R. v. G.A., 2020 ONSC 4058

ONTARIO

SUPERIOR COURT OF JUSTICE

CITATION: R. v. G.A., 2020 ONSC 4058

COURT FILE NO.: CR-18-998-00

DATE: 20200706

B E T W E E N:

HER MAJESTY THE QUEEN

Carla Agatiello, for the Crown

• and -

G.A.

Paul Erskine, for the defence

HEARD: January 20, 21, 22, 23, 24, 28, 29, 30, 2020, at Brampton

REASONS FOR JUDGMENT

Justice F. Dawson

1The complainants, NB and CB are sisters. NB is four years older than CB. Their mother GC was previously involved in an intimate relationship with the accused.

2It is alleged that the accused sexually abused NB between January 1, 2011 and February 2, 2016. Five offences are alleged on various dates within that time frame. The charges include sexual assault, sexual interference, invitation to sexual touching, sexual exploitation and threatening bodily harm.

3It is alleged that the accused sexually assaulted CB between July 4, 2013 and July 31, 2016 and that he engaged in sexual exploitation of CB between the same dates.

4The accused is also charged with domestic assault against the girls’ mother, GC, between July 11 and August 31, 2016.

5The evidence at trial consisted of the testimony of the three complainants and a brief agreed statement of fact. The accused did not testify or call any evidence.

Factual Background

6The mother, GC, testified that she met the accused in 2009. At that point GC rented a three bedroom home in Toronto. She lived there with the other two complainants and an older daughter of hers, who is not involved in these allegations. GC had her own bedroom. The complainants, NB and CB, shared a bedroom. The older daughter also had her own room. When the older daughter moved out, NB and CB then had separate rooms.

7The evidence is that the accused worked for Rogers cable. GC met the accused when he came to install cable and internet in the home. An intimate relationship soon developed. In October 2009 GC advised her daughters that she was pregnant. A son, C, was born to GC and the accused on July 3, 2010.

8Prior to C’s birth the accused had moved his belongings into the home. He had a key. While he often stayed overnight, according to GC, he also continued to stay at his mother’s. Overall, the evidence is to the effect that the accused maintained an irregular schedule. He would come and go from the home but did not live there on a full-time consistent basis. Both GC and NB did testify, however, that he was around the home more frequently for a period after his son, C, was born.

9When the family initially lived in Toronto GC had a “nine to five” job and attended a private medical college in the evening studying to become a personal support worker (PSW). After graduating she did shift work. She was at home for a time after her son was born and then began to work three shifts as a PSW.

10NB alleges that the accused began to sexually abuse her after her brother C was born. She testified that the abuse continued until not long before she, her sister and her mother went to the police on January 8, 2017.

11On July 15, 2013 the family moved to Brampton. CB turned 11 years old the next day. NB was 15 years old by then. CB testified that the accused began to sexually abuse her soon after the family moved to Brampton.

12The home in Brampton was registered jointly in the names of GC and the accused. GC testified that in 2012 she received a personal injury settlement which provided enough money for her to make a down payment on a home. However, her income was insufficient for her to qualify for a mortgage on her own. This led to her and the accused buying the home together. However, she testified that she put up the entire down payment and paid all the closing costs. There were two mortgages on the home. The accused was supposed to pay half of the mortgage payments but did not always do so.

13The Brampton home had four bedrooms and GC, NB, CB and C all had their own rooms. When the accused stayed over, he stayed in GC’s room. All the witnesses testified that the accused did not really live in the home. Sometimes he would stay there but it was not his full-time residence. He would come and go from the home on an irregular basis. He did not maintain a regular schedule.

14It is apparent from the evidence overall that as time went on the relationship between GC and the accused deteriorated. NB and CB eventually disclosed to their mother that the accused had been sexually abusing them. There is some inconsistency in the evidence about when NB made such disclosure.

15GC said that after NB told her what had been occurring, she told the accused to stay away from the home. He did so for a time but then began coming back to the home.

16Although the allegations of sexual abuse came to GC’s attention, she did not contact the authorities for a considerable time. However, on July 19, 2016 GC initiated civil proceedings in this court against the accused seeking partition and sale of the Brampton home and sole custody of her son, C. Although technically incorrect, those proceedings have been referred to as the “Family Court” proceedings. I will continue to use that terminology for ease of reference.

17Counsel for the accused put to each of the complainants that they had colluded to make false allegations against the accused to assist GC in the Family Court proceedings. The complainants all deny that.

The Evidence in More Detail

Alleged Offences Against NB

18NB was 21 years old when she testified. She said she met the accused when she started middle school, which was in grade 6. She testified that when she was 12 or 13 and in grade 6 or 7, she was at home recovering from chicken pox. She had been home for about a week and a half. The red spots were gone and her mother had left her brother C, still an infant, home with her.

19NB testified that she was sleeping in her queen size bed. It was against the wall and C was sleeping on the bed protected by pillows. She and C were alone in the house. She thought it was afternoon.

20NB testified that the accused came in and woke her up by rubbing her thigh. She asked him what he was doing. He told her to relax and said it was fine. She said he eventually forced his hand into her pants. When she started to scream, he put his hand over her mouth. She tried to fight him off but was weak due to her illness. She said the accused put the weight of his chest on her and removed her pants and underwear. She testified the accused then had forced vaginal intercourse with her. She said she was crying and scared for her brother, who remained asleep. The accused’s hand remained over her mouth.

21She said the accused eventually ejaculated onto his pants. He then told her that he was not trying to hurt her. He said he was just trying to show her what adults do to prepare her for when she was older.

22NB testified that the accused left her room and came back with a towel. He gave her the towel and told her to clean herself. She said that the accused then threatened her by saying that he would harm her and her family if she told anyone what had happened.

23NB testified that she stayed in bed and cried until the accused left the house. She was confused about why this had happened. She then got up and showered. The accused came home hours later after her mother and sisters had come home. She said she did not know how to tell her mother, so she isolated herself. In a very compelling manner, she explained that she was too scared to tell her mother what had happened. Quite apart from the threats, she knew her mother really liked the accused. She said that her mother had just had a baby with him and explained, “I didn’t want her to not believe me.”

24NB testified that when the accused got home later in the evening he insisted on taking her to the mall. In the car on the way he told her he was going to buy her a cell phone. He told her again that he was not trying to hurt her but wanted to help her by preparing her for “stuff when I’m older”. He bought her a new Blackberry Curve cell phone at the mall.

25NB went on to testify that there were many subsequent acts of forced vaginal intercourse over the years. That happened in Toronto and later in Brampton. She said that there were no set times when this would occur. The accused would take advantage of any opportunity.

26On occasion the accused would force his penis into her mouth. If she would not open her mouth he would squeeze her cheeks until she did so. Sometimes he would also perform oral sex on her. She said he would come into her room and touch her, even if her sister was asleep in the same room.

27Sometimes NB would return to her room from having a shower and find the accused standing behind her door or hiding in her closet. He would come into her room at night and rub her vaginal area. On one occasion when he forced fellatio she said she bit his penis. In response the accused struck her in the face.

28NB described how in Brampton she had locks on her bedroom door. She described how the accused would pick the lock or pry at it, eventually causing damage to the door frame. The agreed statement of fact stipulates that there was damage to the frame of one of the bedroom doors in the Brampton home.

29NB also explained how the accused would interfere with her relationships with friends and afterschool activities. She said she was aware that the accused would intercede with her mother who would then prevent or dissuade her from engaging in various activities. It seems to me that this is a credible description of isolating activity that would reduce the risk to the accused that NB would make a disclosure to a close friend or boyfriend. Details were provided by NB. She testified that the accused would tell her that she only wanted outside activities so she could do stuff with boys and not do stuff with him.

30NB also, in a very credible fashion, explained that if she was uncooperative with the accused or argued with him, he would disconnect the family’s internet. Both GC and CB described the accused doing that on occasion. This made it difficult for NB and CB to do their homework. The accused would take the equipment or cable box with him and they would be without cable and the internet for a few days.

31NB testified that later on in Brampton the accused would park down the street. He would enter the home and wait or hide in the basement until everyone was sleeping. Then he would appear in her room. After the accused left her room she would look out the window and see him walking down the street.

32NB said she thought about going to the police but she did not want to go alone and she had no confidence that her mother would believe her. By then her mother not only had a child with the accused, she had also bought a house with him. NB said, again in a compelling manner, that she felt that if she reported what was going on she would be “digging a deeper hole for all of us”.

33NB said she started to act out in school and her grades declined. She finally told her mother what was going on after the school called her mother about her behaviour. When her mother confronted her about the call from the school she spontaneously told her mother about the abuse. NB testified that she was fearful when she told her mother. She was worried that her mother would be disappointed that she had not told her before and that her mother would love her less. She said she was also worried about her mother’s safety due to the accused’s threats.

34Despite telling her mother, NB said she was not ready to go to the police. She said that from time to time her mother would ask her if she was ready and she would just walk away. The sexual abuse continued after her initial disclosure. However, she did not tell her mother about it again.

35NB thought that she disclosed to her mother in 2015 or 2016. She was not sure. Later in her testimony she thought she disclosed at the end of her first semester in grade 12. As she graduated in June of 2016, that would put it around the end of January 2016.

36NB’s mother, GC, was also unsure when NB disclosed to her. She said she thought it was some time in 2014. She thought NB was in grade 10 at the time. GC explained that at the time she was under pressure due to other things, including her relationship with the accused and the fact that the accused’s mother was unwell. GC did not contact the police.

37GC testified that after NB disclosed to her she contacted the accused and confronted him with what NB had said. Initially, he denied it. She then contacted the accused’s mother and told her what NB had said. Soon after that she went to the accused’s mother’s apartment and met with the accused and his mother together. She testified that she asked the accused in the presence of his mother how he could do such a thing. The accused responded by saying that he did not know what had come over him. He said repeatedly, “We can get past this.” She told the accused to stay away or she would call the police. She said the accused did stay away for a month or two but then started coming back to the house.

38GC said she did not call the police because the accused and his mother put pressure on her and made her feel guilty that doing so would lead the accused’s mother to an “early grave”. The accused’s mother had heart problems.

39GC testified that throughout this time period the accused would disconnect the family’s cable and internet if she argued with him. During her testimony GC broke down crying and admitted that maybe she was also protecting herself because the accused was the father of her son. This appeared to me to be a genuine indication of remorse for not promptly reporting the alleged abuse to the police.

40GC said she only decided to take things further when her other daughter, CB, disclosed to her in June or July 2016 that she was also being sexually abused by the accused. Even then she did not contact the police. She and the accused were in a dispute about the house.

41Then, on August 6, 2016 her son went missing. It turned out that he had been taken from the house by the accused. GC said she was under pressure and finally called a “crisis line” for help. When that was, has not been established.

42The people at the crisis line contacted the police. GC said she was contacted by the investigating officer. On two occasions she made appointments to take her daughters to meet with the police but each of those appointments were cancelled by her. An October 2016 appointment was cancelled due to the death of the accused’s mother. A subsequent appointment was cancelled due to the death of GC’s mother. Her mother’s death led GC to travel to Jamaica from December 11 to 24, 2016.

43NB testified that when her mother was away in Jamaica she was at the Brampton family home with her boyfriend. By then NB was attending college. She said that she got into an argument with the accused, who was upset that she brought a male to the house. She said the accused threatened her boyfriend. At that point she said she finally felt ready to go to the police. She told her mother so when her mother returned from Jamaica.

44Soon after that GC made arrangements to go to the police station with her daughters on January 8, 2017.

Alleged Offences Against CB

45CB was 17 when she testified. She was 14 when she gave a video recorded statement to the police on January 8, 2017. That statement was adopted by her while testifying and became part of her examination-in-chief pursuant to s. 715.1 of the Criminal Code. Counsel for the accused did not challenge the admissibility of the statement pursuant to that provision. I found that the statement was made within a reasonable time and was adopted by CB while testifying.

46CB testified that the accused helped the family move into their new house in Brampton. She recalled that the first time anything happened was on a Saturday soon after they moved in. She said her mother was not home Saturday mornings. She and her sister and brother were watching television “downstairs”, which I understand to be a reference to the main floor. She thought the accused was in the kitchen. She said the accused then asked her to go upstairs with him. She said the accused had been painting.

47CB testified that once she was upstairs the accused said he wanted to play a game with her. He then placed his hand inside her shirt and touched her chest area for several minutes. She was 11 years old at the time. When she asked the accused why he was doing this, he said it was a game and that it was their secret. In a credible and compelling fashion, CB testified that she was confused by the whole situation and did not know how to process it.

48CB said this was a regular occurrence going forward. It would happen at various times in different places in the house. It would happen when others were present in the home. CB said that sometimes the accused would motion to her to go with him and he would point at his own chest to indicate what he wanted to do. The accused told her not to tell her mother as it would just stress her out.

49CB also testified that the accused began to come to her room at night when her mother was asleep. The accused would put his hands inside her underwear and insert his fingers into her vagina. She told him it hurt and he always told her to relax. This also became a frequent occurrence when the accused stayed over at the house. She learned that if she pretended to be asleep, sometimes the accused would leave her room. On occasion she also physically pushed him out of her room.

50CB said that if she did not let the accused do what he wanted he would “take off the internet and leave with the box”. She also said that if she wanted to go somewhere but would not cooperate with the accused, he would make up a story and tell her mother, who would then not let her go. CB also said that the accused would offer to buy her a cell phone or give her money. However, he never did buy her a cell phone. He would give her small amounts of money on occasion.

51CB testified that the accused also expressed a desire to have sex with her. On several occasions he said it would be better if she lost her virginity to him because he knew what to do, it would be safe and he would not get her pregnant. She said she was still 11 years old when the accused started saying that to her.

52There was one occasion when the accused tried to have sexual intercourse with her. CB testified that it was a Saturday morning. Her sister and brother were asleep in their rooms. The accused got her up and made her go downstairs with him. He told her to lay down on the living room floor. He got on top of her. She struggled. He managed to get one leg out of her pants. He unbuckled his own pants and attempted to penetrate her vagina with his “private area”. He told her it would hurt if she didn’t relax. She was trying to keep her legs closed. When he tried to penetrate her, she kicked him in his “private area” and he got off her and went back upstairs.

53CB testified that the accused’s sexual abuse of her continued for about two years. She was unaware of what was happening to her sister.

54CB testified that she told her mother what was happening to her on an impulse. CB said she was just tired of it and was mad at the accused due to an argument. She testified that she had often thought about telling her mother. She told her mother in June or early July 2016. Her mother told her that whenever CB was comfortable, they would go to the police. CB testified that her mother never had another conversation with her. One day she was just taken to a police station. That was January 8, 2017.

The Alleged Assault on GC

55GC testified that the accused physically assaulted her on a Friday night in August 2016. By that point in time she had commenced the Family Court proceedings against the accused. The few documents from those proceedings that were used by counsel for the accused in cross-examination show that by that time there was a high conflict relationship between GC and the accused. An affidavit sworn by GC on August 23, 2016 in support of an emergency motion prior to a case conference, described the accused as having taken his son, C, from the home without telling anyone and the accused having defaulted on his promise to pay half of the mortgage payments.

56GC said that on the night of the assault the accused had been in the basement all evening. NB and CB had gone to a movie. GC said the accused left the home. However, he then called her on her cell phone. She did not answer. The accused called five to six times. She said he then returned to the home and came upstairs.

57GC said the accused demanded to know why she did not answer his calls. She told him she was not obligated to. He then forcefully grabbed her cell phone from her hand and they wrestled around fighting over the cell phone. GC said they each had a hold of the front of the other’s shirt. As they continued to struggle the accused forced her down into a chair. She said he did not hit her but that he pressed his closed fist hard into her neck. This left a mark, which she had one of her daughters take pictures of with her cell phone the next day. The photos are in evidence.

58GC said that the accused also grabbed her purse and dumped out its contents. He then took her work cell phone as well and headed downstairs to leave. There was a further struggle in the kitchen and GC admits she hit the accused with an empty juice container. He then returned her cell phones and left the house.

Analysis

59I commence by indicating that I am, of course, aware that the burden to prove guilt beyond a reasonable doubt rests on the Crown. That never changes. There is no obligation on the accused to prove or demonstrate anything. However, as no defence evidence has been called I have only the evidence tendered by the Crown to consider.

60Counsel for the accused submits that I should have a reasonable doubt about whether the three complainants are telling the truth. While the accused has no obligation to demonstrate anything, his counsel contends that the Family Court proceedings provide a motive for all three of the complainants to lie. He suggested to the witnesses that those proceedings were not going well and submits that I should find that false allegations against the accused were conjured up as a result.

61Counsel for the accused also focuses on the testimony of NB and CB to the effect that each did not want the other to know what had happened to them and on their testimony that they had not spoken to each other about their abuse. Counsel did not point to any contradictory evidence but rather argued that it defies common sense to think that they would not have discussed it.

62Counsel for the accused points to alleged inconsistencies between the testimony of CB and her prior statements. In addition, counsel points to differences between the evidence of CB and that of her mother and sister about the circumstances surrounding their trip to the police station on April 8, 2017 to report the alleged abuse. He also submits that it is unusual that NB and CB cannot be more specific about the accused’s schedule or routine.

63In terms of the charge of domestic assault against GC, counsel for the accused submits that GC’s lack of credibility is demonstrated by the fact that, except for August 6 when her son went missing, she cannot recall when she saw the accused during the month of August. Yet she states categorically that he assaulted her on a Friday night in August 2016. Counsel also submits that it is suspicious that she was not able to provide a date when the photographs of her injuries were taken by reference to the cell phone used to take the photos.

64While I recognize that demeanour should play a limited role in the assessment of credibility, there was nothing in the demeanour of any of the three complainants which raised any red flags or concerns. In fact, I find just the opposite. Each of the witnesses testified in a manner that inspired confidence in my ability to rely on the core elements of their evidence.

65Particularly with respect to CB and NB, the manner in which they gave their evidence was enhanced by how they responded when cross-examined on certain factual matters and alleged inconsistencies. I will illustrate what I mean by brief references to the cross-examinations of CB and NB. I will deal with CB first because she was the first witness, although the alleged offences against her were later in the chronology of events.

66I also observe that, except for the circumstances surrounding the trip to the police station, there really are no inconsistencies in the evidence of either NB or CB which I consider to be significant. I hasten to add that I have not used consistency to in any way bolster the credibility of a witness or to add strength to the Crown’s case.

67When CB was cross-examined, she did not agree with the suggestion that she would not remember additional details about the events at a later point in time. She said that “sometimes you do remember things down the line”. She explained that she was older now and better able to explain things than she was when she gave her initial police statement. She said that when she has been called upon to explain things again, now that she is more mature, she has been able to provide additional details. She also said that since she testified at the preliminary inquiry, she has thought a lot about her testimony and “about how I could have said it better”.

68These explanations came forward when she was cross-examined about what I would characterize as some relatively minor additions to her prior statements. There is no instance where a major inconsistency of obvious significance was demonstrated.

69I will give some examples of the relatively minor inconsistencies that were established. When counsel suggested that memory did not improve with time, as I have indicated, CB did not fully agree. Counsel then established that she agreed with that same suggestion when he made it at the preliminary inquiry. CB said she no longer had the same belief now. She said she had difficulty explaining what she meant. However, the explanation I have already referred to about being more mature emerged as she was cross-examined further. She also said that while no one had talked about the case at home, she thinks about it all the time.

70As I watched and listened to CB, I formed the impression that she is quite a bright and perceptive young woman. I conclude that she is developing the ability to articulate subtle distinctions. I doubt she had the same degree of ability when she was 14.

71In her trial testimony CB said that her brother C was with her and her sister watching television on the day the “shirt game” started. She had not mentioned that previously. CB explained that no one asked her before. She said that her brother was young and did not like to be alone and she now believed he was with them. Nor did she tell the interviewing officer that it was a Saturday or that her sister was at home. She explained that “if [the officer] didn’t ask I didn’t say it”. These are the type of relatively insignificant inconsistencies which were the only sort demonstrated.

72At the preliminary inquiry CB testified that she did not know how old she was when the accused offered to give her a cell phone if she would let him take her virginity. When this was put to her as an inconsistency her simple response was that now, two years later, she did remember. She explained that she did not think as carefully about things at the time of the preliminary inquiry as she does now. I accept this explanation.

73In her trial testimony CB said the accused gave her money “randomly”. She was cross-examined on her preliminary inquiry testimony where she said he gave her money “rarely”. She explained that both were true and denied that there was any inconsistency. I accept that testimony.

74CB did not overstate her evidence. She testified in a measured way. Her answers were reasonable and responsive to the questions. She was not argumentative or difficult. She tried to be helpful. She presented as a relatively self-assured young woman who was going to stand her ground in a reasonable fashion and make sure her story was heard. Her explanation of confusion and of an inability on her part to process the molestation when it was occurring rings true. I do not think this is consistent with her story being a fabrication as alleged. Nor do I think CB’s description of what the accused said to her to try to convince her to surrender her virginity is contrived. Her testimony of feigning sleep and occasionally pushing the accused out of her room fall into the same category. How she responded in cross-examination about the amount of noise she was making when the accused tried to have sexual intercourse with her on the living room floor was sensible, convincing and unlikely to have been contrived. I find her to be credible and reliable.

75I turn now to NB. I agree with Crown counsel’s submission that NB provided relatively detailed answers to what she was asked about. No inconsistencies between her testimony and any prior statements were established. She was not seriously or successfully challenged in cross-examination.

76Counsel for the accused submits it is unusual that NB cannot recall when she last saw the accused before he forced himself upon her when she was recovering from chicken pox. He also submits that I should infer that the accused would not know that NB was home from school. Neither submission is persuasive. NB was around 13 at the time. That was at least seven years ago. She had no reason to remember when she had last seen the accused prior to the initial assault she alleges.

77It is irrelevant whether the accused knew NB was home from school on the day of the first alleged assault. The sexual assault alleged may have been a crime of opportunity. The accused worked irregular hours, had a key and kept his belongings at the home. In addition, at that time he was staying with NB’s mother more frequently after the birth of his son. NB had been staying home for over a week. It would not be speculative to conclude that he probably knew she was home from school.

78Counsel for the accused also submits that I should disbelieve NB because I have heard no evidence that she had a vaginal injury due to the alleged assault. I reject this submission. No factual circumstances were developed in cross-examination or otherwise to support an expectation of such an injury if NB’s testimony is true.

79Moreover, I think it is highly unlikely that if a false allegation was being advanced it would focus on an assault on a child recovering from chicken pox.

80There is nothing about NB’s evidence concerning the abuse alleged by her that causes me to be skeptical about or unconvinced by her evidence.

81In addition, NB’s descriptions about why she did not tell her mother or otherwise come forward make sense in terms of what we now know about how victims of sexual abuse do and do not react. I do not use this to assist with proof of the Crown’s case but as an explanation for why I do not find defence counsel’s submissions about why I should conclude NB is not credible to be persuasive. Concerns that her mother might love her less do not sound fabricated. Nor do her explanations about how the accused would exert influence on her mother, leading to a curtailment of her school and social activities.

82Saying that I do not find certain defence submissions to be persuasive reflects just that and nothing more. It means that after consideration of all the evidence such submissions do not assist in raising a reasonable doubt about whether guilt has been proven by Crown counsel.

83I would also mention that I have been careful not to engage in any form of similar fact reasoning. Crown counsel did not bring an application to admit similar fact evidence. I believe it is important to point out how I have proceeded because there are certain similarities between the evidence of NB and CB about how the accused treated them and exerted pressure and influence over them.

84I turn now to the areas where there are demonstrated inconsistencies between the evidence of the witnesses. First, I will deal with going to the police.

85CB testified that she had no idea she was going to a police station until she arrived there. She said she was at a friend’s house and called her mother for a ride home. When her mother picked her up, NB was in the car. She said her 17-year-old cousin, Shevante, was also in the car. She had not described Shevante being in the car before but testified at trial that she now remembered that. I pause to observe that GC also recalled for the first time at trial that Shevante was staying with them and may have been in the car. In the circumstances of this case whether Shevante was in the car has no impact on any material issue other than the accuracy of the witnesses’ memory and how that might affect my assessment of their reliability. I take it into account but find that change in the evidence to be of little overall significance.

86CB testified that after she was picked up by her mother she noticed that they were not headed towards home. She said she did not say anything as she thought they would go home eventually. It was not until they pulled into the police station that she realized what was going on. She said there was no conversation in the car on the way to the police station. Once they arrived at the police station she knew why they were there.

87GC testified that she arranged the appointment at the police station on January 8, 2017 in advance. Her recall was that she told both of her daughters about the appointment the same day as the interviews. She recalled saying, “Get dressed we are going to the police.”

88NB’s recollection seems slightly different. She said she was living in Toronto. It was a Sunday. Her mother came to pick her up and drove her to the house in Brampton. Both GC and NB thought CB was with them when they left the house and drove to the police station. NB made no mention of Shevante being present. As previously mentioned, GC was unsure but thought Shevante may have been in the car.

89Counsel for the accused submits that these inconsistencies should have a major negative impact on my assessment of the credibility of the three complainants. After taking all the evidence into account I am unable to agree. The witnesses have different recollections. I am not able to make findings as to which version is correct. However, I am of the view that it simply does not matter. I am satisfied on a consideration of all the evidence that NB and CB are credible witnesses who were making every effort to be accurate. However, their recollections are not perfect. A considerable period of time has passed. CB was only 14 when she was taken to the police station. There is no doubt that the witnesses all attended and made statements on January 8, 2017. There is no evidence which ties the differences in the testimony which I have just referred to to the credibility or reliability of the witnesses’ testimony concerning their allegations.

90I must also address the inconsistency between NB and GC about the date on which NB disclosed to her mother. I will tie this in with the Family Court proceedings. I will then deal with the defence submission that the Family Court proceedings provide a motive for the complainants to lie.

91I start this portion of my reasons by emphasizing that it was defence counsel who introduced the topic of the Family Court proceedings. He did so by cross-examining CB and NB about their knowledge of those proceedings and suggesting that they fabricated their allegations as a result of them. GC was also cross-examined about those proceedings. However, I was not initially provided with any documentation and it was impossible for me to understand the precise nature of those proceedings from defence counsel’s questions and the witnesses’ answers.

92Eventually, defence counsel produced a Notice of Application dated July 19, 2016, an affidavit sworn by GC on August 23, 2016 in support of an emergency motion and an Order of Ricchetti J. dated September 29, 2016 dealing with that emergency motion. These documents were used in the cross-examination of GC. I have not been provided with any other contents of the court file. Consequently, and apparently for tactical reasons, I have been kept considerably in the dark on this topic.

93I observe that I have not used any of the documents to bolster the credibility of any witness or to add support to the Crown’s case. However, it has been necessary to use the documents to understand the sequence of events in order to evaluate the defence submission concerning a motive to lie. As to the permissible use for this purpose, see the recent summary of the law by Watt J.A. in R. v. D.K., 2020 ONCA 79, at paras. 37-38.

94As indicated, NB ultimately thought that she disclosed to her mother at the end of the first semester of grade 12, around January to February of 2016. She never put it as far back as 2014.

95GC testified that she thought NB told her of the sexual abuse in 2014. I observe that in the Notice of Application dated July 19, 2016 at p. 12, paras. 29-30, there is a statement that in 2014 NB “disclosed to someone that [the accused] had been having a sexual relationship with her for several years” (emphasis added). The document goes on to state that NB spoke with the police and that the Children’s Aid Society (CAS) was involved.

96This pleading raises some concerns. First, I recognize it is hearsay and cannot be used to prove the truth of its contents. Second, the testimony of all the witnesses is that the only time NB spoke to the police about the abuse I am dealing with was on January 8, 2017. That was almost six months after the Notice of Application was issued. Perhaps NB disclosed to someone else and the pleading refers to that. However, there is no admissible evidence of that before me.

97I raised this with counsel but neither Crown nor defence counsel explained it. NB was not cross-examined on this document or the information in it that I have referred to. Again, it seems to me that counsel have either chosen to keep me in the dark about this or they never considered this apparent anomaly.

98I must decide this case based on what has been put before me while respecting the rules of evidence and without speculation. However, I do recognize that the burden of proof remains on the Crown and that a reasonable doubt can arise from a lack of evidence.

99I conclude that the apparent inconsistency between NB and her mother about when NB disclosed does not shake my confidence in relying on the core evidence about NB’s allegations. Someone’s recollection is incorrect. If there is another event I do not know about, perhaps that has caused GC to become confused as to the date when NB disclosed her allegations. However, both NB and GC gave consistent evidence about how the disclosure came about following a call from the school. I am satisfied that they are talking about the same event. However, one of them, perhaps GC, is wrong about the timing of the event.

100The potential that GC is mixing up events has led me to put little weight on her testimony that the accused made admissions to her when she met with the accused and his mother. I am concerned that the meeting she described may have been in relation to some other alleged abuse or disclosure that I have not been made aware of. I do not make an affirmative finding to that effect but, in my view, the reliability of that part of her evidence has been brought into question. If admissions were made by the accused, in the circumstances I have described, I am unable to conclude that those admissions relate to the same allegations I am dealing with.

101I find NB and CB to be credible and reliable. I accept their testimony about what the accused did to them. Their evidence stands uncontradicted. The few inconsistencies which have been established are of little significance in my view.

102CB was not aware of the Family Court proceedings. NB was aware of those proceedings and she agreed that she did want the accused out of the house. She had good reason to want that. I am satisfied beyond a reasonable doubt that he had been sexually abusing her.

103As to motive to lie, I observe that an allegation of sexual abuse could have no legal impact on a claim for partition and sale of the Brampton home. It seems unlikely it would have any impact on the Family Court proceedings at all, having regard to the nature of the relief claimed. No evidence has been developed that any of the three complainants were of the view that such allegations could have any impact on those proceedings.

104CB and NB were convincing witnesses. They gave evidence which I find to be credible. After evaluating all the evidence, weighing it together and considering the submissions of counsel, I find I am satisfied beyond a reasonable doubt of the guilt of the accused on counts 1 through 7 of the indictment. For clarity, I am satisfied that the accused committed acts of sexual misconduct against the complainants which constitute the offences charged as particularized in the counts in the indictment.

105Count 4 requires that the accused be in a position of trust or authority in respect of NB. I am satisfied beyond a reasonable doubt that he was. While he did not live in the residence on a continuous basis, there is evidence that he exercised a degree of control over NB. He would take her to the mall and he had input into whether she would be permitted to engage in various activities. The uncontradicted evidence is that he would intercede with NB’s mother to exert control over NB. He was an adult and NB was a child. There was a power imbalance and he exercised that power. I am satisfied that the accused exercised a meaningful degree of direction and control over NB. See R. v. Audet, [1992] 2 S.C.R. 171; R. v. Aird, 2013 ONCA 447; R. v. Matheson (1999), 1999 CanLII 3719 (ON CA), 44 O.R. (3d) 557 (C.A.).

106Convictions are registered on counts 1 through 7. Counsel may make submissions on whether any of the convictions should be stayed on the basis of the rule against multiple convictions arising from the same delict.

107I also accept GC’s evidence that the accused assaulted her, as alleged in count 8. GC gave her evidence in a fair and measured way. She did not exaggerate or embellish. She does not claim that the accused struck her. She described a wrestling match over a cell phone. She admitted that she grabbed onto the accused’s shirt and that she hit him with an empty juice container. She described how the accused returned her cell phones to her before he left the home. If she was out to “get” the accused, there are many things she could have said which she did not say.

108I do not find that the Family Court proceedings or her dispute with the accused concerning the sale of the house to have influenced her evidence or allegations. I accept her evidence that she eventually bought the accused’s interest in the home. She met his requested price to do so. It was more than she initially offered. There is no evidence that at anytime GC, or anyone else, took the position that they would not go to the police or would recant if the accused settled the Family Court proceedings in a manner favourable to GC.

109I am satisfied beyond a reasonable doubt that the accused initiated the wrestling match over the cell phone by intentionally applying force to GC without her consent. He initiated the confrontation. In doing so I find that he intentionally and without justification applied force to GC without her consent.

110There will also be a finding of guilt on count 8.