COURT FILE NO.: CR-14943/18

DATE: 20200917

ONTARIO

SUPERIOR COURT OF JUSTICE

Her Majesty the Queen

– and –

C.B.

G. Black, for the Crown

M. Gordner and M. Hogan, for the Applicant C.B.

HEARD: December 10 – 20, 2019

Woodley, j.

WARNING

INFORMATION CONTAINED HEREIN CANNOT BE PUBLISHED, BROADCAST OR TRANSMITTED PURSUANT TO AN ORDER UNDER SECTION 486.4(4) OF THE CRIMINAL CODE OF CANADA. THESE REASONS FOR JUDGMENT COMPLY WITH THIS RESTRICTION AND CONTAIN NO INFORMATION IDENTIFYING THE COMPLAINANT IN THIS PROCEEDING.

reasons for JUDGMENT

OVERVIEW

[1] CB is charged with three sex offences that were allegedly committed against his eldest daughter, KB, when she was between 13 and 16 years of age. The charges are as follows:

1. Count 1: that CB, between the first day of June in the year 2015 and the 17th day of September in the year 2017, in the Province of Ontario, did commit a sexual assault on KB, contrary to section 271 of the Criminal Code of Canada;

2. Count 2: that CB, between the first day of June in the year 2015 and the 17th day of September in the year 2017, in the Province of Ontario, did with a part of his body, for a sexual purpose, directly or indirectly touch the body of a person under the age of sixteen years, namely KB, contrary to section 151 of the Criminal Code of Canada; and

3. Count 3: that CB, between the first day of June in the year 2015 and the 17th day of September in the year 2017, in the Province of Ontario, did for a sexual purpose, invite or counsel or incite, a person under the age of sixteen years, namely KB, to directly or indirectly touch with a part of her body the body of CB, contrary to section 152 of the Criminal Code of Canada.

[2] All three charges involve allegations of sex abuse that allegedly occurred in the family home located in Ontario.

[3] KB initially disclosed the allegations to her pastor/counsellor (KV) on September 24, 2017. The pastor/counsellor immediately reported the allegations to the police who in turn interviewed KB and arrested CB that same day.

[4] The witnesses at trial were the complainant (KB), the accused (CB), the complainant’s pastor/counsellor (KV), and the mother/spouse (EB) of the complainant/accused.

[5] The real issue in this case is whether the Crown has proven beyond a reasonable doubt that the alleged acts that form the basis of the charges occurred. A finding in this regard depends in large part on the credibility and reliability of the complainant’s and the accused’s testimony. The principles in R. v. W. (D.), 1991 93 (SCC), [1991] 1 S.C.R. 742 apply.

SUMMARY OF FACTS

[6] KB is the eldest biological child of CB and EB. KB was born in September 2001. KB has two younger siblings, a sister (CaB) born in 2004, and a brother (RB) born in 2006.

[7] KB was 13 years old when the alleged sexual abuse began; 16 years old at the date of disclosure; and 18 years old at the date of the trial.

[8] KB alleges that all assaults occurred in the evening when CB and KB were alone together either in the home theater room or her bedroom, which are both located in the basement of the family home.

[9] KB alleges that the first incident occurred in the summer of 2015 while she was watching “Sherlock Holmes” with CB in the family theater room. CB stroked her arm and then her breasts and told KB to “trust him”.

[10] KB alleges similar incidents of abuse continued over the next several months, following which the abuse escalated to include digital penetration, oral sex, manual stimulation of CB’s penis, and repeated attempts to engage KB in sexual intercourse.

[11] KB alleges that after she refused sexual intercourse with CB, he became controlling and hostile towards her. CB imposed strict rules and refused to allow KB to watch movies in the home theater room unless she agreed to have sex with him (“the deal”). CB acted in a jealous and controlling manner towards KB, refused to communicate or interact with her, and disowned her as his daughter.

[12] KB testified that she blamed herself for much of the situation as she knew it was wrong and “let him do it anyway”. KB did not disclose the abuse to her mother (EB) as she feared it would hurt her.

[13] KB alleges that the physical aspects of the sexual abuse ended suddenly and without explanation in the fall of 2016. However, despite this fact, CB refused to rescind “the deal” and on KB’s 16th birthday (September 2017) CB would not allow KB to watch a movie in the home theater room unless she agreed to have sexual intercourse with him.

[14] KB alleges that it was on her 16th birthday that she determined she would disclose the abuse, as she wasn’t willing to live her whole life with this “secret on her”.

[15] On September 24, 2017, KB provided limited disclosure of the abuse to her pastor/counsellor KV who reported the abuse to the police. On this same date, KB provided more fulsome disclosure to the police by way of a video recorded statement resulting in CB’s arrest.

[16] At the preliminary hearing held on November 15, 2018, during her second day of cross-examination, KB disclosed two further incidents and details of abuse. At trial on December 16, 2019, KB recalled a further detail relating to one incident.

[17] CB categorically denies that he ever sexually abused KB.

[18] CB asserts that KB fabricated the allegations as she considered CB to be a strict, controlling, and unreasonable parent, and sought to oust CB from the household.

[19] CB asserts that between 2015 and September 2016, he suffered from mental health issues and became totally unable to cope with KB. CB testified that by September 2016 he had abandoned his parenting responsibilities with respect to KB (but not with respect to the other two children), isolated himself from KB, and refused to speak or interact with KB, causing KB to “hate” CB.

[20] CB asserts that his physical and emotional abandonment of KB lasted at least until February 2017. CB asserts that following this period of time where his behavior towards KB was isolating, he took steps to repair their relationship, however, KB rebuffed him and said that she could never “forgive” him.

[21] CB asserts that in August 2017, he and his spouse EB were working together and had jointly adopted new “rules” for KB (and the other two children) effective September 2017. CB alleges that KB was very upset with these new rules, had a heated argument with EB, at which point KB realized that she would not be able to “break down” CB’s rules and strict parenting regime. As such, CB alleges that KB sought out her pastor/counsellor whom she knew to be a mandatory reporter to provide fabricated disclosure of sexual abuse. CB further asserts that the more fulsome disclosure to the police on September 24, 2017, was false, as was the reporting of two new incidents during the preliminary hearing and the new fact disclosed at trial.

[22] CB claims that although he treated KB cruelly, for which he is very much ashamed and remorseful, he absolutely did not sexually assault KB at any time.

THE ISSUE

[23] Has the Crown proven beyond a reasonable doubt that CB is guilty of any of the offences for which he stands charged?

Positions of the Crown and the Defence

[24] The Crown claims that the internal integrity and consistency of the evidence presented satisfies the burden of proof beyond a reasonable doubt and renders certain that CB is guilty of the offences as charged.

[25] The Defence asserts that the onus lies solely upon the Crown to prove the guilt of CB beyond a reasonable doubt on the entirety of the evidence admitted. The Defence asserts that based on the entirety of the evidence admitted, a reasonable doubt exists as to CB’s guilt. Consequently, the Defence asserts that CB must be acquitted of all charges.

THE EVIDENCE PRESENTED AT TRIAL

[26] The evidence presented at trial included the evidence of KB (complainant), the evidence of CB (father/accused), the evidence of KV (pastor/counsellor), and the evidence of EB (mother/spouse), together with various documentary evidence.

The Evidence of the Complainant KB

Videotaped Statement: September 24, 2017

[27] KB was interviewed by Detective Wilson (“Wilson”) on September 24, 2017, shortly following her 16th birthday. KB was in grade 11 and advised that school was going well.

[28] The interview was video-taped, and played at the commencement of KB’s testimony, as part of KB’s evidence, and was adopted by her pursuant to s. 715.1 of the Code.

[29] Throughout the video-taped statement, KB was polite and well spoken. KB appeared to carefully reflect prior to answering questions and occasionally requested a moment before she answered a question. KB appeared to be comfortable and calm throughout.

First Incident of Abuse

[30] KB testified that CB told her that he started developing feelings for her in 2014, about a year before the abuse started.

[31] KB testified that CB began sexually abusing her the summer of 2015, when she was between grade eight and grade nine. KB remembered the timing as she went on a “fun” trip in grade eight with “no worries” whereas at the beginning of grade 9 she testified that she remembered thinking, “Oh great, I’m going to have to go through this, whatever I’m doing with my father, as well as start grade nine.”

[32] KB testified that the first incident of abuse occurred in the home theater room while KB and CB were watching a “Sherlock Holmes” movie. KB recalls that at the time of the incident, Sherlock had dressed up as a girl and was lying on the ground shooting a train. KB was wearing long-sleeved pajamas with an oval neck and pictures of pugs with matching pants. She was not wearing a bra. CB was sitting beside her with his arm around KB “like normal”. CB’s arm started going up and down, rubbing KB’s arm. KB said she thought, “that’s a little unusual, but okay” and then CB’s arm started moving closer to her chest. KB testified that she said, “Dad, what are you doing?” to which CB replied, “Shh, just trust me”. KB replied “okay”.

[33] CB started feeling her chest and breast under her pajama top. KB testified that “it didn’t feel right” but she didn’t know what to think. KB had “never heard of this happening and didn’t even know it was possible that a father could like a daughter”. KB recalls that CB kept trying to touch her breast and then he stood up in front of her and said, “Take off your pants”. KB said “No, no I’m not going to do that.” CB asked, “Why?”. KB replied, “No, that’s not right, no”. CB said, “Okay, well, we have to stop the movie”. KB said okay and she left the theater room and went to bed.

Further Incidents of Abuse

[34] After the first incident, KB testified that she “didn’t keep track” of how often the touching would happen but thinks it was a couple times a month. KB testified that CB told her, “trust me, so I trusted him. But uh, he tried it for a couple of more months. And it just didn’t feel right for me”.

[35] KB said that the “touching” would happen whenever CB said, “Do you want to go downstairs and watch a movie or something?” KB said she went down because she “trusted him at the time and he would do it”. KB described further incidents that occurred when she was in grade nine by saying: “there’s a lot of breast touching”.

Attempts to Have Sexual Relations with KB and “The Deal”

[36] KB testified that CB would come into her bedroom, which was located downstairs in the basement, at night. KB testified that the incidents would generally begin by CB talking to her, then start stroking her arm, and then “he would try to get more personal”. KB said that she didn’t know what to think. “It didn’t feel right, at all…but I let him because I trusted him then. Right? So, I let him and eventually he just kept wanting sex.”

[37] KB testified that she “didn’t know what was right and wrong, so I let him, which I know is bad. I shouldn’t have done that”.

[38] Sometime around the 2016 March break, CB told KB that if she wanted “these visits” to stop happening then she would have to have sex.

[39] KB testified that she told CB “No”. CB told her he would try to stop but then he would come into KB’s room because “he was upset.” KB recalled that,

“He wanted sex and I did not want that and I kept asking him…Is this right? Is this something that’s supposed to happen?” And I said I don’t think this is right. And I said you should stop. And he said, “This isn’t really the norm…in other cultures, it’s all right to have more than one wife. And I thought is that illegal in Canada?”

[40] CB told KB that if they kept it a secret that it would be all right. KB said, “I did not want to have that secret on me, so I was telling him to stop, no. So, he said, okay, well then, no more movies.”

[41] No movies without sex became known as “the deal”. CB told KB that she could not watch anymore movies in the theater room unless KB wanted to give him payment – which CB counted as sex. KB explained,

“I know this is going to sound silly, but we have a very nice theater room. We have 3D glasses. We have a huge projector, really good quality and we used to watch all the time. It was also a family thing. So, he wouldn’t do anything, while it’s the family. But we would go in there and we’d watch it. And we’d just have fun and relax”.

[42] After KB refused sexual relations, and in or around March of 2016, CB started trying to punish her with rules for daily stuff that kids should be allowed to do, adding that she knows “it’s a privilege”.

Oral Sex

[43] KB recalled a “disturbing memory” of an incident that occurred after she had moved to her downstairs bedroom.

[44] CB woke KB from her sleep around midnight. He turned on her night light and began asking “weird normal questions, like how are you doing?” KB said that CB sounded like a father but then started touching her arm and breasts and it wasn’t pleasant and she took off her shirt “because he told me to”. CB then told KB to take off her pants and so she did. KB asked CB, “What are you doing?” CB responded, “Do you trust me?” KB replied, “Yeah”. CB then performed oral sex upon KB.

[45] KB described the assault in detail and testified that this type of assault happened “probably in grade 10” and only happened once.

Invitation to Sexual Touching

[46] KB stated that she didn’t want CB to touch her even though CB thought she wanted it or that it felt nice. CB told KB that she would “grow to love it” but KB said, “inside I knew I never would”.

[47] KB recalled an incident that she thought occurred at the beginning of grade 10 when CB appeared in his blue robe in her room. CB told KB that he was always touching her, and she had been “selfish” as he got nothing in return. CB said it’s about time that KB did something for him. CB then placed KB’s hand on his penis and made her move her hand up and down.

[48] KB advised that during the assault CB was “just walking me through it”. When CB told KB that “some liquid was going to come out”, KB stopped and said, “No, I don’t want that”. CB told KB to “just do it” but KB refused.

[49] CB left and returned later to say he was sorry he was upset because he was “getting in the moment or something”.

Zootopia Incident

[50] KB testified that following the institution of “the deal”, she watched Zootopia in the theater room with her family, in September of 2016.

[51] After the movie finished, CB came into KB’s room and tried to make KB have sex with him. KB said, “No, and he kept pushing and pushing, not – nothing physical. No violence. But I said no. And he got really upset”.

[52] KB testified that CB then told KB,

“All right, but there’s going to be something every month. We won’t have sex, but you will have to let me feel you…for once a month or something”. To which KB replied, “Okay, I don’t want sex and I don’t really want this - but if you would stop eventually”. CB said “eventually it would stop”. So, KB said she “let it go on”.

[53] KB said she never watched another movie in the home theater after the Zootopia incident. She could, however, continue to watch movies on her computer or at the theater where she worked.

The Grandparents Incident

[54] KB advised that in November or December of 2016, after the “payment without the sex” had been happening for a couple of months, CB came into her room, turned on her light, and started “feeling” her. KB testified, “I’m like huh, it’s this, again. Right? Because I really did not like it, but he told me I had to do it.”

[55] CB then started lowering himself and told KB that they were going to have sex. KB said that by that time she was naked. CB still had his robe on but was ready to take it off. KB told CB “No, I’m not having it. And so, he got off.”

[56] CB then advised KB that he could send her to her grandparents. CB said KB was going to have to decide: either she was going to have sex with him, or she was going to her grandparents. KB confirmed she was not having sex with him.

[57] KB said that was a very scary point in time for her as that was the “angriest” she had seen CB by far, adding that CB “didn’t have any violence. There’s been no hitting”.

[58] KB testified that about an hour later CB returned and told KB that he was sorry. He wasn’t going to send her to her grandparents’, but he couldn’t keep doing this and reminded her of the deal again.

[59] KB said that CB stopped coming to her room at night after this incident.

[60] KB couldn’t recall any logical explanation why CB stopped – but thought possibly that CB wanted KB to have a good childhood and maybe he didn’t want to scar her anymore, or maybe he realized that what he was doing was wrong.

[61] KB said she thought this incident happened in December of 2016 as the “payment, without the sex, had been happening for a couple of months”. She also said that it could have been in September or October of 2016. At trial, during cross-examination, KB said she was unsure of the month that the last incident occurred, it could have been any of September, October, November or December of 2016.

Restrictive Rules and the Shunning of KB

[62] In addition to the allegations of sexual abuse, KB testified that after she refused to have sexual relations with her father, he started to punish her with “daily stuff”.

[63] KB recalled that in March of 2016 CB limited the WIFI access to one hour per day (from 7 am – 8 am). KB said that she believed that the restrictions were related to “how he was upset”.

[64] In September or October 2016, CB took further privileges away from her.

[65] In November 2016, KB recalled that CB was “really upset” when she went to a Halloween party and there was a guy there that liked her. KB was dared to spend “7 minutes in heaven” with him at the party. KB said that apparently the game required the parties to make out for 7 minutes, but she didn’t know that at the time. KB spent the 7 minutes in her friend’s room with the boy and they “didn’t do anything, it was all good, and then my father found out”. KB said that CB got “really upset”. During her statement, KB told the police that her mother said, “to this day he still hasn’t forgiven” KB for that”. KB enquired, “What is that called, jealousy, maybe?”

[66] In December of 2016, KB testified that CB stopped talking to KB.

[67] In January and February of 2017, KB testified that CB tried to ignore her completely.

[68] KB started distancing herself from CB, mentally and emotionally. KB said that she knew this was going to be very hard. She tried to think that she didn’t have a father anymore which was upsetting to her as she “had a father growing up and it’s very sad when you don’t have a father, but technically” she still had one. KB thought of CB “as a monster, he wasn’t my father anymore”.

[69] KB testified that she had grown up with her father by her side. He had helped her with riding her bike. He had video recorded her and made family videos. But KB didn’t really think of this man, who was in her home right then, as her father.

[70] At the end of July 2017, CB blocked almost all social medial and YouTube, as he said that it was bad for the children and they shouldn’t be on it.

[71] In September of 2017, CB limited computer time from 6:30 pm to 8:30 pm for playing time. KB was allowed an extra hour (until 9:30 pm) to complete her homework.

Events Leading to Disclosure: September 2017

[72] KB testified that on her 16th birthday, in September 2017, CB tried to negotiate having sex with her.

[73] KB testified that she was having a great birthday. After school she had played tennis and went to her best friend’s home, until after 5 pm. While at her friend’s home, EB texted KB to see if she wanted her friend over to watch a movie as CB had just bought Wonder Woman in 3D and extra candy. EB said that CB, “Wants it to be a special night”.

[74] KB then telephoned her father and said, “Hey, mom just offered me to watch a movie, is there any way we can do this without the you-know-what?” CB said “No”. KB then asked, “Please, it’s my birthday, this would mean a lot to me, why won’t you?” CB said “No” and hung up. KB said that really ruined her birthday.

[75] KB then told her mother “No, I don’t really want to watch a movie, but thanks for the offer”. She was trying to be polite, but her mother started getting really upset. KB said obviously her mother didn’t know about the deal.

[76] When EB arrived to pick up KB, EB asked, “Why won’t you just watch a movie? It will be such a fun night, he’s trying so hard.” KB testified that EB was trying to help mend the father-daughter relationship. However, KB said that in her mind and in CB’s mind, they both knew that CB was “trying to get that deal to work”.

[77] KB testified as follows:

So, my friend didn’t come over and I went home and while we were going home EB started yelling… and was really upset…and kept saying “Why won’t you watch?” KB told her mother, “I just don’t want to” but in my head I was saying “I can’t, I can’t, I can’t”.

[78] KB said that it was on her 16th birthday that she became determined to disclose the incidents because “I can’t live like this. I can’t live my whole life because I’ve only got one life. I can’t live my whole life holding the secret”.

[79] Two days following KB’s 16th birthday, KB asked to see “Kingsman the Golden Circle” at the movie theater where she worked but her parents refused saying it was inappropriate.

[80] Two days prior to disclosure KB testified that she had told her friend GS that her father “like liked her” or “had a crush on her” but did not provide any details. KB had previously told her best friend SD this same information several years prior.

[81] KB did not disclose any information to her mother. KB said her mother had “no idea” and thought that KB and her father had “just strayed apart”. KB said that sometimes she would ask her mother “do you think you’re being naïve” because her father would make all the decisions and had the final say in everything. KB said that she was really scared whenever she said “no” to him.

[82] On Sunday September 24, 2017, KB went to church, met with her pastor and counsellor KV, went to work, and then was picked up by the police at her work to attend to the police station to provide her video statement.

Testimony at Trial: December 16 – 19, 2019

[83] At the time of trial, KB was 18 years old and attending her first year at university. KB advised that school was going well.

[84] KB began testifying on December 16, 2019 and finished on December 19, 2019, including three days of cross-examination.

[85] During her examination in chief, KB carefully watched her video-taped statement, confirmed that her video-taped statement was true, and adopted the statement following viewing. Pursuant to s. 715.1 of the Code, the statement became part of KB’s testimony at trial.

[86] KB testified that throughout high school CB made a lot of the family decisions. EB was a much more passive parent and KB believed that CB manipulated EB.

[87] KB testified that in addition to the written rules for the home, her father had a test for any shirts that she was to wear. The test was that she had to lean over and if CB could see down her shirt, KB wasn’t allowed to wear the top. CB is the person who conducted the test and it was conducted when she got new clothing. CB would either prevent KB from wearing the new shirt or he would allow her to wear it.

[88] KB testified that she did not tell her mother about the sexual abuse because she was worried it would hurt her mother. KB said she wasn’t sure whether it would lead to a divorce– she didn’t think she was thinking that, but she knew that if she told her mother it would make her sad. KB said she didn’t really think about what would happen after.

[89] KB testified that initially she kept her downstairs bedroom door open but once her father started coming into her room and started sexually abusing her, she started closing the door so that she could hear him come in first and wake up.

[90] KB confirmed that the sexual abuse began in the summer of 2015 and ended in the fall of 2016, maybe up to December 2016, excluding “the deal” which was still in place at the time of the disclosure.

Further Incidents and Details Not Disclosed on September 24, 2017

[91] KB was asked if she could recall any further incidents that had not been disclosed to the police on September 24, 2017. KB recalled the following additional incident that had previously been disclosed by her during her cross-examination at her preliminary inquiry on November 15, 2018:

1. Digital Penetration: KB said that she is not sure when it occurred or how she got into this position, but she recalls a time in her room when CB was talking to her about the hymen. KB then described that CB inserted his fingers into her vagina to check if her hymen was intact. KB said that CB asked, “Does that hurt?” When KB answered that it did not CB told her, “Then your hymen is broken”.

[92] During cross-examination, KB was challenged about the truthfulness of the “hymen” incident first disclosed on November 15, 2018, and the additional details disclosed during her examination in chief at trial (the use of the index and middle fingers). KB testified that she doesn’t believe she told anyone about this incident prior to November 15, 2018 and didn’t remember it on September 24, 2017 as she was trying very hard to not remember these incidents because they were very painful to remember and talk about. However, she had been trying very hard to remember the details as accurately and as truthfully as she could. And this is one of the incidences that she does remember.

[93] KB denied that the incident and/or the additional details were fabricated and confirmed the incident was truthful.

[94] KB was challenged about a further additional incident and certain details first disclosed on November 15, 2018 that were not raised during her examination in chief. The further additional incident and details were as follows:

1. On November 15, 2018, in response to a question and after a 20 to 25 second pause, KB advised Defence counsel that she had a recollection of reading a dog book in her room late at night when CB entered. KB said it was after the Zootopia incident, when there was to be a sexual encounter every month. KB was reading the dog book and CB took the book and set it on her bed. She remembers feeling upset about that because she knew what was to come. KB said that CB started feeling her and touching her breasts and stroking her legs to try to stimulate her. KB said she had not disclosed this incident prior and didn’t remember it on September 24, 2017. When Defence asked if there were other incidents like this that weren’t disclosed to the police, KB responded, “As I said in my statement and as well I’ll say it now again, there was a visit every month”. KB said that the dog book was the first visit after she refused to have sex and every month there was a new incident until the grandparent’s incident, when CB stopped coming to her room. The grandparent’s incident occurred between September and December 2016. KB said that she doesn’t remember anything about the second or third time there was an encounter, except that it would be very similar to the first and second instances of abuse. When it was put to her that she had no recollection of what happened on the second and third incident KB said, “No, I know it was similar to the first one. Similar circumstances except there was no book”.

2. KB provided a description of the night gown that she was wearing during the Zootopia incident and that CB directed her to remove her underwear. KB said that the information did not just come to her then and she is not sure when she thought about it, but it was sometime between her police statement (Sept. 24/17) and the preliminary inquiry. During this time, she was trying to remember what happened and trying to remember more details - all of it being truthful. KB said the night gown memory wasn’t in her “conscious mind” during her meetings with Crown counsel and she doesn’t remember when she remembered it. KB said that although this was not the first time that she had thought of it, it was the first time she had shared the memory.

[95] KB denied that the additional incident and details were fabricated and confirmed they were truthful.

General Information Disclosed on Cross-examination

[96] KB confirmed the following during cross-examination:

1. KB complained about CB in her journals but did not write about the sexual abuse in her journals;

2. KB doesn’t remember her mother “taking over” her parenting;

3. KB knew her father didn’t want her to get a phone and remembers getting a phone “in December 2016, or January”;

4. KB denied that she sought to go to a movie theater on her birthday – instead she sought to watch a movie in the home theater (without the deal);

5. KB agreed that she talked to KV about her problems with CB but never about sexual abuse prior to September 24, 2017;

6. KB said it is possible but very, very unlikely that she had a further discussion with KV (after Sept. 24/17) about the sexual assaults; and

7. KB agreed that she had strong feelings of dislike if not hate for her father during 2017 and further agreed that after CB blocked all social media in 2017 that it made her dislike CB “even more”.

The Evidence of the Accused CB

CB’s Education and Background

[97] CB advised that he met his wife EB while boarding at a private high school (Ridley College). They married and had KB while they were at university. EB obtained a teaching degree while CB obtained an undergrad and masters’ degree in computer science.

[98] Following graduation, CB, EB, and KB lived in Thailand for two years and then returned to Canada, following which KB’s younger siblings were born. In 2009, the family moved to Australia and returned to Canada in 2010.

[99] Upon return to Canada, CB purchased a home in Ontario, which he renovated to include a home theater room and two bedrooms in the basement. The basement renovations were completed the summer of 2015 at which time his daughters KB and CaB each moved into their own bedroom in the basement.

CB’s Physical Issues

[100] CB suffered a stricture of the urethra in 1991 that resulted in ongoing urinary flow and retention issues. Since 1991, CB has undergone numerous corrective surgeries including an unsuccessful surgery on August 16, 2017, for which a repeat surgery was scheduled for September 25, 2017.

[101] On September 24, 2017, the day prior to CB’s scheduled surgery, CB was arrested on the current charges. CB advised the police of his pending surgery and was processed, granted bail, released, and driven by the police to a local hospital for treatment. CB underwent his surgery as scheduled on September 25, 2017.

[102] Prior to trial, CB brought a Charter challenge seeking a stay of the charges based on his treatment while in police custody. This Charter challenge was determined and dismissed by me for reasons reported on November 25, 2019, as R. v. C.B., 2019 ONSC 6752.

CB’s Psychological Issues

[103] CB testified that he suffers from depression and anxiety, first diagnosed in January 2016, for which he was prescribed medication but which he did not take. CB advised that in January 2016, he was exhibiting the following symptoms: very low energy; nervous with physical manifestation of hands shaking and sweats; difficulty with conflict; self-isolation; and difficulty being around people.

[104] In January 2017, CB received a diagnosis of severe anxiety, severe depression, and suicidal tendencies, for which he was prescribed medication which he did take.

[105] CB testified that from January 2017 to September 24, 2017, he continued to take his medication and saw his doctor regularly. CB stated that his medication was stabilized in or about April of 2017 and that he felt that he was much better at that time.

[106] Following his arrest on September 24, 2017, CB testified that he was hospitalized on two occasions for suicidal tendencies/attempts, assigned a psychiatrist and began participating in regular counselling sessions. CB testified that he continues to attend counselling and sees his psychiatrist regularly and takes the same medication prescribed to him in January of 2017.

[107] No expert evidence or medical information relating to CB’s mental health or psychological issues, other than CB’s testimony, was introduced at trial.

CB’s Relationship with KB and the Rules

[108] CB confirmed that during the period between 2015 to 2017, KB was a gifted student, an accomplished athlete, a member of her high school band, and an active volunteer at her church. CB further confirmed that from 2016 onwards, KB successfully managed all her extracurricular activities in addition to working part-time at a local movie theater.

[109] CB testified that although he previously shared a close relationship with KB, he began to lack trust for her in 2014 and that by 2015 he “did not trust KB at all”.

[110] CB advised that by 2016, his relationship with KB had deteriorated so badly that he was distancing himself from KB. By September 2016, CB had stopped speaking to KB. CB testified that, “I did not treat her very well. I had problems coping with her”.

[111] In September of 2016, CB asked his spouse EB to “take over the parenting (of KB) because I couldn’t cope with her anymore…So, in that timeframe I gave up that, yes. I had to let EB look after her safety...I couldn’t cope, I couldn’t cope”. CB described KB as being “difficult,” “disrespectful”, and “lacking in street sense”.

[112] From September 2016 to December 2016, CB treated KB differently than his other children. He testified that he “regrets it very badly” adding “I tried my best”. CB described his treatment of KB as follows:

[I treated her] very poorly at that time. I didn’t talk to her. I ignored her at the table. I would not include her in things sometimes.

[113] In January of 2017, CB claimed that he “tried to get better” and took the medication prescribed to him. EB involved CB in counselling at her church. CB stated that EB wanted CB to speak to someone because “of all the issues that I was having with KB”.

[114] From January 2017 to April 2017, CB said that he was “not a whole lot better” to KB. He recalls, “I tried to talk to her. I would try to include her in things, but I was still very distant from her at that time”.

[115] CB claimed that during the summer of 2017 he started getting better with the medication and tried to make amends with KB. He claimed that he knew he had not treated KB “the best”, and so, with the help of EB he started to invite KB to things, like Wonderland, family board game nights, or to the movies. However, KB refused to accept his attempts to make amends. CB said that he read in KB’s journals that she did not believe that his efforts were genuine.

[116] CB testified that “KB struggled with street sense”, such as wearing inappropriate clothes and wanting to go to parties late at night with no supervision, with boys. CB said that was very poor street sense for her age.

[117] During cross-examination, CB was asked what made KB so hard to cope with and what rules did KB break that caused him to not trust KB. CB’s response was as follows:

1. When KB was 11 or 12, she spent the day at a “stranger’s house”;

2. When KB was in grade 7 or 8, she attended a party and sleepover at her best friend’s house. CB was “guaranteed there would be no boys” but found out from his wife that boys were at the party;

3. In 2013, KB really wanted to cut the grass with the lawnmower. CB told her how to do it and she didn’t listen;

4. In November of 2016, when KB was in grade 10, she went to a Halloween party at her friend’s house and there were boys at the party. Although KB told EB there would be boys at the party, he didn’t know until later as he wasn’t speaking to KB. CB learned that KB spent “7 minutes in heaven with a boy” at that party by reading KB’s journals; and

5. In January 2017, when KB was in grade 11, CB claimed that KB spent all night texting friends and so he required her phone to be plugged-in upstairs prior to bedtime.

[118] When asked why KB lost trust in him, CB testified that KB’s loss of trust in him was caused by the following events:

1. CB didn’t attend her grade 8 graduation (he was away for work);

2. From September to December of 2016, CB didn’t speak to her;

3. From September 2016 to February 2017, CB ignored KB at the dinner table, refused to drive her to activities, alienated himself from her, wouldn’t invite her to things and “treated her badly”; and

4. CB and KB had disagreements over KB “breaking rules”.

[119] As for “the rules”, CB testified that he made the household rules for all three children which included reporting requirements, bedtimes hours, use of WIFI and computers, and a shirt check for inappropriate clothing.

[120] CB testified that although he initiated the shirt check for KB, he never personally conducted the check.

[121] During cross-examination CB confirmed that he initiated the shirt check because KB was going through puberty and developing breasts and he didn’t want other people to see KB’s breasts. When it was suggested that CB was so concerned about other people seeing KB’s breasts that he imposed a checking system to ensure that her breasts would not be visible, CB responded, “That's correct, yes.” He also said

That’s correct, I don’t think any father should want their daughter’s breasts…shown to people.

[122] CB described the shirt check for inappropriate clothing as follows:

1. I would, if my wife was present, have my wife stand there and either daughter would bend over in front of her (EB) and if EB could see down the shirt, then the daughter had to go change the shirt. I would stand to the side, so that I could not see. “I did not think it was appropriate for me to be looking down my daughter’s shirts”. When Crown asked if that was because it’s completely inappropriate? CB responded, “Yes, completely inappropriate”.

2. When Crown counsel asked what CB’s daughters would be doing with their hands when they bent over, CB responded, “I don’t know”.

3. CB said that he requested the shirt check if the shirt was “down so that you could see cleavage already, then I thought that was inappropriate and I would have them change the shirt immediately and if my wife was there then she would do the check. It was also if the shirt was bulky and it was possible that the neckline would come out if they bent over. More than often what they would do is put a shirt underneath because they still wanted to wear the same shirt and that was fine”.

[123] When CB was challenged that both EB and KB had testified that CB was the one looking down his daughter’s shirts, CB responded, “No. Absolutely not”, adding that he would never put himself in that position, “it is entirely inappropriate”.

[124] CB testified that in the summer of 2017, he was in counselling with EB and they “decided to get on the same page for parenting” and the rules. CB said that he and EB sat down and “made rules together”. They used the Ridley College rules for bedtimes, lights out and computer time, that extended KB’s bedtime to 10:30 pm.

[125] CB said the new rules allowed KB to date at age 16 even though CB didn’t think KB was “ready for dating” and dating “was a huge freedom”. CB testified that “I didn’t think she had the street sense yet for it but EB said we had to, and we had to trust her, so I tried”. The new rules for KB included that dating was KB’s choice and “if you get pregnant, then you will marry them and move in with them”.

[126] The new rules were effective as at September 2017. CB claimed that KB was “very angry” about the September 2017 rules and fabricated the allegations, in part, in response to the new rules to oust him from the house.

KB’s Journal Entries

[127] CB testified that KB kept private journals (diaries) and that he secretly read KB’s journals on three occasions beginning in 2015 and ending sometime in September 2017. CB would spend three to four hours per occasion and read all entries while sitting on KB’s bed when she was out of the home. CB did not tell anyone he was reading the journals.

[128] CB said he read the journals to learn why KB didn’t trust him and how he could gain back KB’s trust to better their relationship. CB admitted that his reading of KB’s journals would be considered a breach of trust by KB, but he did it anyway.

[129] CB said that KB’s journal entries for the period 2014 to 2016 go from a good father/daughter relationship to one where she doesn’t consider him her dad anymore and she hates him. CB said that KB gave reasons in her journals every time she wrote that she hated him but never wrote about sexual improprieties. KB confirmed that she did not write about the sex abuse in her journals.

[130] Prior to the trial, CB sought disclosure of KB’s journals pursuant to s. 278 of the Criminal Code. The application was dismissed (at stage one) by me on November 20, 2019 with reasons reported as R. v. C.B., 2019 ONSC 6686. This decision was re-considered in part, on December 13, 2019, and for reasons reported as R. v. C.B., 2019 ONSC 7225, the re-consideration request was dismissed. Finally, at trial following the testimony of the complainant, the Defence sought re-consideration of this ruling. In oral reasons delivered, the re-consideration request was again dismissed.

CB’s Response to KB’s Allegations of Sexual Abuse

[131] During his examination in chief, Defence counsel repeated KB’s allegations to CB who categorically and emphatically denied all allegations of sexual abuse. To the extent that CB’s response provided additional relevant information beyond a denial, such evidence is summarized below.

Allegations Regarding Sexual Touching

[132] CB confirmed that he watched movies with KB in the home theater room during the summer of 2015, that he might have had his arm around KB, and he might have watched Sherlock Holmes. However, CB denied that he touched KB’s breasts, testifying, “Absolutely not”.

[133] When CB was asked if he told KB to “trust him”, he testified,

Not in this context, no. Never in a sexual assault type. I never sexually assaulted my daughter. I may have said “trust” to her at some point, but never like this.

Allegation Regarding Other Cultures and Secret Keeping

[134] CB testified it was possible he told KB about different cultures, but never in relation to any sexual activity with her and that he did not have a discussion with KB about keeping secrets.

Allegations Regarding “The Deal”

[135] CB denied that any deal as alleged by KB existed. CB testified that, while he was isolating from KB, he told EB that he didn’t want KB in the theater room.

The Grandparents’ Incident

[136] CB testified that in the fall of 2016, he was having a lot of problems coping with KB so he discussed with EB other places that KB could live, including his parents’ home and boarding school. CB didn’t discuss this with KB as he “wasn’t talking to her at the time” and categorically denied that he threatened to send KB to his parents’ home unless she had sex with him.

Events Leading to Disclosure: September 2017

[137] CB said he purchased “Wonder Woman” for KB’s 16th birthday in September 2017, in an ongoing effort to make amends. CB said that KB called him around 4 pm and the call was very short. Describing the call, CB testified as follows

It wasn’t anything special, it was just she called me. I can’t even remember what we talked about. The only thing I remember is that she asked me if I bought “Wonder Woman” and I said yes. That’s my only recollection of that call.

[138] CB said there was absolutely no conversation about “the deal” or sexual activity, “No. Absolutely not. I may not remember what the call was about, but I know I did not talk about sexual deals or anything like that with her”.

[139] As for the evening of KB’s birthday, CB said EB told him that KB didn’t want to watch the movie so, “I went downstairs, put the movie on. I invited whoever wanted to come. I remember RB came down”. CB said, “It wasn’t unusual for KB to refuse to spend time with me, so I didn’t think about that.”

The Kingsman Movie

[140] On September 21, 2017, CB refused to allow KB to attend The Kingsman 2 as he felt the movie inappropriate. Shortly thereafter, CB found KB and her younger sister watching the first Kingsman movie on a laptop (while EB was in the same room). CB “shut down the movie”. KB was upset, “She thought she knew better than me”.

Disclosure Date: September 24, 2017 and the Edgar Ruling

[141] The events that occurred while CB was at the police station were the subject of several applications, including an “utterances” application. On October 18, 2019, released as R. v. C.B., 2019 ONSC 6306, I determined that CB’s utterances were not admissible for the truth of their content but were admissible pursuant to the exception established in R. v. Edgar, 2010 ONCA 529, 101 O.R. (3d) 161, as evidence of the reaction of CB and the consistency of CB’s testimony.

[142] The Edgar statements made by CB, subject to the Edgar ruling, noted in bold are as follows:

Q: …Okay, so right now you are being placed under arrest.

A: Okay.

Q: For sexual assault times 3.

A: Times 3?

Q: Yep.

A: Who’d I do what?

Q: Invitation to sexual touching and sexual interference times 3. For 3 different incidents.

A: For Who?

Q: On Katrina.

A: What?

Q: So, I am going to read you some rights.

[143] CB was asked if he had his medications with him and answered “No, I didn’t know what this was about.”

[144] CB volunteered to assist with the search of his pockets after which the following conversation transpired:

1. Arnott: “Well you can take a seat back down there”.

2. The Applicant: “I’m very confused”.

3. Arnott: “Okay well we will straighten some things out….”

Motive for Fabrication

[145] CB claims that KB fabricated the allegations of sexual abuse because KB didn’t like CB’s rules and his strict parenting regime and in September of 2017 KB saw that EB was now working with CB to impose and enforce the rules. CB said that this factor, combined with his refusal to allow KB to see the Kingsman movies, to permit SD to visit for KB’s birthday, the imposition of the new September 2017 rules, and her overall strong dislike or hatred of CB, provided KB with the motive to fabricate the allegations of sexual abuse in an attempt to remove him from the household.

[146] CB asserts that KB’s disclosure to her pastor/counsellor was targeted as she knew that KV was a mandatory reporter. CB asserts that KB’s explanation for not disclosing the alleged abuse to her mother is inconsistent and not believable, that KB otherwise provided inconsistent and incremental reporting of the alleged abuse, such that KB’s evidence is internally inconsistent and cannot be relied upon.

[147] CB asserts that based on the entirety of the evidence, a reasonable doubt exists as to his guilt and he should be acquitted of all offences charged.

The Evidence of EB

General Background

[148] EB advised that prior to September 24, 2017 (KB’s disclosure) she loved her husband and believed that she had a “good marriage”.

Family Life

[149] EB advised that in January 2016, CB didn’t go out a lot, didn’t want to socialize with friends, was having problems sleeping, and was generally unhappy. EB encouraged him to go to a doctor who prescribed medication that CB did not take.

[150] EB stated that when the theater room was completed in the summer of 2015, KB would watch movies in the theater room with CB and/or the family. However, after a time KB refused to watch any movies in the theater room but would watch movies on her laptop or at an outside movie theater. KB refused to tell EB why she wouldn’t watch movies in the theater room. Even after EB encouraged KB to watch movies with CB in the theater room, KB steadfastly refused.

[151] EB advised that there was tension in their house between CB and KB. There were times when they wouldn’t speak to each other.

[152] KB told EB that she couldn’t understand why her father was not pleased with her behavior. EB said that KB was “an A+ student, she’s gifted, she tries, she doesn’t smoke, she doesn’t drink, she’s an exceptional child”. KB said to EB, “I get very good grades. I try. I don’t skip school. But how come I can never please him?...” At this same time, EB said that CB was telling EB that he didn’t trust KB, that KB was disrespectful and couldn’t follow rules. The example provided by CB to EB was an incident that occurred when KB was in grade 7 or 8. KB wanted to walk from school to her friend’s home and the parents had agreed to that. However, KB went into Pizza Pizza which was on their way home. CB said KB broke the rule even though EB did not think it was a big deal as Pizza Pizza was right on the way.

[153] EB testified that there was a period when CB would not speak to KB and said he didn’t want to be alone with KB. However, EB denied that CB ever told her that he didn’t want KB in the theater room. CB wouldn’t communicate at the dinner table with KB and sometimes walked around her. On one occasion CB attended karate and picked up his son, RB, but refused to pick up KB and so EB picked up KB.

[154] In September 2016, CB told EB that he was frustrated with KB and that EB should parent KB on her own and make all the decisions. EB testified that CB told her that if KB “got pregnant or something” it would be EB’s fault. CB “abdicated responsibility for parenting KB”. CB told EB that he “can’t wait until she leaves, and I never have to see her again” and “if she ever has grandchildren, she is on her own”.

[155] Sometime prior to abdicating his parental role, CB had told KB that her best friend SD couldn’t attend their home and that KB couldn’t have a phone. EB disagreed with these rules and changed them.

[156] EB said that sometime after January 2017, CB attempted to make amends with KB. CB purchased a family pass to Wonderland. CB would often go by himself to Wonderland and a lot of times would go with the family. Sometimes he would ask his other children to go with him. KB refused to go to Wonderland alone with CB.

The Rules

[157] EB stated that when there was a difference of opinion about the household rules, which happened often, they “would just go with” CB’s rules.

[158] Between 2015 to 2017, EB recalled that the children’s bedtimes were 8 or 8:30 pm and increased by 15 minutes each year they got older.

[159] EB said that CB often got upset with KB’s tops believing they were too low or revealing. EB thought that KB’s tops were fine, but CB would make KB bend down in front of him to see if it was too low or if other people could see.

[160] Prior to 2017, there were rules governing the children’s movements outside the home, bedtime rules, a shower schedule, a shirt rule, and a WIFI rule. The rules were written on a board for the children to view.

[161] In August of 2017, EB and CB made new rules together for the children effective September 2017. Among other matters, the rules extended KB’s bedtime to 10:30 pm, with lights out by 10:45 pm and allowed KB to date. There was also a rule that stated, “if you get pregnant, then you will marry them and move in with them”.

[162] EB testified that she understood that KB was “happy” with the new rules.

KB’s Birthday

[163] CB purchased the movie Wonder Woman and candy with the intent that KB would watch the movie with CB in the family theater room. EB understood at the time that the movie was to be a “peace offering” to bring the family closer together.

[164] EB said that KB called her to ask if SD could join them. Initially EB said yes but then advised that SD could come only if KB watched Wonder Woman in the theater room. KB declined and told EB that she, “would never watch a movie with her father again”. EB told KB that if she wouldn’t watch the movie then SD could not come over.

[165] When EB picked up KB from her friend’s home she asked KB why she wouldn’t watch the movie with CB. KB refused to explain and adamantly repeated that she would not watch a movie with her father.

[166] CB watched Wonder Woman in the theater room without EB, even though it was KB’s birthday gift.

[167] Later that evening EB had a further argument with KB regarding her refusal to watch the movie. At the end of the argument KB requested to see her counsellor which EB arranged for September 24, 2017.

[168] On September 21, 2017, KB had a further argument with CB regarding the Kingsman 2 movie.

[169] On September 23, 2017, KB and her entire family attended KB and RB’s karate grading which EB thought was a “happy moment”.

[170] On September 24, 2017, EB drove KB to work after counselling. EB did not ask KB about her counselling as she viewed it as private. EB did not notice any problems or difficulties with KB. EB dropped KB off at work and did not expect to see her until 8:45 p.m.

[171] EB and her family were summoned to the police station later that day. EB was shocked by KB’s allegations and initially did not believe them to be true. EB told the police, “I don’t think he’s ever – he’s never – he doesn’t abuse her”.

[172] EB was told by the police that she could leave with her children or her husband, but not both. EB left with her children, effectively separated from CB on this date, and is in the process of obtaining a divorce from him.

[173] That evening, KB stayed at her friend SD’s house. As it was a school night this would never normally be allowed had CB been home.

[174] On September 27, 2017, while interviewed by the Children’s Aid Society (CAS) EB expressed her disbelief about the allegations. EB advised CAS that the children were doing “a lot better now because CB would not allow anyone to come over to the house. Further, if friends were to come over to the house CB would not allow the friends inside the house – they had to stay outside”.

[175] During cross-examination EB advised that following September 24, 2017, that the family (excepting CB) remained living at their home and everyone kept their own rooms. All family members had been attending counselling and were doing “very well”. KB had started university and is studying computer science, the same field as her father.

[176] Following separation, the Office of the Children’s Lawyer (OCL) provided a report that indicated that the children expressed their concern to EB about their father’s “rigid and controlling parenting when he was in the home”. EB reported to the OCL that “two years prior to CB’s removal from the home that the “children had questioned when she would divorce their father due to the ongoing conflict and hostility”.

[177] At trial EB testified that she recalled the children having discussions with her about their father following separation, when they opened up to her, but despite what it said in the OCL report, she did not recall any such conversations occurring prior to separation.

The Evidence of KV

[178] KV is a pastor/counsellor who provided ongoing counselling to KB commencing sometime in January of 2017. KV is the first person that KB provided disclosure to regarding her allegations of sexual abuse against CB.

[179] KV described KB as “a good student, extremely conscientious, always showed up on time, the “A” model leader in our Kids Zone”.

[180] KV began counselling KB as CB had “disowned” KB and didn’t want her as his daughter. Both KB and EB were “in tears” discussing this issue.

[181] KV provided regular counselling to KB until about July of 2017. KB’s emotions were “sadness, depression, a sense of loss, like even grief at the fact that she no longer had a dad and she desperately wanted a dad and her family to be whole”.

[182] KV did not suspect that CB was sexually assaulting KB, or she would have reported her suspicions to the police. However, when KB provided disclosure, KV said that everything that occurred throughout the counselling sessions made sense and the puzzle pieces clicked into place.

[183] KV said that KB’s first concern following disclosure was that her family not split up as she did not want that for her mother or her siblings.

[184] KB’s disclosure was “something to the effect of my dad has sexually abused me” or “molested me” or “touched me”. KB described a specific incident that had occurred a few years prior in their home theatre when KB was sitting in the dark with her father and he put his arm around KB and groped her breast. KB said that she pushed CB’s hand away and told him to stop and he responded, “Just trust me”.

[185] KB advised her disclosure was precipitated by an incident that had occurred around her 16th birthday. KB had a pact with her dad that if she wanted to do certain things, she had to have sex with him. KB said she wasn’t going to have sex with him and so on her birthday she had wanted “to go to a movie with friends” and pleaded with her dad to make an exception to the rule because it was her birthday but CB said no, that KB had to have sex with him if she wanted to go to a movie. KB wouldn’t have sex with her dad and did not get to go to the movie.

[186] KB shared that “other things had happened” but KV did not ask about the “other things” and KB did not tell.

[187] Following KB’s disclosure KV called 911 to report the information and told KB to go to work and act as if everything were normal.

[188] KV took no notes at any of her counselling sessions with KB including the session where KB disclosed the sexual assault allegations.

[189] About 2 ½ hours following the 911 call, an officer met KV to interview her. The officer made notes of this interview which were not reviewed by KV, were not a verbatim recording of her statement, contained errors and omissions, but otherwise captured the “essence” of her statement.

[190] On September 25, 2017, KV called KB who said, “I shared everything with them, more than I shared with you.”

[191] On November 17, 2017, KV attended the police station to provide a formal video tape statement.

[192] In or about late January or early February 2018, KV met KB at a coffee shop. KB “shared additional details” of “two specific incidences of abuse” as follows:

1. CB entered KB’s bedroom, inserted his finger into her vagina and moved it around. KB advised that CB was, “trying to get me to orgasm”; and

2. CB forced KB to rub his penis until he ejaculated.

[193] KV took no notes of this conversation and advised that it was unclear to her whether the incidences happened simultaneously the same night or on two separate occasions.

THE LAW

Reasonable Doubt and Burden of Proof

[194] The burden is on the Crown to prove the accused’s guilt beyond a reasonable doubt. The accused comes before the court with the presumption of innocence. In other words, he has a clean slate. The presumption is only discharged when, and if, the Crown proves his guilt beyond a reasonable doubt. The Crown at all times bears the onus of proving the case. The accused does not have to prove anything. The Crown is required to prove the essential elements of each offence to the reasonable doubt standard. I must assess the case on the whole and decide whether, on the basis of all of the evidence, or lack thereof, the Crown has proven the guilt of the accused beyond a reasonable doubt; R. v. C.F., 2020 ONSC 0540.

[195] As noted by Justice Cory in R. v. Lifchus, 1997 319 (SCC), [1997] 3 S.C.R. 320, at para. 36 and 39:

The standard of proof beyond a reasonable doubt is inextricably intertwined with that principle fundamental to all criminal trials, the presumption of innocence. The burden of proof rests on the prosecution throughout the trial and never shifts to the accused.

A reasonable doubt is not an imaginary or frivolous doubt. It must not be based upon sympathy or prejudice. Rather, it is based upon reason and common sense. It is logically derived from the evidence or absence of evidence.

Even if you believe the accused is probably guilty or likely guilty, that is not sufficient. In those circumstances you must give the benefit of the doubt to the accused and acquit because the Crown has failed to satisfy you of the guilt of the accused beyond a reasonable doubt.

On the other hand, you must remember that it is virtually impossible to prove anything to an absolute certainty and the Crown is not required to do so. Such a standard of proof is impossibly high.

In short, based upon the evidence before the court, you are sure that the accused committed the offence, you should convict since that demonstrates that you are satisfied of his guilt beyond a reasonable doubt.

Application of Reasonable Doubt in Sexual Assault Cases

[196] As there are rarely any witnesses other than the complainant and the accused, sexual assault cases often revolve around “he said/she said” scenarios.

[197] To assist in the proper application of the burden of proof in “he said/she said” scenarios, the Supreme Court of Canada, in R. v. W.(D)., 1991 93 (SCC), [1991] 1 S.C.R. 742, has recommended that the issue be considered utilizing the following three step process:

1. If you believe the evidence of the accused, you must acquit;

2. If you do not believe the testimony of the accused but are left in reasonable doubt by it, you must acquit.

3. Even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence that you do accept, whether you are convinced beyond a reasonable doubt of that evidence of the guilt of the accused.

[198] Where the evidence is “he said/she said”, Cory, J.’s second level of analysis has been formulated to be:

If after a careful consideration of all the evidence, if you are unable to decide whom to believe, you must find the accused not guilty because the Crown would have failed to prove the accused’s guilt beyond a reasonable doubt: See R. v. M.H., 2018 ONSC 7366, at para. 68 citing to R. v. C. W.H. 1991 3956 (BC CA), [1991], 3 BCAC 205, 68 C.C.C. (3d) 146 (B.C.C.A.) per Wood J.A. at p. 155.

In R. v. S.E.M., 2005 SKQB 213, 265 Sask. R. 193, at para. 37, Baynton J. helpfully summarized the analysis as follows:

In general terms, in a case where there is no evidence that supports the complainant’s evidence, where the complainant’s evidence differs considerably from the evidence of other witnesses, where the complainant may have a motive to exaggerate or fabricate his or her evidence, or where the complainant’s conduct is inconsistent with her evidence, proof of guilt beyond a reasonable doubt is not as evident as if none of these factors apply. In such cases, even where the court is inclined to believe the evidence of the complainant over the accused or other witnesses, the court must be particularly diligent in considering whether, on the basis of all the evidence or the lack of it, the guilt of the accused has been proven beyond a reasonable doubt.

[199] The evidence of the accused is to be weighed cumulatively and not in isolation. A judge does not consider an accused’s version of events in isolation as if the Crown had led no evidence. When a judge is applying the first two prongs of the three-pronged test in W.(D.) she is deciding whether she accepts the accused’s version of events or whether it leaves her with a reasonable doubt. Clearly a judge can only do that by assessing the accused’s evidence and the other evidence that favours the accused in the context of all the evidence. The evidence of any witness, including an accused, may be believable standing on its own, but when other evidence is given that is contradictory, or casts doubt on the accuracy or reliability of the witnesses’ evidence, then that evidence may no longer be believable, or in the accused’s case, may no longer raise a reasonable doubt. See R. v. Hoohing, 2007 ONCA 577 at para 15.

[200] As noted by Molloy, J. in R. v. Nyznik, 2017 ONSC 4392, it is critical is for the judge to avoid turning the fact-finding exercise into a choice as to which is the more credible version of the events. Rather, if the defence evidence, seen in the context of all the evidence, raises a reasonable doubt, then the trial judge cannot convict.

[201] Even in a situation where the trial judge completely rejects the defence evidence and has no reasonable doubt as a result of that evidence, she must then assess the evidence in its’ entirety and determine whether the Crown has discharged its burden of proving guilt beyond a reasonable doubt.

[202] However, if a judge determines that an accused’s evidence does not raise a reasonable doubt on the charges, there does not need to be a specific feature of the accused’s evidence that causes the judge to reject the accused’s evidence. Rather, the rejection may be based on a considered and reasoned acceptance beyond a reasonable doubt of the truth of the conflicting credible evidence given by the complainant as supported by the evidence of other witnesses. There is no error in convicting based on a considered and reasoned acceptance beyond a reasonable doubt of the evidence of the complainant, despite any inability to point to any specific part of the accused’s evidence that caused the judge to disbelieve the accused: R. v. P. (D.), 2017 ONCA 263.

Assessment of Evidence

[203] With respect to reviewing and assessing the evidence, Thorburn J. provided a helpful summary of the law and the rules to be followed in R. v. Chauhan, 2014 ONSC 5557, at paras. 38-42, as follows:

All of the evidence should be considered together, rather than assessing individual items of evidence in isolation. (R. v. Morin, 1988 8 (SCC), [1988] 2 S.C.R. 345 at paras 41, 44 C.C.C.(3d) 193). This is particularly true where the principal issue is the credibility and reliability of witnesses. (R. v. Gostick, (1999) 1999 3125 (ON CA), 121 O.A.C. 355 (C.A.), 137 C.C.C. (3d) 53 at paras 14-18 and R. v. B. (R.W.), (1993) 40 W.A.C. 1, [1993] B.C.J. No. 758 (C.A.) at para 28).

The court must be satisfied of two things beyond a reasonable doubt: (1) that the complainant is a credible witness, and (2) that her account is reliable. (R. v. J.W., 2014 ONCA 322, 316 O.A.C. 395 at para 26).

Credibility is the witness’ willingness to tell the truth. Reliability is the accuracy of the witness’s testimony. Accuracy is affected by the witness’s ability to accurately observe, recall and recount events.

A witness whose evidence is not credible cannot give reliable evidence. However, a credible and honest witness may still be unreliable. (R. v. Morrissey, 1995 3498 (ON CA), 22 O.R. (3d) 514, [1995] O.J. No. 639 (CA) at para 33). The reliability of the evidence is what is paramount. (R. v. Norman (1993) 1993 3387 (ON CA), 16 O.R. (3d) 295 at para 47, 87 C.C.C. (3d) 153 (C.A.) at para 47.)

[204] The evidence must be assessed based on the entirety of the evidence provided and not just the evidence of the complainant, whether by videotaped statement or viva voce evidence. The ultimate issue is always reasonable doubt.

[205] Put another way, the issue at the end of the trial is not credibility but reasonable doubt: See R. v. Shepherd, 2002 SCC 26, [2002] 1 S.C.R. 869, at para. 65.

[206] The purpose of sexual assault trials is to determine whether a criminal offence has been committed and the focus must always be on whether the alleged offence has been proven beyond a reasonable doubt.

Assessing the Testimony of Witnesses

[207] The complainant was 13 to 16 years old at the date of the alleged offences; 16 years old at disclosure; and 18 years old at trial.

[208] The accused CB, and the other two witnesses, EB and KV, were all adults at the date of the alleged offences, disclosure, and at the date of trial.

[209] The issues that relate to the assessment of all the witnesses’ evidence is credibility and reliability.

[210] In assessing the evidence of the witnesses, I am guided by McLachlin, J.’s comments in R. v. F. (W. J.), 1999 667 (SCC), [1999] 3 S.C.R. 569, about the treatment of the testimony of witnesses, as well as Finlayson J.A.’s comments in R. v. Stewart (1994), 1994 7208 (ON CA), 18 O.R. (3d) 509, (Ont. C.A.), leave to appeal to S.C.C. dismissed without reasons, [1994] S.C.C.A No. 290.

[211] Every person who gives evidence is an individual whose truthfulness and reliability must be assessed keeping in mind, among other things, that person’s mental development, understanding, and ability to communicate.

[212] When witnesses testify about events which occurred when they were younger their truthfulness and reliability should be assessed taking into consideration their current age. However, when the evidence relates to events that the witness says took place at a younger age, the presence of inconsistencies, particularly as to peripheral matters such as time and location, should be considered in the context of the age of the witness at the time of the events that she is testifying about.

[213] It is important to consider the witnesses’ intelligence, experience, and capacity to observe and understand what was happening at the time of the event. This is because a younger witness might not be paying particular attention to some detail that an adult might notice. The failure to pay attention might give rise to confusion on such details.

[214] The important questions in that context are whether the deficiencies, if any, are minor or significant and whether the deficiencies mean that events were misconceived. However, this does not mean that the testimony of children or young adults is subjected to a lower level of scrutiny for reliability than other testimony. In other words, the standard of proof is not relaxed in cases dependent upon the testimony of children and young adults.

[215] In R. v. W. (R.), 1992 56 (SCC), [1992] 2 S.C.R. 122, at pp.132-135, McLachlin, J., stressed that courts have a new appreciation that it may be wrong to apply adult tests for credibility to the evidence of children. The court confirmed that a common-sense approach is to be taken when dealing with the testimony of children. At p. 134, McLachlin, J. stated as follows:

It is neither desirable nor possible to state hard and fast rules as to when a witness’s evidence should be assessed by reference to “adult” or “child” standards – to do so would be to create anew stereotypes potentially as rigid and unjust as those which the recent developments in the law’s approach to children’s evidence have been designed to dispel. Every person giving testimony in court, or whatever age, is an individual, whose credibility and reliability must be assessed by reference to criteria appropriate to her mental development, understanding, and ability to communicate. In general, where an adult is testifying to events which occurred when she was a child, her credibility should be assessed according to criteria applicable to her as an adult witness. Yet with regard to her evidence pertaining to events which occurred in childhood, the presence of inconsistencies, particularly as to peripheral matters such as time and location, should be considered in the context of the age of the witness at the time of the events to which she is testifying.

[216] Corroborative evidence is not required to make a finding of guilt beyond a reasonable doubt. Youthfulness, sincerity, and demeanor go to credibility, not to reliability: See R. v. R.H.A. (2000), 2000 3027 (ON CA), 134 O.A.C. 186, at para. 3 and R. v. Stewart (1994), 1994 7208 (ON CA), 18 O.R. (3d) 509.

Credibility: Demeanor Evidence

[217] While judges are entitled to consider the witnesses’ demeanour in assessing the witnesses’ credibility, they must be cautious, as stated by the Court in R. v. D.P., 2017 ONCA 263 at para. 26:

A witnesses’ demeanour is an appropriate consideration when assessing credibility. Demeanour can, however, be misleading and should be factored into the credibility assessment with care. There is always a danger that demeanour can be overemphasized by a trial judge or jury.

[218] A witness’ demeanour provides no assistance in determining a witness’ reliability. As stated, a credible witness can give unreliable evidence.

Credibility: Delay in Disclosure, Avoidant Behavior, Change in Behavior

[219] It has long been recognized that there is no inviolable rule on how people who are the victims of trauma like a sexual assault will behave: R v. D. (D.), 2000 SCC 43, [2000] 2 S.C.R. 275 at para. 65.

[220] Delayed or incremental disclosure, standing alone, cannot adversely affect the credibility of a complainant. There are no fixed rules about how victims of sexual assaults must behave, including the timing of making reports. As Major J. stated, in speaking for the majority in R. v. D. (D.), at para. 65:

…there is no inviolable rule on how people who are the victims of trauma like sexual assault will behave. Some will make an immediate complaint, some will delay in disclosing the abuse, while some will never disclose the abuse. Reasons for delay are many and at least include embarrassment, fear, guilt, or a lack of understanding and knowledge. In assessing the credibility of the complainant, the timing of the complaint is simply one circumstance to consider in the factual mosaic of a particular case.

[221] A complainant may have a “perfectly plausible” explanation for delayed disclosure and for any failure to disclose all of the assaults in their first interview and if so, the trial judge is entitled to accept the explanation without drawing any adverse inference. As noted in R. v. P. (D.), 2017 ONCA 263, at para. 30, quoting the trial judge,

The decision to disclose is a difficult one that can be very painful for victims. It cannot be surprising that it would take (the complainant) more than one occasion to shed a burden that had been weighing on him for years.

Reliance Upon Logic and Common Sense

[222] Stereotyping behaviour is never a legitimate anchor to tie crucial credibility assessments in the context of sexual assaults. And, counter-stereo typical behaviour must never translate to less credibility: See R. v. A.R.D., 2017 ABCA 237, 422 D.L.R. (4th) 471, at paras. 41 – 45.

[223] Where evidence and its relevance, is not clearly identified by the trial judge and the complainant’s credibility is instead assessed solely in comparison to the trial judge’s conclusions as to “expected” post-sexual assault behaviour, such evaluation is fully rooted in reliance on impermissible reasoning based on myths and stereotypes.

[224] There is no juridical foundation upon which a trial judge could correctly conclude that child sexual assault survivors will demonstrate avoidant behaviour in relation to their sexual assault perpetrators: See R. v. A.R.D., at para 47.

[225] What is a far more reliable indicator of credibility is whether the evidence is consistent with or supported by other independent evidence that is known to be reliable: See R. v. S.E.M., at para. 39.

Credibility and Reliability: Consistencies and Inconsistencies

[226] Where there are inconsistencies between a complainant’s testimony at trial and her prior statements, points of consistency on essential aspects of the allegations are relevant to the credibility and reliability assessment of a complainant’s evidence: see R. v. L.O., 2015 ONCA 394, 324 C.C.C. (3d) 562, at paras. 34 – 36; R. v. Perkins, 2015 ONCA 521.

[227] Inconsistencies may emerge in a witness’ testimony at trial, or between their trial testimony and statements previously given. Inconsistencies may also emerge from things said differently at different times or omitting to refer to certain events at one time while referring to them on other occasions: See R. v. A.M., 2014 ONCA 769, at para. 12.

[228] Inconsistencies vary in their nature and importance. Some are minor, others are not. Some concern material issues, others peripheral subjects. Where an inconsistency involves something material about which an honest witness is unlikely to be mistaken, the inconsistency may demonstrate a carelessness with the truth about which the trier of fact should be concerned: R. v. A.M., at para. 13.

[229] One of the most valuable means of assessing witness credibility is to examine the consistency between what the witness said in the witness box and what she has said on other occasions, whether or not under oath. It is important to consider not just the individual inconsistency but also the cumulative effect of any inconsistencies found: R. v. G. (M.) 1994 8733 (ON CA), 1994, 93 C.C.C. (3d) 347 (Ont. C.A.), at p. 354 (leave to appeal to S.C.C. dismissed without reasons, R. v. G. (M.), [1994] S.C.C.A. No. 390.)

Motive to Fabricate

[230] The fact that an accused asserts that a complainant has a motive to fabricate does not allow the trial judge to enhance the complainant’s credibility if no motive to fabricate is found: see R. v. Bartholomew, 2019 ONCA 377, 375 C.C.C. (3d) 534, at para. 21 – 23.

ANALYSIS: APPLICATION OF THE LAW TO THE FACTS

Credibility and Reliability of CB’s Evidence

[231] CB was attentive, cooperative, polite, soft spoken, and articulate throughout his testimony. CB would occasionally ask for a moment to reflect prior to answering a question and in this manner appeared to be conscientious in providing his testimony.

[232] CB testified that he suffered from anxiety and depression and that his anxiety manifested itself physically by causing him to sweat profusely and/or his hands to shake. These physical manifestations were apparent during CB’s testimony as was the stilted and often over-exaggerated manner that CB responded to allegations put to him. Given CB’s stated medical condition and the frailties that attach to demeanor evidence in the best of circumstances, I have not attached any negative credibility findings to CB as a result of his demeanor.

[233] As for CB’s videotaped statement that is the subject of the Edgar ruling, CB’s initial reaction to the allegations appear artificial, non-spontaneous, and over-exaggerated. Although CB sought to utilize a portion of the videotaped statement to enhance his credibility, I make no such finding. CB’s physical reactions and verbal responses do not appear either spontaneous or capable of enhancing CB’s credibility. The portion of the videotaped statement that is the subject of the Edgar ruling neither enhances nor detracts from CB’s credibility or the consistency of his evidence.

[234] As for the content of CB’s testimony at trial, for the most part CB’s testimony was responsive to the questions asked of him. On occasion, however, CB volunteered information out of context that was suggestive that KB acted inappropriately. Examples are as follows:

1. when CB volunteered that KB lacked “street sense” in response to an enquiry about whether he wished his children to succeed and gave as an example that KB sought to wear inappropriate clothing out of the house; and

2. when CB habitually re-referenced KB’s attendance at a party in November 2016, repeatedly noting that KB had spent time in a closet with a boy.

[235] Having reviewed and considered all evidence regarding these two incidents, I find that CB’s perspective is oddly skewed. It was not KB, but CB, who acted inappropriately by: (1) establishing a shirt check for inappropriate clothing; and (2) reading KB’s private journals to learn the details of the party. CB’s behavior constituted serious intrusions into KB’s personal privacy and dignity.

[236] Further, when CB testified about his relationship with KB, he often used absolute terms such as “KB broke the rules; KB was not to be trusted; KB was disrespectful”. The problem with CB’s use of absolute terms, however, is that such terms invite examples of the claimed behavior. Despite being provided ample time to reflect, CB was not able to provide any legitimate example to support the claimed behavior occurring in the relevant time period. This aspect of his testimony was greatly troubling and negatively affected both the credibility and the reliability of CB’s evidence.

[237] More particularly, I find CB’s testimony as it relates to his stated reasons for not trusting KB, his stated reasons for the breakdown of his relationship with KB, and his stated reasons for reading KB’s journals, to be neither believable nor truthful. Despite CB’s ability to speak intelligently and articulately, his evidence as it relates to these issues, simply stated is non-sensical. For example:

1. CB testified that between 2015 and 2017 he did not trust KB. However, CB provided no example of KB’s behavior prior to 2015 that would warrant this loss of trust;

2. For the period following 2015, the only real example provided by CB was the oft-cited November 2016 Halloween party, but this party occurred almost a year after CB claimed he had lost complete trust in KB, and months after CB had “disowned” KB; and

3. CB could not point to any act by KB to warrant CB’s claims that KB was “difficult”, “disrespectful” or “untruthful”.

[238] As for the journals, CB’s stated reasons for reading KB’s journals was “to find out why KB did not trust him” and to “heal” the relationship. CB testified that he began secretly reading KB’s journals in 2015 which is many months prior to KB reportedly not trusting CB, but completely in sync with KB’s timeline of the commencement of the sexual abuse. CB continued to read KB’s journals into September 2017 claiming that he wanted to learn why KB didn’t trust him so he could rebuild “trust” with KB. This despite admitting that his reading of the journals constituted a significant breach of KB’s trust and further admitting that he knew that KB would not want him to read her journals. I accept the Crown’s theory that CB read the journals to ensure that KB did not write about the sexual abuse as the most likely and logical reason for CB to read the journals.

[239] A further area of CB’s testimony that I found to be particularly untruthful dealt with the “shirt check” for KB. CB testified that despite having initiated the shirt check, he never personally instituted the check as this would be “completely inappropriate”. When it was put to CB that he would look down KB’s shirt to carry out the test he adamantly responded “No, absolutely not”.

[240] However, both EB and KB testified that CB both initiated and carried out the shirt check by requiring KB to lean over in front of him while CB looked down KB’s shirt. When it was suggested to EB that CB never looked down KB’s shirt to conduct the test, EB simply stated “that is untrue”. I accept and prefer EB and KB’s testimony over the testimony of CB in this regard. I find CB’s very adamant denial that he would look down his daughter’s shirts to be untruthful and unsettling.

[241] Having considered CB’s evidence both in isolation and in the context of all evidence presented at trial, and without imputing any negative inference regarding CB’s demeanor and no positive or negative inference regarding the Edgar ruling statement, I find that CB is not a credible witness and his evidence as it relates to the material issues before the court is not reliable.

Credibility and the Reliability of KB’s Evidence

[242] In both her video-taped statement and at trial, KB was polite, soft spoken, and articulate. KB appeared to carefully reflect prior to answering questions and occasionally requested a moment before responding. In this manner KB appeared to be a considered and conscientious witness.

[243] During her testimony KB appeared to be comfortable and calm. She was incredibly careful and thoughtful when answering questions and providing her evidence. KB did not appear to exaggerate, nor did she become angry when pressed. Instead, if unsure of what was asked, KB would generally repeat the questions or suggestions put to her, ensure she understood what was asked, and then provide her response.

[244] KB was also incredibly poised and dignified. KB’s manner of speaking and her shared insights into CB’s behavior were quite mature for her age. However, when KB spoke of sexual matters, she revealed her youthful naiveite.

[245] The terminology and phrasing utilized by KB to describe certain sexual experiences seemed unrehearsed, raw, and organic. One example of this phrasing was when KB used the term “this weird buzzing” in response to a question allegedly posed by CB as to whether she had an orgasm. Another example is when KB was describing a discussion with CB several months after the alleged sexual assaults began. KB described the conversation as follows: “I’m like huh, it’s this, again. Right? Because I really did not like it, but he told me I had to do it…” To me, this re-telling seemed an authentic, unrehearsed response of a teenager.

[246] Other portions of KB’s testimony that exposed her naivete and youthfulness are those when KB discussed her concern that her father was “cheating” on her mother (with her), that she thought the sexual abuse was “morally wrong” but not “illegal”, that she advised her friends that her father “like liked her”, and that “the deal” “may sound silly but we have a very nice theater room”.

[247] KB testified that she did not think that the touching was right and “had never heard of such a thing occurring between a father and a daughter”. The description of the assaults and expressions used by KB in disclosing the allegations of sexual abuse were heartbreakingly simple, unpretentious, and haunting.

[248] KB withstood three days of cross-examination at trial and remained patient, polite, and attentive throughout.

[249] During cross-examination, KB was confronted with the fact that she recalled two incidents for the first time during the second day of cross-examination at the preliminary hearing (the hymen incident and a dog book incident).

[250] Defence counsel noted that after being asked if she could not recall any other incidents, KB requested “a moment” and after 45 seconds had elapsed, advised Defence of the further incidents. Defence counsel urged me to consider KB’s delay in disclosing the incidents, coupled with KB’s delay in answering the question, to be hallmarks of fabrication.

[251] Having carefully observed KB testify for four days, primarily during cross-examination, I cannot agree that KB’s behaviour reflects any attempt to engage in deceptive or false behavior.

[252] KB presented as highly intelligent and introspective. KB, similar to both parents, would, on occasion request “a moment” and after each requested “moment”, KB would provide a reasoned response that neither exaggerated her evidence nor amended it in any meaningful manner.

[253] Although KB’s response at the preliminary hearing did provide further incidents, KB’s explanation for the delayed disclosure was straightforward and logical. Further, and notably, the two newly recalled memories did not change the nature or complexity of the trial nor did they “ramp up” the charges.

[254] As for the reliability of her evidence, KB was quite specific as to where and when the touching took place. The sexual touching always occurred in the evenings and KB was consistent as to when the touching started, how it progressed, and when it stopped.

[255] The touching began during the summer of 2015 between grade 8 and grade 9, when she was 13 years old. The touching continued as “a lot of breast touching” in 2015 and escalated when she was in grade 10, with repeated attempts to have her engage in sexual intercourse, followed with all touching ending in the fall or winter of 2016, when she was 15 years old.

[256] KB was able to provide details of memorable events, including what she was wearing, what occurred, and conversations exchanged. This remained true even though she had pushed the memories away for years and tried not to remember.

[257] KB was able to provide details about the touching and other forms of sexual abuse suffered by her. However, for the most part, the abusive acts unfolded similarly and blended one into another as KB noted by her “Oh, it’s this again” testimony.

[258] KB was always clear that she was unsure of the specific timelines but had a good recollection of the general timelines when the events occurred.

[259] KB’s retelling of the incidents did not, in my view, result in material inconsistencies. Instead, KB recalled further details, but not many, that did not change the nature or complexity of the trial nor ramp up the charges and in my view were not significant. Further, KB’s explanation for recalling further events at the preliminary hearing and at trial were logically and adequately explained and completely believable.

[260] I found KB to be a credible witness who provided reliable evidence.

Credibility of EB and KV’s Evidence

[261] As for the evidence of EB and KV, I found both witnesses to be thoughtful, conscientious, and honest. Neither sought to exaggerate, nor did they seek to mold their evidence to favour either the complainant or the accused. Instead, both EB and KV provided their evidence in a forthright and careful manner. I find that both EB and KV were credible witnesses.

Reliability of EB’s Evidence

[262] As for the reliability of EB’s evidence, EB had no knowledge of the allegations of sexual assault. EB began dating CB in high school and married CB while in university. EB loved and trusted CB. After the children were born, EB stayed home at CB’s urging. EB had no knowledge of the family’s finances. CB controlled all aspects of the family, including the finances, the rules, and their daughter, KB.

[263] EB was both blind and (to quote KB) “naïve” to the events that were happening in her household. Although EB agreed with CB that through therapy they were able to “get on the same page parenting”, the truth is that they were parenting from different books.

[264] EB had no knowledge of the sexual assaults and did not initially believe KB. However, despite her “naivete” and utter lack of knowledge, EB provided material evidence that corroborated KB’s testimony and exposed core aspects of CB’s evidence to be false. Some of the more relevant portions of EB’s evidence is as follows:

1. KB initially slept with her door open but after a time began sleeping with her door closed;

2. KB initially watched movies in the home theater room and after a bit adamantly refused to watch movies in the theater room;

3. CB did not tell EB that he did not want KB to watch movies in the theater room;

4. CB enacted a shirt check for KB and CB was the person who required KB to lean down in front of him while he looked down her shirt;

5. CB handed over the parenting of KB to EB and told her (when KB was 15 and had never dated) “if she gets pregnant its’ your fault;

6. CB is the person who purchased Wonder Woman for KB “in an effort to make amends” – however CB did not give the movie to KB to watch on her laptop (even thought it was to be her birthday gift) and instead CB watched Wonder Woman on KB’s birthday in the movie room without KB;

7. KB did not seem upset by the new rules; and

8. KB was a gifted student, talented athlete, dedicated volunteer, who worked part-time throughout high school, who told the truth, did not break the rules, was not disrespectful, and was an “exceptional” daughter.

Reliability of KV’s Evidence

[265] Although I found KV to be a credible witness, I did not necessarily find that her evidence was reliable.

[266] To the extent that KV ‘s evidence differed from KB’s evidence, I note as follows:

1. KV was a busy associate pastor who also provided counselling services and varying programs for her congregation. KB was important to KV, but not her sole focus;

2. KV took no notes during or following any of her meetings with KB, including the disclosure meeting(s); and

3. On September 24, 2017, several hours following KB’s disclosure, KV met with Officer Ceci and provided a statement without having kept notes and without reviewing Ceci’s notes.

[267] In contrast to KV, KB is the person directly involved in the alleged assaults. KB’s life was directly and intimately involved in the alleged assaults. To the extent that KB’s evidence was capable of corroboration, and in places where it differed from KV’s evidence, KB’s evidence was corroborated by both EB and CB.

[268] For all of these reasons, despite finding KV to be a credible witness, to the extent that there exists any material difference in the evidence between KB and KV, I accept and prefer KB’s evidence over KV.

DISPOSITION AND CONCLUSIONS

[269] Based on my review of the entirety of the evidence presented at the trial of this matter I find as follows:

1. I do not believe the evidence of CB as it relates to material issues before the court;

2. I am not left in reasonable doubt by the evidence of CB as it relates to material issues before the court;

3. I believe the evidence of KB as it relates to material issues before the court; and

4. On the basis of the evidence that I do accept, I am convinced beyond a reasonable doubt by that evidence of the guilt of CB.

[270] Based on the totality of the evidence presented, I find in the circumstances of this case that the Crown has proven the guilt of CB for the offences charged beyond a reasonable doubt. Accordingly, there is a conviction to be entered on all counts.

Madam Justice S.J. Woodley

Released: September 17, 2020