CITATION: R. v. D.W.M., 2019 ONSC 1130

COURT FILE NO.: 7796-17

DATE: 2019-02-25

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

Heidi Mitchell, Counsel for the Crown

• and -

D.W.M

Bruce Willson, Counsel for the Defendant

Defendant

HEARD: January 21, 22, 24, 25, 28, 29, 2019

MCMILLAN J.

REASONS FOR JUDGMENT

1D.W.M. appeared for trial on January 21, 2019 in Sault Ste. Marie pursuant to an indictment, dated November 27, 2017, charging him with six counts of sexually based offences alleged to have occurred between February 13, 1991 at the earliest, and February 12, 2003 at the latest. The accused entered pleas of not guilty to each of the six counts and counsel confirmed they were both ready for trial.

2The Crown presented the court with an application to permit a Crown witness, L.G., the mother of the adult complainant, to testify by closed circuit video from the courthouse in Kamloops, B.C., pursuant to s. 714.1 of the Criminal Code. For written reasons released January 24, 2019, leave was not granted and the court went on to hold that had leave been granted, the application would have been dismissed in any event.

3The court heard testimony from three witnesses; the investigating police officer, the complainant, and the accused, over a period of several days.

OVERVIEW

4This prosecution concerns the relationship between L.G., born 1963, the mother of the complainant, K.A.; K.A., born […], 1986, and the accused partner of L.G., D.W.M., born […], 1954. The three of them began residing together in an apartment on Douglas Street in Sault Ste. Marie from when K.A. was four years of age, in 1990. By 1991, the family unit had relocated to a house with a garage on Cooper Street, and by late 1998 or early 1999, to another house with a garage on Old Goulais Bay Road. Both of those residences were in Sault Ste. Marie. K.A. moved out of the latter home on or about Mother’s Day following K.A.’s 16^th birthday.

5The incidents of alleged sexual impropriety by the accused to K.A. occurred from when she was age five, on Cooper Street, to age 16, on Old Goulais Bay Road. They include the touching of her nipples and vagina, digital penetration, oral sex on her, oral sex on him (fellatio), vaginal penetration with a “stick”, intercourse and employing her dog to facilitate touching of her vaginal area by applying peanut butter on it for the dog to lick.

6K.A. continued to reside in Sault Ste. Marie following her departure from Old Goulais Bay Road until her move to Kamloops, B.C. on April 25, 2005 while pregnant at the age of 19 with her boyfriend, T.C., the father of her daughter, and where she continued to reside to the date of trial. During the intervening period of residence in Sault Ste. Marie, she resided again with her mother, without the accused; with the accused and with a friend and boyfriends.

7K.A. disclosed the allegations of sexual abuse to the Sault Ste. Marie Police in late August 2016. According to the very brief and limited testimony of Detective Constable Joe Addison, he made arrangements with RCMP in Kamloops to interview K.A .on September 12, 2016. Officer Addison received the videotaped statement of K.A. on September 20, 2016; reviewed it; and, conducted a telephone interview with L.G. on September 21, 2016. The officer canvassed the Sault Ste. Marie Police Service records management system which yielded a 1995 report. He arrested the accused on September 30, 2016. The investigating officer attended the preliminary hearing November 21, 2017 and heard the complainant’s evidence. He contacted L.G. again but did not conduct interviews of any other potential witnesses in this matter.

POSITION OF THE PARTIES

8The complainant testified under affirmation that she experienced the sexual misconduct alleged against her accused stepfather as represented in the six counts set out in the indictment. K.A. is 32 years of age at the time of trial and the allegations occurred between the age of 5 to age 16.

9The accused denies all allegations of sexual impropriety leveled against him by his stepdaughter over the 12-year period, 1991 to 2003, during which he and the complainant resided in the same homes with her mother L.G., who did not testify at trial.

Evidence of K.A.

10K.A. testified that she, L.G. and D.W.M. moved to the Cooper Street residence when the complainant was five years of age. She recalls the timing because she was commencing school. They lived at that residence until just prior to or just following her 12^th birthday, likely just prior as she was commencing grade six at a new school. She attended kindergarten at Prince of Wales School and then Isabel Fletcher for grades one through five. Upon moving to Old Goulais Bay Road, she attended Greenwood School for the remainder of her primary schooling. High school consisted of Korah Collegiate for two years and then Bawating High School.

11The accused was her mother’s boyfriend who she came to call Dad. He was her stepfather. She wanted a father and the accused was there. They celebrated Christmas and other events and holidays and went on vacations. As far as she knew, they had a normal father/daughter relationship. She addressed him as Dad or Daddy in front of people. He never yelled at her and she was never in trouble. He would prepare meals for her and assist her with homework, although she doesn’t recall doing much homework. She “got really good” at not revealing that there was anything wrong. She recalls that his birthday was May 30^th, and that he was nine years older than her mother. Her mother had been an exotic dancer but quit because the accused didn’t approve. Her mother never held any form of employment thereafter. The accused did not maintain any conventional form of employment during the relationship. He repaired small engines, CB radios, and motor vehicles from the garages.

12K.A. testified that the event that precipitated the initial abuse involved two cousins, C., who would have been eight years old, and C., who would have been three years old. The complainant was five years old. The three children were in K.A.’s bedroom on Cooper Street and C. was touching her bare bum. The accused had been watching this behaviour, entered the room and admonished her. He was angry and got upset with her and told her she would get in trouble because what they were doing was wrong. She was scared and afraid that she could get into a lot of trouble with her mother. She recalls vividly the moment of being caught while her cousin was touching her. She recalls this at age five because the event was significant.

13After her cousins had left, the accused said she could get in a lot of trouble over the incident but that he wouldn’t say anything if she wouldn’t say anything when he touched her. She doesn’t know exactly when she was first touched but it would have been shortly thereafter, in her bedroom on her bottom bunk. For the first while, he would put his hand in her pants and rub her clitoris. She didn’t really know or understand what was occurring or that it was wrong. She held this real fear of getting into trouble with her mother so she remained quiet and did what she was told to do.

14K.A. testified of an incident that led to the involvement of the Children’s Aid Society and the police when she believes she would have been five or six years old. During a game of “truth or dare” with a neighbouring child, she was asked if she had ever been touched by her dad inappropriately and she responded. Her disclosure led to the school principal contacting the Children’s Aid Society. The police attended the Cooper Street residence and took K.A. to the CAS premises.

15She is unsure what was discussed between her parents and the police officers. Before leaving for the CAS, she recalls the accused telling her that she was not to say anything about what had happened because he did not want to go to jail. She specifically recalls that the accused was crying at the time. He told her that she was “not to say anything because he would hurt my mother and I”. She was scared. She did not really understand what was happening or what she had done or said to bring this about. From the conversation, she formed the impression that she must be lying about something. When interviewed by CAS she said it was not true and that she had been misunderstood. She remembers being in a room by a window at the CAS building speaking to someone about the matter. She was asked what she had said to the girl who lived across the street. She was fearful by what had been said to her by the accused and by her mother and that she would be taken away from her family; could get in trouble; and was lying. As a young child, fearful and scared, she lied to avoid the prospect of getting in trouble. It was after this involvement with CAS and police that the vast majority of sexual impropriety by the accused to her ensued. She recalls that the matter was dropped.

16Thereafter, she never again said anything and got used to not saying anything about the accused, “always thinking that if I did, I would get hurt or she would get hurt”. The inappropriate contact by the accused was never divulged by her to anyone until after she had moved to Kamloops and “felt safe”.

17The complainant believes that the accused’s touching of her vaginal area progressed to digital penetration when she was approximately eight years of age. She cannot be sure exactly when it began but she relates it to a sledding mishap that she experienced. She was living on Cooper Street and was riding on a GT toy down a parking lot snow pile. She hit a bump that dislodged the seat causing her to scrape her vagina. She went to the bathroom and realized that she was bleeding. Shortly before this mishap, the accused had begun digitally penetrating her. K.A. told her mother that she was bleeding in the vaginal area and was “afraid” that she would discover something untoward. She consulted her doctor and nothing was discovered relating to the digital penetration. She was unable to recall the frequency of this touching from the onset but nearer to the move from Cooper Street to Old Goulais Bay Road it occurred every few days, “like every other day”. For the first two months of relocating to Old Goulais Bay Road, there was no sexual impropriety of any kind on the part of the accused.

18The complainant was still living on Cooper Street when the accused first performed oral sex on the complainant. She couldn’t specify the time or place. She was “freaked out” because she really didn’t know what was happening. He told her not to be frightened and that it would feel good. She candidly testified that it did feel good. These occurrences would commence with the accused rubbing her vaginal area with his hand, and then going down on her and licking her vagina. She couldn’t indicate how long this would last or how many times in total he would have performed oral sex on her.

19Later in time, probably after the move to Old Goulais Bay Road, the accused had the complainant perform fellatio on him in her parents’ bedroom. His was the first penis that she had seen and he had to instruct her on what she should do. She recalls him being “quite large”, “quite endowed”, and that “it was hard for me to get my mouth around it”. She would hold his penis with her hands and then put her mouth over top of it. She was turned off by it and grossed out being young. She does not believe that he was circumcised. She didn’t do that as often because she didn’t enjoy it. She was turned off by it. The complainant testified that the accused touched her breasts at times and licked her nipples.

20The complainant testified in respect to outdoor camping excursions to Tilly Lake, located north of Sault Ste. Marie, with her mother, the accused, and various relatives in the summer months. From their campsite on shore, they would also frequent a small island in the lake by boat or canoe and would also fish. K.A. has two very vivid recollections of at least two incidents when the accused performed oral sex on her. On one occasion, they were tenting on part of this small island and everyone else but she wanted to go out fishing. At her young age, she could not be left alone and the accused stayed back with her. In her single person tent he touched her sexually and performed oral sex on her. There may have been as many as three times during this excursion.

21She believes she would have been around 10 or 11 years old at the time, certainly before she moved to Old Goulais Bay Road. On another occasion she went for a walk with him on this island while her mother was still asleep in her own tent. On the other side of this small island, she was laying on a rock and the accused pulled her pants down, was touching her vagina, and performed oral sex on her. These are the only two times that she can actually remember but there could have been a third.

22K.A. testified that by age 12 the three of them had relocated to Old Goulais Bay Road where she experienced a traumatic occurrence which she repeatedly referred to as the accused having taken her virginity with a stick. For her 12^th birthday the accused gave her a Rottweiler puppy which she viewed as a bribe for what was to come. She recalls being in the garage with the accused and being positioned on a counter/workbench with her pants down. The accused had a wooden “stick” in hand, approximately 12 inches in length, which had been carved in the shape of a penis and was sanded.

23He lubricated the stick with what she thought might have been Vaseline. He told her that what he was about to do would hurt a little bit, and that she would bleed a little, but that it was normal as was her being scared. He slowly inserted the stick into her vagina, gently at first, moved it around, and then there was a hard push. She jumped, felt pain, and she bled a little bit. He pulled the stick out and the incident ended. She hadn’t ever seen this stick before nor did she ever see it again afterwards. She believed that it was just done to break her hymen. It was after this incident that the sexual misconduct progressed to intercourse. She stated that it would be gentle. The accused was never mean. He was never rough. No other individuals were ever involved in the sexual contacts and she never initiated any of it but was compliant. When she was around age 13, the accused put peanut butter on her clitoris and had her dog lick it off. This occurred in her bedroom and he wasn’t touching himself or doing anything else to her.

24The instances of intercourse occurred in either the lounge area of the garage or in the house, mostly when her mother was out, but at times when her mother was home. She described an intercom system between the house and the garage that could be utilized as a warning or signalling device if someone was coming from the house to the garage or vice versa. Her mother was having an affair with the neighbour and spent a lot of time next door. The accused wasn’t really bothered by this affair because he said he was in love with the complainant. K.A. testified that she eventually got used to these sexual advances by the accused and almost would look forward to it considering the generosity of the accused in terms of providing spending money and exciting toys such as go-carts and “like all cool stuff”. It was like being rewarded.

25K.A. described an incident of intercourse in her parents’ bedroom with the accused subsequent to the stick occurrence. She believes this was the first time but can’t be one hundred percent sure. She was laying on her back on the bed with her feet hanging over the end of the bed. She had her pants off and he pulled his down. He was standing at the end of the bed between her legs. She recalls laying on red sheets or a red blanket. She described the furnishings in the bedroom. He told her that it would be different than with the stick. She just laid there with her legs apart and he slowly inserted his penis. He was gentle. It was a little bit painful. She wasn’t sure how long it lasted. She wondered how she would be rewarded, “It started feeling like a job”. Thereafter, intercourse became frequent; at least once a week until she began menstruating at age 15.

26With regard to intercourse, K.A. recalled two further occasions which she related to positioning. She testified of another time in her parents’ bedroom involving a different position. She was on her hands and knees on the bed and he penetrated her from behind. She wasn’t sure what age she would have been.

27Another instance of intercourse took place in her bedroom where she slept on a pull-out sofa or couch that was kept in the couch configuration to provide more space in her bedroom. The accused sat on the couch and she would straddle him and be on top having intercourse. The frequency of intercourse declined considerably after she had her first period in the summer of her 15^th year. She attributed it to her being away from home much more with friends camping over the summer and then beginning to date after returning to school in the fall.

28K.A. testified that there was never any birth control measures taken with respect to intercourse with the accused. He never used a condom. She assumes, now that she is more informed, that the majority of intercourse occurred before she had her first period and that there really wasn’t any precaution that had to be taken and perhaps that is why the frequency diminished after she began menstruating in the summer of her 15^th year, 2001 to perhaps once or twice a month whereas before that she was being abused every other day. She doesn’t have much recollection regarding the accused ejaculating. He would “pull out” from intercourse and close his hand over his penis. She doesn’t recall much about ejaculation because at the time she didn’t know what it was. She doesn’t know if he ejaculated in her during episodes of intercourse. There was never any discussion or conversation after intercourse. She would pull her pants up and then just leave the room.

29The complainant provided collateral evidence regarding the rural location of their residence on Old Goulais Bay Road and the proximity of the garage from which the accused conducted mechanical and body repairs and maintenance. The garage was equipped with a hydraulic hoist and a separate room equipped with furnishings, television, coffee maker and so on, which customers used as a lounge or waiting area. The accused had built an addition to the garage to provide greater space for equipment, including a paint booth.

30She described the residence as being “in the middle of nowhere” without bus service and she didn’t drive. Other than attending school or a friend’s house, which was difficult for her to get to, she spent a lot of time at home. She played outside with her dog; in her tree fort; in their small pool and on her go-cart track. She really didn’t have to leave. Her relationship with her mother became somewhat strained over time and to the point of resentment. K.A. implored her mother not to go out as often as she did because her absence would create opportunity for the accused to sexually abuse the complainant and she couldn’t divulge the real reason why she wanted her mother at home. She began acting mean to her mother and they would argue and “fought all the time”. She was also angry with her mother because of her affair with the neighbour.

31At the age of 15, K.A. became more independent and spent considerable time away from home with friends. She began dating that fall and had a boyfriend. She had experienced her first period that summer and she had learned that leaving home wasn’t an option until she attained the age of 16. She moved out of the Old Goulais Bay Road residence around Mother’s Day when she was 16 years old. She told her mother and others that the reason she left home was because she and her mother fought all the time. She didn’t want to be there anymore and felt safer away because the real reason was to avoid the sexual abuse by her stepfather. With respect to acts of intercourse by the accused, it stopped “like around when I was 16”. When asked when the last incident would have occurred in proximity to her moving out from Old Goulais Bay Road, she stated:

Q. And in proximity to that date, do you recall when the last incident would have occurred?

A. No. It stopped before I – like, my birthday. Because I remember one rule that my mother had for me was to not date until I was 16. It was really the only rule she had. I started dating just like before I turned 16, but I never had intercourse until exactly one week after my 16^th birthday with my first boyfriend, and that’s what I consider to be losing my virginity now, was that time. So, I remember not being abused any time after that. So, in terms of the last time, it – anywhere between – actually, you know what, I don’t even want to guess. Like I said, I had my period, it didn’t happen very often, I’m not sure when the last time was. I’m not going to say because I don’t know.

32K.A. moved in with her friend, A., and her mother, J., and continued going to school in grade 10 or 11. She returned home a few times to collect various items but never moved back there. J. spoke with the complainant about applying for public assistance to cover room and board and which would provide some income to J. However, K.A. obtained employment at Walmart shortly thereafter.

33The accused and L.G. eventually separated and the mother moved to an apartment on Wellington Street. The complainant moved into that apartment with her mother and their relationship was much better. K.A. lived with her mother for under a year during which time she was going to school and working part time at Walmart. L.G. was on welfare and her daughter’s income would have had the effect of L.G.’s welfare being terminated since they were living in the same household. The complainant was 17 years old. She moved out so that her mother could maintain her welfare status and got her own bachelor apartment down the street.

34While the complainant was living there, the accused appeared at her door injured and bleeding as a result of an altercation with her mother’s boyfriend. K.A. felt bad for him because he had nowhere else to go so she let him stay on her couch. It was intended to be for a short while but he never left. He never made any sexual overtures of any kind. Her evidence was that from the time she moved out of Old Goulais Bay Road at 16, there was never again any incident of sexual abuse or impropriety by the accused, and there was never a discussion about what he had done to her in the past. During the time that she shared accommodations with the accused, either alone or with a boyfriend, she was never fearful of being sexually abused by the accused. She didn’t hate him.

35The complainant and accused shared accommodations in two subsequent locations and then a third together with her boyfriend. During this timeframe she lived with a different boyfriend, J., on Frontenac Street for a few months before separating from him and asking the accused if she could move back in with him. The complainant, at age 18, and her boyfriend, T.C., who would become the father of her daughter, shared accommodations on Bush Street until she moved to Kamloops in April 2005. Her mother eventually moved to Kamloops in 2008 and took up residence with the complainant.

36The complainant did not disclose to anyone prior to moving to Kamloops in April 2005 that she had been sexually abused by the accused. The first person she ever told was her daughter’s father, T.C., who she had moved to British Columbia with while pregnant. She hadn’t told her mother, and she didn’t want to go to the police and have to deal with a prosecution. She termed it as “out of sight, out of mind, I guess”.

37T.C. was being transferred to B.C. and she wanted to go with him. It was an opportunity for her to leave and “to get away” from Sault Ste. Marie. She wanted to share with him that the reason she wanted to go with him so badly was because she had been sexually abused by the accused.

38K.A. had a very disturbing nightmare, “a really bad one”, about the accused hurting her mother and it “sparked some feelings again”. She was experiencing night terrors and sweats. She couldn’t sleep and wasn’t able to work. She knew that the accused wouldn’t be harming her mother; she lived in Kamloops and he lived in Sault Ste. Marie. Her boyfriend, M.B., was urging her to talk to someone about it; to report it. The complainant thought disclosure might help her with the recurring visions and her anxiety and depression. She also thought it could help someone else in terms of prevention. She thought it would help to get it off her chest but it didn’t. She didn’t want anything similar to happen to her daughter. K.A. disclosed her stepfather’s abuse to her mother and her Uncle P. before going to the police. She began seeing a counsellor and is still seeing a counsellor.

39K.A. provided the RCMP in Kamloops with a video statement in this matter on September 12, 2016. However, the disclosure of details and discussion of her past experience with the sexual encounters with the accused “broke” her. She got into drugs; attempted suicide on October 23, 2016 by contemplating jumping from a bridge; a drug overdose; couldn’t work and is on disability; and was hospitalized with pneumonia. Nothing good came of the revelation of the sexual abuse and if she could do it all over again, she doesn’t know if she would say anything. The drug overdose was related to the prosecution of this case. She was of the view that she might not have to attend court in this matter but learned that she would have to go through a trial which upset her sufficiently to result in an accidental drug overdose. She didn’t know why she was scared to come to court. She didn’t hate her stepfather.

40The early episode of her cousin touching her bare bum that was observed by the accused on Cooper Street remained very vivid to her and it instilled a fear of being exposed to her mother. The accused was upset with her and told her that she would get into a lot of trouble with her mom. She was scared. However, if she allowed him to touch her, he would not tell anything to her mom and then she would not get in trouble with her mother.

Evidence of D.W.M.

41The accused informed the court that he was born […], 1954, and grew up in Parry Sound where he resided until age 26. His formal education ceased at grade 10 and he worked with an older brother for about 8 to 10 years in the roofing and renovation business. He married at age 20 or 21 and the couple had one child, a son. He is a carpenter by trade and relocated to Calgary and Edmonton with his wife and son to work in the home construction industry. His wife left after a couple of years but he stayed for about eight years. He had an older sister living in Sault Ste. Marie so he came here 25 years ago but could not recall the date; it was in December. He hadn’t intended to stay but he did and began working at roofing and siding on his own.

42He met L.G. through her boyfriend at the time who was an employee of D.W.M. After about a year, he and L.G. began living together in an apartment on Douglas Street where they and her daughter K.A. resided for about a year before moving to the house on Cooper Street where they lived for seven or eight years. L.G. wasn’t working then but he continued doing roofing and siding and worked in the small garage servicing or repairing motor vehicles and small engines.

43The accused spoke about the incident that K.A. had testified to concerning her and her cousins in the bedroom on Cooper Street. He had been in his office at the back of the house and was walking to the bathroom when he “heard a little voice saying ‘do it to me, do it to me’” and he was concerned as to what was going on there. The door was opened about six inches and he could see movement so he opened the door. K.A. and her mistakenly described “nephew” were on the bed naked and her “niece” was running around the bed. He told them to get out to the living room which they did. L.G. was sleeping. There was never any conversation then or any other time about him not saying anything if K.A. would do that type of thing with D.W.M. He told her “this ain’t right” and she shouldn’t be doing these things.

44The accused testified that he did not have any recollection regarding any incident involving the police and the Children’s Aid Society when the complainant was five or six years old and living on Cooper Street. He said it could have happened; he had no idea; perhaps he wasn’t there; and L.G. never said anything to him about it. When asked by his counsel if he ever touched K.A. in any inappropriate sexual manner whatsoever while living on Cooper Street, he responded, “I did not”. When asked if he ever threatened K.A. that if she told anybody about what happened with her that he would hurt her, made any threats whatsoever, he responded, “No, I did not”.

45From Cooper Street, he, L.G. and K.A. moved to a house with a garage on Old Goulais Bay Road where he lived for six or seven years but wasn’t sure. He expanded the garage because he needed more space to work on small engines and cars, including body work and painting. A couple lived next door. The accused described in great detail the configuration and amenities of the garage, and at the court’s suggestion drew a sketch that was entered as Exhibit 1 in evidence. The mechanical repair business was his main vocation but he also did a lot of renovation work in Sault Ste. Marie and in Blind River to the east.

46D.W.M. confirmed that his partner, L.G., would visit the neighbours often but not for long periods of time and that she went to bingo now and then, usually once a week, and would ask him for money on occasion if she didn’t have her own money. He didn’t know where she got her money, perhaps mother’s allowance. He was asked by his counsel if he ever, in any manner, touched the complainant in any sexually inappropriate manner at Old Goulais Bay Road, and to which he responded, “No, I didn’t”.

47Defence counsel referred the accused to the complainant’s evidence with respect to having taken her virginity in the garage with a wooden object or stick, but without putting it in the form of a question, following which the accused said, “I did no such thing”.

48The accused was referred to the complainant’s evidence regarding having had her dog do something to her and D.W.M. said, “No”, and “That’s wrong, no. I did no such thing.” He was also asked pointedly if he ever touched her nipples in any way and to which he responded, “No, I did not”. Defence counsel asked if he ever had intercourse with the complainant when he was entering her from behind and he responded, “No, I did not. No.”

49D.W.M. confirmed that K.A. and her mother had arguments and that he could hear them in the garage and outside. He recalls that the complainant left home on Mother’s Day to stay with her girlfriend up the street and it was that occasion that the police were involved, not before then. He was away working and was notified by a phone call from her mother. D.W.M. and L.G. stayed together for another five or six months before L.G. moved to her own place on Wellington Street. He stayed on for an additional seven or eight months on Old Goulais Bay Road.

50Defence counsel questioned the accused as to whether he ever performed oral sex on K.A., to which he responded, “No. It did not.” And further, whether she ever performed oral sex on him and he replied, “No. It did not.” D.W.M. confirmed that the occasion on which he attended at the complainant’s apartment in a bleeding condition was the first time he stayed at her place and that it was for “a couple nights or so”, but he wasn’t sure. He testified that he stayed at her bachelor apartment a couple more times, off and on, in about a month or two. She had the dog there with her and they would walk the dog. He was getting along fine with the complainant.

51The complainant next moved to an apartment in the back of an old hardware store that they rented and her boyfriend J. stayed there with her off and on, back and forth. The accused had his own separate small room where he stayed when in town and where he kept his tools. As a result of a destructive house party, the premises were rendered uninhabitable. K.A. and J. didn’t return but he stayed for another two or three weeks to conduct repairs. He then moved to a house on Bush Street. The complainant and Jacob had moved to a place on the reserve on Frontenac Street where she lived for a few months.

52The complainant contacted the accused to advise that things weren’t working out for her with J., and D.W.M. offered to allow her to live at his house on Bush Street. He sent a friend to collect her and her things. After a few months living there, K.A. asked D.W.M. if her boyfriend T.C. could move in and pay room and board, which he did. T.C. was in the Armed Forces and being transferred out west. K.A. wanted to go with T.C. who asked the accused for her hand in marriage and D.W.M. agreed. He saw them off at the Greyhound terminal at 1:30 a.m.

53D.W.M. testified about the camping excursions to lower Tilly Lake that had good fishing. They took tents and pop-up trailers to the same campsites. There would be six, eight, or more people and they would usually leave on a Friday night or Saturday. They went camping every summer over four or five years. When asked if he ever performed oral sex on K.A. near a rock, the accused stated, “No, it did not”, or in a tent, to which he responded, “No, I did not.”

54In cross-examination, the accused testified that L.G. was not working when they met. He had difficulty relating events to calendar years. He indicated that K.A. was very young, possibly five, when he and L.G. got involved. His memory is not great. He acknowledged that L.G. was an exotic danger at a strip club. If she was to be with him she would have to forego dancing and she did. She never worked during their relationship and while “she always came up with money somewhere”, he didn’t know “where she was making her money”. He had to keep working to make ends meet. Bingo would be either in the afternoon or the evening. He provided K.A. with a $20 a week allowance.

55D.W.M. acknowledged that throughout his relationship with K.A., he was a stepfather figure. They had a good and close relationship even after he and her mother separated. They were there for each other and took each other in during a time of need. He eventually agreed that much of the arguments between K.A. and her mother were over L.G. leaving the house. He agreed that “they were really arguing about it sometimes”. On the matter of the CAS and police attending the Cooper Street residence, the accused was adamant that, “I do not have any recollection of any of that happening there at the house”, and that he knows nothing of that. The accused’s response to each of the numerous allegations of impropriety to the complainant that were put to him by the Crown were identical, “No, I did not”, consistent with his responses to his counsel.

56Nearing the conclusion of the Crown’s cross-examination, the accused denied the progression in the forms of sexual abuse as was alleged by the complainant in her evidence. At the court’s prompting, the accused elaborated on an earlier reference to K.A. not being with her mother when D.W.M. first met L.G. and that there had been some CAS involvement. He testified that K.A. wasn’t with her mother for the first four or five months and that she had been taken away because of L.G.’s “dancing and what she was doing”. However, K.A. was with her mother for a few months prior to the accused and L.G. beginning their cohabitation.

THE CHARGES

57The essential elements of the offences with which the accused is charged as having occurred during the stated timeframes are as follows:

(a) Count 1 – that the complainant was under 14 years of age, when directly touched by the accused for a sexual purpose with a part of his body.

(b) Count 2 – that the complainant was under 14 years of age when invited (requested or asked) to directly touch the accused’s body for a sexual purpose.

(c) Count 3 – that the complainant was a “young person” (someone who is 16 years old or more and less than 18 years old) when directly touched for a sexual purpose by the accused who was in a position of trust or authority towards K.A.

(d) Count 4 – that the accused intentionally applied indirect force of a sexual nature to K.A., who was in law incapable of consenting, involving the use of a weapon, a wooden stick.

(e) Count 5 – that the accused knowingly made a verbal threat to K.A. to cause death to her.

(f) Count 6 – that the accused intentionally applied force of a sexual nature to the complainant who was in law incapable of consenting.

ANALYSIS

58In conjunction with deciding this case, I have self-instructed on the fundamental principles applicable to criminal law. The presumption of innocence applicable to every accused person in respect to every criminal offence with which he or she is charged, a presumption that continues throughout the trial and is only defeated if the Crown satisfies me beyond a reasonable doubt that the accused is guilty of any offence with which he is charged. That burden of proof remains with the Crown and never shifts so as to require the accused to prove anything including innocence or absence of guilt.

59The criteria of “beyond a reasonable doubt” is a doubt that logically arises from the evidence or absence of evidence. In other words, it is a doubt that arises through reason and common sense. For an accused to be found guilty of an offence charged, the trier of fact, in this case, me, must be sure that the accused committed the offence and only after considering all of the evidence and not simply preferring one side’s version over that of the other. There is no requirement in law that compelled D.W.M. to testify on his behalf; he chose to do so. The real and singular issue in this case is whether the events upon which the offences are based ever took place on the part of the accused.

60In assessing the testimony of any witness, it is open to me to accept or believe some, none, or all of it. In a criminal case such as this one where the accused person has elected to testify in a “she said/he said” situation involving demonstrably opposed versions of events, I am obliged to apply and to follow the formula or instructions established by Cory J. in R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742, on the issue of credibility.

61Further, I am mindful of the potential for frailties of evidence involving matters that are alleged to have occurred long ago, and in this case, as far back as 1991, some 28 years ago. Memories are fallible and subject to the effects of the passage of time and one’s life experiences. The adult complainant is testifying to early childhood events and onward. Particular caution and scrutiny should be employed in assessing the reliability of evidence. Demeanour, while a relevant consideration, ought not to be over-emphasized. An apparent lack of motive to fabricate ought not to influence shifting the burden of proof to the accused. Lastly, the absence of records of the CAS and/or the municipal police force, if available, regarding their involvement as alleged by the complainant when she would have been five or six years old.

62In a historical sexual offences prosecution such as this one, I must recognize the distinction between credibility and reliability in assessing the evidence of the complainant and the accused. The distinction was recognized by our Court of Appeal in R. v. Morrissey (1995), 1995 CanLII 3498 (ON CA), 97 C.C.C. (3d) 193, and followed in R. v. C.(H.), 2009 ONCA 56, [2009] 241 C.C.C. (3d) 45 at para. 41,

41Credibility and reliability are different. Credibility has to do with a witness’s veracity, reliability with the accuracy of the witness’s testimony. Accuracy engages consideration of the witness’s ability to accurately

i. observe;

ii. recall; and

iii. recount

events in issue. Any witness whose evidence on an issue is not credible cannot give reliable evidence on the same point. Credibility, on the other hand, is not a proxy for reliability: a credible witness may give unreliable evidence: R. v. Morrissey (1995), 1995 CanLII 3498 (ON CA), 22 O.R. (3d) 514 at 526, 97 C.C.C. (3d) 193 (C.A.).

63In addition, the court must be cautious and guard itself against the potential pitfalls associated with stereotypical thinking. A child’s evidence no longer requires corroboration. Further, the Supreme Court of Canada in R. v. W.(R.), 1992 CanLII 56 (SCC), [1992] 2 S.C.R. 122, clearly articulated a protocol to be followed when an adult is testifying to occurrences experienced and perceived as a child, at para. 27,

27. ... [I]n 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.

64Let me begin with my assessment of the accused’s evidence which was corroborative of all of the complainant’s peripheral evidence over the years except in respect to the allegations of sexual impropriety with her. On several occasions in his examination in-chief the accused asserted denials when asked in the broadest terms whether he had ever touched the complainant in any sexually inappropriate way over the course of their relationship. He asserted denials when asked if he had ever committed the specific acts of sexual misconduct alleged by the complainant. The denials were brief and always limited to either “No” or “I did not” or “I did no such thing” or “No, it did not”. He answered in the same limited and structured manner in response to allegations of impropriety put to him in cross-examination by the Crown.

65D.W.M. corroborated the incident on Cooper Street concerning the older cousin touching the complainant on her bare bum. He had detailed recall that he was in his office at the back of the house and was walking to the bathroom down the hall past K.A.’s bedroom. He “heard a little voice going ‘do it to me, do it to me’...” He admonished them and denied telling K.A. that he would not say anything if she would permit him to touch her. He testified that he did tell her mother who had been sleeping at the time. The evidence of the complainant did not reference anything about being reprimanded or scolded by her mother over this incident as a result of having been informed of it by the accused.

66Regarding the allegation that K.A. had divulged to another child that she was touched inappropriately by her dad and CAS and the police becoming involved, D.W.M.’s evidence was that he did not have any recollection of that happening. K.A. testified that there was discussion between the police officers and her parents. He stated that it could have happened and maybe he wasn’t there and that L.G. never mentioned it to him. He acknowledged that the authorities’ investigation of child abuse would have been a significant event, although he did not have any recollection of it. The police officer, Detective Constable Addison, did reference a February 1995 report sourced from their records management system but without additional detail. I cannot speculate that it was related to this alleged complaint.

67Based on the accused’s own evidence, he was the stepfather of the complainant throughout his relationship with her and L.G.. His evidence that her boyfriend sought K.A.’s hand in marriage from him prior to the couple leaving for Kamloops is persuasive evidence that he continued in that role beyond when K.A. had left home at 16 years of age.

68There are three facets of the accused’s evidence that arouse concern. The first involves his lack of recollection of the alleged involvement of CAS and police in response to the complainant’s disclosure of him touching her inappropriately to a neighbouring child. He would have been the focus of that disclosure to both the CAS and police. The complainant testified that the police spoke to her parents. He testified that L.G. never spoke to him of that incident. He testified that he did not threaten to harm K.A. or her mother if she disclosed to those authorities that he had been touching her inappropriately. If there was such an investigation it is inconceivable that the accused would not have any recollection of it.

69Secondly, was the nature of his denials of wrongdoing throughout the trial? His responses in that regard appeared contrived, guarded and apathetic. Nonetheless, I must be mindful that both general and specific denials, of necessity, would be lacking in detail and that the burden of proof never shifts to the accused. Also, that demeanour, while relevant, ought not to be unduly relied upon in assessing credibility. Although his denials were plausible, the delivery thereof did not constitute compelling evidence on the part of the accused that he was not guilty. The accused struggled in general with dates and details. There were a few inconsistencies such as L.G. not working at all or ever, but he later acknowledged that she was working when they met. These examples raised by the Crown were not, in my view, intended to mislead. Other than set out above, his evidence was generally ineffective, or at best, neutral.

70Thirdly, the complainant had testified to three specific acts of intercourse between the parties with the occurrence of him penetrating her from behind was only one of them. One of the other two was identified as occurring in the parents’ bedroom with the complainant laying on her back on something red, a sheet or a blanket. The other specific incident was related to the accused sitting on a couch with the complainant straddling herself over him. The accused did not address those two allegations in his evidence by way of denial or otherwise.

71I found the complainant’s evidence to be compelling in respect to both her credibility and the reliability of her evidence. It was provided in a straightforward, forthright and unembellished manner, worthy of belief. She was honest, truthful and sincere. I am mindful that the reasonable doubt principle applies to credibility and reliability. I must also adhere to the template set out in R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742 and 758, namely:

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

Second, if I do not believe the testimony of the accused but I am left in reasonable doubt by it, I must acquit.

Third, even if I am not left in doubt by the evidence of the accused, I must ask myself whether, on the basis of the evidence which I do accept, I am convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

72Regarding her credibility, K.A. was responsive to questions put to her by both Crown and defence counsel. She was not guarded in answering questions. She was candid and notably honest even when her evidence didn’t depict her in a positive moral light. What she said and how she said it revealed her thoughts and feelings of how shameful she felt about certain of her actions such as:

(i) almost looking forward to the accused’s abuses in knowing she would be rewarded;

(ii) he told her that oral sex on her would feel good and she testified “and it did”;

(iii) she didn’t perform oral sex on him often because “I didn’t enjoy it”;

(iv) during an incident of sexual contact she would wonder what she might be receiving in exchange;

(v) it began to feel like a job.

73She testified that she had a normal father/daughter relationship with the accused except for the sexual contact. He was not mean but rather was gentle with her and not rough. He was not the disciplinarian in the household and she was never in trouble with the accused. She does not hate him. There was a two-month hiatus in his sexual abuse between the time they moved from Cooper Street to Old Goulais Bay Road and that it abated considerably after her first menstrual cycle in mid-summer at the age of 15. She was unreserved in acknowledging to defence counsel that there was a great deal of detail that she was not able to recall because of how dated the relationship was and the lengthy duration over which it lasted. In fact, at times she apologized to defence counsel for not being able to answer a question or be more fulsome and precise as to her evidence. She would not speculate or guess in response to something she wasn’t aware of or couldn’t recollect.

74This case is concerned with evidence on the part of K.A. that relies on her adult memories of childhood impressions which necessitates careful consideration in terms of its reliability. She was only five years of age, perhaps six, when she began residing with her stepfather, the accused. She relished the opportunity for “a dad”. Even at the age of five she would have known what it was like to be separated from her mother based on previous CAS involvement. A threat or caution by the accused that she or her mother would be hurt if she told the authorities that he was touching her inappropriately could well have resonated with her and justified recanting or that she had been misunderstood.

75There was not any evidence led by the accused that he or anyone else ever had any experience with K.A. being untruthful, lying or unreliable over the many years that they lived together as stepfather and stepdaughter. In one respect that is not surprising considering that she had a fear of “getting in trouble”.

76There was not any indication at trial of any inconsistency between her initial video-taped statement to police, her evidence and cross-examination at the preliminary hearing, and her evidence at trial. An indication of the reliability of her evidence. When testifying as to the specifics of various demeaning acts of sexual abuse by the accused, she became quite emotional and required time or a recess to compose herself before continuing to testify. Demeanour does remain relevant.

77The complainant was unable to be specific in terms of time, date and place regarding the habitual and less intrusive touching and digital penetration, and even regarding the eventual recurring intercourse. However, the applicable standard of evidence was addressed by McLachlin J. in R. v. W.(R.), 1992 CanLII 56 (SCC), [1992] 2 S.C.R. 122 (S.C.C.), para. 27:

27It 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 anew 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.

78A good measure of the reliability of K.A.’s evidence is how she has related certain occurrences of sexual abuse to significant and more memorable events. The involvement of police and CAS and her description of the CAS premises where she was interviewed is significant. Her recollection of the accused crying in relation to his fear of going to jail were she to disclose his impropriety and his threat of harm to her and her mother without appreciating what she might have done wrong that invoked her fear. Considering the omnipotent presence of the authorities, her tender age and the fear of being taken from her family, it is understandable through her eyes why she characterized the disclosure to her neighbouring friend as having been misunderstood.

79She related the incidence of digital penetration at approximately eight years of age to a winter mishap on a sledding toy referenced to as a GT. The injury to her vaginal area resulted in bleeding and K.A. was afraid that examination by her mother might somehow reveal an association with the accused digitally penetrating her and which resonates given her age and corresponding development.

80Her evidence concerning oral sex was quite explicit. With respect to the allegations of cunnilingus, the accused had reassured her that it would feel good and she, in a very honest and forthright manner, testified “that it did”. On the allegations of fellatio, she recalled in detail her initial experience. She hadn’t previously seen a penis and to her it appeared quite large and she believes that he was not circumcised. He instructed her on what she was to do with it. She found it difficult to get her mouth around it and she was turned off or grossed out by that experience. Accordingly, she didn’t frequently do it.

81K.A. testified of an incident that occurred in proximity to her 12^th birthday in the garage on Old Goulais Bay Road. The accused had purchased a Rottweiler puppy for her birthday and indicated that she should repay him. While she was positioned on the counter/workbench in the garage, the accused inserted a wooden “stick” that had been formed and sanded into the shape of a penis gently into her vagina. She described that there was a hard push that jolted her and ruptured her hymen. He had told her that it would hurt and it did, and that she would bleed and she did. The “stick” was light brown in colour and approximately 12 inches in length. The “stick” was lubricated. She had not previously seen the “stick” nor had she ever subsequently seen it.

82The complainant referred to this episode throughout her evidence as “when he took my virginity”. Defence counsel scrupulously cross-examined the complainant on this particular allegation of sexual abuse. She had pulled her pants down and off on one leg. She couldn’t recall the mechanics of how she came to be on the counter, whether she ascended on her own or was lifted or placed by the accused. Considerable focus was directed to her positioning on the counter or workbench which would ordinarily have tools or parts on it. In her evidence in-chief, she estimated the counter to be two feet in width/depth and which was corroborated by the accused in his evidence as being comprised of four two-by-six’s. She was laying on an angle with her legs over the edge, her head back, and her “bum is still on the edge of the counter”.

83K.A. testified in cross-examination that she remembers one “significant” occurrence in her bedroom on her couch of the accused applying peanut butter to her vagina and having her dog lick it off. She would have been roughly 13 years old. She was not able to particularize or recall the sequence of matters leading up to it.

84The complainant testified that there were repeated incidents of intercourse with the accused. In terms of reliability, she was able to recall three such occurrences in detail. The first took place in her parents’ bedroom. He told her it would be different than the incident with the stick. She laid on her back on the bed with her feet hanging over and her legs apart. He stood in front of her between her legs; pulled his pants down; inserted his penis gently and slowly; and was softer than the stick. She described the furnishings in the bedroom and that she was laying on something red. She had thoughts of how she would be rewarded. She also referenced the other two specific occasions involving intercourse from behind and while straddling a seated accused. In general terms, intercourse took place often and usually in the back room of the garage.

85The complainant was cross-examined at some length on how it was that she never became pregnant as a result of these numerous, repeated incidents of unprotected intercourse. She could not offer a definitive or conclusive explanation. She explained that she began to menstruate at a much later age than her friends. She experienced her first period during the summer following her 15^th birthday. Also, the frequency of intercourse with the accused diminished quite significantly thereafter and she began dating that autumn. She could not offer any other explanation on the absence of pregnancy.

86K.A, relayed two specific occurrences of cunnilingus by the accused on camping excursions before the age of 12. She related one to being left behind with the accused while everyone else had gone out fishing and taking place in her tent. The other occurred while venturing on a walk with the accused and not far from the campsite where her mother was asleep.

87K.A. does not have any apparent motive to fabricate her allegations and for coming forward with disclosure thereof after many years. She does not have any interest in the outcome of the prosecution. The delivery of her evidence did not demonstrate any partiality, malice or bias against the accused. Other than the sexual impropriety, the parties had a customary father/daughter relationship.

88Perhaps the most telling reliable evidence in that regard is their relationship after she had left home and L.G. and the accused separated. When D.W.M. appeared at K.A.’s door one evening bloodied and without accommodation, she took him in, gave him refuge. Stereotypical thinking would suggest that this would be most unlikely given the accused’s sexual intrusions of her. However, she testified that at the age of 17 she “felt bad” for him in that he had nowhere to go. She did the same thing in Kamloops for her mother whom she had grown to resent for ignoring signs that the accused was abusing her and not heeding her requests to stay home with her. These two individuals filled parental roles. He was her dad for 11 continuous years. She didn’t hate him and there was never another occurrence of sexual misconduct by him nor any discussion of it after she left home at 16 years of age. Her evidence throughout the trial was reasonable. There is no “inviolable rule” respecting how victims of sexual assault will behave.

89Ultimately the complainant decided to report these matters to the police following a “really bad” nightmare concerning the accused hurting her mother and which “sparked up some feelings again”. She began experiencing night terrors and sweats and couldn’t sleep or work. She realized that it had just been a dream and that her mother, who was living in B.C. with her, wouldn’t be hurt. The visions continued and caused her anxiety and depression. Her boyfriend at the time urged her to see someone and report matters to police. She went to a counsellor which only served to cause her added distress. Her past and current attendance for counselling does not equate to fabrication of her evidence nor that it is unreliable.

90She thought that disclosure might prove cathartic and that it would help to get it off her chest. She went to the police on September 12, 2016 and provided full disclosure in the form of a video statement that was sent to the Sault Ste. Marie police and used by the Crown as the evidence at the preliminary hearing. Unfortunately, it “broke” her and she deteriorated into drug use, an overdose, and an attempted suicide resulting in hospitalization. If she could do it over again, she is doubtful that she would report the accused’s behaviour to the authorities.

91The reliability of a 30-year-old adult’s recollection of an event that occurred at the age of five or six ought not to be a concern in this matter. The accused’s own evidence confirmed and corroborated the complainant’s recitation of the incident that took place in her bedroom with her cousins at that tender age, except of course in respect to his denial that he would not reveal what she had done if she wouldn’t reveal his contemplated inappropriate touching of her. Of note as well is that while he testified that he relayed this occurrence to K.A.’s mother, there is not any evidence that her mother ever admonished or reprimanded K.A. with regard to the matter, and further calls into question or corroborates that he didn’t tell her mother.

CONCLUSION

92In considering the totality of the evidence, I have particularized my considered and reasoned acceptance, beyond a reasonable doubt, of the truth of the complainant’s conflicting credible and reliable evidence sufficient to establish the accused’s guilt beyond a reasonable doubt regarding Counts 1, 2, 4 and 6 on the indictment

93With regard to Count 5, there is no evidence whatsoever to support the allegation that the accused knowingly uttered a threat to the complainant to cause death to her. However, there is the credible and reliable evidence of the complainant, which I accept beyond a reasonable doubt to find the accused guilty of the lesser and included offence of knowingly uttering a threat to the complainant to cause her bodily harm, beyond a reasonable doubt.

94Count 3 is to be dismissed. The complainant testified in-chief with regard to acts of intercourse “like around when I was 16 it stopped”. With respect to sexual abuse in general by the accused, she testified at one point of an unrelated event with a boyfriend that occurred “exactly one week after my 16^th birthday... So, I remember not being abused any time after that. So, in terms of the last time, it – anywhere between – actually, you know what, I don’t even want to guess. Like I said, I had my period, it didn’t happen very often, I’m not sure when the last time was. I’m not going to say because I don’t know.” The complainant’s birthday is […], 1986 and she would have turned 16 years of age on […], 2002. The averment in Count 3 alleges that the accused touched the complainant between February 13, 2002 and February 12, 2003 while in a position of trust or authority. Having regard to all the evidence and particularly the complainant’s aforesaid testimony, which I have found to be both credible and reliable, I am not satisfied beyond a reasonable doubt that he is guilty of that offence and Count 3 will be endorsed dismissed.

McMillan J.

Released: February 25, 2019

CITATION: R. v. D.W.M., 2019 ONSC 1130

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

D.W.M.

REASONS FOR JUDGMENT

McMillan J.