R. v. T.C., 2018 ONSC 6338

CITATION: R. v. T.C., 2018 ONSC 6338

COURT FILE NO.: CR-16-SA5012

DATE: 2018/10/23

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

Her Majesty the Queen

– and –

T.C.

Chantal Lefebvre for

Her Majesty the Queen

Brett McGarry for

T.C.

HEARD: June 11, 12, 13, 15, 18, 25 and 26, 2018 (at Ottawa)

reasons for decision

Pursuant to s. 486.4 of the Criminal Code there is a continuing order in place making it an offence for any person to publish information that might lead to disclosure of the identity of the complainant.

o’bonsawin J.

Background

1This is a very sad case. It consists of the complainant, VC, alleging that her brother, TC, who is four years older than her, sexually assaulted her from ages four to sixteen-seventeen years old.

2TC pled not guilty to six charges. He is charged with the following:

1. Between the 14th day of July in the year 1991 and the 31st day of December in the year 2000 at the City of Ottawa in the East Region did commit a sexual assault on VC, contrary to Section 271, subsection (1) of the Criminal Code of Canada, R.S.C. 1985, c. C-46 (“Code”);

2. Between the 14th day of July in the year 1997 and the 31st day of December in the year 2000 at the City of Ottawa in the East Region, did, knowing that the other person, namely VC, was by blood relationship to him a sister, have sexual intercourse with that person, contrary to Section 155, subsection (2) of the Code;

3. Between the 14th day of July in the year 1997 and the 31st day of December in the year 2000 at the City of Ottawa in the East Region, in committing a sexual assault on VC, use a weapon, namely a hairbrush, contrary to Section 272, subsection (2) of the Code;

4. Between the 14th day of July in the year 1997 and the 31st day of December in the year 2000 at the City of Ottawa in the East Region, in committing a sexual assault on VC, use a weapon, namely a doll, contrary to Section 272, subsection (2) of the Code;

5. Between the 14th day of July in the year 1997 and the 31st day of December in the year 2000 at the City of Ottawa in the East Region, did willfully obstruct, interfere or interrupt with VC in the lawful use and enjoyment of property, namely her dolls, the value of which did not exceed five thousand dollars, and namely thereby commit mischief, contrary to Section 430, subsection (4) of the Code; and

6. Between the 14th day of July in the year 1997 and the 31st day of December in the year 2000 at the City of Ottawa in the East Region, did willfully obstruct, interfere or interrupt with VC in the lawful use and enjoyment of property, namely her clothing and bedding, the value of which did not exceed five thousand dollars, and namely thereby commit mischief, contrary to Section 430, subsection (4) of the Code.

3At the commencement of the trial, the Crown and the Defence agreed to the following:

• section 486.4 Order regarding the non-publication of information that could lead to the disclosure of VC’s identity;

• sub-section 486.1(2) Order permitting VC to testify in the presence of two support persons from the Victim Support Program;

• sub-section 486.2(2) Order permitting VC to testify behind a screen in order for her not to see TC while she is giving evidence;

• the voluntariness of the statement is admitted; and

• the date, jurisdiction and identity are admitted.

4The Defence also made the following admissions:

• on February 24, 2014, Sgt. Ryan of the Guelph Police Service collected items from VC;

• the items were photographed and sent to the Centre of Forensic Sciences (“CFS”) for analysis;

• the continuity and integrity of those items from the time they came into the possession of the Guelph Police Service on is admitted;

• on October 31, 2016, Sgt. Rossetti of the Ottawa Police Service (“OPS”) collected a DNA sample from TC which was sent to the CFS;

• the continuity and the integrity of TC’s DNA sample is admitted; and

• the male DNA profile detected on the dolls analyzed by the CFS is that of TC.

5The Crown called two witnesses to testify: the complainant, VC, and Heather Shacker, a Forensic Scientist of the CFS. The Defence called three witnesses to testify: CC and JC, the parents of TC and VC, and AM, TC’s ex-wife. In reply, the Crown called Dr. Sudha Dehejia, VC’s former pediatrician, to testify.

Evidence

6I will review the evidence of the witnesses.

7I summarize VC’s evidence as follows:

• VC is currently 34 years old, married and has two children. She has a university science degree.

• TC is her brother and he is four years older than her. They lived in a single family home with their parents in a small rural town. She remained in her parents’ house until she was 19 years old and left to attend university in Guelph.

• VC’s father, CC, was a butcher with irregular hours and worked as a bus driver in the morning and afternoons. He also drove charter buses. CC also worked on different dairy farms milking and during the seasons for hay. VC’s mother, JC, was a registered nurse at a hospital and in an elderly lodge. JC stopped working around 1995-1996 because she became quite ill and went on disability for fibromyalgia and chronic fatigue. During that time, JC used a wheelchair, walked with a cane and slept a lot, up to 20 hours per day. This continued when VC was in high school.

• TC described that renovations occurred on the family house around 1998.

• VC did well in school. TC was in the special needs program at school. Her brother has Crohn’s disease, tubes in his ears, ADD or ADHD. TC was in grade 12 and she was in grade 9 when they attended the same high school. Their mother, JC, was always concerned about TC’s health. As TC got older, he did not have as many problems. When TC would pass a class, there would be a party and it was a happy time. However, when VC got 100% in her parenting class or 80s and 90s in other classes, her parents always told her she could do better. “My parents really put my brother on a high pedestal and so as I got older, he was really able to use that against me that my parents really didn’t like me. Um, at least that’s how I really felt growing up was that I, I didn’t really belong” (p. 50 of Trial Transcript). Her mother always made excuses for TC. Oppositely, during VC’s whole life, she felt that she could never be good enough for her parents.

• They were a very active family. VC was in Guides and she skied, played soccer and basketball. TC skied and played soccer.

• JC is very involved in the church. She has been on the church’s executive for quite a while and is currently the Treasurer. Many of her parents’ friends are members of the church.

• VC’s first vivid memory of TC sexually assaulting her is when she was four years old and TC was eight years old. She was sleeping on her back and was awoken by the feeling of her diaper being lifted off of her, she was trying to figure out what was happening and saw a smaller hand touching her vagina. TC stroked and opened up her vagina lips and looked inside. VC felt scared and confused. VC was wearing a diaper that evening because she had wet her pants, CC spanked her, put a diaper on her and sent her to bed.

• At the time of the first sexual assault, VC’s bedroom was located at the back side of the house looking out onto the backyard. TC’s bedroom was located right across the hall and her parents’ bedroom was next to her brother’s bedroom, their doors were side by side. After the renovation, VC’s door to her bedroom changed places and her parents’ bedroom door changed to around the corner in the new section of the house. At one point, TC’s basement bedroom walls were knocked down as part of the renovation. VC was unsure about the dates of TC’s bedroom moves. A few months after the renovation just before leaving to go to university, VC’s parents removed her bedroom door from its frame since she had slammed it.

• TC continued to come into VC’s room every night and she would often awake to him touching her. He touched her on her legs, her belly and vagina, and when she got older, all the way up to her breasts. TC progressed to inserting a hair brush and toothpaste rolls in her vagina when she was quite young. TC then started inserting his fingers inside of VC’s vagina when she was in grades 5, 6 and 7. She had memories of TC coming into her bedroom at night and him sexually assaulting her in the basement from when she was five years old until she was sixteen years old.

• At night, VC cocooned herself in her blankets and slept with her back against the wall. “I’d wrap them all around myself like a, like a tight fitting sleeping bag. So I’d take my under-blanket and I’d wrap it underneath my bum on both sides and it’d be tucked in at the end of the bed. And then, all around underneath my shoulders and then same thing with my comforters. I’d kind of tuck them all in, all around me. And then we had, um, a comforter that our – my nana made and when that one was on my bed I would often line in front of me so on the outside part of my, my bed, I would kind of roll that up and line that along the outside part of my bed as a, like a blanket wall” (pgs. 33-34 of Trial Transcript). If VC woke up and TC was in her bedroom, she would try to hit him with her cabbage patch doll. In response, TC would crouch down. TC either waited for her to fall back asleep or he went away. VC said that she was afraid to look over the bed and she was afraid he would come back. Later, VC would wake up and TC had already put his penis inside of her vagina. VC confirmed that she did not fight off her brother from four to six years old, it was more when she was seven to nine years old. As she got older, VC would try to roll, kick and push TC off of her but he was normally able to hold her down. Sometimes she screamed for him to get out. However, no one ever came in to check what was happening. At one point, VC said it got easier to let TC do what he wanted instead of fighting him off.

• When her parents caught TC in VC’s bedroom, they said he was sleepwalking. This happened many times, throughout the end of grade four to five. VC clearly remembered two occasions when this happened and her parents guided TC back downstairs.

• JC was extremely strict and they had to come home right after school. TC arrived home first. When they arrived, they did their homework, chores, compost, dishes, dusting, vacuuming and laundry. Afterwards, when they were younger, VC and TC were allowed to go play downstairs in the basement.

• VC was not sleeping at night because she wanted to anticipate TC coming into her bedroom. Consequently, she often fell asleep in class and on the bus. VC pointed out in Exhibit 6, her junior kindergarten photograph, that she was the child in the second row who was yawning. In addition, her parents got called to come and pick her up when she fell asleep in the bus.

• In the basement, when VC was either seven or eight years old, TC wanted to play the doctor game with her. At the time, she did not know what that meant. “And when I was younger I thought it was normal. I thought it was what supposed to happen” (p. 40 of Trial Transcript). It was a common occurrence. TC examined VC’s eyes, ears, took off her shirt to check her nipples, then progressed to taking off her pants and touched her legs, removed her underwear and played with her vagina and looked at it. TC also inserted his penis inside of VC’s vagina. “Often when he was playing doctor he would make some noises, touch himself, have a weird grin on his face. Um, I started to learn just I – I started to learn to look the other way and I’d take myself into my own little world in my head” (p. 46 of Trial Transcript).

• There were two occasions where another person witnessed TC sexually assaulting VC. Once at Christmas when they were both young, TC played doctor with VC and their aunt T (T was born the same year as VC and they referred to each other as cousins). T’s breasts had developed faster than VC’s. VC was examined first at the doctor’s office. TC listened to her heart, breathing, checked her face, lifted her shirt and checked her stomach, put his hand down into her pants and touched her vagina then entered his fingers inside of her vagina. He did the same to T but VC was not sure if TC put his fingers inside of T’s vagina. VC and T may have mentioned the incident afterwards but they did not talk about it. The second occasion was when CC walked in on TC raping VC in his basement bedroom. As usual, it had started off with playing doctor. At the time, her parents had company upstairs and there was a bit of noise because of the visitors. TC told VC to be quiet and to go into the bedroom. VC’s shirt was in the playroom and her pants were at her ankles. TC was naked. Once there, he told her to be quieter. VC went over to TC’s bed and laid down. From there, TC continued to play with her vagina and inserted a Barbie doll leg, hairbrush and his fingers into her vagina. TC also inserted his finger inside of her anus and VC remembered this because it hurt a lot. TC continued to play what he called doctor. He then inserted his penis inside of VC’s vagina. TC was making noises and weird faces. VC did not want to do this with TC. He was grunting and telling her to be quiet. When he heard some noises, TC put his hands on VC’s chest and told her to be quiet. Then CC walked in. CC was shocked and said: “What the fuck are you guys doing?” (p. 46 of Trial Transcript). He told VC to get out and started yelling at TC: “What are you doing? What is wrong with you?” (p. 46 of Trial Transcript). VC ran and hid under the soccer table, pulled up her pants then went and got her shirt in the playroom. She ran up the stairs and tripped at the top, then locked herself in the bathroom and cleaned up. CC came upstairs, knocked on the door and asked her: “Are you ok?” VC responded: “yeah” and he said “ok” and walked away (p. 46 of Trial Transcript). They never discussed it again. The frequency of the nightly attacks and assaults increased after CC walked in on the rape and afterwards, VC was called in to speak to “some people” the following year. The Crown specifically asked VC if she wanted TC to do any of this to her. VC responded “no” (p. 45 of Trial Transcript).

• When VC was approximately in grade five, TC started playing with his penis near her mouth and it progressed to him putting his penis inside of her mouth. TC inserted his fingers and Barbie doll legs inside of her vagina. TC also inserted hair brushes inside of her vagina and then into her mouth. One was a prune brush with round bristles on the smaller side with a purple round handle and he inserted the end inside of her vagina. The other was a black plastic hair brush with a black rounded shaped handle and he inserted the handle inside of her vagina. When he inserted items inside of her vagina, VC testified it was uncomfortable, painful and she would often look off to the side and go into her own world. This happened throughout public school right up to when the intercourse stopped when she was 16-17 years old. Inserting objects into her vagina was part of what he did prior to inserting his penis inside of her vagina. These incidents happened in different areas of the family house: mainly inside of her bedroom and the playroom in the basement but also in the living room when TC babysat VC.

• When TC turned 12 years old, he got his babysitting certificate. He babysat VC before he received his certificate and afterwards. He babysat VC when their parents went out for an anniversary, etc., or when they got back home after school. VC described falling asleep in the black leather chair in the living room while watching TV and waking up to having TC masturbating, urinating and defecating on her. He also did this when she was in her bed. There was a specific time when VC woke up with TC’s bum in her face and he defecated inside of her mouth. She freaked out, pushed him and ran into the bathroom, gagged and vomited. VC took a shower and got cleaned up and yelled at TC a bunch of times that he was disgusting. She was 14-15 years old at that time.

• When TC forced VC to perform oral sex on him, he did not ejaculate in her mouth. When he inserted his penis inside of her, he did not ejaculate inside of her. TC ejaculated on her stomach.

• When VC was dating AS, TC was still sexually abusing her.

• After they went on their family trip out west in 1997-1998, VC remembered TC attaching her Barbies by their vaginas and masturbating between them. TC also urinated on them. It was a common occurrence for TC to masturbate on VC’s belongings including her underwear, her toys, her dolls (the ones with the opening and closing eyes – the eyes would be gooey and closed shut from TC’s semen), her hairbrush and her bed. When VC brought the dolls to JC to clean them off, she yelled at VC to stop making them dirty and eventually VC brought them to the sink and washed them herself. VC would open up her drawer to find that her underwear or her tampons had TC’s either dry or fresh semen on them. TC also urinated and defecated on her bed. This happened when she was in high school, and was old enough to launder and clean up the mess. When this happened, she cleaned it off and didn’t change the sheets. She slept in her bed, stripped off the sheets then tossed them in the laundry the next day. JC gave VC trouble for causing more laundry. TC continued to masturbate on VC’s items until she was 19 years old.

• VC testified that the sexual abuse was almost nightly unless she was out of the house like when they went out west on their trip. Specifically with regards to the intercourse, VC remembered them being here and there at night and that a lot of it went together because of how frequently it happened. It was regular for her. VC was extensively cross-examined about when the sexual intercourse started. She testified that it was probably when she was about nine years old. When pressed further about the start of the intercourse, she confirmed that she told the police on February 25, 2014, that things progressed to vaginal intercourse in grade seven when she was thirteen years old. VC explained: “In this particular part, unfortunately we can’t see the video, but in that I was – it was like thinking out loud. We were going through stuff and I was trying to remember the timeline. And then if you continue on to continue reading I remember – oh, wait a second. Actually, it was before that because my dad had obviously walked in on everything. So, putting together the timeline, um, as I said I’ve never been involved in any way with the police. I was extremely, just nervous and obviously all the emotions and first time telling somebody everything just blurts out” (p. 146 of Trial Transcript). Then VC continued to explain: “I said prior to that that I wasn’t exactly sure when it started and that, um, I was going through everything in my head and then upon, upon sitting down and really going through my brain and my memories which is really hard to do. It’s not like you want to open up stuff like this and make yourself cry and get upset. And going through I was remembering back to, well we had the party with the, the World Series and going through, ok, I was at this camp in this year and I did camp with Girl Guides and this is what I did with Girl Guides and this. So, you know, we went out west, So, putting together the timeline of, of my life and really sitting there and really thinking it over, um, that’s why I’d gone in and let them know that I do not know that in that particular time I can relate [it] to the World Series as to when things had started. I still cannot tell you an exact date or time that it actually did progress into, um, the vaginal but I know at those times that it was happening. And all the way up” (pgs. 147-148 of Trial Transcript).

• During high school, TC worked at RN in the strawberry patches and corn fields. He had an interest in horticulture. It was a very physical job lifting trees and baskets of corn. VC could not physically lift them.

• When VC reported the sexual assaults to the Guelph Police, she brought a number of items to them when she was interviewed. She brought an orange Flintstone bag which included old toys (dolls). VC had received a tub from her parents that included some of her dolls with their clothing including the ones with the opening and closing eyes that TC frequently masturbated on. Her toys had been put in a cedar chest when her parents built the addition to their house.

• Since VC’s parents became aware of her allegations against her brother TC, they have not talked about the details. If she did not have children, she would never speak to her parents again. It is a forced relationship. When her parents come to VC’s house, it is normally for a short visit. JC continues to be condescending and controlling. VC has trouble standing up to her.

• VC suffered from a lot of strep throat infections to the point that before she was even a teenager, antibiotics were not working. Eventually she had her tonsils removed during her first year of university. VC also had a lot of yeast infections. JC bought her Vagisil and told her that it was common to get yeast infections. Normally, it was home treatment unless it got very bad and then she went to the doctor.

• When VC was at a sleepover at her friend’s house, CC showed up and told her she had to go to a meeting. VC did not know what the meeting was about. When they arrived, there was a lady in the room (she now thinks that it maybe someone from the Children’s Aid Society (“CAS”)) who wanted to know if TC had ever touched her or hurt her. VC was too scared and did not really answer her questions. The Crown asked her what she was afraid of. VC replied: “I thought it was how it was supposed to be. I always got trouble for stuff that he had done. My dad hadn’t said anything to anybody when he walked in prior to this. Um, I was so young, I was scared, I mean, I was – I told them my brother several times that – if I did say anything ever they would take me away, um, and I mean now looking back that’d be wonderful but at the time, I mean, you’re afraid of the unknown and you’re a kid and your parents are your parents. I didn’t want to let them down. I didn’t want to bring shame. I didn’t really, I didn’t really, yeah, comprehend the magnitude” (pgs. 64-65 of Trial Transcript). During cross-examination, the Defence put to VC that it was on January 3, 1996, when she was in grade seven that she met with the CAS worker. VC agreed that this made sense. She explained that she remembered this just prior to the Preliminary Inquiry.

• After the interview when VC returned into the car with CC, he asked her if she had said anything and she said “no” and he responded “good” (p. 62 of Trial Transcript). “I thought that it would fall on deaf ears and that is just how it was” (p. 62 of Trial Transcript). VC was pretty sure that this meeting happened when she was in grade seven when she was still very childish and played with Barbies. Prior to this meeting, TC was able to babysit in the community and a little girl from the church. There was an incident with the girl from the church.

• After the girl’s complaint and VC’s meeting with the CAS worker, her parents did not ask her about TC’s behaviour towards her.

• When asked during examination why she did not say anything to her parents, VC responded: “It’s a culmination of, of a few things. Um, whenever, whenever I take soiled items to my parents or my mom I’d get in trouble and yelled at. So, it was turned into being my own fault. My father walked in on my brother assaulting me and the only thing that came out of it was him asking if I was okay and yeah, and that was the end of it from there. So, it never got brought up or anything” (pgs. 61-62 of Trial Transcript).

• There were also many questions regarding VC size versus TC’s size. VC agreed that in grades five and six, she was a physical match for TC.

• When asked about her relationship with her brother, VC testified: “I tried to act like there was nothing there. I’ve since kind of discovered my, my whole life I wore a mask. I’d put on a, I’d put on a smile and pretend that everything was okay and I didn’t want people to question or ask or I didn’t want to seem abnormal or like I was damaged in some way. So, I would try to just be like what I would see other brothers and sisters would be type idea. Like, not as close but, you know, where they chitchat or talk or kind of be around each other and that kind of thing. It is - he is my brother. He’s in my, my house and my family so I mean it was, it was strained and very difficult for me” (p. 80 of Trial Transcript).

• VC knew AM who was a couple of years younger than her. In the summer just before TC and AM started seeing each other, AM told VC that her mother was concerned about her boyfriends since they had been abusive towards her. AM asked VC if she had every experienced something similar. VC told AM that she was abused by her brother when she was younger but did not provide her with the details. After TC and AM started going out, her parents forced VC to go out with TC and hang out with them.

• Once AM told VC that she was marrying TC, VC stopped talking to her and pulled away. In September 2007, when VC was on maternity leave, AM called her and wanted to know the details of what had happened to her because TC was becoming very forceful in the bedroom. AM told VC that TC pushed her down and hit her, was violent, rough and forceful on her. VC told her that she should get counselling.

• VC only spoke to her husband about the sexual abuse but not in detail. She also told her psychiatrist and physician. One time in high school, she brought it up to her boyfriend AS but did not give him any details. However, VC told AS that she was abused when she was younger and did not tell him who abused her and that it continued at that time. VC didn’t want AS to look at her differently. AS broke up with VC about two weeks later.

• In August 2006, VC was a bridesmaid at TC and AM’s wedding because JC insisted. VC remembered spending time with some cousins out by the swings, smoking weed and drinking. VC agreed during cross-examination that a 15 year old girl named JH was out there with them. JH got pretty sick and her father got very angry. They alleged that VC’s husband had touched JH and there was a tussle between CC and her husband.

• In 2009, VC’s father suffered a stroke. There was muscle tone damage on his right side and issues with his foot. This has led to her father losing his “filter” (p. 89 of Trial Transcript).

• CC and TC had a landscaping business together after TC finished college. JC told VC that there was incident in 2011 where TC decided to walk away from business and it led to a huge fiasco with lawyers.

• During cross-examination, VC conceded that she may have sent a Facebook message to AM on November 3, 2011, about a black brindle boxer even if she did not recognize it.

• VC also agreed that her and her family had monthly therapy sessions from 1994-1998. However, VC testified that she did not remember going into the therapy room.

• To VC’s knowledge, her parents have not spoken to TC in quite some time and there is still a lot of anger about the family landscaping business.

• In January 2014, VC decided to report her allegations to police when she received a mass email forwarded to her by JC that TC and AM were expecting a child. The email said that the child was MA’s child and not TC’s child. However, they would all live together. Knowing that there was another child coming into the world, VC said that she did not want to see anyone having done to him/her what was done to her.

• VC’s parents told her that they were called in to speak to the police after she reported her complaint. Her parents were very angry, especially CC even to this day. VC and CC have not spoken to each other much since she made her complaint to the police. CC made it quite clear that he was “pissed off” (p. 65 of Trial Transcript) because they were leaving for a cruise and put a damper in his day, and then they came up to see her and her family just after the long weekend.

• During cross-examination, VC confirmed that she spoke to the Crown and police. She had two interviews with the Guelph Police. In May 2018, she contacted Sgt. Helmer of the OPS because she had a few more recollections. On June 8, she spoke to the OPS and the Crown in person. When she had forgotten important details, VC followed-up to advise them of that. During the Preliminary Inquiry in April 2017, VC confirmed that she had the opportunity to review her initial police statement. She watched and read the transcript. As a result, she provided more details to the police and Crown. VC expanded on the details she had forgotten about at the Preliminary Inquiry. The day before her testimony at this trial, VC confirmed that following her review of the transcript of the Preliminary Inquiry, she provided the police and Crown with new details of her recollection. “And I had noticed a couple of places with understanding the way the question was asked and then the way I had answered it with reading through, um, I was kind of realising that I may not have been completely clear” (p. 98 of Trial Transcript). When the Defence pressed VC that it was very hard to remember what happened to her when she was four years old, she replied: “I remember every bad thing that happened. I remember all the negative stuff my parents would say to me, all the way up from the time I was young, all the way up. I remember all the abuse that happened. I don’t remember some of the fun times. Unfortunately, that’s how our brains work and we remember the bad times” (p. 133 of Trial Transcript).

• During cross-examination, VC agreed that she did not share the following details prior to the trial: her father had spanked her the day he put the diaper on her; the first time that her brother sexually assaulted her when she was four years old, her brother had opened her vagina lips; her bedroom door had been removed from its frame; when her father witnessed her brother raping her in the basement, there was company over; she tripped at the top of the stairs after the rape; VC never told anyone that TC inserted his fingers in her anus; at times she dumped perfume on her bed if there was an odor; and before she left for university, her mattress was destroyed. When asked about the smell of her mattress during re-examination, VC stated: “it smelled at time and if it was really humid or touching it. I was never sitting on it and if leaning over the bed, you could smell it a little bit, at times it smells stronger but it dissipates over time” (p. 250 of Trial Transcript)..

• VC advised that she was aware of this information that the Defence deemed “new” and explained that there was the level of opening up and talking about it with police. She was not comfortable talking about this and there were things that she had not started working through. VC had to be comfortable to open up about it. She had not divulged any of this information that had happened to her growing up and all the abuse and issues with JC. She had only just started going in for counselling through her crisis and processing it. VC had not even told this to her counsellor, it just came out. It was the first time that VC told someone else other than her counsellor and husband. It was difficult for her to know what kind of information was required unless the questions were asked of her; like the perfume she would put on her bed and who is upstairs. She was not sure if this was relevant. She was reliving all of her memories and processing them, going through her life piece by piece.

8I summarize CC’s evidence as follows:

• He is 65 years old and owns a landscaping business.

• CC’s stroke impacted his memory and the left side of his body, and sometimes he cannot recall certain things or events. CC conceded that he has forgotten about events in his life that others have talked about. He was not tested for his memory after his stroke.

• CC agreed he had great difficulty with dates. He was not able to confirm the year of VC’s birth, “83’-84’, whatever it is” (p. 300 of Trial Transcript).

• TC was ill from the time he was born. He had Crohn’s, asthma, “all kinds of stuff. He ended up in the CHEO hospital. I lived at CHEO for 2 months […] They didn’t even expect him to live” (p. 307 of Trial Transcript). This happened when TC was about five years old. When TC was younger, he was skinny and could not gain weight. “He was the scapegoat, Mr. skinny bullied at school” (p. 322 of Trial Transcript). However, he was still able to live an active lifestyle and was in sports like soccer, skiing and hiking. TC also went camping. Although he was not the largest kid, CC agreed that TC was active enough.

• When the children were little, CC was the house husband from the time of TC’s birth until the time when they were in middle-school. When the children were in middle school, CC started driving school buses and charters buses.

• CC was confused about the dates of when TC and VC were in school and whether or not they overlapped.

• When VC was aged between four and twelve years old, CC was at home when she returned from school. However, during cross-examination he conceded that he was not always at home when the children returned from school. After school, their routine was that CC put supper on, the children did homework and they had sports stuff and whatever was on the schedule. After they finished their homework, VC and TC went to play downstairs. It was common for them to play by themselves and he did not always watch over them when they were playing.

• VC was involved in the Girl Guides and worked her way up. She was also in soccer and TC was involved in soccer, cubs and scouts. CC thought that TC started as a referee for soccer in high school.

• CC recalled that one time the bus company called about VC falling asleep in the bus. This was the only time they received such a call.

• When JC was on long term disability, CC did relief milking mostly on weekends and when the farmers went to funeral and weddings. He helped them in the morning and in the evening. During cross-examination, CC conceded that when he was working on the farm, he worked long days, from the morning and late into the evenings. It was labour intensive and very physical work that made CC tired when he got home and he had no trouble sleeping.

• JC was diagnosed with a lot of problems, chronic fatigue, fibromyalgia and three bouts of cancer. JC had cancer and had an operation right after VC was born. When she was off work, JC had mobility issues: she had a cane and a wheelchair. She had external assistance. JC also had issues with proper sleep and she was treated for this but CC was not sure if she was on medication. JC did meditation and used CDs to help her sleep. On the other hand, CC did not have trouble falling asleep. JC’s use of the meditation CDs or machine did not interrupt his sleep. In addition, they had a fan to circulate air in their bedroom that made sound and was on every night after the renovation. CC could tolerate sound when he slept.

• From the ages four to seven, the nighttime routine for VC was that a book was read and she was in bed by 7:00-8:00 p.m. When their bedroom was across from VC’s bedroom, CC could hear when VC moved, sounds like a bump of an elbow and her doll falling to the ground. “You might miss some but heard most of the stuff” (p. 450 of Trial Transcript). CC conceded that he did not get up when he heard noises but he would wake up. He also agreed that he did not get up when he heard people walking to go into the bathroom at night. During the evenings, TC sleepwalked when he was younger. It went on for a bit but was not an everyday occurrence. TC wandered around one night and banged into the furnace. Another night TC made a sandwich. They never caught him sleepwalking inside of VC’s bedroom. CC always intercepted TC before he went elsewhere in the house.

• CC did most of the laundry and he did everything in the house when JC was ill. VC never laundered her bedding. CC never saw anything that would indicate there was urine or feces on her sheets nor did he ever smell such an odor in VC’s bedroom. During cross-examination, he described VC’s bedroom as a “pigsty” (p. 328 of Trial Transcript).

• CC never noticed any signs of his black leather chair having feces or urine on it. The carpet surrounding the chair did not have any signs of this either.

• Their house was built in the mid-1940s and one could hear everything: hear people talking in the basement, someone coming down the hall, and the doors open and close. The bathroom door, the floors and the stairs squeaked. The house was not soundproofed. After the renovations, the acoustics did not change in the old part of the house.

• At night, their bedroom door was always open. The only time CC and JC’s bedroom door was shut was when they were intimate at night. This happened regularly when the children were growing up and into when they were in high school as well. VC always had her bedroom door closed. CC testified that he never removed her bedroom door. If her door was always closed, CC agreed that he could not know what was happening in VC’s bedroom. After the renovations, VC’s bedroom door was around the corner from their bedroom door. CC could not recall when TC’s bedroom was moved into the basement.

• Before the renovations, it was impossible that TC could sneak into VC’s bedroom nightly from age four. “You could hear anything in the house, [TC] used to stop breathing, he had Crohn’s and was in the bathroom many times per night and you would know when he was up.” (p. 295 of Trial Transcript). After the renovations, TC sneaking into VC’s bedroom would not have happened either.

• During the day, he used his workshop in the basement to build kids’ toys. However, he did not go down there during the evenings.

• When asked about VC’s description of the diaper incident, CC testified that this was not true.

• CC did not witness TC raping VC in the house. If he had seen that, “I sure would not have been very happy and I would have hauled him into a psychiatrist to find out what the hell that was about” (p. 294 of Trial Transcript). Even with his stroke a number of years ago, CC said he would not have forgotten about a rape. During cross-examination, it was put to CC that in his police interview when he was asked about the rape, he answered that “not that I recall” (p. 361 of Trial Transcript). However, during the trial, he was certain that it did not happen.

• Although CC did not recall when this happened, he recalled being called into the police station with TC. JC took the call from the police. All of the family went to the OPS station in the same vehicle. They were called because there were allegations that TC had sexually touched a girl that he was babysitting. On the way to the police station, CC told VC and TC to tell the truth. VC met with a social worker and he did not know what was discussed. After the meeting at the police station, TC was not allowed to babysit VC or anyone else. However, in cross-examination, it was put to CC that he told the police in his interview in March 2015 that TC did babysit VC after the visit to the police station.

• After the visit to the police station, CC said that JC and he talked to VC in the kitchen/living room and JC asked VC if she had ever been touched by TC. She replied “no” (p. 353 of Trial Transcript). The church minister knew about the allegations against TC because the girl’s family brought it to him first. CC conceded that he was ashamed about this. When the allegations were disclosed to the school, the police officer and the principal came over to their house and talked to JC. CC was upset by this, “a police officer overstepped his little bounds on the Young Offenders Act” (p. 354 of Trial Transcript).

• When TC was in high school, he worked after school and did seasonal work at the local nursery. He worked nights and every weekend when he was in school.

• CC agreed that JC’s involvement in the church is an important part of who she is. It was important the he and his wife act appropriately in the community and that his family be well regarded.

• CC agreed that JC’s adopted sister was VC’s age and they had Christmas with her. During that time, the children played together and there was no constant adult supervision when they were playing in the basement.

• During cross-examination, CC agreed that he disagreed with VC’s life choices. He thought VC used drugs even though he had never seen her use. In addition, CC said: “I am not impressed with who she is married to” (p. 355 of Trial Transcript). CC’s relationship with VC has been strained for quite some time. “She was always a handful from the day she was born. She’s always got her stubborn streak to her” (p. 356 of the Trial Transcript). He does not speak to VC on a regular basis and he found that VC changed when she moved out of town. Even though CC did not know the details about VC’s allegations of sexual assault from the age of four years old until she moved out, CC agreed that the first thing he said during his interview with police was: “What the hell is she up to. She’s been a problem from the day she was born” (pgs. 357-358 of Trial Transcript). CC told the police: “If they’re looking into something in Guelph, they better be looking into drugs and they’d better looking into drugs in a big way” (p. 360 of Trial Transcript). He thought that they should not investigate the sexual assaults but instead her drug use. He also told the police that VC could not hold down a job and that she’d had five or six car accidents. CC agreed that it was fair to say the he was angry with VC and blamed her for the charges. CC was also angry at the fact that according to VC, “I haven’t supported her for anything ever in her life which is a bunch of BS” (p. 372 of Trial Transcript). He was angry and not impressed that VC said this to their friends. CC testified: “She’s got the poor me syndrome” (p. 372 of Trial Transcript).

• As one point, CC and JC got a call from the Guelph Police and were told that VC was nude in a fountain and drunk. CC thought that VC became a different person after she moved to Guelph. CC does not think that VC is telling the truth even though he never spoke to her about her allegations and heard the substance about them. When CC was asked why he raised VC and could not give her one minute to see if she was telling the truth, he responded: “If I said anything to [VC] I would be getting an earful, a blow-up and everything” (p. 359 of the Trial Transcript).

• During cross-examination, CC agreed that he had met with counsel and JC at the same time to prepare for their testimonies. They knew the questions that would be asked and prepared their answers.

• During the trial, CC agreed that JC’s brother and wife were in court every day. CC had lunch with them the day he testified but he did not discuss the trial with them.

9I summarize JC’s evidence as follows:

• JC is 62 years old.

• JC is a disabled registered nurse. She worked at a hospital from 1976-1990 and for a county from 1990-1996. When she went off on disability in February 1995, TC was 16 years old and VC was four years younger. As of 1995, JC had a personal support worker three hours every day of the week who made meals, cleaned the house and did the laundry. She also had VON nurses, physiotherapy and occupational therapy. JC needed assistance to get out of bed since it was painful. Her husband helped her getting out of bed and to get to the bathroom. There were a bunch of people coming and going from their house constantly and over time, it gradually decreased and now she has 1.5-2 hours per week. From 1997-1999, JC used a walker. She also used a cane but not for the last five years. Her mobility issues gradually improved back to normal in 2013.

• JC currently volunteers as an Office Manager, Pastoral Coordinator and Elder at the church.

• Between 1990 and 1995, JC had terminal ovarian cancer and was on palliative care. She received radiation and chemotherapy treatments for five years. She had lost 65 pounds in two months. JC was working while she was receiving treatment and it was very difficult for her.

• JC definitely did not make a comment wishing that she had an abortion of VC. She had cervical cancer after she had TC and had to wait four years to have VC. During cross-examination, JC said that she did not have cancer during her pregnancy with VC, she had it after she was born.

• When JC worked, her hours were from 8:30-9:00 a.m. to 5:30-6:00 p.m. Then it took her 45 minutes to one hour to get home. At times, she was not home until 7:00 p.m. However, if VC had a game, JC went into work earlier and left earlier. JC knew of the household routine because CC told her about it. According to JC, the children never played downstairs in the playroom after dinner. They had activities after dinner: they all played board games, talked and JC and VC had tea parties in the living room with her bears in chairs. When told that CC said that the children played downstairs after dinner, she said he was incorrect. “If they played in the basement after dinner he would’ve been down there working in his workshop and it would have been extremely rare that they did that after dinner” (pgs. 435-436 of Trial Transcript). JC agreed, however, that the children were sometimes alone in the basement together. She agreed that she seemed intent on conveying the message that VC did not go often downstairs because it was the truth and reality.

• JC had insomnia and due to this, she had certain fatigue and weakness. This lead to her to taking naps during the day. She went for sleep studies and found out that she gets her REM sleep at 2:00-3:00 p.m. in the afternoon. Due to her sleep issues, she could definitely hear noises. If JC was on medication, it did not inhibit her from hearing things. She was on medication for narcolepsy and this kept her up and awake. At times when she could not sleep, she went to lay on the living room couch and listened to meditation tapes. She also used other sounds like nature sounds to help her. She liked white noise when she was trying to sleep. JC did not use a sound machine in her bedroom to help her sleep and she did not play any music or anything else at night to help her sleep. CC was a better sleeper since he is on his sleep apnea CPAP machine. During cross-examination, JC agreed that having chronic fatigue made her constantly tired. When it was put to her that she was not always alert, JC responded that she was as alert as she could be but agreed the she was impaired by this disorder.

• Before JC went off of work in 1995, CC did most of the laundry because he was a house husband. JC always did her own laundry because she did not want her uniforms to be with the regular laundry because of infection and disease. JC and CC did the laundry and it was the children’s job to put it away.

• TC had Crohn’s as a child that he outgrew when he reached puberty, juvenile rheumatoid arthritis, a lot of allergies, inner ear problems, learning disability, ADD and ADHD. TC was very small and slight. He never made the percentile charts for weight and height until he reached adulthood. TC had regular appointments for his gastrointestinal issues and appointments with an allergist, rheumatologist and ENT. During the nights, TC had several ear aches, ruptured ear drums, ear tubes, a lot of vomiting and was on a sleep apnea monitor as a child. At ages 12-13 years old, TC’s ear issues were not as frequent, he did not require as many ear surgeries and his arthritis was not as bad.

• JC went through photographs and described TC as “scrawny” (p. 383 of Trial Transcript). When TC was nine years old, VC was about the same size as him. When TC was 15 years old, VC was about the same size as him although he was slightly taller. When TC was 16 years old, he was taller than VC but she was bigger than him in mass and body weight. At TC’s graduation, he was 22 years old and VC was 18, both kids in the photo were bigger than him.

• When TC was in public school, he was in cubs, scouts, basketball for a couple years in the evenings and skied. He skied every Friday night. JC agreed that CC was incorrect when he testified that TC did not ski regularly. VC was in brownies, competitive soccer, kickboxing and aerobics. She had soccer practice and a game one time per week. On weekends, they went to Cornwall, Gatineau and Brockville. During high school, VC spent a lot of time on the phone with her friends, did kickboxing, soccer and competitive soccer practices two times per week and a game one evening per week. TC started working at the local nursery when he was 14 years old and continued until his OAC year. He did landscaping. TC worked during the school year and during the summer from Monday to Saturday from 7:00 a.m. to 6:30 p.m. During cross-examination, JC agreed that TC’s work at the nursery was physical. In grade 12, VC worked at the strawberry farm and at Denny’s during her OAC year. In the evenings, TC was a referee for soccer. In high school, both TC and VC went out with their friends.

• JC always treated TC and VC the same but different. They had different needs and requirements. CC and JC met their children’s needs, interests and desires.

• During cross-examination, JC agreed she was upset when she was being asked about TC being sick and in organized sports. When asked why she was upset, JC answered: “because you are insinuating that he’s not – that he was more capable than we’re letting on and this is not true. There’s a big difference between landscaping and lifting 200 pounds and lifting 2 ounces. The humongous difference. So, that’s what aggravates me ’cause you’re trying to equate it to somebody that is a full-grown man lifting huge weights which wasn’t possible for him” (p. 430 of Trial Transcript).

• As a child, TC sleepwalked on rare occasions. JC recalled three incidents of him sleepwalking when he was six to seven years old. They heard him unlocking the door, exiting the house and going outside. He came back into the house and went right back to bed. The next incident was when her and CC woke up in the night to find him rummaging through the knife drawer. They were in the kitchen “in a flash” (p. 380 of Trial Transcript). The last time TC was about 11 years old and had to use the bathroom at night. He was downstairs and turned into the furnace. She never found TC sleepwalking in VC’s bedroom.

• The incident with the diaper never happened. JC was not open to the possibility that it may have happened and she was not there. CC was not abusive and did not spank VC.

• TC moved into the basement when he was around 11-12 years old. TC moved back upstairs in 1998 after the addition. They added a basement under the addition and TC lost his bedroom. During cross-examination, it was put to JC that she did not recall when TC moved into the basement because she told Sgt. Helmer she did not recall when the move took place. JC responded: “When I was at the police station we were interviewed by Sergeant Helmer we had no idea what we were walking into. I was so shocked it’s a wonder I remember my own name” (p. 439 of Trial Transcript). TC moved into the basement because she wanted to give him more privacy. She wanted him to have more leeway and TC could have friends over and spend time in the basement.

• With regards to the bedrooms, during cross-examination JC agreed that before the renovation, her bed was positioned in a way that she could see the bathroom and towards the hallway and she could not see into VC’s bedroom from her bed. After the renovation, if someone walked down the hallway from the kitchen, he or she would reach VC’s bedroom door before JC’s bedroom door. Someone would not have to walk in front of her bedroom.

• During the day, JC did not open VC’s bedroom door. They wanted it closed because VC was a junkie, she had clothes all over the place. All was dropped on the floor and it was a mess. There was no issue with VC’s bedroom door and it was not removed from the frame.

• JC’s bedroom door was not closed at night even if she wanted to be intimate with her husband because they went to bed after the kids who were asleep and they would not know if they were intimate or not. When put to her in cross-examination that her husband testified that they shut the door when they were intimate, JC responded that they did so at the odd time.

• JC agreed that she could recognize semen. She never found semen anywhere in the house. VC never brought her urine soaked sheets. VC never had any problems with her bedding even with her menstrual cycle. When VC moved out, there were a lot of odors in her bedroom like rotten apples, but not urine or feces odors. VC was a pack rat. VC never told JC that TC did anything to her bedding. As for the leather chair in the living room, there was nothing wrong with the chair and there was not any smell of urine or feces. The carpet under the chair was the same as the rest of the house. It was lifted up because it was worn out. Furthermore, VC did not complain to JC about any of her dolls or that TC did something to soil her dolls.

• Their house was built in 1946, it is an old house. Someone could hear a sound anywhere and in the basement someone can hear walking and talking upstairs. Prior to the renovation, JC could hear from their bedroom the sub-pump, water softener and diarrhea throughout the whole house. From the living room, someone could hear a conversation in the bedroom but not what they were saying. JC and CC slept with their bedroom door open and when VC was 12 years old, she kept her bedroom door closed. If there was shoving, punching, kicking, yelling or a hard headed doll hitting something coming from VC’s room, JC could definitely have heard that from her bedroom prior to the renovation. From their bedroom after the renovations, she could hear someone yelling. It was impossible of it happening ten times without her waking up and hearing it. If JC had heard that, she would definitely have looked into it and found out what was going on. During cross-examination, JC was asked if she got up every time she heard VC moving around in her bed. She replied that if they thought there was something not right, she would definitely get up. When pressed further that neither JC nor CC got up every time VC moved in her bed, JC replied that she was in tune with her kids and listened for abnormal sounds and something wrong.

• They were contacted by the police regarding TC in 1995. CC took the phone call and JC was present. They had to go to the Ontario Provincial Police (“OPP”) station in Kanata. The police specifically wanted CC, JC and TC to go to the police station. However, they all went, including VC, and left together in the same family vehicle. During cross-examination, JC agreed that she did not tell the OPS during her interview for this matter that they went to the OPP police station as a family. Once there, VC spoke to a social worker. When they got home, JC had a mother-daughter talk with VC in JC’s bedroom to ascertain if she had any issues with TC, and to let her know that they would get help if she had issues. VC responded that there were no issues. CC and JC also had a conversation with VC together. Within a week of their visit to the police station, JC took VC to see her pediatrician, Dr. Dehejia. She performed a physical examination of VC and spent a long time talking to her. JC was not present for their discussion. JC did not mention this visit with Dr. Dehejia during her interview with the OPS for this matter. JC felt she was under duress when she met with the police and was crying. “I was extremely upset and you don’t have the chance to, to even think” (p. 493 of Trial Transcript).. The police officer’s tone was very accusatory “as if we were terrible parents or whatever. As if we had allowed this to happen and so on. And when I made comments about [VC’s] behaviour it was always turned around” (p. 494 of Trial Transcript).

• The family also went to see Dr. Lena that TC had been seeing for his depression. He spoke to her as a follow-up as well as having regular sessions and all of them spoke to her about the trip to the police station including VC. TC saw Dr. Lena from high school until he entered college. VC also saw Dr. Lena one time per month because they all had to go. This lasted for five years. Dr. Lena’s clinical file was not entered into evidence.

• Before going to the police station, TC babysat for a few families in their community. After the visit to the police station, TC did not continue to babysit. TC was told by Dr. Lena that he should not babysit as he was opening himself up to allegations. TC did not babysit VC since he was immature and was not well. There was no need for him to babysit her. They had a couple of different girls that babysat for them but they did not go out often.

• During JC’s interview with the OPS, she told them that VC had issues with drugs and it was the first thing that she talked about. JC told the police that they should be careful of accepting VC’s allegations of sexual assault because of her drug problem and her chronic lying. VC did not have the full thinking capacity and she was not the same child after she left home. VC did not think straight nor did she sort out her thoughts, and she didn’t tell the truth. JC also told the OPS that VC had many problems: a husband who is an alcoholic and abusive, and she uses drugs. VC barely got her degree, and it was only because she was pushed by JC and CC that she was able to complete her degree.

• During cross-examination, JC was asked if she thought VC was being truthful about the sexual assault allegations during her police interview and she responded “I think she’s been assaulted but I’m not sure that it was her brother” (p. 496 of Trial Transcript). The Crown asked her why she said that. JC responded: “because she says she’s been assaulted” (p. 496 of Trial Transcript). The Crown then asked JC why she would say that VC was assaulted by someone else. JC responded: “well, it could be somebody else” (p. 496 of Trial Transcript). JC did not give any thought that VC may be telling the truth that her brother sexually assaulted her.

• CC never told JC that he had witnessed TC raping VC in the basement. If he had told her, they would have discussed it.

• VC had fallen asleep on the bus once when she was in kindergarten.

• CC had a business in landscaping. CC and TC were partners until 2011 when TC left the business. It was restructured and now CC is the only owner. JC has not had a lot of contact with TC since the business break up. They have not seen him for three years. The first time she saw him was at the trial.

• During cross-examination, JC advised that she had met with Defence counsel the week before the trial at their home. CC, JC, Defence counsel and a partner of his were all present. They discussed that they were going to be called as witnesses for the Defence. They discussed what they would be asked to be honest and tell the truth. They discussed whether they had seen or heard anything regarding the assault, who did the laundry in the household when she was working and then off work, the sounds travelling in the house, sleeping with doors opened or closed, whether or not VC had accidents wetting her pants, after school activities for the kids, TC’s work schedule, the date she went off work, the renovation, the placement of TC’s bedroom, when VC started to close her bedroom door, TC as a sickly child, his being generally weak and how frequently JC and CC went out and about their social life. CC was not present during the whole time of the meeting because he had to leave five minutes before Defence counsel for a physiotherapy appointment.

• During cross-examination, JC agreed that the church remains an important part of her life. She went to church as often as she could other than when she was really ill. They live in a small community and socialize with people from the church. JC agreed that it was important for her family to be well regarded in the community.

• JC agreed that T was her adopted sister and they spent Christmas with her at her parents’ house. T, who was the same age as VC, played with her and TC unsupervised but only in the living room, family room and dining room. The children never did anything they were not allowed to do at her parents’ house. JC agreed that T’s breasts developed (when she was between eight and nine years old) a lot earlier than VC’s breasts.

• At times, they babysat her sister’s dog. This dog was always with TC. They also had two dogs of their own in 1999. They slept in her bedroom.

• JC did not recall if VC had yeast infections growing up. She never gave VC Vagisil.

• An email was sent to all in the family to announce that TC was going to have a child.

• JC characterized VC and AM’s relationship as fine.

• CC had a massive stroke in 2009. It changed his personality completely, he lost his memory, his patience and became a different person in a lot of ways. JC agreed that CC was angry about these charges and the trial. He was upset that VC made the allegations that she never got anything from CC and JC. JC agreed that they were interviewed by the police just before their trip to Phoenix, Arizona, and that it put a damper on their vacation.

• During the trial, JC’s brother and wife were in court every day. JC spent time with them on breaks and socialized with them. JC maintained as did CC that they did not discuss the trial with them. On Friday before the trial, they had a family meeting and told them that they were summoned to court. JC agreed that it was hard and unpleasant news to tell her family. It was hurtful and somewhat embarrassing. She would have liked to have told her family earlier so that she could have had caring, understanding and support. JC wanted their understanding of how difficult it was for her to testify about these things. To her knowledge, her brothers and sisters did not reach out to VC.

10I summarize AM’s evidence as follows:

• AM is 32 years old. She is a homemaker and has a four year old son. She lives with her fiancé, MA, and her son.

• AM met VC in around 2001.

• The first time AM went to TC’s house was in the fall of 2001. She went there a few times per week. CC and JC were there and quite often, VC was there also. At that time, TC’s bedroom was the second last door on the right hand side on the main level of the house. VC was 17 years old and AM was 15 years old when they were friends. They went to the fair and talked about prior boyfriends. AM’s mom did not like one of her boyfriends and called him a thug.

• AM said that someone could hear just about anything in the house. She had spent an evening there and did not sleep well. From the basement, someone could hear everything from upstairs. AM slept at their house approximately eight to ten times.

• AM identified a photo of her sitting on VC’s bed. She went into VC’s bedroom a few times to talk to her. She did not ever smell the odor of urine or feces in the bedroom.

• When AM met TC, he was in his final year at college and was working in landscaping.

• AM viewed TC and VC’s relationship as sometimes they got along and other times they did not get along. VC was of the view that TC was spoiled and she said so to anybody who would listen to her. Their relationship stopped being good after VC met her husband in 2003. VC changed a lot afterwards.

• AM commented that the relationship between VC and JC was tense at times. First it was periods when VC was a teenager. It became tenser after VC met her husband. JC was a strict parent and kept an eye on everything like what they were doing, when they were going home but they had reasonable curfews. JC wanted to know what VC was doing with her friends and what she was up to. AM saw disagreements. CC was pretty much the same as JC. CC could be more vigilant at times. VC’s relationship with CC was much better than her relationship with JC. VC was daddy’s girl. AM saw CC get mad at his children. He raised his voice.

• VC was a bridesmaid at TC and AM’s wedding in 2006. AM had originally called VC and asked her to be her maid of honour. VC told her that she may not have the money to afford the dress and this went to JC who handled that. VC and AM had very few conversations leading to the wedding. The fittings were organized by JC. There were issues with VC from AM and TC’s wedding day.

• VC called AM to tell her that she was getting married. She asked if TC and AM would come up to be their witnesses. They were getting married in Niagara Falls and did not want the rest of the family to know about it. AM was trying to get things ready for a party on the weekend, and she told VC that she could not attend the wedding.

• AM and TC visited VC and her husband in 2008-2009. They sat in the living room and played with her daughter. They then decided to meet up at a restaurant.

• AM identified a screen shot of a post that VC put on AM’s Facebook wall. It was dated November 3, 2011. AM bred boxers for years and it was obvious that VC knew people who needed a home for their boxer. She also identified another screen shot dated July 9, 2010, where VC was writing to a friend named TM. Below this note, was a note dated November 5, 2007, in which VC wrote to TC and stated: “hey T can’t wait to see you both at xmas…see your lil niece…shes such a sweetie pie…can we have a bonfire when I come down? I posted new picks of H at Halloween – check em out”. AM obtained the screen shots the week before the trial started.

• AM was married to TC from 2006-2015. They were separated in 2013. AM remains friends with TC. When AM was still married to TC, she had a child who was born in […], 2014. It is not TC’s child, it is MA’s child. At one time, AM, MA and TC all lived together. TC and AM were separated but they still lived together as a family until shortly before the divorce became final in November-December 2014. As far as anyone else knew, AM and TC were still together. “There was still hope that maybe, maybe the relationship would get change” (p. 527 of Trial Transcript). AM is TC’s surety for his bail conditions. He is not required to live with her but she has contact with him every day.

• VC never disclosed to AM at any point that she had been sexually assaulted. AM would never have married TC. When asked during cross-examination if it would be embarrassing for her to admit that she dated someone after she knew about VC’s allegations, she responded: “If she had told me something like that had occurred I would’ve certainly gone home, told my parents, told, you know, phoned somebody, phone the police, phoned whatever. I don’t take that kind of stuff lightly” (p. 539 of Trial Transcript). In addition, AM never phoned VC and told her that TC was being weird, violent and holding her down.

• AM was contacted by CAS and was asked if she was aware of the charges against TC. AM explained to her that she was TC’s surety and she was well aware of the charges. AM was asked if her son had ever been alone with TC. AM responded that he had not been. CAS also asked AM if she had any inclination that anything had happened to her son. She had no concerns whatsoever about TC despite having learned that it was alleged he had sexually assaulted VC when she was four years old. TC is very good with children.

• In 2014, AM did not have a relationship with VC because of the conversation they had in late 2011 when VC was all up at arms about the split of the family business. AM was mad at VC’s behaviour and had not had any contact with her since then.

• TC worked for AM’s father doing landscaping and then he started a landscaping company with CC. They were together until the fall of 2011. VC posted about the family business breakup on Facebook and talked about TC’s disrespect. AM told her that she should remove the post from Facebook. VC yelled at AM and told her that they were awful people regarding how they treated CC and JC that way. VC hung up on her.

• AM never heard the story about VC peeing in her pants and CC putting a diaper on her at age four and then putting her to bed.

• AM was shocked when she heard the allegations. She felt this was some sort of revenge tactic because VC was so angry. After the business split up, TC was in contact with his aunts and uncles but not his parents. It was not an amicable split. He started to attend family functions again around 2014.

• They sent an email about the baby. They were unsure where their relationship would go so if they showed up to family events, there would be no confusion regarding where the child came from. AM did not have a copy of this email.

• When asked during cross-examination if TC told her all of the allegations against him, AM responded that he hadn’t told her quite everything because he kept some stuff to himself. However, she knew all the charges. She asked him if there was any validity to the charges and TC responded that they were absolutely all false.

• When AM met with Defence counsel, they discussed what she knew of the layout of the house and if she had talked to VC about any of her allegations. With regards to the issue of Facebook, AM was searching for a photo and she checked VC’s name for a family event. She had previously looked and nothing appeared. Then she looked and it popped up. Even if she was unprompted by counsel, she gave him the Facebook messages.

11I summarize Dr. Dehejia’s evidence as follows:

• She has been a pediatrician since 1973.

• When asked about her note taking practice, Dr. Dehejia described that she writes all of her notes by hand. When a patient sits in her office, she notes the complaints of the patient, the physical examination, if she finds something abnormal and the diagnosis. If she is behind in her work, she writes down the finding and treatment that she gave on a sticky note and then writes a full note afterwards. She would stay behind and then complete the note in the file in order to ensure that she did not forget anything. Dr. Dehejia did it on the same date. She has never left home with charts undone. Her note-taking practice has not changed since she started practicing.

• In her career, Dr. Dehejia has never had to deal with sexual assault complaints. She only had physical abuse cases come through CAS and she saw the child afterwards. In this type of a case, she writes down the complaint, looks at what is suggested, looks at the whole body and if there is any other signs of abuse, then she phones CAS.

• Dr. Dehejia had not seen VC in 25 years, since 1995. She recalled the name after she saw the file. She usually sees children until they turn eighteen years old and then they go to university and the pediatrician stops seeing them. Dr. Dehejia does not see any children alone in her office at any time. The person who brings the child always comes in with the child. If it is the mother or father, she does not write that down, however, she notes if it is someone else. With respect to VC, Dr. Dehejia did not write down who came in with her, therefore, VC came in with either her mother or her father. Dr. Dehejia recalled that VC had a brother, TC, but did not remember anything more than that. There was nothing unusual in VC’s medical file.

• Dr. Dehejia reviewed all of VC’s medical record. It is all complete. She did not find any reference to a sexual assault. There was no complaint at all and no pelvic exam for a sexual assault complaint. Dr. Dehejia confirmed that she did not have a conversation with VC about a sexual assault. VC had a lot of throat infections.

12There were 43 exhibits filed during the trial, including many photographs, two Facebook messages, Ms. Shacker’s reports, transcripts of police interviews and VC medical record from Dr. Dehejia’s office.

Position of the Parties

The Defence

13The Defence submits that the parties are largely in agreement regarding the elements of the offences. The main issues in this matter are credibility, liability and support of the allegations.

14With regards to VC’s credibility, the Defence argues that her evidence must be assessed as an adult witness and not as a child because for the entire period of the indictment, she was 14 years old or older, not a small child.

15The Defence’s position is that there were a number of significant internal inconsistencies in VC’s evidence:

• VC first told police that her brother started having sexual intercourse with her at age thirteen and then at trial she said she was nine;

• VC testified to different versions of when TC’s bedroom was in the basement;

• with regards to TC’s sleepwalking, VC told the police that her parents regularly caught him sleepwalking in her room and at trial she testified two times and then five to six times during cross-examination;

• VC testified at trial she was 14-15 years old prior to dating AS when TC defecated in her mouth but she told the police she was 12 years old at that time; and

• VC testified that TC urinated and defecated on all sorts of items in the house ten to fifteen times, however during cross-examination, she testified that he did so three to four times on her sheets.

16The Defence argues that new details arose during VC’s testimony at trial. For example:

• the fact that her father spanked her when she was four years old;

• the fact that TC opened VC’s vagina lips and looked at them;

• when CC walked in on the alleged rape in the basement, there were visitors upstairs and VC could not recall the names of the visitors;

• TC had penetrated her anus with his fingers and it was painful;

• VC dumped perfume to mask the smell of urine on her mattress;

• VC’s mother commented of the stench coming from her mattress; and

• the carpet around the living chair was stained and reeked urine.

17The Defence submits that there is a lot of VC’s evidence that was contradicted by other witnesses:

• VC wanted nothing to do with TC after she moved out of her parents’ house - this is contradicted by the Facebook posts provided by AM during her evidence;

• VC testified that she was not angry about the breakdown of the family business - AM testified that during a telephone call, VC told her that TC was an “asshole” for what he did to her family;

• VC testified she told AM about the sexual abuse she suffered at the hands of TC - AM testified this never occurred;

• VC testified that AM called and told her that TC was being violent with her in the bedroom - AM testified that this did not occur;

• VC testified there were urine stains and smell coming from the black leather chair – others testified that there were no stains and no smell;

• VC testified that she was never asked by her parents about the abuse – CC and JC testified they had asked her and she replied nothing had happened;

• VC testified that after their attendance to the police station regarding the allegation against TC, her brother continued to babysat her – CC testified this rarely happened and JC testified this never happened, especially after the police complaint;

• VC testified that her father walked in on TC raping her in the basement – CC denied this;

• VC testified about the diaper incident – CC and JC denied this happened;

• VC testified that her mother yelled at her and told her on her prom night that she wished she had had an abortion – JC and CC denied this happened;

• VC testified that TC sexually assaulted her in the basement between 6 p.m. and 8 p.m. every day unless she was away at camp – CC and JC testified that this was not possible because of their family routine;

• VC testified that her sheets were soaked with TC’s urine and feces – CC and JC testified that they never saw this;

• VC testified she was often sleepy at school and fell asleep on the bus because of the nightly sexual assaults and the teacher would often call her parents to tell them she had fallen asleep – this is denied by CC and JC;

• VC testified her parents regularly caught TC “sleepwalking” into her bedroom – CC and JC testified this never happened; and

• VC testified she went to the doctor’s office because she had regular yeast infections – there were no references in Dr. Dehejia’s clinical notes of this issue.

18The Defence raises the issue of the acoustics in the family home. Basically, one could hear everything in the house. This evidence was supported by VC, JC, CC and AM.

19The Defence submits that VC’s evidence that the alleged sexual assaults occurred nightly from the age of four until seventeen could not have happened as she described. This would mean that hundreds and hundreds of sexual assaults would have went unnoticed by her parents. Both CC and JC testified that it would be impossible for there to have been nightly sexual assaults without them hearing them. It is improbable that from ages eight to eleven, TC, who was arthritic, could sneak into VC’s room on a nightly basis right across from their parents’ room and they would not hear VC punching and kicking TC. In addition, the Defence notes that VC was similar in size to TC at this time.

20The Defence also argues that if TC sexually assaulted VC, it was not as described by VC and he was younger than 18 years old when it occurred. This argument is supported by Ms. Shacker’s evidence that she could not date when the semen was put onto the dolls and TC’s age at that time.

21Lastly, it is the Defence’s position that VC was angry at her parents. They put TC on a pedestal and ignored her accomplishments. VC was also angry about the accusation that her husband had inappropriately touched a 15 year old girl at TC and AM’s wedding.

The Crown

22The Crown argues that VC was a credible and reliable witness and her evidence is significantly corroborated by the forensic evidence. Her evidence was both measured and controlled. At times during her testimony, she became upset but she was not angry, not defensive nor oppositional. VC provided detailed evidence about the sexual assaults. The evidence of CC and JC was untruthful and highly biased. It was so pervasively flawed that this Court should have no doubt at all about TC’s guilt.

23The Crown submits that it is not appropriate to assess VC’s testimony as an adult since she was a child when TC started sexually assaulting her. She is an adult being asked to testify about events that occurred over 20 years ago when they first started, therefore, it is not accurate to say that she was not a child for much of her evidence.

24The Crown’s position is that there were no significant inconsistencies in VC’s evidence. VC provided additional details during her testimony at this trial because she was asked more questions and more details were elicited. In addition, VC explained that it had been quite the process for her to open up to the police about the sexual assaults that she incurred at the hands of her brother. VC said that the information that she provided to Sgt. Ryan was the most information she had ever provided to anyone including her counsellor. An absence in details is not an inconsistency. In addition, at times when VC was talking to police, she said that she was thinking out loud, tracking events in her life and associated incidents with events in her life.

25With regards to the Defence’s contention that there are inconsistencies in VC’s evidence regarding dates, the Crown submits that VC suffered years of repeated sexual assaults at the hands of her brother. The process of recalling events that happened as a child and teenager will lead to the details bleeding together. This is what occurred in this matter for VC.

26The Crown argues that the forensic evidence in this matter is very important. It supports VC’s evidence that TC masturbated and ejaculated on her dolls and that she found his semen on her personal objects. VC testified that such actions lasted throughout most of her teens until she moved out of her parents’ house. The date of deposit of TC’s semen is not material to this issue. The timing of the offence covers this period of time.

27With regards to the issue of stains on VC’s sheets, during re-examination, VC testified that the stains on her sheets would go away from laundering.

28The Crown asserts that no other witnesses have contradicted VC’s evidence that the sexual assaults occurred.

29The Crown also argues that a significant problem that this Court will have to consider regarding JC and CC’s evidence is that they both met with the Defence counsel together in order to prepare for their testimony and this trial. They discussed whether the abuse was seen or heard, the laundry, the sounds, whether they slept with the doors open or closed, VC wetting her pants, the kids’ after school activities, TC’s work schedule, the renovations to their home, TC being a sickly and weak child in general and the frequency that they went out. The Crown questions whether the parents’ colluded together in order to mislead this Court.

30The Crown submits that there were significant issues with CC’s evidence that should lead this Court to find that he is not a credible and reliable witness. In addition, CC was not a reliable witness due to the stroke that he suffered in 2009. He testified that it had an impact on his personality and his memory. JC also confirmed during her testimony that the stroke had an impact on CC’s memory. The Crown submits that CC relied on his memory loss due to his stroke when it best suited him during his testimony. This alone should cast doubt on his credibility since he cannot be certain whether what he recalls is accurate or not.

31The Crown submits that there were significant problems with JC’s evidence. During her cross-examination, JC clearly became aggravated. She really took exception to the suggestion that TC was a stronger boy than he looked. When the Crown questioned JC about why it was such an upsetting topic for her, she replied that TC was a weak person and he was unable to carry out any of the alleged acts against his sister. During her police interview, JC told the police officer that she should be leery of VC’s allegations and she immediately disbelieved her daughter. Her evolving answers leads to a lack of internal consistency.

32It is the Crown’s position that CC and JC align their testimonies testifying they drove together as a family to the OPP police station in 1996 and they both talked to VC and asked her if TC has sexually assaulted her. The Crown urges this Court to find that the evidence of CC and JC is troublesome, problematic, dishonest and colluded therefore I cannot rely on their evidence.

33The Crown submits AM’s evidence was relevant to two issues: the sounds in the house and the disclosure of abuse by VC. AM’s evidence does not assist this Court because she started attending the house in 2001 when VC was 18 and TC was 22.

34In addition, AM testified that VC’s complaints of being sexually abused by her brother is a revenge tactic. It is clear that she does not like VC and has not liked her for some time. AM testified about Facebook postings but she could not produce the ones where VC supposedly showed her anger towards TC for breaking up the family business. Her evidence goes to peripheral issues that do not go to the heart of the issues in this matter.

35It is the Crown’s position that VC came forward with her complaint of sexual assaults because she became aware that TC and AM were expecting a baby and she was concerned for the safety of the child. This was the reason for the delay. It is nonsensical that VC would make such a complaint three years after the business failure occurred in 2011 as argues the Defence.

Analysis

36I will start with a review of the applicable case law in this matter. The Court can accept all, a part, or none of a witness’ evidence. Inconsistencies do not automatically lead the Court to dismiss the witness’ evidence. Even if there are inconsistencies in the evidence, the Court can accept the witness' evidence above all reasonable doubt.

37Credibility and reliability are distinct. In R. v. Morrissey (1995), 1995 CanLII 3498 (ON CA), 22 O.R. (3d) 514 (C.A.), at para. 33, Doherty J. clarified the concept:

Testimonial evidence can raise veracity and accuracy concerns. The former relate to the witness’s sincerity, that is, his or her willingness to speak the truth as the witness believes it to be. The latter concerns relate to the actual accuracy of the witness's testimony. The accuracy of a witness’s testimony involves considerations of the witness’s ability to accurately observe, recall and recount the events in issue. When one is concerned with a witness’s veracity, one speaks of the witness’s credibility. When one is concerned with the accuracy of a witness’s testimony, one speaks of the reliability of that testimony. Obviously a witness whose evidence on a point is not credible cannot give reliable evidence on that point. The evidence of a credible, that is, honest witness, may, however, still be unreliable. In this case, both the credibility of the complainants and the reliability of their evidence were attacked on cross-examination.

38The Court of Appeal has determined that the reliability of the evidence is paramount. In R. v. Norman (1993), 1993 CanLII 3387 (ON CA), 16 O.R. (3d) 295, the Court confirmed that the assessment of credibility based on demeanour alone is insufficient in a case where there are so many significant inconsistencies. “The issue is not merely whether the complainant sincerely believes her evidence to be true; it is also whether this evidence is reliable. Accordingly, her demeanour and credibility are not the only issues. The reliability of the evidence is what is paramount” (para. 47).

39Moreover, the case law confirms that while demeanor is a relevant factor in a credibility assessment, demeanor alone is a notoriously unreliable predictor of the accuracy of the evidence provided by a witness (Law Society of Upper Canada v. Neinstein, 2010 ONCA 193, 99 O.R. (3d) 1, at para. 66). In addition, demeanor alone is insufficient to convict where there are significant inconsistencies and conflicting evidence (R. v. S. (W.) (1994), 1994 CanLII 7208 (ON CA), 18 O.R. (3d) 509 (C.A.), at para 19).

40In R. v. O. M., 2014 ONCA 503, 321 O.A.C. 312, the Court of Appeal upheld a decision in which the trial judge relied on, in part, the complainant’s tearful demeanor and tone of voice at certain parts of her testimony. The Court of Appeal stated the following at para. 34:

It is well-established that testimonial demeanour is a proper consideration in the evaluation of a witness’s credibility: see e.g., R. v. J.J.B., 2013 ONCA 268, 305 O.A.C. 201 (Ont. C.A.), at para. 112. In this case, the trial judge provided cogent reasons as to why he viewed the demeanour of each witness, at specific points in their testimony, as significant. Moreover, demeanour was only one of many factors considered by him in his assessment of each complainant's credibility and reliability.

41Furthermore, the Court of Appeal dealt with the issue of demeanor evidence in R. v. Rhayel, 2015 ONCA 377, 334 O.A.C. 181. In this matter, the trial judge attached considerable weight to the complainant’s demeanor. The Court of Appeal stated as follows:

85 … It is now acknowledged that demeanour is of limited value because it can be affected by many factors including the culture of the witness, stereotypical attitudes, and the artificiality of and pressures associated with a courtroom. One of the dangers is that sincerity can be and often is misinterpreted as indicating truthfulness.

89 I agree with the suggestion contained at the conclusion of the Court’s analysis in the State Rail Authority decision that it is important for trial judges to bear in mind that, to the extent possible, they should try to decide cases that require assessing credibility without undue reliance on such fallible considerations as demeanour evidence.

42The accused does not have the burden of explaining the complaints against him (see: R. v. S.(W.), para. 26). The accused does not have the burden of showing that the complainant had a motive to fabricate evidence (see: R. v. L.L., 2009 ONCA 413, 96 O.R. (3d) 412, at paras. 48 and 53). Furthermore, the Court must not place too much weight on the complainant’s apparent lack of motive to lie (R. v. S. (W.), para. 27).

43In R. v. Nimchuk (1977), 1977 CanLII 1930 (ON CA), 33 C.C.C. (2d) 209, the Court of Appeal concluded that the trial judge had erred when he found the accused guilty of fraud. The trial judge found that in order to acquit the accused, he had to conclude that the complainant “framed him” which led to placing the burden of proof on the accused. The trial judge appeared to think that he was faced with a choice between two alternatives, to accept the testimony of the accused, and to conclude that the complainant had framed him or to accept the complainant’s testimony, which required conviction. The Court of Appeal concluded that there was a third possibility: “if a reasonable doubt existed, in view of the conflicting testimony, as to exactly where the truth of the matter lay, it would, of course, require an acquittal” (para. 7).

44In sexual assault trials, there is no assumption that the complainant is telling the truth. In R. v. Nyznik, 2017 ONSC 4392, 350 C.R. (7th) 241, at paras. 15 and 17, Molloy J. stated:

Such witnesses will appear to be telling the truth and will be convinced they are right, but may still be proven wrong by incontrovertible extrinsic evidence. Although honest, their evidence is not reliable. Only evidence that is both reliable and credible can support a finding of guilt beyond a reasonable doubt.

Although the slogan “Believe the victim” has become popularized of late, it has no place in a criminal trial. To approach a trial with the assumption that the complainant is telling the truth is the equivalent of imposing a presumption of guilt on the person accused of sexual assault and then placing a burden on him to prove his innocence. That is antithetical to the fundamental principles of justice enshrined in our constitution and the values underlying our free and democratic society.

45With regards to assessing the credibility of child witnesses, the Crown refers this Court to the Supreme Court of Canada’s decision in R. v. B.(G.), 1990 CanLII 7308 (SCC), [1990] 2 S.C.R. 30, in which Wilson J. stated at para. 48:

While children may not be able to recount precise details and communicate the when and where of an event with exactitude, this does not mean that they have misconceived what happened to them and who did it. In recent years we have adopted a much more benign attitude to children’s evidence, lessening the strict standards of oath taking and corroboration, and I believe that this is a desirable development. The credibility of every witness who testifies before the courts must, of course, be carefully assessed but the standard of the “reasonable adult” is not necessarily appropriate in assessing the credibility of young children.

46In R. v. W. (R.), 1992 CanLII 56 (SCC), [1992] 2 S.C.R. 122, the Supreme Court again reviewed the testimony of child witnesses. McLachlin J. stated, at paras. 24 and 26, as follows:

The second change in the attitude of the law toward the evidence of children in recent years is a new appreciation that it may be wrong to apply adult tests for credibility to the evidence of children. One finds emerging a new sensitivity to the peculiar perspectives of children. Since children may experience the world differently from adults, it is hardly surprising that details important to adults, like time and place, may be missing from their recollection.

It is neither desirable nor possible to state hard and fast rules as to when a witness’s evidence should be assessed by reference to “adult” or “child” standards -- to do so would be to create a new stereotypes potentially as rigid and unjust as those which the recent developments in the law’s approach to children’s evidence have been designed to dispel. Every person giving testimony in court, of whatever age, is an individual, whose credibility and evidence must be assessed by reference to criteria appropriate to her mental development, understanding and ability to communicate. But I would add this. In general, where an adult is testifying as to events which occurred when she was a child, her credibility should be assessed according to criteria applicable to her as an adult witness. Yet with regard to her evidence pertaining to events which occurred in childhood, the presence of inconsistencies, particularly as to peripheral matters such as time and location, should be considered in the context of the age of the witness at the time of the events to which she is testifying. [emphasis added.]

47In her dissent in part in R. v. Seaboyer, 1991 CanLII 76 (SCC), [1991] 2 S.C.R. 577, L’Heureux-Dubé J. dealt with the reasons why women may not report their victimization. “[They may not report for] fear of reprisal, fear of a continuation of their trauma at the hands of the police and the criminal justice system, fear of a perceived loss of status and lack of desire to report due to the typical effects of sexual assault such as depression, self-blame or loss of self-esteem” (para. 139).

48The Supreme Court further reviewed with the significance of the complainant’s failure to make a timely complaint in R. v. D.D., 2000 SCC 43, 2 S.C.R. 275, at paras. 63 and 65, Major J. stated as follows:

The significance of the complainant’s failure to make a timely complaint must not be the subject of any presumptive adverse inference based upon now rejected stereotypical assumptions of how persons (particularly children) react to acts of sexual abuse: R. v. M. (P.S.) (1992), 1992 CanLII 2785 (ON CA), 77 C.C.C. (3d) 402 (Ont. C.A.), at pp. 408-9; R. v. T.E.M. (1996), 1996 ABCA 312, 187 A.R. 273 (C.A.).

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.

49In R. v. J.J.R.D. (2006), 2006 CanLII 40088 (ON CA), 218 O.A.C. 37, the accused appealed his conviction for sexually assaulting his daughter. In this matter, the daughter’s diary was a key piece of evidence at the trial in which she described the details of the sexual assault. The daughter testified via videotaped statement. There were inconsistencies in the daughter’s evidence. The Court of Appeal upheld the conviction and found that the trial judge “was alive to the potential frailties in her evidence, particularly the fact that she had provided many details of the alleged assault in her evidence that she had not given in her earlier statements and testimony” (at para. 46).The trial judge considered the many inconsistencies in the daughter’s testimony and the circumstances surrounding her testimony. He found her to be a credible witness and provided reasons to support his conclusion.

50In R. v. R.A., 2017 ONCA 714, 421 D.L.R. (4th) 100, the accused appealed his conviction of sexual interference, invitation to sexual touching and sexual assault against a minor. The offences were committed against the accused’s daughter when she was between three and five years old. The accused argued that the trial judge did not appropriately consider the inconsistencies in the complainant’s evidence and did not provide an explanation as to why he accepted the evidence of the complainant and rejected the accused’s evidence. The Court of Appeal dismissed the appeal and concluded that the “trial judge was entitled to reject the appellant’s evidence ‘based on a considered and reasoned acceptance beyond a reasonable doubt of the truth of the conflicting credible evidence’” (at para. 56).

51In R. v. François [1994] 2. S.C.R. 827, the accused was charged with raping a 13 year old. She reported the incidents only ten years later because she was afraid of the accused. McLachlin J. (as she was then) pointed out that if a complainant offers an explanation for each of the alleged inconsistencies, it is open to a jury to accept those explanations. At paragraph 21, she stated the following:

The jury might have concluded that the contradictions were significant and had not been neutralized by the proffered explanations. That result would have been reasonable. But it was equally open to the jury to conclude that the alleged contradictions had been neutralized by the explanations. That alternative too was “reasonable”).

52The Crown argues that JC and CC colluded together to give their evidence at this trial. The Crown refers me to Maranger J.’s decision in R. v. A.F. and C.R., 2018 ONSC 1511, in which he dealt with the issue of collusion. At paragraph 15, Maranger J. referred to the Law of Evidence, 7th ed. (Toronto: Irwin Law, 2015) in which David M. Paciocco and Lee Stuesser describe the manner with which a Court should treat the issue of corroboration/collusion between witnesses at page 66:

Collusion can arise both from a deliberate agreement to concoct evidence as well as for communication among witnesses that could have the effect, whether consciously or unconsciously, of colouring and tailoring their description of the impugned events. In other words, the term is not confined to be intentional conspiracies to mislead.

Inadvertent or unintentional collusion can arise from media exposure. Where there is an air of reality to the prospect that the probative value of the evidence is tainted by collusion is not encumbered on the defence to prove that tainting. The Crown is required to satisfy the judge on a balance of probabilities that the evidence is not tainted with collusion.

53Lastly, Defence counsel refers me to R. v. N.A.P (2002), 2002 CanLII 22359 (ON CA), 167 O.A.C. 176. This decision dealt with putting the accused’s character in issue during examination-in-chief. I do not find this decision helpful in my decision making process since TC did not testify at his trial.

Assessment of the Evidence

54The main issues in this matter are with regards to credibility. I begin by assessing the witnesses’ evidence starting with VC’s evidence. VC testified behind a screen in order for her not to see TC while she testified. She gave her evidence in a forthright manner and was not oppositional during cross-examination. At times, she cried and required a break. Her evidence was both measured and controlled.

55I agree with the Crown that VC’s evidence regarding events which occurred when she was a child and any inconsistencies particularly regarding peripheral matters such as time and location should be considered in the context of her age at the time of the events to which she is testifying (R. v. W. (R.), para. 26). The Defence argues that VC had a number of significant internal inconsistencies in her evidence. Those inconsistencies should lead the Court to find that the nightly from the ages of four to sixteen to seventeen could not have happened as she described. I find that the majority of VC’s inconsistencies, however, were with regards to time and location. After years of being regularly sexually assaulted by her brother TC, it is understandable that certain details blend together.

56The Defence submits that new details arose during VC’s testimony at trial. It may be so, however, VC provided explanations for these new details. She explained that she was in the process of her recovery and seeking treatment for her issues and was not comfortable at first discussing all the details. However, VC explained that as she discussed more about the sexual assaults, more details came back to her. Lastly, as stated by the Crown, VC provided additional details during her testimony at this trial because she was asked more questions and more details were elicited. This is supported by the transcripts of her police interview dated February 25, 2014, and the Preliminary Inquiry hearing transcript dated April 4, 2017. An absence of detail is not an inconsistency.

57VC testified that TC’s urine and feces had stained her bedding. This was contradicted by AM who testified that during her visits to VC’s bedroom, she had not smelled such odors. However, VC testified that the odors dissipated over time.

58VC testified that TC continued to sexually assault her until she was 16-17 years old. On July 14, 1997, TC turned 18 years old and became an adult pursuant to the Criminal Code. VC was 14 years old on July 14, 1997. VC testified that the sexual assaults ended when she was 16-17 years old and TC would have been 20-21 years old.

59VC’s testimony about how her parents treated her as compared to TC is supported by her parents’ evidence. They described VC as a liar and a drug addict meanwhile they described TC as a sickly child who would not have been able to sexually assault his sister.

60With regards to the delay in reporting her complaints of sexual abuse, VC testified that she came forward because she became aware that TC and AM were expecting a baby, and she was concerned for the safety of the child that would be raised by TC. As per Seaboyer and DD, VC’s delay in reporting the sexual assaults cannot give rise to an adverse inference against her credibility.

61The forensic evidence provided by Ms. Shacker corroborated VC’s allegation that TC masturbated on her dolls and more particularly their eyes. Ms. Shacker testified she was able to confirm that it was TC’s DNA on VC’s dolls. The Defence conceded that the male DNA profile detected on VC’s two dolls analyzed by CFS is that of TC.

62As per the pictures in evidence, it is correct that in her tweens to teens, VC was similar in size to TC. I do not, however, accept the argument that because TC and VC were similar in size it was unlikely that TC could sexually assault VC.

63The Defence also submits that there was a lot of VC’s evidence that was contradicted by other witnesses. The majority of VC’s evidence was contradicted by CC and JC. However, as I will review later, I do not find CC and JC to be credible and reliable witnesses.

64Based on my overall review of VC’s testimony and other evidence such as the DNA evidence, I conclude that VC was a credible and reliable witness. There were insignificant inconsistencies in her testimony, however, most of these related to peripheral issues and I cannot discount her evidence.

65With regards to Ms. Shaker’s evidence, I find her to be credible and reliable. Her reports dated August 16, 2016 and December 1, 2016, that were entered as evidence were well drafted and leaves me with no doubt that TC’s DNA was located on two of VC’s dolls. More specifically, the DNA sample was collected from the dolls’ nose, mouth, eyes and above both ears.

66CC’s evidence, on the other hand, had significant issues. He certainly had memory issues during his testimony. The Crown argues that CC relied on his memory loss due to his stroke when it best suited him during his testimony. Given his overall testimony, I agree. During cross-examination, CC was combatant and his anger was quite palpable. At times, CC’s body shook during his evidence when he was talking about something that made him angry. He acknowledged during cross-examination that he was angry at being interviewed by the OPS and very angry that they had laid charges against TC.

67CC blamed VC and described her as a liar. It was quite telling that as soon as he met with the police investigating VC’s allegations, even without knowing the details of VC’s allegations, he told the police not to believe VC, she was a liar, a drug addict, did not have a job and got into car accidents. CC’s immediate reaction was what has she done wrong now. It is clear that CC’s goal was to discredit VC.

68There were also inconsistencies in what he told police and what he testified to at trial. For example, when asked by police if he had seen TC rape VC in the basement, he responded that he did not recall. However, during the trial, CC categorically testified that he had not witnessed such event. Another example is that during his police interview, CC told the police that TC babysat VC. However, at trial he testified that TC did not babysit her. These are issues that go to the heart of this matter. They are not peripheral in nature.

69CC also tailored his evidence to ensure there was no opportunity of TC to sexually assault VC. For example, he said that the children were not alone when they arrived from school, however, the evidence supports otherwise. Further, he said that he always intercepted TC if he was sleepwalking. He also could not identify his children’s ages, the schools they attended and when his wife got sick and stopped working.

70CC also put a lot of emphasis on TC’s weaknesses as a child and teen. However, when he referred to VC, it was always in a negative light. For example, her bedroom was a pigsty and she was a liar.

71Lastly, CC testified that after the visit to the OPP police station, he and JC asked VC if she had been sexually assaulted by TC. During her testimony, VC vehemently denied that her parents discussed this with her.

72Based on my overall review of CC’s testimony and other evidence such as the transcript of his police interview dated March 26, 2015, I conclude that CC was not a credible and reliable witness. There were significant inconsistencies in his testimony. Overall, I reject CC’s evidence.

73As for JC, there were also significant issues with her evidence. During cross-examination, she was very combatant and angry. At times she would question why she was asked such a question. Other times, JC’s voice became high pitched and forceful when she became angry which occurred throughout most of her cross-examination.

74It was clear from JC’s evidence that her intention was to paint TC as a sickly boy who could not possibly have been healthy enough to sexually assault his sister. She made a point when referring to pictures to indicate they showed VC was equal in size to TC at a certain point. As for VC, JC described her daughter as a difficult person and a habitual liar. During cross-examination, JC became very upset with the Crown’s questions. When she was asked why it was so upsetting to her, JC replied that TC was a weak person and was unable to carry out any of the alleged acts against his sister. It was very evident from her testimony that she was biased towards TC.

75During JC’s interview with the OPS, she told the police to be leery of VC’s allegations and she immediately disbelieved her daughter notwithstanding that she did not know the details of VC’s allegations.

76JC reluctantly agreed that with regards to the first allegation made by a girl from their church of sexual assault against TC, she was embarrassed about the situation. She tailored her evidence to appear to be a proper family. JC conceded during cross-examination that it was important for her to have her family seen in good light in the community.

77JC testified that TC was immature and had ADHD. Consequently, he could not babysit. However, he received his babysitting certificate and babysat other children in the community. JC said that TC could not babysit his sister. Her whole explanation regarding TC’s babysitting is simply not believable.

78For the first time at trial, JC testified that after they returned from their visit to the OPP station, JC had a mother-daughter talk with VC and she asked her if TC had sexually assaulted her. This was categorically denied by VC during her testimony. JC then testified that she brought VC to her pediatrician for a follow-up to see if VC had been sexually assaulted. This evidence was contradicted by Dr. Dehejia who was called in reply. She testified that VC’s medical record did not contain anything to substantiate JC’s claim.

79JC’s evidence was also contradicted by her husband’s evidence. For example, it was contradicted with regards to her cancer, whether or not the children played in the basement and her use of sound machines. JC testified that she did not have cancer when she was pregnant with VC and CC testified that she had cancer at that time and was operated right after VC was born. JC testified that the children never played downstairs after dinner and this was contradicted by CC and VC. In addition, JC denied using a meditation and sound machine during the evenings to help her sleep and this was contradicted by CC and VC.

80With regards to her sleeping habits, I find that JC was not truthful. In addition, during cross-examination, she agreed with the Crown that she was impaired by chronic fatigue.

81Furthermore, I also do not believe JC’s evidence regarding TC sleepwalking. She clearly tailored her evidence in order to ensure that there was no opportunity for TC to sexually assault VC.

82Based on my overall review of JC’s testimony and the many contradictions of her evidence by her husband, Dr. Dehejia and VC’s evidence, I conclude that JC was not a credible and reliable witness. There were significant inconsistencies in her testimony. Overall, I reject JC’s evidence.

83For her part, AM gave her evidence in a forthright manner. She was not combative during cross-examination, but very matter of fact. AM testified about two main areas: the acoustics of the house and VC’s disclosure to her about being sexually abused by her brother. AM testified that she went to VC and TC’s house for the first time in 2001. With respect to AM not smelling any odors in VC’s bedroom, it is important to note that this was in 2001 and afterwards when VC was eighteen years old and TC was twenty-two years old. By this time, as per VC’s evidence, the sexual assaults has stopped. It is therefore logical that there would not have been any odor by that time and if there was, VC laundered her bedding. AM also denied that VC told her about being sexually assaulted by TC.

84AM described VC’s complaints as a revenge tactic because she was angry at TC for breaking up the family business. AM testified that there was a Facebook message that demonstrated VC’s anger, however, it was not tendered as an exhibit. AM’s allegation about VC’s complaint as a revenge tactic is not supported by the evidence. The family business broke up in 2011. VC did not file her complaint with the Guelph police until 2014.

85Based on my overall review of AM’s testimony, I accept her evidence regarding the acoustics of the house.

86As for Dr. Dehejia, she testified about VC’s medical record and confirmed that there was nothing in it to support JC’s allegation that she brought VC to see Dr. Dehejia after the visit to the OPP police station. During cross-examination, the Defence tried to discredit Dr. Dehejia by focusing on her record keeping procedures. This is a pediatrician with over 40 years of experience who testified that she never deviated from her note taking regime and always used the same record keeping procedures. I find that there were no issues with her record keeping procedures. I find Dr. Dehejia was a credible and reliable witness.

87With regards to Count 1, sexual assault (s. 271 of the Code), the elements of the offence are as follows:

• sexual assault is a general intent offence, thus proving a sexual intent is not required;

• sexual assault is an assault which is committed in circumstances of a sexual nature such that the sexual integrity of the victim is violated;

• an assault includes the intentional application of force to a person, directly or indirectly; and

• the absence of consent is a required element.

88There is sufficient evidence in support of the offence. VC described repeated acts of sexual assaults on her by TC from when she was four years old until she was sixteen to seventeen years old. The sexual assaults consisted of TC fondling VC’s body including her breasts and vagina, digital penetration of her vagina and anus, oral sex (TC’s penis in VC’s mouth) and vaginal penetration with TC’s penis.

89VC was clear in her testimony that none of the acts were wanted by her and she did not express consent. Consequently, the absence of consent has been established by the Crown.

90All of the acts are sexual in nature given the areas of VC’s body involved and the types of physical contact and activity engaged in.

91VC testified about how she was confused when TC started sexually assaulting her and felt fear during the sexual assaults. TC told her that if she ever said anything, she would be taken away. VC was afraid of the unknown. VC also described how she cocooned herself in her bedding and made a wall with her blankets to protect herself from TC’s attacks. She testified about not wanting the sexual activity. I agree with the Crown that VC’s sexual integrity was clearly violated by TC.

92The elements of the offence for Count 2, incest (ss. 155(2) of the Code) are a blood relationship to a brother/sister and sexual intercourse. There is evidence in support of this offence. The evidence supports and it is admitted that TC and VC are related by blood as brother and sister, and VC’s testimony that TC forced intercourse on her from the ages of nine to sixteen-seventeen.

93As for Counts 3 and 4, sexual assault with a weapon (hairbrush/doll) (ss. 272(2) of the Code), the elements of the offence are as follows:

• the commission of the sexual assault;

• the use of a weapon in committing the sexual assault;

• a weapon means anything used, designed to be used or intended for the use of (a) in causing death or injury to a person, or (b) for the purpose of threatening or intimidating any person (s. 2 of the Code);

• an object constitutes a “weapon” where it contributed to the harm caused to the victim. The object does not have to be designed or intended to injure in order to qualify as a weapon (R. v. Lamy, 2002 SCC 25, [2002] 1 S.C.R. 860); and

• an injury can be both physical and psychological (R. v. Lamy).

94There is evidence to support these offences. VC testified TC inserted objects into her vagina including Barbie legs, toothpaste rolls and hairbrushes. She also testified that he inserted these objects at various times up to and including the entire time intercourse occurred up until she was 16-17 years old. When TC inserted the objects, VC said that it was very uncomfortable and it was painful. VC’s injury was both physical, given the pain she described, and psychological, given the confusion and fear she experienced during these assaults.

95With regards to Count 5, mischief (ss. 430(4) of the Code), the elements of the offence are a willful obstruction, interruption or interference with a person’s lawful use, enjoyment or operation of property.

96There is evidence to support this offence. VC testified that TC masturbated on her dolls which she both personally witnessed and discovered after the fact when she found semen on her personal items. This behaviour continued to occur when VC was in grades nine to ten and she was 14-15 years old; therefore TC was 18-19 old at that time. VC was also 15-16 years old and TC was 19-20 years old when he attached her Barbies together and masturbated between them. VC asked her mother to wash her dolls and when her mother gave her trouble for dirtying her dolls, therefore she washed them herself. It is clear from the evidence that the enjoyment of VC’s property was interfered with, interrupted and obstructed by TC’s actions.

97Count 6, mischief (ss. 430(4) of the Code) related to VC’s clothing and bedding. The elements of the offence are the willful obstruction, interruption and interference with a person’s lawful use, enjoyment or operation of property.

98There is evidence to support this offence. VC testified that TC masturbated on her clothing, urinated and defecated on her bedding. These acts continued until VC left for university at 19 years old and TC was 23 years old. All of these items required laundering. It is clear that the obstruction, interruption or interference with VC’s lawful use, enjoyment or operation of property for these items is readily apparent based on the soiling of these items in the manner in which it was conducted.

99The DNA evidence corroborates VC’s evidence. It is highly improbable that a person could invent a story of sexual abuse with the hope that there would be semen on her dolls to support her story.

100There is no evidence that contradicts VC’s allegations that she was sexually assaulted by TC. The Defence takes the position that if it is found that TC sexually assaulted VC, he was under the age of eighteen. The evidence does not support this theory.

101AM’s evidence indicates that VC fabricated TC assaulting her because she was angry at TC for the breakup of the family business in 2011. The evidence does not support this allegation. VC brought forward her complaints to the Guelph Police in 2014, three years after the business breakup.

102It is the Crown’s position that sexual assaults occur in the shadows, when others are not looking. I agree. TC sexually assaulted his sister at night when he would sneak into her bedroom and in the basement when they were unsupervised.

Conclusion

103On the basis of the evidence that I accept, I am convinced beyond a reasonable doubt of TC’ guilt with regards to all counts. I conclude that VC was sexually assaulted by TC, her brother, when she was four years old until she was sixteen to seventeen years old and TC was twenty to twenty-one years old. I find that JC and CC turned a blind eye as to what was occurring in their house. Due to their clear bias towards TC, they failed to protect their daughter from TC’s sexual abuse.

Justice M. O’Bonsawin

Released: October 23, 2018

CITATION: R. v. T.C., 2018 ONSC 6338

COURT FILE NO.: CR-16-SA5012

DATE: 2018/10/23

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

Her Majesty the Queen

– and –

T.C.

reasons for decision

O’Bonsawin J.