroom.

[91] While he agreed that A.G. would watch America’s Funniest Home Videos, he maintained that she did so with the family on Sunday nights as the show was in re-runs by that time. He denied knowing that the show played on Friday nights at a time when Mrs. T.G. might be a bingo, as well as at other times.

[92] In terms of sleeping arrangements, T.G. did not recall a bunk bed in the sisters’ bedroom in Maple. He also did not recall seeing A.G. in bed with her sisters. According to his recollection this occurred when they lived at another home in Ontario, but not the home mentioned by A.G. He also had no specific recollection of A.G. being afraid of the dark. He nonetheless agreed that it was possible, and that if A.G. was in her sisters’ room he would go in and say good night to all three.

[93] T.G. maintained that he was an involved father but denied having specific knowledge that A.G. had gone to see a doctor about early puberty, and denied noticing that she had developed breast buds.

[94] He also denied that given the nature of the busy household and the demands on Mrs. T.G., that her sex drive decreased and that they were not having sex as frequently as before.

[95] T.G. was cross-examined on his relationship with L.P. He disagreed with the suggestion that he and L.P. had arguments that would escalate when they were drinking. Mrs. T.G. learned of the discord in T.G.’s relationship with L.P., and also learned that he was planning on leaving her. This occurred around the time Mrs. T.G. permitted T.G. to see their kids again.

[96] The defence also called K.P. to testify. K.P. is L.P.’s daughter. K.P. testified that she observed no issues between A.G. and her father, they appeared to have a standard father- daughter relationship.

[97] She testified that she and A.G. were very close. She described how A.G. disclosed the sexual abuse to her and her boyfriend G. According to K.P., A.G. initially described the abuse having occurred in her mother’s bedroom. In her testimony A.G. clearly and repeatedly denied stating this fact to K.P., and indeed denied that any abuse ever took place in her mother’s bedroom.

Positions of the Parties

[98] The Crown argues that it has discharged its burden of proof, and that as a result T.G. is guilty of all charges beyond a reasonable doubt. The Crown submits that A.G. gave compelling evidence of the sexual abuse she suffered as a child when she was left alone with T.G. The details of her evidence, combined with her genuine and notable demeanour, make her a credible and reliable witness worthy of belief. The Crown notes that A.G.’s “delayed disclosure” is not unusual conduct for a victim of child sexual abuse, and argues that it should cause me no concerns.

[99] Further, the Crown argues that A.G. gave her account of the abuse at trial as an adult, trying to recall all of the details from events which occurred years earlier when she was a child. It is reasonable that A.G. recalls the main details clearly but does not recall all of the details, and may be mistaken about some of the surrounding details.

[100] In terms of the defence arguments, the Crown notes that the fact that A.G. remained in a relationship with her Dad is no basis to reject her evidence. Child victims of sexual abuse do not behave in one predictable manner. As a child, during the time the abuse was occurring, A.G. thought of T.G. as a good Dad. She was not afraid of him. She was, as she testified, “afraid of the moment”. The only issue A.G. had with T.G. was the abuse itself. Otherwise, they got along.

[101] Further, the Crown argues that the evidence does not support the defence theory that A.G. made up the allegations because of problems between T.G. and Mrs. T.G. The evidence does not support the theory that A.G. wanted her Dad to leave the L.P. household. A.G. had much more to lose by disclosing this abuse than she had to gain. After she disclosed, that is exactly what happened: she lost the only Dad she had ever known; she lost her financial security; she lost the comfortable home she had with the L.P. family and the many relationships that went with it.

[102] A.G. had nothing to gain from testifying at this trial. A.G. came forward because, as she explained, she wanted T.G. to know that what he did to her was not right, and that he was supposed to be her Dad.

[103] The defence argues that there are significant problems with A.G.’s evidence, both from a credibility and from a reliability perspective. Her evidence is full of inconsistencies. She was repeatedly reminded of different versions of these events that she had provided on earlier occasions. She accepted that she made those earlier and different statements. The prior inconsistent statements related to key events that you would expect her to remember consistently, not to minor details. In addition, A.G. was contradicted in significant ways by S.F. and K.P.

[104] A.G. disclosed her allegations in a highly unusual, suspicious, and even tactical manner. The timing of A.G.’s complaint is suspect. A.G. made these allegations at a time when she had been encouraging her father to leave L.P. and take her with him. By the end of 2010, and even more so in early 2011, it did not appear that T.G. was ever going to leave L.P.

[105] Moreover, the defence argues that T.G.’s own exculpatory evidence is credible, reliable and unshaken in cross-examination. He clearly and consistently denied these allegations made by A.G. There is absolutely no reason to disbelieve him.

[106] The defence argues that it is illogical to suggest that T.G. did these things to his daughter a number of times right in the presence of, or under the nose of the other children in the home. It is illogical that A.G. would choose to live with her father in 2008, if these things had happened to her and inappropriate touching was continuing to happen to her. Further, it is illogical that A.G. would want to leave the L.P. residence with her father when he moved out, if these things had happened to her and were continuing to happen to her.

Assessment of the Evidence

[107] I start with T.G.’s evidence. Much of T.G.’s evidence dealt with peripheral and background issues relating to the family history and dynamics, as well as the various homes, living arrangements and familial tensions over the years. Not surprisingly, his evidence generally corroborated A.G.’s evidence on details relating to dates, times and places, as well the physical set up of the homes, the various living arrangements and the general family routines.

[108] In terms of the core of his evidence, T.G. clearly and repeatedly denied ever sexually abusing his daughter A.G. While he admitted that he had the opportunity to do so when Mrs. T.G. was at bingo, he denied each of the incidents revealed in A.G.’s evidence, and further denied any improprieties at any time involving A.G. Generally speaking, T.G. was not greatly shaken in cross-examination. He clearly and emphatically denied sexually abusing A.G. when she was a child. However, his evidence was far from perfect. Indeed, I find that he tried to minimize certain features of his conduct in order to deflect the thrust of the Crown’s questions. For example, his evidence on whether he kissed his children on the lips was convoluted and contradictory. He indicated that he stopped kissing them on the lips once they were nine months old, but then changed his evidence moments later. In my view, this evidence was geared towards defeating the Crown’s suggestion that he obviously would have kissed A.G. on the lips when she was a child. His evidence that America’s Funniest Home Videos was only watched in the presence of entire family, including Mrs. T.G., also seemed to be contrived to avoid the suggestion that A.G. was watching the show at home alone while her mother was out to bingo, thereby granting her version of events credence. His evidence regarding how often he would put the kids to bed varied from all the time to sometimes, to often. He also seemed reluctant to admit that A.G. slept in her sister’s bed on occasion, or that she was afraid of the dark. I sensed that T.G. was attempting to answer some of these questions “correctly”, as opposed to “truthfully.” Lastly, he appeared to minimize the degree of conflict he had with L.P., even though it was not overly material to the core issues. His evidence on this issue was contradicted by K.P. Simply put, there was no reason to minimize this evidence other than to make himself, perhaps, look better in the eyes of the court.

[109] That said, there were some aspects of his evidence that did not trouble me. I was not troubled by his answers in relation to his initial reaction when he learned of the allegations. He described being numb, like he had been hit out of nowhere. There is nothing in this description that suggests culpability. I do not accept the Crown’s suggestion that his reaction, which was not one of surprise, implied that he had committed the offences. Similarly, I reject the Crown’s suggestion that T.G. may have been looking for sex with A.G., because he was not having sex with Mrs. T.G. who was tired and worn down from looking after three and later four children and a household. His denial of this suggestion rang true, and in any event I question whether the frequency of sex in a marriage is a factor that creates an impetus to engage in sexual acts with a young child.

[110] In terms of A.G.’s evidence, I agree with the Crown that A.G.’s account of events and narrative are compelling. I also agree that her testimonial demeanour is a factor supporting her credibility. She was openly, and obviously emotional when discussing the incidents of abuse. This demeanour matched her emotional state when she revealed the abuse to S.F. and to her mother. That said, demeanour remains only one factor to consider, and I remind myself that it should not override other considerations.

[111] A.G. described incidents occurring while she was at home with her siblings present. Indeed, in the first incident she is in bed with her two younger sisters. And in the other incidents her siblings are present in the home. I am not troubled by the apparent brazenness of these incidents. There is no set pattern as to how a sexual assault can occur. The fact that the incidents occurred when others were present in the home does not, in this case, cause me any concerns. A.G.’s siblings were quite young, the acts engaged in were brief in nature, and T.G. was either clothed or wearing a robe that could be used to quickly cover himself up should someone walk in. The sad reality is, that sexual assault can and often does take place in scenarios where there is a high risk of getting caught. In this case, I do not find the fact that these incidents occurred in the home when other children were present to lessen or diminish A.G.’s credibility, or for that matter make T.G.’s denial any stronger.

[112] I reject the defence arguments that A.G. was motivated to concoct this entire series of events in order to exact revenge on T.G., because he rescinded his planned departure from the L.P. residence and instead appeared to re-commit himself to that relationship along with vacations, renovations and a new time share residence. I agree with the Crown that this paints a diabolical picture of A.G. as an amazingly manipulative and vengeful person, bent on effectively destroying her family. Simply put, I do not accept or even have a doubt that A.G. was so motivated.

[113] I also reject the defence suggestion that A.G.’s closeness to her father, including moving in with him and the P.’s, belies the existence of sexual assault involving her father. Family dynamics are complex. Abusive family dynamics even more so. The mere fact that a child does not distance herself from an allegedly abusive father is no clear indicator that there has been no abuse. Indeed, children and adults as well, will stay in abusive relationships long passed the point when logic might dictate a departure is warranted. Children can love a parent even when the parent does really bad things to them. Children may want to be with, earn the praise of and please a parent who harms them. On the facts of this case, I am not prepared to find against A.G.’s credibility because she did not flee the home and indeed returned to it, and because she otherwise had a good relationship with her father. In my view, these features tell neither for nor against the existence of sexual abuse in this case.

[114] Similarly, I place no weight whatsoever on the video of A.G. dancing with her father at the Bar Mitzvah. Using the video to suggest or imply that it depicts a young girl who has suffered no abuse because she is happily dancing in her father’s arms, relies on the acceptance of stereotypical assumptions about how a victim is supposed to act. The relevance of the video might have been different if, for example, A.G.’s evidence had been that as a result of the abuse she could not stand to be close to her father and had shunned any contact with him, but that was not her evidence.

[115] I also find that despite the nature of the allegations against her father, A.G. was balanced in her evidence against him. She did not appear to bear an animus, nor did she appear to embellish or enhance her version of events to make him look worse. Indeed, on her own evidence she described T.G. as a good father who she was not afraid of.

[116] On this note, I add that her correction of the initial statement to police relating to whether T.G. ever put his penis in her mouth has an aspect of moderation to it. She brought to the Crown’s attention that the allegation she made was incorrect and not as serious as she had initially indicated. While her evidence that she “led the police on” to believe that her father put his penis in her mouth is troubling, as I will discuss in a moment, the fact that she corrected the statement in T.G.’s favour attenuates the impact of the inconsistency and suggests that she was not “out to get” T.G. To state the obvious, she could have simply stuck to the story.

[117] I also agree with the Crown that A.G. has no apparent motive to lie. Indeed, the revelation of these incidents has arguably made her life more difficult as she has been ostracised from her father’s side of the family. That said, the fact that she has no apparent motive to lie does not mean she has not lied.

[118] In fact, and unfortunately, I find that she has lied on an issue relating to the unfolding of the allegations, and that is the incident involving the police statement provided by S.F. I accept S.F.’s evidence that she communicated the nature of the police contact to A.G. as it happened. They were close friends at the time, in frequent contact, and it makes perfect sense that the person who was the first recipient of the revelation would let her friend know that she had been contacted by police. I also accept S.F.’s evidence that A.G. asked to see her statement, and when S.F. inquired whether it was legal to do so A.G. indicated that she had consulted her mother who indicated that it was okay. There would be no reason for S.F. to make this up. I accept this evidence entirely. As such, I find that A.G.’s denial of any such discussion, and indeed denial of any knowledge that S.F. was even contacted by police, to be very troubling. I want to be clear, an admission that there may have been some degree of collusion between S.F. and A.G. in relation to the police statement would ordinarily be simply a factor that might affect the weight given to either or both witness’ evidence. Here, however, it is A.G.’s denial of the discussion that is particularly troubling. It demonstrates a willingness to lie to the court to cover up what she perceives to be an improper act. As such, this lie casts doubt over her evidence.

[119] I am also troubled by some of the inconsistencies in her evidence. While many of them are easily referable to her age at the time of the incidents and at the time of trial, a few of the inconsistencies are more troubling. K.P. was clear in her recollection that A.G. indicated that she had been sexually assault in her mother’s bedroom. A.G. denied saying this, and denied that any sexual contact happened in her mother’s bedroom. A.G. herself was inconsistent on details regarding the incidents themselves. For example, she was inconsistent on whether her father touched her with his penis during the second incident. She was inconsistent on whether she believed that intercourse had taken place, at trial she said no. However, in her police statement she left open the possibility that it had taken place. She was also inconsistent on whether her father put his penis in her mouth. On this issue I note that her own evidence at the preliminary inquiry, adopted by her at trial, was that she effectively “led the police on” to believe that this had occurred. While she corrected the statement, and while the nature of her correction suggests an absence of animus, I remain concerned that she amplified her version of events for the police.

[120] This case is a very close call. If my role was to choose whose evidence I prefer, the answer would readily be A.G.’s evidence. Indeed, I am prepared to conclude that T.G. probably committed a number of sexual acts on A.G. when she was a child. However, probability does not equate with proof beyond a reasonable doubt. In the circumstances of this case, when I look at the evidence through the W.(D.) lens I conclude that while I do not accept T.G.’s evidence in its entirety, I am left with a reasonable doubt by it even when I consider it in the context of A.G.’s evidence. More problematically, while I prefer A.G.’s evidence, I am not satisfied beyond a reasonable doubt that what she is saying is true. I am troubled by the evidence relating to S.F., and I am troubled by some of the inconsistencies in her evidence. While I prefer her evidence, I am simply not sure that the three main incidents, or indeed any other incidents of sexual abuse occurred as she described.

[121] T.G., please stand.

[122] I find you not guilty on all counts.

Justice J. Di Luca

Released: June 20, 2018

NOTE:This written Decision is to be considered the official version and takes precedent over the oral Decision read into the record. If any discrepancies between the oral and written versions, it is the official written Decision that is to be relied upon.

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

T.G.

Defendant

REASONS FOR DECISION

Justice J. Di Luca

Released: June 20, 2018