R. v. G.C., 2020 ONSC 1143

R. v. G.C., 2020 ONSC 1143

COURT FILE NO.: 17-SA5084

DATE: 20200214

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

G.C.

Defendant

Michael Boyce, for the Crown

Jacob Legault, for the Defendant

HEARD: January 20-24, and 31, 2020

THIS DECISION IS SUBJECT TO A PUBLICATION BAN ORDERED PURSUANT TO SECTION 486.4 OF THE cRIMINAL CODE. any information that could identify the COMPLAINANT OR ANY WITNESS shall not be published in any document or broadcast or transmitted in any way.

REASONS FOR JUDGMENT

C.T. Hackland J.

1The accused is charged with committing a sexual assault on his daughter, the complainant, between October 21, 1991 and September 30, 1997, contrary to s. 271(1) of the Criminal Code and having sexual intercourse with her knowing that she was his child by blood relationship, contrary to s. 155(2) of the Criminal Code.

2During the period of the charges, the complainant was between 15 and 20 years of age. The events in issue occurred over a six-year period, the first four years when the family lived in a small town in Northern Ontario and the subsequent two years when the family lived in Ottawa. These events spanned a period between 23 and 28 years ago.

3There were two Crown witnesses in this trial, the complainant and her step-mother. The step-mother was married to the accused throughout this period and was part of the family unit. The accused testified in his own defense, as the sole defense witness.

4The complainant’s family was displaced by civil war in a foreign country and she was brought up by her aunt and grandmother in a refugee camp. Her mother died when she was very young. Her father, who had emigrated to Canada, reunited with his daughter and was able to bring her to live with his family in Canada in October 1991.

5The complainant testified that her life in the refugee camp was very hard and she was tremendously grateful to come to Canada. She arrived in Canada shortly before her 16th birthday. Her first language was a dialect from her homeland, but she could converse adequately in English. She had only a kindergarten level education and could not read nor write in English.

6As noted, the complainant joined her father’s family in a small Northern Ontario village where he lived with his wife (“the stepmother”) and their three young boys. While happy to be here, she testified that she felt isolated and was very dependent on her father for transportation, for helping her with her schoolwork and most other aspects of her life. She found her stepmother to be somewhat cold and recalled that initially her stepmother did not want to be called mother, but preferred to be called by her first name. School was very frustrating for her as she struggled with English and had few friends. She was subjected to some racist taunts from other young people.

7An upsetting and memorable event occurred, involving the accused, shortly after her arrival in her new home. She developed a vaginal yeast infection. The family doctor prescribed a cream which was to be applied internally in the vagina with an applicator which the complainant described as “a syringe.” She testified that at the time of the first intended application at home she was unable to read the instructions which came with the medication. Her stepmother was not home at the time so she approached her father for help. She no longer remembers exactly what she said to him. She recalls that he told her to remove her pants and lay on her back on the bed. He then spread the cream on his finger and inserted his finger in and out of her vagina and then spread some additional cream on the outside of her vagina. She said she found this strange and uncomfortable and conveyed this to her stepmother when she arrived home later in the day. She said nothing to her father as he inserted his fingers in her vagina as she did not want to be seen as disobedient. She recalls her stepmother was displeased and confronted the accused when he got home from work, telling him that his actions were not appropriate given that the complainant was a teenager. He responded that she was making too much of the matter and refused to discuss it further. The complainant testified that after this incident she applied the cream herself.

8The accused admitted applying the cream with his finger in and around the complainant’s vagina. He denied there was any form of applicator or syringe and suggested he had to use his finger. He said he used a glove and his daughter was covered by a sheet. He admitted the subsequent confrontation with his wife over this. Even in his trial testimony the accused would not concede that there was anything wrong or questionable about his actions. The stepmother also remembered the discussions surrounding these events, including the altercation with her husband, but her recollection was that she had been applying the cream to the complainant, using the applicator, and that she forgot to do so one morning and left the house, only to find out from the complainant once she returned home in the afternoon, that her husband had applied the cream. When she voiced her objections to the accused, he “shut me down and said I was making too much of it.” She said he often “spoke harshly and talked down to me.”

9The complainant testified that this incident was followed by a series of sexual assaults, spanning the six years she lived with the accused and his family, as described below. The day after the altercation between the accused and her stepmother, which the complainant overheard, the accused told her privately not to tell the stepmother things about their interactions, that she is his daughter and the stepmother does not like her and this could cause trouble for him in his marriage. The complainant testified that she accepted her father’s direction on this.

10The complainant testified that she was keen to learn to drive and got her learner’s license shortly after her 16th birthday and enrolled in a defensive driving course and her father drove her to and from the course. She related an occasion when her father was driving that he brought up and started to discuss an incident in which she had been raped in the refugee camp. He asked questions about the size of the assailant’s penis, exposed himself and had her touch his penis and put it in her mouth. The complainant related this incident in considerable detail and in an understandably emotional manner. She testified that her father said “It’s ok, I love you… I’ll never hurt you.” She explained that she loved him and wanted to please him. She said she felt she needed to be obedient to show him that she loved him. This testimony was provided in an emotional but clear and thoughtful manner and in my view was highly credible. The complainant testified that the accused explained to her that girls and fathers often had a special relationship – he told her that this was quite common although not discussed. He remarked that “a girl’s vagina is the same as the mother’s vagina,” so far as fathers are concerned.

11The complainant testified that there were frequent sexual assaults committed by the accused when they were in the car together. He was providing her with driving lessons. He would pull over in isolated locations. She described in detail instances where he had intercourse with her as she lay on her back on the middle car seat and on other occasions, he would penetrate her as she followed his instructions to be on her hands and knees in the back of the car. She explained that she never objected “… I was being a good girl…I believed in this special relationship…he said it was normal… fathers are gentler…people don’t talk of it but it’s a special bond we have.” Some of these assaults were during the winter and on one occasion when she was assaulted, she recalls the car became stuck in the snow and they needed help to get out.

12In his testimony the accused denied this ever occurred, “no sir, never…”. He did acknowledge providing driving lessons to his daughter in the family station wagon described in the complainant’s testimony. However, he said this was in the summer when she was 15 and he would not have taught her to drive in the winter. He was unable to explain how his daughter could have obtained a learner’s license before her 16th birthday or why he would not teach her in the winter months.

13The complainant also said that in the laundry room of their two-storey home in Northern Ontario the accused would frequently ask for oral sex and once stimulated would have intercourse with her from behind. In cross-examination the complainant acknowledged that prior to the timeframe of the trial, she had never told police about the laundry room assaults in the Northern Ontario home, but only about the sexual assaults in the family’s station wagon and the yeast infection incident.

14The complainant met a friend named Andrew who she wished to spend time with. She said the accused was very upset about this and asked, “why do you need a boy, aren’t I giving you what you need?”. They fought repeatedly about whether she could see Andrew. On one occasion he told her that if she did not stop trying to have a boyfriend, he would send her back to the refugee camp. She said Andrew was the first person to ever notice her. She was very lonely. She said she continued to accept the special father-daughter relationship idea that her father often talked about.

15From September to June 1995 the accused left the family home to spend an academic term at an Ottawa university while the family remained in Northern Ontario. The family moved to Ottawa in the summer of 1995. The complainant testified that she came to Ottawa in advance of the rest of the family and stayed with her father in the house he had rented for the family. The whole family moved to Ottawa shortly afterward. In this interval prior to the family arriving, she slept with the accused in his bed in the master bedroom and had intercourse with him several times. She recounted things he said to her “move your hips with me, men enjoy it more” … “we could have a beautiful baby together.” He gave her a necklace at this time. In his testimony, the accused denied that any sexual activity occurred and denied that the complainant came to Ottawa in advance of the family and stayed with him in the home. He acknowledged that he had possession of the house and moved some furniture in prior to the family arriving but denied that the complainant was there.

16While the accused denied that the complainant came to Ottawa in advance of the rest of the family, the stepmother specifically recalled receiving a call from her husband to put the complainant on a bus to Ottawa, shortly before the family moved. This was ostensibly so the accused could make arrangements for her school attendance in September. For her part, the complainant recalls the reason for her early arrival in Ottawa was her need to attend a job interview the accused had arranged for her at a fast food restaurant. She began to work at this job immediately after the family moved to Ottawa.

17The family lived in Ottawa for two years, during which the complainant completed her last two years of high school. This would have been September 1995 to June 1996, and September 1996 to June 1997, when she was 19 and 20 years of age respectively. They moved to a second house during the summer in between the complainant’s last two years of high school. The complainant testified that over the course of the first year in Ottawa she came to understand that having a sexual relationship with her father was inappropriate and she began to try and avoid it. Nonetheless the sexual intercourse continued once or twice a week while in their first house – often in the basement when he was helping her with her homework or in her room. These were often fairly quick encounters where he would have intercourse with her from behind as she pulled her pants down and stood against the wall. She said that she did not voice her objection to having sex with her father in this time period as she was still trying to be a “good girl” and she still believed him to be her best friend.

18The complainant testified that during the winter of her first year in Ottawa she became pregnant by the accused. She told him promptly and expressed that she did not want to have the child. He agreed and a termination of the pregnancy was arranged. The stepmother was not told. The accused drove and picked up the complainant at the day surgery procedure. The complainant testified that she was about 17 at the time and the procedure was at a particular hospital she identified.

19The hospital records for the abortion were entered into evidence. The records establish that a therapeutic abortion procedure was carried out on the complainant in February of 1996. The complainant was in fact 19 years of age at the time and she was mistaken in her recollection as to which hospital carried out the procedure. The records show that the complainant told hospital staff that a boyfriend was the father, but she did not identify him and stated she had lost contact with him. She advised discharge staff that she was going home by car and her father was picking her up. The discharge record confirms that she was picked up by car. I ruled that the hospital record was not evidence of the truth of the allegation that her father picked her up at the hospital, but only that she had advised hospital staff that he was going to do so. She departed the hospital in a car according to an entry in the hospital record, which was based on an observation made by hospital staff. I ruled this observation was admissible for the truth of it.

20I find that the hospital records provide corroboration for the complainant’s narrative. Specifically the hospital records corroborate her narrative that she became pregnant during her first year of high school in Ottawa, that she chose not to identify the father to hospital staff, that she had an abortion, that no one accompanied her to the procedure, that she told staff her father was picking her up and that someone did pick her up in a car following the procedure. I believe her inaccurate recall of her age and the name of the hospital are simply a result of the passage of time.

21Counsel filed an admission that the hospital only retains biological material from an adult abortion for 20 years and therefore no DNA analysis was possible in this case.

22I observe that the parties agreed that based on the information in the hospital records the estimated gestational age of the fetus at the time of the abortion was 7-8 weeks. This would indicate that the complainant became pregnant around the first week of January 1996. It is the evidence of the complainant, which I accept, that she was not involved in any sexual activity with any male person in that time period other than the accused. There was mention in the evidence of the complainant’s friendship with a young man named Jessie, a personal trainer at the gym she belonged to. However, I accept her testimony that the two of them did not start a relationship until the high school prom, which was near the end of the school year in June 1996.

23The complainant testified that her father picked her up following the abortion procedure. She recalled that he took her to a Kentucky Fried Chicken outlet and bought her dinner. He then brought her home and she went to bed as she was exhausted.

24The accused’s evidence was that he did not hear about the complainant’s pregnancy or abortion until after his arrest in 2017 and he was not the father, nor did he ever have intercourse with his daughter then or at any other time.

25According to the complainant, sexual activity resumed following the abortion and continued in a second home in Ottawa where the family moved during the summer preceding the complainant’s last year in high school. She graduated grade 12 in the summer of 1997 and then took a three-year college program in another city, graduating with a degree in nursing (R.P.N.). There was no further sexual activity involving her father after she went away to college. On her visits home he would occasionally ask for sex and she would refuse.

26During her final year in high school, the complainant testified that she had sexual intercourse with the accused in the basement in conjunction with him helping her with her homework. She said she did not want to have sex anymore by this time, but she needed a lot of help with her English, particularly her essay writing. He would use his help as leverage for his sexual demands and would get angry and refuse to help if she refused sex. They fought over this. She said she would give in to him when she needed help with her assignments. They would stand underneath the staircase where no-one could have seen them from upstairs if the basement door were opened. She would pull her pants down and he would have intercourse with her from the rear.

27The accused denied the sex ever occurred, but he did admit, reluctantly, that he was often alone in the basement helping his daughter with her school work and it would have been possible to have had sex there unobserved.

28During the complainant’s final year in high school she testified that there were many arguments at home about the accused’s strong objections to her going out with boys. He would say to her in private that he could do everything a boyfriend could do for her and she did not need the distraction. The stepmother also testified that there were many such arguments and the focus of the arguments was the accused’s objections to the complainant interacting with boys. During one heated argument when a group of young people came over at around 9:00 pm and asked the complainant to join them, the accused refused to let her go out and when she protested loudly, he hit her with his belt several times. She was 20 years of age at this point.

29The accused testified that while this incident did occur, it was not about the complainant seeing boys, it was about obeying his house rules that she was not to go out unless her homework was done, and only when he knew exactly where she was going and with whom. He did not explain how these rules applied to this particular incident. He admitted in cross-examination that he assaulted his daughter with his belt. He did not acknowledge in his testimony that he recognized anything wrong with having done so.

30According to the stepmother, things deteriorated in the home in 1997 to the point where, in March of that year, she and her three young sons secretly left the home and moved to a shelter. This left the complainant and the accused alone in the house. The complainant described this as a particularly dark period. She attempted through her sports activities and part time jobs to be around her father as little as possible. She recalls that he would show up uninvited at her events, once forcing her home from the gym, throwing a plate at her during an argument, and would sometimes hit her. She recalls on one occasion when she believed he had been drinking because he was slurring his words, he got a pistol from a closet and put it to his head saying something to the effect that his wife and children left him and now she was refusing to have sex with him. The complainant, fearing the accused would harm himself, said she relented and had sex with him that night. The accused testified that none of this happened and that he never owned a gun.

31During her time at college, the complainant periodically came home to visit her father and stepmother and brothers (the accused and stepmother remained separated). As noted, she refused sex with the father, who asked for it several times. After graduation from college, in the 2004-2005 time period, she returned to Ottawa and moved into a townhome with a girlfriend. During this period, she told her brothers and subsequently her stepmother about the sexual abuse she had suffered from her father. Some family members expressed that she was being very ungrateful to her father in the circumstances, so she decided to say nothing. She appears to have interacted with her father to a limited degree during this period until her boyfriend told her father that he was not welcome to visit.

32In 2005 the complainant moved to another province. In January of 2017, following family discussions and stressful events in her workplace, which she related to the abuse from the accused in her youth, she came forward and complained to the police, leading to the current charges.

33The court also heard that soon after graduating from nursing college, in the 1991 time period, the accused had moved to a community in the northeastern United States where he was employed in a hospital. He identified an employment opportunity for the complainant, drove her back and forth from Ottawa for the interview, and allowed her to stay at his residence for a few days while she attended interviews. He testified that he was subsequently disappointed that his daughter did not ultimately accept the offer of employment and was embarrassed since he had encouraged people he knew at the hospital to make the offer. He said he did not communicate with the complainant for a year or so after these events. The complainant testified that she was interested in the job opportunity her father had arranged, and had willingly stayed with him for a few days during the interview, but ultimately declined the job offer because it would have involved a good deal of immigration paperwork, etc. The defence suggested that the relevance of these interactions is that they were not consistent with the complainant’s evidence that she was seeking to avoid her father.

34In my view, a preferable interpretation of the 2001 job opportunity visit is that the sexual abuse was over with by that point, and the complainant wished to retain some kind of ongoing relationship with her father, and her brothers. Sexual abuse in a family, although always horrendous, can affect victims in different ways in the longer term and, as many appellate decisions have pointed out, it is unhelpful to make assumptions about how victims will choose to interact with their abuser. The complainant’s evidence was that up to 2004-2005 she felt that she was prepared to see her father periodically, but after that could no longer bring herself to do so. I accept this evidence and do not consider that it impugns the complainant’s credibility.

35Historical sexual abuse cases present significant challenges to the trier of fact. Memories of these events are often clouded with the passage of time – in this case some 25 years and more. The events invariably occur in circumstances of privacy. Corroborative or supportive evidence (such as the hospital records in this case), are often unavailable. Nonetheless it remains the Crown’s obligation to prove the charges against the accused beyond a reasonable doubt. In this case the Crown must prove that the accused sexually assaulted his daughter on one or more occasions during the six-year period when she remained in the family homes in Northern Ontario and in Ottawa. As noted previously, the complainant was between 15-20 years of age during this period.

36The evidence does satisfy me beyond a reasonable doubt that the accused subjected his daughter to repeated sexual assaults during this period. I arrive at this conclusion for the reasons explained below.

37The complainant was a very credible witness. In her testimony she painted a convincing picture of a young woman, rescued from a life of hardship and abuse in a refugee camp, brought to join her father in a small Northern Ontario town at the age of 15, unable to read or write and speaking limited English, entirely dependent on him for her social and educational needs and feeling a strong sense of loyalty and gratitude. Her father stepped forward and took primary responsibility for her parenting and guidance. The stepmother had at least initially some problems interacting with her new stepchild to the point where, according to the accused, he sought counselling for the family. The evidence of all three witnesses in this trial supports this scenario. The complainant was isolated and highly vulnerable to exploitation.

38The incident surrounding the complainant’s vaginal yeast infection is significant. Both the complainant and the accused testified that he used his fingers to apply a cream prescribed by a doctor, applying the medication inside the complainant’s vagina. She was 15 or 16 years of age at the time. The complainant asked her father how to apply the medication because she could not read the instructions on the packaging. Rather than read the instructions to his daughter or allow his wife to assist when she returned from work, he instructed his daughter to remove her underwear and lay on her back on the bed. He spread the cream on his finger, inserted his finger in her vagina and spread the cream internally and some excess cream on the exterior of the vagina. He testified that he used a glove. The complainant was not asked if he used a glove. The complainant recalls his fingers going “in and out, in and out” and feeling very uncomfortable. It is a vivid memory she has retained to the present time. Contrary to the testimony of the complainant and stepmother, the accused insisted in his testimony that there was no applicator with the medication and therefore he used his fingers. The complainant recalls however that her father used an applicator and then inserted his fingers.

39The principles applicable to a sexual assault charge in circumstances similar to this were recently reviewed by the Court of Appeal in R. v. Trachy [2019] ONCA 622. In that case, a violin teacher was acquitted of the sexual assault of various young female students in circumstances where he had exposed their breasts ostensibly to measure them for a shoulder support. The trial judge acquitted the accused due to a reasonable doubt about whether the accused’s actions were for a sexual purpose. The appeal was allowed on the basis that the trial judge erred in law by holding that the respondent’s lack of sexual purpose was determinative of the sexual assault charge.

40The court held in Trachy that the issue for the court is whether the touching occurred in circumstances of a sexual nature, not whether the accused had a sexual purpose in his actions. The court at para 76 reiterated the applicable legal test from R. v. Lutoslawksi, 2010 SCC 49:

The test to be applied in determining whether the impugned conduct has the requisite sexual nature is an objective one: viewed in the light of all the circumstances, is the sexual or carnal context of the sexual assault visible to a reasonable observer?

41The Court of Appeal further stated in Trachy at paras 84-85 that:

84As Lutoslawski makes clear, the sexual nature of the touching is determined by an objective standard. The question is whether a reasonable observer would perceive a sexual or carnal context to the touching in light of all the circumstances.

85A reasonable observer viewing the respondent’s admitted conduct in touching and manipulating the breasts and nipples of young girls and young women both over and under their clothes would perceive a sexual context to the conduct. These were largely girls who were in the process of developing breasts, and who were alone with the respondent in a private room with the door closed. Their sexual integrity was violated, regardless of the respondent’s purpose.

42I am satisfied beyond a reasonable doubt that the accused’s conduct in digitally penetrating his 15 or 16-year-old daughter’s vagina, ostensibly to spread a medicinal cream, and the subsequent rubbing of the excess cream on the exterior of her vaginal area constituted a serious violation of her sexual integrity. She lay naked on the bed and even in the accused’s version had not provided any consent to his actions. The complainant was entirely capable of applying the cream herself with proper instructions which the accused could have read to her from the medication packaging. The complainant was upset by the accused’s actions, as was the stepmother when she subsequently found out, and as any objective observer would be. There was a sexual context to this incident. I find that the accused sexually assaulted his daughter in these circumstances.

43The evidence of all three witnesses supports a finding that the accused and his daughter spent considerable time alone together as he helped with her studies (as she was entirely dependent on the accused), and in the driving lessons he gave her. The evidence also supports a finding that the enforcement of the house rules about how and when the complainant could interact with boys and matters of discipline were the father’s preserve.

44The complainant’s testimony about the sexual assaults was fulsome subject only to the type of uncertainties one would expect concerning events 25 or more years ago. The accused’s evidence, in contrast, consisted of blunt denials or the proposition that the opportunity to engage in sexual encounters with his daughter was not possible or at least not possible as described by the complainant. He would argue with prosecution counsel’s suggestions that the physical layout of the family’s three homes and the seat setup in the family station wagon would permit the assaults to have occurred, as described by the complainant. When pressed he would volunteer minute details to bolster his position that the seats could not have folded down as described or the lines of sight in the houses would not permit unobserved sexual activity. However, invariably, he was forced to concede in answer to Crown counsel’s questions, that the physical circumstances surrounding the assaults, as described by the complainant, made the assaults as described by the complainant, possible.

45The stepmother’s evidence was highly relevant. She testified convincingly that she was told bluntly by the accused to stay out of the parenting and education of the complainant. She supported the complainant’s evidence that the accused spent significant amounts of time alone with the complainant. She supported the complainant’s evidence that the accused was very opposed to the complainant going out with boys and not simply in a homework first, house rules context. She witnessed the accused use a belt on his 19-year-old daughter in one confrontation about this issue. Significantly she did not display an overly hostile animus towards the accused in her testimony although she viewed him as a condescending bully in his interactions with her.

46I was unable to find anything in the testimony of the three witnesses in this trial, or elsewhere in the evidentiary record, which would suggest any reason or motivation on the complainant’s part to fabricate the narrative she presented to the court. She recognized that her father rescued her from a terrible life in a refugee camp and that he supported her efforts to become literate and to succeed in her education. She was not a child but was 15-20 years of age at the relevant times. She acknowledged her father’s many strengths including how hard he worked for the family – his shift work, his efforts to advance his own education. She put up with the sexual assaults long after she came to realize her father’s special father-daughter relationship ideas were wrong and socially unacceptable. She attempted for several years to normalize their relationship after she left home, and the assaults had ended. I am satisfied as to the honesty of the complainant. I fully appreciate that the accused has no burden or obligation of any sort to explain why the complainant would have a motive to be untruthful. I also am mindful that the reliability of the complainant’s evidence is a matter that is separate from her honesty and truthfulness.

47Significantly in my view, the evidence does not point to any sexual relationship at the time the complainant became pregnant, other than with the accused. The hospital records reflect that no specific person was identified by the complainant as the father, and no one accompanied the complainant to the abortion procedure at the hospital, but someone picked her up in a car when she was discharged – all consistent with the complainant’s testimony.

48As the Court of Appeal pointed out in R. v. H.P.S. 2012 ONCA 117, [2012] O.J. No. 748, at para.41, trial judges must consider the need to self-instruct on the frailties of evidence concerning events from the distant past. This pertains in particular to the reliability of such evidence and applies to cases such as this where the complainant is testifying in an honest manner and to the best of her recollection.

49I do not accept the complainant’s testimony that subsequent to the step-mother leaving the accused, and upon being denied sex by the complainant, he got a gun from his cupboard and pointed it at his head, threatening suicide. Other than this, there was no suggestion in the evidence that the accused had a gun. The accused testified he never had a gun. The step mother was never asked if he had a gun and would almost certainly have volunteered such an observation if it were true. There is nothing in the circumstances of this family that would make it likely that the accused had a gun. I do not accept the complaint’s evidence about this incident. However, I do accept her evidence that the step-mother’s departure resulted in the accused being in an agitated state of mind and that he was pressuring her, including sexually, in circumstances where she was then alone in the house with him.

50I also find unreliable the complainant’s recollections about being sexually abused by her father in the laundry room of the family’s Northern Ontario home. The complainant made no mention of this in her interviews with police or in her preliminary inquiry evidence. The complainant seemed to indicate her recollections in this regard were in the nature of a flashback. I have a reasonable doubt as to the reliability of this evidence and I therefore exclude it from consideration.

51The Crown’s case, led substantially through the testimony of the complainant, is that she was sexually assaulted on an ongoing basis during the nearly 6 years she lived with the accused. The accused’s denials do not raise a reasonable doubt in my mind. Accordingly, the question of whether the Crown has proven the charges beyond a reasonable doubt must be assessed on the evidence as a whole and it must of course be kept in mind that this trial is not simply a credibility contest between the complainant and the accused, with the accused’s guilt or innocence depending on whose evidence is preferred.

52Counsel have submitted, correctly in my view, that the analytical framework in W.(D.) must be applied to this case. The accused has testified and denied having any sexual contact with his daughter, the complainant.

53I was not impressed with the accused’s demeanor in his testimony as he spent most of his time arguing with Crown counsel as to whether there were opportunities for the assaults to have occurred, when there clearly were such opportunities. He acknowledged no shortcomings in his parental conduct regarding his daughter, whether with regard to his application of medication vaginally to his then 15 or 16-year-old daughter, to his corporal punishment with a belt in an argument about her freedom to socialize with boys, to his conflicting evidence as to his daughter’s commitment to her studies. I recognize that demeanor, although a relevant consideration in assessing credibility, must not be overemphasized nor should it be the principal basis for evaluation of credibility. I recognize that in this case the accused seemed to have significant challenges in expressing himself clearly although this seemed to be related to his apparent preoccupation with trying to assess the effect of his answers rather than the truth of his testimony.

54The complaint’s credibility both as to honesty and reliability was evident not only on the basis of the compelling narrative she presented to the court but also in consideration of the available corroborative evidence including:

• The sexual touching engaged in by the accused in the medication incident.

• The accused’s assumption of virtually all aspects of the supervision and care of his daughter (ages 15-20), a scenario supported by all 3 witnesses in this trial.

• The step-mother’s evidence that she was told bluntly by the accused to step back from parenting his daughter.

• The complaint’s pregnancy at age 19 that the accused claims to have known nothing about. Given the closeness and dependent nature of the relationship between father and daughter, it is not credible that he would not have known about her pregnancy and subsequent abortion, all carried out in secrecy and on her own. The accused’s testimony on this key event is unbelievable.

• The substantial evidence of the accused’s opposition to the complaint’s interacting with boys (at age 19-20) and using corporal punishment to enforce his views.

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52I also refer to the observation of Doherty J.A. in R. v. J.J.R.D. 2006 CanLII 40088 (ON CA) at para. 53 which is applicable to the circumstances of the present case:

45An outright rejection of an accused’s evidence based on a considered and reasoned acceptance beyond a reasonable doubt of the truth of conflicting credible evidence is as much an explanation for the rejection of an accused’s evidence as is a rejection based on a problem identified with the way the accused testified or the substance of the accused’ evidence.

53On the basis of the evidence as a whole, and notwithstanding the accused’s denials which I do not accept, I am satisfied beyond a reasonable doubt that the accused engaged in sexually assaulting the complainant during the period of the indictment. The Accused is convicted on both counts of the indictment.

Charles T. Hackland