CITATION: R. v. G.B., 2020 ONSC 3705

COURT FILE NO.: CR -20-30000066

DATE: 20200716

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

G.B.

Defendant

Samuel Walker, for the Crown

Peter Brauti, for the Defendant

HEARD: January 20, 23, 24, 27-29, 2020 and June 9, 2020

SPIES J.

REASONS FOR JUDGMENT

Subject to any further Order by a court of competent jurisdiction, an Order has been made in this proceeding directing that the identity of the complainant and any information that could disclose such identity shall not be published in any document or broadcast in any way.

Overview

1The defendant, G.B., is charged with four counts related to the alleged sexual abuse of his niece, M.T., in the period 1980 when she was eight years old to 1984 when she was eleven years old. In particular, he is charged with one count of gross indecency, contrary to s. 157, one count of indecent assault contrary to s. 149, one count of sexual assault contrary to s. 246.1 and one count of having sexual intercourse with M.T. when she was under the age of 14, contrary to s. 146 of the Criminal Code. His trial proceeded before me without a jury. The hearing of the evidence was completed by the end of January 2020, but the closing submissions were delayed until June 9, 2020 when they were heard by video conference, with the consent of the parties, due to the closure of the courts as a result of the COVID-19 pandemic.

2I heard from a number of family members from both the T. and B. families, including the complainant and the defendant¹. The Crown called not only M.T. but also her older sister H.D., her younger brother A.T., her father, A.K.T. and finally a friend, M.G. G.B. elected to testify in his defence and also called his wife N.B., who is A.K.T.’s sister and J.T. who is the younger brother of A.K.T. I did not hear from R.T., M.T.’s mother or any other family members.

The Charges

3I heard evidence about incidents involving M.T. and G.B. that are not the subject of the charges and pre-date the allegations. The various incidents are described in detail below under the heading: “Alleged conduct that is not the subject matter of the charges”. I heard about these incidents to support the Crown’s position that G.B. favoured M.T. and her evidence was that he acted inappropriately in this time frame. There was no objection to the Crown leading this evidence and, in fact, the Defence argued that these incidents are examples of when M.T. was not truthful in giving evidence.

4The charges relate to alleged sexual touching including fellatio, while G.B. was showing M.T. some pornographic playing cards in the workshop area in the basement of his home -“Playing cards’ incidents”- and an attempt at vaginal penetration alleged by M.T. to have occurred in a room with a red carpet in the basement of her home -“Incident in the room with the red carpet”. I have used the descriptors developed by counsel to review the evidence.

5With respect to the charge of gross indecency, contrary to s. 157 of the Criminal Code, Count 1, that was an offence at the time of these allegations. With respect to that charge the Crown relies on both the playing cards’ incidents and the incident in the room with the red carpet”.

6With respect to charge of indecent assault, contrary to s. 149 of the Criminal Code, Count 2, the Crown relies on the playing cards’ incidents. That section was repealed and replaced by s. 246.1, sexual assault. effective January 4, 1983. It is unclear on the evidence of M.T. whether these incidents are alleged to have occurred before or after January 4, 1983, and so Mr. Walker submitted that I should acquit G.B. of Count 2 but convict him on the included offence of assault, following the decision of R. v. K.M., [2008] O.J. No. 198.

7With respect to charge of sexual assault, contrary to s. 246.1 of the Criminal Code, Count 3, the Crown relies on the incident in the room with the red carpet. There is no timing issue with respect to this charge, because if I am satisfied this incident occurred, M.T. testified that it occurred after June 1983 when the weather was warm in the spring or summer of 1983 or 1984 before what is described below as the “Winnipeg Wedding”.

8Finally, with respect to Count 4, the charge of having sexual intercourse with a person who was not his wife and was under the age of 14 years, contrary to s. 146 of the Criminal Code, the Crown also relies on the incident in the room with the red carpet. Mr. Walker argued that the offence is complete if there is penetration of the vagina to even the slightest degree, relying the decision of R. v. A.B.R., 2018 BCSC 2345 at para. 123(6)

9Mr. Brauti did not disagree with these submissions on the charges but of course these issues will only become relevant if I am satisfied beyond a reasonable doubt that the allegations made by M.T. are true.

The Issues

10As is usually the case the main issue in this case concerns the reliability and credibility of the witnesses, primarily the complainant and the defendant. This case, however, has an unusual twist.

11At the outset of the trial, the Crown sought a ruling that certain hearsay statements made by the complainant to her brother A.T., and evidence of sexual touching between them be admitted as evidence in this trial. The defence object to the admissibility of this evidence but on consent, I heard this evidence during the course of a voir dire blended with the trial. In addition, I ruled that this evidence should be heard in camera given that it was of other sexual activity of the complainant. Further to the agreement of counsel I ruled on this issue at the close of the Crown’s case, before putting the defendant to his election as to whether or not to call any evidence. On January 29, 2020, I advised the parties that I had decided that the evidence of sexual touching between A.T. and M.T. and the utterances she is alleged to have made was admissible as “narrative” and as “narrative as circumstantial evidence”. However, I ruled that if I found that the statements alleged to have been made by M.T. to A.T. were in fact made, they were not admitted for their truth. I advised the parties that I would provide written reasons for that decision which are reported at R. v. G.B., 2020 ONSC 3704 (“Evidentiary Ruling”).

The evidence and preliminary findings of fact

Background of the T. and B. Families

12M.T. was born in June 1973 and so she was 46 at the time she testified. She has a Bachelor of Arts degree in Crime and Deviance from the University of Toronto and works as an analyst for the Ministry of Public Safety. M.T. has two daughters from a former marriage. M.T.’s older sister, H.D., was born in November 1969, making her approximately three-and one-half years older than M.T. She has an Applied Science degree in Industrial Engineering from the University of Toronto. A.T., M.T.’s younger brother, was born in November 1974, making him one-and one-half years younger than M.T. He is a professional engineer having graduated from McMaster University in electrical engineering.

13M.T.’s father, A.K.T., was 74 at the time he gave evidence. He is the oldest of four children. He has two sisters, N.B., who has been married to G.B. for 43 years and G.T., and a younger brother J.T. A.K.T. sponsored his parents and N.B. and G.T. to come to Canada from the United Kingdom in 1977. G.B. was sponsored by N.B. and came to Canada in 1978. A.K.T. has a Bachelor’s Degree in Honours Math and a Masters and Ph.D. from the University of Western Ontario in Applied Math. He is now retired. I did not hear from M.T.’s mother, R.T.

14No one who testified from the T. family has a criminal record to my knowledge.

15G.B. was 67 years old at the time he gave evidence. He has no criminal record and his evidence that he has never had a negative experience with the police was not challenged. G.B. was born in India and came to Canada in 1977 from the United Kingdom in order to join N.B., whom he married later that year. In the United Kingdom, he worked as a Clinical Bio-chemistry Technologist. I heard about G.B.’s employment history leading to his retirement and his extensive volunteer work. It is not disputed that G.B. has been a hard-working person his entirely life. He and N.B. have two sons.

16The T. family was originally living in London, Ontario. When A.K.T. finished at the University of Western Ontario in 1979, he got a job in Toronto and lived with G.B. and N.B. for a time while the family remained in London. The T. family moved to Toronto in April 1980 to a rented apartment in Scarborough (“Home 1”). In 1982 A.K.T. bought a townhouse in Scarborough (“Home 2”) and he believes that the family moved to that address in the spring of that year. In September 1985 the family moved to Etobicoke.

17G.B. testified that in 1978 he and N.B. moved into an apartment in Scarborough. In 1980 they bought a small house in Scarborough (“G.B.’s House”) where they lived during the time of these allegations. In 1986 the family moved to a home, in Scarborough and in 1988, the family moved again to another home in Scarborough. M.T. testified that in the 1980 to 1984 timeframe G.B. and his wife lived at two different addresses in Scarborough. She was mistaken with respect to the address, as one home clearly was G.B.’s home much later, but I did not find this error surprising. This was one of those details that could be in error given M.T.’s young age in the 1980 to 1984 timeframe; see R. v. W.(R.), 1992 CanLII 56 (SCC), [1992] 2 S.C.R. 122, a decision I will come to.

18Although the degree of frequency varied, the witnesses all testified that there would be large family gatherings at one of their homes reasonably frequently in the 1980 to 1984 timeframe. M.T. testified that between 1981 and 1982, her family would visit with G.B.’s family at least four to five times in six months. G.B. testified that there were not a lot of visits because the two families did not get along that well during the years 1977 to 1984; he admitted that there were a few, “maybe five or six.” Whatever the number, the evidence is clear that each family visited the other in their homes on occasion and that is all that must be determined factually in this case.

19Home 2 was a two-story duplex with a full basement. G.B.’s House was a little larger, also with two stories and a full basement. The floor plate of the houses was small - the square footage of the basements for each house, where the assaults are alleged to have occurred was about 700-800 square feet. Although the numbers varied from the various witnesses, during family gatherings, when the allegations are alleged to have occurred, there would typically be the other family members present, bringing the total to anywhere from 10 to 15 adults and children or more. During these family gatherings, the adults would typically be on the main level of the house and the children would be playing in the basement, generally unsupervised, although an adult would check on them from time to time.

20Although this was not developed in the evidence, A.K.T. testified that from the end of 1981/ early 1982 until May of 1985 he was on the road a lot with the company he was working for and would be away up to three weeks each month. As a result, he did not attend the visits to G.B. and N.B.’s home that much, but he admitted it was possible his wife and children did when he was away. He was not asked if G.B. and N.B. ever babysat his children. Both G.B. and N.B. testified that they did not do so but the evidence of H.D. and M.T. was that there were times when they were with G.B. and N.B. and their parents were not present.

The extent of the conflict in between the families of the complainant and the defendant

21I heard evidence from most of the family witnesses about the relationship between M.T.’s family on the one hand and G.B.’s family on the other. It is important that I consider this evidence and determine the degree of conflict that existed between the two families before M.T. first disclosed these allegations to her friend M.G. in high school, as it is the position of the Defence that although it does not have an obligation to prove a motive to fabricate, the two families in fact developed a dysfunctional relationship which has played a part in these allegations coming forward. The Defence argues that even if the conflict in this case was not the reason or sole reason for the allegations, it has certainly tainted the evidence.

22There were very different accounts of the degree of conflict that existed between the two families in the relevant timeframe.

23A.K.T. testified that the conflict between the families was not constant. He said that when the T. family was in London, Ontario, in the late 1970’s, the conflict was at its height. Once he found work a lot of “back talk” about his priorities subsided. He testified that in the early 1980’s they had very large family gatherings and that he thought that the two families were on very good terms.

24G.B. testified that “somewhere in the '80’s”² was the first real falling out with the T. family because he thought the T. children were “very skinny and probably malnourished” and so he told them that they had to “eat lots of food and be like your mother, big and strong." He admitted that he used the word "fat" but said he did so in a good way, from a health point of view, because they were so skinny. He was not asked but his evidence suggested that R.T. at least was not present. G.B. testified that the children reported this word "fat" to their parents and that R.T. let him know she was upset by this. As a result, he and N.B. went to the T. home; he believed it was Home 2, and he apologized to R.T. He believed that she and A.K.T. accepted the apology.

25H.D. testified that she had overheard G.B. saying hurtful things about her family which made it back to her parents and family, which would have included M.T. hearing these things. H.D. denied G.B.’s version of the incident when he used the word “fat”. She testified that in her parents' absence G.B. commented to a guest that her parents were “really fat" and that after her parents came home and everyone left, she told her parents this. She agreed that N.B. and G.B. apologized for this. The only other specific incident she testified to was one time when she was trying to watch TV at a family gathering, G.B. came over and told her that he thought her parents were really stupid and he asked her if she thought they were stupid and said to her: "Why don't you say your parents are stupid?" Mr. G.B. did not give any evidence about this.

26M.T. testified that H.D. told their parents that G.B. was telling them that their mother was fat. M.T. testified that when she was a child, she remembered that her mother would express feelings of being hurt sometimes because of the comments that her mother was overweight but beyond that, she did not recall any conflict between the two families.

27A.K.T. admitted that H.D. may have heard G.B. comment that the children should eat more and get fat like their mother. He testified that his wife was hurt but he told her to ignore it. He knew that hurtful things were being said by G.B. and his wife because the children reported this to him.

28Given the evidence, I find that it came to the attention of A.K.T. and his wife and their children that G.B. had at least said or implied that R.T. was fat.

29There was also conflict between the two families over the care of A.K.T.’s parents. He testified that it is customary in India that the eldest son takes care of his parents. I heard diverging evidence as to why, but ultimately his parents were cared for by J.T. and then N.B.. G.B. said that he did not have all the details but that the two families were at each other’s throats over this. N.B. went as far as describing the families being “at war” that started when her parents immigrated to Canada, stayed with them and she witnessed how badly they treated them. G.B. described the conflict as starting as early as 1980-1981, which the Defence points out is almost exactly when M.T. described her first set of allegations occurring. G.B. disagreed that the arguments about taking care of A.K.T. and N.B.’s mother had resolved themselves in the 1980's. There was no evidence that this dispute came to the attention of the T. children.

30J.T. testified that ever since M.T.’s parents got married there had been “a lot of turbulence”. He said that the T. family believes there is a conspiracy by the other siblings against them and there have been times when they had quite a few skirmishes because of how A.K.T.’s facts are twisted. He described it as an ongoing issue, but he did not suggest that M.T. and her siblings knew of this or had any involvement and so I did not find this aspect of the conflict relevant.

31G.B. also gave evidence about a time he came home and saw his father-in-law shouting and screaming and arguing with somebody on the other end of the phone – he believed he was speaking to R.T. G.B. testified that he grabbed the phone and said the call was over and hung it up because he was worried about his father-in-law’s health. A.K.T. did not recall any argument on the phone with respect to his father when G.B. hung up the phone, but he said it was possible. There is no evidence that M.T. and her siblings were aware of this incident. In fact, G.B. admitted that he did not think that R.T. even knew that he was the one that hung up the phone. I therefore find this incident to be at most, some corroboration of the conflict between the two families over the care of A.K.T.’s parents.

32G.B. testified that he felt as the he was a victim of the fights and quarrels between the wives and his mother-in-law and their family and that he was “collateral damage basically and victim of collateral damage, that's what I felt”.

33H.D. testified that she understood that in the years prior to M.T.’s allegations being reported in 1992, that there was conflict in the family such that she concluded that G.B. did not respect her family and had diminished their value to the point where she felt that there was a lack of respect. It was her opinion that in some way, perhaps in G.B.'s mind, this gave him justification to do what is alleged to M.T. There is no other evidence to support this and I do not find this to be true. I accept H.D.’s explanation of her evidence that she was just trying to wrap her head around why G.B. would do what is alleged. She believes her sister. Despite this H.D. testified that she had no doubt that there was genuine caring and love between her father and his siblings even though there was always a “little bit” of conflict.

34As Mr. Brauti submitted, it could be said that the T. family has a motive to downplay the conflict between the two families, while the B. family has a motive to overstate the conflict. I expect that the truth is somewhere in between. However, I do not need to determine the degree of conflict. In my view, what is important to the issues I must decide is that in terms of possible motive of M.T. to fabricate these allegations is the fact that when she was a child, she was only aware that her mother was hurt sometimes because of the comments made by G.B. that she was overweight. There is no evidence that contradicts her testimony that beyond these hurtful comments, she did not recall any conflict between the two families. There is no evidence that this changed once M.T. was in high school.

35Mr. Brauti submitted that because of the conflict between the two families, M.T. fabricated these allegations when she first disclosed them to M.G.. In my view, the limited knowledge that M.T. had about conflict between the families was not sufficient to give her a motive to fabricate these allegations. This conclusion is supported by the fact that G.B. admitted that there was no outright conflict between him and A.K.T. and R.T.'s family, and his perception is that the conflict was not really involving him and was more between his wife and her brother, A.K.T. I therefore do not find that any conflict between the two families caused M.T. to fabricate her allegations. There would certainly be no reason for her to decide to falsely accuse G.B.

36G.B. testified that because the children told R.T. and A.K.T. that he had made a comment about R.T. being fat, that alerted him to the fact that he had to watch what he said and did around the children as they clearly would not hesitate to report things back to their parents.

The relationship between G.B. and M.T. and her siblings

37M.T. described G.B. as a “very charismatic man” who had a “nice sense of humour” and as someone with whom she had fun. She looked forward to seeing him and recalled times with him dancing, him tickling her and her siblings and joking with her. M.T. testified that over time she felt that G.B. paid more attention to her. She said that when they were dancing, he would focus in on her and even say to his wife: “wow, like, she's a great dancer” and “look at how she's dancing”. She also remembered that at Home 1, when she was around seven to eight years old, sitting on the toilet with the door open, G.B. would come in to wash his hands and he would turn to her and say something along the lines of: “you're special to me”. She also testified about what happened when G.B. tickled her which I will come to.

38A.T.’s evidence was similar, but he gave no detail. He testified that G.B. essentially treated M.T. as his favourite, and that they would always sit together and be together at family gatherings and G.B. would play with M.T. and enjoy her company more than the rest of them.

39When asked about G.B.’s relationship with her sister, around the time period of 1980 to 1984, H.D. testified that she did not recall anything during that time period specifically but that overall, they did not have too much of a rapport with him as an uncle – “I mean we didn't go and say, "Okay, you know, … I want to go talk to him," or anything like that. They did not regularly engage with G.B. for playing. According to H.D., G.B. was not like their other aunts and uncles that they looked to, to talk to and play with. She did state that she recalled a few instances when it was her impression that G.B. was a little nicer to her sister and paid more attention to her. H.D. referred to a time when G.B. tickled her sister in the late 1970’s which I will come to.

40A.K.T. was not asked about how G.B. was with his children.

41G.B. testified that he paid about the same amount of attention to each of T. children and that this attention was very minimal. He denied having conversations or jokes with them. The only physical contact he could recall in the late '70's, early '80's was when they came to his house or he to theirs, when they would first hug his wife and then they would just stand around and their parents would say: "Hey, what about hugging Foaji?"³ and they would come “kind of reluctantly” and each give him a hug. When they left they would hug him again. According to G.B., that was the only physical contact he had with the T. children. He denied tickling them or giving them a friendly tap on the head or bending down and pinching a cheek. “The guitar incident”, which I will come to, is the only time G.B. could recall being friendly to the children.

42According to G.B. the children were closer to his wife and they were not friendly to him - he “stayed my distance”. They did not come and play or talk to him the way they would talk to others. G.B. testified that he did not behave the same way with other children in the family and that there was a big difference between the way the T. children treated him as compared to the other children in the family. He “didn't bother” to attempt to build a friendly relationship with them, explaining that they were not his blood relatives.

43Both G.B. and N.B. provided evidence about an incident when N.B. was living with the T. family in London, before she married G.B., when M.T. is alleged to have gone through N.B.’s purse and found a picture of G.B. She would have been around four years old at the time. This evidence was presumably given to show that M.T. would go through someone else’s possessions, to corroborate the Defence about her finding the pornographic playing cards – the playing cards’ incidents I will come to – and to suggest she had an early dislike for G.B. Apparently when she saw his picture and N.B. told her that she was going to marry him she responded that she did not like him.

44J.T. described G.B. as not being overly playful with the children although he would on rare occasions tickle or play with the children. According to J.T., G.B. mostly stuck to the adults although it was not that he hated kids. He was the type of guy who, when there were adults visiting, would pay more attention to the company of the adults that he was with.

45Both H.D. and A.T. confirmed that G.B. never did anything sexual to either of them.

Alleged conduct that is not the subject matter of the charges

(a) Tickling of M.T.

46M.T. testified that in the late 1970s she recalls times when G.B. tickled her. Her best recollection is that this occurred at his later house located in Scarborough. As I have already stated, M.T. was mistaken but I did not find that surprising. M.T. testified that G.B. would tickle her and that when he did so he would tickle her towards her private parts and bum and that it evolved to more touching than tickling. The tickling took place in the open at family gatherings where a number of children and adults were present, and she admitted that it was possible that a family member witnessed it although no one ever intervened or said anything about the tickling being inappropriate.

47When H.D. was asked what she remembered about how G.B. interacted with her sister when they were young growing up, she testified about a time when she and her siblings were in their bedroom in an apartment before their apartment in Scarborough. She was very resistant in cross-examination but eventually admitted that this incident would have occurred in the late 1970’s. She recalled that G.B. suggested that they “play the tickle game". He tickled her brother a little bit and then her, but she noticed that G.B. paid more attention to M.T. and that he had her sister on his lap when he tickled her. She did not pay any attention to where his hands were, but she did not recollect that he touched her inappropriately. H.D. would not admit, however, that if she had seen G.B. touching her sister on her breast that she would remember that. She could not say how long the tickling lasted.

48H.D. testified that this event stuck in her mind for two reasons. The first was that G.B. did not usually sit and interact or converse with her like her other aunts or uncles whom she did look to play with or talk to. The second reason that she recalled it was because after her sister disclosed what happened to her in 1992, she thought back to the times when, as she described it, there was “opportunity and engagement”, and this was one incident that came to her mind. She admitted that this was the most concerning conduct that she recalled witnessing between G.B. and her sister, and she made it clear that she was not saying that G.B. did anything other than tickle her sister. She only raised it with the police because she wanted to support her sister. A.T. only testified about a time when G.B. was tickling M.T. during the Ottawa Storytelling incident, which I will come to. Neither H.D. nor A.T. suggested that any tickling that they saw of M.T. was inappropriate. As already stated, G.B. denied tickling M.T. or the other T. children. Neither A.K.T. nor N.B. gave any evidence about G.B. tickling the children.

(b) Ottawa storytelling

49M.T. testified that around 1978-79, when she was five years old, her family took a trip to Ottawa. When they returned, she and her brother and sister wrote stories about the trip. She could not recall if it was at her house or at G.B.’s house, but G.B. had asked that they read their stories to him. She recalled that G.B. was sitting on the floor, which may have been the floor of the living room and she was lying on top of him, as her brother was reading his story. There could have been other children present. M.T. could not recall how many adults were present but she admitted that it could have been between 5-15 adults. She only remembered her brother’s story that was long and funny being read and she remembered laughing.

50As her brother was reading his story, M.T. testified that G.B. tickled her in her armpit and stomach and then caressed her around her bum and private parts. She agreed that this caressing of private body parts may have been occurring out the open where people could see. In cross-examination M.T. confirmed that she had a clear recollection of G.B. touching the sexual parts of her body and that the caressing of her private parts was of her breast or vaginal area over her clothing. At the preliminary inquiry in December 2018, however, M.T. testified that during the storytelling G.B. was tickling and touching her, but it was not of her “sexual areas”.

51A.T. described the events around this storytelling very differently. First of all, he testified that he was six or seven at the time which would have made M.T. seven or eight, not five. He stated that G.B. and N.B. had come over for a visit to Stonehill. G.B. had asked the children if they wanted to play or talk and so they went into one of the bedrooms. H.D. and A.T. were sitting on one bed and G.B. was lying down with M.T. lying on top of him on another bed.

52According to A.T., G.B. looked at his story and H.D.’s story and quickly ran through them and sort of dismissed them and threw them aside. He then took M.T.’s story and read it out loud and as he did, he was changing and inserting words to refer to their mother’s “bum-bum” that was exposed and her “boobies that were hanging out”. All three children were in earshot of what was being said. A.T. recalled that G.B. was playful with M.T. in terms of laughing and giggling but he did not recall him doing anything with his hands. After his memory was refreshed from his police statement, A.T. said G.B. was playful in the sense he was tickling M.T. and being playful with her. He did not testify that he saw any inappropriate touching.

53H.D. and A.K.T. gave no evidence about this incident.

54G.B. testified that he was told that the children had written scrapbook stories about the Ottawa trip, but that he did not see the stories let alone read them to the children and that he never read any kind of stories to the T. children, nor would he have ever used inappropriate words around the children. He added that he would never have said such words because he knew from experience when he used the word “fat” in connection with their mother that if he said these words, he would be in trouble again and he was very cautious. G.B. testified that he did not even read stories to his own sons so he would not have done this.

55N.B. does not remember an incident when G.B. was reading to the T. children and testified that he was not a “book person” and that this is not something he would do.

(c) Guitar incident

56M.T. testified that on one occasion around 1981-1983, when she was around eight to ten years old, G.B. showed her, her brother and some other kids his guitar while they were in the basement, during a family gathering. There may have been 10 or as many as 15 to18 people present. M.T. did not recall if it was an electric guitar requiring an amplifier, but she believes that it was a full-size adult guitar. G.B. had shown this guitar to her before and she was curious about it. She did not recall if the other children were interested in it or not. She could not remember which house this incident took place in, but she believed it was in the basement of the later Scarborough home, provided that was his first residence. The guitar was in an open area of the basement near the furnace and according to M.T. this was where the guitar was stored.

57According to M.T., G.B. stood behind her with his arms holding the guitar in order to show her how to play the guitar although she admitted that he may have held it in front of him at first. M.T. did not remember if the guitar had a strap but when her memory was refreshed from her statement to police, she admitted that it did. G.B. put the strap around her, then held the guitar in front of her. M.T. admitted that the guitar was at her knees. G.B. showed M.T. where to put her fingers and how to strum the guitar. M.T. testified that as this was occurring G.B. pressed himself against her and she felt a hard mound “grinding up and down” on her spine. She had a sense that it was his penis because his groin was against her back. M.T. went on to say she was 100% sure it was his penis because it was not a knee or an elbow. This made her feel uncomfortable.

58However, M.T. told the police that what she felt was “probably” G.B.’s penis and she gave the same evidence at the preliminary inquiry, adding she could not be sure because she did not see it. When confronted about this inconsistency by Mr. Brauti, with a suggestion that she had exaggerated her trial evidence, M.T. responded: “I don’t know”. M.T. eventually reverted to saying it was “probably” his penis and that she may have made an error in saying 100% rather than probably. She denied lying or exaggerating.

59M.T. did not recall how tall she was at the time but admitted that G.B. was significantly taller than her. She also agreed that as G.B. stood behind her that it made sense that he would have to be bent over to show her how to move her fingers and strum the guitar. She admitted that if he was bent over there was no way G.B.’s penis could have been rubbing up against her in these circumstances unless it was two feet long.

60When it was put to M.T. that the mechanics of G.B. showing the kids how to play the guitar was completely different, in that the guitar was in front of his body with the kids facing him, she did not deny this happened. She stated at first that she could simply not recall either way if that is what had occurred. However, she admitted that: “It’s probably that happened, but I don’t recall that situation or episode”.

61No one raised any concern about the conduct at the time and M.T. did not tell anyone about this incident until October 2017, when she gave her statement to police. Neither H.D. nor A.T. testified about this incident although according to M.T., A.T. at least would have been present.

62Both N.B. and G.B., who were not challenged on the point, testified that the guitar was always on the main level in the family room. When asked, G.B. denied ever taking the guitar and amplifier to the basement for family events or to show people or to play it. He described it as his prized possession that he played a lot. It was G.B.’s evidence that the kids were looking at the guitar, together with the amplifier and wondering what it was. Word got around that it belonged to Foaji and so they asked him what it was. He told them that it was an electric guitar. The kids were very interested in seeing what it did, and he told them that it plays a lot of sounds and he demonstrated the various sounds the guitar can make. He took the guitar, put the strap around him, so the guitar was in front of him and he strummed and played a couple of the chords and showed the kids all the different sounds it could make. He gave the children the pick and allowed them to strum the guitar while the guitar was in front of his body and while they did that, he played the chords for them and they were fascinated at that. According to G.B. his wife was there, her parents, his brother-in-law, his sister-in-law and probably his cousins and their kids as well.

63G.B. testified that he would not have allowed any of the children to physically take control of the guitar by themselves because the guitar is very big and heavy. He denied that he was ever behind M.T. or that he rubbed himself up against her back insisting that the guitar was always in front of him.

The Allegations

(d) Playing cards’ incidents

(i) General

64M.T. testified that she liked to follow G.B. around his house and that when he would say that he had to go to the basement she would follow him. The family would all look at her because they knew that she would follow him into the basement. M.T. admitted that as a result it was not a secret that she was going downstairs with him.

65M.T. testified that she could not recall if there were other children in the basement when these incidents occurred. She recalled going down the stairs and to the right to a little workshop area. There is no dispute that this would have been G.B.’s House. The basement of this home was unfinished and completely open save for a small workshop area to the right of the stairs that did not have a door and could be seen from the bottom of the stairs.

66These incidents are alleged to have occurred in the workshop area. This area had a workbench that G.B. constructed inside this small room that took up almost the whole space. The workbench was essentially rectangular with a small notch just inside the opening to the workshop. According to M.T., every time she was in that workshop area with G.B., she was always the one further in and he was near the entrance.

67G.B. testified that the stairs to the basement were about eight to10 feet long and that it would only take someone five to six seconds to come down the stairs. Although M.T. and A.T. did not admit this was true, there is no dispute that it would only take a matter of seconds for someone to get to the bottom of the stairs and that at least someone standing in the notched area would be immediately seen at that point. G.B. testified that there were walls on both sides of the stairs, as required by the building code, making it impossible to see into the workshop area unless you were on the lower three stairs. He also said that the notched area in the workbench was not big enough to hide a person and certainly not big enough to hide him and M.T. He testified that workshop area was so small and open that if you were sitting on a chair in this notched area of the workbench you would be half in and half out of the workshop.

68M.T. described three incidents when she was around nine and in Grade 4, when she alleges that G.B. had her follow him to the basement of his house and there, he showed her a deck of playing cards that were on the workbench, that showed adults engaged in various sexual acts. She alleges that he then engaged in a sexual act with her. She testified that this sexual activity occurred twice possibly three times. She was unclear as to who was in the house at the time of these incidents although they generally occurred when her family visited G.B. and N.B. This could also have been during larger family gatherings with as many as 12-15 people present. Each time after G.B. was done, he told her that this was their special secret and that she should not say anything to anyone, and she would tell him that she would not. M.T. originally testified that she did not recall if the other children went in and out of the basement or that the adults occasionally checked on them. After being taken to her evidence at the preliminary inquiry, she admitted that this was in fact true and she admitted that this could occur at any time without notice to anyone in the basement. Both G.B. and N.B. confirmed this as well. M.T. could not recall either way if other children were present when the touching occurred. There is no evidence anyone saw any of the alleged sexual activities.

69M.T. did not recall how long she was in the basement with G.B., but her best estimate was that these incidents would take place over 15 to 20 minutes. There is no evidence from anyone other than M.T. that G.B. ever disappeared with her into the basement for 15-20 minutes and that suggestion was specifically denied by G.B. He testified that during these family events he never spent any extended time, such as 10 to 20 minutes alone with M.T. in the basement or in the basement alone with M.T. with the other kids running in and out of the basement throughout the event. He said that he would never have done so because he was always with the adults on the main floor level. Additionally, N.B. stated that she could never remember a time that G.B. was alone with M.T. in the basement for any extended period of time.

70G.B. testified that he bought a set of pornographic playing cards before he married N.B. and N.B. confirmed she was aware that he owned these cards and still had them when they were living at G.B.’s House. G.B. testified that these cards would remain in their original package and that he stored them in the basement, on his workbench. When it was put to him that he just left them out on top of the work bench and not hidden somewhere, he testified that they were on the top of his electronic equipment. G.B. testified about a time when M.T. and A.T. had found the cards which I will come to.

(ii) First incident

71With respect to the first alleged incident, M.T. testified that her parents and N.B. were in the living room of G.B.’s house – she was not asked about her brother or sister, and G.B. said he had to go down to the basement and he nodded at her. She followed him downstairs and they went into the workshop area. She was facing G.B. and he showed her one playing card with a woman performing oral sex on a man. He told her to look at the card and at what they were doing and that he would like her to do that to him. She testified that during these incidents he would “pull out his penis” and show her where to lick it and that she “licked the head” once or twice. M.T. testified that G.B. told her that she should try to put his penis in her mouth, but she remembered that she was not able to do so. She did not recall him ejaculating. He then headed back upstairs, and she followed him.

72With respect to the first alleged incident, when asked by Mr. Walker if she remembered how G.B.’s penis was “produced”, M.T. testified that she could not remember if his pants were buttoned or zipped, but he just “undid his pants” and “pulled his penis out”. In her examination in chief M.T. made no mention of G.B.’s pants coming down or off. She also said that he touched her in her private area on this first occasion but that it was over her clothes.

(iii) Second incident

73The second alleged incident was in the same timeframe. M.T. followed G.B. into his basement. She was asked a leading question: “was there any nod” and she said yes. Once downstairs G.B. showed her one of the pornographic playing cards showing oral sex. This time while they were standing and facing each other, M.T. alleges that G.B. pulled her pants and his pants down and asked her to lick his penis, which she did. When she tried to put it in her mouth as he asked her to, she couldn’t. He then spread her legs apart and while holding his penis he started to rub his penis on her vagina. M.T. testified that she felt pain from the friction of the rubbing, but she could not say if he tried to penetrate her. G.B. then felt around her vagina with his fingers, and he commented that she was too small. He turned away from her, reaching for tissues, and he asked her to stick her finger in his bum. M.T. testified that she pressed a tissue into his anus, which she felt was better than sticking her finger in without a tissue. She could not recall if putting the tissue on his bum was something that G.B. asked her to do or not, but she did recall him asking her to put her finger in his anus.

74M.T. testified that when she went upstairs after this incident N.B. was there, but her parents were not. She remembered sitting in the kitchen, waiting for her parents to come. She did not remember if her brother and sister were there at any point or whether or not she came with her parents. M.T. testified that there was a bowl of cashew nuts in the kitchen where they were sitting and that she put a cashew nut in her mouth and thought that the smoothness of that nut on her tongue reminded her of the head of G.B.’s penis. This evidence was not in her statement to police or in the preliminary inquiry transcript although she suggested that she recalled saying something about it at the police station. As this was not in her transcribed statement, I find that this is not the case. M.T. insisted that this was her recollection now and she denied making this detail up.

(iv) Third incident

75With respect to the third playing cards’ incident, M.T. recalled that the incident started the same way with her following G.B. into the basement after he nodded to her and he pulled out a pornographic card of oral sex and showed it to her. As G.B. was getting ready to take his pants down her brother came down the stairs and G.B. pulled his pants up and was adjusting and fumbling with his pants in that he was straightening the waist and pulling his shirt down. He then began fumbling with some equipment on the side. He then abruptly went upstairs in a “rushed manner”. M.T. said it struck her how abruptly G.B. left the basement when her brother had appeared. She did not say that G.B. told her brother to keep it a secret. There was no sexual touching on this occasion.

76M.T. testified that she stayed downstairs with her brother and told him that she had something to show him. She then showed the oral sex card and a few other cards to him and told him that this is what G.B. showed her, although she also testified that she did not remember what was said. M.T. agreed that while she told her brother that she was looking at the cards with G.B. that she never told him about any abuse taking place. M.T. said that although she did not recall that they looked at the entire deck of cards in detail, she and her brother definitely looked at the oral sex card and a few other cards. In her evidence in chief M.T. testified that her brother did not look at the cards for a very long time but in cross-examination she said that they were looking at the cards for a few minutes. She then put the cards back on the side and she and her brother went back upstairs and nothing more was said about it. She could not recall if H.D. was in the house at the time.

(v) Evidence in cross-examination/re-examination

77Although in her evidence in chief M.T.’s evidence suggested that G.B. only took his pants down on the second occasion, and that on that occasion he took her pants down as well, at the preliminary inquiry M.T. testified that each time it was “more or less the same thing” in that G.B. showed her a pornographic card, he took his pants and her pants down and he told her that he wanted her to do to him what was shown on the card and then she would perform oral sex on him, he would ejaculate at the end by touching himself and he would take his fingers and rub her bare vagina. At trial M.T. testified that this evidence was true.

78Mr. Brauti then put to M.T. that: as you described at the preliminary inquiry each time it's the same in the sense that G.B. takes your pants off? This was in fact not what she had said at the preliminary inquiry as she had used the word down but, in any event, M.T. agreed that G.B. took her pants and underwear “off” and that he took his pants and underwear “off”. She also agreed that each time she would perform oral sex on G.B., and he would take his bare fingers and rub her bare vagina with his fingers, and on one of these occasions he asked her to put her finger in his anus. M.T. did not recall if G.B. ejaculated on the two occasions she recalls, although she did recall that both times, he wiped himself with the Kleenex. M.T. confirmed in cross-examination that when these incidents occurred both she and G.B. did not have their pants or underwear on.

79In re-examination M.T. was asked for some clarity as to whether or not she was talking about the pants actually being taken off from around the feet, leaving her and G.B. totally naked from the bottom down or whether the pants were “down”. She answered that she recalled that her pants and G.B.’s pants were lowered and not completely taken out from the feet.

80Mr. Brauti put to M.T. that it would only take someone about five to six seconds to come down the stairs, but she would not agree with that. It was also put to her that if someone came down the stairs there would be no time for recovery i.e. to get their underwear and pants back on but she would not agree with this either, stating that she did not know how long it took for her to recover. She did agree there would be no hiding in this workshop area and that anyone coming into the basement could have come at any time, without any notice.

81M.T. was confronted with the defence version of events. It was put to her that what in fact happened was that G.B. came into the basement to call the kids up for dinner and that when he got to the bottom of the stairs, he saw the light on in his workshop and M.T. looking at the cards. He took them from her, put them in his pocket and told her to go upstairs. G.B. told his wife about the incident and later that evening M.T. was admonished by N.B. for looking at the cards. It was put to M.T. by Mr. Brauti that she just could not say either way, whether that took place or not, and she agreed that that was correct. It is significant that M.T. did not say that this never happened, only that she just could not recall either way if that version of events was true.

(vi) Evidence of A.T.

82A.T. testified that on one occasion when they were visiting G.B. and N.B., for some reason – he did not know why – he went down to the basement to see where M.T. was. He said that as he was half to a third of the way down the stairs, he could see the open workshop which he said was located directly in front of the stairs. This is not correct as I accept that the workshop area was to the right of the stairs. I did not find this error significant given A.T. would have been very young when he made this observation. As for when on the stairs A.T. could see the workshop, there was a lot of cross-examination on this subject which I do not find very relevant given G.B.’s admission that the workshop could be seen before getting to the very bottom of the stairs. It may be that A.T.’s evidence suggests he saw the workshop earlier than he in fact did but in my view that is not material.

83A.T. testified that on this occasion he has a distinct memory of when he looked towards the workshop area, of seeing G.B.’s left side and left arm as a profile, which would mean that G.B. was facing away from M.T. As he came down, A.T. testified that he could not see M.T. fully but he could see that she was seated on something, but he didn't really pay too much attention to her immediately as he looked towards G.B.. He saw G.B.’s hands making a motion in and around his beltline that lasted for a second or second and a half. It was the first thing that A.T. saw before he continued down the rest of the stairs. Although he testified that he did not associate the movement with any particular act, he also described that motion as something that he would typically see in the washroom, when someone was pulling their pants together at a urinal. It did not appear that G.B. was pulling up his pants and there was no part of G.B. exposed as being naked. A.T. agreed this touching of the beltline by G.B. had no significance to him at the time.

84A.T. testified that G.B. turned towards him and “flipped” some sort of card of a naked woman towards him, so he could see her breasts. According to A.T., G.B. said something to the effect of: “hey, what do you think of this”? A.T. looked at the card and testified that he was “consumed by it, looking at this naked woman”. A.T. added that he believes that G.B. took the card or put it away and then he turned around and went upstairs leaving him and M.T. alone. He testified that M.T. had a card of a woman performing oral sex on a man in her hand and this was the first time he had seen anything like that. He and M.T. then spent some time looking at the other cards together. A.T. had no recollection of M.T. saying that she was looking at the cards with G.B. According to A.T., M.T. decided to put the cars away, and she suggested that they go upstairs. He did not know what she did with the cards, but she put them somewhere, and then they went upstairs.

85They did not tell their parents or anyone about what had happened in the basement. A.T. did not recall whether or not he ever discussed his evidence about the playing cards incident with M.T. after the incident and if they did, what might have been said between them. Although G.B. had not said anything to A.T. about keeping the cards or the fiddling with his pants a secret, he never disclosed the incident to anyone until October 2017 when he gave his statement to police.

86When A.T. gave his statement to the police, he did not mention anything about G.B. showing him a card and saying something about it. A.T. explained that when he gave his statement to the police, he was speaking in generality and not describing events in specific, excruciating detail. When he read his police statement before the preliminary inquiry, he noted that this detail was missing, and he informed the officer in charge.

(vii) Evidence of H.D.

87H.D. testified about one occasion during a family gathering at G.B.’s house in the 1979 to 1982 timeframe when she believes that her sister was in the basement with him. She was a little absorbed in a conversation the adults were having but she remembered that her mother asked where her sister was. She believes that it was N.B. who replied that she thought she was downstairs with G.B. At the time this struck H.D. as odd because they did not generally play with G.B. She recalled thinking what would M.T. be doing in the basement with G.B. when her brother was upstairs. She was going to see what her sister was doing downstairs but A.T. got up and she saw him approach the basement door and she believed he was going to go down. She stayed upstairs so she could continue to listen to the adult conversation.

88Although H.D. planned on asking A.T. later why M.T. was in the basement with G.B., she forgot to do so. H.D. admitted that she did not know how long M.T. and G.B. were in the basement or whether or not they went down there together and she had no recall of seeing G.B., her sister or her brother coming back up the stairs. This is the only time that she could recall when G.B. and her sister were alone together in the basement, although she fairly admitted that she in fact had no first-hand knowledge that they were in the basement together. Although H.D. recalled being curious about this at the time, this was another example of a time she remembered, once M.T. disclosed the allegations, when there was an opportunity for something to have happened between her sister and G.B. and that is why she reported this memory to the police.

(viii) Evidence of G.B. and N.B.

89G.B. testified that most of the time he was upstairs with the adults, unless he had to go downstairs and get something for his wife, like drinks, or call the kids upstairs for dinner. He testified that there was never a time he spent as long as 15 to 30 minutes alone with M.T. G.B. said that had he spent that much time with M.T. the others would probably have questioned where he was. He also testified that “the kids and people” were always moving in and out from the basement during a family gathering although I am not sure what he meant by “people” as he testified that he was usually on the main floor with the other adults.

90After three attempts by Mr. Walker, G.B. finally admitted that in addition to the time he went to the basement and saw that M.T. had been looking at his pornographic cards, there were other times when he was the only adult in the basement.

91G.B. testified about one occasion during a family gathering at his home when his wife asked him to go down to the basement and tell the kids to come upstairs and eat. He opened the basement door and walked down and as soon as he reached the last two or three steps, he noticed that his workshop light was on, when it should not have been. When he looked at that area, he saw M.T. there. He walked over and before he switched off the light, he looked around to make sure she had not messed up his electronic tools or equipment because they he had “very sensitive shop equipment lying around”. He noticed that all the playing cards were out of the original casing and on top of the workbench. The only person who was there was M.T. and so he concluded that she must have been looking at his cards. By this point M.T. had walked a little bit past him, and he did not say anything to her. G.B. recalled that A.T. was playing with the other kids in the basement and that all the kids were there. He did not know if A.T. had looked at the cards or not. He denied showing a card to A.T. and testified that that he would never show a young boy of that age a naked explicit playing card because it’s inappropriate for young children to see such kind of cards.

92G.B. testified that he took all the loose cards and put them back in the original casing and put them in his pocket and went upstairs with the kids. G.B. said that he was “kind of shocked” that “they” had had a look at the cards and that he put them in his pocket because it was inappropriate for the young kids to see them.

93According to G.B., when he went upstairs, and got a moment with N.B., he told her that it looked like M.T. had gone through his cards and had seen them all. N.B. was surprised but she was busy giving out food to the kids, so she carried on with her business and he walked away. At the end of the evening when everybody had left, N.B. told him that she had talked to M.T. and told her that she shouldn't be going around looking at people's things and that "those cards are not appropriate for you, so you shouldn't be doing that kind of crazy things." N.B. confirmed this evidence. She testified that she was a little upset that this had happened, and that she spoke to M.T. about it. She told her that she shouldn't be going into other people's things and going into areas she shouldn't be and that the cards were not meant for her. M.T. kind of nodded and that was also what she remembered.

(e) Incident in the room with the red carpet

94M.T. testified that the last time G.B. inappropriately touched her occurred in a bedroom with a red carpet in the basement of her home at Home 2, sometime after January 1983 and before the Winnipeg Wedding in the summer of 1984. She recalled that her brother and sister were home and G.B. and I presume N.B. had come for a visit but that for some reason her parents had stepped out and were not home.

95M.T. agreed that the situation was similar to G.B.’s house, in that family and friends would come over for visits, the adults would mostly stay on the main floor and the kids would go in and out of the basement playing. She agreed that adults would occasionally come down to the basement and check on the kids. She could not say how many other people may have been present and who they were but agreed that there could have been 10-15 people at the house. She did not recall how or why but she and G.B. were in the basement.

96M.T. testified that when she was in the basement with G.B., he opened the bedroom door of the room that had a red carpet and told her to come in which she did. She did not recall if anyone else was in the basement with them at that time. He closed the door, but she has no recollection of a lock being on the door nor G.B. locking the door nor anything being put in front of the door to block it from opening. G.B. told her to lie down on the floor which she did. M.T. testified that G.B. pulled down her pants and underwear and had pulled down his pants and. She did not say she was naked although she did say it was possible that she was wearing a dress. She did not know one way or the other. She later described the events as G.B. taking off his pants and underwear and then doing the same for her.

97M.T. testified that the two of them proceeded to lie down on the floor. G.B. got on top of her and was rubbing his penis on her vagina. She remembered feeling the sensation of the friction and pain and G.B. was asking her if it felt good. She told him that it did. She felt a lot of rubbing of his penis on her vagina and remembered feeling the “weight of him” on her and a “lot of heaviness” and his breath in her face. When asked if she recalled if G.B. was trying to push his penis inside or not, she said that there was a grinding movement up and down with his body and a lot of rubbing of his penis on her vagina.

98M.T. testified that she remembers seeing white liquid on her leg and she asked him what it was. He told her not to worry and that it was “just milk”. He wiped it off her leg. Once again, he told her that this was their secret and that it was special. She recalled wanting to feel special and not telling anybody because that was their secret. M.T. testified that she then stood up and her clothes were pulled back up. Following this incident M.T. just remembers playing with her brother. She did not have a recollection of her parents coming back home. M.T. could not say how long she and G.B. were in the bedroom but she said that she would not say that it was more than an hour. When asked if it could have been shorter, she agreed that it could have. In cross-examination she agreed that it could have been 15 to 20 minutes. For however long it lasted, they were undisturbed.

99In connection with this incident M.T. also testified about a time when a male teacher brought his twin babies to her Grade 4 class, which was really exciting for all the kids. Her teacher was present, and they were all seated in the classroom on the floor. The father of the twins told the children how hard it was to keep up with feeding the babies milk because they both needed milk. M.T. testified that she remembered that she was “so close” to asking him why he could not just feed the babies his milk.

100At this time M.T. testified that she did not understand what sex was or what appropriate touching was or what was inappropriate as her parents had never discussed it. She just felt that she was special to her uncle and that specialness seemed to have evolved from the tickling to the oral sex to what happened in the bedroom with the red carpet. That incident, however, made her feel uncomfortable because G.B. was asking her if it felt good and although she said “yes,” the truth was that it did not and that she felt he was really heavy on her and she had no sensation of pleasure.

101M.T. testified that the first time she mentioned this incident to anyone other than to medical professionals was to her sister in October of 2017 at the police station when they were waiting to be interviewed. M.T. was the only Crown witness to testify about this incident.

102G.B. testified that he had only ever been at Home 2 five or six times and those times were always in the context of family gatherings where there would be 10 to 15 people present. He testified that he may have been to the basement three of those times: once when he took his first tour of the house with A.K.T.; next at his sister-in-law’s engagement party and the third time was post-1984 when the couple from Winnipeg were staying in the basement. He denied ever going into the room in question and spending any time with M.T. alone in the basement. In fact, he described it as being impossible at such family gatherings that he would be able to disappear with M.T. into the basement by themselves for up to an hour uninterrupted. Moreover, based on M.T.’s story, he said that he would have no notice if someone suddenly opened the door to the room which could have meant them finding him and M.T. naked with ejaculate on her.

103Both G.B. and N.B. testified that they were certain that they were never asked to watch the children when their parents popped out of the house even for a short time or had to go into the backyard. N.B. testified that one of M.T.’s parents was always home if they visited and that there was no time that G.B. was in the basement alone with M.T. for any significant period of time. Although, as I have said, H.D. found it odd that M.T. was alone in the basement with G.B., she did testify that there was a time when she and her siblings were with G.B. and N.B. and her parents were not there.

(f) The alleged sexual touching between M.T. and A.T.

104A.T. testified that his sister touched him sexually and that he remembered three particular incidents when he was around seven to nine years old, which means that these incidents occurred when M.T. was between eight to 11 years old, between 1981 to 1983.

(ix) First Incident

105When A.T. was probably seven or eight years old, he recalled an incident in the basement of the family home on Home 2 in the bedroom with the red carpet. M.T. told him that she wanted to try something that Foaji had shown her. She told A.T. that Foaji had shown her how to rub a piece of paper on the outside of his anus and that Foaji said it felt good. M.T. wanted to try this on A.T. so he could tell her how it felt. A.T. testified that he got down on his knees and bent over and M.T. took some strips of paper and she rubbed it lightly over the outside of his anus. They were little pieces of scrap paper, or possibly Kleenex that she tore up. While M.T. was doing this, she asked him if it felt good. This lasted maybe a few minutes. What A.T. took from this incident was that M.T. and G.B. had been engaged in this kind of act together.

(x) Second Incident

106A.T. recalled that the next incident was when he was probably eight or nine and they were on a road trip somewhere. He did not know where, but it was late at night and they were in the back of the car with a blanket over them, with his parents in the front seat. He was in the middle of the back seat and M.T. was on one side and H.D. was on his other side. M.T. whispered in his ear that Foaji told her that it felt good if she rubbed the top of his penis and that she wanted to try it on him. M.T. took his penis and rubbed the tip of his penis with her fingers for a period of time and asked him how it felt. A.T. did not believe that H.D. heard or saw this. His mother could have been sleeping. Again, as a result he knew that M.T. had been involved with G.B. in relation to that sexual act as well.

(xi) Third Incident

107The last incident that A.T. remembered was another time in the basement at Home 2 when he was eight or nine. He and M.T. were in the bedroom with the red carpet. M.T. told him that she wanted to show him something and that he was to rub his penis on her vagina while they were lying down. He did this for a few minutes and then all of a sudden M.T. told him to get off her and he did and that was the end of it. A.T. testified that he could not recall M.T. specifically mentioning G.B. this time, but he guessed that this was something G.B. had showed her. When asked if that was his belief at the time, A.T. testified that he did really “connect the dots” at that point to G.B., but he thought that he concluded that this must be another thing M.T. did with G.B. as that would make sense.

(xii) Evidence of M.T.

108After M.T. was asked about her discussions with A.T. and H.D. at the police station about what A.T. alleges that she did to him, evidence I will come to, she was asked what she actually remembered. M.T. testified that she did remember being in the car with a blanket over them, but she did not remember what her brother described including her touching him or saying what he testified that she said. She only remembered one incident when he was on all fours and he did not have his pants on. She was behind him and poked his bum with a tissue. That is M.T.’s only memory of touching her brother. She did not remember saying anything or her brother saying anything. M.T. testified that this just seemed like a “natural extension” because they used the washroom in front of each other. A.T. would chat with her when she was naked in the washroom and vice versa. It did not seem unnatural that she would do that to him when she was in Grade 4 or 5. M.T. also said that she had done this before to G.B. and at the time she thought it was a part of something natural that she had done before and that there was nothing wrong with it. In re-examination M.T. testified that she had had the memory of using a tissue on her brother in the past and that when he brought it up at the police station, it was almost like he refreshed her memory. The first time they talked about it was at the police station.

The Toronto Star Newspaper Article

109M.T. testified that in Grade 5, when she was approximately 10 years old, she read a Toronto Star article about inappropriate touching that described certain kinds of touching and sexual activities and kids being “molested” and being told it is a special secret. This was in 1984 before the Winnipeg Wedding incident which I will come to. M.T. testified that the information in this article was similar to her experience and this is when she realized for the first time that what was happening to her was not appropriate. As such, in 1984 M.T. agreed she would not have allowed G.B. to abuse her anymore and that she would also not have engaged in abusing anyone else such as her brother. This confirms that if the sexual touching occurred between M.T. and her brother it had to have happened before the Winnipeg Wedding in 1984.

110M.T. admitted that as a result of reading the article she knew that abusers telling people to keep the abuse a secret was not something that people should do. She also knew that reporting the matter as soon as she could was the right thing to do. M.T. testified, however, that she did not think about telling anyone or speaking to G.B. about it as she still really liked him and wanted to feel special. M.T. was pressed on this in cross-examination. She testified that although she had this awareness that it was wrong, she also felt bound by the fact that she promised G.B. that she wouldn't say anything -it was their secret and she was special. M.T. testified that there were a lot of contradictory feelings and she was still not quite understanding everything - her “mindset was still very confused”.

111At some point after the incident in the room with the red carpet but I presume after M.T. read the Toronto Star article, she testified that she was worried that she would feel more pain and she was now aware that what was happening was not right. She was feeling very stressed and complaining about pain in her back and so her family doctor referred her to a pediatrician. He ran some tests and she was admitted to hospital for a few days. The doctor told her that he could not find anything wrong with her back but that sometimes someone can get stressed and he asked her if there was anything that she wanted to talk about. M.T. testified that she was “so close” to telling him that she was worried about what had happened, but she trusted her uncle and she did not want to go against his secret. She found it a very confusing time and she didn't say anything to him.

Winnipeg Wedding and thereafter

112In 1984 the T. and B. families attended a family wedding in Winnipeg (the “Winnipeg Wedding”). I heard evidence from M.T., A.T., G.B. and N.B. about a party that was held at a house before or after the wedding. It is important because M.T. claims that while she was playing in the backyard of the house during the party, she saw G.B. nod side to side at her to follow him, although she did not know to where. The nod was similar to his other nods and she took the nod to mean come into the house to engage in some kind of sexual act. M.T. did not know if anyone else saw the nod. She testified that she said ‘no” and shook her head to indicate no, although later in her evidence she testified that she either said no or shook her head no. She started to cry heavily because of all the feelings she has described. She did not recall who was nearby or where her mother was. She did not recall how she got into the house or who she went into the house with, but her next recollection is of sitting on the edge of the bed, facing the bedroom door with a relative on her mother’s sister’s side and her daughter and H.D. with her. M.T. made no mention of A.T. being present although as I will come to, he testified that he was in the bedroom and he provided a similar accounting of the events. H.D. was not asked if anyone besides her mom was in the room when she and her sister entered it.

113M.T. testified that this lady and her daughter were asking her what was wrong and were trying to soothe her. M.T. recalled crying and saying that she was not feeling well and that her back was sore. In fact, her back was not sore, but she was clutching her stomach and felt sick to her stomach. G.B. showed up with a look of concern and asked if she was okay and why she was crying and then he left. M.T. admitted that this was an opportunity to disclose what G.B. had been doing to her, but she testified that although she was among family members that she trusted, she did not know the woman who took her to the bedroom very well and so she said nothing. She also agreed that in coming to the bedroom while she was crying and asking what was wrong, G.B. took a huge risk because he was asking in front of family why she was upset and what was wrong and that for all he knew she was going to answer and say she was upset because he was touching her.

114M.T. testified that she said no to G.B. this time because she had a realization at that time that this was wrong, and she was worried that she would have pain because she felt pain during the last incident in the room with the red carpet. She was also scared and felt fear. When asked why she did not tell them the real reason she was upset, M.T. testified that because G.B. showed up at the room and asked if she was okay and what was going on, right away she felt that there was this conflict because it was wrong, but “it's our secret” and so she did not tell anybody.

115A.T. gave similar evidence. He recalled the party at the house and the fact that there were many people there. He testified that he, M.T. and their cousins were playing, running around outside and running up and down the stairs to the basement. He recalled that at one point he and M.T. came upstairs and were exiting the side entrance of the house. He saw G.B. coming out of the back yard. A.T. was closer to the back yard and he saw that G.B. was looking for M.T. – asking him where M.T. was and then calling her and motioning her towards him by waving his hand. A.T. looked at M.T. and told her that Foaji was looking for her as she was coming out of the house.

116According to A.T., as soon as M.T. saw G.B. motioning for her to come over, she started crying hysterically and yelling, “no, no, no”. A.T. and his cousin did not know what was going on and so they called his mother or another adult to come and look at M.T.. M.T. was pretty upset and started to complain, saying her stomach was hurting and so their mother and grandmother and some other adults took M.T. upstairs into one of the bedrooms to have her lie down. According to A.T., he and his cousin were in the room with M.T. and after a bit of time, G.B. came up to the doorway entrance area and looked in and asked how M.T. was doing or whether she was okay. He was told that she had a stomachache or whatever and he turned around and left. A.T. admitted that this was not a particularly unusual thing for somebody to do with a child crying in a room and that the fact G.B. popped in had no real significance to him until at least 1992.

117H.D.’s evidence as to where this incident occurred is somewhat at odds with the evidence of the others who testified about it. She said that they were in a church or banquet hall where the wedding was to take place. She was the oldest of the children playing in a hallway that led to the main room. G.B. was standing off to the side to see what the children were doing. She did not recall if his son, who would have been two or three at the time was there or not. She became aware of his presence when her sister stopped playing all of a sudden and became a little bit clingy towards her and she noticed that she became tense, uncomfortable and nervous, saying that her stomach was sore. At this point H.D. noticed G.B. in the hallway looking their way. Her sister said that her stomach was really hurting, and she started crying. At the time H.D. did not think that her sister’s change had anything to do with G.B.. H.D. had told the police and gave evidence at the preliminary inquiry that her sister had said that her back was hurting. Her memory at trial was that it was her stomach and she added that when her sister was tense, she always complained of her stomach.

118When they went back to the house where they were staying in the basement, H.D. took her sister into a room in the basement where their mother was, and she told her mother that all of a sudden M.T. had started to cry saying her stomach was hurting. Her mother asked her sister what was wrong while she was rubbing her back. According to H.D. neither she nor her mother believed M.T. because this happened all the time when she would be doing something and then all of a sudden she would say that her stomach was hurting or that she was not feeling well, but they could see that she was okay. H.D. remembered that G.B. peeked his head in to say, "Oh, is she okay?" and that they responded that she was fine and that her stomach was hurting, and he left. She could not recall if the door was closed or slightly ajar. Although she found this odd because G.B. was not very close to them, H.D. did not think too much about this at the time. However, once her sister disclosed what happened to her, this incident stuck out in her mind because after she asked her sister when the last time that G.B. tried anything with her, M.T. told her that Winnipeg was the last time he tried something with her. Although H.D. described this conduct as concerning, she could not articulate why an adult asking if a crying child was okay was abnormal.

119G.B. testified about the house where the party was before the wedding. He and his wife both said there were 100 people at the party and that the house was packed. The women were in the house and the men were in the backyard. G.B. was caring for his son who was three at the time. G.B. testified that the men were told that if they needed to go to the washroom they could go to the house behind the house where the party was as there were a lot of washrooms there. There was a fence and a gate leading into the yard of that house. G.B. admitted that if he needed to go to this house that his father could take care of his son.

120According to G.B., when he was outside, he and his father and uncle were sitting on some lawn chairs in the backyard of the house where the party was. They heard a loud audible “commotion” in the house that went on for probably five minutes or something. When asked if he was the only one to respond to it, G.B. testified that he and his father and uncle looked at each other and so he got up. No one else in the backyard was rushing into the house to see what was going on. G.B. could not understand what was going on in the house with so many people, so he looked around and saw a kitchen window and happened to see N.B. washing some dishes. Instead of going inside the house he asked what was going on. She told him not to worry and that she would tell him later. Once they were back at their hotel N.B. told him that M.T. was in the room with her mother and sister and that her mother had told N.B. that she was crying about her menstrual period. G.B. denied ever going into the house or sticking his head into the room where M.T. was at any point. He testified that the house was “jam packed” and that there was no way for him to move anywhere in the house freely. He was taking care of his three-year-old son in the backyard almost the entire time while his wife was helping with food inside the house.

121G.B. testified that the next day the wedding took place in a banquet hall. He was looking after his son and he saw the kids playing in the hallway. His son started going towards the hallway and he followed him, and they ended up in the hallway. There were some young girls and kids playing around he allowed his son to join them and he stayed back and watched him play. Nothing of significance took place - it was just normal kids playing.

122N.B. confirmed that G.B. was taking care of their son in the backyard during the party at the house and she testified that she never saw him in the house. She also said that there was a “commotion” and that she asked M.T.’s mother what was wrong - what's happening and why everyone was upset about something. She was told that M.T. was not feeling well. N.B. testified that she did not talk to G.B. about this at the house and in fact she did not know how it would have happened that people outside the house became aware of this commotion although she also testified that she guessed that there was some noise when it was happening, that people outside noticed, and so G.B. did ask her about it. N.B. testified that the first time she spoke to G.B. about this was back at the hotel, not at the house and that she told him that M.T. had some pains and was not feeling well probably due to her menstrual cycle. N.B. did not recall anything else out of the ordinary happening either at the house or at the banquet hall.

123After this incident there were no more sexual incidents with G.B. M.T. testified that she decided not to tell anybody. She said that she was scared because she felt like she had done something wrong and if she told someone she wondered if she or G.B. would get into trouble. She still really liked him.

Change in M.T.’s behaviour

124After the summer of 1984 there were still family functions and visits, where M.T. would see G.B., but she testified that it was different. She kept her distance and put space between them. She did not interact with him and he never nodded to her again to follow him. She did admit that G.B. has a nice sense of humour and in social gatherings he would be telling jokes and they would be laughing- just the general family interaction over the years.

125M.T. was asked how she was dealing with this history of sexual abuse and whether or not it changed her behaviour. She testified that she felt that this abuse only happened to girls and so she tried to look like a boy and that stuck with her throughout middle school. In Grade 8 she tried to grow her hair. but she cut it again in Grade 9 or 10. She also stated that a feeling of betrayal hit her as she got older, in Grades 8 through 10, just feeling like “where's all the attention gone?” and even after the summer of 1984, not feeling so special anymore and wondering why and so that “definitely felt bad”. M.T. testified that she always had a hard time academically and so she would not say these incidents affected her grades but in Grade 7, because of all these feelings of negativity, she really got into her schoolwork and by the end of Grade 7 she was an A student. She found that through her studies and getting extra help and really focusing, she was getting that self-esteem that filled the “hole”; what I took to refer to the fact the attention from G.B. was gone.

Disclosure of the allegations

(g) To M.G.

126M.T. testified that the first person she disclosed to about what had happened to her was her good friend M.G., when she was 15 or 16 years old and in Grade 10. M.G. testified they were in Grade 11 or 12. They became close friends in high school and are still best friends. M.T. recalled that M.G. was telling her about difficulties she had growing up with a schizophrenic brother and she was feeling low. M.T. felt safe and told her that she was molested when she was very young by her uncle-her dad's sister's husband and she left it at that. She did not go into details.

127M.G. recalled that M.T. told her that she had been molested multiple times by an uncle by marriage when she was younger and a child. She was not sure if M.T. used the word molested but she understood right away that it was sexual. M.T. did not provide any details or a name. She could see that M.T. was heartbroken and in a great deal of pain and was very anxious, as she hadn’t told her parents yet. M.T. was trying to work up the courage to tell her parents. M.G. testified that this disclosure came out of the blue and M.T. was the first to make disclosure.

128M.G. suggested to M.T. that she speak to a family doctor and because M.T.’s family doctor was a good friend of the family, M.T. went to M.G.’s family doctor who was the first medical professional whom she told that she had been sexually abused. Over the years since then M.T. has seen a number of medical professionals to seek help about how to deal with having been sexually abused. No evidence of these disclosures was led. I understand that a motion for production of these records, brought by the Defence, was dismissed in advance of trial.

(h) To A.K.T. and S.

129There is no dispute that M.T. made a further disclosure to her family in 1992; although there is some confusion in the evidence, however, as to whom she disclosed first. According to M.T. she told her father first, but he testified that he was told by his wife that M.T. had been molested after his daughter spoke to S. and S. told his wife this. He then spoke to M.T. alone. According to M.T. she told her aunt S. after she spoke to her father. I did not find these differences to be material as the main fact is that M.T. disclosed her allegations at least to some extent to her family in 1992.

130M.T. testified that in 1992 she was having a hard time coping with the sexual abuse. She had started university and was not enjoying her studies. She was struggling academically and failing almost all of her classes. She had started drinking more and was feeling very depressed because she had been molested. One night when she and her father were sitting on the sofa and he asked her how things were, she told him that she had been very depressed, and that the reason was that she was molested when she was young by Foaji. She did not tell him any details. He hugged her and she was crying, and her father told her not to worry and that they would deal with this. M.T. testified that this was the first time she told a family member. When asked why she told her father at this time she testified that she was feeling hopeless and helpless and was worried about how she was going to cope, and she just couldn't keep it to herself. At that point she “needed more support in different ways”.

131According to A.K.T., he was told by his wife that M.T. had been molested after his daughter spoke to her aunt S. and S. told his wife this. He then spoke to M.T. alone, in the bedroom in general terms but he did not go into details. He said that even now, as he was testifying at the trial, he did not know the details. He admitted that M.T. felt a lot of anger towards G.B., which he did not regard as unusual given what had happened.

132Shortly after M.T. spoke to her father she testified that her mother’s sister, S., came for a visit. She slept in M.T.’s room on the floor and M.T. told her that she had been going through a lot and that she had told her dad that she had been molested by Foaji. M.T. testified that S. was very consoling and asked if her mother knew. M.T. did not think so and S. told her that she would speak to her father and that they would deal with this and support her as a family. M.T. testified that she chose to tell S. as opposed to her mother because S. is a very good listener and over the years, if there were any conflicts with her brother or her parents, she was someone she could confide in. She did not give S. any details about what had happened to her, only that she had been “molested”.

133The following morning, S. was downstairs in the kitchen with her parents and M.T. testified that she believes that S. had already told her parents because her mom was crying a lot. She remembers her brother being there, but she did not recall if H.D. was there. Her father wanted to speak with J.T. to get some advice on what to do from there. Again, M.T. did not discuss any details with her family. She had no recollection of what her brother said or how she interacted with him on that particular day.

(i) To J.T. and N.

134M.T. testified that a couple of weeks later her brother called her and told her to come home because J.T. was going to come over to talk about the abuse. When she got home J.T. was there with his wife, N., and they asked her what had happened. She told them she was not comfortable talking about it and when they asked if she wanted to report it to the police she said no and that she could not talk about it. J.T. then suggested that she sit with N. and write down on paper what happened. M.T. agreed to do that. She doesn’t remember all the details of what she wrote down, but she does remember writing about the oral sex. She testified that she definitely provided more detail than what she would have said verbally but in cross-examination she said that she couldn’t recall exactly what she wrote on the piece of paper. She definitely recalled describing some of the oral sex incidents but could not say whether or not the word she actually wrote on that piece of paper was “fellatio” or whether or not she wrote about the incident in the room with the red carpet on that piece of paper. According to M.T., N. gave the paper to J.T. and her dad and they said they were going to call G.B. and tell him that they wanted to meet him and confront him about this. M.T. testified that she does not have any idea where that paper is.

135H.D. testified that at the time of her sister’s disclosure of these allegations, her parents were worried about M.T. because she was becoming more and more withdrawn within herself. She just seemed to not want company anymore and it was progressively getting worse and as usual it was hard to get information out of her. H.D. understood that when her aunt S. was coming for a visit that her mother asked S. to speak to M.T. H.D. believes that her aunt did speak to her sister and she remembered the next morning when her aunt S. came downstairs to the kitchen, where H.D. was with her parents, that S. said that she had spoken to M.T. and that M.T. had told her a few things and that “G.B. has sexually molested her." H.D. remembers this because it was “just was like a bomb going off”. Her mother started shaking and H.D. was shocked. Afterwards when her sister came downstairs, she and her mother hugged her, and her aunt left for a lunch appointment with another family member. H.D. did not speak to her sister at that time about it too much, but she remembered her father saying that he was going to call J.T. and ask him to come over and tell him what was happening.

136H.D. recalled that late afternoon that day, J.T. and his wife N. both came over and they met with her parents and M.T. and they were told what M.T. was alleging. H.D. said that she was present, but she made no mention of A.T. being present. According to H.D., N. offered to take M.T. into the kitchen to talk to her a bit so that she could write a few things down, as her parents were too shaken to hear the details. When they came back into the living room N. said that she had been told some things that were written on the paper and N. asked her father if he wanted to see the paper. He said no - that he did not think he could handle that yet. H.D. never saw the paper and does not know what happened to it. She believed that N. gave it to J.T.

137Later that evening H.D. asked her sister why she had not told her anything and M.T. responded that she was afraid that H.D. would be disappointed in her. H.D. testified that she felt a great sense of guilt for not looking out for her sister more and paying more attention. She asked her sister what happened over the years after this and M.T. always told her that she could not talk about it.

138J.T. testified that he asked M.T. if she could write down on a piece of paper what the exact nature of the harassment was and that he basically told her to just write down one word that would describe what happened. The one word she wrote was “fellatio” and that was in his presence. He did not recall that M.T. wrote down any other sexual act. According to J.T. he looked at the piece of paper, folded it and then gave it back to her. He denied keeping the piece of paper and testified that he has no idea what happened with it.

(j) To A.T.

139M.T. testified that shortly after her disclosure to her father, S. and her mother, she had a conversation with A.T. He told her that he heard what happened and asked her if “Foaji did stuff” to her and when she said yes, he gave her a hug. They did not go into details.

140A.T. testified that the first time he found out about the allegations that M.T. is making with respect to G.B. was in the 1991-1992 timeframe when he was 18. It seems that his recollection is that M.T. told him before she told her parents. In any event, he recalled that their parents weren't home at the time and he found M.T. in her bedroom drinking, or, she seemed drunk at the time. He asked her if she was drunk and M.T. responded that she had something to tell him. They were in her bedroom and she sat him down on the bed and said that she wanted to tell him that when they were younger, she was sexually abused, or molested – he did not know the exact words she used, but – by someone in our family.

141A.T. testified that he was “shocked” and immediately asked her “who”? M.T. told him it was Foaji. They talked for a little while – he did not recall what they spoke about, but M.T. did not disclose any specifics about what had happened to her at that time, although A.T. did admit that there was a possibility they spoke “a little bit” about some of the events that occurred. However, he was certain that they never spoke about what had happened between the two of them until they were at the police station in October 2017. A.T. testified that after his parents returned, they had a family meeting and J.T. and N. were over at the time as well and he recalled they asked her to write everything down.

142A.T.’s reaction to M.T.’s disclosure is significant given the position of the defence that he is not being honest. He was cross-examined at length on the fact that he said he was “shocked,” that he asked who it was, I was shocked, that when M.T. told him it was Foaji who was sexually abusing her, “that's how I find out” and that he admitted that he was “completely oblivious” to the fact that M.T. has been sexually assaulted until 1992 when she made her disclosure to the family. This was despite his admission that when M.T. made her disclosure to him in 1992, he still had memories of what she had done to him, that he never forgot about these incidents of sexual touching with his sister and the references to G.B. to the time the matter was reported to the police and that he knew at the time this touching by M.T. happened that G.B. had been involved in sexual acts with her.

143A.T. also admitted that what M.T. had done to him came to mind and testified that that was when “all the pieces of the puzzle just sort of fit together in my head. But I never, I never brought it up to anybody”. A.T. explained that he just didn't want to talk about it and that he couldn't because he felt “so shameful” and that talking about it makes him so upset. He didn't want to address it or bring it up. He never discussed it with anybody until they were at the police station.

144In cross-examination A.T. testified that he asked Meta: “who?’ “literally seconds later,” after she told him and that it was a natural reaction and a natural question to ask “because, … I didn't have time to process it.” If she had left it at that, and he had his own chance to think about it for maybe even a minute, it would have been clear to him who it was.

145A.T. had a great deal of difficulty in explaining the choice of words he had used in his earlier evidence as to his reaction to what M.T. told him. He testified that he was shocked in the sense that “those memories were in the back of my head, suppressed,” that all of his memories “started connecting in my mind,” and “flashing into my head,” and that “it makes sense, especially when, with respect to the things she used to say to me”. It was put to A.T. that he was not only shocked, but he didn't even know who M.T. was talking about at the time, until she said it was G.B. A.T. responded. He testified that he reacted this way because none of these memories were “in the forefront of my mind at that point”, that when Mr. Brauti describing “shocked” it was in the sense that when M.T. told him, all those memories were in the back of my head, suppressed”, that he was “thrown off, I'm surprised by what she's saying to me, 'cause now she's verbalizing something”, that he was “not shocked in the sense that, oh, my god, I can't believe, how is that even possible…. I'm shocked these words are actually coming out of her mouth at this point”.

146As to his statement that this was how he found out, A.T. said that maybe it was a poor choice of words but that he meant “in terms of how it all became clear to me”.

147A.T. also testified that when the sexual touching between him and M.T. occurred, he had no clue what they were doing and that he couldn’t equate them to something wrong, or to something sexual. As a nine year old he had no education on what was right, the right kind of touching, the wrong kind of touching, because those things weren't taught in school at that time and their parents never talked to them about what was right or wrong in terms of what other adults were allowed to do to him. A.T. went on to say that to him:

none of this stuff was wrong, in my mind. I was nine years old. Why would I think anything outside of the fact that it, it, it was – okay, he's our uncle, he, he's our family member. Is it okay for him to do that? I don't know, I'm not - I don't have that discretion in my mind. In terms of, oblivious to the fact that she'd been sexually assaulted? Yeah, to me, it wasn't something that I equated to sexual assault. I knew that these things had had happened, in the sense that, what she was describing to me, but I didn't connect those things in my mind at the time, and I didn't know that they were wrong.

The confrontation with G.B.

148I heard from A.K.T., G.B. and J.T. about the time G.B. was confronted by M.T.’s allegation that he had sexually molested her. A.K.T. testified that he and J.T. met G.B. in an open field - a park and that they were standing up and talking. He denied that they met in a restaurant. I find that this evidence from A.K.T. is incorrect. Both G.B. and J.T. testified that they met at a restaurant where they could have a drink. J.T. remembered G.B. having a beer and himself having a tea and this was corroborated by G.B. This was a time when I thought they may have discussed their evidence in advance of trial as I would not have expected them to remember this.

149A.K.T. did not recall what J.T. said to G.B. but he thought that J.T. said that M.T. alleged that he had molested her and that G.B. asked how she could remember this when she was so young at the time, that it was not his fault if the women come on to him and that if it made them feel any better, he was sorry. From what he recalled G.B. did not deny the allegations in any meaningful way - “flat out”. A.K.T. felt that G.B. was hiding something and that he was not telling the truth. He denied G.B. saying that she was “probably lying”. When his memory was refreshed from his statement to police, he testified that his memory when he gave the statement was more accurate than now and he adopted his prior statement. Although he denied that G.B. said that she was lying A.K.T. admitted that he “sometimes sprinkles the word ‘probably’ in. A.K.T. admitted that given the passage of time it was difficult to remember the exact words spoken by G.B., but he had a clear memory of that scene that is as clear as anything else he can remember. As I have already pointed out the memory of where they were is wrong.

150According to G.B., as soon as J.T. mentioned that he had molested M.T. when she was a young child, he flatly denied it and said: "I would never do anything like that to a young kid”. G.B. testified that he was totally shocked and very, very angry, very upset, shocked and totally flabbergasted, wondering was going on and that this was ridiculous. G.B. admitted that he said something like: "She's probably lying"? and "What is she thinking? Like, why did she pick my name up, like, like, what's going on here?" He also admitted that he said something like: "How can she even remember from that long ago?" and that he could not remember when he was that young even if he had been sexually abused. He denied saying something to the effect of: "It's not my fault if women are attracted to me" or that he would apologize if it made people feel better. G.B. testified that he would never apologize to something which he had never done.

151G.B. suggested in evidence that he had some concern that someone else had sexually abused M.T. When it was suggested to him that if that was his belief that he would try to find out what was going on he said he would not because she was not his child and he did not want to get into more issues “because they already put me in a, in a bad spot”.

152J.T. testified that when he told G.B. about the allegations, that based on his demeanour, G.B. was “totally surprised”. He “flatly rejected” the allegations and “didn’t waiver”. He kept on denying the allegations for probably a few minutes. J.T. then turned to A.K.T. and said G.B. was denying it, and that was end of the conversation. According to J.T. G.B. never said that it wasn’t his fault if women are attracted to him. Nor did he say he would apologize if it made people feel better. If he had said these it would have upset J.T. and he would have remembered it. J.T. testified that G.B. did not say anything that suggested he was wavering.

153Apart from the relevance of this evidence to the credibility of A.K.T., J.T. and G.B., the confrontation is not relevant. Mr. Walker does not and could not argue that G.B. admitted any misconduct although some of these answers are somewhat suspicious.

The conduct of the parties following disclosure

154Soon after the confrontation with G.B., everybody in the family and extended family learned about M.T.’s allegations. M.T. testified that the 1992 disclosure of her allegations caused a rift in the family. G.B. described it as a “total shutdown”.

155M.T. testified that she excluded herself from family events afterwards, certainly if G.B. was going to be present, because she did not want to be around him. She also avoided community events where she knew he would be within the Indian community. She said that over the years she has chosen to avoid a lot of parties such as her grandma's birthday parties and weddings and milestone events in the family because she found it very difficult to face G.B. M.T. learned from others that G.B. was continuing to attend family events.

156G.B. testified that he never invited the T.s over, and they never invited him although he then added that for some of the family events, they would invite his wife and his children, but not him. In those cases, N.B. did not attend. They were, however, both invited to A.T.’s first wedding and they attended as did M.T. According to G.B. that was the only family event that M.T. attended, presumably when he was also present.

157Following the confrontation M.T. received sympathy and support from a number of family members. The fact M.T. isolated herself from family events where G.B. would be present caused her sadness. She admitted that missing her grandmother’s birthday parties caused her both sadness and anger. She had not been thinking about “all of that,” referring to the family rift and the fact she would choose to stay away from family events to avoid G.B. when she made her disclosure.

Discussions between the siblings about M.T.’s allegations before going to the police

158The discussions between the siblings are prior consistent statements and presumptively inadmissible. I heard this evidence without object as it is clearly relevant to the possibility of collusion and the tainting of the evidence of M.T. and her siblings.

159M.T. recalled one conversation about the playing cards with her brother when she was in her 20s. She asked him if he remembered the cards that she showed him, and he said that he did. She then told him that those were some of the things that G.B. made her to do to him and her brother got very emotional and gave her a hug. He told her that he should have told someone about the cards.

160A.T. testified that from the time of the initial disclosure by M.T. until the time they went to the police station he never discussed M.T.’s allegations with her. He was confident that they never discussed any details. When asked if he recalled a discussion with M.T. about the playing cards, A.T. did not recall one way or the other if they did but he admitted it was possible.

161M.T. did not testify about any conversations with H.D. before they went to the police station. H.D. testified that she and M.T. might have discussed the time she recalled G.B. tickling M.T. but she had not memory that they did. She did recall two conversations with her sister about the allegations when she obtained a few more details from her sister before they all went to the police station. Years after the 1992 disclosure H.D. recalled a time when she asked her sister if G.B. had actually had sex with her. She testified that M.T. told her that one time he had wanted to but that he told her sister that her vagina was too small. H.D. recalled another conversation after her twin girls were born in 2004, when M.T. came to visit her in California. When she asked her sister if she could tell her what happened M.T. told her that she could not talk about it, but when H.D. asked if G.B. showed his penis to her, M.T. responded that she had seen it. H.D. then asked why she did not press charges and M.T. told her that she would one day but that she was not strong enough to do it then.

162H.D. did not recall whether or not she and her sister discussed what she recalled about her sister and G.B. being in the basement together. She did recall speaking to her brother about it, however, just before she travelled to Toronto when her sister was going to press charges. H.D. called A.T. and told him that M.T. wanted to press charges and that she wanted them both to go to the station. She told her brother that she had a few select memories where there may have been opportunity and gave the basement as an example. Her brother responded that he remembered going down into the basement and he told her that he had other concerns too, but he did not share those with her. H.D. testified that she had no idea that her sister would say something happened with G.B. in the basement.

163H.D. admitted that she was in Toronto for a week or so and that they went to the police station in the middle of her stay. She testified that she and her siblings did not discuss the matter then. It was only at the station that they spoke about them. At that point they did not know that they should not talk about this together. They were not staying at the same place and they did not want to say anything in front of their parents as they did not know that her sister was going to press charges. They also could not talk about it when they went to visit their grandmother. I found this evidence difficult to believe at first but having considered this agree with Mr. Walker that they did not do so because it was too difficult a subject.

The Facebook messages

164M.T. sent G.B. a strange message in March 2012 through Facebook Messenger that does not appear to have any relevance. In August 2013 M.T. sent a message to G.B. asking if he was going to call her in the near future. She explained this question by the fact that she thought that G.B. had already been approached by A.T. or her parents and asked if she could speak with G.B. and she may have given them permission to give him her cell phone number, but nothing had come of that. The message continued that she wanted to “resolve the past to the extent that is possible and to let you know what I need to achieve some degree of closure”. She added that this was between the two of them and that he had the responsibility to help her get through it. M.T. stated that she did not get a reply to her message from G.B. or anybody in his family.

165G.B. admitted that he received this message and that he did not respond. He testified that he did not know the reason why he did not but that he thought M.T. was a “wacko” and that he was not going to write to her and encourage more going back and forth. He testified that he was “not interested in this, whatever garbage she's writing here, that's nothing to do with me”. He denied that he did not respond because he did not want to make M.T. angry because what he was most afraid of was that she would go to the police. N.B. testified that G.B. showed her the message and she advised him that it was best he didn't respond to it.

166Sometime around mid-October 2017, M.T. became aware that her grandmother was on her deathbed. On October 17, 2017, before she went to the police, M.T. sent G.B. another Facebook message that stated that perhaps he could keep himself at home so she could attend her grandma's funeral. In her message she stated that he was “not the same blood” and that their little secret was no longer a secret. She added that she betted he did not know that she had a witness and that she had joined the “Me Too Movement” and that he should look it up. A separate message at the same time simply stated: “You decide”. M.T. testified that it was her opinion that perhaps G.B. could stay home that day because she did not “need to see him that day and I could be supportive to my dad in the full extent that I wanted to”.

167At trial when asked who her witness was M.T. testified that it was her brother “looking at the cards”. She admitted that this did not make him a witness to the actual incidents. M.T. disagreed that she was making it sound as if she had somebody to corroborate her story or that this was a scare tactic. She also disagreed that when she said: "You decide, " that she was giving G.B. an ultimatum or that it was intended that way. She admitted however that her message was that she was going to the funeral and she didn’t want to see him but denied that she was threating G.B. that if he was going to go to the funeral, she was going to disclose her allegations to police or that the message appeared that way. The reference to the “Me Too Movement” meant that she was strong enough to disclose.

168G.B. testified that he did not respond to this message. N.B. testified that G.B. discussed this message with her, but they did not discuss how he should respond. Shortly after that they got the call from the police. M.T. confirmed that she did not get a reply and within a couple of weeks she went to the police.

Reporting to police and the discussions at the police station

169M.T. was asked how her decision to report her allegations to the police on October 23, 2017 came about. She testified that at first, she was just trying to cope with getting through university, starting her career, developing her relationships and becoming a mother and trying to move forward with her life in different ways. But at the same time, she was still struggling with what had happened and different triggers and depression. She saw medical professionals and was given coping techniques and she met a medical professional that she continues to work with. M.T. testified that she was also very empowered by the “Me Too Movement” and she had a lot of friends who were “coming out” and saying, “me too”. For the first time in her life she did not feel alone.

170In 2017 M.T.’s grandmother was sick, and it was clear that she wasn't going to live much longer. M.T. testified that she felt it was very important that she be able to be by her dad's side at the funeral and that she not have to deal with the uncomfortableness of seeing G.B.. She explained that it was a combination of being empowered and having the support of her family around her that she felt strong enough that she could go and report these allegations to the police.

171M.T. testified that she reached out first to her sister by phone and told her that she was ready to press charges. H.D. was going to be coming into town from California because their grandmother was very sick and M.T. testified that H.D. told her that she would support her. M.T. did not give her sister any details about the sexual acts at that time. M.T. testified that she then called A.T. and told him that she was going to report the matter. She said that she discussed with A.T. the fact that they were looking at the pornographic playing cards together and that A.T. told her that he had a memory of looking at the cards with her. This was something they discussed back in 1992.

172M.T. and her siblings went to the police station together on October 23, 2017. They were at the police station for about seven hours in total. They waited for about 45 minutes to an hour before the interviews started. M.T. testified that there was no discussion about any evidence prior to H.D. going in to be interviewed. H.D. was the first to be interviewed.

173M.T. testified that after H.D. went in to give her statement she was alone with her brother and he got very emotional and started crying. He told her that he needed to talk to her about something. He asked her if she remembered “doing anything” to him. He asked if she remembered touching him and M.T. testified that she had no recollection of any inappropriate touching. She asked him what he was talking about. A.T. told her about a time when they were in the back seat of the car with a blanket over them and she started to touch him “down there” - his penis and told him that that was what she did to G.B. or what G.B. made her do to him. M.T. told him that she did not remember that and that she was really sorry. By this point they were both crying. Her brother seemed worried and was not sure if she would get in trouble and she told him that they were there to speak “our truth”.

174M.T. also testified that A.T. asked her if she remembered taking a tissue and wiping his bum and pressing the tissue into his bum. M.T. testified that she told him that she did remember that. She did not think her brother was holding anything back and believed that there were only these two incidents. M.T. testified that this was the first time she spoke to her brother about this and she has not spoken to him about it since. She could not recall if they also discussed the time that her brother came into the basement when she and G.B. were in the workroom. She thinks they did discuss it because he was worried that he had not said anything.

175At this point H.D. came out and her brother went in to give his statement. According to M.T., once H.D. came out she asked what was wrong and she told her that A.T. had told her something that she did to him and that she had touched him under a blanket and said that she did something that she did not remember doing. H.D. replied that if she had not been exposed to what G.B. had done to her, she would never have done that to her brother and that it was not her fault. H.D. gave her a hug and told her not to blame herself.

176A.T. also testified that the first time he discussed with M.T. what he alleges she did to him was at the police station when H.D. was giving her statement to police and he and M.T. were left alone in a room. A.T. testified that he wanted to ask M.T. about this because he knew that he was going to have to talk about it, or, he felt that it was time to bring it up even though he never really wanted to, and had “just sort of locked it away in my memory, and never wanted to think about it again”. A.T. testified that knowing that M.T. had the courage to at least come forward and go through with this, at this point, he felt that it was important for him to at least have the same strength to describe specifically what had happened in his memories, and the references to G.B..

177A.T. testified that he may have brought up or discussed the incident with the pieces of paper, but he could not remember specifics of what he talked about it and he could not recall if he actually described the incidents or not because at the time he wasn't even able to speak clearly – he was kind of breaking down. A.T. testified that M.T. said that she did not remember doing those things to him and that she never said that she remembered actually rubbing the paper on his anus. They were both upset by what had occurred and concluded that she had done those things to him because of what G.B. had done to her. A.T. admitted in cross-examination that he was able to say with certainty that M.T. had told him she remembered none of her sexual touching of A.T. because minutes later he told the investigators just that on the record.

178A.T. did not recall if he learned any details about what happened to M.T. at the police station. He recalled that they spoke about many different things, about in general being there and small talk. Because he knew they we were going to be there for a while, he had brought his laptop with him and he was “kind of” working at the same time while his sisters were talking, we were talking. He did not remember anything specific about what they were talking about.

179H.D. testified that M.T. did share details about the abuse with her and her brother prior to H.D. going in to be interviewed, which is contrary to the evidence of M.T. and A.T. H.D. testified that just before they were taken in for their interviews, she found out a few more details because her sister was finally opening up. She recalled one incident her sister told her about and that M.T. told her that G.B. had removed her dress and was lying on top of her and he ejaculated on her. When her sister asked him what the substance was, he told her to “never mind” and that it was just milk. H.D. testified that her sister also told her that one time G.B. had asked her to put her fingers inside his rectum.

180H.D. also testified that when she was told a few more details by her sister, A.T. asked M.T. if she remembered that she had told him that “this is what Foaji had taught her” about touching the penis. A.T. did not reveal that he was abused in any way but H.D. assumed that her sister had touched his penis. H.D. testified that her recall of the conversation is a bit vague and that this was news to her. In response M.T. said that Foaji taught her to touch his penis. According to H.D., M.T. said that she had forgotten the memory of sitting in the car with a blanket, but that M.T. said something like she was so sorry, that she had forgotten that and that she remembered it now and that she must have blocked it out. H.D.’s impression was that until her brother said this that her sister had no memory of this and that it triggered a memory for her because it was like, "Oh my God, I remember that." H.D. then went in to give her statement.

181H.D. testified that they did not discuss these matters again after speaking to police because after giving her statement she was told not to discuss the matter with anyone, and she has not done so.

Arrest of G.B.

182G.B. was arrested and charged with these offences on October 30th, 2017. His mother-in-law died the next day and by then there were conditions in place that he not communicate or be near M.T. This meant that he was unable to go to the funeral.

Analysis

Assessment of the reliability and credibility of the witnesses

(a) The relevant caselaw

183There are two legal issues I must consider in assessing the credibility of M.T., A.T. and H.D.. The first is that I must have regard to the Supreme Court’s direction in R. v. W.(R.), 1992 CanLII 56 (SCC), [1992] 2 S.C.R. 122, as to the special considerations that should apply when considering the credibility of a child witness, given that most of the events M.T., A.T. and H.D. described are alleged to have taken place when they were children. M.T. was eight through eleven during the period of the alleged sexual assaults and A.T. was a year and a half younger. H.D. was the oldest but still a child when these events are alleged to have happened. Although the credibility of every witness that testifies must be carefully assessed, the standard of the “reasonable adult” is not necessarily appropriate in assessing the credibility of children. As McLachlin J. (as she then was) stated in W.(R.) at paras. 25 and 27:

25… Since children may experience the world differently from adults, it is hardly surprising that details important to adults, like time and place, may be missing from their recollection.…

27… Every person giving testimony in court, of whatever age, is an individual, whose credibility and evidence must be assessed by reference to criteria appropriate to her mental development, understanding and ability to communicate. But I would add this. In general, where an adult is testifying as to events which occurred when she was a child, her credibility should be assessed according to criteria applicable to her as an adult witness. Yet with regard to her evidence pertaining to events which occurred in childhood, the presence of inconsistencies, particularly as to peripheral matters such as time and location, should be considered in the context of the age of the witness at the time of the events to which she is testifying.

184Mr. Brauti did not argue that the delay in reporting of these allegations by M.T. was unusual in and of itself, but he did explore here reasons for not doing so prior to 1992 in an effort to support the defence theory that M.T. fabricated these allegations because of the conflict between the two families. I have already rejected that Defence theory. Furthermore, it must be remembered that the significance of M.T.’s failure to make a timely complaint about the allegations of sexual assault must not be the subject of any presumptive adverse inference based upon now rejected stereotypical assumptions of how persons react to acts of sexual abuse. There is no inviolable rule on how people, who are the victims of trauma like a sexual assault, will behave. Reasons for delay are many: see R. v. D.D. (2002), 2000 SCC 43, 148 C.C.C. (3d) 41 at paras. 59, 63 and 65. As McLachlin J. stated in W.(R.) at para. 31: “victims of abuse often in fact do not disclose it, and if they do, it may not be until a substantial length of time has passed.”

185For these reasons I have not drawn any adverse inferences from the fact M.T. delayed her disclosure of these allegations. I do find that her decision to report these allegations to police in October 2017 was motivated by the fact she wanted to go to her grandmother’s funeral and not see G.B. there. This only impacted the timing of the reporting to police, as M.T. had already disclosed the fact that she had been sexually assaulted to her friend M.G. and then to her family, although she had not disclosed the details.

186The other issue I must keep in mind as I assess the credibility of M.T. is the Evidentiary Ruling I made concerning how the evidence of A.T. as to the sexual touching by M.T. and what he alleges that she said to him at the time can be considered. I concluded that if I find these statements were made, they are admissible as narrative and as narrative as circumstantial evidence. I must be careful however that I do not use the statements for their truth, if I find that they were in fact made, as I did not permit them to be introduced for that purpose.

187On this subject, Mr. Walker provided a copy of a recent decision the Court of Appeal decided after I made my ruling during the trial: R. v. G.J.S., 2020 ONCA 317, regarding the treatment of prior consistent statements in a historical sexual assault and how important it is that the evidence I admitted by carefully contained. In that case the trial judge was overturned because she improperly used prior consistent statements to enhance the complainant’s general trustworthiness. The court concluded at paras. 48 and 49:

48In R. v. Khan, 2017 ONCA 114, 136 O.R. (3d) 520, leave to appeal refused [2017] S.C.C.A. No. 139, Hourigan J.A. explained, at para. 41: “[prior consistent statements] cannot be used for the prohibited inference that consistency enhances credibility, or the incorrect conclusion that the simple making of a prior consistent statement corroborates in-court testimony”; see also R. v. D.C., 2019 ONCA 442, at para. 19; R. v. S.K., 2019 ONCA 776, 148 O.R. (3d) 1, at para. 90; and R. v. D.K., 2020 ONCA 79, 60 C.R. (7th) 123, at para. 35. This appears to be exactly how the trial judge used the complainant’s prior statements and the threatening incident.

49The respondent argues that this evidence was admissible under the narrative as circumstantial evidence exception, “not to corroborate the evidence of the witness, but to provide the surrounding circumstances and context to evaluate the credibility and reliability of the witness’s in-court testimony”: Khan, at para. 39; Dinardo, at para. 37; R. v. G.C., 2006 CanLII 18984 (ON CA), [2006] O.J. No. 2245, at paras. 20-22. This was not the basis of admissibility advanced by the Crown at trial; nor is there any indication in the trial judge’s reasons that she used the evidence for this limited purpose. The trial judge gave no explanation of how this evidence “provides the reliability necessary to support her testimony” or how “it lends support to what was happening in the family at the time”.

188Demeanour as a way of assessing credibility is now considered to be a poor indicator of whether or not a witness is telling the truth. That said, I find it is helpful to consider how responsive a witness is to answering questions of opposing counsel and whether or not their demeanour changes in cross-examination. I will make some comments about what I observed about the demeanor of the witnesses, but in this case, I did not find their demeanour to be of any assistance in assessing the credibility of their evidence.

189I turn then to consider each of the witnesses.

(b) M.T.

190Starting with M.T., Mr. Walker submitted that this is not a typical “he said/she said” case. It is his position that M.T. was a very compelling witness, but he submitted that the most important evidence is the substantial corroboration of her evidence from the evidence of A.T. I will come to A.T. but with respect to M.T., considering first her demeanour, initially I noticed that M.T. gave her evidence about her allegations in a very matter of fact fashion, with no sign of emotion. She became upset, however, when she discussed the fact that in 2017 her grandmother got sick and it was clear that she was not going to live much longer. M.T. clearly did not want to have to deal with G.B. at the funeral and as I have said, I believe that timing did prompt her to go to police when she did. M.T. became even more upset when we went in camera and discussed the allegations of A.T. that she sexually touched him. None of these emotions surprised me.

191Mr. Walker submitted that some of M.T.’s evidence simply could not have been made up and that this enhanced her credibility. He gave as an example her evidence about almost asking the male teacher who brought twins into her Grade 4 class why he could not give his milk to the babies. Mr. Brauti responded that had M.T. actually said this at the time, that would be different, but that there is no reason to think that she could not make something like this up when she was in her mid 40s, when she reported these allegations. I agree that it would be dangerous to draw the conclusion urged by Mr. Walker by relying on such a specific memory, when there is no corroborating evidence that M.T. had this memory at the relevant time. The same is true of M.T.’s evidence, given for the first time at trial, that after one of the playing cards’ incidents in the basement, when she came upstairs and sat in the kitchen and put a cashew nut in her mouth, the smoothness of that nut on her tongue reminded her of the head of G.B.’s penis. That too was a very graphic memory and one could argue it would be difficult to make up. However, I have difficulty accepting that this memory came to M.T. for the first time at trial almost 40 years after the event.

192Mr. Brauti made two general arguments in connection with the credibility of M.T.. He argued 1) that there is persuasive evidence, particularly from J.T., that M.T. has a general reputation for lying and making things up to get attention and 2) that given the inconsistencies in the evidence of M.T., she has been proven to be a liar in this case and this is confirmed by the improbability of her allegations being true, given G.B. was never caught in the act.

193As for the first argument, Mr. Brauti submitted that while G.B. and N.B. shared the view that M.T. is generally a dishonest and troubled person – “crazy” and “a wacko” as G.B. put it, it was the evidence of J.T. that provided the most compelling picture of M.T.’s character. J.T. testified that he was not surprised that M.T. was making false allegations because she was known to make things up to get attention. He said that when he first heard that M.T. was claiming that she was sexually assaulted by a family member, he was actually worried that she might be accusing him because it would not be past her to make such things up. He described M.T. as a known liar and that her family as well had created false allegations in the past and been known to lie. J.T. stated: “Like, A.’s⁴ been known to lie and we just accept the fact that she lies”. J.T. testified that this was true of A.K.T. as well but not of A.T. or H.D.. In cross-examination J.T. admitted that he was talking about twisting facts about family issues and that this is at a whole different level than accusing someone of sexual abuse, which is very serious. J.T. was not asked if he believed that M.T. would lie under oath.

194Mr. Brauti argued that this evidence that M.T. has a general reputation as someone who is prepared to fabricate stories and tell lies is clearly admissible. Mr. Walker did not argue otherwise but pointed out that J.T. did not give any examples to support his opinion. I did not receive any law from counsel on this point and so I considered the law summarized in The Law of Evidence, Seventh Edition, by Justice David Paciocco and Lee Stuesser, Irvin Law 2015. The authors question the correctness of the decision from the Court of Appeal in R. v. Taylor, (1986), 1986 CanLII 2606 (ON CA), 55 C.R. (3d) 321, where the court held that it is permissible to allow the witness to testify as to the basis of their opinion, which would necessarily involve the description of specific incidents relied upon. There was no attempt by Mr. Walker to do this in cross-examination and so I only have the bald opinion of J.T. He did not give a single example of M.T. not being truthful. The only other evidence I have that is similar is the evidence that I heard that when M.T. was younger, if she was stressed, she would complain that her back or stomach was sore, and nothing could be found physically to support her complaint resulting in her family not believing her. However, M.T. testified that on those occasions she genuinely felt unwell and she attributed that on one occasion, the Winnipeg Wedding, to G.B. There could have been other stressors in M.T.’s life that could have caused this kind of reaction. The evidence suggests that family members did not always believe M.T. when she suddenly complained about being unwell. J.T. was not asked if this is what he was referring to in support of his opinion. In my view, this would not support a finding that M.T. had a general reputation for being untruthful in any event.

195Given the concerns that I will come to about whether J.T. is truly an independent witness as submitted by the Defence, I have concluded that this evidence as to J.T.’s opinion of M.T. is not of any assistance in deciding this case.

196As for the inconsistencies and other concerns raised about the credibility of M.T.’s evidence I will address those as I make my findings of fact.

(c) A.T.

197I also did not find A.T.’s demeanour while he testified to be of assistance. He was very upset when he gave his evidence in camera but that is understandable. As already stated, Mr. Walker places a great deal of emphasis on A.T.’s evidence. It is his position that A.T. was telling the truth and if he is, there is no possibility he was misremembering. It is not a recovered memory - he just couldn’t talk about it.

198Mr. Brauti, however, vigorously challenged A.T.’s evidence and relies particularly on that portion of A.T.’s evidence that I have set out in detail as to his reaction when M.T. told him that she had been sexually molested by someone in the family and he said he was shocked and reacted by asking: “who?”. Mr. Brauti submits that this portion of A.T.’s evidence makes no sense since according to A.T., there were three incidents of sexual touching initiated by M.T. when he was between the ages of seven to nine - around 1981-1983 - and on at least two of those occasions, based on what M.T. told him, he believed that G.B. was doing these sexual things to her. It is the Defence position that while A.T. tried to explain this inconsistency as just being his ignorance from being only nine years old in 1983, he was 18 years old in 1992 and Mr. Brauti submitted that by then he knew full well what a sexual assault was and that A.T. had great difficulty trying to explain away this very problematic evidence.

199In response, Mr. Walker submitted that at the time of M.T.’s disclosure in 1992, A.T. was still a teenager and he was struggling with a lot of conflicting and confusing emotions and the memories of what happened. He argued that you cannot expect children to come to a bright line conclusion as submitted by the Defence. A.T. felt shame and was worried that what had happened was wrong and that he would get his sister into trouble. He found it difficult to talk to her over the years about what happened. As A.T. said, he was shocked that it was being said and he was starting to connect the dots. With respect to his question, “who?” Mr. Walker submitted that by listening to his evidence I can hear that it was a natural reaction. It is his position that it is not fair to say A.T. was not truthful because he had difficulty expressing his emotions.

200This is a difficult issue because I agree with Mr. Walker that if the allegations of A.T. are true, it is difficult to consider what was going on in his mind when he heard M.T. say she had been sexually assaulted when she was young by someone in the family. On the one hand, when the touching by M.T. of him is alleged to have occurred, he was very young and naturally did not appreciate that what he alleges M.T. did to him was wrong. On the other hand, as Mr. Brauti submitted, given that A.T. admitted that he always had a clear memory of this touching, as he got older it is strange that he would not have wondered about what M.T. told him and even asked her about it. He was not asked why as he got older, he did not ask M.T. about this or begin to worry about her, given that he believed from what she had done and said to him that she must have been touched in the same way by G.B. I would have thought that this would have come to his mind as he got older and given him cause to be concerned about her. I do appreciate, however, particularly given how upset he was during the in camera evidence, that this subject is clearly something A.T. has difficulty talking about. As for the words A.T. chose when he described how he reacted to M.T.’s disclosure, I do think there is something to Mr. Brauti’s argument that his reaction of surprise was genuine, which suggests that what he alleges M.T. did and said to him could not be true. However, having considered the lengthy exchange in cross-examination, I accept that given A.T.’s evidence of how quickly he asked the question: “who?” that it was a natural reaction. I also accept his evidence that his surprise was that M.T. was talking about this after all of these years.

201For these reasons, although I think there is some merit in Mr. Brauti’s argument, I have not come to the conclusion that because of A.T.’s description of his reaction in 1992 to M.T.’s disclosure that he must be lying about the sexual touching of him by M.T. that he alleges.

202Mr. Brauti argued in reply submissions that if M.T. touched A.T. sexually and he knew in 1992 that she did this because this is what G.B. did to her, A.T. would never have invited G.B., to his wedding. This was not put to A.T. and so I do not have any explanation he may have given, but it is a puzzling fact, particularly as A.T. would have wanted M.T. to come to his wedding and feel comfortable.

203I agree, however, with Mr. Brauti, that there are other aspects of A.T.’s evidence that make no sense unless there was more discussion between him and M.T. as to what she alleges occurred between her and G.B. than what they both recall. I do not believe that there has been a deliberate decision between them to collude on their evidence. Had that been the case, their evidence would have been more consistent. However, I agree with Mr. Brauti that, for example, it makes absolutely no sense that A.T. would have an almost 40-year-old memory of G.B. touching his belt and pants on one occasion when he went down the stairs to the basement, given A.T. admitted that at the time this event was meaningless to him. Unlike H.D., he gave no evidence for why this memory would come to mind so many years later. This evidence raises concerns at least of tainting and possibly false memories because A.T. learned some details about what M.T. alleges occurred with G.B. in the basement and quite naturally loves and A.T. wants to support his sister. In fact, he did admit that when M.T. disclosed to him in 1991/1992, there was a possibility they spoke “a little bit” about some of the events that occurred.

204I will review the other concerns raised about A.T.’s evidence as I make my findings of fact.

(d) H.D.

205Overall, I found H.D. to be a very credible witness, and Mr. Brauti did not disagree. In fact, I found her to be the most credible of all of the witnesses although I must remember that for the most part, she was speaking of events that she remembered from when she was a child. Again, I did not find her demeanor as a witness to assist. H.D. did state at one point during the cross-examination that she was a bit nervous and I am sure that was the case for all the witnesses. She did give Mr. Brauti a difficult time in getting her to admit that the tickling incident she remembered likely occurred in the late 1970’s. She said that she just did not want to say a date. In my view, she was being very careful to be precise and accurate and was not evasive.

206There were some minor inconsistencies in H.D.’s evidence. As already stated, she was inconsistent about whether M.T. said that her back was sore, or her stomach hurt during the incident she described that occurred at the Winnipeg Wedding. H.D. testified that she was sure that M.T. was complaining of some pain and that she remembered her mother rubbing M.T.’s back. In my view, that explains why she believed at trial that it was M.T.’s back that was sore.

207H.D. was cross-examined about the fact that she did not disclose to the police that she had had a conversation with her siblings before giving her statement to police and that she became aware of the fact that M.T. had touched A.T. sexually. She testified that she did not do so because her brother and sister were going to give their statements and that she only shared with police her own memories, as she had no memories to support what they were saying happened between them. I accept that explanation.

208Mr. Brauti argued that although H.D. had never seen G.B. do anything inappropriate to M.T., she nonetheless made efforts to come up with the best examples she could that fell in line with her sister’s allegations. He said that he was not saying that H.D. was deliberately being dishonest, but rather she was doing her best to recreate memories which might support her sister. He also pointed out that H.D. admitted having a great sense of guilt for not looking out for M.T. and paying more attention.

209H.D. fairly admitted that she loves M.T. and she believes that she has been sexually assaulted by G.B. as she alleges. She also admitted that she wanted to support her sister but denied any implication that she would say anything that was not true. I accept that evidence. Her desire to support her sister is natural and apart from being careful that H.D.’s memory may have been inadvertently tainted by any discussion with M.T. as to what she alleges G.B. did to her, I found H.D.’s evidence to be credible.

210I also found H.D. to be a reliable witness for the most part, even though she was young at the time, and for that reason could be confused about some of the details. She had reasons to remember the events she gave evidence about. That said, her evidence does not provide much, if any, support in relation to the specific allegations put forward by M.T. As H.D. fairly admitted, her evidence about a time she believes M.T. was alone in the basement with G.B. combined with her memory of him tickling M.T. on his lap were the best examples of concern that she could recall. At best she has described two times when there was an opportunity for something to have occurred and nothing more.

(e) A.K.T.

211A.K.T.’s evidence that the confrontation with J.T. took place while he, J.T. and G.B. were standing in an open field raises serious question as to how good his memory is as to who said what back in 1992. A.K.T. testified that he has had a lot of issues and that his memory is “a bit vague”. He did not explain why, but clearly he was wrong about the location of the confrontation. In cross-examination when A.K.T. was being asked about what G.B. said during the confrontation, he also said that he sometimes “sprinkles the word probably in,” which gives some concern as to the reliability of his evidence, although on that particular point G.B. did admit using the word “probably” in one of his statements at the confrontation. In any event, A.K.T.’s evidence was not that important to either the prosecution or the defence.

(f) G.B.

212G.B. was very nervous and emotional from the outset of his evidence. Again, I did not find that unusual given the serious allegations he is facing. He also said that he was embarrassed about having to stand trial in a criminal matter. He had never experienced anything like this before.

213Mr. Brauti submitted that G.B. flat out denied any sexual misconduct and that he was unshaken in what the Court of Appeal sometimes refer to as the deep issues. He also relied on the fact that there was no suggestion that G.B. had a reputation for being untruthful, and in fact his reputation would appear to be that of someone of good character. I agree that G.B.’s evidence as to the volunteer work he does is impressive and suggests a reputation of good character. That, however, is not uncommon in cases of this nature and so I do not give that evidence any weight. As the Supreme Court of Canada held in R. v. Profit, 1993 CanLII 78 (SCC), [1993] 3 S.C.R. 637, this evidence may be accorded little weight in cases concerning certain sexual offences which occur primarily in private and are often not reflective of a defendant’s reputation in the community.

214Mr. Walker submitted that G.B.’s evidence was not credible, that he was consistently evasive on even the most obvious points and that I should reject and disregard his evidence. Mr. Walker submitted, G.B. demonstrated outright animus towards M.T. by saying she is crazy and calling her a “wacko”. I agree that G.B.’s evidence demonstrates malice towards M.T., and that this may have tainted his evidence, particularly as to his expressed views of M.T.’s character.

215Mr. Walker pointed to what he characterized as an absurd theory that G.B. gave at the end of his evidence in chief, without prompting, that he believes that M.T. probably had experienced this with somebody else and inserted his name. Mr. Walker argued that if G.B. really believed M.T. was sexually assaulted by someone else there would be some sympathy. I saw this as a moment of desperation on the part of G.B. as there was no Defence theory put forward that M.T. was mistaken as to who sexually assaulted her, only that she had a motive to fabricate these allegations. In any event, it is of course not up to G.B. to explain why M.T. would fabricate these allegations.

216I agree with Mr. Walker that G.B. was evasive at times in cross-examination, although I would not say that he was so consistently, as Mr. Walker submitted. For example, in cross-examination, initially G.B. insisted that the only time he went into the workshop and was the only adult in the basement was the one time when he testified that he did and saw that the light was on and M.T. was there with the playing cards. After three attempts by Mr. Walker, G.B. finally admitted that there were other times when he would go to the basement to get something and he would be the only adult down there. This, of course, was an important point given the allegations from M.T. and the fact that G.B. was evasive on this point is significant.

217G.B. also seemed evasive on some innocent points. For example, when Mr. Walker was trying to get him to admit that it was not that unusual that M.T. would go through N.B.’s purse when she was very young, G.B. denied knowing whether or not he thought this was not unusual for kids to do. When he was asked if it was something that his own children did, he denied that as well, which is hard to believe. In fact, I found the evidence of G.B. and N.B. about M.T. going through N.B.’s purse when she was very young to be a strange point to refer to at all. If it was meant to corroborate their evidence that it was M.T. who found the playing cards by snooping around the workshop, it seems strange that G.B. would not agree that it is natural for children to be curious. In any event, given M.T.’s age at the time, I did not find this evidence of any assistance.

218G.B. was also evasive when Mr. Walker suggested to him that during the party at the Winnipeg Wedding, that had he needed some privacy he could easily have gone to the other house, where there were washrooms. I had the same concern in connection with the confrontation when G.B. queried how M.T. could possibly remember given how young she was, when he insisted that he would have the same issue if he had been sexually abused as a child, which is hard to believe although it is true that M.T. has no memory of doing to A.T. most of what he alleges.

219Some of G.B.’s other evidence was simply self-serving and as Mr. Walker put it, it seemed that he was unable to be objective. His comment that M.T. is a “wacko” comes to mind. I refer again to the same example, and the evidence G.B. gave to explain his comment during the confrontation about how could M.T. remember her allegations given she was very young at the time, G.B. insisted that it would not be possible to remember being sexually assaulted if it happened when she was a child and that he would not have been able to remember something like this if it had happened to him.

220G.B.’s evidence was also internally inconsistent, and Mr. Walker submitted that we saw in court that he was unable to get a straight answer from G.B. Again, that overstates the issue but there is an example. When Mr. Walker asked G.B. about the fact that he had acknowledged in his evidence in chief stating: "How can she remember it when she was so young?" to which G.B. responded that he did not recall “hearing that”. He then admitted giving Mr. Brauti that answer but added: “Yes, so I just kind of frame of mind I missed that”. He then added that he was kind of nervous.

221I also find that G.B. overstated his evidence. For example, he denied he was even friendly towards the T. children, although he said he might have been friendly to others. He gave no reason, however, for why he would not like them. He also tried very hard to distance himself from touching children or having anything to do with them including his insistence that apart from the reluctant hugs from the T. children, he never touched or tickled the children. The evidence of H.D., M.T., A.T. and J.T., however, is consistent that there were times when G.B. tickled the children and of course he was being friendly when he showed the children his electric guitar. On this point I find that G.B.’s evidence was not true and was overstated so that he could distance himself from the children.

222Mr. Brauti did give a couple of examples to support his position that if G.B. wanted to be dishonest, he would not have, for example, carved out the notch in the workshop bench in the drawings he prepared of the layout of his basement and that this speaks to his honesty. That is true, but given that G.B. built the workshop bench, had he drawn it any other way it would have filled the entire room. As it was, I found it hard to understand why he would build the workshop bench so that it took up the entire space so that he had to climb on top of it to access the electrical panel.

223I have some other concerns about the credibility of G.B.’s evidence that I will review as I make my findings of fact.

(g) N.B.

224N.B. naturally wants to support her husband and I found that she overstated her evidence on at least one occasion, when she described the families being at “war”. I also believe that she downplayed the number of times the families visited one another and have difficulty accepting that she and G.B. were never left alone with the T. children, especially given the evidence from H.D. that suggests otherwise. Most significantly, however, I do not accept N.B.’s evidence that she and G.B. never discussed these allegations before the trial. I do not find that they colluded on all of the details, but I have concluded that there must have been some discussion, given for example, that they both testified that there were “100” people at the Winnipeg Wedding event and they both used the word “commotion” to describe the incident with M.T. that occurred at that event. These struck me as more than coincidences.

(h) J.T.

225Mr. Brauti submitted that J.T., who is the blood-uncle of M.T. and brother of A.K.T. and N.B. as well as being a friend of G.B. had no apparent motive to lie. He conceded that his evidence favoured the defence but argued there can be little doubt that on the face of the relationships he was the most neutral witness.

226It is true that J.T. indicated that he made efforts to get along with everyone in family, meaning both sides, but as Mr. Walker submitted, he knew that the police wanted to talk to him, and he did not meet with them. I appreciate that at the time of the first contact by police his mother had recently died, but the police contacted him again and he admitted that he told Detective Thompson that he was opting not to give an interview because he did not believe he had any information of value and that he said that he had no comments. J.T. admitted that the first time that he made an offer to speak to police was the morning of his evidence at trial. In explaining why he did not talk to police earlier, J.T. said that: “you have to understand, … my brother's family, they have made all types of allegations through the years, and I just didn't want to … face anymore lies...”. J.T.’s view of the T. family is clearly a negative one.

227J.T. admitted that he believes M.T. is lying. He gave the reputation evidence I have already referred to. He also testified A.K.T. and his wife visited G.B. in the hospital after he had triple bypass surgery and went to his house for family events after 1992, which they would not have done so if they really believed G.B. had molested M.T., suggesting that he believes M.T.’s parents do not believe her either.

228I do accept J.T.’s evidence that he did not discuss what he was going to say, at least not in detail with G.B. or N.B.. However, he did deny G.B. making certain suspicious statements during the confrontation and admitted that if G.B. had made those statements, he would have remembered them because they would have made him suspicious. Accepting that is true, given that G.B. admitted making certain suspicious statements, J.T. must have denied that G.B. made those statements in an effort to support G.B., which confirms my view that J.T. has taken sides and was not a neutral witness.

229Overall, then for these reasons, I found that J.T. favoured the defence and that his evidence, particularly with respect to M.T.’s reputation for lying, was not true or at least not reliable.

Has the Crown proven the alleged incidents beyond a reasonable doubt?

(a) R. v. W.(D.)

230Since Mr. G.B. testified, the principles set out in the decision of the Supreme Court of Canada in R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742 apply. I must acquit G.B. if I believe his evidence or, even if I do not believe his evidence, I am left in a reasonable doubt by it. If I am not left in doubt by his evidence, then I must ask myself whether, on the basis of the evidence, which I do accept, I am convinced beyond a reasonable doubt of his guilt. In my analysis, I am not bound by the strict formulaic structure set out in W.(D.), but rather must adhere to the basic principle underlying the W.(D.) instruction that the burden never shifts from the Crown to prove its case beyond a reasonable doubt: see R. v. C.L.Y., 2008 SCC 2, at paras. 7, 9; R. v. J.H.S., 2008 SCC 30, at para. 13.

231In considering the evidence, I am entitled to believe all, some, or none of each witness’s evidence. Further, in assessing the evidence of G.B., I am entitled to consider it in the context of all of the other evidence: see R. v. C.L.Y., at para. 6; R. v. Mends, 2007 ONCA 669, at para. 18 and R. v. Carriere (2001), 2001 CanLII 8609 (ON CA), 159 C.C.C. (3d) 51 at para. 48 (Ont. C.A.). However, I must remind myself that this is not a credibility contest: see R. v. J.H.S., at para. 9. W.(D.) prohibits me from concluding that the Crown has met its burden simply because I might decide to prefer the evidence of M.T. to that of G.B., see R. v. Hull, 2006 CanLII 26572 (ON CA), [2006] O.J. No. 3177 at para. 5. See also R. v. Van, 2009 SCC 22, at para. 23. As I am faced with contradictory versions of what happened in this case, I would add that if, after considering all of the evidence, I am unable to decide whom to believe, I must acquit: see R. v. H.(C.W.) (1991), 1991 CanLII 3956 (BC CA), 68 C.C.C. (3d) 146, at p. 155 (BCCA).

(b) Alleged motive of M.T. to fabricate these allegations

232As I have already said, I do not find that any conflict between the two families gave M.T. a motive to fabricate these allegations, nor is there an onus on the Defence to explain or prove a motive.

233I considered whether or not M.T. might have had a motive to fabricate these allegations in order to get attention, as suggested by J.T. When M.T. was asked how she dealt with the alleged sexual assaults she testified that after the summer of 1984, she was not feeling “so special anymore” and was wondering why, and that this “definitely felt bad.” She also testified that as she got older a feeling of betrayal hit her in Grades 8 through 10, and that she was feeling like “where's all the attention gone?” These feelings, however, are consistent with M.T.’s allegations that G.B. told her that she was special and that she now realized that what he had done to her was wrong. I do not believe that the need for attention gave M.T. a reason to fabricate these allegations.

(c) The relationship between M.T. and G.B.

234The evidence of M.T. and A.T. as to how playful and friendly G.B. was, especially with M.T., is at odds with the evidence of H.D. whom I found to be a very credible and reliable witness.

235As I have reviewed, M.T. described G.B. in very positive terms as someone with whom she had fun when he tickled, joked and danced with her. He told her that she was special and so she believed that he favoured her. A.T.’s evidence was similar, but he gave no detail. H.D., however, painted a very different picture of G.B. as an uncle. She testified that she and her siblings did not have too much of a rapport with him and they did not regularly want to engage with him to play. She said that G.B. was not like other aunts and uncles that they looked forward to talk to and play with. She did, however, state that she recalled a few instances when it was her impression that G.B. was a little nicer to her sister and paid more attention to her.

236I prefer H.D.’s evidence on this point, although I must bear in mind that some of what M.T. spoke of could have resulted from what she described as time she spent with G.B. in private, in the basement of his house or in the room with the red carpet.

237There is, however, another important aspect of the family conflict which is relevant to my findings of fact. There is no dispute that however G.B. stated it, M.T.’s mother was hurt because she understood that he had said she was “fat” to the children. What is significant about this particular conflict is not the anger that it created, but rather the obvious lesson that would have been learned by G.B. from this event. He knew that the children went straight to their parents and told them about his unfortunate comments. As a result, G.B. knew early on, before any of the alleged sexual assaults occurred, that if he said anything inappropriate that there was a real risk the children would tell their parents. It could reasonably be assumed, as he testified to, that he would make the same assumption had he done anything that was inappropriate to the children, although on M.T.’s evidence he did take the precaution of telling her to keep what they did a secret.

(d) The brazenness of the allegations

238Mr. Brauti submitted that although offences of this nature are often brazen, M.T.’s allegations are beyond what is generally seen. He argued that there is usually some safety net of privacy and secrecy and allegations of this nature would not be committed during family gatherings of 15 or more people when it would be easy for someone to discover this misconduct without any notice.

239There is no dispute that in the workshop in the basement, M.T. and G.B. could have been discovered within seconds, if someone came down the stairs. The same is true of the alleged assault in the room with the red carpet. Tied in with this allegation, given the number of incidents, Mr. Brauti argued that there might have been at least 45⁵ opportunities that G.B. would have been discovered by someone while being engaged in the sexual acts alleged and yet that never happened.

240In response, Mr. Walker submitted that G.B. was caught by A.T., but as Mr. Brauti pointed out, at its highest, A.T. saw him touching his belt line and this does not corroborate a sexual offence taking place. However, I do agree with Mr. Walker that in my experience offences of this nature often are brazen and occur despite the offender knowing of the extreme consequences of being discovered or of the risk a child will talk about it.

241Accordingly, I agree that if M.T.’s allegations are true that G.B. was taking a huge risk of being discovered in the act, even if he believed M.T. would not tell her parents because he asked her to keep it secret. However, I cannot conclude that these events did not occur because of this risk.

(e) Ottawa storytelling

242With respect to the Ottawa storytelling incident, I agree with Mr. Walker that it would have been possible for G.B. to tickle M.T. quickly in her private areas without anyone noticing. I have a concern, however, about whether or not M.T. has a true memory of the tickling by G.B. being sexual.

243There are obvious concerns about the reliability of M.T.’s and A.T.’s evidence about this event because they have completely different memories of what they alleged occurred. M.T. did not give any evidence to support A.T.’s evidence as to the inappropriate language he says G.B. inserted into M.T.’s story and, had G.B. done so, I would have expected H.D. at least to have remembered this event and these inappropriate comments and yet she gave no evidence about it at all even though she was the oldest child. As I have already said, she had better recall of inappropriate comments she alleges G.B. made to her. I would have expected M.T. to have some memory too.

244Mr. Brauti also argued that this event occurred after the children reported to their parents the “fat” comment and that was G.B.’s evidence. I agree that if this timing is correct that this means that at this time G.B. knew the children reported what he said back to their parents which would have been a good reason for him not to say something like this in front of all three of them.

245Of more significance is Mr. Brauti’s argument that M.T. was caught in an obvious lie when she testified about this event and that she had no credible explanation for why she had a completely different recollection of the tickling as she was testifying at the trial from every other time she had been asked about the incident whether it be the police, the Crown interview or at the preliminary inquiry. At the preliminary inquiry in December 2018, M.T. testified that during the storytelling G.B. was tickling and touching her, but it was not of her “sexual areas”. When asked about this inconsistency in cross-examination at trial, M.T. testified that “today” she recalled there was touching and tickling. Before she explained that answer as to what she meant by touching and tickling, M.T. was asked if she was saying her memory was better at trial than at the preliminary inquiry. She responded that it was not better but that sometimes when issues or episodes are revisited, she recalled there was touching. She admitted that she knew that any kind of sexual touching was critical in this case and repeated that she recalled it differently the day she was testifying than she did at the preliminary inquiry. M.T. agreed that she had read her preliminary inquiry transcript a week earlier and had said nothing about this change in position, however, she stated again, that a week earlier she did not have the recollection and that the recollection only occurred as she was testifying.

246Given that the whole thrust of M.T.’s allegations are that G.B. was behaving in a sexual way towards her, her memory of this incident would clearly have been better closer to the time of the event. This is not the kind of detail that I would expect M.T. to remember so many years later. I have some concerns about the change in her evidence. It may be that now she is convinced of what she alleges G.B. did to her that her memory of the tickling has changed innocently and is not a deliberate lie. That of course gives rise to a concern about the reliability of her evidence. Alternatively, if she in fact had this new memory, I do conclude that it was not a true memory, and this also gives me concerns at least about the reliability of her evidence.

247Mr. Walker submitted that even if M.T. embellished her evidence, it is a minor detail that does not undermine the rest of her evidence. I do not see this type of embellishment as a minor detail or the kind of detail that M.T. could be wrong about as discussed in W.(R.). M.T. knew from the outset when she reported these allegations that any sexual touching was important. Had G.B. actually caressed her breast or vaginal area during the Ottawa storytelling event, I believe she would have had that memory at least at the time of the preliminary inquiry. This evidence at the very least raises a concern that M.T.’s belief that she was sexually assaulted by G.B. has caused her to change her allegations to make them more serious.

(f) Guitar incident

248Turning to the guitar incident, I found G.B.’s evidence that he did not keep the guitar in the basement to make sense given the basement was unfurnished. It also makes sense that he would hold the guitar and let the children strum it rather than put the guitar on each child who was interested including M.T. Even aside from this, I find M.T.’s evidence does not make sense and is an example of where she either is mistaken or exaggerating. If the guitar was in front of her as she testified, it does not make sense that any part of G.B.’s body would be “grinding” up and down her back let alone that his groin or penis would be touching her back. He would have been bent over and the middle section of his body would certainly not have been up tight against M.T.’s back. I also found it concerning that M.T. would use the word “grinding” as opposed to rubbing.

249I have already explained how M.T.’s evidence changed from telling the police and the justice at the preliminary inquiry that what she felt was “probably” G.B.’s penis, to her evidence at trial she was 100% certain it was G.B.’s. When confronted about this inconsistency by Mr. Brauti, with a suggestion that she had exaggerated her trial evidence, M.T. ultimately admitted that she made an error in saying 100% rather than probably. She denied lying or exaggerating. I can accept that this was not a significant difference in her evidence, but as I have already stated, the fact she even believed it was possible that G.B. was grinding her spine with his penis is a concern, as giving any thought, it would seem that that would have been impossible even on M.T.’s version of the evidence.

250For these reasons I have concerns about the credibility and reliability of M.T.’s evidence and find that this event did not occur as she alleges. I also find that this incident is a clear example that at least on this occasion G.B. was friendly to the T. children.

(g) Winnipeg Wedding

251Mr. Brauti argued that the Winnipeg Wedding has very little probative value regardless of whose version of events I accept. I do not agree. I do find that this was an area where G.B. was clearly not being honest in his evidence. What troubles me is that I do not understand why he would choose to lie about this incident. It suggests that he wanted to come up with a reason for how he knew that M.T. was upset at the time it happened, given the evidence of A.T. and H.D. that it had to do with him.

252I have already commented on the fact that both G.B. and N.B. characterized M.T. becoming upset as a commotion, but G.B. took it further to say it was such a commotion that he and the others could hear it even though they were outside. N.B., however, testified that this “commotion” would not likely have been heard outside. She also disagreed with the evidence of G.B. that she spoke to him about this “commotion” through the window.

253The evidence of H.D. and A.T. corroborates M.T.’s evidence that there was some interaction with G.B. that caused her to become very upset. I appreciate that H.D. said this occurred at the banquet hall whereas M.T. and A.T. testified it occurred at a house during a party. There is also confusion as to whether or not M.T.’s mother was the one comforting her. The evidence of H.D., is that when M.T. became upset she noticed G.B. in the hallway looking their way. At the time, H.D. did not think that her sister’s change had anything to do with G.B. and so it may be that H.D. remembered this because of her conversation in later years where M.T. said that the Winnipeg Wedding was the last time that G.B. tried something. On this point, however, A.T.’s evidence is much clearer. He testified that he saw G.B. motioning towards M.T. and that she was fine one minute and crying the next. A.T.’s evidence also explains how G.B. became aware that M.T. was upset as this was happening outside the house.

254I also accept the evidence of H.D., M.T. and A.T. that G.B. poked his head into the room and asked how M.T. was. H.D. found this odd given that she did not think he was very close to her and her siblings. Setting aside whether it was odd or not, it is another example of G.B. not being truthful. Mr. Brauti argued that G.B. could have forgotten that he did this, but I find that hard to believe. I do not accept his argument that there would be no reason for G.B. to deny this and that he could easily have said that he went into the house for some reason, heard a child crying and poked his head in and asked if she was okay. In my view, G.B. recalled doing this and denied it as he tended to deny any suggestion of contact with M.T. As for the debate between counsel as to whether doing this was a huge risk if M.T.’s allegations are true, as suggested by Mr. Brauti, or he did so because he was overwhelmed with worry that M.T. would disclose the sexual assaults, as submitted by Mr. Walker, I find that that is not a conclusion I can come to either way.

255Having found that the evidence of H.D. and A.T. corroborates M.T.’s evidence that there was some interaction with G.B. that caused her to become very upset, that leaves the question of why? Her reaction does support her evidence that G.B. had been sexually assaulting her in some fashion, but it certainly does not support her evidence as to how. There could have been other reasons why she was upset with him as well.

(h) Does the change in M.T.’s behaviour corroborate her allegations?

256Mr. Walker submitted that I can draw inferences from changes in M.T.’s behaviour after these incidents are alleged to have occurred that corroborate her allegations. M.T. did speak about stomach pains that she was told could be due to stress, but I have no basis upon which I could reliably conclude that this was because of the stress of dealing with these allegations. M.T. also testified that she believed these types of assaults only occurred to girls and so in high school she wore boys’ clothing and kept her hair short to avoid attention. That may be true but again it is not the type of conduct that I could conclude corroborates her allegations.

257There is, however, the fact that everyone agrees that after the 1992 disclosure when the whole extended family became aware of M.T.’s allegations that she had been sexually molested by G.B., that she no longer went to family events if G.B. was going to be there and since he continued to attend these events, it meant she could not. On its face this does seem consistent with M.T.’s allegations. However, as Mr. Brauti pointed out, having made these allegations and not backing down when G.B. denied them, M.T. would have had little choice but to distance herself from family events. The Defence theory is that she became angry about this as she had not accounted for the fact that making these allegations would cause her to be excluded from family events which she now regretted.

258Either of these inferences could be true and so I have concluded that the fact M.T. distanced herself from family events does not assist me in determining whether or not her allegations are true.

259Mr. Brauti also submitted that M.T. must have known that certain people in the family did not believe her and that must have worn on her until 2017, at which time she decided to do something about it and have G.B. charged. I do not accept that submission. Certainly, it is clear that the members of M.T.’s family believe her with respect to these allegations. As I have already found, what ultimately prompted M.T. to go to the police was her grandmother’s funeral in my view. As I have also said, this only affected the timing of her report to police as she had disclosed the allegations at least in general terms many years earlier.

(i) Playing cards’ incidents

260Before getting to the details of the allegations of what has been referred as the playing cards’ incidents, I refer to my earlier finding that G.B.’s evidence about his lack of a relationship with the T. children was overstated so that he could distance himself from the children. However, as I have already stated, I also have difficulty with the evidence of M.T. and A.T. that he treated M.T. as special and M.T.’s evidence that he was a playful uncle.

261Furthermore, and more significantly, I do not accept M.T.’s evidence that she liked to follow G.B. around his house and that it was no secret in the family that she would follow him into the basement. If that were true then I would have expected A.T., H.D. and A.K.T. and even J.T. to confirm this. They did not. In fact, the evidence of H.D., which the Crown relies upon as an opportunity for something to have happened when H.D. believes that M.T. and G.B. were alone together in the basement, confirms this, as H.D. testified that the reason she even had this memory is that at the time she found it odd that M.T. was in the basement with G.B. and not upstairs with the children. On this point, I prefer the evidence of H.D. whom I have found to be the most credible and reliable witness. Furthermore, this makes sense, given that I have found that G.B. was not that playful with the children and the evidence I heard that the children would generally be playing together in the basement.

262I did find G.B.’s evidence strange, however, that he would keep sensitive electronics equipment and these pornographic playing cards in in an open workshop with no door in the basement, where the children would often play. He gave no evidence that he was concerned about the children damaging his equipment save for the one time when he saw M.T. in the workshop, with the light on. I also found it odd that he would keep these cards in a place where the children could find them. That said, all I can conclude from this is that there is no doubt that the pornographic playing cards were in the workshop and that this gave an opportunity for G.B. to show them to M.T. as she alleges and/or for M.T. to find them as G.B. alleges.

263As I have reviewed, M.T. was inconsistent in her evidence as to whether her pants and G.B.’s pants were just down or whether their underwear and pants were both completely off. Her evidence in cross-examination that their underwear and pants were both completely off was clear, and I do not think it is an answer, as Mr. Walker suggested, that she readily accepted suggestions in cross-examination and that in fact their pants and underwear were not off. M.T. is a highly educated, successful woman and there was no suggestion that she could be confused by the questions even though they were leading. My only concern is that Mr. Brauti incorrectly put to M.T. that she had said at the preliminary inquiry that each time it was the same in the sense that G.B. took her pants off. Had that been the only question, I could understand if there was confusion. However, this question was repeated a number of times and, in my view, there could be no confusion between the pants and underwear being “down” versus “off” and the conflict in this evidence was not answered or explained in re-examination. This could be an example of what Mr. Walker characterized as M.T.’s tendency to agree with the suggestions put to her in cross-examination, as her answer was not in her interest, but she often did not accept suggestions as being true either. In the end, whether or not the pants and underwear were down or off does not matter much. Either way it would have been impossible for G.B. and M.T. to recover and become fully clothed again before someone spotted them as they came down the stairs with no notice.

264This in itself raises a concern as to whether or not these events could have occurred without detection. It is one thing if it is alleged that G.B. pulled his penis out of his pants and asked M.T. to perform oral sex. To suggest that on the second occasion M.T.’s pants and underwear were also down, makes it even more likely they would have been detected and to think that they had their underwear and pants off quite frankly makes no sense. That would have unnecessarily increased the risk of being caught. There is simply no way if anyone came down the stairs that someone could even cover up that state of being undressed in time to avoid detection.

265Mr. Walker argued that the fact that A.T. saw G.B. fumbling with his pants is very significant. That and the fact that G.B. was with M.T. with the pornographic cards laid out was, in his submission, devastating evidence. I have already commented on the fact that A.T. had no reason to remember that he saw G.B. fumbling with his pants as he did not think anything of it at the time. In addition, what I must consider is that A.T. admitted that he and M.T. may have talked “a little bit” about some of the events, that occurred.

266M.T. recalled one conversation about the playing cards with her brother when she was in her 20s. She asked him if he remembered the cards that she showed him, and he said that he did. She then told him that those were some of the things that G.B. made her to do to him and her brother got very emotional and gave her a hug. He told her that he should have told someone about the cards. This was not put specifically to A.T., but when he was asked if he recalled a discussion with M.T. about the playing cards, he testified that he did not recall one way or the other if they did, but he admitted it was possible. If M.T. is correct in what she recalled, this would have been an opportune time for A.T. to disclose that M.T. that she had sexually touched him.

267I do not know what specifically M.T. and A.T. discussed about the playing cards’ incident but at the very least, this discussion could explain A.T.’s memory about G.B. fumbling with his pants. There is no other reason why he would remember that even if it was discussed when M.T. was in her 20s. For these reasons, I am concerned about the reliability of this memory and whether it could have been tainted by information from M.T. As a result, I do not accept Mr. Walker’s submission that it is a significant piece of corroborating evidence.

268Mr. Walker also submitted that the real crux of A.T.’s evidence is that M.T. was alone in the basement with G.B. and he was showing her the pornographic playing cards and that H.D. also recalled the time when she believed A.T. went down to the basement to find his sister. It is not clear how often G.B. was in the basement when M.T. and A.T. were there, but he ultimately admitted that there were other times than the time he alleges he found M.T. with the light on.

269Assuming that the time A.T. came downstairs was not the time that G.B. alleges M.T. had found the cards, Mr. Walker is incorrect, as there was no evidence that the playing cards were laid out on the workbench. M.T. said that G.B. had taken out one card, the one showing a woman performing oral sex on a man. She also testified that G.B. took off in a rush. A.T.’s version of events was the opposite of M.T.’s in that he testified that G.B. actually stopped to show him a card and asked him what he thought of the card and then left him and M.T. with the cards.

270I agree with Mr. Brauti’s submission that A.T.’s evidence makes no sense in the context of M.T.’s evidence. If the overriding intention of G.B. was to keep the fact he was in the workshop with M.T. and had the pornographic playing cards out secret, it makes no sense that G.B. would have drawn attention to the cards by showing A.T. a card with a provocative image and then ask him what he thought about the card. Mr. Walker argued that by flipping the card to show A.T. it made it seem casual, but there would have been no reason for G.B. to show any card to A.T. given M.T.’s evidence. I would have expected G.B. to take back the card he was showing M.T. and put the pack in his pocket before rushing back upstairs. Even if A.T. had just happened to see the cards, it would have made more sense for G.B. to tell him to keep this a secret as M.T. has said he did with her. It certainly makes no sense that he would rush up the stairs and leave the cards with M.T. and A.T., whom he could expect would look at them and might even have brought them upstairs and shown the others what they were looking at, given they were too young to appreciate what they were.

271Mr. Walker submitted that G.B. told N.B. that the children had seen the cards because he was worried they would say something. However, as already stated, it makes no sense for G.B. to have left the children with the cards, even if he was in a panic to get back upstairs. That would only have made his predicament worse.

272What I also do not understand is M.T.’s evidence that G.B.’s and N.B.’s version of what happened with the playing cards could be true. She could just not say. If G.B.’s version of events is true, it could explain A.T.’s evidence that he saw that M.T. had a card of a woman performing oral sex on a man in her hand and that he and M.T. then spent some time looking at the other cards together. It would not explain, however, his memory that G.B. was there at that time and that the cards were left behind.

273It is not possible, in my view, to reconcile M.T.’s and G.B.’s versions of events. If what G.B. testified could be true, it makes no sense that there would be separate incidents where G.B. showed M.T. the card with oral sex and asked her to do the same to him. It seems to me that it has to be one version of the events or the other. Given M.T.’s admission that G.B.’s version of events could be true, I have no reason to find that the evidence of G.B. that M.T. found his pornographic playing cards and that she and possibly A.T. were looking at them could not reasonably be true. That in and of itself would give rise to a reasonable doubt, subject to considering the evidence of A.T. and the sexual touching he alleges that occurred between him and M.T., which I will come to.

(j) The incident in the room with the red carpet

274I turn then to the allegations M.T. makes with respect to the incident in the room with the red carpet. On M.T.’s evidence no one questioned where she and G.B. were for as much as an hour. Mr. Brauti makes much of this as he suggests it is impossible for them not to have been found out if they were away together alone in the basement for this long. Mr. Walker also submitted that he did not think that this incident could have lasted for an hour. In my view, this is the type of detail that M.T. could be mistaken about – given she was only eleven at the time – to a child it could have seemed like a long time. Furthermore, M.T. was not definite about the length of time she alleges that this incident took. She testified that she could not say how long she and G.B. were in the bedroom, but she said that she would not say that it was more than an hour. When asked if it could have been shorter, she agreed that it could have. In cross-examination she agreed that it could have been 15 to 20 minutes.

275I have considered that if this allegation is true, why would G.B. have chosen M.T.’s home, but on the evidence I do have, her house had a room in the basement with a door and his basement only had the open workshop area.

276A determination of whether or not this allegation has been proven beyond a reasonable doubt is strictly a “he said/she said” determination, subject to the evidence of A.T. that I will come to. Without considering the impact of his evidence I would have to conclude, given the concerns that I have about the credibility of M.T. and G.B., that I am not able to say whether or not what M.T. alleges happened. Both her evidence and the denial of G.B. could be true.

(k) The evidence of A.T.

277A.T. testified that he was certain that he and M.T. never spoke about what had happened between the two of them until they were at the police station in October 2017. I accept that evidence. The evidence of H.D. confirms that this discussion was a surprise for M.T. although M.T. alleges that it did refresh her memory to some extent. I accept that M.T.’s reaction as described by H.D. and A.T. was genuine and that this was the first time they discussed his allegations.

278What M.T. remembers doing to A.T. is important. A.T. was not sure about what he told M.T. about what she had done, but his evidence was clear that whatever he told her she had no memory of it. M.T., however, testified that she remembered only touching A.T. one time when A.T. was on all fours and he did not have his pants on. She was behind him and “poked his bum with a tissue”. She did not remember saying anything or her brother saying anything.

279Mr. Walker argues that this memory of M.T.’s is important because it is strikingly similar to what M.T. alleges G.B. had her do during the incidents with the playing cards. In other words, M.T. must have gotten the idea to do this from G.B. However, M.T. made no connection between this memory and what she alleges G.B. asked her to do. As already stated, M.T. testified that this just seemed like a “natural extension” because they used the washroom in front of each other and it did not seem unnatural that she would do that to him when she was in Grade 4 or 5. M.T. also said that she had done this before to G.B. and at the time she thought it was a part of something natural that she had done before and that there was nothing wrong with it. She did not connect it in any way to the incidents with the playing cards.

280Mr. Walker submitted that the most compelling piece of evidence in this case is the very unique evidence given by A.T. of the sexual touching between him and his sister and what she said to him. He submitted that if that evidence is true, there is no other reasonable conclusion other than M.T. was sexually abused by G.B. In fact, he went so far as to say that it is only if that evidence was an outright fabrication by A.T. and there was collusion between him and M.T. that this would not be the case. Mr. Walker also made some submissions that came very close to the line of relying on the statements that M.T. is alleged to have made for their truth. I have ruled that I should not do so. I cannot rely on these statements to corroborate M.T.’s evidence that G.B. was the one who told her what he liked and was doing these various sexual acts to her.

281There are two aspects to A.T.’s evidence that I must consider. First is the alleged sexual touching and second is what he alleges M.T. said to him at the time.

282If I find that M.T. made the statements alleged to A.T., even though she has no memory of doing so, in my Evidentiary Ruling I held that they are admissible for pure narrative as they explain why she did not report these allegations at the time they occurred. The statements suggest that she did not know that what she was doing to A.T. is wrong. I do not need to find that M.T. made the statements alleged by A.T. to come to this conclusion. No one would suggest, absent some coaching or other source of information, that at their young ages either M.T. or A.T. would have known that any sexual touching between them was wrong or even sexual. I also ruled that if the statements alleged were made, that they would rebut the allegation that M.T. fabricated her allegations when she made her disclosure to her best friend M.G., when they were in high school.

283In addition, I ruled that if I found that the statements were made that they were admissible as narrative as circumstantial evidence. In this regard, I must be careful not to use M.T.’s prior consistent statements to support an inference that merely by virtue of repetition her evidence is more credible or that the statements if made are true. I ruled they could not be admitted for their truth. However, these statements are relevant without an inference of credibility enhancement because M.T. said the same thing previously, because if they were made they would show that M.T. thought they were innocent statements, that she didn't think the behaviour was wrong at the time; and that given her young age there is little likelihood she would have knowledge of this kind of conduct on her own. In addition, the context of what she was doing when she made the statements could be relevant to enhance her credibility. It makes the allegations of sexual abuse more likely. Mr. Walker submitted that it was the only reasonable explanation for what was going on and what was being said.

284I do not believe that A.T. would deliberately lie to assist M.T. in proving these allegations. I am very troubled, however, by the fact that M.T. has no recollection of saying or doing these sexual acts with A.T. save for the one time she poked A.T.’s bum in what she said was a natural extension of their lack of privacy in the bathroom, not because of anything G.B. said or had her do. Given the detail M.T. recalls with what she alleges G.B. did to her in the same time frame, that makes no sense. I do not believe that she was being untruthful when she testified that she had no recall of sexually touching A.T. or saying the things he alleges he said.

285I have come to the conclusion that even if, for the sake of argument, I accept that the evidence of A.T. on this subject is true, without making a formal finding to the effect, that it still does not tip the scale in favour of conviction as submitted by Mr. Walker. The thrust of his submission is that M.T. revealed an innocence about the conduct and ignorance that it was wrong and that there is no likelihood that a ten-year-old child would have the knowledge to do the things or say the things that A.T. alleges M.T. did and said unless it was something that she experienced and was taught by G.B., particularly given how similar those acts are as compared to what M.T. alleges she did with G.B.. This is particularly true of M.T. rubbing tissue on her brother’s anus which is strikingly similar to what she said G.B. asked her to do to him.

286I did not hear any expert evidence about whether or not at the ages in question of M.T. and A.T., children of their own accord might experiment with the type of conduct A.T. testified to. I recognize, however, that what A.T. alleges M.T. did to him is quite similar to what she alleges G.B. asked her to do to him and of course A.T. alleges that she connected that activity to G.B.. That tends to rule out the idea that they were just being curious about their bodies. I find that it is reasonable to infer that M.T. and A.T. were too young to know about these types of sexual acts without some knowledge, which could have come from G.B. given M.T.’s allegations that he engaged in this sexual activity with her.

287However, I must consider all of the circumstantial evidence and determine that there was no other possible source of this knowledge. There is no dispute that both M.T. and A.T. looked at the pornographic playing cards without G.B. being present. A.T. said he was “consumed” by them. I did not receive that much information about the cards. I presume there were 52 as there would be with a normal deck of playing cards and there is no question that the cards were pornographic with some fairly graphic photographs or drawings of various forms of sexual activity between adults. They clearly were not all the same showing a woman performing oral sex on a man.

288In light of this evidence, the pornographic playing cards are clearly an independent source of graphic information that M.T. and A.T. became familiar with. This too could explain their knowledge of the type of sexual touching A.T. alleges M.T. engaged in with him. In the same vein, there is the possibility that if the sexual touching occurred as alleged by A.T., that it was only because M.T. and A.T. had both looked at the cards.

289In addition, since M.T. knew these pornographic playing cards were in G.B.’s workshop, she would have naturally assumed they belonged to him. I must consider the possibility that if M.T. indeed said something to A.T. along the lines of what he testified to, she may have done so because she assumed that this type of sexual touching was what G.B. liked, not because he told her this, but because she knew the cards were his and they showed these various sexual acts. It would be reasonable for her to infer this and that could have occurred without any improper conduct by G.B..

290The sexual touching that A.T. described could certainly be something that was depicted in these pornographic cards, save that I would not expect there to be a card showing a woman rubbing a man’s anus with tissue. However, as I have already said, M.T. admitted doing that to A.T. and made no suggestion that it was because G.B. had taught her this. She did say that she had done this to G.B. but related it to what she described as this natural extension from the fact they went to the washroom with the bathroom door open. In other words, she would not have to have seen a pornographic card depicting this in order to get the idea to do this to A.T.

291I appreciate that I must not speculate where there is no or insufficient evidence. It was not put to M.T. or A.T. that the reason M.T. was doing and saying these things was because she had seen the playing cards. However, there would have been no point in asking M.T. as she had no recall of any of this sexual touching of A.T., save the one where she rubbed paper on his bum that she did not attribute to G.B. As for A.T., his evidence is that it was M.T. who was directing this-it was her idea and all he knew is that he assumed these were things M.T. did with G.B.

292Having considered what in my view is a reasonable alternative to how and why M.T. may have done and said what A.T. alleges, accepting that the evidence of A.T. is true, which would not have required any improper conduct from G.B., I find it unnecessary to come to any conclusion as to whether or not A.T.’s evidence is true. Even if I accept A.T.’s evidence is true, despite the fact M.T. has no recollection of it, for the sake of considering this argument, I do not accept Mr. Walker’s submission that it would inevitably lead to convictions given these legitimate alternative sources of knowledge that could have resulted in the sexual touching by M.T. and the statements from M.T., alleged by A.T., without any improper involvement from G.B..

Conclusions

293In summary, I have found serious problems with the evidence of G.B. such that in the context of all of the other evidence I cannot, as Mr. Brauti urged, clear his good name and find that none of what M.T. alleges ever happened. Given my conclusions with respect to the relevance of A.T.’s evidence of sexual touching by M.T., I find that this case is really not so different from the more typical “he said/she said” cases that regularly come before our court. The evidence of H.D. and A.T. as to what they observed did not corroborate M.T.’s allegations and as I have set out, I have a lot of difficulty with many aspects of M.T.’s evidence. This cannot be turned into a credibility contest between M.T. and G.B. The onus on the Crown to prove the allegations beyond a reasonable doubt it a very high onus. I must be sure that G.B. sexually assaulted M.T. as alleged in the Indictment. For the reasons that I have set out, I find that the Crown has not proven the charges beyond a reasonable doubt.

Disposition

294G.B., for these reasons I find you not guilty of all charges.

“Spies J.”

Spies J.

Released: July 16, 2020

CITATION: R. v. G.B, 2020 ONSC 3705

Footnotes

1. 1I will refer to the family witnesses by their first names as that is generally how they were referred to in the evidence.
2. 2In a leading question from Mr. Brauti G.B. agreed this occurred in and about 1980 to 1981 but when asked an open-ended question G.B. said that he could not exactly recall the date and that it would “probably be somewhere in the '80's.”
3. 3Foaji is the name that the children used for G.B. as it means my father’s sister’s husband.
4. 4A. was a nickname the family used for M.T.
5. 5This math is based on 15 adults being present on the three occasions when M.T. alleges a sexual assault i.e. three times 15 equals 45 opportunities for one of the adults to discover them.