ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CR-18-4363
DATE: 20201001
Delivered orally October 1, 2020
BETWEEN:
HER MAJESTY THE QUEEN
– and –
P.F.
Accused
Megan Cleland, for the Crown
Kevin Shannon, for the Accused
HEARD: November 12, 13, 14, 15, 18, and 19, 2019
reasons for judgment
KING J.:
[1] P.F. is charged as follows:
That he, between the 26th day of July, 1974 and the 25th day of July, 1991, at the City of Windsor in the said Southwest Region did have sexual intercourse with C.F. while knowing that C.F. was by blood relationship his daughter, contrary to s. 150(1) of the Criminal Code of Canada to and including December 3, 1985, and/or section 155(1) of the Criminal Code of Canada thereafter to July 25, 1991,
And further that he, between the 26th day of July, 1974 and the 25th day of July, 1987, at the City of Windsor in the said Southwest Region, being a male person, did have sexual intercourse with C.F., a female person not his wife and under the age of fourteen years, contrary to s. 146(1)(b) of the Criminal Code of Canada to and including December 3, 1985, and/or section 153(1)(b) of the Criminal Code of Canada, thereafter to July 25, 1991,
And further that he, between the 26th day of July, 1974 and the 25th day of July, 1991, at the City of Windsor in the said Southwest Region did sexually assault C.F., contrary to section 246.1(1) of the Criminal Code of Canada to and including December 3, 1985, and/or section 271(1) of the Criminal Code thereafter to July 25, 1991.
[2] The complainant with respect to all three charges is the daughter of the accused, P.F. As the complainant is protected from identification in this proceeding, I will refer to her as “the complainant” or by the initials “C.F.”
GENERAL PRINCIPLES
[3] At the outset, I note certain fundamental principles.
[4] As in any criminal case, P.F. is presumed to be innocent. This presumption is a cornerstone of our criminal justice system. This presumption of innocence stays with the accused throughout his trial and can only be defeated if the Crown satisfies the court that P.F. is guilty by establishing the existence of each and every essential element of one or more of the offences to an evidentiary standard of beyond a reasonable doubt.
[5] This heavy burden of proof never shifts; it always lies with the Crown. It is always the Crown who must prove every essential element beyond a reasonable doubt.
[6] I find it instructive to explain the concept by reciting the model jury charge regarding the requisite standard of proof as suggested by the Supreme Court of Canada in its seminal decision in R. v. Lifchus, 1997 319 (SCC), [1997] 3 S.C.R. 320, at para. 39:
The accused enters these proceedings presumed to be innocent. That presumption of innocence remains throughout the case until such time as the Crown has on the evidence put before [the trier of fact] satisfied [the trier of fact] beyond a reasonable doubt that the accused is guilty.
What does the expression “beyond a reasonable doubt” mean?
The term “beyond a reasonable doubt” has been used for a very long time and is a part of our history and traditions of justice. It is so engrained in our criminal law that some think it needs no explanation, yet something must be said regarding its meaning.
A reasonable doubt is not an imaginary or frivolous doubt. It must not be based upon sympathy or prejudice. Rather, it is based on reason and common sense. It is logically derived from the evidence or absence of evidence.
Even if [the trier of fact] believe[s] the accused is probably guilty or likely guilty, that is not sufficient. In those circumstances, [the trier of fact] must give the benefit of the doubt to the accused and acquit because the Crown has failed to satisfy [the trier of fact] of the guilt of the accused beyond a reasonable doubt.
On the other hand, [the trier of fact] must remember that it is virtually impossible to prove anything to an absolute certainty and the Crown is not required to do so. Such a standard of proof is impossibly high.
In short if, based upon the evidence before the court, [the trier of fact is] sure that the accused committed the offence [the trier of fact] should convict since this demonstrates that [the trier of fact is] satisfied of his guilt beyond a reasonable doubt.
[7] I have considered the whole of the evidence in this case. I have followed the analytical steps required by R. v. W.(D.), 1991 93 (SCC), [1991] 1 S.C.R. 742, when an accused testifies, as he did here. As that case requires, I have asked myself whether P.F.’s version of events should be accepted or, alternatively, whether I am still left with a reasonable doubt even if I do not believe the accused’s version, or whether the evidence as a whole nonetheless raises a reasonable doubt as to guilt.
[8] In this decision, I will refer to the evidence most germane to the issues in this trial. As noted by the Court of Appeal, I am not required to refer to every piece of evidence in making my credibility and reliability findings: see R. v. F.L., 2017 ONCA 472, at para. 21. I do not propose to set out an exhaustive review of all the evidence. If I do not mention a specific item of evidence, it does not mean that I have not considered that evidence.
EVIDENCE
Evidence of the Complainant
[9] C.F. was born on […], 1973. She was the only child of the accused and her mother, D.F. Her mother passed away in 2016.
[10] C.F. identifies as a lesbian. She has been married to her female spouse, M.F., for a number of years. They reside with their two children in Essex County. C.F. is a health care professional.
[11] As background to her evidence, she testified she had been carrying these secrets for many years. She only decided to come forward after she received information from her spouse that the accused had made a sexual overture to her, and the accused had stated, “why can’t you just be compliant like C.” It was not disputed that the interaction between P.F. and M.F. led to P.F. being charged and that those changes were dismissed after a trial.
[12] When she was approximately three years old, the family resided at Ambassador Beach, near Harrow, Ontario. The family then moved to an upstairs apartment on Wyandotte Street in Windsor. Eventually, they settled in a wartime house located on the west side of Central Avenue, in Windsor, Ontario.
Central Avenue residence
[13] C.F. resided with her parents at their residence on Central Avenue in Windsor, Ontario, from the age of approximately five until she left home at age 17.
[14] Exhibit 7 in this trial was a schematic drawing of the house. The document has her name on it, and it is dated “November 1979”. Attached to that is a document entitled “Home Safety Check List.” It contained her name in child’s printing. Also, attached was a “Good Work Award” in her name with the date November 22, 1979. This document was prepared in school. The schematic shows a single floor residence with a kitchen, living room with a fireplace, two bedrooms and a bathroom. The drawing has lines and arrows showing three points of egress from the house and is marked “Fire Escape Plan For My House.” There was not relevant disagreement by the complainant and the accused with respect to the general accuracy of the floor plan. The accused was involved in assisting his daughter prepare the document at that time.
[15] There was construction done on the house around the time C.F. was approximately 11 to 13 years old. This event is a reference point for C.F. in the timing of events in her testimony.
Occupations of father and mother
[16] During the relevant years, C.F.’s mother worked in the office for a local distribution business. She later worked in the office of a local trucking firm. At both jobs she would work during daytime business hours.
[17] C.F. recalled her father working for two different auto manufacturers, sandwiched around a time where he was employed with a local optometry business. When the accused worked for the two automobile manufacturers, he would rotate shifts.
[18] Eventually, he went back to school in the same health care program and at the same time as the complainant. This was, however, after the time period where the complainant alleges the incidents giving rise to these charges occurred.
General Testimony Regarding Sexual Misconduct
[19] C.F. testified to a number of incidents of sexual activity over a number of years when she was a child.
i) Ambassador Beach and Wyandotte Street
[20] C.F. recounted incidents from a very young age where a male person inserted his penis into her mouth while she was in a crib at both of these residences. She was unable to identify the person or persons who did this. Accordingly, Crown counsel advised the court that they did not have sufficient evidence to prove these allegations as against the accused and would not be pursuing convictions with respect to that evidence.
ii) Central Avenue
[21] C.F. testified to repeated sexual contact by the accused over many years.
[22] P.F. would lay on the side of the bed and lay her on her back. She was clear that P.F. would talk repetitively during these episodes. He would tell her he loved her and indicated she was “Daddy’s little girl.” She described it as a loving aspect to what he was doing. He would be smiling, talking gently and cooing.
[23] He would slowly remove her nightie, she would be naked from the waist down.
[24] He would perform oral sex on her. Sometimes she would clamp her knees around his head in displeasure. In those instances, P.F. would push down on her stomach.
[25] She also described full on vaginal penetration by P.F. with his penis. He would position her legs in the air when he had vaginal intercourse. When she was young and tiny, her feet would only go up to his nipple area. She indicated this occurred before she began to develop breasts at approximately age 10.
[26] Sometimes his clothes would be on; other times they were off.
[27] The first time he penetrated her vaginally, it hurt and she shouted “ow”, and P.F. told her to be quiet and continued to have intercourse.
[28] At times, he expected C.F. to perform oral sex.
[29] She described these incidents generally as continuing until she was 17 years old. She estimated sexual activity occurred perhaps twice per week on average over a number of years. She could not estimate how many times there was sexual activity. With respect to most incidents, C.F. testified that at these times, she would “zone out” during the sexual episode. She would stare at things like a crack on the wall. She had recollection of abuse the “old way” and the “new way”, referencing pre and post construction.
iii) The spooning incident
[30] C.F. referenced this as the first incident of abuse she could fully account.
[31] This occurred in her bedroom where she had a captain’s bed with drawers underneath.
[32] She remembers being awakened by her father’s weight being shifted on the bed. The window was open. He said, “Good morning, honey, how are you?”
[33] He was rubbing her left arm, and he moved so that he was laying beside her. There was only so much room on the bed. She moved closer to the wall. She was eventually laying on her side facing the wall, and P.F. began “spooning” her. That is, the front of his body was rubbing against her backside.
[34] She could feel him lifting her nightie and rubbing her leg and stomach. She could feel his erection against her “butt.” This involved intense pressure at her anus. She could hear him breathing heavily.
[35] She described her response as a “fight or flight” moment. She panicked and shot up in bed and ran into the corner. She, then, made it into the bathroom and hid under the sink on the floor. The cool floor was soothing to her rear end.
[36] She tried calling out to her mother. She remained in the bathroom for an indefinite period. She also called her mother at work. She said, “Daddy’s penis poked my bum”, or words to that effect. Her mother replied, “Now C., are you sure?” She thought to herself, “I am totally alone here.”
[37] Later that day, her mother called out to her angrily, while she was chopping and cooking vegetables in the kitchen and told her to go see her father in the backyard.
[38] She did not want to talk to him. Eventually, she went to the backyard where her father was staining the wood deck on their pool. He stated to her, “Now C., men have urges and you get in the way. Do you understand?”
iv) The Christmas tree incident
[39] C.F. recalled this occurring before the construction to the house. It occurred in the living room. It was Christmas season, and there was a Christmas tree in the living room. The carpet was old. It was only removed after the construction.
[40] She testified to being laid down on the floor. The tree was lit and was situated to her left. The accused removed her nightie and performed oral sex before penetrating her with his penis. She looked at the tree. While this was happening, she described it as my “happy Christmas moment.” He was grunting and groaning as well as cooing while having sexual intercourse.
[41] In cross-examination, C.F. marked the diagram of the floorplan (Exhibit 7) with 4 X’s. Those were the locations where the Christmas trees were situated in the house at different times.
v) The shaving incident
[42] Although the complainant had been shaving her legs for years, her father decided he was going to show her the proper way to shave.
[43] He gathered shaving supplies in this house and sat her on a two-seater couch in the living room. He then squatted or kneeled in front of her, and he instructed her to remove her pants, but not her underwear. The accused, then, proceeded to shave her legs close to her private area – her bikini line. She was distraught and zoned out.
[44] She was not aware if her mother was in the home. She believed this incident occurred pre-construction.
vi) Picking up mother at work
[45] Her parents only had one vehicle, so she would often go with her father to pick up her mother at the distribution business where she worked. She could not stay home alone so she had to go with her father.
[46] While waiting in the car for her mother, the accused would offer her candy, a Slurpee drink or chips to get her to move up to the front seat. Once C.F. was there, he would fondle her by moving his hand along her leg and eventually on the inside of her thigh. He would then move his hand across the area of her vagina to the other leg.
[47] She was mad at herself for letting this happen repeatedly.
vii) The drugged incident
[48] C.F. spoke of an incident where she believes the accused drugged her against her will.
[49] While she was laying on the bed, he put her legs up. She remembers that she could not move. Specifically, all she could do was blink. She was otherwise in a fog, while he had sex with her. He told her to look in the mirror. She did not want to do this, so he had to turn her head to the mirror. She looked at the mirror because she could not close her eyes. He ejaculated and left. She remained on the bed crying.
viii) Wrestling
[50] The accused wrestled on the floor with C.F. on numerous occasions. He would tackle her and while laying on top of her, would grind his genital area into her private parts.
[51] This was often done in front of her mother. The only way for C.F. to get attention with respect to this embarrassing and unwanted activity was for her to scream. Sometimes her mother would direct P.F. to let her up. He would smirk at her as if to say “I won. I can do this in front of mother.”
[52] She generally tried to avoid going into the living room when her parents were there. This was not always achievable as she had to go through the living room to get to her bedroom.
ix) Burger King incident
[53] When she was in her teens, C.F. began working at a local Burger King for about five years. Parenthetically, she added she took this employment for “the money and to get out of the house.” She worked in the evenings. One day, she drove herself home after work and went to have a shower as she stunk of hamburgers. This occurred after the house had been reconstructed. The remodeled bathroom had a pocket door. The shower was in the corner. She described the shower area as tiny. If a person is in the shower and facing the shower spray, their rear would be near the door.
[54] While C.F. was showering, P.F. entered the bathroom and then the shower. He was naked. She was confused that she did not hear him come in the bathroom or remove his clothes. Once in the shower, he began grabbing her naked breasts and pinching her nipples, from behind.
[55] Eventually, he penetrated her from behind with his erect penis. He seemed to have a “crazy energy.” While penetrating her, he was grunting and groaning and stated that this was “good for us.”
x) Abortion
[56] C.F. testified to what she believed was a trip she made with her father to the State of Michigan. She believed he took her there for an abortion. This occurred during her early teen years.
[57] Sometime later, she remembered sitting on the floor joists during the renovation. Oprah was on the television, and the topic of the show was teen pregnancy. Her father told her never to tell her mother.
[58] She remembers going to an office with panelling in a western motif. There were bright lights. In later years, she concluded she had been taken to this office for an abortion. She reached this conclusion because of an examination conducted by an obstetrical/gynecological doctor when she worked/was at the Girl’s Home in Consecon, Ontario, near Belleville at the age of 25.
[59] She had gone in for a pap smear and an examination. She was examined externally, and the physician noted something was “unusual”. She eventually had hospital tests conducted in Belleville/Trenton.
[60] There was no medical evidence provided by the Crown from Michigan and/or a hospital in the Belleville/Trenton area to support this assertion.
xi) Pill-taking incident
[61] When she was 13 or 14 years of age and in grade 9, a school friend with the initials C.H. was known to C.F. to be suicidal. This caused her to be thinking similarly because the same things were going on in their respective lives.
[62] One weekend when her parents were away, C.F. was being cared for by her paternal grandparents at their house. During the night, she took a quarter bottle of Tylenol pills hoping to end her life.
[63] Her grandparents discovered her. She was vomiting. They did not take her to the hospital. She spoke late into the night about some of the things that were happening to her. However, she did not provide all of the details to her grandparents. She was too afraid to share the overt sexual stuff. She talked about touching in the car while going to pick up her mother, talking inappropriately, showing his penis, and the spooning incident on her bed when she was five. She did not mention vaginal penetration.
[64] When her parents returned on Sunday, she was sent over to her aunt’s, also with the initials C.F., who lived next door, so her grandparents could speak to her parents. A short time later the phone rang at her aunt’s residence, and she was told to come out to her parents’ car, and they drove home.
[65] Once home, she was directed with a nod by her father to sit on the couch. He then proceeded to yell at her while pacing about. He shouted at her asking how she could tell such lies and he indicated she could have got him thrown into jail. He repeatedly told her she was not to air their “dirty laundry.”
[66] As usual, her mother said nothing for most of the time. She then stood up like she was going to leave the room, took two steps towards C.F. and said “if you ever tell my family about this…” It struck C.F. to think, “is it not my family?” No report to authorities was ever made regarding this incident.
[67] C.F. had come to know that she would not get help from her mother. In the end, it just reinforced her thoughts that she was alone, and no one was going to help her.
Fearful of P.F.
[68] C.F. indicated she and her mother were both afraid of P.F. Her mother was not a verbal person but made it clear that the man was the head of the household. He had the first and last say.
[69] C.F. also testified to instances of being struck by a belt. She also stated, “If you do not do what P.F. asks, you will face the consequences.” She recalled one instance where she went to the house of a friend after school about 12 to 13 blocks away without telling her father (or mother). He eventually saw her walking home while he was out looking for her on his motorcycle. She was told to sit on the couch and was lectured. P.F. then looked at her mother in a certain way. Her mother left and went to the kitchen on that sign. C.F. was then taken to her parents’ bedroom. The door was locked, and he proceeded to have her face the bed. Her pants were taken off, and he struck her over her underpants with a belt configured in what she described as a snappy loop.
[70] When she was a young teenager, her parents had become born-again Christians. They attended Turner Road Gospel Church. After that conversion, C.F. could not wear makeup and had to wear long dresses. The television was removed from the house as were Cabbage Patch dolls and anything Disney-related as they contained too many phallic symbols. Only Christian music could be played in the house.
[71] One day, the complainant was given a cassette tape recorded by the English electronic band Depeche Mode. When P.F. discovered this tape, he stood in the doorway, punched the door and stated to C.F., “How could you be that disrespectful?” Referencing the punched door, he added, “that should have been you.”
The Tattoo
[72] C.F. testified to observing a tattoo on her father’s left leg. She indicated it was vile, and she remembered her mother thinking the same of the tattoo.
[73] Initially, she could not remember if the tattoo was on his left or right thigh. However, the parties eventually agreed as to the location of the tattoo as depicted on a drawing of the male anatomy. That drawing was Exhibit 6 in these proceedings.
[74] The Exhibit shows the tattoo located in the centre of the left thigh of the accused. The top of the tattoo was located a few inches to the left of P.F.’s pubic hair/penis.
[75] C.F. described the features of the tattoo as follows:
i) It featured a depiction of the devil.
ii) The devil was holding a pitchfork.
iii) The devil had a long tail and the end of the tail was depicted with a triangle.
iv) The end of the tail was situated just outside the vagina of a busty female.
[76] C.F. identified that her father would often flaunt his naked body. When he worked shifts, he often slept naked on the bed. He was often wearing nothing but a short housecoat and, in her words, was “proud as a peacock.”
[77] If he was clothed, C.F. testified the tattoo would not be visible for observation unless her father had worn a bikini-style bathing suits, but he did not wear bikini brief bathing suits. More specifically, she stated the accused wore “shorts-type” bathing suits.
Disclosure to Pastor B. Johnson
[78] When she was approximately 16 or 17, she met with a pastor, Pastor Johnson, who was affiliated with her family’s church. He was from the United States. She disclosed privately to him some of the sexual abuse perpetrated by the accused.
[79] The next time she met with Pastor Johnson, her parents attended. The pastor told her she should not discuss any of this again.
Leave home
[80] C.F. left home when she was around 17 and moved out on her own. She maintained contact mostly with her mother. For a 10-year period, from approximately 2000-2010, she lived in Alberta and had little contact with her father. Her mother would occasionally visit her, her wife, and their children.
New Life Girls’ Home (New Life)
[81] Before she moved to Alberta, it is not disputed that C.F. worked at the New Life Girls Home (Canada) (New Life) as a nurse, counsellor and nutritional/medical coordinator at the age of 25. She was the only RN on staff at that time.
[82] Confirming documentation was produced to her in cross-examination.
[83] C.F. testified that The New Life was a Christian facility in Consecon, Ontario that provided support and counselling to female victims of sexual abuse.
[84] When questioned about telling her mother to “say hi to dad and tell him I love him too”, C.F. explained that she did not trust her mother, and she said that “she loved him and he hurt me at the same time.”
[85] C.F. was also presented with photographs of young women from New Life who she brought to her parents’ home at Christmas of 1998. She was challenged why she would bring these persons to a home where her father had purportedly sexually abused her. She explained that the persons were under her strict supervision.
[86] In cross-examination, she stated that she first went to New Life as a student. She described “student” as referring to patients of the home that had been victims of sexual abuse.
Incidental Evidence
[87] During the course of her testimony, C.F. spoke of her father having a black belt in karate and owning a cross bow. She advised that he sometimes would practice shooting the cross bow inside the house – once when she was precariously close.
Cross-examination of C.F.
[88] The complainant was extensively cross-examined over three days of trial. She first identified the issues giving rise to these charges in a handwritten statement she gave to the police in November, 2016.
[89] At that time, she had prepared the notes three to four days earlier to support her spouse who had gone to the police with a sexual misconduct allegation against the accused. C.F. was angry when her spouse had conveyed to her that P.F., while making sexual advances on M.F., had stated “why can’t you just be compliant like C.” She was sick of carrying the secret.
[90] On June 3, 2017, she provided more detailed notes to the police. On June 6, 2017, she attended at the OPP in Leamington, Ontario, and provided an audio statement.
[91] Counsel questioned C.F. as to why there were more details in her evidence at trial than were contained in her 2016 statement. Some other inaccuracies were pointed out, and C.F. agreed with that characterization. For example, she indicated for the crib incident at Ambassador Beach that she “was standing and crying.” In her testimony, however, she stated she was “standing and not afraid.”
[92] The explanation C.F. gave for the fact that there were fewer details in her first statement was that she only provided that statement to support her spouse. She had not yet decided to pursue criminal allegations against her father.
[93] A number of photographs which became Exhibit 10 were presented to the complainant. She agreed they all either depicted her at various times or depicted the outdoor pool at the Central Avenue home. Notations on the two photos of the pool indicated it was installed in the mid-1980s.
[94] Counsel for the accused put to C.F. that several things she testified to never happened in addition to any of the sexual conduct. C.F. maintained throughout cross-examination that all of the following did occur:
i) That P.F. had a black belt in karate;
ii) That he owned a crossbow;
iii) That he did target practice with the cross bow within the house;
iv) That he struck her with a belt;
v) That there was an incident in the backyard with the Windsor Police attempting to arrest P.F.;
vi) That P.F. was enraged that C.F. had a Depeche Mode tape in her possession and knocked the door to her room off the hinge;
vii) That the accused would often kiss her by putting his tongue inside her mouth;
viii) That he drugged her;
ix) That he took her for an abortion;
x) That the incident at her grandparents after she took Tylenol occurred;
xi) That she had been told by medical professionals in the Belleville/Trenton area that she had an abortion.
[95] It was put to the complainant that she did not move out of the house until she was 20 years old – not 17 as she testified. She was shown a photograph (Exhibit 10) of herself in an apartment with an indication she was 20 years old.
[96] C.F. agreed that the photo showed her first apartment, and that it was taken in her 20th year; however, that was not the first place she resided in after she left her parents’ home.
[97] C.F. could not confirm how long she was hidden in the bathroom with respect to the spooning incident. She eventually called her mother at work. She told her mother about the incident by using the words “daddy”, “penis” and “bum.”
[98] When her mother was home making dinner, she told C.F. to go see her father outside in the backyard. When she went out, he was on top of the pool deck. She marked the location on the photo of the post where she saw him.
[99] It was put to her that there was a notation on the back of the picture “Pool completely finished. May 1985.” She conceded that the spooning incident may have occurred when she was 12, not when she was five, as she had earlier indicated.
[100] During the entire period of her cross examination, the complainant testified in a consistent and respectful manner. Where there were areas of her evidence that may have been inaccurate, she conceded that she might have been in error. With respect to the incidents of sexual assault, she was firm and resolute that these events occurred. She was not inconsistent or shaken in this respect.
Evidence of L.C.
[101] L.C. is a retired school teacher. She is the aunt of C.F. and the sister of C.F.’s mother, D.F.
[102] She testified that when C.F. was 14 or 15, C.F. showed up at her house and told her some of the things her father had done to her. Specifically, L.C. recalled C.F. telling her about being sexually abused in bed, being given treats in the car with the accused and being fondled.
[103] L.C. called her sister and told her C.F. was going to stay with her for safety. She went to the home of the accused and her sister and told them what C.F. had informed her of. Her sister, D.F., denied the suggestions. The accused was also present, and he denied the suggestions as well. There was much shouting.
[104] This led to an eventual isolation of P.F. and D.F. from the family for many years. In addition to L.C. and D.F., there were three other sisters. After a few years, there was a thawing of that distancing and some contact was restored.
[105] C.F. was receiving counselling at that time from someone in the United States. L.C. paid for this counselling.
[106] In cross-examination she confirmed that C.F. came to her house when she was 14 or 15. She was living on Central, but she did not know how C.F. got to her house.
[107] She was also questioned as to why, as a trained school teacher, she had dealings with students who had been the subject of sexual abuse. She acknowledged in those circumstances that she had an obligation to contact the authorities.
[108] She also acknowledged that in this situation, she only spoke to her sister and her brother-in-law. More specifically, she did not report what she had been told to any authority.
Evidence of C.B.
[109] C.B. has known the complainant as a friend since they attended school together in and around 1992. Since then, she has maintained a relationship as a friend of C.F. The degree of contact has been dictated somewhat by where C.F. has been residing, particularly during the period she was out west.
[110] She also knew the accused as he was also a student in the same educational program. She has had no work contact with him since the end of school.
[111] A year after they graduated, C.F. invited C.B. to a house in the Villages of Riverside. While there, she observed a group of people sitting together discussing abuse they had suffered. There was one other girl named “Jean” present who was known to C.B. She was shocked by what she heard that evening. She knew C.F. had been struggling. Her behaviour during school had been “off”. She would miss time due to anxiety and depression. Her appearance would be dishevelled. She remembers the timing of this event as occurring after C.F. had returned from a group home located somewhere past Toronto.
[112] C.F. advised C.B. that her mother did not believe her. This saddened C.F. very much. She also referenced having been to the United States for an abortion at approximately 10 to 12 years of age. She and C.F. did not discuss these matters after that event.
[113] C.B. did not provide any further exact details of what she heard that evening. The complainant advised C.B. that her relationship with the accused had been incredibly strained over the years.
[114] C.B. once attended a birthday party for one of C.F.’s children. She had been asked by C.F. to be a guardian of her son if something happened to her and her wife.
[115] C.B. testified she later reached out to a woman named E.D., who was her real estate agent. She was also the daughter of the then girlfriend of the accused. C.B. advised E.D. of her concerns regarding P.F. She was particularly concerned because she knew E.D. had young children. She never got a reply.
[116] With respect to issues pertaining to the accused, C.B. testified on cross-examination that C.F. expressed that she felt threatened, particularly since her mother did not support her.
Testimony of P.F.
[117] The accused testified in his own defence. He was 68 years old at the time of the trial.
[118] C.F. was their only daughter. Her birth was traumatic and resulted in a rushed caesarian section. D.F. spent days in ICU following the birth, and C.F. was in an incubator. As a result of this life-threatening childbirth experience, the accused had a vasectomy to avoid any future risks.
[119] He agreed they resided at Ambassador Beach and then on Riverside Drive. He denied both of the incidents referred to in the testimony of the complainant regarding these residences.
[120] Around that time, he had declared bankruptcy, and so they had to wait before they could obtain credit to buy a home. Thereafter, they moved on to Central Avenue.
[121] P.F. categorically denied each and every allegation of inappropriate touching, sexual innuendo, sexual intercourse, giving or receiving oral sex and/or full sexual intercourse, vaginal and/or anal.
[122] He described the upbringing of C.F. as normal. She was an “active, normal kid.” She did piano, gymnastics, and YMCA swimming and baseball.
[123] He was a member of the Catholic church. On December 22, 1983, a friend from work at GM provided him with a different perspective. In 1984, they began attending Turner Road Chapel.
[124] He agreed for a period there was no television in the house. He attributed this to a video of the John F. Kennedy assassination being shown on television. C.F. had observed this, and she could not discern whether it was a cartoon or not. This was the reason for the temporary removal of the television. It was not for any religious reasons.
[125] In denying all allegations, he was unable to definitely state why his daughter would falsely say these things. He attributed her behaviour to her perceived animosity regarding his and his now-deceased wife’s inability to give affirmation to C.F.’s lesbian lifestyle. He added that he and his wife could not fully accept her new lifestyle because of their religious beliefs. He described it as “an agreement to disagree.” He described their relationship then as cordial. The complainant and M.F. lived with them for 10 months before they moved out west. D.F. would visit them in Alberta.
[126] In his testimony, P.F. did not challenge the depiction on the tattoo and agreed it was situated on his left thigh as indicated in Exhibit 6. He also testified that as a result of becoming a born-again Christian, he had the tattoo removed by Dr. Adams in 1984.
[127] In his testimony, the accused acknowledged that he, his wife, and C.F. met with Pastor Johnson. However, he denied that any discussion about sexual activity occurred, or that the pastor expressed that there should be no further discussions on this topic.
[128] He provided no evidence to contradict the evidence of his sister-in-law that she spoke to him and his wife while C.F. had come to stay with her.
[129] He attributed her motive for testifying to animus on her part towards him but minimized same by stating that they eventually rejoined certain family gatherings.
POSITIONS OF THE PARTIES
Crown
[130] The Crown posits that the complainant, C.F., was honest, candid and truthful in her evidence, including her statements to the police. The Crown also submits the complainant’s evidence was detailed, suggesting her evidence was reliable.
[131] The Crown provided authority to support the position that any inaccuracies in the dates and times of the alleged incidents are immaterial to her reliability and credibility in view of her age, when the incidents occurred and when she testified. The extensive jurisprudence prescribes that there is no specific manner in which victims of sexual assaults disclose those acts.
[132] In her narrative, the complainant testified to numerous instances when her mother knew C.F. was a victim of sexual misconduct by her husband, C.F.’s father. In each instance, her mother took no action to involve the police or any other authority. More importantly, she took steps to either ignore what was happening and/or demonstrate same to C.F. Eventually, C.F. concluded that her mother had proven untrustworthy to her.
[133] The complainant was consistent with respect to the rooms where the incidents occurred and provided significant details in each respect.
The Accused
[134] P.F. submits this is a clear case where the principles set out by the Supreme Court of Canada in R. v. W. (D.) [D.W.], 1991 93 (SCC), [1991] 1 S.C.R. 742, apply. It is a matter of credibility.
[135] The accused categorically denied all allegations of sexual intercourse, sexual touching, or any sexual contact or conduct.
[136] He described their household as ordinary. The family was loving, the activities of the young C.F. were normal. In 1983, he, D.F. and C.F. became focussed religiously as born-again Christians.
[137] In summary, he made a blanket denial of any criminal activity or sexual conduct with his daughter.
[138] He submitted that the Crown’s case does not provide sufficient evidence proven to an evidentiary standard beyond a reasonable doubt that any of the offences occurred.
[139] For example, he focussed on the fact that C.F. conceded that her evidence to the spooning incident- the first incident she has a clear memory of- may have been off on the time frame by as many as seven years. She testified that the spooning incident occurred when she was five. Afterwards, she tied the incident to a later event of her mother directing her to speak to her father out by the pool. The pool was constructed when C.F. was closer to the age of 12.
[140] Counsel also noted that C.F. was not credible, and her evidence was not reliable. She referenced incorrectly that her father had a black belt in karate and owned a crossbow, which he used it in the house. As well, she testified, without any evidence, that her father had taken her to the United States at a young age for an abortion.
[141] She had a motive for fabricating these allegations because they were tied to her spouse coming forward for a complaint of sexual assault against her father. C.F’s spouse’s allegations led to P.F. being charged and resulted in a discharge at trial. In addition, she may have been motivated by her father and mother’s inability to fully accept her lesbian lifestyle.
[142] With respect to the actual incidents of the alleged sexual activity, P.F. submitted the court should be concerned that the complainant was unable to give significant details of the incidents because she usually “zoned out.” She would look at a crack in the wall or at the Christmas tree lights.
[143] Finally, counsel invited the court to disregard the evidence of Crown witnesses, L.C. and C.B. He questioned the animosity that L.C. had towards the accused. He also referenced the similarity in the description of events C.B. provided as they were very similar to the complainant’s version of events. He submitted that there may have been more discussion between the complainant and C.B. before she spoke to the police, but there was no evidence in that respect.
THE LAW
Count #1 - Incest
[144] In the case of alleged incest pursuant to s. 150(1) (and between December 3, 1985 and July 25, 1991, s. 155(1) following the Criminal Code amendment), the Crown must prove that the accused had sexual intercourse with a blood relation, and that the accused knew that person was a blood relation.
[145] While the accused conceded the complainant was a blood relation, and that he knew this fact, he denies having sexual intercourse with his daughter.
Count #2 – Sexual Interference with a Young Person
[146] There are four elements of this offence prescribed in s. 146(1)(b) of the Criminal Code and later s. 153(1)(b). They are as follows:
i) The complainant was a “young person” at the time and was between 16 and 18 years of age;
ii) The accused invited, counselled, or incited the complainant to touch – directly or indirectly – the body of any person;
iii) The invitation, counselling or inciting to touch was for a sexual purpose; and
iv) The accused was in a position of trust (or authority) towards the complainant, or the complainant was in a relationship of dependency with the accused.
[147] It is not disputed that during a portion of the relevant time period, the complainant was a young person as defined by the applicable section of the Criminal Code, as amended, and, as the daughter of the accused, in a position of dependency.
[148] The accused disputes elements (ii) and (iii) on the basis that no sexual invitation and/ or touching occurred.
[149] Rather, the accused denies the allegations of sexual assault.
Count #3 – Sexual Assault
[150] The essential elements of sexual assault contrary to s. 246.1(1) and s. 271 since December 3, 1985, are as follows:
The intentional application of force to a complainant;
The application of force was not consensual;
The accused knew that the complainant had not consented to the application of force; and
The force was applied in circumstances of a sexual nature.
[151] In summary, to achieve a conviction on Count #1, the Crown must prove beyond a reasonable doubt that the accused had sexual intercourse with C.F.
[152] With respect to Counts #2 and #3, the Crown must prove sexual touching or more serious sexual misconduct up to and including sexual intercourse.
ANALYSIS
Has the Crown proven beyond a reasonable doubt that P.F. had sexual intercourse with the complainant?
[153] As is the case with many allegations of sexual offences, there are two versions of events and often only two witnesses to the alleged events.
[154] This case is no different. As well, it also involves alleged events that occurred 30 to 40 years ago.
[155] As a result, the decision in this case is based on the credibility and reliability of the witnesses.
Credibility and Reliability
[156] When assessing the evidence, the court must consider both the credibility of the witnesses and the reliability of their evidence. The two concepts are not identical. Credibility refers to the honesty of the witness. Reliability refers to the accuracy of the witness’ evidence. A witness may be honest but wrong, and, therefore, the evidence would be unreliable. Both concepts must be considered by the trier-of-fact. In this respect, I rely partially on the explanation provided by Howard J. in R. v. Roy[^1] (29 November 2019), Windsor, at para. 80, where he stated:
Credibility and reliability are not identical concepts. Credibility refers to the honesty of the witness. Was the witness telling the truth when he or she gave their evidence? Reliability refers to the accuracy of the witness’s evidence. Did the witness accurately receive the information, accurately remember the information, and accurately relate the information in their testimony? Was the witness accurate, was the witness correct, when the witness related past events in their testimony? A witness may be honest – i.e., credible – but simply wrong, simply incorrect, in relating past events – i.e., not reliable. I have considered both concepts in my assessment of the evidence.
[157] Where there are significant inconsistencies or contradictions within a complainant’s testimony or when considered against conflicting evidence in the case, the court must carefully assess the evidence before concluding that guilt has been established beyond a reasonable doubt.
W. (D.)
[158] The accused has testified, and the court has been presented with two competing versions of the critical events in question. Thus, credibility is the central issue; therefore, the well-known principles of W.(D.) are integral to the court’s analysis of this case.
[159] As alluded to earlier, in W.(D.), the majority for the Supreme Court held that a jury should be instructed on the issue of credibility in accordance with a three-step analysis, as follows, at p. 758:
First, if you believe the evidence of the accused, obviously you must acquit.
Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.
Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.
[160] Those principles are thoroughly reviewed in R. v. Nyznik, 2017 ONSC 4392, 350 C.C.C. (3d) 335. Molloy J. discussed, at paras. 11-16, the presumption of innocence and standard of proof in cases of sexual assault:
As I have stated, the presumption of innocence and the standard of proof beyond a reasonable doubt apply in a sexual assault case just the same as in any other criminal trial. However, there are aspects of sexual assault cases that can make the application of the standard a difficult one.
First of all, the very nature of the act underlying a sexual assault usually means that there are seldom any eye-witnesses apart from the complainant and the person or persons accused of the offence. Often, these cases come down to the word of one person against the other – the classic “he said/she said” scenario. In that situation, it would be wrong for the trial judge to decide the case based on which is the more credible version of the two. To do so would be to misapply the burden of proof on the Crown to establish guilt beyond a reasonable doubt. …
To assist in the proper application of the burden of proof when there are competing versions of what happened, the Supreme Court of Canada has recommended that the issue be considered in three steps, as follows:
First, if you believe the evidence of the accused, obviously you must acquit.
Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.
Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.
This instruction, commonly referred to as “the W.(D.) instruction,” has become another standard instruction given to all criminal juries, and criminal trial judges will generally instruct themselves in the same manner. However, as was said in the W.(D.) case itself, and in subsequent decisions of the Supreme Court of Canada, there is no particular magic in the incantation of these three steps. It is not essential that the trial judge rigidly follow the three steps in the W.(D.) instruction. What is critical is for the judge to avoid turning the fact-finding exercise into a choice as to which is the more credible version of the events. This cannot be a credibility contest, with a conviction if the complainant wins the contest and an acquittal if the defendant does. To treat it as such would be to improperly shift the burden of proof. Rather, if the defence evidence, seen in the context of all the evidence, raises a reasonable doubt, then the trial judge cannot convict. Even in a situation where the trial judge completely rejects the defence evidence and has no reasonable doubt as a result of that evidence, he or she must then assess the evidence as a whole and determine whether the Crown has discharged its burden of proving guilt beyond a reasonable doubt. In some cases, even without any evidence from the defence, it is not possible to be satisfied beyond a reasonable doubt based on the evidence of the complainant.
Typically, the outcome of a sexual assault trial will depend on the reliability and credibility of the evidence given by the complainant. Reliability has to do with the accuracy of a witness’ evidence – whether she has a good memory; whether she is able to recount the details of the event; and whether she is an accurate historian. Credibility has to do with whether the witness is telling the truth. A witness who is not telling the truth is by definition not providing reliable evidence. However, the reverse is not the case. Sometimes an honest witness will be trying her best to tell the truth and will fervently believe the truth of what she is relating, but nevertheless be mistaken in her recollection. Such witnesses will appear to be telling the truth and will be convinced they are right, but may still be proven wrong by incontrovertible extrinsic evidence. Although honest, their evidence is not reliable. Only evidence that is both reliable and credible can support a finding of guilt beyond a reasonable doubt.
There will usually be no other eye-witnesses. There will often be no physical or other corroborative evidence. For that reason, a judge is frequently required to scrutinize the testimony of a complainant to determine whether, based on that evidence alone, the guilt of an accused has been proven beyond a reasonable doubt. That is a heavy burden, and one that is hard to discharge on the word of one person. However, the presumption of innocence, placing the burden of proof on the Crown, and the reasonable doubt standard are necessary protections to avoid wrongful convictions. While this may mean that sometimes a guilty person will be acquitted, that is the unavoidable consequence of ensuring that innocent people are never convicted.
[Emphasis in original.]
[161] I have also reviewed the commentary on the W.(D.) principles set out in the decision of R. v. Thomas, 2012 ONSC 6653. At paras. 23-24, Code J. held as follows:
[W.(D.)] does not describe three sequential analytical steps that a trier-of-fact must pass through, one at a time. Rather, it describes three distinct findings of fact that a trier of fact can arrive at, when considering all the evidence at the end of the case, namely, complete acceptance of the accused’s exculpatory account (“step 1”), complete acceptance of the Crown witnesses’ inculpatory account (“step 3”), or uncertainty as to which account to believe (“step 2”).
A trier of fact must look at all the evidence, when deciding whether to accept the accused’s evidence and when deciding whether it raises a reasonable doubt. It is at that same point in time that the trier of fact will also determine whether the Crown’s witnesses prove guilt beyond reasonable doubt and whether the accused’s contrary exculpatory account must necessarily be rejected. In other words, these decisions are all made at the same time on the basis of the same total body of evidence. The so‑called “three steps” in W.(D.) are simply different results, or alternative findings of fact, arrived at by the trier-of-fact at the end of the case when considering the totality of the evidence.
[162] Accordingly, I recognize that the determination of an accused’s guilt or innocence must not be a mere credibility contest between the complainant and the accused. Specifically, it would be an error for the trier-of-fact to render a decision based on which witness is preferred. Such an approach would erode the operation of the presumption of innocence and the continual assignment of the burden of proof beyond a reasonable doubt to the prosecution.
[163] That explanation of the law has been referenced in numerous decisions. In a decision released on March 2, 2020, R. v. Esquivel-Benitez, 2020 ONCA 160, the Ontario Court of Appeal ordered a new trial. The trial judge concluded that she preferred the testimony of the complainant to that of the accused and indicated she was “left with a significant doubt as regards [the appellant’s] evidence on the occurrences that evening”. At para. 13, the Court of Appeal stated:
This was an error. Undoubtedly it was open to the trial judge to accept the complainant’s evidence that she did not consent to sexual activity and that her response to her husband’s questioning was due to a myriad of factors that had nothing to do with fabrication. However, in the circumstances of this case, the trial judge was also obliged to consider whether the events gave rise to a motive to fabricate and, if so, how that reflected on her assessment of the complainant’s credibility.
[164] The onus in this case is not on the accused to disprove the allegations. Rather, the issue is whether the Crown has proven beyond a reasonable doubt that P.F. has committed one, or more, of the offences alleged.
[165] In a proper application of W.(D.), the evidence of the accused should not be considered in isolation, but rather, along with all of the evidence, including that given by the complainant: see R. v. Lake, 2005 NSCA 162, 203 C.C.C. (3d) 316.
[166] As well, in R. v. T.B., 2019 ONSC 3867, at paras. 39, 41, Nieckarz J. elaborated on the W.(D.) principles:
Steps one and two of the W. (D.) framework must be addressed in the context of all of the evidence. Considering the evidence of the accused in isolation, without weighing it against other evidence is incorrect. No evidence should ever be assessed in isolation when determining credibility: R. v. Hoohing, 2007 ONCA 577, 74 W.C.B. (2d) 676 (Ont. C.A.) at para. 15.
With respect to the second step in the W.(D.) analysis - you must acquit if you do not believe the testimony of the accused but you are left in reasonable doubt by it - this does not require complete rejection or actual disbelief of the accused. It refers to the judge being unable to believe the accused but being left in a state of uncertainty where the trier of fact simply does not know what to believe. This second step of W.(D.) captures the middle ground of being unsure where the truth of the matter lies. If, after a careful consideration of all of the evidence, a trier of fact is unable to decide whom to believe, the accused must be acquitted: R. v. S. (J.H.), 2008 SCC 30, [2008] 2 S.C.R 152, at para. 11.
[167] As required, I have considered all of the evidence, including the strengths and weaknesses of the evidence in the context of the evidence as a whole. In conducting that analysis, I have been alive to the fact that it is possible for the complainant’s version to be true, the accused’s version to be true, that neither are true, or that either or both are partially true.
[168] As the trial judge, it is my duty to assess all of the evidence before the court to determine whether the Crown has proven the offence beyond a reasonable doubt. In R. v. Morin, 1988 8 (SCC), [1988] 2 S.C.R. 345, at pp. 354-359, the court held as follows:
It is misdirection to instruct the jury to apply the standard of reasonable doubt to individual pieces of evidence.
[T]he jury is not to examine the evidence piecemeal by reference to the criminal standard.
The Evidence of the Complainant
[169] I have concluded the complainant’s evidence was both credible and reliable.
[170] While the alleged events occurred approximately 30 to 40 years ago, C.F. gave significant details of much of the family dynamic and the layout and make-up of the house.
[171] She described in great detail a number of incidents of sexual contact over a period of a number of years.
[172] For example, she provided clear and detailed evidence of sexual intercourse in the shower after she returned home from working at Burger King. She indicated she was at least 16 years old because she drove to work that day.
[173] She provided specific details about numerous other incidences of sexual contact by her father going back many years.
[174] Counsel for the accused submitted her evidence was not reliable because the spooning incident she claimed occurred when she was five years old tied in with later seeing her father by the pool which was not installed until she was approximately 12 years old.
[175] The Crown noted that the date of occurrence of the alleged offences is not an essential element of the crime and relied on several cases in support of this proposition.
[176] I make reference to the decision of the Supreme Court of Canada in R. v. B. (G.), 1990 7308 (SCC), [1990] 2 S.C.R. 30. At trial, a complainant testified the alleged sexual offence occurred when the child was in grade one. It was later established that the timing of the alleged offence was one year later.
[177] The trial judge refused to permit an amendment of the indictment and found that the timeframe alleged on the information was an essential element of the offence and was not proven beyond a reasonable doubt.
[178] The Supreme Court of Canada determined that the trial judge erred in finding the timeframe alleged was an essential element of the crime.
[179] It is significant in that case that the two accused did not provide an alibi defence for the time period alleged. Rather, they had testified and made general denials.
[180] That case is factually similar to the case at bar. The complainant has testified to numerous sexual assaults over a period of many years. The accused has made a blanket denial of each allegation. It is not fatal to the Crown’s case that one or more of the alleged improper acts occurred at a different time than the complainant now remembers if there is evidence of the offences which is proven beyond a reasonable doubt.
Evidence of the Accused
[181] The accused testified in his own defence. He adamantly and consistently denied having any sexual contact with the complainant. He made specific denial of each instance of alleged sexual misconduct. He also denied some other evidence given by the complainant – for example the crossbow, having a black belt in karate, incidents of corporal punishment, or the abortion.
[182] However, while P.F. denied each and every instance of sexual conduct, on his own evidence, he confirmed much of the background evidence arising out of the testimony of C.F.
[183] Specifically, he confirmed the following:
The description of the master bedroom, including, but not limited to, the significant number of mirrors in the room;
The fact that C.F. had a captain’s bed in her room;
The general layout of the house;
The positioning of the Christmas tree in the living room;
The description of the carpet in the living room; and
Most significantly, he also confirmed the fact that he had the tattoo.
Significance of the Observations of the Tattoo
[184] With respect to the tattoo, I have reached a number of conclusions, as follows:
- The various details of the tattoo were described with perfect accuracy by C.F. as follows:
i) It depicted a devil with a tail, holding a pitchfork;
ii) The end of the tail was a triangle;
iii) The tattoo also depicted a busty woman; and
iv) The end of the tail was situated near the woman’s vagina.
The accused testified he was a Born-again Christian and had the tattoo removed in 1984. As C.F. was born in 1973, that would make her either 10 or 11 years old when the tattoo was removed.
The accused was also adamant in his testimony that he did not wear a short housecoat, and he never exposed himself intentionally or otherwise to the complainant.
I find the accuracy and timing of the evidence regarding the tattoo to be a dramatic and functionally grounded anchor in assessing the reliability of the evidence of C.F. The location of the tattoo just to the left of the pubic/penile area of the complainant is significant. C.F. would have had to have made these accurate and detailed observations of this elaborate tattoo on her father as a young girl of 10 or 11 years of age. The weight and impact on my concluding that her evidence was reliable is heightened because the accused denied ever exposing the tattoo. It is significant that C.F. was able to observe and accurately remember what was depicted on the tattoo had she not seen it closely on numerous occasions.
I find it is highly unlikely that C.F. could have made the type of observations regarding the tattoo had she only had a quick view of the tattoo. For example, she might have seen the tattoo while accidentally walking in on her father in the bathroom or bedroom unannounced while he was there naked or exposed. Such a single fleeting occurrence would not have provided the complainant with the kind of detail that she accurately remembers. In particular, I note the reference to the physical description of the woman’s breast area, the location of the end of the tail near the woman’s vagina, and, most tellingly, the fact that the devil’s tail ended in a triangle. This is very specific and telling of a compelling accurate description of this elaborate tattoo located on a private area of the accused made by a child, no more than 10 or 11 years of age.
[185] Accordingly, I have concluded that the complainant would have only been able to make (and remember) such level of detail as a result of extremely close visual contact with the tattoo and/or repeated and lingering close visual contact with the accused while he was naked. These observations are consistent with the complainant being required to perform oral sex on the accused or otherwise bing exposed to his naked private area for extended periods of time.
The W. (D.) Analysis
[186] As indicated, I have conducted the prescribed W.(D.) analysis in this case.
[187] I do not accept the evidence of the accused. In large part, as I accept the evidence of the complainant on the issues of sexual intercourse, other forms of sexual assault or sexualized behaviour occurred because there can be no grey area. Either the events occurred, or they did not. There are no issues of intent, alibi, or possible misinterpretation of the actions of the accused with the complainant that might establish reasonable doubt on a W. D. analysis.
[188] In reaching this conclusion, I have followed the comments made by McLachlin C.J. in R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at para. 66, with respect to the application of the W.(D.) principles, in cases such as this, as follows:
Finally, the trial judge’s failure to explain why he rejected the accused’s plausible denial of the charges provides no ground for finding the reasons deficient. The trial judge’s reasons made it clear that in general, where the complainant’s evidence and the accused’s evidence conflicted, he accepted the evidence of the complainant. This explains why he rejected the accused’s denial. He gave reasons for accepting the complainant’s evidence, finding her generally truthful and “a very credible witness”, and concluding that her testimony on specific events was “not seriously challenged” (para. 68). It followed of necessity that he rejected the accused’s evidence where it conflicted with evidence of the complainant that he accepted. No further explanation for rejecting the accused’s evidence was required. In this context, the convictions themselves raise a reasonable inference that the accused’s denial of the charges failed to raise a reasonable doubt.
[189] I accept the evidence of the complainant as it was detailed and truthful.
[190] While C.F. may not have been able to accurately depict exactly when these repeated sexual assaults occurred, her version of events was credible.
[191] In many respects, other than his denial of the various sexual acts he is alleged to have committed on his daughter, the evidence with respect to the family history, his and D.F.’s employment, the set up of the house, and their religious path were similar. For example, this detail included the elimination of the television from the household for a period of time and the meeting with Pastor Johnson.
[192] The complainant’s and the accused’s evidence, generally, only conflicted significantly with respect to the alleged sexual activities. However, on his own evidence, P.F. confirmed the complainant’s description of the tattoo and testified it was surgically removed in 1984.
[193] It was chilling to learn while the accused was adamant he did nothing that would have facilitated his daughter viewing the tattoo, she would have only been 10 or 11 when the tattoo removal occurred.
[194] In light of the evidence of sexual intercourse and the other details provided by the complainant, I do not accept the evidence of the accused. Accordingly, as prescribed in step 1 of W. (D.), his evidence does not leave me with a reasonable doubt.
[195] I have also made the analysis prescribed in steps 2 and 3 of W.(D.).
[196] The accused challenged the reliability of her evidence with respect to the various or alleged incidents because she testified she often “zoned out”.
[197] I disagree. C.F. gave evidence of significant details with respect to the location and the circumstances of a number of those instances. As indicated, those details were generally in sync with the testimony of the accused. As for example, with respect to the Christmas tree incident, he acknowledged the state of the carpet on the floor.
[198] I have concluded that it does not impact the reliability or credibility of C.F.’s evidence that she might have zoned out on such repeated or vile sexual abuse being perpetrated on her when she had concluded she was not getting, or going to get, support from members of her family, with whom she shared these incidents.
[199] C.F. did not change her story. She withstood rigorous cross examination. While there was more detail in her subsequent 2017 statements to the police, she explained that the purpose of the first statement was only to support her spouse. She, herself, was not prepared to pursue the allegations, at that time, against her father.
[200] In conducting the W.(D.) analysis, where the evidence of the complainant and the accused conflicted, I have accepted the evidence of the complainant.
[201] Having rejected the accused’s evidence, his evidence does not leave me with a reasonable doubt of the offences, as prescribed in step 2 of W.(D.).
[202] I have also conducted analysis of step 3 of W.(D.) by reviewing the evidence as a whole.
[203] The accused challenged the credibility of C.F. He asserted that she may have been motivated to fabricate these allegations for two reasons. I will address both.
- To assist her spouse M.F. with respect to her complainants against the accused.
[204] I reject this proposition. The Crown called evidence from two witnesses for the sole purpose of establishing that the allegations were not recently fabricated.
[205] I have outlined the evidence of both L.C., the sister-in-law of the accused, and C.B., a friend of the accused. I accept the evidence of both these individuals as an indication that as far back as the age of 14 or 15, up to and including a year after C.F. graduated from her health care program, she had spoken to her aunt and her friend with respect to some of the allegations she described in her testimony.
[206] I reiterate that evidence does not, and cannot, legally support or buttress the evidence of the Crown with respect to the alleged criminal actions of the accused. That evidence is proof only of the fact that C.F. had spoken of these incidents many years before the issues between the accused and the complainant’s wife arose.
[207] I have no hesitation in concluding that the evidence of C.F. was not recently fabricated in any sense, including, but not limited to the suggestion that the complainant came forward to support her spouse.
- Because P.F. and D.F. never fully accepted that the complainant was gay.
[208] I also reject this suggestion for a number of reasons. Firstly, and as I have already concluded, the complainant raised these issues of sexual abuse between the age of 14 and approximately 25. There is no evidence that the sexuality of the complainant was known to the accused or D.F. when she was under the age of 16 years. Furthermore, it is not logical to conclude that even if there was animosity or an unwillingness to accept her gay lifestyle even then, she would wait until 2016 and 2017 to come forward with false allegations of sexual abuse as against her father.
[209] C.F. testified she lived out west for a number of years. She testified that she knew her father did not accept her lifestyle then because of his religious beliefs.
[210] However, any suggestion of continued unacceptance or animosity in that regard was negated by the evidence of the accused when he explained to the court that i) notwithstanding those differences, they had C.F. and M.F. live in their house for a period of approximately 10 months; ii) they assisted M.F. when she was pregnant; and iii) D.F. visited C.F. and M.F. out west on numerous occasions.
[211] For all these reasons, I have concluded that the complainant was a highly credible witness. I am satisfied as to the reason she came forward to the police initially to support her spouse and later to file a criminal complaint.
[212] I accept that there are a myriad of reasons why and how victims of sexual abuse decide to come forward (or not).
[213] The timing of her initial and subsequent disclosures to the police in no way impacts my finding that she gave this court credible and reliable evidence.
[214] Furthermore, the accused suggested that the progression in the level of detail provided by C.F. from her first statement to police on November 2, 2016 to her written statement dated June 3, 2017 (Exhibit 3) and her video statement provided on June 6, 2017 and her testimony at trial was concerning.
[215] In addition to C.F. explaining the different reasons why she gave a more fulsome statement when filing the complaint, I note that while the second statement provided more details, the details were devoid of inconsistencies.
[216] In R. v. M. (A.), 2014 ONCA 769, at paras. 12-13, the Court of Appeal succinctly set out the following principles, which are particularly relevant to this case:
Fourth, one of the most valuable means of assessing witness credibility is to examine the consistency between what the witness said in the witness box and what she has said on other occasions, whether or not under oath: R. v. G. (M.) (1994), 1994 8733 (ON CA), 93 C.C.C. (3d) 347 (Ont. C.A.), at p. 354, leave to appeal to S.C.C. refused, [1994] S.C.C.A. No. 390. Inconsistencies may emerge in a witness’ testimony at trial, or between their trial testimony and statements previously given. Inconsistencies may also emerge from things said differently at different times, or from omitting to refer to certain events at one time while referring to them on other occasions.
Inconsistencies vary in their nature and importance. Some are minor, others are not. Some concern material issues, others peripheral subjects. Where an inconsistency involves something material about which an honest witness is unlikely to be mistaken, the inconsistency may demonstrate a carelessness with the truth about which the trier of fact should be concerned: G. (M.), at p. 354.
[217] In this case, I am not concerned.
[218] The Court of Appeal, at para. 14, noted:
Fifth, A trial judge giving reasons for judgment is neither under the obligation to review and resolve every inconsistency in a witness’ evidence, nor respond to every argument advanced by counsel: R. v. M. (R.E.), 2008 SCC 51, [2008] 3 S.C.R. 3, at para. 64. That said, a trial judge should address and explain how she or he has resolved major inconsistencies in the evidence of material witnesses: G. (M.), at p. 356; R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788, at para. 31.
[219] I have reviewed a number of cases, including the decision in R. v. J.J.R.D. (2006), 2006 40088 (ON CA), 215 C.C.C. (3d) 252 (Ont. C.A.), 218 O.A.C. 37. In that case, the Ontario Court of Appeal upheld a conviction even though the complainant acknowledged the inconsistencies in her testimony and at one point stated, “I’m sorry because I’m kind of changing my story, but because I’m remembering things differently…now than before”.
[220] At para. 46 of the decision, the court stated:
The trial judge carefully assessed the evidence of A.D. He was alive to the potential frailties in her evidence, particularly the fact that she had provided many details of the alleged assault in her evidence that she had not given in her earlier statements and testimony. The trial judge expressly alluded to many of the inconsistencies between her testimony and her earlier statements. He also took into consideration the circumstances surrounding her testimony. The trial judge ultimately determined that A.D. was a credible witness. He gave reasons for this conclusion. The basis upon which the trial judge found A.D. credible is readily apparent on the entirety of the record, including his reasons. His assessment of A.D.’s credibility is readily reviewable on appeal by this court.
[221] The evidence of the complainant, in this case, contained few, if any, changes to her story as referenced in J.J.R.D.
[222] In reaching this conclusion, I am not simply preferring the evidence of the complainant over that of P.F. I have accepted her evidence with respect to the various incidents of sexual intercourse and sexual assault. Accordingly, it logically follows that I have rejected the evidence of P.F. that these incidents did not occur.
[223] Some elements of the complainant’s testimony were not supported by any other evidence. In particular, I am referring to the crossbow incident, the karate black belt, and the abortion issue. I am unable to conclude that evidence was proven beyond a reasonable doubt. However, none of that evidence related to the offences alleged.
[224] The failure of the Crown to prove those facts beyond a reasonable doubt does not cause me to reject all of the evidence of the complainant.
[225] Finally, I have considered all of the evidence that I have accepted on this case, and I am satisfied the evidence proves the guilt of the accused on the charges (Step 3 of W.(D.).
CONCLUSION
[226] Specifically, I find:
i) P.F. had sexual intercourse with C.F., his daughter;
ii) That he did have sexual intercourse with C.F., his daughter, a female person not his wife and under the age of 14 years; and
iii) That he did sexually assault C.F., his daughter.
[227] Accordingly, I find the accused guilty on all three counts.
George W. King
Justice
Released Orally: October 1, 2020
COURT FILE NO.: CR-18-4363
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
P.F.
Accused
REASONS FOR JUDGMENT
King J.
Released Orally: October 1, 2020
[1] This is an unreported case with a neutral citation of 2019 ONSC 6828.
[^1]: This is an unreported case with a neutral citation of 2019 ONSC 6828.