ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR-17-0531

DATE: 20191015

B E T W E E N:

Her Majesty the Queen

C. VanderBroek, for the Crown

• and -

R.K.

G. Pannu, for the Defendant

Defendant

HEARD: July 11 and 12, 2019

REASONS FOR JUDGMENT

TZIMAS J.

INTRODUCTION

[1] R.K was charged with sexual interference on his daughter, L.C.M. on July 20, 2017 for the period between January 1, 2010 and November 30, 2016, contrary to section 151 of the Criminal Code of Canada. He was also charged with uttering a threat to cause death to L.C.M. contrary to section 264.1(1)(a) of the Criminal Code of Canada. These occurrences were said to have taken place in Mississauga.

[2] R.K. pleaded not guilty to both charges. He categorically denied such conduct and submitted that he never had any opportunity to harm his daughter, that he loved his daughter, and that it was his daughter who hated him and who made up the allegations to get him into trouble.

[3] In my review of the evidence and the submissions of the parties, I am satisfied beyond a reasonable doubt that R.K. sexually interfered with his daughter on multiple occasions from some point after his arrival in Canada in the fall of 2010 and until November 30, 2016. I am not satisfied beyond a reasonable doubt that he threatened to kill his daughter if she spoke up about his conduct.

[4] My analysis and reasons for this decision are outlined below. But in a nutshell, in reaching this conclusion I found R.K. incredible, I found that the evidence before the court did not raise any reasonable doubt and I also found that on the evidence I accepted, I was able to conclude beyond a reasonable doubt that R.K. is guilty of sexual interference against his daughter and that such occurrences took place as L.C.M. described them. At the same time, there was no evidence of any threats by R.K. to kill L.C.M.

BACKGROUND

[5] The following facts are not materially in dispute. L.C.M. was born in India and came to Canada when she was 6 years old. She has three brothers who are younger than her and who have different fathers. In India she lived with her father. Her mother came to Canada about a year and a half after L.C.M. was born. R.K. was an optometrist in India. Once L.C.M.’s mother left, family members assisted R.K. with L.C.M.’s care but R.K. maintained the primary responsibility.

[6] R.K. and L.C.M. came to Canada in the late summer of 2010. For reasons unrelated to the charge before the court, L.C.M. and her brothers were removed by the Children’s Aid Society, (C.A.S) in 2016.

[7] L.C.M. recorded instances of the sexual abuse by her father in her diary. She showed the diary to her foster mother and that resulted in a police investigation and in the charge of sexual interference being laid against R.K.

THE EVIDENCE BEFORE THE COURT

a. The Complainant’s evidence

[8] At trial the complainant was fifteen years old. She gave a very detailed account of the multiple instances of sexual interference by her father. She said that the incidents began to occur when she was six years old, shortly after she and her father moved to Mississauga from India. She said she endured repeated incidents for a period of approximately six years. Her evidence included her statement to the police, which she gave when she was twelve years old.

[9] L.C.M. explained that most of the incidents occurred in her bedroom, though in the later years, on occasion, they happened in the living room when nobody other than she and her father were home. Initially, the sexual touching was limited to her father touching and putting his mouth on her vagina. Gradually the contact developed into full sexual intercourse and one instance of fellatio.

[10] The instances occurred mostly on weekends when her mother was not home. L.C.M. describes certain occasions when her father would make his advances, immediately following her shower. L.C.M. said that she would be in her bedroom wrapped in a towel and in the process of getting dressed. In other instances, she would be lying in bed pretending to be sleeping.

[11] When her father approached her, L.C.M. explained that he would come into her room, push her down and hold her two wrists in his hand. With the other hand he would touch her breasts, massage them, kiss her and then make his way to her vagina, where he would do “weird stuff”.

[12] When they first came to Canada, L.C.M. said that she shared a room with her parents and her little brother. Within the month, she moved into the adjacent bedroom. Her father would sleep with her in the same bed. On the occasions when he interfered with her, once he was done, he would remain in the bed and go to sleep.

[13] With respect to the instances when intercourse occurred, L.C.M. testified that in the first few times, she would bleed following the penetration. She could not recall if she stained her underwear but she believed that if she did she would have thrown her underwear out to conceal the blood. Eventually she stopped bleeding when her father had intercourse.

[14] The first incident occurred when L.C.M. was just six years old. She explained that she had come out of the shower and had a towel wrapped around her. Her mother was not home. Her father came into her room and pushed her on the bed. He then started touching LC.M. He put his mouth on her nipples and rand his hand down to her private parts. With the other hand he held her hands above her head. On this first instance there was no other sexual activity.

[15] The last incident that L.C.M. recalled involved sexual touching, intercourse, and fellatio. L.C.M. gave a very vivid account of what occurred. She said that when her father ejaculated in her mouth it caused her to vomit. She described “white stuff” coming out of her father that he wiped on her body and that caused her to vomit. L.C.M. described how following this act, her father left her in her room to clean up after herself. She said that at first she was unsure about what to do. Then she took some clothes from the laundry room to wipe herself and the floor. After that, she proceeded to take a shower.

[16] L.C.M. said that nobody was home when this incident occurred. Although she could not recall the exact time of the day or the date, she situated the occurrence prior to a trip out to Calgary. She also recalled that her mother, her grandmother and her brothers had gone shopping in preparation for their trip and were not expected to be coming home for some time. When asked about any lingering smells from the vomit and the fact that people coming back to the house would smell that something was wrong, L.M.C. insisted that she cleaned everything up.

[17] Speaking generally about her reaction and possible resistance to her father’s conduct, L.C.M. said that on the first few occasions, she tried to resist but her father would get very angry and hit her. She described instances where he would put a cloth in her mouth so that she would not be able to scream. Eventually, L.C.M. said that she would lie as still as she could so that she could get it all over with as quickly as possible. She went as far as to tell herself that she was enjoying the experience and even tried to persuade herself that this experience was normal. L.C.M. recalled that there were some occasions when she would use all her might to pretend that she was sleeping. This strategy worked in some instances; her father would leave her alone so as to avoid causing any commotion.

[18] L.C.M. testified that the incidents with her father caused her to wet her bed. When her mother questioned her about that, she said that maybe she drank too much water. Soon thereafter her mother brought in another bed to the house and her father began to sleep in the living room.

[19] With respect to the frequency of the incidents, L.C.M. thought that initially they occurred two to three times a month but gradually they increased to three to four times per week. She also noted that they slowed down for a period of time in 2013 when her maternal grandmother came to stay with them.

[20] Speaking of her home environment and experiences generally, L.C.M. testified that she and her brothers were left to fend for themselves. Her mother would either be sleeping in late, staying in her room, going out in the evenings, and sometimes disappearing for two or three days at a time. Shortly after L.C.M. first arrived in Canada, her mother had a baby and was on maternity leave. However, L.C.M. also understood that her mother was on some kind of long-term disability and did not work. She thought that her mother suffered from some back issues.

[21] With respect to her activities at home, L.C.M. said that she was required to undertake daily chores that included washing bathtubs, mopping the floors, laundry and doing the dishes. They relied on the food bank and friends for food and their diet consisted of frozen foods, some Indian food and sweets. L.C.M. was not permitted to eat Nutella though it was available in the house and she would get up at night to have it. She admitted that she lied about doing this and on one occasion her father disciplined her and attacked her with a toothpick.

[22] L.C.M. spoke of regular arguments and tension in the home between her parents that often resulted in multiple calls to the police and domestic abuse charges against her father. She denied that the disputes between her parents had anything to do with her.

[23] L.C.M. also described at some length how her mother required her to steal clothing and food from Walmart. During one such occasion Walmart staff intercepted them and that in part resulted in C.A.S. being called and getting involved with L.C.M. and her brothers.

[24] In addition, and also during her cross-examination, L.C.M. testified that her parents lied about their marital status so that they could obtain social assistance. She said that her mother told everyone that she was a single mother with three kids. Her father got a different residence and mailing address so that he could appear to be living separately from his family. L.C.M. understood that this arrangement allowed her mother “to get money from the government”. She explained however that her father was always at their home and that he would hide in a closet or in the stairwell if strangers came to the apartment.

[25] L.C.M. agreed that when her grandmother first came to Canada, on Sundays she would go with her to church. But eventually that stopped because her mother wanted her to care for her brothers. Her grandmother would therefore go to church on her own.

[26] In response to questions about whether L.C.M. knew that these activities were wrong, L.C.M. said “sort of”. She explained that back in India she had an uncle who touched her cousin and she learned that it was wrong. But in cross she also made a comment that her cousin did not get into any kind of trouble in the way that she did.

[27] In addition, she described her father as being sneaky about his activities. She added that when in Grade 6 the family life textbook had a chapter on sexually transmitted diseases and they learned that it was wrong for somebody to touch them. L.C.M. went on to explain that she knew it was wrong but she was scared and ashamed to say anything. She also said that her father threatened to kill her if she ever said anything. In addition, she told the court that her father had taken sexually explicit photos of her and she feared that he would share them and cause her further embarrassment.

[28] When challenged on why she would not seek out help or report on her father’s conduct, L.C.M. said that she did not believe that she could get any help from either her mother or her grandmother. Her mother was somebody who would yell and hit her. Eventually she was charged for hitting the children, including L.C.M. and they were removed to foster care.

[29] Regarding her grandmother, L.C.M. said that she could not be trusted to protect her. To illustrate her point, she explained that on one occasion, her grandmother accused L.C.M. of stealing money from her purse and complained to her mother. Her mother’s response was to discipline L.C.M. by hitting her.

[30] With respect to other individuals such as telling a teacher, a counsellor, the police, or the C.A.S. worker, L.C.M. said that she did not want to get her father into any trouble. She expressed that concern even when she gave her statement to the police.

[31] L.C.M. was challenged during her cross-examination on her feelings towards her father. She was clear that she did not want to get him into any trouble L.C.M. expressly denied making up the allegations to get her father into trouble. She agreed that she stopped loving her father after they came to Canada and agreed that she hated her father for the past six years. L.C.M. added that it was the officer who interviewed her that told her that what her father did to her was wrong. When pushed further on the issue of wanting to get her father into trouble, L.C.M. vehemently denied that suggestion and repeated that it was the investigating officer to whom she gave her statement that told her that what her father did was wrong.

[32] L.C.M. drew a clear distinction between the physical abuse she said she endured in her mother’s hands and the sexual incidents by her father. She described the latter as deeply personal and different from the physical abuse. She explained that she found it easier to come to terms with the hitting by her mother, because she equated it to discipline and she believed it to be part of her culture. Although she did not use the terms ‘cause and effect’ what L.C.M. said was that she could identify her own behaviour as a cause for her mother’s reaction and disciplinary measures, even if she disagreed with her mother’s choice of discipline. In contrast to that rationale, when it came to understanding her father’s conduct, L.C.M. expressed her inability to process her experience and to come to terms with what her father did. She questioned whether his conduct was normal and said that she could not understand how somebody who “gave her life” could harm her.

[33] Ultimately, L.C.M. confirmed that she wrote about her father’s conduct with her in her diary. She said that she was feeling very bad and guilty about being removed to foster care, she thought that this occurred because it was her fault and she expressed those thoughts in her diary.

[34] One evening her brothers came back to the foster home crying after a visit with their mother. The foster mother sought to reassure them as well as L.C.M. that they were safe. Although L.C.M. agreed that she had not reached the point of trusting the foster mother entirely, she did give her the diary. She said that she did not expect her foster mother to read through the whole diary. When she did, the foster mother asked her if she wanted to report the incidents concerning her father. L.C.M. responded that she did not know what to do.

[35] L.C.M. did not say anything about her father threatening to kill her. He she did mention concerns about both her parents trying to commit suicide and expressed a worry that they might still do so in the face of the charges and other difficulties.

b. The Accused’s Evidence

i. R.K.’s testimony

[36] R.K. testified in his defence. He categorically, and with pronounced emotion, denied the multiple allegations against him and said that he could not understand the reasons for his daughter’s allegations. He said that he forgave his daughter for what she did.

[37] R.K. confirmed that he came to Canada when L.C.M. was six years old. He testified that his wife, S.M., was already in Canada and that she was working when he and L.C.M. arrived. However, he also testified that while his wife was pregnant she presented with cancer symptoms and had to stop working. He was not clear if S.M.’s cancer is in remission. He said that she had some radiation and “it is like that”.

[38] R.K. said that after working for a short period for Dr. Simone doing various garden chores, he got a job at Loxscreen Canada doing shift work from 2:00 p.m. to midnight. Occasionally he would take weekend shifts that started at 5:00 a.m. This schedule meant that he would not be home before 1:30 a.m. He said that he would go to bed, but wake up at 6:30 a.m. to get the children ready for school and then go back to sleep until 11:00 a.m.

[39] With respect to his sleeping arrangements with his wife, he said that in the first month of their arrival they all slept in the same bed. After a month, L.C.M. got her own room. In December 2010, R.K. said that he separated from S.M. The cause for the separation was the numerous quarrels they had over L.C.M.’s wellbeing. S.M. criticized him for failing to raise L.C.M. properly. She would then scold L.C.M. regularly. R.K. attributed his wife’s failed relationship with L.C.M. to never having bonded with her. Similarly, L.C.M. did not show any attachment to S.M. R.K. said that he felt he had to protect L.C.M.

[40] R.K. said that he started sleeping in the living room in late 2010. Then by the middle of 2011 he moved out to his uncle’s place and stayed there until 2013, when he got another place. R.K. explained that although L.C.M. complained to him about hating her mother, he could not bring her with him because of his work schedule. He also believed that girls should be raised by their mother and that it is very hard for girls to talk with their fathers. Instead he would go back to the home regularly and assist with the various household chores and care for L.C.M.

[41] R.K. also said that when things were going well with S.M., he would stay overnight. He also agreed that he had a reserved parking spot for his car at the apartment where S.M. and his family lived. When asked if it would surprise him to learn that others had the impression that he lived at the same location as his wife and children, he reacted by saying: “I never said I did not live there”.

[42] R.K. denied that he engaged in any social assistance fraud or that the different addresses he claimed were deliberately obtained so that his wife could retain the level of social assistance that she was receiving before he started to work. R.K. agreed that his wife was on social assistance. However, he denied knowing anything at all about how such benefits worked or how his wife’s benefits would be reduced once he started to earn and claim an income. He said that when he came to Canada, his name was added on the lease. When they separated and he left, he did not know if his name was removed from the lease.

[43] With respect to the condition of the apartment where L.C.M. was living, R.K. denied the suggestion that it was badly kept. He said that he did the best he could since S.M. was sick and unable to do the chores. He confirmed that L.C.M. did do some laundry once she was tall enough to reach the washing machine located on the ground floor of the building where they lived. He also said that L.C.M. would help with the chores though he disagreed that they were left to her.

[44] Apart from scolding L.C.M., and with the exception of one incident, R.K. disagreed with the suggestion that S.M. ever hit his daughter. The one incident where S.M. hit L.C.M. followed on S.M. discovering that L.C.M. was watching a movie containing sexual content. He said that S.M. hit L.C.M. with a spatula. R.K. explained that he took exception to this form of discipline and asked S.M. to talk to the kids nicely.

[45] With respect to the viewing of pornography, R.K. went further to suggest that his daughter watched inappropriate movies with her brother “A” and that the two used to sleep together.

[46] When asked about why he moved out of the house if he was spending all his time there, he said that S.M. was calling the police regularly and so he hoped that moving out would reduce the problems. He also saw his other place as a refuge for himself for those instances when S.M. got upset. To illustrate this explanation he described how S.M. locked him out of the house on two or three past occasions. He attributed her loss of temper to her cancer treatment.

[47] R.K. confirmed the theft at Walmart but said he had nothing to do with the incident. He merely got a call from S.M. telling him to come and pick them up from Walmart because between the stroller, the children and her shopping, she had too much to carry. R.K. also confirmed that they used the food bank regularly.

[48] R.K. further confirmed that he hit his wife and was arrested for domestic violence. He agreed that he pleaded guilty to the charges but that he really just pushed his wife and it was not that serious. As with all of his other disputes with his wife, this too started as a disagreement over the way S.M. disciplined her daughter. But R.K. also said that he did not believe that S.M. would actually hurt L.C.M.

[49] R.K. complained that all the allegations against him surfaced two months after C.A.S. removed L.C.M. and the other children from their care. He also highlighted his daughter’s police interview and suggested that she did not say anything wrong about her father.

[50] R.K. was asked extensively about whether he was at home when his daughter showered. Initially, he absolutely denied ever being at home when she took her showers. He also testified that he never stayed home alone with L.C.M., and certainly never when she was showering. Then he explained that S.M. or the grandmother would help L.C.M. with her shower, which would usually take place on Saturdays and Sundays. When asked how he knew that, he said he was there. When asked to clarify whether he was or he was not at home when L.C.M. would take a shower, he said that he could be home but that when he moved out he did not see anything.

[51] Finally, with respect to the grandmother, R.K. confirmed that she came from India to assist S.M. with the family. He described her as somebody who was feeble and who required assistance when she walked. He testified that the grandmother was a devout Roman Catholic woman who went to mass regularly and that L.C.M. would go with her on Sundays. When it was put to him that L.C.M. did not always go to church, he responded that if L.C.M. did not go, neither did the grandmother.

ii. Grandmother’s Testimony

[52] The grandmother, E.C., was also called to testify in support of R.K. She thought that she came to Canada on March 8, 2012 and stayed with her daughter and son in-law, S.M. and R.K. She said that she slept in the same room and bed as L.C.M. She believed that R.K. and S.M. slept in the same room as husband and wife. But then she also thought that R.K. slept in the living room. She recalled that the bunk beds in L.C.M.’s room were bought after she arrived.

[53] In cross-examination she confirmed that R.K. came home from work every evening and slept in the bed located in the living room. When asked if R.K. lived elsewhere she said that they all lived together. E.C. did not know at what time R.K. came home from work because by then she and L.C.M. would be sleeping.

[54] E.C. said that she would go to church regularly with her granddaughter. She said that she would never go alone because she suffered from arthritis, took medications for her condition and needed to hold somebody’s hand. She also said that L.C.M. would go with her wherever she went. She said that she would never leave the house on her own or go anywhere on her own. But she also said that she would walk L.C.M. to school, drop her off and then return in the afternoon by 3:00 p.m. to pick her up. from school.

[55] E.C was asked if she knew if L.C.M. ever stayed home alone with her father. She said that would never happen because she was always with her granddaughter. Wherever L.C.M. went, so did E.C. When asked if she would ever go out with her daughter and the boys and leave L.C.M. behind at home, she said that it was never like that.

[56] When asked about going shopping with her daughter and the boys in preparation for their trip to Calgary, where A was going to be baptised, E.C. recalled the outing and said that she went with S.M. and the boys. She did not say anything about L.C.M. being with them.

[57] On the subject of the laundry, she said that she did it together with her granddaughter. She confirmed that the laundry room was on the ground floor to the building and that they used a card to access the room.

[58] On the subject of L.C.M.’s shower habits, E.C. said that L.C.M. took her showers in the afternoons after school, every day around 4 pm. She said that she helped L.C.M. with her shower, as did her mother. She also said that R.K. was at home when L.C.M. took her shower. She laughed at the suggestion that R.K would not be home and asked almost rhetorically why R.K. being at home would have any impact on whether or not L.C.M. took a shower. In cross-examination she agreed that L.C.M. would also take a shower on Sundays since was the day before school.

[59] E.C. confirmed that L.C.M. stole $50 from her purse. She also described a situation where L.C.M. came home with 4 big chocolate bars and hid them. To scare L.C.M., E.C. told her a story about a snake coming to bite her for stealing. According to E.C., L.C.M. felt bad about what she did and asked E.C. not to tell her mother. E.C. admitted that she told S.M. anyway and that S.M. got angry and hit L.C.M. In cross-examination, E.C. described her granddaughter as a liar and as somebody who always lied. She explained that this is why her mother would beat her. She also said that L.C.M. would steal chocolates and other sweets.

[60] Related to the stealing incident, E.C. said that this was the source of the dispute between R.K. and S.M that led to R.K.’s arrest and the charges against him for assault. She explained that she was there when the incident occurred. S.M. got angry with her daughter for stealing money from E.C.’s purse and hit her. L.C.M. called her dad to complain because she loved her father more than her mother. R.K. came home and had a fight with S.M. that resulted in S.M. being taken to the hospital by ambulance.

POSITION OF THE PARTIES

a) The Crown

[61] Counsel submitted that R.K. interfered with his daughter on multiple occasions between the fall of 2010 and the fall of 2016. In support of that contention she argued that L.C.M.’s evidence was measured, realistic, and uncontradicted by the balance of the evidence before the court. She noted that L.C.M.’s expression of her emotions and reaction to what occurred to her were real and she underscored the fact that L.C.M. withstood cross-examination remarkably well. She also urged the court to find that L.C.M.’s explanations for not reporting her father and for allowing the interferences to occur over an extended period of time made sense.

[62] Counsel cautioned the court to take into account the way that children’s minds work and that when it came to time estimates and chronology a child will remember events differently from an adult. The fact that the evidence of what occurred was advanced through the eyes of a child should not diminish its reliability.

[63] In contrast to the complainant’s evidence, counsel submitted that R.K.’s evidence did not make sense and was full of contradictions. In its totality R.K.’s testimony amounted to an attempt by R.K. to distance himself as much as he could from his daughter and from any opportunity for any interaction with her. Similarly, the grandmother’s evidence was not to be relied on as much of what she said was ridiculous and unsound.

b) The Defense

[64] Defense Counsel disagreed with the Crown’s position. He submitted that the Crown failed to prove the allegations against R.K. beyond a reasonable doubt. Given R.K.’s decision to testify, counsel referred to W.(D.) v. The Queen (1991) 1991 93 (SCC), 63 C.C.C. (3d) 397 (S.C.C.) and asked that the court find R.K. credible and acquit him of the charge against him.

[65] Specifically, counsel argued that on the evidence before the court, R.K. would not have had any opportunity to engage in any sexual misconduct. Moreover, he submitted that while L.C.M. may have been deeply traumatized by other situations in her life, her father’s conduct was not one of those reasons. He urged the court to conclude that L.C.M. hated her father for reasons unknown and that she made up the allegations to get her father into trouble.

ANALYSIS

a) Legal Principles

[66] I begin with the recognition that R.K. is presumed innocent until proven guilty. He started this trial with the presumption of innocence. The Crown has the burden to displace the presumption of innocence with proof beyond a reasonable doubt that R.K. committed the offence with which he his charged: R v. Lifchus, 1997 319 (SCC), [1997] 3 S.C.R. 320 at para. 27.

[67] A reasonable doubt is not something that is imaginary, far-fetched, frivolous or one that is based on sympathy for or prejudice against anyone. Although proof to a mathematical certainty is not required as that would be virtually impossible to achieve, reasonable doubt is one that is based on reason, common sense, and that logically arises from the evidence or absence of evidence. To be clear, probable guilt is not enough.

[68] If after considering all of the evidence, I am sure that R.K. committed the offence, then I will be satisfied of proof beyond a reasonable doubt. If after considering all of the evidence or the absence of evidence, I am not sure that R.K. committed the offence, then I will not be satisfied of proof beyond a reasonable doubt. (See D. Watt, Watt’s Manual of Jury Instructions, 2nd Ed. Thomson Reuters Canada Ltd., 2015, Final 13, “Reasonable Doubt”; and Lifchus, at paras. 36-40).

[69] R.K. was charged with sexual interference pursuant to section 151 of the Criminal Code. Section 151 makes it an offence to touch a part of the body of a person less than 16 years of age for a sexual purpose. The offence has three essential elements. As applied to this case, they are:

i. that L.C.M. was under the age of 16 at the relevant time;

ii. that R.K. touched L.C.M.; and

iii. that the touching was for a sexual purpose.

[70] There is no dispute that L.C.M. was less than 16 years of age at the time of the alleged conduct. There is also no dispute that the touching that described would constitute sufficient physical contact to make out the second element of the offence or that the kind of touching described by L.C.M. was for a sexual purpose, meaning that it was done for the sexual gratification of the accused or in a manner that violated L.C.M.’s sexual integrity. There is no suggestion that the touching was accidental.

[71] The only substantial question for this court is to decide is whether or not R.K. touched L.C.M. in the manner that she described.

[72] With respect to the second charge that R.K. threatened to kill L.C.M. section 264.1(1)(a) the offence also has three elements. They engage the following questions:

i. Did R.K. make a threat?

ii. Was the threat to cause death to L.C.M.?

iii. Did R.K. make the threat knowingly?

In the consideration of these questions, one must take into account the circumstances in which the words were used, the manner in which they were communicated, the person to whom they were addressed, the plain and ordinary meaning of the words spoken, the relationship between an accused and the complainant, the context in which the words were used, and the mental state of the accused.

[73] With respect to the first charge, there are some additional principles to keep in mind. First, as with sexual assault prosecutions, with charges relating to sexual interference, the outcome will turn on the credibility of the parties who are implicated. It will also engage the consideration of evidence of a young complainant who testified about incidents that allegedly began to occur when she was at the tender age of six.

[74] It is open to a court to believe all, none, or some a witness’ evidence: R. v. Francois, 1994 52 (SCC), [1994] 2 S.C.R. 827, at para. 14; D.R. et al. v. The Queen (1996), 1996 207 (SCC), 107 C.C.C. (3d) 289 (S.C.C.) per L’Heureux-Dube J. (dissenting in the result), at p. 318; R v. M.R., ONCA 285, at para.6; R. v Hunter, [2000] O.J. No. 4089 (C.A.)(QL), at para. 5; and R . v. Abdullah, 1997 1814 (ON CA), [1997] O.J. No.2055 (C.A.) (QL), at paras. 4-5. The trier of fact may also accord different weight to different parts of the evidence that the trier of fact accepts: R. v. Howe, 2005 253 (ON CA), [2005] O.J. No. 39 (C.A.) (QL), at para.44.

[75] As much as this case turns on the credibility of the witnesses who testified, it is essential to remember that the determination of guilt or innocence must not devolve into a credibility contest as that would erode the operation of the presumption of innocence and the assigned standard of persuasion of proof beyond a reasonable doubt: W.(D.), supra, at p.409; Avetsyan v. The Queen (2000), 2000 SCC 56, 149 C.C.C. (3d) 77S.C.C., at pp. 85-87; and R v. S.M., [2012] O.J. No. 3868. The approach to be followed consists of a consideration of the following three questions, first laid out in W. (D.):

[76] If the court believes the accused, then the court must acquit the accused. If the accused’s testimony is not believed but it leaves the court with reasonable doubt, the must acquit the accused. Finally, even if the court is not left in doubt by the evidence of the accused, the court must ask itself whether, on the basis of the evidence, which the court accepts, the court is convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

[77] It is also crucial to recall that in the assessment of credibility, the mere disbelief of the accused’s evidence will not satisfy the burden of proof upon the Crown: see W. (D.), supra., at p.409. To use the disbelief of the accused’s evidence of guilt is wrong: R v. Dore 2004 32078 (ON CA), [2004], 189 C.C.C. (3d) 526 (C.A.) at p. 527 (leave to appeal refused, [2004] S.C.C.A. No. 517); and R. v. H.(S.), [2001] O.J. No. 118 (C.A.) (Q.L.), at paras.4-6. Ultimately, the court must be satisfied on the totality of the evidence that there is no reasonable doubt as to the accused’s guilt.

[78] In addition, when it comes to children or youthful witnesses their evidence is not inherently unreliable. Their testimony should be considered against measures of common sense, especially when because of their age they may not be able to speak to details or because their experience as a child is likely different from that of an adult. The Supreme Court of Canada has cautioned that with respect to evidence pertaining to events that 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 witness’ age at the time of the events, see: R v. W.(R). 1992 56 (SCC), [1992] S.C.J.No. 56.

b) Findings

i. Credibility

[79] Beginning with R.K.’s testimony, my primary difficulty rests with the fact that his testimony was riddled with contradictions and outright nonsense. It became evident fairly quickly that his strategy was to place as much distance between him and his daughter to suggest that there was never any opportunity for him to engage in any sexual misconduct with his daughter. R.K. also attempted to suggest that he did nothing but protect L.C.M. He explained that all of his arguments with his wife related to the way she disciplined the children and specifically to her hitting L.C.M. The disagreements were so extreme that they eventually resulted in him being charged criminally for domestic assault against S.M.

[80] In my review of R.K.’s testimony, I found that in his response to the questions concerning his conduct or interaction with his daughter, R.K. relied on a pattern of denial, then distancing, and then an outright contradiction to what he said. To illustrate this observation, I note that in general, R.K. denied being home very much. He pointed to his long hours of work as well as the fact that he was obliged to move out because of the pronounced friction at home with his wife. R.K. denied that he was ever at home when his daughter took her showers. Finally, although he expressed a profound concern for his daughter’s wellbeing in her mother’s care, he denied that he could ever bring his daughter with him to his own place and based his reason on childcare concerns and his demanding work schedule. All of these denials were designed to support R.K.’s contention that he never had the opportunity to engage in any sexual misconduct with his daughter.

[81] Then, as R.K. was challenged on each of these issues, the court learned that R.K. had not actually moved out of the home where L.C.M. lived. When confronted with L.C.M.’s allegation that her father’s multiple addresses were part of a scheme to maintain his wife’s social assistance benefits, R.K. denied knowing anything at all about how social assistance worked or how the social assistance his wife received might be affected by his employment. More significantly, having been confronted with these difficulties in his evidence, R.K. quickly shifted his narrative from an explanation that had him coming to the apartment only occasionally to being there regularly. He also went as far as to suggest that his wife was not all that bad. When it came to R.K.’s description of his daily routine, R.K. unwittingly placed himself at the apartment when he explained that he would return from his shift work at 1:30 a.m., wake up at 6:30 a.m. to prepared the children’s breakfast and get them ready for school, he would then go back to sleep until 11 a.m. and he would leave at 12:30pm for work.

[82] On the subject of when L.C.M. took her showers and the question of how was it that he would never be home when L.C.M. showered, R.K. quickly redirected his answers to the issue of who assisted L.C.M. with her shower, as a way of distancing himself from the shower activities altogether. He told the court that it was either his wife or the grandmother who assisted L.C.M. with her shower and with the oil that she applied to her hair. When pressed further about why he would not be at home when L.C.M. showered, R.K. eventually agreed that of course, from time to time, he was at in home when L.C.M. took her showers but he reiterated that he had no involvement with that activity.

[83] Similarly, on the subject of his concern for his daughter’s safety, when he was confronted with the contradiction between being very concerned for his daughter’s safety and then his refusal to bring his daughter to his own residence, even if on occasion, or on weekends when he did not work and would not have to deal with child care issues, R.K. simply insisted that that was impossible. He also shifted his narrative and suggested that his wife was not all that bad, that the assault charges were exaggerated, even if he pleaded guilty to them, that 80 per cent of the C.A.S. concerns were also unfounded, and that in any event, he was at home regularly and attended to his daughter’s needs.

[84] As I reviewed each of these contradictions and tried to understand R.K.’s explanations, I considered whether some of the confusing explanations might have been the result of any misunderstanding of the questions that were put to him. However, the only conclusion that I could come to was that R.K. lied deliberately in an effort to distance himself from the charge of sexual interference.

[85] What became clearly evident was that when R.K. advanced his initial denials, he did not think them through. His contention that he was rarely home could not co-exist with the extent to which he said that he cared for his children, the extent of his concern for his wife’s discipline methods, and the extent to which he took care of the daily household routines. If he were never at home, he could not have taken care of the children to the extent that he described.

[86] Similarly, there was no reasonable basis for him to deny that he was ever at home when his daughter took her showers. Except that L.C.M. explained that when the first incident occurred, she had just come out of the shower and had a towel around her. Distancing himself from L.C.M.’s shower activities became an imperative for his defense. But in doing so, R.K.’s insistence that he was never home when L.C.M. showered was odd and incongruent with the rest of his time at the apartment.

[87] Common sense would suggest that one or both parents are typically at home when their children shower. Somewhat ironically, R.K.’s mother in-law, who was called to support R.K.’s defence, hit the nail on the head when in response to a question concerning R.K.’s presence at the home during L.C.M.’s showers she asked spontaneously and rhetorically what was wrong with a father being at home when his daughter was taking a shower. Of course, nothing is wrong with a father being at home when his child is taking a shower. What E.C. did not know was that this idea originated with R.K.’s denial that he was ever at home.

[88] Turning to E.C.’s credibility, it was dubious at best. She giggled through part of her testimony and had to be reminded that she was in a court of law. Although I am prepared to attribute some of that behaviour to being nervous, I am not certain that she took the charge against R.K. very seriously.

[89] What became evident fairly early into her testimony was that her objective in testifying was to protect R.K. and place as much of a distance as possible between him and L.C.M. She did that by describing R.K. in glowing terms and L.C.M. in the worst possible terms. She also did that by insisting that for the period of time that she was in Canada, when L.C.M. was not in school she would always be in her care and under her supervision. She expressly stated that R.K. could never have engaged in any sexual misconduct against his daughter because his daughter was always with her.

[90] The difficulty with these views was that on E.C.’s own evidence, she was not always with L.C.M. She insisted that she always went to church with her granddaughter because she needed assistance with her walking. If L.C.M. did not want to go to church, then neither would she. But E.C. contradicted herself on her ability to go places on her own and without her granddaughter’s assistance when she explained how on weekdays she would walk over to L.C.M.’s school at around 3:00 p.m. to pick L.C.M. up. Nobody else assisted E.C. with her walking on those occasions. So how is it that she did not need any assistance get to L.C.M.’s school every day but she needed L.C.M. to go with her to church? Something was clearly amiss in her testimony.

[91] Similarly, she denied ever leaving L.C.M. behind at home in her father’s care while she went out with L.C.M.’s mother and the younger children. But then she contradicted her own evidence when she agreed that she did go shopping with her daughter and the boys just prior to the trip to Calgary. She also recalled at least one occasion when L.C.M. went to a friend’s house without her knowing. So there were instances outside of school when E.C. would not have been with her granddaughter. The shopping outing was especially significant because this was also the occasion when L.C.M. said that her father ejaculated in her mouth and caused her to vomit.

[92] Compounding the problems with E.C.’s contradictions was the fact that as with R.K., E.C. compromised her own credibility by taking extreme positions on her own interaction with her granddaughter. Both R.K. and L.C.M. said that the grandmother came to assist S.M. with the birth of one of the younger children. She was not tasked to look after or supervise L.C.M. Moreover, by the time that E.C. came to Canada, it made no sense that L.C.M. would have required anywhere near the kind of supervision suggested by E.C. It stands to reason that there would have been times when E.C. went out on her own with other members of the family but without L.C.M. Her insistence that she never went anywhere without her granddaughter just did not any make sense. The only plausible explanation for that evidence is an additional attempt by E.C. to protect R.K. and to eliminate the prospect that he would have ever been left alone with L.C.M.

[93] As if these difficulties with E.C.’s testimony were not enough, the grandmother’s negative and humiliating depiction of her granddaughter was most astonishing and undermined any prospect of taking her seriously. She laughed as she described an instance when during her shower L.C.M. encountered some difficulty with a bowel movement. She then boasted about the way she scared her granddaughter when she confronted her about the theft of the $50. She seemed proud of the fact that although her granddaughter apologized and asked her not to tell her mother about what happened, E.C. did the opposite and went right to her mother. In cross-examination, she went on and on about how bad a liar her granddaughter was. I can only conclude that this too was designed to undermine her granddaughter’s credibility. What E.C. did not realize was that in describing her interaction and her sentiments for L.C.M. in such extreme terms, she validated and corroborated L.C.M.’s concern that she could never trust her grandmother or go to her for help in response to her father’s misconduct.

[94] Finally, the extent to which E.C. sought to protect R.K. was rather extraordinary and only compounded the difficulties with her credibility. In her eyes, R.K. was a family man, who took care of the family, who lived in the same house as L.C.M., and who treated his daughter “like gold”. Of course, what she did not realize was that in situating R.K. at the house, she further undermined his submission that he had secured a different residence and would only sleep at the family apartment on occasion.

[95] But even more astounding was the fact that when asked about the domestic assault charges against R.K., she sought to downplay his involvement and blamed L.C.M. for having been the root cause for that dispute. She said that R.K. was not even at home when her daughter hit L.C.M. for stealing money from E.C.’s purse. R.K. would not have been there at all were it not for L.C.M. calling her father for help. In E.C.’s mind, the severity of the charge against R.K. paled in comparison to L.C.M.’s behaviour.

[96] I cannot be certain if E.C. actually believed that taking money from a purse was more serious than an assault charge. But whether she did or not believe that is not the point. The point is that in response to questions concerning R.K.’s behaviour, she sought to redirect the court’s attention to what she believed were her granddaughter’s failings. That perspective fit into E.C.’s overall narrative that R.K. could not have done anything wrong and that everything that L.C.M. did or said was a lie because she was a liar.

[97] In these circumstances, other than E.C.’s inadvertent admissions about R.K. living at the home and sleeping in the living room, going shopping with her daughter and the young boys, going on her own and without assistance, every day, to pick up L.C.M. from school, and her exclamation that there was nothing wrong with a father being home when his child took a shower, there is very little that was credible in E.C.’s testimony.

[98] Moving next to L.C.M.’s credibility, although her recollection of some of the details suggested some minor inconsistencies, I found her to be truthful, even when the evidence put her in a poor light. For example, she readily admitted to lying about when she ate Nutella, when her mother had her steal from Walmart and other locations or when she watched adult x-rated movies with her brother.

[99] When it came to describing the incidents, I was struck by the extent that L.C.M.’s descriptions corresponded to her age and experience. As a twelve year old who was scared when she spoke to the police and who was not there entirely on her own initiative, the descriptions she gave were basic and in her own words. For example, she described her father doing “weird” things to her. She said that once he penetrated her, he moved back and forth. When she described R.K.’s ejaculation in her mouth, she said there was “white stuff” coming out of him that caused her to vomit. By the time of her testimony at trial as a fifteen-year-old, L.C.M. was able to give greater detail as to what occurred and showed greater familiarity with the vocabulary needed to describe what occurred.

[100] Although there were certain inconsistencies over certain specific details, they were minor and did not undermine or compromise L.C.M.’s testimony. For example, L.C.M. was adamant that she was bleeding in the first few times when intercourse occurred but she was uncertain if she saw blood in her underwear. In my view, whether there was blood residue in L.C.M.’s underwear was not nearly as significant as her recollection that in the first few instances when intercourse occurred she did bleed but that after sometime that stopped. To be clear, L.C.M. did not change her description of what occurred to her, the frequency of the occurrences or the progressing from touching to full penetration. Moreover, at no time did L.C.M. embellish or otherwise exaggerate her descriptions of what occurred.

[101] Also striking was L.C.M.’s stamina and confidence as she responded to the questions that were put to her in cross-examination. Moreover her sense of embarrassment, her shame and her description of her attempts to normalize in her mind what she was experiencing came across as sincere and reflected the profound magnitude of her trauma. As L.C.M. described what occurred she demonstrated a very substantial insight into her overall situation and drew very substantial distinctions between her various life experiences.

[102] Most significantly, even if not by design, much of L.C.M.’s testimony was corroborated by both R.K. and E.C. L.C.M. described how she would do the laundry to eliminate any evidence of her father’s sexual activities. R.K. and E.C. confirmed that L.C.M. knew how to do laundry. R.K. agreed that once she was tall enough to reach the washing machine, she could do the laundry by herself. L.C.M. said that her father slept in the living room. She also said that although at some point her father had another address, he was at their apartment daily. E.C. also said that R.K. slept in the living room and was there every day. L.C.M. testified that she and her brothers were asked to steal and hide food and merchandise from Walmart. R.K. corroborated this occurrence. L.C.M. talked about her mother hitting her. R.K. corroborated that as well, even if he then tried to downplay C.A.S.’s involvement or minimize his wife’s actions.

[103] In coming forward with the allegations, I have to agree with Crown counsel that L.C.M. had nothing to gain. She talked about the deep embarrassment and trauma that she felt which extended to having suicidal thoughts, requiring hospitalization, and being held in care for an extended period of time. In my view, the fact that she recorded the incidents in her diary and could only reveal what she had experienced through her diary enhanced her credibility. Her further indication that she never intended on speaking up and the multiple reassurances by the police that what occurred to her was wrong only underscored L.C.M.’s level of distress that she endured as a result of her father’s conduct.

[104] In contrast to these findings, I must disagree with the defense’s contention that L.C.M. could not be believed because of the inconsistencies in her descriptions of life in India, her uncertain evidence concerning her father’s employment when he first came to Canada, and the contention that L.C.M. hated her father and wanted to get him into trouble. With respect to L.C.M.’s life in India, I cannot ignore L.C.M.’s age. She came to Canada when she was just six. She was born in India and spent her first years of life in her father’s care and the care of various other family members. Her mother left for Canada when she was just over a year old. It would be astounding if a child of that age could have a precise recollection of what her home life was like, especially since on R.K.’s evidence, she was moved around a fair bit. It stands to reason that L.C.M. would not remember the details related to her life in India as an infant and a young child or that she might be confused about certain events. Indeed, a perfect description by L.C.M. of her life in India, without any confusion or contradictions would have been highly suspect.

[105] Similarly, I place very little weight on L.C.M.’s understanding of her father’s employment situation when he first came to Canada. I find it highly doubtful that a six-year-old could really have any insight on whether her parent went only to work when he left in the morning or whether he took English as a Second Language classes followed by work. Insofar as her inability to remember specific dates was concerned, I take little from that as it may relate to L.C.M.’s credibility. More importantly, she was able to relate her overall story to particular events, “A”’s baptism in Calgary and the shopping that preceded that trip being one of the most pronounced of the memories.

[106] I also have significant difficulty with the defense’s contention that L.C.M. wanted to get her father into trouble because she hated him. If, as R.K. said, he protected her as much as he said he did, L.C.M. ought not to have had any reason to hate him as he suggested. Insofar as the suggestion that L.C.M. harboured a deep resentment in her father for his decision to move with her to Canada is concerned, I found it to be an extreme suggestion and without any substantial merit. Apart from L.C.M.’s denial, there was nothing in the evidence to suggest that L.C.M. was so attached to her life in India that she could not cope with the transition with a move to Canada, where she and her father would join her mother and other siblings.

[107] In contrast to the suggested hostile sentiments towards her father, I found L.C.M.’s express worry and fear about what would happen to her father when she gave her statement to the police to be sincere and to reflect a deep level of concern. In short, I found nothing in the evidence to question whether or not L.C.M. had any motivation to fabricate the allegations against her father.

[108] In the same vein, I find the contention by the defense that her failure to seek help from her teachers, from her grandmother, or from other adults with whom she came into contact was one more indicator of her untruthfulness, to be unfounded and without merit. Instead I found L.C.M.’s explanations for not asking for help to make eminent sense. For one, this was consistent with the fact that she did not want to say anything to anyone and kept what occurred to her deeply hidden. More significantly, her contention that she could not trust anyone was corroborated, as I already discussed above, by her own grandmother.

[109] Perhaps the most compelling and convincing aspect of L.C.M.’s testimony, which underscored and reinforced her credibility rested with the way she compared and contrasted her ability to make sense of her mother’s physical abuse with her inability to reconcile her father’s sexual misconduct and abuse. In my view, L.C.M. demonstrated a profound maturity when she explained that she could understand being punished for doing something that she should not have down but that she could not understand how the person who gave life to her could then harm her. The dilemma she articulated at trial and her explanation that she could still not process what occurred to her echoed the hesitation she demonstrated during her police statement when she wondered if her father would get into to trouble. The police had to reassure her repeatedly that what she experienced was wrong. That exchange, combined with her testimony at trial gave the court a very rich insight into what happened to L.C.M. and why she kept it a secret for as long as she did. Given her expressed dilemma, it is no wonder that L.C.M. never wanted to come forward to tell her story and relied on her diary entries to record what happened to her.

ii. W.(D.) Analysis

[110] In light of my credibility findings, I turn to the elements of the W.(D.) inquiry to address each of those questions: a) Do I believe the accused? b) Am I left with a reasonable doubt even if I do not believe the accused? and c) On the basis of the evidence that I do accept, am I convinced beyond a reasonable doubt that the accused is guilty?

[111] Having regard for the two charges against R.K., I will begin with the second charge and find that there was no substantial evidence to support the charge that R.K. uttered any threat to kill L.C.M. Although L.C.M. expressed fear at various times in her testimony, it was not the result of any fear of being killed. L.C.M. talked about her parents having suicidal tendencies and worried about her father’s own mental well-being. There was no real sense that R.K. ever threatened to kill L.C.M. There is therefore no reason to work through any detailed analysis of this charge.

[112] The balance of my analysis is concerned exclusively in relation to the charge of sexual interference and specifically, the question of whether the incidents described by L.C.M. occurred.

a) Do I believe the accused?

[113] The short answer is “no”. For the reasons already explained, nothing in what the accused said permitted me to believe him. R.K. did everything he could to fabricate a narrative that would put as much distance between him and his daughter as possible and to eliminate the prospect of any opportunity to engage in any sexual misconduct. The more that R.K. tried to do that, the more his defense imploded. Telling the court that he loved his daughter and that he forgave her for her allegations did nothing to repair his own denials, contradictions, inconsistencies and misrepresentations to the court.

b) Am I left with reasonable doubt even if I do not believe the accused?

[114] Here too, the answer is “no”. For the reasons already discussed in my credibility analysis, nothing in the totality of the evidence raised a reasonable doubt over L.C.M.’s allegations. In contrast to my disbelief of both R.K. and E.C., L.C.M.’s evidence was credible and sound. Her explanation that she went from resisting her father’s conduct to then trying to normalize the situation and just get the incidents over with, was also reasonable, especially when I consider it against the obstacles she faced in her home life and her inability to trust anyone to get help. Consistent with that strategy and having regard for her home life circumstances and life experiences, it made total sense that L.C.M. would keep the instances of her father’s sexual misconduct to herself. Her explanation that she could not process what was happening to her was compelling and eliminated the prospect of any reasonable doubt.

c) On the basis of the evidence that I do accept, and after considering the accused’s evidence in the context of the evidence as a whole, am I convinced beyond a reasonable doubt that the accused is guilty?

[115] My short answer is “yes” and here is why. As I already explained in my credibility findings, L.C.M.’s description of what occurred to her was neither exaggerated nor unrealistic. On the evidence before me, I am satisfied beyond a reasonable doubt that R.K. interfered sexually with his daughter on multiple occasions and over an extended period of time. I also accept L.C.M.’s evidence as true that the instances of sexual misconduct evolved gradually and progressed from sexual touching to intercourse and fellatio. As difficult as it was for L.C.M. to share some very intimate and embarrassing details about what happened, how it happened, what she experienced, and how she felt, L.C.M.’s descriptions were real and corresponded to what she said occurred.

[116] I also accept L.C.M.’s evidence of her deep trauma, her inability to trust the adults around her to get help and her inability to make sense of or process her father’s conduct. Those sentiments explained why she remained silent over a number of years and why the allegations emerged only when her foster mother read her diary.

[117] In contrast to R.K.’s repeated statements that he loved his daughter, I have to agree with the Crown that if he loved his daughter as much as he said he did, we would not have to have a trial and L.C.M. would not have had to come to court. I acknowledge that R.K. became emotional on more than one occasion in court. Only he knows why he was crying but it was not because of any lie by his daughter.

[118] I also find that contrary to the defense’s submissions, R.K. had regular opportunities to be alone in the house with his daughter. His repeated denials on this point, when the opposite was true, made no sense. In fact, his whole argument that he never had any opportunity to be alone with his daughter was simply extreme and troubling. In the vast majority of cases, at one point or another parents will find themselves alone with their children and they will be tasked with the obligation to care for them. That does not mean that if they are alone with their children, they will harm them.

[119] As far as a lack of any opportunity to engage in sexual misconduct, there might have been something to R.K.’s defense if he lived in another country and if he did not have any contact with R.K. But on the evidence before me, I find that R.K. was at home almost daily, if not daily. Moreover, there were times when both his wife and his mother in-law were away from the house, leaving him to care for his daughter. Regrettably for L.C.M., R.K. he had the opportunity to engage in sexual misconduct, and he took it up repeatedly, and for a number of years.

CONCLUSION

[120] For all of these reasons, I find R.K. guilty of touching L.C.M. for a sexual purpose, contrary to section 151 of the Criminal Code of Canada. I find him not guilty of uttering any threat to kill L.C.M.

Tzimas J.

Released: October 15, 2019

COURT FILE NO.: CR-17-0531

DATE: 20191015

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

Her Majesty the Queen

– and –

R.K.

Defendant

REASONS FOR JUDGMENT

Tzimas J.

Released: October 15, 2019