ONTARIO
SUPERIOR COURT OF JUSTICE
BY COURT ORDER MADE UNDER S. 486.4(1) OF THE CRIMINAL CODE, INFORMATION THAT MAY IDENTIFY THE PERSON DESCRIBED IN THIS JUDGMENT AS THE COMPLAINANT MAY NOT BE PUBLISHED, BROADCAST, OR TRANSMITTED IN ANY MANNER.
BETWEEN:
HER MAJESTY THE QUEEN
– and –
T.S.H.
Accused
Anya Kortenaar, for the Crown
Elena Davies, for the Accused
HEARD: November 26-30, 2018
REASONS FOR JUDGMENT
Aitken J.
Nature of the Proceedings
1The Accused, T.S.H., is charged with the following three offences:
Having sexual intercourse with C.G. between January 1, 1969 and April 15, 1971, while knowing that she was his sister, contrary to s. 142 of the Criminal Code, as it existed at that time.
Having sexual intercourse with C.G. between January 1, 1978 and January 2, 1983, while knowing that she was by blood relationship to him his sister, contrary to s. 150(2) of the Criminal Code, as it existed at that time.
Having sexual intercourse with H.B. between July 15, 1971 and December 31, 1979, while knowing that she was his sister, contrary to s. 150 of the Criminal Code, as it existed at that time.
Family Background and Chronology
2S.H. and G.H. had six children:
A.L., born […], 1945
M.H., born […], 1946
T.S.H., born […], 1949 (the Accused)
H.B., born […], 1950 (a complainant)
C.G., born […], 1953 (a complainant)
E.H., born […], 1954 (now deceased)
3Childhood did not unfold for the H. children as one would hope in Canadian society. S.H. and G.H. drank and were unable to make their children their first priority. The family lived in Toronto where S.H. was working long hours and G.H. was spending most of her time in the bars.
4In approximately 1956[1], G.H. moved out to live with another man. S.H. was worried that the Children’s Aid Society would become involved with his children. He moved the family to another residence in Toronto and then moved everyone to an apartment in the Preston Street area in Ottawa. While the family was living in that locale, the eldest child, A.L., completed grade 8 at Glashan School.
5In approximately 1958, S.H. moved the family to Deschênes, Quebec across the river from Ottawa – again, to thwart any intervention in the family’s life by the Children’s Aid Society. A.L. was 13 at the time. She left school so that she could help care for the children and take care of the home. M.H. did not move with the family but, instead, stayed with an aunt and uncle in Ottawa. The family’s home was primitive, with no indoor plumbing and limited heat. The family had very little, and the children were left to their own devices to amuse themselves.
6The evidence is unclear in regard to how long the family lived in Deschênes; however, it was likely a couple of years. While in Deschênes, the four youngest siblings attended school; however, their attendance (particularly that of the older ones) was not stellar. On days when the children were skipping school, they would play in an abandoned nickel plant which was very close to their property. This was described as a fallen-in wooden structure that the children would crawl down inside. Hide and seek was one of their favourite games in that locale.
7In approximately 1961, S.H. moved the family to Stittsville, located just outside Ottawa. I find that A.L. was likely 15 or 16 at the time. She lived with the family in Stittsville for a short period of time and then moved back to Deschênes to live with her future in-laws so that she could more easily get to work in Ottawa. A.L. got married when she was 17 and, shortly thereafter, started her own family. Shortly after the H. family moved to Stittsville, when H.B. was about 10, she went to live in the country with an aunt and uncle for about a year.
8During the period that the family lived in Stittsville, S.H. spent long periods of time working up north as a security guard. C.G. remembers her father being away for six-month stints on two or three occasions. Sometimes A.L. or M.H. would come to help care for the younger children, but A.L. had her own family commitments and M.H. was pursuing educational goals. At other times, friends of S.H. came from Toronto to stay with the young H. children during their father’s absence. The family was likely in Stittsville until approximately 1964.
9While in Stittsville, S.H. entered a relationship with A.C. who eventually became the children’s step mother. A.C. did not want to live so far out of town, so S.H. moved the family to Ottawa. A.C. had three daughters. Two of them, and the two children of one of those daughters, lived with the H. family.
10T.S.H. was kicked out of the H. home when the family was living in Stittsville. Both C.G. and H.B. place T.S.H. back with the family for some period of time when the family lived in Ottawa. This likely was in 1964. It was at some point after both T.S.H. and H.B. were living in the Ottawa residence that H.B. insisted that she be taken to live with her mother in Toronto. She was 13 at the time. A.L. and her husband drove H.B. to her mother’s in Toronto. I accept C.G.’s evidence that, at some point, her father kicked T.S.H. out of the Ottawa home and told him that he was not allowed to see the kids again.
11In about 1965, T.S.H. arrived in Toronto and moved into his mother’s residence. H.B. was also staying with her mother at the time. H.B. left, as she could not tolerate being in such close quarters with T.S.H.
12Meanwhile, in approximately 1966 or 1967, S.H. moved C.G. and E.H., along with A.C. and her children and grandchildren, to another residence in Ottawa. C.G. felt demeaned and mistreated by A.C. who refused to purchase any new clothes or shoes for her, even though she was able to do so for her own children. At the age of 14, C.G. ran away from home staying, in succession, with a friend, A.L., M.H., and then an aunt and uncle. After again running away, C.G. ended up in juvenile court. The judge discharged her into the care of S.H. and she went back to live with him and A.C. Following a confrontation with A.C. just before her sixteenth birthday in June 1969, C.G. again ran away from home – this time ending up at her mother’s place in Toronto.
13C.G. started drinking alcohol when she was 14 years old and started doing drugs around the same time. Before she moved to Toronto, she was drinking as much as she could.
14For a short period of time, C.G. lived in a rooming house near Dundas and Jarvis in Toronto where her mother was residing. Her mother insisted on taking the welfare cheques that C.G. was receiving and, if C.G. asked her mother for cigarette money, her mother suggested she perform favours for some of the men living at the rooming house if she wanted money. C.G. saw T.S.H. from time to time while she was at her mother’s rooming house. He was living in a rooming house in the Eglington and Yonge area of Toronto. At T.S.H.’s suggestion, C.G. shared a room for a few months with the woman who lived across the hall from him. When C.G. could no longer stay with the woman because the woman was giving up the room, T.S.H. offered C.G. a cot in his room. Although C.G. was nervous about accepting this offer, she had nowhere else to stay. C.G.’s understanding at the time was that T.S.H. was working as a car salesman and that he was engaged to be married.
15As a result of an alleged incident that occurred in T.S.H.’s room and which is the basis of the first count on the indictment, C.G. left T.S.H.’s room and went to live on the streets. She became an intravenous drug user. She moved from place to place. At some point, she was arrested for possession of methamphetamines for the purpose of trafficking. T.S.H. and a step-brother bailed C.G. out. A condition of her bail was that she live with T.S.H. and his wife in Scarborough. In April, 1971, C.G. pled guilty to possession of a controlled drug for the purpose of trafficking. She received a suspended sentence and two years’ probation. She was 17 at the time.
16Meanwhile, in 1966, H.B. got married in Toronto. Shortly thereafter, she and her husband moved to Chiliwack, B.C. Their first child, K.E., was born on […], 1968. When K.E. was 18 months old, H.B. separated and moved back to Ottawa. She lived in an apartment near Bank Street for a couple of years, and then moved to a tiny one-bedroom apartment on Arlington and Lebreton Streets (the “Arlington/Lebreton apartment”). While she was living in that apartment, she became pregnant with her second child in approximately 1971. H.B. moved to Toronto with that child’s father.
17By this time, T.S.H. and his wife were back in Ottawa and looking for a place to stay. They took over the Arlington/Lebreton apartment. Approximately six months later, H.B. returned to Ottawa. The City of Ottawa placed H.B. and the children in the Chez Lucien Hotel, a disreputable establishment not appropriate for children. H.B. was desperate to find another place to stay. T.S.H. said she could take over the Arlington/Lebreton apartment because he and his wife were moving out in a few days. It is while T.S.H., his wife, H.B., and H.B.’s two children were staying together at this apartment that the incident which is the basis for the third count on the indictment allegedly occurred.
18H.B. lived at the Arlington/Lebreton apartment for a period of time prior to moving into a town home on Dumaurier Avenue. At some point while living on Dumaurier Avenue, H.B. had a third child. Subsequently, H.B. married G.B. They are still together.
19Meanwhile, C.G. met her first husband while she was on probation in regard to her 1971 conviction. They were married in 1972 and, despite her and her first husband staying together for seven years, the marriage was effectively over in six months. In 1972, C.G. was convicted of failure to comply with the earlier probation order and possession of stolen property under $5,000. She was placed on probation for 12 months.
20C.G.’s evidence was that, in approximately 1979, she lived with H.B. on Dumaurier Avenue in Ottawa for about three months before Christmas. Most of the time, she slept on a bunk bed in the basement. She recalled H.B. living there with her three children. H.B. and C.G.’s younger brother, E.H., stayed there for a period of time, and his girlfriend, M.M., joined him on occasion. T.S.H. dropped in from time to time. It was during this period that C.G. alleges another incident, which forms the basis for the second count on the indictment, occurred one night while she was sleeping in the basement.
21When testifying, H.B. had no recollection of C.G. living with her for three months at the Dumaurier Avenue town home. She did remember E.H. and, on occasion, M.M. staying in the basement at her home.
22The evidence is vague as to where C.G. resided over the next number of years. It is likely that C.G. moved back to Toronto early in 1980. She had a short-term relationship with an abusive partner in Milton. In 1981, C.G. was convicted in Brampton of possession of a narcotic, namely marijuana, for the purpose of trafficking. She was given a 90-day intermittent sentence and two years’ probation. C.G. remained in the Toronto area until all of her commitments under the sentence had been met. She then moved back to Ottawa. She lived in a shelter for abused women for about three months, then went into a women’s housing shelter. From there, she obtained her own apartment. By this time, C.G. was no longer using intravenous drugs. In approximately 1989, C.G. met and married G.G. That same year, her father, S.H., died. C.G. and G.G. moved out to British Columbia that year. Initially, they stayed with T.S.H. and his wife, J.K., while they were looking for an apartment. G.G. obtained work as a commissionaire at the Court House. Subsequently, he worked in a business being operated by T.S.H. There was a falling out between C.G., G.G., and T.S.H. C.G. and G.G. moved back to Ottawa after about a year and a half. C.G. and G.G. were together until G.G.’s untimely death from cancer.
23From approximately 1970 to the present time, T.S.H. has been in six relationships or marriages and had two daughters. Although the evidence was vague, it appears that when one of the daughters was about two years of age, she was cared for by C.G. and her common law partner in the Toronto area.
24I recount this chronology to show that there was much instability and challenges facing C.G. and H.B. over the years. They both struggled with addictions, insecure housing, unsuccessful domestic relationships, and health issues. Neither got off to an easy start in life. Neither had consistent parental supervision. Neither received much education. Both left home and tried to fend for themselves when they were young teenagers. Nevertheless, both women persisted and were resilient. Wisely, both eventually got professional help and they are dealing with their challenges. Although not sophisticated witnesses, they both testified in a straight-forward and down-to-earth fashion. I found the evidence of both of them most compelling.
Alleged Incidents
Count One (C.G.)
25During examination-in-chief, C.G. alleged that one night, while she was sleeping on a cot in T.S.H.’s room at his rooming house, T.S.H. raped and sodomized her. C.G. was 16 years of age at the time. This places the incident in 1969 or 1970. She did not think that she had used alcohol or drugs that evening. C.G. woke up to find T.S.H. on top of her, pulling off her blankets and pyjamas. His breath smelled of alcohol but he was not so drunk so as not to realize who C.G. was. T.S.H. held C.G. down while he inserted his penis into her vagina. Then he flipped C.G. over, spread her legs with his knee, and inserted his penis into her anus, thrusting twice before apologizing, turning her over, and resuming vaginal intercourse. T.S.H. was not wearing a condom. Throughout the ordeal, C.G. told T.S.H. repeatedly to stop and she tried to fight him off, but he was holding her down with his arms. T.S.H. told C.G. that it was only sex and not to worry about it. When he was done, T.S.H. told her to go and wash herself up. C.G. noticed that it was between 2:30 and 3:00 a.m. C.G. went down a floor to the communal bathroom. After a while, she returned to T.S.H.’s room and sat on her cot. She was afraid to resume sleeping. In the morning, C.G. gathered her few possessions and left. When she left, she had no plans and nowhere to go. She slept in bus shelters, in alleyways, and on the Go-train. She panhandled for some cash. She became an intravenous drug user. C.G. attributes her descent into a serious drug addiction on the trauma she experienced that night at the hands of her brother, T.S.H.
26On cross-examination, C.G. added that T.S.H. had placed his hand over her mouth and that he had pulled her pyjama bottoms down and had pushed her top up. She also described herself as being in a state of shock – unable to comprehend how her brother could be doing that to her. The thing that has stuck with her over the years was T.S.H. saying: “it is only sex”.
27C.G.’s evidence was that, at the time, she weighed about 110 pounds and T.S.H. was close to 200 pounds.
Count Two (C.G.)
28C.G. alleges that one night, when she was sleeping alone in H.B.’s basement on Dumaurier Avenue in Ottawa, she awoke once again to find T.S.H. on top of her, peeling off her pyjama bottoms and forcing vaginal intercourse on her. He pushed her top up to her mouth. C.G. struggled with T.S.H. and tried to bite him, but he was too strong for her. T.S.H. put his hand over C.G.’s mouth and told her that, if she said anything to anyone, it would be her who would get into trouble. As with the earlier occasion, T.S.H. smelled of alcohol. When T.S.H. was finished, C.G. pushed him off of her. He went over to sleep on another couch. C.G. went up to the third floor to wash herself in the family bathroom. Then she spent the rest of the night on the couch on the ground floor. Although H.B. and her three children were in bed at the time on the third floor, C.G. did not tell any of them what had happened. C.G.’s evidence was that this incident happened when she was 26, which would have been in 1979 or 1980.
29C.G. also alleges that on one subsequent occasion a month or two later, when she and E.H.’s girlfriend, M.M., were trying to sleep on separate bottom bunk beds in H.B.’s basement on Dumaurier Avenue, T.S.H. arrived in the basement smelling of alcohol. He got on top of C.G. and tried to pull her clothes off. She was pushing him and yelling at him to get off. C.G. thought – “not again, buddy”. C.G. kneed T.S.H. and succeeded in getting him off her. T.S.H. then went over and tried the same thing with M.M. She fought him off as well. H.B., who had been upstairs with the children, came to the top of the basement stairs and told C.G., M.M., and T.S.H. to stop making so much noise. C.G. and M.M. told H.B. that T.S.H. had jumped them and to get T.S.H. out of there.
Count Three (H.B.)
30H.B. alleges that T.S.H. raped her when H.B. came to Ottawa with her two young children who were aged three to four years and six months at the time and they were staying for a few nights with T.S.H. and his wife at the Arlington/Lebreton apartment prior to T.S.H. and his wife moving out. This would have been in 1971 or 1972. H.B. offered the following description of events.
31T.S.H., his wife, and H.B. had been visiting in the living room, while H.B.’s two children were trying to get to sleep in a playpen in the bedroom. T.S.H.’s wife, who was near the end of a pregnancy at the time, was tired and went to bed. T.S.H. went into the bedroom and, from what H.B. could decipher, was pressuring his wife to have sex with him. His wife refused. T.S.H. came back out into the living room. At this point, both children were fussing, so H.B. went into the bedroom and laid down on the floor beside the playpen. She was exhausted. She wanted to get the children settled and go to sleep. All of them had had a rough few days moving to Ottawa and then spending one night in the very inappropriate environment of the Chez Lucien hotel.
32T.S.H. came to bed. He lay down on the side of the bed closest to where H.B. was sleeping on the floor. After he had been in bed for about half an hour, T.S.H. got down off the bed and on top of H.B. He was naked. He pushed H.B.’s nightie up, played with her breasts, and inserted his penis in her vagina. Neither she nor T.S.H. said anything. T.S.H.’s wife stayed quiet on her side of the bed and did not intervene in any way. When T.S.H. had finished, H.B. went to the bathroom, scrubbed herself as hard as she could, and vomited at the same time. She could not believe that her brother could have done that to her. H.B. described herself as being in a state of shock.
33H.B. attributes her difficulty settling down with a man for any length of time, and her marrying three times, to the trauma she experienced with her brother. She described how she felt guilty, dirty, and ashamed about what had happened.
Prior Discreditable Conduct of T.S.H.
Playing Hide and Seek in Deschênes
34C.G. recalled T.S.H., H.B., herself, and sometimes E.H. playing hide and seek in an old nickel plant close to the H. home in Deschênes. T.S.H. would set the rules for the game. If a person was found, that person had to take off an item of clothing. C.G. described T.S.H. touching her chest and telling her this was where her “boobs” were going to be. He would do that over her clothing or under her clothing if she was half naked. He also did that to H.B. On a couple of occasions, T.S.H. showed the girls his penis or would point out E.H.’s penis.
35Although H.B. recalled playing hide and seek in the old nickel plant, she did not recall this game involving anyone taking off his or her clothing. H.B. did not remember anything untoward about the games played in the nickel plant.
36I accept C.G.’s detailed description that – on at least a few occasions – the game of hide and seek in the nickel quarry resulted in clothes coming off and T.S.H. touching her chest and H.B.’s chest. I attribute H.B.’s not remembering this aspect of the game to her likely thinking at the time that it was just that – a game – and to H.B.’s memory currently not being as sharp as C.G.’s. As I will explain more fully below, although I accept C.G.’s evidence as to how some of the hide and seek games unfolded, I assign minimal significance to it. All of the children were young when these events occurred and many young children engage in games where they explore one another’s bodies. The only thing that can be said of this evidence is that it may have exhibited T.S.H.’s early understanding that he had the power to get his younger sisters to do what he wanted.
The Couch Incident with C.G.
37C.G. described how on weekends, the H. children were allowed to stay up late and watch movies. On one such evening when the film being watched was Frankenstein, C.G. and T.S.H. were lying together on the couch and H.B. and E.H. were lying on pillows on the floor. C.G. was under a blanket with her head on a pillow and T.S.H. was behind her, lying in the same direction, with his head on the armrest. In examination-in-chief, C.G. stated that T.S.H. reached over her, went under her nightie, and into her underwear, and fondled her vaginal area. He put his finger in her vagina. That hurt her and she told him to stop. C.G. tried to wiggle away from T.S.H., but he persisted. She grabbed her pillow and blanket and moved to the other end of the couch. Eventually, she got up and went to bed. She did not tell the other children what T.S.H. was doing.
38Under cross-examination, it was put to C.G. that, when testifying at the preliminary hearing, she had said that she was wearing pyjamas on that occasion. Upon reflection, C.G. thought that she likely had been wearing pyjamas; however, on re-examination, she again reverted to saying that she thought that she was wearing a nightie and underwear. In my view, it is not significant that, approximately 55 years later, C.G. cannot remember whether she was wearing a nightie or pyjamas on the evening in question. What was significant for her was T.S.H. touching her in a sexual fashion, and she did not waver in her description of that.
The Tent Incident with C.G.
39According to C.G., at some point, her father bought a green army tent for the children to enjoy in the back yard. She described how it was erected on a temporary basis on the side of the yard nearest her father’s bedroom. Her brothers liked to sleep in the tent. C.G. remembered that, on one occasion, she joined T.S.H. and E.H. in the tent for a sleepover. The children slept on blankets; they did not have sleeping bags. H.B. was not there. The children told each other stories from school. C.G. was lying on her left-hand side between T.S.H. and E.H. with her back to T.S.H. The children’s heads were under the back window and their feet were near the door. E.H. fell asleep before the other two. According to C.G., T.S.H. reached over her and put his hand into her pyjamas, inserting his finger in her vagina. He then pushed his erect penis against her back and made thrusting motions. In examination-in-chief, C.G. testified that, during this episode, both her pyjamas and T.S.H.’s clothing remained on, though part of his lower body came into contact with her body. Under cross-examination, C.G. acknowledged that, at the preliminary hearing, she had testified that T.S.H. did not have his pyjamas on when he was pushing against her back with an erection. C.G. acknowledged that, at the current time, she was unclear whether T.S.H. had any clothing on; however, she remembered clearly his pressing his erect penis up against her back and pulsating. C.G. told him repeatedly to stop because she wanted to go to sleep. Finally, C.G. went into the house.
40In examination-in-chief, C.G. said that, initially, she was not speaking very loudly but, the longer the incident occurred, her voice got louder and E.H. woke up. C.G. told him that T.S.H. was bugging her and that she was going into the house. That is all that she told her father as well. C.G. did not remember speaking to anyone else at the time about the tent incident, though she later gave her father more details. Under cross-examination, C.G. was examined at length as to whether E.H. was awake, half-asleep, or fully asleep, and as to whether she had raised her voice or screamed at T.S.H. Again, I do not consider it significant that, approximately 55 years later, C.G. cannot remember exactly how loud she was speaking when she told T.S.H. to stop or whether E.H. was asleep, half-asleep, or conversing with her.
41C.G. remembered feeling uneasy around T.S.H. at this time. She would hide from him so that he would not be able to touch her. She remembered telling him on one occasion, likely after the couch incident, that she was going to tell their father. T.S.H. responded that, if she did that, she was the one who would get into trouble. He is four years older than C.G., and she believed him.
42Although C.G. could not recall exactly when it happened, she remembered one emotional episode when she begged her father not to let T.S.H. touch her or hurt her again. C.G.’s father immediately took C.G. to the hospital or to a doctor’s office. As far as C.G. can recall, the doctor said that someone may have inserted his finger in her vagina because her vaginal area was red. This evidence was tendered not for the truth of its contents but simply to explain C.G.’s understanding at the time and what subsequently transpired within the family. S.H. asked T.S.H. what he had done, and T.S.H. said nothing. At some point, C.G. gave her father more details about what had happened in the tent. According to C.G., at around this time, T.S.H. was kicked out of the H. home. Aside from this, S.H. did not want any further discussion about what T.S.H. had done.
Grabbing H.B.’s Breasts in Stittsville and Ottawa
43According to H.B., when she and T.S.H. were both living under the same roof, first in Stittsville and then in Ottawa, T.S.H. would grab H.B.’s breasts. H.B. was 12 or 13 at the time, and T.S.H. was 13 or 14. Not only would T.S.H. grab H.B.’s breasts, but he would invite his friends to “cop a feel”. H.B. recalled her being quite developed for her age. H.B. told T.S.H. to stop, that she did not like him doing that, but to no avail. H.B. pestered her father to take her to her mother’s, but she did not tell her father why she wanted to move. She did not tell anyone about what T.S.H. was doing. Eventually, when H.B. was 13, her father acceded to her request to go live with her mother.
Sexual Assault of H.B. in Toronto
44At some point when H.B. was living with her mother in the Toronto boarding house, T.S.H. arrived at the door. Their mother allowed T.S.H. to live with them and told H.B. and T.S.H. to share the hide-a-bed. H.B. was very uncomfortable with this arrangement. T.S.H. started to touch H.B. in a sexual manner. H.B. left her mother’s residence and went to stay with the family whose children she was babysitting. H.B. did not tell her mother what T.S.H. had done.
Sexual Assault of H.B. on Arlington/Lebreton Streets
45At some point when H.B. and her two older children were living at the Arlington/Lebreton apartment, T.S.H. came looking for a place to stay on a temporary basis because he and his wife had separated. H.B. let him sleep on her couch for a couple of nights. According to H.B., there were no problems the first two nights. T.S.H. was subdued, he had a few beer, and he just wanted a shoulder to cry on. However, on the third night that T.S.H. was there, she awoke to find him on top of her, having sexual intercourse with her. He was “slobbering” all over her face and trying to French kiss her. T.S.H. said that he loved her. T.S.H. was very inebriated at the time. Both T.S.H. and H.B. were naked. H.B. assumed that T.S.H. had drugged her and had removed her clothing because she had no recollection of getting into bed and removing her own clothing. H.B. threw T.S.H. off her. She went into the kitchen and got a knife. She put the knife to T.S.H.’s throat and told him to get out. T.S.H. quickly climbed into his clothes and left. H.B. recalled her daughter being in the living room earlier when she and T.S.H. had been having a few beers together. She had no recollection of her going to bed or of her taking her daughter into the bedroom to sleep. At that time, her daughter slept in the bed with H.B. and her son slept in a crib in the bedroom. H.B. also recalled her daughter hiding behind the bathroom door during the altercation between H.B. and T.S.H. when H.B. threatened T.S.H. with a knife.
46H.B. described this incident as having happened after the incident that forms the basis of the third count on the indictment. The Crown is not asking that evidence regarding this incident be admitted as similar fact evidence to support a finding of guilt in regard to the third count. This evidence was admitted for the limited purpose of providing a complete overview of H.B.’s relationship with T.S.H. and to put into context issues relating to when H.B. eventually went to the police to report the alleged incest.
Sexual Assault of C.G. on Dumaurier Avenue
47Under the heading dealing with count two, I summarize C.G.’s evidence in regard to a second incident that occurred between her and T.S.H. in the basement on Dumaurier Avenue. Evidence of this incident was admitted for the limited purpose of providing a complete overview of C.G.’s relationship with T.S.H. and to put into context issues relating to when C.G. eventually went to the police to report the alleged incidents of incest. The Crown is not asking that evidence regarding this incident be admitted as similar fact evidence to support a finding of guilt in regard to the first or second counts.
Use of Prior Discreditable Conduct of T.S.H. as a Youth
48Generally, evidence of discreditable conduct on the part of the accused is inadmissible because of its inherently prejudicial nature. However, such evidence will be admissible if it is not being tendered as proof of bad character but rather as relevant to a matter in issue, and its probative value outweighs its prejudicial effect. As stated by Charron J.A. in R. v. B.(L.) (1997), 1997 3187 (ON CA), 116 C.C.C. (3d) 481 (Ont. C.A.), at p. 490, leave to appeal refused, [1997] S.C.C.A. No. 524, before admitting such evidence, the court must ask the following questions:
Is the conduct, which forms the subject-matter of the proposed evidence, that of the accused?
If so, is the proposed evidence relevant and material?
If relevant and material, is the proposed evidence discreditable to the accused?
If discreditable, does its probative value outweigh its prejudicial effect?
See also R. v. D.(B.), 2016 ONCA 673, 342 C.C.C. (3d) 217, and David Watt, Watt’s Manual of Criminal Evidence (Toronto: Thomson Reuters, 2018), at p. 617.
49In regard to all counts on the indictment, the Crown sought to introduce evidence of discreditable conduct on the part of T.S.H. against both C.G. and H.B. when T.S.H. was a youth. The Crown argued that the discreditable conduct sought to be admitted tended:
To establish the context in which the alleged incidents of incest occurred in terms of T.S.H.’s relationships with his two younger sisters;
To prove T.S.H.’s motive for the offences, by showing that T.S.H. had a specific propensity to treat his two younger sisters as sexual objects;
To explain C.G.’s delay in reporting T.S.H.’s sexual assaults; and
To support the viability of a similar fact application.
50More specifically, Crown counsel sought to introduce the discreditable conduct of T.S.H. when he was a youth as described by both C.G. and H.B. during their testimony. This included:
T.S.H.’s conduct when playing hide and seek with C.G. and H.B.;
T.S.H. touching C.G.’s vaginal area when the two were on the couch in Stittsville;
T.S.H. touching C.G.’s vaginal area when the two were in the tent in Stittsville;
T.S.H. touching H.B.’s breasts both in Stittsville and in Ottawa; and
T.S.H. touching H.B. in a sexual fashion when they were sharing a hide-a-bed at their mother’s Toronto residence.
51There is no question that the alleged behaviour was that of T.S.H. and that it was discreditable to him. The real issue is whether the conduct is relevant and material and whether its probative value outweighs its prejudicial effect.
Re Offences against C.G.
52I will first deal with C.G.’s evidence of T.S.H.’s discreditable conduct and whether it is admissible in regard to issues relating to the alleged offences against C.G.
53The evidence of how T.S.H. interacted with C.G. when he was a teenager is relevant to explain the relationship between the two siblings and the context in which the later alleged incidents of incest occurred. It is also relevant to establish a motive on the part of T.S.H., namely, his view of C.G. as a potential sexual object. It is relevant to T.S.H.’s modus operandi when it came to having sexual relations with C.G., namely, to take advantage of her vulnerability when he had the opportunity to do so and she was under his power, and to overcome her refusal to participate through the use of persuasion and, when necessary, force. The evidence also helps to explain some of the reasons why C.G. did not report the incidents of incest to the police until many years later. Thus, there are many purposes to the admission of this evidence of discreditable conduct – aside from the impermissible purpose of proving a general disposition to commit sexual offences or proving bad character on the part of T.S.H.
54If C.G.’s evidence is ultimately believed, the probative value of this evidence is high in regard to all of these purposes. Without this evidence, the incidents of incest alleged by C.G. stand out as isolated, bizarre, events, and C.G.’s reaction to them is less understandable.
55In terms of potential prejudice, the risk of prejudice is low. The other discreditable conduct is much lower on the scale of seriousness than is the offence of incest. It also occurred when T.S.H. was younger. Generally, youth are not expected to have as good judgment, or as sound an understanding of right and wrong, as adults are expected to have. In a judge alone trial, the risk of the trier of fact being distracted from her proper focus on the counts in the indictment is reduced. The evidence of discreditable conduct flowed naturally from the chronology being relayed by C.G. and did not add significantly to the short period of time required for this trial.
56I now turn to H.B.’s evidence of T.S.H.’s discreditable conduct and whether it is admissible to prove the allegations of incest towards C.G.
57Evidence that T.S.H. touched H.B.’s breasts when both were teenagers is probative to how T.S.H. viewed his younger sisters as sexual objects and as to how he took advantage of opportunities to touch them for a sexual purpose. However, there is nothing in C.G.’s evidence to suggest that she was aware of T.S.H.’s behaviour toward H.B. in this regard or that such behaviour played any role in how she reacted to her brother’s aggression toward her. Thus, the probative value of this evidence in regard to placing C.G.’s evidence in context is limited. At the same time, the potential for prejudice arising from the admission of this evidence is also very low for the same reasons referred to above. On balance, I conclude that this evidence is admissible for the purpose of establishing T.S.H.’s attitude towards his younger sisters and his interest and willingness to use them as sexual objects. However, the weight I assign to this evidence in regard to counts one and two on the indictment is less than the weight I assign to it in regard to the third count.
Re Offence against H.B.
58First, I will deal with C.G.’s evidence as to how T.S.H. treated H.B. when the children were playing hide and seek together in Deschênes, H.B.’s evidence as to how T.S.H. used to feel her breasts in Stittsville and in Ottawa, and H.B.’s evidence as to how T.S.H. touched her sexually when they were sharing a hide-a-bed at their mother’s rooming house.
59The evidence of how T.S.H. interacted with H.B. when they were young is relevant to explain the relationship between the two siblings and the context in which the later alleged incident of incest occurred. It is relevant to establish T.S.H.’s perception from an early age of what power he had over H.B. and how he could treat her. It is also relevant to show that, from an early age, T.S.H. used his access to his younger sisters to engage in intimate, exploratory, contact. Thus, there are a number of purposes to the admission of this evidence of discreditable conduct – aside from the impermissible purpose of proving a general disposition to commit sexual offences or proving bad character on the part of T.S.H.
60The evidence of H.B. as to how T.S.H. would feel her breasts when they lived in Stittsville and then in Ottawa, and how he touched her sexually when they shared a hide-a-bed, if believed, has high probative value in regard to all of the purposes described above. Without this evidence, the incident of incest alleged by H.B. stands out as isolated and strange.
61If the evidence of C.G. and H.B. is believed, that evidence helps to place T.S.H.’s sexual advances toward H.B. on a continuum. His early interest in breasts started at a young age when he told C.G. and H.B. where their “boobs” were going to be and felt free to feel their nipples. H.B.’s evidence is to the effect that T.S.H.’s behaviour progressed to his feeling H.B.’s developed breasts when he had the opportunity of doing so as a teenager and, when doing this, he ignored her entreaties to stop. According to H.B., when T.S.H. again had access to her while they were sharing a hide-a-bed at their mother’s residence, he took the opportunity to touch her sexually. Their evidence supports the conclusion that T.S.H. was not reticent to take advantage of every opportunity he got to use C.G. and H.B. as sexual objects and to see how far he could go in doing so.
62For the reasons already given above, in terms of potential moral or reasoning prejudice, the risk of prejudice if this evidence is admitted is low.
63I turn now to C.G.’s evidence regarding the incidents on the couch and in the tent and to its relevance in proving count three on the indictment regarding H.B.
64This evidence is relevant to help explain the relationship T.S.H. had with his two younger female siblings and his perception of both as potential sexual objects. It is also relevant to show that T.S.H. had no compunction in taking advantage of opportunities to pursue his sexual urges in regard to his two younger sisters. In that the behaviour described by C.G. related to T.S.H.’s aggression toward her and not H.B., and in that H.B. was not aware of what was going on during the couch incident and was not present during the tent incident, C.G.’s evidence in this regard has less probative value when considering H.B.’s incest allegations than it has when considering C.G.’s incest allegations. Nevertheless, it is significant evidence relating to T.S.H. objectifying his younger sisters for sexual purposes, and taking advantage of opportunities that came his way during everyday life.
65From the point of view of prejudice, the same observations apply as mentioned above. However, I would consider the potential prejudice of this evidence when tendered in regard to H.B.’s incest allegation to be somewhat greater than the potential for prejudice of the evidence regarding T.S.H.’s focus on H.B.’s breasts when he was a youth. Allegations of digital fondling of the genital area and digital penetration of the vagina are more serious than touching breasts over clothing. Nevertheless, on balance, I find that the probative value of this evidence in regard to how T.S.H. viewed his younger sisters as potential sexual objects and as to how he seized opportunities to act out his sexual urges toward them when they were living under the same roof and were vulnerable for one reason or another outweighs the prejudicial effect of admitting this evidence.
Issues of Credibility and Reliability
General Principles
66Both C.G. and H.B. testified in regard to certain incidents that occurred when they were children.
67In R. v. W. (R.), 1992 56 (SCC), [1992] 2 S.C.R. 122, at para. 26, the Supreme Court provided direction as to how the evidence of an adult witness testifying as to events that occurred during childhood should be assessed:
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.
68As well, in R. v. B. (G.), 1990 7308 (SCC), [1990] 2 S.C.R. 30, at para. 48, the Supreme Court commented: “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.”
Re C.G.
69C.G. gave her evidence regarding T.S.H. in a remarkably balanced fashion considering what she alleged he had done to her. She described her relationship with T.S.H. when they were children, apart from the unwanted touching, as being strenuous but pretty good. According to C.G., he could be the life of the party. He used to tell lots of jokes and do stupid things. C.G. said that what he did to her was wrong, but she could not say that he is all bad. There are some good sides to him as well. C.G. described how T.S.H. used to give E.H. a thrill by putting him on an evergreen tree and then making the tree swing back and forth to E.H.’s glee. She described how T.S.H. had bailed her out of jail and had provided her with a place to live. She described how, on one occasion, he had helped her move to Ottawa from the Toronto area. She even allowed how, when he was sodomizing her, he had stopped quite quickly and had apologized. C.G. did not testify in a fashion suggesting that she was going out of her way to exaggerate or embellish or to vilify T.S.H.
70C.G. acknowledged that she hates T.S.H. for what he did to her and for the negative impact his behaviour has had on her life. But, in the same breath, she said that she hated herself for not coming forward when T.S.H. first started to sexually assault her. If she had, she believes her life would not have been as difficult as it was and maybe she would have prevented other women or girls from suffering the way she did at T.S.H.’s hands. Obviously, C.G.’s belief that T.S.H. may have harmed other girls or women plays no part in my determination of his guilt for the charges on the indictment. I mention it only for the purpose of putting into context C.G.’s feelings toward T.S.H.
71C.G.’s descriptions of the nickel plant in Deschênes, the back yard in Stittsville, the green army tent and the day her father brought it home, how the children were sleeping in the tent, a nightie that she had owned when a child, T.S.H.’s room in Toronto, H.B.’s basement on Dumaurier Avenue, and life on the streets in Toronto were rich in detail. Her evidence flowed naturally, with few hesitations. Although she acknowledged being confused about some details, such as whether she was wearing a nightie or pyjamas on a particular occasion, or whether she was speaking in a normal voice or had raised her voice, these details were not of significance in her narrative. This is especially so when, according to her evidence, T.S.H. assaulted her on a number of occasions and those that occurred in Stittsville, for example, happened within a short space of time many, many years ago. In my view, C.G. did an excellent job of recounting traumatic events that have stayed with her throughout her life. Considering it was traumatic events she was recounting, and keeping in mind that those events occurred approximately 40 to 60 years ago, it is understandable that C.G. could not be certain about minor details or be precise about the timing or order of events.
72C.G. described how, over the years, she had dreams about what T.S.H. had done to her. The dreams became more frequent when she started opening up to people about what had happened. The dreams were similar to her memory of what actually happened, though there were some exceptions. C.G. was cross-examined extensively as to whether she was confusing dreams with reality and how she could tell the difference. C.G. was firm that what she recounted in court regarding T.S.H.’s behaviour came from her memory of actual events; it did not come from dreams. Although some of C.G.’s testimony regarding dreams at the preliminary hearing seemed to suggest that some of the details provided by C.G. as to the events involving T.S.H. came from the dreams and were not already in her memory, I accept C.G.’s evidence at trial that she had and continues to have a memory of the significant points of what T.S.H. did to her, without those memories being polluted by what was in her dreams.
Re H.B.
73No credibility issues are apparent in regard to H.B.; however, issues were raised about the reliability of her evidence.
74H.B. suffers from short-term memory loss. She does not consider herself to have any problem with her long-term memory. As an example, she explained how she could remember her mother walking down the stairs, suitcase in hand, when she left the H. household with another man with whom she lived for the rest of her life. This event occurred in 1956 when H.B. was five years old. H.B. had a good recollection as to where her siblings were living at different points in time. She was able to describe the layout of and furniture in the Arlington/Lebreton apartment. H.B.’s account of the chain of events in regard to the first incident she described with T.S.H. was fulsome. She had no difficulty answering questions under cross-examination as to how that evening unfolded so as to clarify any gaps in her evidence-in-chief.
75That being said, the following admissions submitted by Crown and Defence counsel form part of the evidence in this case:
In her July 24, 2015 police interview, H.B. described in detail the incident at Arlington with [T.S.H.’s wife] in the room (“the first incident”). She said “Apparently that’s the one [incident] I remember” and “It happened a couple more times on Du Maurier Avenue in the house. I don’t remember those. He must have drugged me or something … But I don’t remember those.” She did refer to the fact that T.S.H. grabbed her breasts when she was a young child. She did not mention to police the second incident where T.S.H. assaulted her while she was alone with the children or anything involving a knife (“the second incident”).
On February 7, 2017, H.B. testified at the preliminary hearing. At that point, she said she could not remember [T.S.H.’s wife] and could not recollect “the first incident”. For the first time, she described in detail “the second incident”. She did not mention the knife.
At a preparation meeting on November 20, 2018, H.B. recalled both the “first incident” and the “second incident”. She added that she now remembered the knife.
At a preparation meeting on November 20, 2018, H.B. advised Det. Filippo Flocco that she had had a dream about the knife incident; she also advised she knew the knife incident was true.
76In regard to the first incident, when questioned by the police about whether she had said anything out loud or had attempted to get help from T.S.H.’s wife, H.B. said that she had told T.S.H. to get off her loud enough for his wife to hear. Nevertheless, at trial, she testified with confidence that neither she nor T.S.H. had said anything during the first incident and that she can only explain her silence on her being so shocked in regard to what was happening. What was apparent was that, when first speaking to the police and then when testifying at the preliminary inquiry, H.B. may have been confusing or conflating the first and second incidents she described. During her testimony at trial, H.B. was clear that both she and T.S.H. said things during the second incident but did not do so during the first.
77Prior to going to the police, H.B. had shared details of the two incidents with her eldest daughter, K.E. H.B. claimed that K.E. had helped her piece together what had happened during the second incident in that K.E. recalled that T.S.H. had undressed H.B. and had put her to bed. I recount this not for the truth of the contents of the statement, but to note that some of the details provided by H.B. during her testimony may be the result of her piecing together information from a variety of sources rather than her simply recounting what she personally observed and now remembers. H.B. has no present memory of how she got undressed and how she got to bed at the time of the second incident. Although she acknowledged having had some beer with T.S.H. that evening, she did not remember being drunk and does not believe that she became unconscious or fell asleep due to alcohol.
78In an interview with the police in the week prior to trial, H.B. stated that she had had a dream about the knife incident. When testifying, H.B. did not recall saying that to the officer, but she was certain that the event in which she held a knife to T.S.H.’s throat and told him to get out of her apartment and never come back actually happened. She remembered his going out the door half-dressed.
79Considering the frailties of H.B.’s evidence regarding the second incident, I place no weight at all on that evidence for any purpose in these proceedings. In saying that, I am not making a positive finding that the second incident never happened. I am merely saying that the state of the evidence in regard to that incident is such that it would be unsafe for me to place any weight on that evidence. It is the first incident that is the subject-matter of count three. It is the first incident that H.B. described in detail to the police in her first interview with the police on July 24, 2015. The preliminary hearing occurred almost two years later. According to H.B., she was very nervous when testifying at the preliminary hearing, and she simply could not remember the first incident; she could only remember the second incident. It is entirely plausible that H.B. was nervous at the preliminary hearing and this impacted her ability to remember things clearly. This is especially so when H.B.’s confidence with her memory has been shaken by short-term memory loss in recent years.
80H.B.’s evidence regarding the first incident does not suffer from the same frailties as the second. She described this incident in detail and with apparent ease and responded quickly and without difficulty to challenges raised during cross-examination. The flow of events was logical.
Inconsistencies
81H.B. could not recall anything untoward happening when T.S.H., H.B., C.G., and E.H. were playing hide and seek in the deserted nickel plant in Deschênes. C.G. recalled in detail the children taking off footwear or clothing when they were caught, T.S.H. touching the girls’ chests both over clothing and when their chests were uncovered, and T.S.H. showing the girls his penis or pointing to E.H.’s penis. The fact that H.B. did not remember the hide and seek games involving these other activities does not mean that they did not happen. There are many possible explanations. T.S.H. may have displayed this behaviour when H.B. was not part of the game, he may have focused his attention more on C.G. than H.B., or H.B. may not have considered T.S.H.’s behaviour at the time particularly significant. C.G. was able to describe the hide and seek activities in a way that brought the episodes to life and her evidence had a ring of truth to it.
82Much was made of the fact that neither H.B. nor A.L. could remember a tent ever being erected in the H. backyard in Stittsville. I assign no significance to that. The evidence was that H.B. lived with an aunt and uncle for a period of time when the rest of the family was in Stittsville. The evidence was that A.L. had moved to her in-laws in Deschênes shortly after the H. family had moved to Stittsville. Therefore, neither H.B. nor A.L. were present in Stittsville for much of the time when T.S.H., C.G., and E.H. were there. As well, C.G. recalls the tent being erected when her father was home caring for the children. There would have been no need for A.L. to be in Stittsville looking after the children at the time.
83C.G. recalled H.B. saying that their father, not T.S.H., had touched her. H.B. has no recollection of having ever said that to C.G. Furthermore, their father had never touched C.G. inappropriately. C.G. was surprised that H.B. had said that to her as, in her estimation, their father would never have done anything inappropriate with any of his children. H.B. was surprised that C.G. thought that H.B. had ever made such an allegation against her father. In all likelihood, there was some miscommunication or misunderstanding between C.G. and H.B. as to what H.B. had actually said or had intended. I attach no particular significance to this inconsistency.
84H.B. did not remember C.G. staying with her on Dumaurier Avenue for approximately three months, though she did remember C.G. visiting for the occasional weekend. Initially, H.B. did not remember T.S.H. staying over at her Dumaurier Avenue home, but then she remembered that, on one occasion, M.M. had complained about T.S.H.’s behaviour which meant to H.B. that T.S.H. must have stayed over at some point. H.B. remembered E.H. living with her on Dumaurier Avenue during a five-year period. Ultimately, H.B.’s evidence regarding the living arrangements on Dumaurier Avenue was not inconsistent from that of C.G. in any material way.
85The minor inconsistencies in the evidence of C.G. and H.B. do not undermine their credibility or the reliability of their evidence regarding T.S.H.
Reporting Incidents
86Although C.G. could not remember the details of how her father became aware that T.S.H. was hurting her in Stittsville, she did remember that, after an outburst in which she told her father not to let T.S.H. hurt her any more, she was taken to be examined by a doctor. C.G. remembered T.S.H. being kicked out of the house; but she did not remember the exact circumstances. She also recalled her father not wanting to discuss the matter further and, in her view, pushing the whole episode “under the rug”.
87Over the years, neither C.G. nor H.B. ever told any of their siblings about what they allege T.S.H. did to them. The first person that C.G. eventually told was her father. He, in turn, told C.G.’s step mother. In 1989, two days before S.H. died, C.G. told him that she was thinking of pressing charges against T.S.H. S.H. urged her not to do that.
88In approximately 1989, C.G. told her future husband, G.G., what T.S.H. had done to her. G.G. had been a victim of sexual assault by another man. The fact that he and C.G. both identified as victims of sexual assault helped their relationship. Each offered the other an understanding ear and helped the other to remain stable and not abuse drugs or alcohol. According to C.G., G.G. was worried that if C.G. pressed charges against T.S.H., she would get mired in the emotional turmoil caused by reliving all of the events.
89When C.G. was in her thirties and forties, she spoke of the details of the alleged sexual assaults with her doctor. That doctor prescribed antidepressants, on which C.G. unfortunately overdosed. In her forties, C.G. was referred to a psychiatrist or psychologist, Dr. DeJesus, with whom she discussed the alleged sexual assaults on numerous occasions. Dr. DeJesus advised C.G. that she had four things she could try: forgive, forget, confront, or press charges. C.G. has also discussed the assaults with her current family physician. Finally, C.G. has seen Dr. Lee, a pain specialist and a physician who works with sufferers of post-traumatic stress disorder. Dr. Lee worked at reducing the opioid and other medication C.G. was taking for pain management and sleeping difficulties. She told C.G. that, in all likelihood, if she pressed charges against T.S.H., some of the pain she was experiencing would abate.
90A couple of years prior to her going to the police, C.G. asked H.B. if T.S.H. had ever done anything to her. It was at this time that C.G. told H.B. that T.S.H. had raped her.
91C.G. went to the police in 2015. She immediately told A.L. what she had done and explained that T.S.H. had raped and molested her.
92In examination-in-chief, H.B. thought that the first person she told about T.S.H. raping her was her sister, C.G. She recalled telling C.G. this after H.B. had learned from a friend that T.S.H. was accused of molesting a neighbour’s daughter. H.B.’s evidence was that, it was about this time when both H.B. and C.G. decided to go to the police.
93Under cross-examination, H.B. doubted that C.G. had been the first person she told about the rapes. She acknowledged having shared some of the details of the rapes with her daughter, K.E. She recounted how she had spoken of the rapes with two psychiatrists she had seen over the years. It was only after she had learned of the charges against T.S.H. relating to a neighbour’s daughter, that H.B. discussed with C.G. the importance of both of them going to the police.
94I am satisfied that there were many reasons why C.G. and H.B. did not immediately report what they allege T.S.H. had done to them. One very strong reason was the guilt and shame felt by both C.G. and H.B. as to what had happened.
95In C.G.’s case, she had no one to turn to. She could not seek help from her mother who, in her mind, was quite willing to “pimp” C.G. to men in her rooming house. She could not ask her father for help in that she had run away from his home due to a conflict with A.C., whose side her father seemed to have taken against C.G. In any event, when C.G. had complained to her father about T.S.H.’s behaviour years earlier, in her view, he had wanted to bury the matter. In 1989, when C.G. had told her father that she was thinking of going to the police, her father, whom she loved, urged her not to do so. Her husband, whom she also loved and trusted, also expressed concerns about her going to the police. Over the years, C.G. had many other issues to cope with in her life: insecure housing, abusive partners, drug addictions, criminal convictions, health issues, and the loss of her husband. It is understandable that she may not have had the psychological and physical strength to put herself through the stress felt by all those caught in the criminal justice system. As well, considering the run-ins C.G. had had with the law, and considering her social history, a likely concern was how she would be treated by representatives of the Crown if she pursued charges against T.S.H. Finally, C.G.’s psychiatrist offered her other alternatives to having T.S.H. charged, namely, forgetting, forgiving, or confronting T.S.H. It was only over time that C.G. came to the realization that those alternatives were not providing her with the peace she was seeking.
96In H.B.’s case, she was coping with an alcohol addiction, unstable housing, and, initially, two very young children. I can understand her not having the appetite for going to the police. It was only through counselling that she came to realize that she had nothing to feel guilty or ashamed about; she was the victim in the circumstances.
97I accept the evidence of both C.G. and H.B. that the catalyst to have both think more seriously about reporting T.S.H.’s behaviour to the police was their understanding that he had been charged with molesting the daughter of a neighbour. Both C.G. and H.B. felt guilty about not having spoken up before. They worried that their silence may have enabled T.S.H. to harm someone else. I reject the suggestion by Defence counsel that C.G. and H.B. wanted to orchestrate a conviction against T.S.H. to make up for the fact that he had been acquitted in regard to the criminal charge emanating from the allegations made by the neighbour’s daughter. There is nothing in the evidence or demeanour of either complainant that would lead me to this conclusion.
98In short, I accept the evidence of C.G. and H.B. as to the reasons for their silence over the years. Their explanations are entirely credible.
Conclusion
99In summary, I found both C.G. and H.B. to be credible witnesses, motivated by a desire to speak the truth and to bring out in the open things which they have kept hidden for a very long period of time. I also found their evidence sufficiently reliable in regard to the essential elements of the offence of incest to persuade me beyond a reasonable doubt that the alleged incidents took place as they described.
Similar Fact Evidence
100The Crown applied for similar fact reasoning to apply, as across the counts on the indictment, while acknowledging that, if the only offences on the indictment were those committed against C.G., the Crown would not have brought the application. Crown counsel was concerned that, given H.B.’s short-term memory issues, the court might need to consider similar fact evidence before being persuaded beyond a reasonable doubt that T.S.H. had committed the third count of incest on the indictment against H.B.
101In fact, I have no need to rely on any similar fact evidence before convicting T.S.H. of all three counts on the indictment. For the reasons given above, I find both C.G. and H.B. to be credible witnesses and their evidence in regard to the essential elements of the offence of incest to be reliable. For this reason, I am not going to engage in an analysis as to whether count to count similar fact evidence, which is presumptively inadmissible, is admissible in this case for any specific purpose.
Disposition
102The Crown is obliged to prove the following three essential elements of incest:
that the complainant in question was T.S.H.’s sister by blood relationship at the times alleged. This essential element is admitted in regard to all three counts on the indictment;
that T.S.H. knew that the complainant in question was his sister by blood relationship at the time of the incident in question; and
that sexual intercourse, i.e. penetration, occurred during the incident in question.
103I am left with no reasonable doubt about any of these essential elements in regard to all three counts on the indictment.
104Consequently, I find T.S.H. guilty of three counts of incest as charged.
Aitken J.
Released: January 16, 2019
COURT FILE NO.: 15-SA5153
DATE: 20190116
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
– and –
T.S.H.
Accused
REASONS FOR JUDGMENT
Aitken J.
Released: January 16, 2019
1C.G. said she was five, which would make it June 1958-1959. A.L. said she was 11, which would make it August 1955-1956. H.B. said that she was five, which would make it November 1955-1956. I prefer the evidence of A.L. and H.B. over that of C.G. in regard to when G.H. left the family.