Her Majesty the Queen v. G.G., 2020 ONSC 76

COURT FILE NO.: CR-988-18

DATE: 2020-01-07

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

G.G.

Accused

Jeffrey D. Martin, for the Crown

George Fournier, for the Accused

HEARD: October 21, 28 & 29, 2019

REASONS FOR JUDGMENT

Cornell, J.

Introduction

1G.G. is charged with committing a sexual assault on K.G. and T.S. He is also charged that he did have sexual intercourse with T.S. when she was under the age of 14. In accordance with the reasons that follow, I find the accused guilty on all four counts.

Background

2K.G. and T.S. are sisters. Their mother is R.O.D. When K.G. was about 11 and T.S. about 9 years of age, G.G. moved into the family home. In May of 1985, R.O.D. and G.G. were married.

3Between 1984 and 1989, the family moved on six occasions. It is alleged by K.G. that in 1985, while the family was residing at Ryan Heights and later in Hanmer, she was sexually assaulted by G.G.

4T.S. alleges that beginning around 1986 or 1987, she was sexually assaulted by G.G., with the result that from the time she was 12 until she was 16 years old, G.G. would frequently have sexual intercourse with her.

The Issues

5I am called upon to decide whether G.G. sexually assaulted K.G. and T.S. as they allege. If sexual intercourse with T.S. did take place, I am further called upon to determine whether she was not his wife and under the age of 14 years at that time.

Review of the Evidence

Evidence of K.G.

6K.G. was born in 1973. She is the oldest of three siblings.

7In 1984, the family was residing in an area known as Ryan Heights. G.G. and his son moved into the home in 1985. At that time, K.G. was 12 years old and her sister T.S. was 10.

8After G.G. moved into the residence, he set up his electronic equipment in the basement. This equipment included a reel-to-reel tape player. G.G. would spend many hours in the basement editing old radio shows such as The Shadow and The Lone Ranger. At times, all family members would join him. At other times, only one child would do so.

9On one such occasion, at night, K.G. was alone with G.G. listening to a radio program. She was sitting with him in a big burgundy arm chair. K.G. described that the arms of the chair were quite wide and estimated them to be approximately ten inches.

10At one point, G.G. asked her if she would stand with one leg on each of the arms of the chair. G.G. was seated on the chair at this time. He helped her up to stand in this position. He removed her “panties” and asked her to hold her nightgown up which she proceeded to do. He then proceeded to lick her vagina. After doing so, he asked her “Did it feel good?” and “Did you like it?” K.G. responded by saying “Yes.”

11K.G. said that this happened at night while the other family members were sleeping. She recalled that she was required to use her left hand to grab a support pole in order to steady herself. She remembered that G.G. was wearing a black or brown western style shirt and black slacks.

12K.G. recalled that her mother and G.G. married in the summer of 1985, at which point G.G. formally became her step-father. She said that he became the man of the house and assumed a parental role. In the fall of 1985, K.G. said that the family moved to a house in Hanmer. She remembered this date as she recalls starting Grade 6 around the same time. She was able to describe the single-family dwelling in considerable detail. Three bedrooms were located on the top floor. K.G. shared a bedroom with her sister T.S. The bedroom contained bunk beds. K.G. occupied the lower bunk.

13On some nights, G.G. would enter the bedroom, close the door, and proceed to sit on her bed. The lights were off. After a little conversation, he would perform oral sex on her and then leave. Sometimes he would rub her clitoris. At trial, K.G. testified that this did not happen often. She could not be sure of the number of times this happened, but she knew that it happened more than two times.

14In the fall of 1987, when she was in Grade 7, she disclosed the abuse to her Grade 8 friend, D.J. D.J. told her mother who in turn called the police or the Children’s Aid Society (“CAS”). As a result of this, K.G. was required to attend at school with her mother. Prior to attending at the school, R.O.D. said to her that if she spoke to the police, “How will I be able to care for you kids? Where will I find the money? The CAS will take you kids away.” After hearing this, K.G. felt guilty about the prospect of the family being torn apart. As a result, she lied to the police and CAS by denying the sexual activity.

15After the meeting with the police and CAS, there were no further sexual assaults by G.G on K.G. In 1995, K.G. moved out of the family home.

Evidence of T.S.

16T.S. was born in 1975. She was nine years old when G.G. first moved into her family’s residence at Ryan Heights. She knew this as it happened around the time of her first communion/confirmation.

17She described the residence at Ryan Heights as a split-level home with staircases on the second and third levels. She recalls that the basement contained a work bench, electronic stuff, and possibly a couch. She recalled that G.G. would frequently work on “computer things.” T.S. recalled that, on one occasion, she and K.G. were home from school alone with G.G. He asked the girls to get in his bed in the bedroom he shared with R.O.D. G.G. was naked. He invited the girls to touch his penis. He asked T.S. to hold his penis like a microphone and to sing into it. He asked T.S. to put her mouth on his penis, but she refused. G.G. told them that this was a game. T.S. recalled that she and her sister both touched G.G.’s penis. She thought that she was nine years old when this happened.

18T.S. recalls an occasion when she was on a couch with G.G., when the family was living in the Lakeshore house in Capreol. G.G. had put his hand down her pants and was touching her vagina when there was a knock at the door. It was the police. G.G. told T.S.: “You can talk to them if you want to, but I wouldn’t be allowed to do it and you would get in trouble.”

19G.G. was arrested. T.S. recalls that after a few days he came back to live with the family. T.S. said that she spoke with the police but denied that anything of a sexual nature had happened as she did not want to get in trouble.

20The sexual game continued and eventually progressed to sexual intercourse. The first sexual intercourse took place when she was 11 or 12 years old, while the family lived at the McCormick Court residence. The sexual intercourse continued until she was 16 years old. It stopped when she became old enough to realize that this activity was wrong, and she distanced herself from G.G. by spending much more time away from the home.

21The sexual assaults always took place in the basement. They followed a pattern. They always took place at night. G.G. would first touch her breasts and vagina, proceed to oral sex, and, once they were naked, he would have full vaginal intercourse with her. The sex would always take place with G.G. on top of her.

Evidence of G.G.

22G.G. testified.

23G.G. was born in 1954. To a large extent, he agreed with the evidence offered by K.G. and T.S. in terms of the various residences that were occupied between 1984 and 1989.

24At the time that G.G. moved in with R.O.D. and her family, he was not working. He transitioned from Father’s Allowance to welfare. G.G. testified that he has a “messed-up back” as a result of three degenerative discs. He also has migraine headaches. After moving in with R.O.D. and her family, he and R.O.D. briefly worked with Tilden shuttling rental cars from one place to another. They would be called upon to do this every two or three days. After R.O.D. was involved in a motor vehicle accident, this work stopped.

25After taking an upgrading course, he attended Cambrian College to take an electronics course for three semesters between September of 1986 and December of 1987. This involved attending class from 8:30 a.m. until approximately 5:00 p.m.

26G.G. acknowledged that while the family was living in Ryan Heights, his electronic equipment was in the basement. He said that he would spend many hours a day in the basement working on the equipment and editing old radio shows.

27He acknowledged that various members of the family would come down to the basement and spend time with him. He acknowledged that on at least one occasion he was alone in the basement with K.G.

28G.G. denied all of the sexual assault allegations that have been made against him.

Analysis

Assessment of Evidence

29A useful summary of the principles involved in the approach to be taken can be found in R. v. Williams, 2010 ONSC 184, where Hill J. stated as follows:

56A determination of guilt or innocence in a criminal trial does not devolve into a credibility contest between witnesses. Such an approach would erode the presumption of innocence and the assigned burden of persuasion of proof beyond a reasonable doubt.

57Where credibility is a central issue in a trial, the court must be alert to the relationship between the assessment of credibility and the prosecution’s ultimate burden to prove guilt beyond a reasonable doubt. Mere disbelief of an accused’s evidence does not satisfy the burden of persuasion upon the Crown. The trier of fact must be satisfied on the whole of the evidence that there exists no reasonable doubt as to the guilt of the accused.

58A trier of fact, in assessing credibility, considers a variety of factors including the plausibility of evidence having regard to experience and common sense and inherent probabilities/improbabilities, inconsistencies within a witness’ evidence, how a witness’ version of events fits with other evidence in the case, the weight of testimony pointing in a particular direction, motive to fabricate, witness demeanour, etc.

30G.G. has denied all of the allegations that have been made by K.G. and T.S. A careful consideration of all of the evidence is required. In undertaking this exercise, I am mindful of the fact that I can believe some, none, or all of the evidence that has been offered by a witness. I am also mindful that I am to be guided by the approached mandated by R. v. W.(D.), 1991 93 (SCC), [1991] 1 S.C.R. 742.

K.G.’s Allegations

31These events occurred more than 30 years ago at a time when K.G. was approximately 12 years old. Despite the significant passage of time and K.G.’s age when these events are alleged to have occurred, K.G. had a clear memory of the various residences that the family occupied. She also had a very clear memory about the incidents involving G.G.

32With respect to the first incident, K.G. recalled going down into the basement of the home in Ryan Heights to listen to an old radio program. She specifically remembered a large burgundy chair. She said that G.G. sat on the chair and she sat on G.G.’s lap. This happened at night. Everyone else had gone to bed. At some point in time, K.G. was asked by G.G. to stand with one leg on each arm of the chair. K.G. vividly remembered that the arms of the chair were quite wide, a distance that she estimated to be approximately ten inches. She recalled that after her panties were removed, G.G. asked her to hold her nightgown up. By standing in this position, her vagina was at approximately G.G.’s eye height. G.G. proceeded to lick her vagina.

33By way of further detail, she recounted that G.G. asked her if she liked it, to which she responded “Yes.”

34By way of further detail, K.G. recalled that it was necessary for her to use her left hand in order to hold on to a support post that was adjacent to the burgundy chair.

35T.S. remembered there being a work bench in the basement along with G.G.’s electronic equipment. T.S. also thought that she remembered there being a couch in the basement.

36G.G. testified that there never was a burgundy chair in the basement in the Ryan Heights home. He said that there was an office chair in the basement that had very narrow arms that were approximately one-half inch wide. G.G. said that he needed a chair like this in order to be able to provide support for his back.

37I reject the evidence of G.G. on this point and accept the evidence of K.G. that the sexual assault did occur as described by her in the large burgundy chair that was in the basement at Ryan Heights.

38After the family moved in the fall of 1985 into the Hanmer residence, K.G. told the court that, at night when everyone had gone to bed, G.G. would come into her room on occasion. He would close the door. The lights would be off. He would sit on her bed and talk to her. Despite the lights being off, she knew that it was G.G. as she recognized his voice and his smell.

39G.G. would proceed to remove her underwear and give her oral sex. On occasion, he would use his hand to rub her clitoris and vagina.

40At trial, K.G. said that this sexual activity did not take place too often. When pressed on the issue, she could not remember the number of occasions, but knew that it happened more than twice.

41During the course of cross-examination, she was confronted with the fact that at the preliminary hearing, which took place in June of 2018, she testified that the oral sex in her bedroom took place once a week for nine months. At trial, K.G. was not prepared to adopt her preliminary evidence. She stated that she was not sure how often that this type of thing occurred, but that she knew it happened more than twice.

42After a careful consideration of all of the evidence, I am unable to conclude how many times G.G. may have entered K.G.’s bedroom to perform oral sex upon her. Despite that, I am satisfied that G.G. did enter K.G.’s bedroom in the Hanmer residence on more than two occasions in order to engage in oral sex with her and did touch her vagina and clitoris on occasion.

43There was timely disclosure of the sexual abuse. In the fall of 1987, I have already detailed that K.G. disclosed the sexual abuse to her friend D.J. I have also recounted the efforts that R.O.D went to in order to convince K.G. that, if she told the police and the CAS what had happened, the family would be in a dire financial situation and that there was a risk that the CAS would “take the kids away.” As a result of this pressure from her mother, K.G. indicated that she lied to the authorities as she did not want to be responsible for having the family torn apart.

44According to G.G., the police attended at the family home at the same time that R.O.D. was taking K.G. to the school to meet with the authorities. I have already recounted the evidence whereby T.S. said at the time that the police knocked on the door, G.G. had his hand down her pants fondling her vagina. G.G. told T.S. that if she decided to tell the police what was happening, that she would be the one who would get in trouble. T.S. explained that as she was already in trouble with her mother for unrelated reasons, she decided to lie to the police so that she would not get in further trouble with her mother.

45G.G. was arrested and spent three days in jail. After both K.G. and T.S. lied to the authorities, there was no basis to hold G.G. and he was released.

46G.G. testified that after he was released and returned to the family home, he was told by the authorities that, from that point forward, it was not permissible for him to be alone with K.G. G.G. said that he honored this directive.

47It would appear that G.G. did so because K.G. testified that after that G.G. never committed any further sexual assaults upon her. Unfortunately, the same cannot be said for K.G.’s younger sister, T.S.

Allegations of T.S.

48T.S. is approximately two and a half years younger than her sister, K.G.

49K.G. testified that after moving into the family home, G.G. shared a bedroom with her mother, R.O.D. K.G. said that there were times when she would enter the parents’ bedroom and spend time with the parents in bed in the morning. Her mother always wore night clothing. G.G. was always naked. K.G. testified that after climbing under a bedsheet, G.G., while naked, would cuddle with her.

50According to G.G., there were five or six occasions when the children would enter the parents’ bedroom in the morning and come into bed with the parents. He found this objectionable, closed the door, and told the children that they could not come into the bedroom unless they had permission. To some extent, this was confirmed by T.S. who said that at some point, the children required permission to enter the parents’ bedroom.

51The evidence indicates that permission was granted. I have already recounted the evidence offered by T.S. that, on one occasion, G.G. asked K.G. and T.S. to come into the parents’ bedroom when no one else was home. Once again, G.G. was naked. He asked the girls to touch his penis. T.S. has the specific recollection that she was asked by G.G. to hold his penis like a microphone and to sing into it. She recalls that G.G. asked her to put his penis into her mouth, something she refused to do. G.G. told T.S. that this was a game. There were other occasions when G.G. and T.S. played the game.

52T.S. remembers that there was one occasion when she and her sister played the game. When K.G. was asked if there were any other examples of sexual contact with G.G., she made no mention of being involved in the game with her sister. Despite K.G.’s failure to provide evidence that would corroborate T.S.’s recollection of the game, I am satisfied based on the evidence offered by T.S. that such activity took place.

53I am satisfied that such activity took place because T.S. was able to recall her approximate age when it occurred, the location, and the circumstances of such activity as well as the curious detail that G.G. wanted her to hold his penis like a microphone and to sing at it. Given G.G.’s preoccupation with electronics and recording devices, he would be very familiar with the use of and the manner in which a microphone would be held.

54I also accept the evidence offered by T.S. in connection with the game due to the evidence of K.G. that the children would cuddle with G.G. while he was naked in bed, something that was acknowledged by G.G. during the course of his testimony.

55The Crown also addressed the fact that K.G. had no recollection of being involved in the game with T.S. The Crown said that this was yet another example of where both K.G. and T.S. were doing their best to be honest with the court and not to exaggerate. The Crown went further to say that K.G.’s failure to testify to such an event was clear evidence that there had been no collusion by K.G. and T.S.

56After he had been arrested and released, I have recounted the evidence given by G.G. that he was told that he was never to be alone with K.G. in the future. There was no evidence that this restriction applied to T.S.

57After the arrest, G.G.’s attention turned to T.S. At that point, T.S. was approximately 11 or 12 years of age. The sexual abuse of T.S. started with grooming behaviour. It began with G.G. being naked in the parents’ bed in the company of K.G. and T.S. It proceeded to sexual touching whereby G.G. would put his hands down T.S.’s pants to fondle her vagina. It further progressed to the sexual touching of T.S.’s breasts and vagina, as well as oral sex. It eventually progressed to sexual intercourse.

58According to G.G., the parties moved to the residence on McCormick Court in 1987. T.S. would have been 12 years old. T.S. testified that when she was 11 or 12 years old, G.G. proceeded to have sexual intercourse with her. The sexual intercourse always took place in the basement of the McCormick Court residence. G.G. would invite T.S. to go into the basement when everyone else was asleep. This always occurred at night. T.S. recalled that the sex took place on a rug that was possibly a white shaggy rug. T.S. recalled that G.G. would remove all of his clothing and would have sexual intercourse on top of her without using a condom. T.S. recalled that her clothing from the waist down would be removed, but that she would leave her shirt on because it was cold in the basement. T.S. said that the sexual intercourse continued from the time she was 12 until she was 16 years old. It stopped when she was 16 as she realized that such activity was wrong.

59T.S. said that she began to use birth control when she was 15 years old. Despite the lack of birth control up to that point or the use of a condom, T.S. did not become pregnant.

60As had been done by her sister, T.S. provided timely first disclosure many years ago. T.S. told her friend C.A. about the sexual abuse. C.A. told her mother what T.S. had told her. T.S. said that she begged C.A.’s mother not to tell the police as she did not want to get in trouble. Despite this plea, C.A.’s mother told R.O.D. about the allegations. T.S. said that her mother responded by telling her that she was a liar and had made these allegations up because T.S. was in trouble for not coming home and had been grounded as a result. K.G. also recalled that such disclosure had been made by T.S. to C.A.

61In her evidence, T.S. indicated that she did not have a journal or diary, but that on occasion she would write down things of significance that had happened. This is important because K.G. testified about finding T.S.’s orange journal that contained the words: “G.G. and I had sex last night.” A sexual assault by a step-parent would most certainly constitute a significant event.

62T.S. indicated that the first time G.G. put his penis in her vagina, it hurt. It was physically painful.

63Although T.S. said at trial that G.G. performed oral sex on her, she made no mention of oral sex at the preliminary hearing. The question put to her at the preliminary hearing asked her about sexual touching. At trial, she explained that she understood sexual touching to mean the use of hands. She said that she was never asked about oral sex at the preliminary hearing. I accept this explanation.

64During the course of cross-examination, T.S. acknowledged that these events happened many years ago and that most of it was “blacked out.” Despite that, T.S. had a clear recollection of the various sexual assaults that she endured at the hands of her step-father. At the end of the cross-examination when it was put to her that G.G. did not sexually assault her, she rose up in the witness box and said with great emphasis that “it absolutely happened, and it was absolutely him.”

W.D. Analysis

65According to W.D., I must acquit if I accept the evidence of the accused. I am not prepared to do that.

66Under the second step in W.D., I must find an accused not guilty if, after a careful consideration of all of the evidence, I am unable to decide whom to believe. In such a case, the Crown would have failed to prove the accused’s guilt beyond a reasonable doubt. In this case, I accept the evidence offered by K.G. and T.S. about the sexual assaults committed by G.G. The evidence offered by G.G. does not leave me in any doubt.

Conclusion

67After a careful consideration of all of the evidence, I am satisfied that the Crown has proven that G.G. did sexually assault K.G. and T.S. as alleged. I further find that G.G. did have sexual intercourse with T.S. at a time when she was not his wife and she was under the age of 14 years. Accordingly, I find G.G. guilty on Counts 1, 2, 3 and 6.

68I will now entertain submissions from counsel as to whether the principle against multiple convictions contained in Kineapple v. R., 1974 14 (SCC), [1975] 1 S.C.R. 729, applies in this case.

The Honourable Mr. Justice R. Dan Cornell