CITATION: R. v. G.S., 2018 ONSC 7251

COURT FILE NO.: J-17-141

DATE: 2018-12-13

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Her Majesty the Queen

– and –

G.S.

Nancy Flynn, for the Crown

Gloria Dykstra, for the Defence

HEARD: October 22,23,24,25, 2018

REASONS FOR JUDGMENT

M.J. Donohue, j.

OVERVIEW

1This historical sexual assault trial considered charges of sexual assault, sexual interference, and sexual exploitation of the accused’s step-daughter, between 1988 and 2001, when she was aged 7 to 20.

2The complainant, Ms. “M.” testified as did her mother, Ms. M.2, and one of the complainant’s sisters, Ms. S.. The 1995 Children’s Aid Society (CAS) notes of the complainant’s statement to CAS and statement to police were admitted as evidence as the police file from 23 years ago was not located.

3The complainant described digital touching of her vagina beginning when she was 7 years old. It progressed to digital penetration when she was 11 and then sexual intercourse when she was 12, which continued until she was 20, at which time she moved out of the home.

4The issue for the court was whether the Crown has proven beyond a reasonable doubt that the touching of a sexual nature occurred.

COMPLAINANT’S EVIDENCE

5Ms. M.1 is one of seven children born to Ms. M.2, the accused’s former spouse. The complainant was born in […] 1981 and is now 37 years of age. Her story begins 30 years ago at the age of 7, in 1988.

6Over the 13-year period, she described living with her family in a residence on H[…] Street, then J[…] Street, and finally at an apartment on M[…] Street.

7She first recalls living at a house on H[…] Street with her mother, the accused, three sisters, and her younger brother. Her bedroom was on the second floor to the right.

First Occurrence

8She was on Ritalin medication, which she said made her drowsy. She went for a sleep before supper around 5:30 or 6:00 p.m. Her mother had gone to visit Ms. M.1’s grandmother. No one else was in the house.

9She woke to the accused circling his two fingers on her vagina. He had removed her underwear but “must have done it gently” as she had not wakened. His fingers did not enter her vagina then. The accused was kneeling by her bed, masturbating while continuing the circular motion with his fingers for about 10-15 minutes. He had pulled down the boxers he wore around the house. They were laying on the right side of him.

10She said she cried, asked him to stop, and said that “a dad is not supposed to do this to his daughter”. She said he told her not to say anything or he would hurt her and he would deny it. She said she felt disgusted.

11Afterward, Ms. M.1 testified that she curled up in a ball, crying, and ignored the call to supper. She did not come downstairs until he had gone out with friends.

12She said this occurred two to three times a week, if not more, when her mother went out. She recalls her mother often going out to check on her two grandmothers who lived close by.

13These occurrences were in her bedroom when the accused could make sure her three sisters were out playing, and her little brother was down for his nap. It would occur after school or after dinner.

14Ms. M.1 said the accused continued to come into her bedroom until she was 20 years old.

Progression

15When she was between 11 ½ and 12 years of age, in 1993, the accused began to insert his index finger inside her vagina. Again, she was in bed sleeping, and everyone was out playing. The accused was sitting on the bed, with his boxers off, masturbating.

16By this time, the family had moved to a house on J[…] Street. She had a bedroom to herself on the “top left”. Later on, she shared a room with her sister, Ms. S..

17The first time this penetration happened she said the accused masturbated and left the room. When her mother came home from bingo that night, Ms. M.1 said she ran downstairs and said, “Don’t you ever go anywhere again.” She said her mother asked what had happened, but Ms. M.1 said she could not tell her as her mother was “madly in love” with the accused.

First Disclosure

18Ultimately, Ms. M.1 told her sister, Ms. S., then their mother, about the touching.

19This disclosure, was in her parents’ bedroom on the main floor. She said she was sitting on her mother’s bed, and the accused was not home.

20She was not home when her mother discussed it with the accused, but he denied he did anything to her.

21The complainant said she began to run away from home. She said that if “he” was in the house then she was not going to be there. She did not want him touching her.

22She said she told her mom, “If you go out, tell me in advance so I can get out.” If the accused was in the house she kept running away from home.

Sexual Intercourse

23After a month of inserting his finger into her vagina, he began to insert his penis. This vaginal intercourse began when she was 12 years of age.

24The first time it occurred she had taken Ritalin, just before dinner. She was sleepy and went to bed after dinner.

25She had a TV and a VCR in her room and fell asleep watching a movie. No one was home at the time. She thought her mother was at her grandmother’s home. She said the accused came in and told her, “It’s time.” He reminded her that if she told anyone, that he would hurt her and said he would “show her”.

26Ms. M.1 said the accused was not clothed and that her bottoms were off when she woke. He spread her legs and stuck his penis in her vagina for about 10 minutes. It stopped when he “came” in his condom. She said she could see “cum” in the end of the condom. She testified that he walked in with the condom on.

27She testified that she bled for two and a half hours afterward. There was blood all over the sheets, and she had to throw them out. She said that she felt pain and burning and it hurt to “go pee”.

28Two or three days later, he did this again and his “cum” went on the sheets so she threw them out. Her mother was asking “where are your sheets?”

29Ms. M.1 stated this continued until she was 20 years old, two or three times a week, when she was the only one in the house.

30She became pregnant at the age of 19 by her boyfriend. For some time, she lived in an apartment with her boyfriend but moved home to the M[…] apartment when she was pregnant, after her apartment was broken into. She gave birth to her eldest child at the age of 20, in 2001.

Other Sexual Contact

31When she was living on J[…] Street, at age 14 (in 1995) the accused tried to get her to suck his penis.

32Her mother was out, and Ms. M.1 recalls watching a movie. She described the situation as a “69er”. His face was “down there” on her. She said she acted like she was going to suck his penis but bit it instead. He said, “Ow, that hurt” and he did not try this again. She said it just happened once.

33She recalled running outside after this happened and not coming back that night.

34Ms. M.1 described a time when the accused tried to perform oral sex on her when they lived in the M[…] apartment. She said he pulled down her pants and moved his tongue up and down her vagina. She moved her feet and pushed him off her.

Condom Use

35Ms. M.1 stated a condom was used on the first occasion of intercourse and on one other occasion; after she had her first child. The latter was because she said he knew she could get pregnant “just like that”. She said she was all stitched up and it hurt too much.

36Otherwise, she explained she did not get pregnant because her mother put her on the birth control needle. She said her mother did this because she knew what the accused was doing to her. Ms. M.1 said she began on the needle at the age of 12 (in 1993) until she was 19 (in 2000). She said she missed a month and so became pregnant at age 19 by her boyfriend.

Further Disclosure

37When asked if she told anyone else, she testified that she told her biological father’s best friend, and it was reported to the police and the CAS.

38She recalled her biological father then threatening the accused, holding his throat, saying, “If you touch my daughter again I will kill you.” When asked where it occurred, she stated, “It happened a couple of times; one on J[…]; one on H[…]; and one on M[…].”

39Ms. M.1 stated that in the CAS interview the worker gave her two dolls to show what the accused was doing to her. She had no memory of giving a police statement then. Ms. M.1 was asked about several details from her earlier statements. She denied that she ever told her sisters, “A.” or “L.” of the touching or intercourse. She denied that the accused ever penetrated her anally. She denied that the intercourse occurred in the early morning when the family was asleep, rather it was in the evening when the family was out.

40Twenty one years later, in October 2016, Ms. M.1 gave a statement to police of what the accused did to her.

Time away

41Ms. M.1 testified that she began running away at the age of 10. At the age of 14 when the CAS investigation occurred she lived with her sister “A.” for some time. She spent as much time at the Wesley shelter as she could. One entire summer, she stayed at a friend’s house to keep away from the accused. She attended for six months at a residential treatment facility after the investigation. She also spent up to six months at the Dawn Patrol Youth Detention centre and up to six months at the Arrell Detention Centre. She was otherwise back and forth between A.’s home and her mother’s home or “on the run” until she was 20 years of age.

Ms. M.1s Challenges

42Ms. M.1 testified that she has not completed high school but is trying for her Grade 12 diploma. She is “not quite yet able to read”. She gets her wife to read documents for her. She has difficulty learning. She has ADHD and ADD, attended many schools, and had a “wild teen-hood”. She said she has been on Ritalin and other medications since the age of 7.

43Ms. M.1 frequently stated in cross-examination that she did not want to remember her childhood; she had “put those memories into a black cabinet and locked it”.

MOTHER’S EVIDENCE

Complainant’s Challenges

44Ms. M.2 testified that her daughter is on disability because of her ADHD. She described her daughter as “slow” and “behind her age in ability”. Behaviourally, she “acted up”, she was angry, getting into trouble, and running away.

45Ms. M.2 recalled that her daughter was on Ritalin from the age of 9 as well as other medications that calmed her down. She said the complainant was really active and hardly ever slept during the day. She thought the behavioural issues began when the accused began to touch her daughter.

Background

46Ms. M.2 is now estranged from the accused but had been with him for 30 years. They had been married for 15 of those years. She recalled living with the five youngest of her seven children on H[…] Street, with the accused, when the complainant was about 8 or 9 years of age (in 1989 or 1990).

47At times, Ms. M.2 said she would go out to visit the complainant’s grandparents and the accused’s mother who all lived close by. She recalled going out to bingo and to the laundromat, leaving the accused to watch the children.

48When asked about CAS involvement, she said they were involved “all the time”.

First Disclosure

49Ms. M.2 recalls her daughter first disclosing sexual touching when the complainant was 10 or 11 years of age (in 1991 or 1992). They were in her bedroom at the J[…] Street house. The complainant said that her dad was in her room “last night” and touched her. She did not tell her mother where but her mother said it was, “something on her leg”. Ms. M.2 said her daughter was “bawling like a baby”. Ms. M.2 said she confronted the accused and he denied it.

50Ms. M.2 testified that she called CAS and asked for help. They said they couldn’t help her. She said she did not know why there was no criminal investigation at the time. She called the complainant’s biological father to take their daughter. She described the biological father threatening to kill the accused if he touched their daughter. She said she saw him hold the accused up by the neck off the wall. At this time, the police were not involved.

51She said she took the complainant to the doctor for examination and told him about the inappropriate touching. She agreed that there should have been a police investigation at that time.

52Later, Ms. M.2 said they had moved to a townhouse on J[…] Street across from their J[…] Street house. Her daughter asked her to not leave her alone with the accused.

53Under cross-examination, Ms. M.2 described an earlier incident when Ms. M.1 was in her room crying, saying she would not come out unless the accused was gone. This occurred on H[…] Street when her daughter was 8 or 9 years old (in 1989 or 1990).

54She concluded there were three times that her daughter disclosed inappropriate touching, with the last time being the CAS investigation (in 1995).

55Ms. M.2 stated her daughter only told her about the touching with his hands/fingers. She was not told about intercourse. No charges were laid against the accused, and later her daughter came back to live with her and the accused.

56Ms. M.2 took her daughter to the doctor for the birth control needle. She said it was due to her daughter’s age. She said 16 year olds “get active”. She did not relate it to any action of the accused. She said she did it for the complainant’s protection, so she would not get pregnant. She waivered whether this occurred when Ms. M.1 was 14 or 16 years of age as she recalled taking her daughter to the doctor right after the CAS investigation.

57She then said she also recalled a further disclosure when they all lived in the M[…] apartment where her daughter said his fingers were touching her.

58Several times Ms. M.2 testified that she did not know why she stayed with the accused.

SISTER’S EVIDENCE

59Ms. S. is 44 years of age. The complainant is her younger sister. Ms. S. was uncertain of her sister’s age. She recalls living at the H[…] Street house and J[…] Street house with her mother, her siblings, and the accused.

Disclosure

60Although uncertain, she thought they were living in the house on J[…] Street when the complainant wanted to tell her something. She thought that the complainant was about 6 or 7 years old (in 1986 or 1987). She said her sister knocked on her bedroom door and Ms. S. invited her in. She saw tears in Ms. M.1’s eyes. She appeared scared, tense, and “tightened up”. Her sister said, “I gotta talk to you.”

61Ms. S. asked her what happened, and Ms. M.1 said that dad touched her private area with his fingers, referring to the accused. Ms. S. said her sister did not want to tell anyone, even their mother, but Ms. S. forced her.

62They went downstairs and Ms. S. told her mother that the complainant needed to tell her something. Ms. S. left them in the front room and went to the kitchen and then upstairs. She did not hear their conversation. Later that night, she heard her mother and the accused, and his voice was raised.

63Ms. S. was never interviewed by the CAS regarding this disclosure.

INCONSISTENCIES

64There are a number of inconsistencies in evidence between the witnesses.

• Ms. M.1 said the touching began at age 7 when she lived on H[…] Street. Ms. M.2 said her daughter did not come to that house until she was 8 or 9.

• Ms. M.1 says the touching began at age 7 when she began on Ritalin, which made her sleepy. Ms. M.2 said her daughter began taking Ritalin at age 9, and she did not recall her daughter sleeping in the daytime.

• Ms. M.1 said the touching occurred when family were out in the evenings. Ms. S. said she was home 90% of the time, doing her homework.

• Ms. M.1 said she never told her doctor about the touching and insisted her mother “keep quiet”. Ms. M.2 said she discussed the touching with the doctor; even describing two visits to the doctor discussing the touching.

• Ms. M.1 said the doctor never examined her vaginally. Ms. M.2 contradicts this.

• Ms. M.1 says that her mother put her on birth control because she knew what the accused was doing to her. Ms. M.2 denies that her daughter said there was intercourse and put her on birth control due to her age.

65There are a number of inconsistencies in the complainant’s evidence between her trial testimony, her preliminary hearing testimony of October 2017, her police statement in 2016, and the CAS notes of what she told police and CAS in 1995.

• Ms. M.1 said, initially, he circled his fingers on her vagina, and when she was 11 years old he put his fingers inside her vagina. At the preliminary hearing, she said he slipped his finger inside her vagina on the first touching.

• Ms. M.1 said the first touching occurred when her mother went to visit her grandmother. At the preliminary hearing, she described her mother coming home from Bingo that night.

• Ms. M.1 said that after the first touching she curled into a ball, crying, and would not come down to dinner until he left. At the preliminary hearing, she said she “took off to the park”.

• Ms. M.1 was adamant that all sexual contact occurred when she was alone in the house. But, her 1995 police statement was that sexual intercourse occurred in the early morning while everyone was in bed. As well, the CAS worker noted her saying he comes in at 6 a.m.

• Ms. M.1 said intercourse began after she disclosed the touching to Ms. S. and her mother. At the preliminary hearing, she said that he had sexual intercourse with her and then she told her sister and mother.

• Ms. M.1 said that the accused never had anal sex with her. But in 1995, she told the CAS and the police that he put his penis in her bum five or six times.

• Ms. M.1 said the accused used a condom on the first sexual intercourse occurrence and then again after her baby was born when she was 20 years old. At the preliminary hearing, she said he did not use condoms except during their last time when she was age 19 and pregnant with her first child.

• Ms. M.1 said the accused used a condom on the first sexual intercourse occurrence. At the preliminary hearing, she said he did not wear a condom and he ejaculated onto her sheets.

• Ms. M.1 said she bled on the sheets after the first sexual intercourse so she had to throw them out. At the preliminary hearing she said he ejaculated on the sheets so she had to throw them out.

• Ms. M.1 said there were two occasions when she had to throw her sheets out. At the preliminary hearing she said she did so only once.

• Ms. M.1 described falling asleep to a movie when the first sexual intercourse occurrence began. At the preliminary hearing she said she was laying on her side, reading a book.

• Ms. M.1 said she was on the birth control needle from the earliest intercourse. But in her October 2016 police statement, when asked why she did not get pregnant between ages 12 and 20, she stated the accused was wearing a condom.

• Ms. M.1 said he tried to get her to suck his penis once when she was 14; she bit him; they lived on J[…] Street; he said, “Ow that hurt”. At the preliminary hearing, she said he tried to get her to suck his penis once when she was 18; she bit him; they lived on M[…] Street; he said, “We won’t talk about this”.

• Ms. M.1 said she did not tell her sisters, A. and L. about the sexual intercourse. Her 1995 police statement says that she did tell them.

GENERAL LEGAL PRINCIPLES

66The accused is presumed innocent. He started this trial with the presumption of innocence. The Crown carries the burden of displacing the presumption with proof beyond a reasonable doubt that he committed the crimes with which he is charged: R. v. Lifchus, 1997 CanLII 319 (SCC), [1997] 3 S.C.R. 320 (S.C.C.), at para. 27.

67If after considering all of the evidence, I am sure that the accused committed the offence, then I will be satisfied of proof beyond a reasonable doubt. If after considering all of the evidence or the absence of evidence, I am not sure that the accused committed the offence, then I will not be satisfied of proof beyond a reasonable doubt: see David Watt, Watt’s Manual of Criminal Jury Instructions, 2nd ed. (Toronto: Thompson Reuters Canada Ltd., 2015), at pp. 261-67; and Lifchus, at paras. 36-40.

LAW REGARDING THE EVIDENCE OF CHILDREN

68In R. v. W. (R.), 1992 CanLII 56 (SCC), [1992] 2 S.C.R. 122, the Supreme Court of Canada set out the proper approach to children’s testimony.

69The Court noted there is no legal requirement for a child’s testimony to be corroborated. However, this does not prevent the judge from treating a child’s evidence with caution where caution is merited in the case’s circumstances: see R. v. W. (R.), at p. 132.

70The tests of credibility applicable to adult witnesses should not be applied to children. Instead, common sense must applied, taking into account the strengths and weakness that characterize the evidence in the case. This approach accounts for the peculiar perspectives of children, since they may experience the world differently from adults such that important details, like time and place, may be missing from their recollection: see R. v. W. (R.), at pp. 133-34.

71“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.” Where an adult testifies 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: see R. v. W. (R.), at p. 134.

POSITION OF THE PARTIES

The Defence

72The defence urged the court that the numerous inconsistencies and contradictions must make the whole of the complainant’s testimony unreliable and, therefore, unsafe to support a conviction.

73Further, the defence urged the court to find that the current allegations were fueled by the animus against the accused after he left the complainant’s mother, Ms. M.2, in 2016.

The Crown

74The Crown submitted that the assertion that this was a recent fabrication is rebutted by the fact that the complainant disclosed sexual abuse by the accused in 1995 and earlier.

75The Crown submitted that contradictions in the complainant’s evidence should not be given the same effect as they would in the testimony of an adult, particularly in light of her particular deficits and challenges.

ASSESSING THE TESTIMONY OF THE CROWN WITNESSES

76The three members of this family all had difficulty marking the milestone dates of any of the events which occurred nearly twenty years ago. Ms. M.2 could not even say the ages of her children, as of today. Ms. S. did not know how old her sister was, as of today. However, all three witnesses related events to what house they were living in at the time, and there was consistency in that. Where there were disputes of what age the complainant moved to H[…] or what age she began Ritalin, I have no reason to prefer her mother’s evidence over the Ms. M.1, as both were equally vague with dates.

77Ms. S. described the early disclosure of sexual touching in a quiet, sincere, and unchallenged manner. She was careful not to venture into testimony that she was not sure of. I found her credible. On the material aspects of this early disclosure, all three witnesses were consistent that Ms. M.1 disclosed the touching to Ms. S. who then took her to their mother, where they spoke privately.

78Ms. M.2 displayed some confusion over the number of times her daughter disclosed the sexual touching to her. At times, she was not credible. For example, when she said she told CAS or the doctor early on yet there was no investigation. In other respects, I considered Ms. M.2 trying to testify truthfully.

79Both she and the complainant stated that CAS was always involved with their family. Both she and the complainant described a vivid threatening action by the complainant’s late biological father against the accused. Both stated it occurred more than once. Largely, where Ms. M.2 cannot be believed is where her testimony shows her behaviour as unhelpful or unresponsive to her daughter’s disclosures.

80Ms. M.1 is still very much a child. She displayed muddled thinking and was quite unable to have any insight into the contradictions in her evidence. When cross-examined as to why there would be ejaculate on the sheets when she said he was wearing a condom, she glibly replied that there was a “hole in his condom!” This was clearly a flight of imagination.

81On the whole however, I found that with her limited cognitive ability she was doing her best to be sincere and truthful. She was trying her best to be honest. She was certainly adamant that there was sexual touching from the accused over multiple occasions. At one point in cross-examination she said “Yes, as I’ve told you five million dozen times!”

82The issue becomes less one of credibility than one of reliability.

TESTING RELIABILITY

83When the evidence refers to events decades old, a number of inconsistencies are expected, but the core, material points must remain solid if the court is to rely on them.

84There are major inconsistencies when the complainant testifies to the sexual intercourse which she states began to occur at either age 12, as she remembers, or at age 14 when the CAS records confirm the disclosure. Her own evidence contradicts itself in whom she told; whether there was anal intercourse; whether condoms were used; and what time of day it occurred. The one episode of cunnilingus was described in a completely different fashion in the preliminary hearing compared to trial. Her memories of this time of her life were likely scarred by homelessness, detention centres, and distance from her family. I find that the material inconsistencies raise a reasonable doubt as to what was going on in her life at the time when she describes the accused having sexual intercourse with her as well as cunnilingus.

85I find the evidence, as a whole, is not sufficiently reliable to support the charge of sexual exploitation involving his touching her with his penis.

86In contrast, there are a number of facts which I accept on her early allegations of sexual touching. Her description of starting to run away and stay away from the home is supported by her mother’s testimony and is a natural response to such alleged touching. The CAS records note her wishes to not be at home if the accused was there. Her disclosure to her mother and sister is consistent with their testimony and their description of her demeanour of fear, tension, and tears. Her mother also describes the reaction of the complainant’s biological father in threatening the accused in a similar manner to the complainant’s description. That threat lends support to what was happening in the family at the time.

87Ms. M.1’s testimony of the sexual touching from ages 7 to 14 was clear and convincing and not contradicted in any material way. I find that the early disclosure to her mother, and particularly her sister, provides the reliability necessary to support her testimony.

88The elements of sexual assault and sexual interference are therefore satisfied by the evidence of this early sexual touching.

CONCLUSION

89Accordingly, I find the accused not guilty of sexual exploitation but guilty of sexual assault and sexual interference.

M. J. Donohue J.