R. v. P.M., 2020 ONSC 2259

R. v. P.M., 2020 ONSC 2259

COURT FILE NO.: CR-19-572-00

DATE: 2020 04 16

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Her Majesty The Queen

Applicant

– and –

P. M.

Defendant

J. Forward, for the Crown

L. Gensey, for the Defendant

HEARD: February 4,5,6,7 and 10, 2020

Justice G.D. Lemon

JUDGMENT

The Issue

1P.M. is charged with sexual assault, sexual exploitation, sexual interference, invitation to sexual touching and voyeurism. All of the charges relate to his stepdaughter, K.D. The first four charges are alleged to have occurred between January 20, 2008, and July 1, 2017. The count with respect to voyeurism is alleged to have occurred between January 20, 2013, and January 19, 2014.

The Evidence

2Much of the background information is not in dispute. I will summarize the family history to provide context to the rest of the evidence. The use of initials of the various witnesses will be confusing, so I have made up names for the witnesses and family members.

3P.M. (Peter) is married to J.M. (Judy) and has been so since June of 2007.

4Peter has two daughters from a prior marriage. They are S.M. (Susan) who was born […], 1998 and is now age 21; and J.M. (Janet) who was born […], 2000 and is now age 20.

5Judy has two children from a prior marriage. The complainant, K.D. (Karen) was born […], 2001, and is now 19. S.D. (Stephen) is now approximately 21.

6Before Peter and Judy married, Judy was residing on Woodlawn Road in Guelph with Karen and Stephen. Peter resided in a separate residence and had access to Susan and Janet on every other weekend and some further holiday time.

7After Peter and Judy married in 2007, the family moved to Rhonda Road in Guelph. Susan and Janet came to that home for weekend access. There, the three girls shared a room.

8Approximately 18 months later, the family moved to Elmira Road in Guelph. There, Karen had her own room, but Janet sometimes stayed in Karen’s room with Karen.

9The fourth home in the family history is Eastview Road in Guelph. The family moved there in ­­­­­­­­­­March of 2013. Once again, Karen shared her room with Susan and Janet when they came for access visits. This was a two-story residence with an open-concept main floor.

10In May of 2017, Susan moved into the home on a full-time basis.

11These charges were laid in March of 2018.

12The Crown also called Peter’s brother, M.M. (Martin). He and Peter had worked together at different times and in different roles in the family business in Guelph.

13The Crown relied on all of the allegations to support each of the counts; however, the evidence can be summarized into separate headings. I have summarized the Crown and defence evidence under those headings.

1. General Allegations

14Karen described many events of sexual abuse. All are denied by Peter.

Karen

15Karen recalls being touched inappropriately for the first time when she was five or six years old. This was at her mother’s residence on Woodlawn Avenue before they were married. At first, she says Peter touched her on her vagina. She is not sure where this occurred, but it may have been in her mother’s bedroom. He reached up her leg to her vagina. She does not remember what she was doing or how she was feeling or how long it lasted.

16This type of activity continued until they moved to a home on Rhonda Road where they lived for approximately 18 months. Karen was six or seven at the time. It was only sexual touching at first, but it occurred about three times per month on the bed in both her own bedroom and Judy and Peter’s bedroom.

17This form of abuse occurred when Susan and Janet were in the bedroom at the same time. They were both awake and watching TV. More often, it occurred when she and Peter were alone. She could not remember how often Susan and Janet were present when Peter did these things.

18When Karen was seven or eight years old, Peter began to penetrate her with his fingers. It was painful to her and this continued for three or four years. She estimated that about a third of the incidents of sexual touching during this period included digital penetration that would last for approximately five minutes. She did not understand what was happening and could not find words to describe it at that time. It would end when she pushed Peter away with her feet when it became too painful.

19This conduct elevated to oral sex when she was approximately seven or eight. That act would go on for 5 to 15 minutes. She was generally asleep when he came into her room. She woke up when she realized that she was being touched but she pretended to be asleep every time. She never let him know that she was awake, but she moved or pulled away from him.

20When she went to bed, she wore pajamas, a nightgown or a T-shirt and underwear. She always had something on. He would move her clothing aside or remove one leg of her bottoms or her entire pajama bottoms.

21He would be both over her blankets and under. Sometimes, he would be on his knees on the floor and touching her from beside the bed. He said nothing to her. When it occurred, she was scared and knew that it was not normal. She was confused.

22This conduct went on until she was nine or ten. By then, he penetrated her with his penis. This occurred in both Peter’s room and her bedroom. She slept in his bedroom when she was younger and had nightmares. Her mother was either in the bed with her or on the love seat beside the bed when some of these things occurred. He touched her sexually while her mother slept on a loveseat beside the bed. The loveseat was 2 feet away from the bed.

23Karen did not tell anyone about these assaults that occurred in the bedroom with her mother present until her evidence at trial. She is not sure what age she was when she was sleeping in her parents’ bed between them, but it may have been when she was 11 or 12. All three people would be in bed together and she would be in between her parents. At that time, Peter touched her vagina under and over her clothing. She did not know how long it went on and she did not recall if her mother was awake.

24Karen estimates that Peter penetrated her with his penis four to five times per month for over 100 times. These events mostly occurred in her bedroom late at night when everyone else was asleep. This would be from 2:00 a.m. to 6:00 or 7:00 a.m. She got ready for school between 7:00 or 7:30 a.m. and her mother would be up around the same time. Susan and Janet were also present sometimes. She was not sure if they were awake or asleep.

25She was always asleep to start with but would awaken to find her bedroom door open with Peter kneeling on top of her or on the floor beside the bed. He would then perform oral sex on her or penetrate her or both.

26When he was on the bed, her back would be on the bed and pulled up on his thighs while he was on his knees on the bed. Alternatively, he would pull her to the side of the bed while he was on the floor. He was generally on his knees but other times he was laying on her bed. She found this uncomfortable, sometimes painful and it would usually last from 5 to 45 minutes. She was scared but pretended to be asleep. She would pull or push him away to get him to stop. Sometimes she would be successful and sometimes not.

27When these were going on, there was no conversation between the two of them. In hindsight, she believed that she made him aware that she was awake by moving around and pulling away from him with her body, feet or legs.

28On one occasion while they were residing at Elmira Road, Peter ejaculated on her stomach. She did not know what it was and thought that he had “peed on” her. He wiped it off her stomach with something, but she did not see what he used and could not find it afterwards.

29When she was 10 or 11 and developed breasts, he fondled them with his hands. She cannot say how often this occurred.

30On some occasions, Susan or Janet (or both) were present. These events also occurred during the day when all three were watching TV. Susan and Janet did not notice what was going on, even when the events went on for 45 minutes.

31She agreed that these activities in front of the other members of the family were “brazen.”

32This activity occurred 4 or 5 times per month until she was 16. She then confronted Peter and it slowed down. It stopped altogether when Susan moved into the house in May 2017.

33She did not have any injuries from this conduct. She acknowledged that Peter is 6 foot 5 inches tall and 250 to 300 pounds and the abuse by sexual penetration started when she was nine. She did not have any injuries that required her to seek medical attention.

Janet

34Peter’s daughter, Janet, gave evidence for the Crown. She said that she and Karen would be three feet apart when the two slept in the same bed. She never saw her father touch Karen and did not observe him in Karen’s room for unexplained reasons.

35On one occasion, Karen disclosed to her that Peter “came in in the middle of the night and licked her vagina.” Karen was five or six at the time. It was in the first house after Peter and Judy were married. The girls were in a shared room at the time. In response, Janet said “oh, okay.” They had no conversation like that again. She thought that “it was gross.”

36She did not understand what Karen had told her and did not think about it again. In her police statement of April 2018, she said that she did not originally believe what Karen had told her. She is adamant, however, that Karen told her this. She remembered this after Stephen told her that her father was arrested.

37She testified that Judy drank a lot of beer, but she did not know what "intoxicated” looks like. Janet usually went to bed at 9:00 or 10:00 p.m. and Peter and Judy were still awake. She does not know what time they went to bed.

Martin

38The Crown also called Peter’s brother, M.M (Martin). Martin and Peter had worked together at different times and in different roles in the family business in Guelph. Since the charges were laid, Peter has not been employed there.

39Martin was aware that Judy drank. He had seen her intoxicated on rare occasions. He knew that she was drinking every day and it was a considerable amount. He cannot tell how often. He saw Judy intoxicated in the summer in her backyard. He also observed her with hangovers at work on a weekly basis.

40After the charges were laid, Martin surreptitiously taped a conversation with Peter in the apparent hope to obtain evidence against Peter.

Peter

41Peter denied that he went into Karen’s room and sexually assaulted her or touched her inappropriately. He denied that these events had occurred in any fashion.

42He agreed that he treated Karen as his own daughter and raised her as such. He had a bond with her, and they were very close. He agreed that he would occasionally rub her back. He was, at times, in her room and alone with her. He would go in to turn off the TV after she had fallen asleep or put her clothes in the room when he did the laundry. He would not check on her at nights unless she was sick.

43The two of them were physically affectionate until she was 13 or 14 when she would no longer sit on the couch or chair with him. In his words, it was an “appropriate physical relationship.”

44From 2007 until the time of his arrest, he and Judy slept in the same bed in the same room. They usually went to bed at the same time – between midnight and 1 a.m. Judy would get up at 7:00 a.m. to get the children ready for school, but he got up approximately 8:00 or 8:30 a.m. in the morning.

45Peter said the children did not sleep with them but may have watched TV in his and Judy’s room for Saturday morning cartoons. Otherwise, the children did not watch TV in Judy and Peter’s room.

46Peter admitted there was one time that Karen had nightmares and slept on the floor in their room for one or two nights. This was when she was 12 and they lived at the Eastview residence. Karen did not sleep in bed with them and Judy did not sleep on a loveseat. If Karen had bad dreams, she would come to their room and wake up Judy who would then take her back to her own bed. Karen did not spend time in their bed.

47Judy drank beer on the weekend, but he had no concerns about her drinking. She has been intoxicated on birthdays, New Year’s, and similar social occasions about five or six times a year. She would get “tipsy” but not “passing out drunk.” He denied that she would go to work hungover. Judy is neither an alcoholic nor a deep sleeper.

48When Susan moved in to the home in May 2017, there were no problems in his relationship with Karen. Within four weeks of Susan’s arrival, however, Peter said his relationship with Karen “fell down” unexpectedly. He did not know what Karen’s reaction would be to Susan moving into the house ahead of the move.

49The Crown agreed that, pursuant to R. v. Edgar, 2010 ONCA 529, Peter could be asked about statements he made when confronted with these allegations.

50Peter was arrested March 14, 2018. He was on his way home from work and was pulled over on the side of the street. When he was presented with the charges at the side of the street, he said, twice, that he was innocent. He was shocked, confused and had no idea what to think. He also denied the allegations in his statement to the police.

51He has no disabilities, but he does have knee pain from all of the deliveries that he has made for the family business. He is not comfortable sitting on the ground.

52His relationship with Martin has been up and down. They were not getting along at the time of the allegations and their relationship has since deteriorated further. After his arrest, Martin visited him and surreptitiously recorded their conversations. At that time, he told Martin that it was two years before when Karen had come forward with the allegations.

Judy

53Judy and Peter shared a bedroom. They usually went to bed together between midnight and 2 a.m. She got up at 7:00 a.m. and he got up between 8:30 and 8:45 a.m. She did not recall Peter ever being up in the morning when Karen was still there before going to school.

54Judy testified that she is a light sleeper. She does not remember Peter being up in the night for prolonged periods and says she would have noticed if he had done so.

55If any of the children had a nightmare, the parents would place a mattress on the floor of their bedroom. Karen came in one night after a nightmare when she was about 11 when the family lived on Elmira Road. Karen was allowed to sleep on the floor but not allowed to sleep in the bed with them. Although there was a loveseat in the bedroom, Judy did not sleep on it.

56Peter did not leave work to get the children from school.

57Although she drinks, it has never been an issue. She would have two to four beers after work during the week, depending on the day. It relaxed her but did not make her sleepy. After drinking, she says she did not sleep heavily. She has been intoxicated and has gone to work hungover but not regularly. She has not drunk alcohol to the point of blacking out. Alcohol has not affected her care of the children.

58She also testified that Peter has bad knees as a result of his work.

59Peter did not go into Karen’s room except to bring her supper or lunch. He did not go in to take her laundry or to turn off the TV. He did not put her to bed. He did not go into the room casually that she could recall.

60It is possible that Peter got out of bed in the night, but she said she would notice when this occurred. He would go to the bathroom and she would lay awake for him to come back. When they came home from work, they were always in sight of each other except when he went to the bathroom.

2. Nova Scotia

Karen

61On another occasion, Karen came home from Nova Scotia after visiting her biological father in August 2010. She was nine years old at the time and had been there for four weeks.

62The whole family was at home and she laid down on the couch in the living room with Peter. They had been watching TV. He was on his back facing the TV and Karen’s back was to the wall, laying against his side.

63He put his hands down the back of her pants and tried to get his hands down the front. This incident lasted for 20 minutes. She cannot remember if he was successful in reaching her vagina, but she says he squeezed her buttocks. They said nothing to each other.

64Janet, Susan and Stephen were in the room and wanted to play with her. Janet and Susan were in and out of the room, but she does not know how long they were there.

65Peter then picked her up and took her to her bedroom. She does not remember if anything happened there.

Peter

66Peter agreed that Karen took two trips to see her father in Nova Scotia and Stephen went with her. He does not recall anything unusual occurring when they came back or the circumstances around it. He denied sexually assaulting Karen as she described or in any other way.

Judy

67When the children came home from Nova Scotia, she remembered waiting for them in the driveway. Karen was tired from the drive and was under the influence of codeine given to her by her biological father to sedate her for the drive. She does not recall if Susan and Janet were there. When they came home, she cuddled with the two children and Peter sat in the chair beside them. She remembers nothing unusual about Karen’s behaviour.

68Karen lay down on the couch after being on the large chair with Judy. She moved to the couch to sleep while all of the family were in the room. The members of the family may have moved about the home from time to time.

3. Blackberry Recording

Karen

69On another occasion in 2012, Karen was getting ready for school at the Elmira Road house. She was in grade 5 at this time and got up around 7:00 a.m. She came out of the washroom after her shower and sat down on her bed. She looked to her right and saw a flashing red light. She looked closer at it and recognized it as Peter’s cell phone.

70The phone was on a shelf in her bedroom in a cup holder. It was facing out to the bedroom. There may have been stuffed animals obstructing her view of the phone. The red flashing light was a recording light not a notification light. She looked at the screen and it may have been recording for 1 minute and 46 seconds. She had been in her room for at least a minute.

71She stopped the recording and deleted what was there without seeing the recording. She agreed that she said at the preliminary inquiry that she saw what was on it but corrected herself shortly afterwards at the preliminary inquiry.

72While she did not look at what it showed, it would have shown her on her bed. She had taken off her towel before she saw the flashing red light. The door to her room had been open when she came from the bathroom, but she closed it in order to change.

73She put the phone on her bed while she got ready and left it on a bookcase at the top of the stairs before she went to school. She left it on the bookcase because she did not want to confront Peter in his bedroom at the time and did not know “where that would lead.” When she returned from school, the phone was no longer there.

74She knew it was Peter’s phone because she played games on it. It was a Blackberry 9900. It had the same background wallpaper as Peter’s. Her mother had another Blackberry 9900, but hers was white and there were no other similar phones in the home. The other children used the phone to play games. Stephen was in the house, but they were not allowed to use the phone when they were getting ready for school.

75This occurred before she went to school. She did not see Peter before or after she found the phone. She denied that it would be difficult for him to do this and avoid others. Her mother and Stephen were up at the same time. She showed no one the phone and told no one about it. She made no mention of it until her police statement. She denied that this evidence was fabricated.

76She could not deny that Peter got up later than her but seemed to agree that she did not see him before she left for school.

Martin

77Between 2013 and 2014, Peter owned Blackberrys. He saw the business expenses for them. Peter had a Curve, a Bold and a Passport.

Peter

78Peter denied attempting to take any videos of Karen. He admitted to owning a Blackberry Curve in the years 2011 to 2012, however.

79He got up after the children. He cannot remember being up before 8:00 or 8:30 a.m. He does not recall seeing Karen going to or from the shower. There was nothing stopping him from going in to her room.

Judy

80Peter had a black Blackberry, but Karen played games on Judy’s Blackberry. Judy does not remember if Karen played games on Peter’s Blackberry but there was no rule that she could not.

4. Camping

Karen

81Another incident occurred when the family was camping in Alliston. It occurred on a rainy afternoon in 2012 when Karen was probably 11. They had a “13-man tent,” so she, Judy, Peter, Stephen, Susan and Janet were watching a movie on TV in the tent.

82Her parents were laying on a queen-size air mattress and the four children were on their stomachs in front of them and watching the show. Her mother was asleep.

83She had on a sundress and Peter reached up under her dress along her leg and touched her vagina. He had moved her underwear to the side. This went on for 5 to 10 minutes until she got up and went outside to visit another campsite across the road.

84She agreed that this occurred in front of others and family members would have been witnesses if they had seen it. None of the children were facing in the same direction but were in close proximity. Peter and her mother were a couple of inches away from her. Her feet were inches from the mattress as were the rest of the children.

Janet

85Janet did not see anything like this or anything inappropriate when the family was camping.

Peter

86Peter agreed that the family went on camping trips once a year for six or seven years. He agreed that they were at the Alliston campground in 2012 or 2013. He agreed that all six of them were together and they stayed for a week. He agreed that they had two tents and one of the tents was the large tent described by Karen.

87He and Judy slept on a queen-sized air bed which was 18-inches high. He would lay on his side to watch TV, otherwise his head would be “cranked back.”

88If Judy was not watching TV with them, he would be with her.

89There was no consistency on how the girls would be sitting but Stephen would always sit near the television. He agreed that, if he were on the bed as Karen described, he would be able to reach her.

90He denied that he sexually assaulted Karen while they were camping. He does not remember her getting up and going out on her own. She would not be able to do so without saying where she was going.

Judy

91Judy said the family went camping once a year and that they once went to Alliston. If it was raining, they would be in the tent watching TV. She would be on the queen-size mattress closest to the exit. The children were not allowed to leave the campsite without permission or without other children with them. She had no concerns from her observations about Karen and Peter.

92When they were camping, the children could never leave without saying where they were going. When they watched TV, she was always in front of Peter. She cannot remember sleeping through the day.

5. Drive In

Karen

93The drive-in incident occurred in the summer of 2012 when Karen was 11. She, Susan, Janet and Peter went in the family van to see the movie “Brave.” The van was parked close to the concession stand and the bathroom. There was a lot of foot traffic near the vehicle, but the movie was already underway when the abuse occurred.

94When the four of them arrived, the back seats were removed from the van, and the middle seats were turned around to see out the back of the van toward the screen. She and Peter were laying on the back floor watching the movie. She is not sure whether Susan and Janet were sitting behind them in the van or outside the van on the seats that had been removed. In her statement to the police and at the preliminary inquiry, she said that the girls were sitting in the van, but she was unsure at trial. If they were outside, the seats would have been against the back bumper of the van.

95During the movie, she fell asleep after 9 p.m. She was under blankets in the back of the van. While she cannot remember exactly whether Peter slid over to her or pulled her to him, somehow, they ended up together in the middle of the van. She woke to feel Peter pulling her “bottom half” towards him. He then reached down her pants and touched her vagina. Her head was under the blanket. He then penetrated her with his penis. He then moved her head down for her to perform oral sex on him, which she did for 10 minutes. When he did this, she was limp, and he was using his hand to move her head and also thrusting towards her. The bottom half of his body was under the blankets. The entire episode took about 45 minutes. While this was going on, Janet and Susan were watching the movie. There were probably people walking by. She does not remember how it ended but said he did not ejaculate.

96She pretended to be asleep throughout this abuse. She had no safe place to go and it would have been awkward to show that she was awake.

97She does not know what the other two sisters saw. Peter said nothing to her at the time or later.

Janet

98She did not see any inappropriate touching at the drive-in, and she remembers seeing “Brave” at the drive-in.

99When the family went to the drive-in, they used lawn chairs to watch the movie and they were almost always against the back bumper. She does not remember taking the seats out. However, when all of the seats are down, there was room for Peter in the back of the van. When they removed the back bench, the two captain’s seats could turn around, but her father sat on the floor of the van.

Peter

100He agreed that they quite often went to the drive-in; perhaps two or three times each summer. They drove a 2004 Dodge Grand Caravan minivan. He does not recall going only with the three girls, but said it is possible. He parked the van in reverse by the concession stand so that the children would be able to go to the washroom and the concession stand.

101While they had no usual plan where each would sit, the backbench was usually taken out and put against the back of the van. Lawn chairs were also set out and the captain’s chairs were turned around. He sat in either the lawn chairs or the captain’s chairs. He was able to see the screen from the captain’s chairs because of how the vehicle was raised up on its rear tires at the drive-in. Although the movie would be after dark, the screen would light up the vehicle.

102He did not lay down in the vehicle because there was not enough room. The back of the van was approximately 4½ to 5 feet in length and it would not be comfortable for him to sit on the floor. He is 6’4” or 6’5”. His weight has fluctuated over time between 275 pounds and 310 pounds.

103He denied ever touching Karen inappropriately as she described.

Judy

104The family usually went to the drive-in once a month in the summer. They had a Dodge Grand Caravan. When they took the seats out, the van was too short for her to lay comfortably and Peter could not lay in it at all.

6.Concussion

Karen

105In September 2014, Karen was pushed off a rock at her school. She hit her head and hurt her wrist. As a result of her fall, she had a mild concussion. She had a headache, dizziness, nausea, a slight short-term memory issue and some confusion. She was “mentally slowed down.”

106Peter picked her up from school and took her home to the Eastview home. She was picked up after the first recess, at approximately 11 a.m. It was not unusual for Peter to pick her up at school. She and Peter were then alone for the day and she remained in the living room throughout that day. Stephen came home at 3:30 p.m. and her mother came home between 5:00 and 5:30 p.m.

107Because she had a concussion, she and Peter were going through the “concussion protocol.” She had fallen asleep on the living room couch at home and woke up to find that Peter was performing oral sex on her. One leg was taken out of her pants when she woke up.

108She then fell asleep and when she woke up again, he was penetrating her with his penis. She was diagonal across the couch, and he was kneeling beside it. She had one leg on the couch and one leg off the couch. She did not know how long it lasted. She eventually pushed him away with her legs and feet and rolled over and the abuse came to an end.

109Afterwards, she was taken to the hospital for her concussion.

110She denied that her mother picked her up from school. She is certain that her mother did not pick her up. Rather, her mother took her to the hospital after she returned from work.

Peter

111Judy called him about the concussion incident when he was at work. He believes that this occurred on a Monday and that she was off work that day. In any event, Judy normally picked Karen up because she was her mother and it was easier for her to take time off work. Peter preferred to stay at work.

112If Karen or Stephen were hurt, Judy would be the first to be called, her mother and father second, her brother third and he was last, based on his availability. He does not remember picking up Karen in the middle of the day although he would occasionally pick up Stephen on his way home from work. Although he was authorized to pick Karen up from school, he did not do so.

113At no time did he take Karen alone to the hospital. He denied sexually abusing Karen. He did not watch Karen that day but was home that evening. He has no recollection of what occurred when he arrived or if she was sleeping. He had no idea where she was when he came home. He believes that he and Judy went to play darts that evening.

Judy

114Judy was called in September 2014 to pick Karen up at school. She was not working that day. Karen was dizzy and Judy took her out to eat and then took her to the hospital. They were at the hospital for about an hour and a half and Karen was placed on a concussion assessment. Peter was at work, so she contacted him by text and phone call.

115She took Karen home and made sure that she did not fall asleep while she was laying on the couch. They sat in the front room and talked. Peter got home about 6:15 or 6:30 p.m. They went to darts after arranging a babysitter for Stephen.

116Judy picked the children up from school. If she was not available, her mother, father, or brother would do so because they did not work. Peter was the last choice.

117Peter did not leave work to get the children from work. She cannot recall Karen being picked up by Peter. Karen had many concussions and Judy picked her up from school every time. To Judy, “my kids are number one” At no time did Peter take Karen to the hospital on his own. Karen’s concussions did not affect her memory.

7.MRI

Karen

118In March 2015, while they were living at the Eastview home, Karen broke her wrist. She attended at the hospital in Guelph with her parents and the child that she had been babysitting. She had to have an MRI and took Ativan for claustrophobia. She had not taken Ativan before.

119She agreed that, on the way home, she talked about a trip to China and tried to take her clothes off. She was feeling the side effects of the drugs and did not “have a clue” why she was trying to take her clothes off.

120When she arrived home, she was asleep. Peter had carried her in his arms from the truck to the living room. When she got home, she was “loopy.”

121She sat with her mother in a large chair until her mother went to work around 5 a.m. When her mother went to work, she moved to the couch. She did not stay in the chair. She cannot recall if she was awake when her mother returned from work.

122Peter was at home while her mother was at work. She was asleep on the couch in the living room and woke to find that he was carrying on the usual sex acts of oral sex, penetration with his finger and with his penis. She was wearing yoga pants and a grey sweater. Her sweater had been pushed up and one leg of her pants had been pulled off.

123At trial, she remembered that she was wearing hospital scrub pants and a grey sweater. She was not wearing black yoga pants. She denied stashing the scrubs in her backpack and wearing her clothes home.

124She agreed that in her statement of March 2, 2019, she only described oral sex and not penetration.

125She does not know how long this went on, but she would “like to say” 20 minutes. Nothing was said between them. It came to an end when Stephen came down the stairs and Peter threw a blanket over her and got up. She then went upstairs to her bedroom.

126She agreed that in her police statement of March 2, 2019, she said that this event ended when she moved away and there was no mention of Stephen. She agreed that this was inconsistent. She remembers, however, that Stephen was at home and interrupted what was going on.

127She denied that she spent the day in the chair watching TV with Stephen and Peter.

Peter

128Peter agreed that Karen went for an MRI in early 2015. This was to examine her wrist. Since Karen was nervous, the doctor gave her an Ativan. She took one and then another just before the MRI. He waited with the girl that Karen was to babysit while Karen and her mother went for the MRI.

129When Karen came out, she was “loopy” and “out of sorts.” Karen had been provided with scrub pants. She thought it would be if funny to steal her scrub pants and she put them in her backpack. They were disposable pants and, while he and Judy did not agree with Karen, they did not want to make a big deal out of it. Karen was not wearing them home.

130On the trip back to the house, Karen was talking about taking a trip to China and wanted to take her clothes off. They dissuaded her from doing so. He was able to carry her into the house but had a bit of a problem since she was “120 pounds of dead weight.”

131They arrived at the house in midafternoon and Karen and her mother sat in a large chair. Karen was in and out of consciousness. Stephen was concerned about her and sat beside her. Judy went to work at approximately 6:00 p.m. He and Stephen watched YouTube videos with Karen until Judy returned at approximately 10:30 or 11:00 p.m.

132He and Stephen remained in the room except to leave from time to time for snacks or the washroom. He does not remember that Karen was ever on the couch but only on the chair and ottoman. She was not alone for any prolonged period of time.

133He denied that he sexually abused her in any fashion.

Judy

134The MRI occurred when Karen was 13. Karen was on Ativan and was confused and unable to walk. After the MRI, Karen changed out of her hospital scrubs. Judy thinks that she took the scrubs back to the hospital. Peter carried her into the house.

135When they came back to the house, Stephen was protective of Karen. She only saw Karen on the large chair. She did not see Karen on the couch. When she left for work, Karen was still in the chair. She checked from time to time from work. She got home at 11:00 p.m. and all were still in the living room. Karen was still on the large chair.

136Stephen is unable to sit for very long in one room.

8.Confrontation

Karen

137Karen testified that she may have told her mother about this abuse in 2013 or 2014 but believes that it was most likely in 2015. She told her mother another time, but she cannot remember the details of what she said.

138On the day she confronted Peter, he had just assaulted her over a longer duration, and she was terrified of him. He left her bedroom at approximately 2 a.m. She got up and went to the living room and sat on the couch, crying. She called to her mother on her cell phone, but her mother did not answer her cell. She then phoned to her mother to the house phone. When her mother answered, Karen asked her mother to come to the living room to speak with her.

139When Judy came to the living room, Karen told Judy what had happened. Her mother denied that it had occurred and called Peter down to the living room. He too denied it and said he was sleeping. He suggested that they put a lock on her door to make her comfortable. Judy and Peter both said that it was a dream. They went back to bed, but she stayed on the couch. No lock was ever put on her door and she did not press that. She felt defeated and hurt that her mother thought she was dreaming.

140When she disclosed, she does not remember what acts she alleged but it was along the lines of sexual touching. In cross-examination, she confirmed that she said who did it and denied that she said that it was “someone big.” She did provide details and was not pushed to obtain information. She denies that they said that her parents had been downstairs watching TV.

141Judy and Karen were both part of the conversation when Peter suggested putting a lock on her door. Her mother was not concerned about a fire risk and agreed to the lock as well. However, they did not follow-up on the lock and Judy did not reject the idea.

142Her mother did not suggest following up with a counsellor, a doctor, the police or other support. She told the police that she could not remember what she told her parents.

143She thinks she disclosed to her mother another time in November 2017. Her mother asked why Karen hated Peter so much and she told her what occurred. She believes that this occurred at the Eastview residence.

144Karen denied that she told her mother only when Susan first moved into the house in 2017. She denied that she had a fight with Susan. She also denied that Peter took Susan’s side and that she stayed in her room for a couple of hours. She denied that she texted her mother to come up to the bedroom and then Peter came up to the bedroom. She said this confrontation did not occur in the bedroom.

Peter

145Peter testified that the confrontation occurred after Susan moved into the house in May 2017. He remembered that it was after a Wednesday dinner because that was garbage night. Karen was getting the garbage ready and there was an argument between her and Susan. He and Judy were watching TV at the time. He raised his voice to Karen, and she went upstairs to her room.

146At approximately 11:30 p.m. that night, Peter was still watching TV with Judy. Karen sent a text to her mother for her to come and speak with her. It was odd for Karen to still be up at that hour. Approximately 20 or 30 minutes later, Judy called Peter to come up.

147Judy asked if he had been in the room that night and he said no. She asked if he had touched her and he said no, he had been watching TV. Karen did not give many details other than to say that she had been touched inappropriately. He was not told by Judy what she had said before he arrived. Their discussion went on for 15 or 20 minutes.

148He and Judy asked Karen for more details, but she was vague and gave no details. He was shocked, sad and did not know how to react. He did not lose his temper. He did, however, take what she said seriously. He offered to put a lock on the door because something was making her insecure and upset.

149They spoke to Karen about what she wanted to do. She did not want to go to the police, to the doctor or get counselling. He suggested putting a lock on the door, but Judy was not in favour of that. There was no reaction from Karen.

150He proposed a lock the next day as well; however, Judy was still against it and Karen was not interested. Again, they offered counselling, but Karen did not respond. She did not seem to be interested in either suggestion.

151He and Judy talked about what to do and about how to deal with it. They wanted her to get some help or to speak with someone. He left it to Judy and Karen to follow up. The topic was not raised again before Karen went to the police in 2018.

152Although he told the police that this confrontation occurred in 2016, he was mistaken. He had been arrested and was in jail. He was being interrogated for crimes that he said he did not commit.

153Although he knew for days ahead that Karen had gone to the police, he had only vague information other than it was something about sexual touching. He had no other idea of the allegations and it was a surprise that he was arrested. He thought that the police would come to talk to him. As a layman, he thought that there would be some sort of investigation after Karen’s statements. He thought that they would speak with Judy. Instead, all he knew were vague allegations.

Judy

154Karen disclosed to her in 2016 or 2017. The first time, Judy was watching television with Peter when Karen texted her. She went upstairs and Karen told her that someone was touching her. She would not say who or when and would not give any details. Judy suggested that Karen see a doctor, or a school counsellor but Karen declined.

155She then went downstairs to speak with Peter who asked who it was. They both went back upstairs, and Karen was lying on her bed. Again, she was asked who, but she would not say anything. She does not recall anything else of the conversation.

156She and Karen talked again later, and Judy suggested going to a counsellor, but Karen said no. She would not say who did it. Karen was very closed off. She did not agree to going to the police, to a counsellor or to any of her friends to talk.

157They did discuss getting a lock on the door. It was Peter’s idea but neither she nor Karen liked that idea.

158The second time was in 2017 after her fight with Peter about the garbage. She was tucking Karen into bed and Karen told her that Peter was touching her inappropriately. She confronted Peter and he denied it.

159She agreed that, in her police statement, she had no recollection of a discussion about a lock on the door with Karen. She remembered that afterwards.

160In her statement to the police, she said that Peter was “beside himself” over the allegations when first raised by Karen.

Authorities

161The principles of law to apply here are well known to the lawyers. Here, I hope to explain those principles to Peter and Karen.

Presumption of Innocence

162Peter begins the trial with the presumption of innocence. The Crown carries the burden of displacing that presumption with proof beyond a reasonable doubt that Peter committed the crimes with which he is charged.

163In R. v. Nyznik, 2017 ONSC 4392, Molloy J. said:

17 Although the slogan "Believe the victim" has become popularized of late, it has no place in a criminal trial. To approach a trial with the assumption that the complainant is telling the truth is the equivalent of imposing a presumption of guilt on the person accused of sexual assault and then placing a burden on him to prove his innocence. That is antithetical to the fundamental principles of justice enshrined in our constitution and the values underlying our free and democratic society.

164A reasonable doubt is not an imaginary, far-fetched or frivolous doubt or one based on sympathy for or prejudice against anyone in the trial. It is a doubt based on reason and common sense. It is a doubt that logically arises from the evidence or absence of evidence. It is not enough if I believe that Peter is probably or likely guilty. Probable or likely guilt is not proof beyond a reasonable doubt.

165At the same time, it is nearly impossible to prove something with absolute certainty. If, after considering all of the evidence, I am sure that Peter committed the offence, then I will be satisfied of proof of the offence beyond a reasonable doubt and must convict. However, if after considering all of the evidence or the lack of evidence, I am not sure that Peter committed the offence, then I must find him not guilty, because the Crown will have failed to satisfy the burden of proof beyond a reasonable doubt.

Peter’s Evidence

166Since Peter chose to testify, I must also consider his evidence in relation to all of the other evidence. This is not simply a matter of choosing one witness over another.

167First, in most cases, if I believe the accused’s evidence that he or she did not commit an offence, I must find him or her not guilty. Second, even if I do not believe the defence evidence but it leaves me with a reasonable doubt, then I must find the accused not guilty. Third, even if I do not accept the defence evidence or it does not leave me with a reasonable doubt, I may convict only if I am satisfied beyond a reasonable doubt that he or she committed the offence based on the evidence that I do accept.

Karen’s Evidence

168In some cases, an accused’s evidence may be rejected when “stacked” beside other evidence. In R. v. J.J.R.D., (2006), 2006 CanLII 40088 (ON CA), 215 C.C.C. (3d) 252 (Ont. C.A.), at para. 53, Doherty J.A. said:

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

169In R. v. D.D., 2000 SCC 43, at para. 65, the Supreme Court of Canada confirmed that:

A trial judge should recognize and so instruct a jury that there is no inviolable rule on how people who are the victims of trauma like a 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. A delay in disclosure, standing alone, will never give rise to an adverse inference against the credibility of the complainant.

170I acknowledge the law as set out by Di Luca J. in R. v. T.G., 2018 ONSC 3847, that:

28I also instruct myself to keep in mind that [the complainant] testified before me as an adult, remembering things that primarily occurred when she was a child. She was asked many questions regarding the details of the various incidents, including specific recollections of times, dates and places. Where an adult witness testifies about things that happened during childhood, vagueness or uncertainty on minor or peripheral details is not unexpected, and does not necessarily detract from credibility and reliability in the same way as when an adult witness testifies about things that happened during adulthood. That said, on central and important issues, [ the complainant]’s evidence is to be assessed in accordance with her age at trial.[Citations removed]

Analysis

171The defence submits that the evidence is such that I should have a reasonable doubt and find Peter not guilty. The Crown, however, submits that I should find the evidence of Karen persuasive and should reject the defence evidence outright.

172To commence such an analysis, I start with uncontested facts or the givens within the Crown’s case.

a. The Crown does not rely on similar fact evidence between each count. Rather, the Crown submits that all of the evidence relates to each of the counts, other than the voyeurism count which stands on its own evidence.

b. All three houses in which these offences occurred were small.

c. Some of the allegations occurred when Karen’s sisters were in the same room or area and awake.

d. The Crown witness, Janet, testified that she was not aware of any of these events occurring in the home, camping tent or at the drive-in.

e. There is uncontradicted evidence that Peter is 6’5” and weighed between 275 and 315 pounds over the relevant period. He would be a significant presence in the house or any room in the house.

f. Although Peter’s brother, Martin, gave evidence for the Crown, neither party relied upon his evidence in submissions and the Crown specifically (and wisely) conceded that she was not relying on Martin’s evidence. It seemed that Martin was principally there to give evidence of Judy’s use or abuse of alcohol. That evidence, such as it was, was denied by all other witnesses. I find that any suggestion that Judy was too drunk to notice what was going on is entirely unsupported speculation.

g. The main floor of the Eastview home was open concept.

h. Stephen was unpredictable in his behaviour and could not sit in one place or continue in one activity for any lengthy period of time estimated to be about 15 minutes.

173Although Karen gave statements and evidence that added to the allegations over time, that incremental disclosure does not discount her evidence.

174Both counsel relied on a number of inconsistencies or unexplained details in Karen, Peter and Judy’s evidence. I do not find those alleged inconsistencies on minor details to be of much assistance in assessing their evidence.

175For instance, the defence submits that Karen was inconsistent in her summary of how often these offences occurred. Was it twice a month for ten years, a hundred times, fifty to seventy-five times, or a range between three to five times per month? I do not find that inconsistency to be significant. The important element of that evidence is that the alleged occurrences were very frequent.

176The few inconsistencies between Peter and Judy only add to their credibility. If they were concocting evidence, the difference in their evidence with respect to the confrontation and whether Peter attended in Karen’s room would not have occurred. The essential evidence in those areas are that Peter denied the allegation and looked for ways to assist Karen. Further, Peter acknowledged that he was in Karen’s room from time to time. He did not deny the opportunity to do so, as alleged.

177There was an order excluding witnesses. Peter gave his evidence first. If there had have been a breach of that order, one would assume that Judy would have “got her story straight” with respect to Karen’s disclosure. Her failure to do so supports her credibility.

178For the first time, at trial, Karen said that there were instances of sexual assault that occurred in Peter’s bed while Judy was in the same bed or room. Judy denied that Karen was ever in the bed or that Judy ever slept on the loveseat in the room.

179For no apparent reason, Peter was arrested at the roadside as he left his employment. He was cuffed and taken to the police station. While I do not have all of the evidence or rationale for this manner of arrest, it seems designed to rattle Peter into saying something he should not have. That did not occur.

180Both Peter and Judy were examined by the police in difficult circumstances. He, after arrest on the roadside and she, two hours later. And yet cross-examination did not point out any significant conflict between what they said to the police and what they said at trial. While repetition does not make a statement any more true or false, inconsistencies can detract from credibility and reliability. There is a lack of such inconsistencies here.

181The Crown submitted that Judy was unbelievable in that she testified that she and Peter were never out of sight of each other when they were both home. The only exception was when Peter used the washroom. I do not find that unbelievable. These two parents worked long hours. The evidence was that they played darts every Monday night. At least one of the houses was an open concept. It seems quite possible that they would not be out of each other’s sight in the home.

182Judy was clearly in a difficult position; hoping to support both Peter and Karen. In cross-examination, the Crown suggested that she chose Peter for financial reasons. It could also be that she opted to tell the truth. I see no reason to reject the latter purpose. For reasons set out below, I accept her evidence where it conflicts with Karen’s evidence.

183With respect to the concussion incident, I accept Peter and Judy’s evidence that it was Judy who picked up Karen from school. Again, while it is possible that Peter could have done so, and had such authority, that does not mean that he did so. On the uncontradicted evidence, Karen was not working that day and Peter was. Karen’s evidence was that Peter picked her up from school and took her home and then later to the hospital. Given Karen’s injuries, it is more probable that, as Judy testified, she was taken to the hospital and then home by Judy.

184Peter was cross-examined over two days, in great detail, by the Crown. Even so, no damage was done to Peter’s credibility.

185Peter conceded that he had the opportunity to perpetrate these acts and did not minimize his contact with Karen. He properly conceded the obvious. He made efforts to avoid disparaging Karen.

186In cross-examination, Peter conceded the Crown’s suggestion that Karen was vulnerable in many of these circumstances. It needs to be noted that just because a child is vulnerable, this does not mean that a parent took advantage of that vulnerability.

187Peter’s evidence that he did not lay on either the air mattress or the back of the van makes sense. Watching TV while on one’s stomach with one’s head “cranked back” seems unlikely. While I have no evidence of the size of the van, Peter’s size and weight would make laying in the van to watch the movie equally unlikely. That evidence is supported by Judy’s evidence.

188I do not accept the submission of the Crown that Peter gave his evidence as if by rote or in some scripted fashion. While it is unsafe to rely on demeanour, I found nothing in his demeanour to conflict with his evidence. Rather, he responded to the Crown’s assertions in an appropriate fashion.

189Although there was an inconsistency between Peter and Judy with respect to when Karen disclosed these allegations to them, there is no doubt that the allegation was made, and he denied it. He also denied the allegation at the time of his arrest and during his police statement.

190It is important to note that Peter’s statements made upon arrest or when first confronted with an accusation are not evidence of the truth of what was said but they are evidence of Peter’s reaction. The longer the time between allegation and the response is a matter of weight, but the Crown conceded admissibility of the various statements. As such, they are relevant to Peter’s credibility and are circumstantial evidence of his innocence. While I put little weight on these exculpatory statements, they do, of course, favour the defence case.

191I can find no reason to reject Peter’s evidence. I accept his evidence.

192I agree with the Crown that some of the details of Karen’s evidence are compelling. However, they are not enough to outweigh the fundamentally incredible primary allegations. This is not a case where the defence evidence can be rejected based on the strength of the Crown evidence.

193In her submissions, the Crown relied upon R. v. T.G., where Di Luca J., on different facts, said:

111. A.G. described incidents occurring while she was at home with her siblings present. Indeed, in the first incident she is in bed with her two younger sisters. And in the other incidents her siblings are present in the home. I am not troubled by the apparent brazenness of these incidents. There is no set pattern as to how a sexual assault can occur. The fact that the incidents occurred when others were present in the home does not, in this case, cause me any concerns. A.G.s siblings were quite young, the acts engaged in were brief in nature, and T.G. was either clothed or wearing a robe that could be used to quickly cover himself up should someone walk in. The sad reality is, that sexual assault can and often does take place in scenarios where there is a high risk of getting caught. In this case, I do not find the fact that these incidents occurred in the home when other children were present to lessen or diminish A.G.s credibility, or for that matter make T.G.s denial any stronger.

194I agree with the Crown that the defence submission that these events were so “brazen” as to be unlikely, does not make any of the allegations impossible. I agree with Di Lucca J. that this sort of conduct is the “sad reality.” However, unlike T.G., the alleged events here went on for a long period of time, the children were not “quite young,” and Judy was allegedly in the room for some of the alleged incidents.

195While I have not used minor inconsistencies in detail to diminish Karen’s credibility, the obvious central failings in the evidence cannot be ignored.

196Here, I refer to the incident at the drive-in which is alleged to have occurred for over 45 minutes with others awake and nearby. The incident at the camping site is said to have occurred over five to ten minutes with others around and awake. The events in the livingroom of the home occurred with others around or with the unpredictable Stephen able to appear at any moment.

197I must consider the totality of the evidence. Any one of these allegations is possible. It is possible that any one of the children did not see what occurred as it was occurring. It is possible that Judy was asleep when some of these events occurred. It is possible that Peter did some of these acts while each member of the family was in a different room, even though, just prior, all had been in the same room.

198However, on the whole of the evidence, the submission that all of these events could occur over such a long period of time without notice or comment by any other member of the family (including a Crown witness) is so unlikely as to be incredible. These incredible allegations make the rest of the allegations unreliable.

199With respect to the statement by Karen to Janet, it is important to note the inconsistencies in those statements. Karen recollects that, when she was ten, she told Janet that Peter “humped” her. Janet recalled that Karen, when they were both five or six, told her that Peter “licked her vagina.” On Karen’s evidence such an act did not occur until she was seven or eight.

200The Crown submits that I should pick and choose between those inconsistencies to find a prior consistent statement that was made by Karen to support the Crown’s case. I do not accept the Crown’s argument that I can rely on a prior consistent statement in these circumstances. I cannot find a principled reason to accept some of these times and acts while rejecting others. The totality of this prior statement evidence is too fragile to be certain of when or what act was alleged.

201The Crown relies upon R. v. Untinen, 2017 BCCA 320, for the proposition that I can use such a prior consistent statement to support the Crown’s case. Untinen dealt with a prior videotaped statement that had been admitted as part of the witness’ testimony. These circumstances are entirely different.

202With respect to the charge of voyeurism, although that could have occurred, given the reliability of Karen’s evidence on all of the other allegations, I cannot accept her evidence on this count beyond a reasonable doubt.

203On the whole of the evidence, I do not accept Karen’s evidence beyond a reasonable doubt.

204In summary, the defence evidence raises a reasonable doubt with respect to all of the allegations. The balance of the Crown’s evidence is not so compelling as to reject the denial by Peter. Even standing alone, the Crown’s evidence does not prove the allegations beyond a reasonable doubt.

205Accordingly, Peter is found not guilty on all counts.

Justice G.D. Lemon

Released: April 16, 2020

CITATION: R. v. P.M., 2020 ONSC 2259

COURT FILE NO.: CR-19-572-00

DATE: 2020 04 16

ONTARIO

SUPERIOR COURT OF JUSTICE

Her Majesty The Queen

– and –

P.M.

Defendant

judgment