Court File and Parties

COURT FILE NO.: CR-17-0996 DATE: 2018-10-31 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – F.E. Defendant

Counsel: Julie Scott, for the Crown Matthew Day, for the Defendant

HEARD: August 20, 21, 22, 23, 27, 28, 29, 30, 2018 in Perth

Reasons for Decision

BEAUDOIN J.

[1] The Defendant, F.E. (“F.E.”), is charged as follows: between the 1st day of September, 2013 and the 6th day of September, 2014, did commit a sexual assault on C.K. contrary to s. 271 of the Criminal Code, and being a person with whom C.K., a person with a mental disability, was in a relationship of dependency, did commit the offence of sexual exploitation contrary to s. 153.1 (1) of the Criminal Code.

[2] It is conceded that C.K. is a 28 year old woman with a mental disability and that she was in a relationship of dependency with the Defendant. C.K. has been assessed as functioning between the ages of 10 to 12 years of age.

[3] C.K. came to live with the F.E.’s after being removed from the home that she had shared with her mother and her stepfather after allegations surfaced that her stepfather had engaged in sexual conduct towards her. Her stepfather was originally charged pursuant to s. 153.1 of the Criminal Code, but he eventually agreed to enter into a recognizance pursuant to s. 810.1 of the Criminal Code.

[4] C.K. began living with F.E. and his wife, A.C., (“A.C.”) in the town of Carleton Place in November, 2013. The F.E.’s were engaged in providing a residence for special needs adults referred to them by the Community Living Association of Lanark County. They were aware of the allegations against C.K.’s stepfather.

[5] Alice-Anne Paterson-Collinge is the Family Home Manager who was responsible for C.K.’s placement. She was also her principal support worker. She provided the opinion of C.K.’s cognitive level and ability to provide consent that was filed as Exhibit No. 2. She concluded that C.K. was not capable of providing consent to intimate sexual relationships. That conclusion has not been challenged in this trial.

[6] Ms. Paterson-Collinge testified that F.E. was the principal caregiver at the F.E. residence. A.C. had two jobs that took her out of the home. Ms. Paterson-Collinge met them monthly to monitor the placement. She had no concerns. S., a young man with a developmental disability, as well as an older woman, J.B., with mental issues, also lived in the F.E. residence. There was also an exchange student living at the house for a period of approximately one year.

[7] While she resided there, C.K. was involved in day programs 2 to 3 days per week. In February 2015, J.B. reported that she had seen F.E. and C.K. having sex on the kitchen floor. Ms. Paterson-Collinge deemed J.B.’s report to be unreliable, but she did discuss the allegations with A.C. and F.E.. She told them that the Community Living Association did not believe J.B., and F.E. and A.C. were not asked to respond. Ms. Paterson-Collinge spoke to C.K. but did not specifically refer to what J.B. had said nor did she ask C.K. if F.E. had had sexual contact with her.

[8] Ms. Paterson-Collinge described the layout of the F.E. home as well as C.K.’s bedroom. C.K. had a hamper for her soiled clothing in her bedroom. It was for her exclusive use.

[9] On September 10, 2015, F.E. took C.K. to see her family physician, Dr. William Potvin. C.K. had been his patient since 2003. A.C. had called for the appointment because C.K. was complaining about discomfort in her vaginal area. Dr. Potvin conducted a vaginal examination. This was the first time he would have conducted such an examination of C.K. He was surprised by what he saw. He observed weeping blisters on the labia of her vagina and he made a diagnosis of herpes; a sexually transmitted disease. More significantly, he concluded that C.K.’s genitalia displayed signs of a person who was sexually active.

[10] Dr. Potvin could not say how many times C.K. would have had sex nor could he say when that sexual activity would have commenced. It is conceded by the Crown that the evidence of sexual activity and the presence of the sexually transmitted disease cannot be connected exclusively to the Defendant.

[11] Dr. Potvin testified that he asked C.K. if she had had sex and she said yes. She told him that she was having sex with a man and he recalled that the name sounded like “Ferguson.” She said he was the man who cooks and works in the house. She said that this happened on the previous Sunday when A.C. was on vacation. She told him that she did not want to have sex, but that the man had insisted and proceeded to have sex with her. Dr. Potvin had the impression that this was not a one-off thing and that this had happened with some regularity.

[12] Dr. Potvin then contacted Ms. Paterson-Collinge. He reported his observations to her, prescribed an antibiotic, and Ms. Paterson-Collinge took C.K. to the police.

[13] In cross-examination, Dr. Potvin said that C.K. was reluctant to provide him with information. He conceded that his notes made reference to a single incident that had occurred on the previous Sunday, September 6, but he repeated that it was his impression that the sexual acts where occurring with some regularity at the F.E. residence when A.C. was out of the house.

[14] At trial, I admitted C.K.’s videotaped statements of September 10, and September 29, 2015 pursuant to the provisions of s. 715.2 (1) of the Criminal Code. Defence counsel did not object to the admission of the first statement, but argued that the second statement was not made “within a reasonable time after the alleged offence.” In oral reasons, I concluded that the second video recording satisfied all of the criteria for its admissibility. Prior to giving her evidence, C.K. promised to tell the truth and adopted her video-recoded statements.

[15] Both interviews were conducted by Constable Jessica Faris. In the first statement, C.K.’s demeanor is observably restrained. She is hunched over and clings to Ms. Paterson-Collinge. On many occasions, she states that she is afraid and that she wants to go home. She has difficulty describing what has occurred. She describes the incident as “a sex abuse thing” that happened on the previous Sunday when A.C. was on vacation. She remembered that she was watching a TV show called “Hawk” before going to bed. She said that F.E. came into her room as she was getting ready for bed. She was in the process of putting on her nightgown. She never put it on. She said that F.E. removed his clothing. F.E. told her to lie down on a towel he had retrieved from the laundry basket in her room and had placed on the bed. She then said that F.E. “put his penis right in, right in me and that’s how; and I hate that.”

[16] Constable Faris kept pressing for details, and C.K. repeated that F.E. had laid on top of her and put his penis in her. C.K. told him to stop, but he would not listen. Earlier that evening, while they were in the kitchen, F.E. had asked her if she wanted “to do it” and she had said “no.”

[17] On more than one occasion, C.K. repeated that this had never happened before with F.E.; that the only time it had occurred was on Sunday. She recalled that F.E. did not wear a condom. After they had sex, she said that F.E. put the towel back in the laundry basket.

[18] Constable Faris pressed for more information and she clearly expressed her belief that C.K. had not told her everything. While C.K. became more relaxed as the conversation turned to other topics, it was clear that she was very reluctant to discuss the incident with F.E.. She expressed her fear on more than one occasion, her reluctance to be removed from the home and her concern for A.C..

[19] After providing that statement, Constable Ferris directed C.K. and Ms. Paterson-Collinge to return to the F.E. residence to retrieve the towel. She then arranged for C.K. to have a sexual assault medical examination. C.K. and Ms. Paterson-Collinge later returned the towel to Constable Faris who sent it to the Centre for Forensic Sciences for testing along with the Rape Kit. On January 27, 2016, Constable Faris executed a DNA warrant to obtain a DNA blood sample from the Defendant.

[20] Ms. Paterson-Collinge testified that when she and C.K. returned to the F.E. residence, they removed the towel from the hamper and put it in a bag. She recalled that there were a few of C.K.’s items over the towel in the hamper. They also retrieved clothes for C.K. because she would no longer be living there.

[21] C.K. was taken to the home of Melissa Staniforth on September 10. Ms. Staniforth also worked for Community Living. This was an emergency placement until something more permanent could be found for C.K. Ms. Staniforth described C.K. as being very frightened and distressed when she arrived at her home. C.K. vomited soon after her arrival. She did not discuss the incident with C.K. nor did she probe the issue.

[22] On September 14, C.K. told Ms. Staniforth that she had sex with F.E. and that “it happened all of the time when A.C. was at work.” She would say “no”, but he would not listen.

[23] We also heard from Lillian Winkwenweder. She runs day programs for persons with mental disabilities. C.K. attended her program on Thursdays. After the incident, she observed C.K. to be more “clingy” and engaging in baby talk. Ms. Winkenweder said that C.K. was very emotional and needed to talk to her. C.K. confided to her that F.E. had sex with her and that this happened regularly when A.C. was away. Ms. Winkenweder said that she had not prompted this disclosure. She believed that this disclosure was made on or about September 29, 2014, but she was not certain of the date. Ms. Winkenweder did communicate this information to Constable Faris on October 13. C.K. told her that A.C. did not know what had happened.

[24] The Crown clarified that the disclosures to Ms. Staniforth and to Ms. Winkenweder were not being put forward to the truth of their contents.

[25] The second video-recorded statement took place on September 29, 2014. On this occasion, C.K. is visibly more relaxed. She had found a new home placement and she seemed pleased with it. Constable Faris continues her interview and C.K. expresses her fear of telling A.C. what happened to her. She also expresses her anger against F.E. and her wish to have him charged. On this occasion, she describes that sex happened every night when A.C. was at work and that this would happen when everyone else was in bed. She now uses the term “rape.” She repeats what had occurred on Sunday, September 6. She now adds “F.E. told me not to tell “cause he would hurt me.” She tells Constable Faris how much she likes A.C.. When asked if the sex happened on any other occasion than the time on the Sunday, she answers: “Monday, Tuesday, Wednesday, Thursday and Friday and Wednesday and Saturday and Sunday, all those days, it happened” when no one was in the house.

[26] C.K. then disclosed that A.C. had caught her and F.E. “humping” in her bedroom one day. She had been watching TV in her bedroom which was located upstairs at the time. F.E. took her clothes off, she told him to stop, she tried to kick him off, but he was too strong. She has difficulty saying the word “penis” because she does not like the word. F.E. took his clothes off and stuck his penis into her. She described how “It” happened all of the time after she returned home from her day programs.

[27] She later went into further detail. She said that on the A.C. incident, F.E. had put his penis right behind her; that she was laying on her bed under her blanket when F.E. came into the room and laid right behind her and did the “humping thing” behind her. He had first removed her pants and underwear. She said that F.E. put his penis into her bum as they were both lying on their side. She told him to stop, but he did not. A.C. discovered them, got mad at F.E. and told him to go to bed. C.K. said that she went downstairs to A.C.’s bedroom and promised her that she would not let it happen again.

[28] C.K. then described another incident which happened in the living room the next day. She said L.C. (A.C.’s adult son) had come home from work that day and caught F.E. on top of her. C.K. knew that L.C. worked in a nursing home. She said that L.C. came to the front door which was unlocked and he caught them on the couch doing the “humping thing.” She said that she had been on the couch watching TV and F.E. had been lying on the other couch in the living room. F.E. came over and asked her to do the “humping thing.” She refused and F.E. took her pants off, and put his penis in her vagina again. It was at this time that L.C. came into the living room.

[29] She overheard L.C. and his father argue. L.C. told his father he would be put in jail if he did that. She overheard L.C. say that he would keep it secret. She said that this incident had taken place after she had been living there for a while. This took place when nobody else was at home because the other resident was attending his program and the exchange student was at school.

[30] She repeated that this could happen on any day of the week, on any day that he thought he could get away with it. In addition to adopting her video-recorded statements, she described the location of the various bedrooms and how her bedroom had originally been located upstairs and that she moved downstairs after J.B. moved out. A.C.’s bedroom was downstairs whereas F.E. shared a large bedroom upstairs with S. C.K. was able to place each person in a bedroom and identify the bathroom that person used.

[31] In cross-examination, she confirmed that she had originally said that the sex with F.E. had only occurred the one time, and that she then maintained this happened on numerous occasions. She admitted having nightmares before the second interview and that F.E., A.C. and L.C. were in her nightmares. She conceded that F.E. talked in a loud voice and that she did not like that.

Crown Witness: Sobia Malik

[32] Sobia Malik is the Forensic Biologist form the Centre of Forensic Sciences. She was qualified to give expert evidence with regard to the examination of items for the presence of blood, semen and saliva, with regards to interpretation of body fluid testing and DNA typing results in autosomal and Y STR systems, and to give expert testimony regarding body fluid identification and DNA analysis and interpretation, including the deposition, transfer and persistence of body fluids/DNA. She filed the three reports from the Centre for forensic sciences. One of these was authored by Nicole Vachon, another forensic scientist. Ms. Malik was able to verify the contents of that other report.

[33] She testified how DNA is created and inherited and how testing for DNA occurs at 15 sites (STR loci) in a cell. She confirmed that the DNA testing is a comparison technique which takes a test result against a known sample. DNA is usually taken from a bodily fluid; blood, semen or saliva. It also can be taken from a worn item such as clothing or from an item that has been handled, such as a gun.

[34] Exhibit No. 10 is the report dated November 05, 2016 and it contained the results of the examination of the Sexual Assault Evidence Kit; the examinations were of a vaginal swab and an external genitalia swab from C.K. No male DNA was detected. Ms. Malik indicated that semen can continue to appear up to 12 days after an incident but is generally lost during the first couple of days due to bathing or other activity. She said that it was not surprising that no male DNA would have been found after four days.

[35] Exhibit No. 11 is the report dated November 19, 2015. It provided the results from the examination of the towel and C.K.’s underwear. The towel was examined for the presence of semen. The underwear was tested for the presence of semen, blood or amylase (which may or may not be saliva). Semen was detected on the towel. The underwear revealed the presence of blood. No semen was detected on the underwear. Some amylase was detected but the test was not performed quickly enough to warrant further examination.

[36] The examination then focused on the towel for DNA purposes. The DNA of two individuals was found in the semen on the towel. The report concluded that there was sufficient DNA to amplify. The samples were taken from the same area of the towel. This resulted in two profiles: Profile 1(female) at 15 STR loci. Profile 2 from semen (male) at 15 STR loci. C.K. could not be excluded as the source of profile 1. The random probability match (RPM) is one and 95 quadrillion. These two profiles were identified in exactly the same place on the towel.

[37] Ms. Malik confirmed that she conducted a luminescence test, and then two chemical tests; an acid phosphatase test and a p30 test to identify a protein that is found in semen. A differential extraction was then performed where the physical properties of sperm cells were identified and separated from other cells. She was able to identify the two DNA profiles. She said it was not surprising that there would be more DNA from C.K. who would have used the towel on other occasions. There was enough of the DNA present from the other profile to indicate that it was related to sperm. She said that the chemical component of semen consists of a liquid component and cellular component (sperm). She said that the liquid components would have washed way if the towel had been laundered. If that had happened, she would not have expected to see the chemical components that she detected: acid phosphatase at a high level and the p30 test that showed semen at a high level. DNA analysis was then done. She added that there was no way of dating the semen other than to conclude that it had been deposited after the last wash.

[38] The third report is dated February 11, 2016. This provided the results of the examination of the blood sample that had been taken from F.E. pursuant to the DNA warrant. The conclusion was that F.E. could not be excluded at 15 STR loci as the source of profile 2, namely, the semen profile cut from the towel at the scene. The random probability match was 1 in 63 quadrillion. This meant that the possibility of a coincidental match was rare.

[39] She testified that the presence of the semen was consistent with the scenario of the towel being placed on the bed, the sex act occurring, the towel then being placed in a hamper, retrieved four days later with some of C.K. ‘s clothing above and below the towel, and the towel that is being placed in a bag. She said that the presence of the semen could be as the result of internal or external ejaculation. The fact that the other items examined contained no semen did not change her conclusion.

[40] Ms. Malik was cross-examined at considerable length. Ms. Malik acknowledged the limitations of DNA testing as set out in the Technical Information Sheet published by the Center for Forensic Sciences. She repeated that she relied on her experience and expertise in forming the opinion set out in the reports. She was also taken to alternate scenarios, but concluded that these were less likely to happen. She was asked about a control sample and confirmed that this could only be done if there was a “sister” towel that went through the same steps in its lifetime.

[41] In re-examination, she confirmed the presence of semen based on the DNA profile that was developed from the sperm fraction. She believed that the semen had been deposited on the towel when wet and that this would have required more than a transient contact if that semen came from another source. She confirmed that the CFS samples would be available for the Defendant to conduct his own review for secondary testing. No such request was made. No requests were made for her to examine other towels.

Defence Witness: A.C.

[42] A.C. is 58 years old. She married F.E. 32 years ago when her son L.C. was two years of age. She said F.E. was the only father that L.C. has ever known. She and F.E. have a son, A.. Neither son was living at home in 2014, when C.K. came to reside with them.

[43] In 2014, she was employed at two jobs – at a furniture store and as a personal support worker for an agency called “Care Partners.” A.C. was generally out of the house from 6:00 a.m. until 8:00 or 8:30 p.m. She worked seven days a week and she had a day off every other weekend. She said that F.E. had had a heart attack 15 years earlier and he could not work. They concluded it would be good for him to have other people in the house and they contracted with the Lanark Community Living Association to take on borders. She said that the income covered expenses.

[44] A.C. said that C.K. was enrolled in two-day programs and that she would be picked up at 9:00 a.m. until about 3:30 or 4:00 p.m. There was also a 20-year-old man by the name of S. residing there. He had a mental age of eight years. He could not talk and he needed help for everything. That assistance was primarily provided by F.E..

[45] A.C. described the layout of the house, the location of her bedroom, and the bathroom that she used. F.E. stayed in the upstairs bedroom with S. and they used another bathroom because it had a walk-in shower. She confirmed that C.K. had originally used in the upstairs bedroom, but moved back downstairs when J.B. left the home. There was also an exchange student from China who was occupying an upstairs’ bedroom. She confirmed that that C.K. had her own hamper in her room. She was shown the towel that was entered as an Exhibit and confirmed that this came from the downstairs’ bathroom that she used.

[46] A.C. described C.K.’s move to their home as a positive event. She felt that C.K. was like the daughter she never had. She believed that C.K. got along with F.E.. She was aware of the issue between C.K. and her stepfather. She had attended the courthouse when C.K. was interviewed by the Victim Witness Assistance Program during the proceedings against him.

[47] A.C. was informed by Ms. Paterson-Collinge about the allegations made by J.B., but was told that there was no truth to those allegations and there was nothing to worry about. A.C. was upset. She could not remember when this conversation took place. She said that she “honestly did not know” what to think about those allegations and she arranged to have more people “pop in” to check in on F.E. and C.K. She also asked her son L.C. to drop in. A.C. never confronted C.K. with those allegations.

[48] A.C. claimed to have been at work during the September 6th weekend. She said that she only took time off work for a vacation in the winter time during March break, or sometimes, she would attend a gift show in Toronto. She had every Tuesday and Wednesday off from the furniture store and every other weekend off from the Care Partners Program. She said she was not on vacation on September 6.

[49] C.K. had been complaining of problems “down below” and A.C. arranged for F.E. to take her to see her doctor. Sometime later, Ms. Paterson-Collinge removed C.K. from the home. A.C. learned about the allegations against F.E. around 9:00 p.m. that day. She did not learn of any details. She was informed about the sexual allegations the next day. S. was also removed from the home. She cried and she testified that there were “a lot of accusations” she did not know “if it was true or not.”

[50] A.C. denied ever walking into C.K.’s upstairs’ bedroom and catching her in the act with F.E.. She said that never happened. She had no information that L.C. had caught them and said that if he had, he would have stopped it.

[51] In cross-examination, A.C. said that her “heart” did not believe the allegations, but that her “head” was unsure. She repeated that she was unsure after she heard about J.B.’s disclosures; and that is why she had people check in on F.E.. When confronted with the towel with evidence of F.E.’s sperm and C.K.’s DNA, she said that the still did not believe the allegations. A.C. confirmed that she had lived in Carleton Place all her life and that she was horrified and embarrassed by the allegations. She said that if she believed F.E. had done these things, she would have left him. She repeated that she never caught C.K. and F.E. having sex; and if anybody else had observed it, it was not her.

[52] A.C. admitted that she is relying on her usual work pattern and not on an absolute recollection as to that date. She agreed that the only way of confirming that she was working on September 6 was by looking at the time sheets which she did not consult or provide.

[53] A.C. knew that the issues involving C.K.’s stepfather had resulted in a restraining order. F.E. was aware of this as well.

[54] She was asked why she found it necessary to have her friends and L.C. “pop in” to the house after the disclosure made by J.B. and she confirmed that she did not know if the allegations were true.

[55] A.C. confirmed that she had essentially been living separate and apart from F.E. since 2011 and that she worked on average 50 to 60 hours per week. She never asked C.K. if the allegations were true because she said that C.K. does not always tell the truth. When confronted with the towel a second time, she was unable to come to terms with that evidence.

Defence Witness: L.C.

[56] L.C. is A.C.’s son and he considered F.E. to be his father. He too went through the floor plan at the house. He said he would often stop by at the house after work, but he would always call first. He said this happened maybe once a week. He had a good relationship with his father.

[57] L.C. learned about these allegations through Constable Faris and he said that the allegation that he had walked into the living room and observed C.K. and his father having sex was not true. He denied ever having a fight with his father. If he had seen what was described, he would have called the police.

[58] In cross-examination, L.C. contradicted his mother and said that she never asked him to “pop in” from time to time. He described C.K. as “handicapped” because she is slow. He believes the allegations against F.E. are false. He believed something had happened to C.K. prior to her coming into the house and that his mother had told him about it. He was shown the towel that contained evidence of C.K.’s DNA and his father’s semen. He still did not believe that the allegations were true.

Position of the Defence

[59] The Defence concedes that consent is not an issue and it is admitted at that C.K. was in the care of the F.E.’s. The Defence points out that C.K. did have knowledge of sexual matters and that it cannot be asserted that she would not have been able to testify about these incidents had they not occurred. In any event, that is not the position of the Crown.

[60] The Defence submits that C.K. is capable of lying notwithstanding her disability and he refers to A.C.’s evidence on this point. He notes that during her first interview with police, C.K. had indicated that F.E. had only assaulted her one time, and then she subsequently said that it had happened many times. He submits that one of the statements has to be false.

[61] He notes that in her first statement, C.K. said that she liked A.C. and she liked living with the F.E.’s, but in cross-examination, she said she did not like living there. There is also conflicting evidence as to whether or not she had shown a bruise to Constable Faris.

[62] Defence counsel argues that it is objectively improbable that the Defendant would have committed these offences knowing about the prior allegations. He points out that as a result of the J.B. complaint, Ms. Paterson-Collinge would visit the house more frequently. A.C. said that she would have more people stop by. There would have been further investigations of the household regarding other incidents. The Defence suggests that it was improbable that the Defendant could have committed these offences given the high level of supervision.

[63] The Defence emphasizes that in C.K.’s first statement of September 10, 2015, there was only one incident of sexual intercourse that is referred to when A.C. was away on vacation. He submits we now knows that C.K. is mistaken since A.C.’s evidence contradicts that. He refers to Dr. Potvin’s notes where C.K. referred only to one incident on Sunday. The Defence identified nine occasions during the first interview with Constable Faris where C.K. maintains that there was only one incident that took place on the preceding Sunday. He refers to Constable Faris suggesting to C.K. that she may be holding something back.

[64] The Defence notes that when C.K. first arrived at Ms. Staniforth’s house, she mentioned the Sunday incident only, but within a few days, C.K. referred to multiple incidents. At no time did C.K. tell Ms Staniforth about the incidents when A.C. or L.C. might have “caught them.” The Defence points out that, in the later conversation with Ms.Winkenweder, C.K. impliedly denied the “A.C. incident” because she told Ms. Winkenweder that “A.C. doesn’t know.”

[65] As for the A.C. and L.C. incidents, the Defence submits that the court can have a reasonable doubt as there is no independent corroboration. Both A.C. and L.C. came to court and testified that these events did not happen. A.C. did not see any signs of abuse and she would have been looking for that as a result of J.B.’s disclosures.

[66] C.K. told Ms. Paterson-Collinge that there had been no sex with F.E.. The Defence argues that further allegations arose due to prompting from Constable Faris and because C.K. had started to talk to others. The Defence notes the difference in C.K.’s demeanor in two statements. The Defence describes C.K.’s second narrative as being theatrical including her statement that the sex happened every day.

[67] The Defence submits that the evidence of A.C. and L.C. is credible and that A.C. had no motive to lie about a young woman she had considered her daughter.

[68] As for the towel incident, the Defence submits that it has been demonstrated that C.K. made false statements and that the towel incident is also false. He argues that the DNA evidence is too inconclusive and he argues that there are a number of ways that F.E.’s semen could have gotten on that towel.

Position of the Crown

[69] The Crown submits that the evidence is clear that the Defendant raped C.K. for the last time on September 10, 2015. The Crown focused on the evidence of the Defendant’s semen found on the towel. Ms. Malik testified that the semen could have been deposited there directly or indirectly. The Crown emphasizes that there is no evidence of indirect deposit. The Crown submits that the Defence is asking the court to take judicial notice of a possibility of this semen being transferred in some other way in the absence of any evidentiary foundation.

[70] The Crown concedes that the W. (D.) (R. v. W.(D.), [1991] 1 S.C.R. 742) applies and submits that the evidence provided on behalf of the Defence does not raise a reasonable doubt. The Crown emphasizes that it is important to apply W.(D.) in the context of the evidence as it unfolded.

[71] The Crown argues that C.K.’s disclosure occurred in a gradual way. C.K. did not voluntarily disclose the sexual assaults. The disclosure only occurred during the medical examination conducted by Dr. Potvin. Dr. Potvin observed evidence of sexual activity due to the presence of a sexually transmitted disease and the appearance of C.K.’s vagina. This triggered his questioning of C.K. C.K. then told Ms. Paterson-Collinge and then made disclosure to the police. She then makes further disclosures to Ms. Staniforth and then to Ms. Winkenweder. Finally, C.K. provided a more fulsome statement on September 29, 2014.

[72] The Crown notes that while C.K. may have had the ability to lie, she also has the ability to tell the truth. While C.K. may have some intellectual limitations, these do not enhance or distract from the reliability and credibility of her evidence.

[73] The Crown emphasizes that C.K.’s first disclosure on September 10 was against her interest. She loved A.C. as A.C. loved her. She did not want to move out. This concern for A.C. is repeated in her second statement.

[74] The Crown notes that corroboration of C.K.’s evidence is not required. If there are any inconsistencies, the Crown cites the need to consider any possible explanation. In this case, the Crown refers to C.K.’s fear and her initial resistance to saying anything more. The Crown counted 14 or 15 times during the course of her first 90 minute interview with Constable Faris where C.K. describes her fear in the present tense. In contrast, during the second interview, C.K. describes her fear in the past tense.

[75] During the first interview, the Crown notes that there were not always clear denials that sex occurred on other occasions, and that on many occasions, C.K. simply does not answer.

[76] The Crown notes that C.K.’s demeanor changed between September 10 and 29, because she was no longer living in the F.E. home. She was now safe and free to tell her story.

[77] As for the statement that the sex happened every day, and given C.K.’s limitations, the Crown submits that C.K. could simply be referring to the fact that it could have occurred on any day of the week. The Crown notes that C.K. provided very specific descriptions of the sexual acts including one of anal penetration and very specific details about where and how the incidents took place. The Crown says it took 19 days, but in the end, C.K. was able to tell the entire story. The Crown submits there is only one inconsistency in the entire narrative and that is whether or not C.K. disclosed the existence of a bruise to Constable Faris.

[78] The Crown cites case law that provides that there is no inviolable rule as to how people will behave or how they will testify about sexual assaults and that no adverse inference can be drawn from delay alone. The Crown submits that C.K. is a good historian and she is capable of describing her schedule of activities. The Crown submits that C.K. is situated in time; she is able to recall movies she has seen and enjoyed, she is able to recall her favorite music and, on one occasion, C.K. even corrects Constable Faris.

[79] The Crown acknowledges that there may be some limitations, and that any concerns can be reconciled in this case. The Crown goes on further to submit that the court could discount the DNA evidence and still convict the Defendant, but that in this case, the Crown submits that the presence of F.E.’s semen in the middle of the towel, and consistent with what was described by C.K., is powerful corroboration. While Dr. Potvin’s evidence that C.K. was sexually active does not conclusively implicate the Defendant, it does corroborate C.K.’s statements that sex was occuring on a regular basis. The fact that no evidence was found in the results of the Rape Kit is no surprise given the evidence of Ms. Malik.

[80] The Crown emphasizes the evidence of Ms. Malik that the semen would have had to have been deposited directly; and any contact from another source would to have been more than incidental. Ms. Malik was provided with multiple scenarios and concluded that the direct deposit of the semen on the towel is the most plausible explanation.

[81] As for A.C.’s evidence, the Crown notes that she and F.E. had been living separate and apart for years. A.C. was out of the home six days a week and F.E. was alone with everyone else. The Crown notes A.C.’s uncertainties when confronted with the allegations. Her comments that she was not sure and that she made changes and arranged to have friends and L.C. drop by, emphasize her own doubts. More significantly, the Crown notes she did not confide in the one person she described as the daughter she never had. Even though A.C. knew the significance of the September 6 date and had the means to provide evidence that she had not been on vacation, she failed to provide it.

[82] As for L.C., the Crown submits he is so mortified and embarrassed by the accusations that he was prepared to say anything even when confronted with the evidence of F.E.’s semen on the towel.

[83] Finally, the Crown submits that there is no evidence of malice or of a motive to fabricate on C.K.’s part, and the original disclosure was adverse the case interest. If C.K.’s story changed over time, it was because she finally felt safe to tell it.

Conclusions

[84] The allegations span over a period of 22 months and include numerous incidents of sexual assault. Three specific incidents were referred to which I call: the A.C. incident, the L.C. incident and the towel incident. A.C. and L.C. gave evidence on behalf of the Defendant, and it is agreed that W. (D.) is applicable.

[85] Put this way, if I believe the evidence of A.C. and of L.C. that F.E. did not commit the assaults that they allegedly witnessed, I must find him not guilty of those assaults. If I am unable to decide who to believe about those incidents, I must find F.E. not guilty of those assaults because the Crown would have failed to prove his guilt beyond a reasonable doubt. If A.C. and L.C.’s evidence leaves me with a reasonable doubt about F.E.’s guilt of those incidents, I must find him not guilty of those assaults. Even if L.C. and A.C.’s evidence does not leave me with a reasonable doubt, I can only convict F.E. if the rest of the evidence that I do accept of his guilt proves that guilt beyond a reasonable doubt.

[86] In this case, the Defence called evidence with respect to two of the three specific incidents. If I have a reasonable doubt about F.E.’s guilt with regard to those incidents, I am being asked to conclude that this doubt, along with the frailties, contradictions and inconsistencies in C.K.’s evidence, are sufficient to raise a reasonable doubt on the charges as a whole.

[87] As for A.C.’s evidence, it is apparent that she wants to believe her husband, she is horrified and ashamed by these allegations. She has lived in the small community of Carleton Place all of her life. She was out of the house most of the time; working long hours at two jobs, and financially supporting the family. F.E. was alone with C.K. and the other residents for long periods of time. There was no close supervision. She and F.E. have been essentially living separate and apart under the same roof since 2011. They kept separate bedrooms at opposite ends of the house. C.K. slept on the same floor as F.E. until J.B. moved out. These allegations undermined everything she had worked so hard for and this is why she as unable to come to terms with evidence of F.E.’s sperm and C.K.’s DNA on the towel.

[88] In the end, I did not find her evidence credible. She herself expressed her own doubts about her husband. When confronted with the news of J.B.’s allegations, she testified that she did not know what to believe. Even though Ms. Paterson-Collinge assured her that the Community Living Association did not believe J.B., A.C. still arranged to have friends and her own son, L.C., drop by the house to see what might be going on. Even though she described C.K. as the daughter she never had, she never once spoke to C.K. to ask her if there was any truth to J.B.’s allegations. She did move C.K. to the downstairs bedroom closer to her. She admitted that when she learned of these charges against F.E., she did not know “if it was true or not.” I conclude that she simply did not want to know.

[89] When confronted with C.K.’s evidence that she had “caught them”, one of her responses was not a denial of the event, but rather a statement that she was not the one who saw them; in other words, it must have been someone else.

[90] Her evidence that she was not away on vacation on the date of the towel incident did not come from a specific recollection. I found that troubling since she has known about the significance of that date for three years and she could have verified it.

[91] When confronted with her statement that “she didn’t believe it” she said “in her heart, she didn’t believe the allegations, but in her head she did not know what to believe.” She said that there are lots of reasons for her belief, but did not provide any details.

[92] Similarly, I did not find L.C.’s denial credible. He contradicted A.C.’s evidence that she asked him to stop by unannounced to check in on his father and C.K. I did not believe his statement that he would never drop by the house without calling first. He grew up in that house and he knew his father would always be at home; there was no reason for him to call first.

[93] More importantly, when confronted with the towel containing the physical evidence of his father’s semen and C.K.’s DNA, he still refused to believe the allegations. It was evident to me that he was prepared to say anything to save the man he came to know as his father.

[94] C.K.’s evidence about those incidents was quite specific and detailed. She described the A.C. incident as anal intercourse. She described what she was wearing, what articles of clothing were removed and the act performed. A.C.’s discovery led her to go downstairs and promise A.C. that that would never happen again.

[95] As for the L.C. incident, C.K.’s evidence is again rich in detail. She was watching TV, she and F.E. were on separate couches. She accurately described the door L.C. would have entered. She described conversation she overheard. Her description of L.C. “dropping in” is consistent with A.C.’s evidence that she asked him to do that.

[96] There are some issues with C.K.’s evidence; notably with her evidence that the L.C. incident happened the very next day after the A.C. incident. It is apparent that she has some difficulty recalling days and dates. It is equally apparent that she does not appreciate the nuances of ordinary conversation. She is childlike and she takes things literally. For that reason, her evidence that the sexual acts occurred Monday, Tuesday, Wednesday, Thursday, Friday, Saturday, and Sunday can be understood as meaning that the sexual assaults could occur on any day of the week when A.C. was out and the others were in bed.

[97] As for the apparent contradictions arising from C.K.’s statements to Ms. Staniforth and Ms. Winkenweder and others that “A.C. did not know”; while at the same time alleging that A.C. had caught them “in the act”, those statements were made when the only disclosure at that point in time had been with respect to the towel incident. As such, C.K’s statement was accurate. A.C. would have not known about that incident. Her fear of telling A.C. could have arisen because she had promised A.C. that it would not happen again. She also expresses concerns for A.C.’s safety.

[98] There is no question that the most significant contradictions arise in the conflict between the two statements taken 19 days apart; the earlier statements that the sex happened only once, and the later one where she said that the sex acts occurred on a regular basis. In my view, these contradictions are easily explained by the simple fact that C.K. is no longer living in the F.E. home. C.K. had a strong relationship with A.C.; she loved A.C. and she was dependent on the F.E.’s. C.K. could not go back to live with her mother. Her initial statement is replete with references to her fear as to what might happen to her. That was not a voluntary disclosure. Her body language and demeanor reflect her distress. In contrast, she is significantly more at ease when she makes her second and more fulsome statement. Her speech is not perfect, but she is very clear with respect to what happened, and I have found her to be consistently credible both in her recorded statements and in her testimony in court.

[99] I am aware that this finding of credibility is not sufficient by itself to establish proof beyond a reasonable doubt. As the Court of Appeal said in R. v. Hull, [2006] O.J. No. 3177 at para. 5:

5 W. (D.) and other authorities prohibit triers of fact from treating the standard of proof as a credibility contest. Put another way, they prohibit a trier of fact from concluding that the standard of proof has been met simply because the trier of fact prefers the evidence of Crown witnesses to that of defence witnesses. However, such authorities do not prohibit a trier of fact from assessing an accused’s testimony in light of the whole evidence, including the testimony of the complainant, and in so doing comparing the evidence of the witnesses. On the contrary, triers of fact have a positive duty to carry out such an assessment recognizing that one possible outcome of the assessment is that the trier of fact may be left with a reasonable doubt concerning the guilt of the accused.

[100] At the same time, I am mindful of the caution expressed by the Supreme Court of Canada in R. v. D.D. [2000] 2 S.C.R. at para. 65:

65 A trial judge should recognize and so instruct a jury that there is no inviolable rule on how people who are the victims of trauma like a sexual assault will behave. Some will make an immediate complaint, some will delay in disclosing the abuse, while some will never disclose the abuse. Reasons for delay are many and at least include embarrassment, fear, guilt, or a lack of understanding and knowledge. In assessing the credibility of a complainant, the timing of the complaint is simply one circumstance to consider in the factual mosaic of a particular case. A delay in disclosure, standing alone, will never give rise to an adverse inference against the credibility of the complainant.

[101] Although Dr. Potvin’s evidence does not point conclusively to the Defendant, the results of his examination confirmed C.K.’s statements that she had been having sex on a regular basis. While corroboration is not essential, the towel is critical evidence in this case. That towel is a distinctive element in C.K.’s description of the incident that took place on September 6, 2014. Its presence in the hamper, exactly as C.K. described it, completely corroborates her evidence as to how the sexual assault occurred. Notwithstanding all of the efforts of Defence counsel to undermine Ms. Malik’s evidence, I am satisfied that the Defendant’s semen (and sperm) and C.K.’s DNA were found at exactly the same spot on that towel.

[102] There is no evidence to support the possibility that the sperm was deposited on that towel indirectly or in any way other than described by C.K. There is no evidence that the Defendant masturbated and ejaculated at some other location that would have allowed that semen to be transferred to that towel. The DNA evidence confirms C.K.’s evidence completely about the last incident of sexual assault and it repairs any frailties in C.K.’s evidence about the other sexual assaults by the Defendant.

[103] For these reasons, I find that the Crown has established F.E.’s guilt beyond a reasonable doubt and I make a finding of guilt on both counts in the Indictment.

Mr. Justice Robert N. Beaudoin Released: October 31, 2018