COURT FILE NO.: CJ 9629

DATE: 2021-12-10

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

A.G.R.

Accused

S. McNaughton, Counsel for the Crown

D. Witmer, Counsel for the Accused

HEARD: October 18-22, November 2, 2021

SUBJECT TO ANY FURTHER ORDER BY A COURT OF COMPETENT JURISDICTION, AN ORDER HAS BEEN MADE IN THIS PROCEEDING DIRECTING THAT THE IDENTITY OF THE COMPLAINANTS AND ANY INFORMATION THAT COULD DISCLOSE SUCH IDENTITY, SHALL NOT BE PUBLISHED IN ANY DOCUMENT OR BROADCAST IN ANY WAY PURSUANT TO S. 486.4 OF THE CRIMINAL CODE OF CANADA.

MR. JUSTICE I.R. SMITH:

REASONS FOR JUDGMENT

Introduction and Overview

[1] AGR is accused of six sexual offences against members of his own family. It is alleged that he committed the offences of sexual interference, sexual exploitation, and invitation to sexual touching against his now adult daughter, SR, at times when she was a young girl and/or young teenager. He also faces two counts of sexual interference in connection with his step-granddaughter, SRD (age 8 – 10 at the relevant times), and one count of sexual interference in connection with his granddaughter JER (age 9 at the relevant times), who is SR’s daughter.

[2] In addition to the three complainants, the Crown called the younger sister of JER (JPR), the stepmother of SRD (SH), and the investigating officer, Det. Cst. Amanda Thompson. AGR did not testify and did not call any other evidence.

[3] At all relevant times AGR lived in Cambridge with his wife, WR, in a house (to which I will refer as “the house”) that had bedrooms on the top floor, a kitchen, dining room and living room on the second floor, and a workshop on the ground floor (sometimes referred to in the evidence as the basement).

[4] Their daughter, SR gave evidence before me and testified that AGR repeatedly abused her sexually before she left home when she was 15. SR was distraught when she testified. She was not a precise reporter of exactly what happened to her, and much of her testimony was difficult to follow. She was defensive in cross-examination and on several points was confronted with prior inconsistent statements. She described one incident with AGR in her parents’ bedroom, and multiple other incidents of sexual touching on the second floor of the house. For reasons which I will explain, I am satisfied beyond a reasonable doubt that SR was repeatedly sexually touched by her father, including on one occasion in his bedroom. I am satisfied that those events occurred both before and after she was 14 years old and that AGR is guilty of both sexual interference and sexual exploitation.

[5] SR also described, as part of the bedroom incident, being invited by AGR to touch his penis, which she did. I am satisfied beyond a reasonable doubt that the invitation was made, and that SR touched AGR’s penis, but I cannot be satisfied that SR was under the age of 14 when the invitation was made, as the Criminal Code, R.S.C. 1985, c. C-46, required at the time. Therefore, I find AGR not guilty of invitation to sexual touching.

[6] SRD also described a series of sexual touchings by her grandfather. Although SRD’s evidence was not free of problems, I accept her evidence beyond a reasonable doubt that she was touched sexually over a period of time ending in July of 2017 and that she was under the age of 16 at all relevant times (as the Code now requires). The frailties in SRD’s evidence were the kinds one would expect of a young witness testifying about events that occurred when she was 8 – 10 years old.

[7] AGR was charged with two counts of sexual interference against SRD: Counts 4 and 5 in the indictment. Since the facts underlying these two counts are the same, the Crown has invited me to acquit on one of them. Accordingly, I find AGR not guilty of Count 4, but guilty of Count 5.

[8] JER also described sexual touching at the hands of her grandfather. Her younger sister, JPR, also testified about touching she experienced with AGR and corroborated some of the evidence of JLR. The evolution of the evidence of these two young witnesses leaves me unable to say beyond a reasonable doubt that their evidence is true. AGR is acquitted on this count.

Legal Principles

Fundamental Principles

[9] AGR is presumed innocent. He need prove nothing in these proceedings. The burden is on the Crown to prove the offences beyond a reasonable doubt.

Prior Discreditable Conduct

[10] I have heard some evidence of prior discreditable conduct on the part of AGR, including evidence that he may have abused his daughter JR (SDR’s mother and SR’s half-sister), in respect of whom there is no charge before me. I have also heard that AGR may have been in breach of his bail, that he was arrested four times in connection with this matter, and that there was some family dysfunction, including an unpleasant incident on March 22, 2018.

[11] This evidence was admitted without objection because it was essential to an understanding of some of the fundamental issues in this case, including in particular how and when the complaints were made to the police. Indeed, the defence has relied on this evidence. However, I instruct myself that none of this evidence is to be used by me to support an inference that AGR is a person of bad character or who is the type of person who would commit the offences alleged against him. In this judge-alone trial, I am in a position to ensure that improper propensity reasoning is not employed and that neither reasoning nor moral prejudice infects my judgment.

Similar Fact Evidence

[12] At the opening of this trial, Crown counsel advised that, as part of an agreement with counsel for AGR, he would not be applying to have the evidence of the complainants admitted as similar fact evidence. He added that he did not think it likely that such an application would have succeeded in any case, given that there is evidence of discussions among the witnesses before their allegations were made. Crown counsel expressly did not concede that these discussions amounted to collusion, only that they might have had an effect on any similar fact application.

The Evidence of Children

[13] In this case, three of the witnesses are still children. A fourth is an adult but was a child at the time she says that AGR abused her. In Regina v. R.W. (1992), 1992 CanLII 56 (SCC), 74 C.C.C. (3d) 134 (S.C.C.), Justice McLachlin (as she then was) provided the following guidance, which I have followed, respecting the assessment of the evidence of children (at paras. 24 and 26, emphasis added):

24. The second change in the attitude of the law toward the evidence of children in recent years is a new appreciation that it may be wrong to apply adult tests for credibility to the evidence of children. One finds emerging a new sensitivity to the peculiar perspectives of children. Since children may experience the world differently from adults, it is hardly surprising that details important to adults, like time and place, may be missing from their recollection. Wilson J. recognized this in R. v. B. (G.), 1990 CanLII 7308 (SCC), [1990] 2 S.C.R. 30, at pp. 54-55, when, in referring to submissions regarding the court of appeal judge's treatment of the evidence of the complainant, she said that

... it seems to me that he was simply suggesting that the judiciary should take a common sense approach when dealing with the testimony of young children and not impose the same exacting standard on them as it does on adults. However, this is not to say that the courts should not carefully assess the credibility of child witnesses and I do not read his reasons as suggesting that the standard of proof must be lowered when dealing with children as the appellants submit. Rather, he was expressing concern that a flaw, such as a contradiction, in a child's testimony should not be given the same effect as a similar flaw in the testimony of an adult. I think his concern is well founded and his comments entirely appropriate. While children may not be able to recount precise details and communicate the when and where of an event with exactitude, this does not mean that they have misconceived what happened to them and who did it. In recent years we have adopted a much more benign attitude to children's evidence, lessening the strict standards of oath taking and corroboration, and I believe that this is a desirable development. The credibility of every witness who testifies before the courts must, of course, be carefully assessed but the standard of the "reasonable adult" is not necessarily appropriate in assessing the credibility of young children.

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

The Offences

[14] Sexual interference (Criminal Code, section 151), requires proof that the accused touched the complainant for a sexual purpose. It also requires proof that the complainant was, to the knowledge of the accused, under a certain age. As noted above, that age is not the same for all the complainants in this case because of amendments to the Criminal Code made since the time of the allegations made by SR and before the time of the allegations made by SRD and JER. For the sexual interference charge in connection with SR, the Crown must prove that SR was under the age of 14 years. For those charges relating to SRD and JER, the Crown must prove that they were under the age of 16 years.

[15] The offences of sexual exploitation (section 153) and invitation to sexual touching (section 152) are also charged in this case in connection with the allegations made by SR. For sexual exploitation, the Crown must prove that AGR was in a position of trust or authority towards SR and that he touched SR for a sexual purpose. The Crown must also prove that SR was, to the knowledge of AGR, 14 or older and under the age of 18 (although the minimum age has also since been amended to 16).

[16] Invitation to sexual touching requires the Crown to prove in this case that AGR, for a sexual purpose, invited SR to touch him and that SR was, to the knowledge of AGR, under the age of 14 (again, this maximum age has since be amended to 16).

The evidence

[17] There is no doubt that each of the three complainants and JPR described events which, if true, constituted sexual offences committed by AGR. The defence, however, challenges the credibility and reliability of that evidence through searching cross-examinations of the Crown’s witnesses. Much of that challenge rests on the timing of the of disclosures of sexual misconduct, the possibility of collusion between the witnesses, inconsistencies between the testimony and prior statements of each witness, and inconsistencies between the evidence of the various witnesses. Reviewing the evidence in the order the various complaints against AGR were made to the police best facilitates an understanding and analysis of the challenges made by AGR to the credibility and reliability of the complainants and other Crown witnesses.

The complaints of SRD

SRD’s statement to Lauren Buckley

[18] SRD is 14 years old. In her evidence in-chief, she adopted her video-recorded statement made to Lauren Buckley, a staff member of Family & Children’s Services (F&CS), which statement was admitted pursuant to section 715.1 of the Criminal Code.

[19] In that statement, which was recorded on July 11, 2017, when SRD was 10 years old, SRD reported that the previous evening she had told her stepmother, SH, that AGR had touched her inappropriately. That conversation began because SH noticed that SRD seemed “quiet.”

[20] SRD was crying and told SH that AGR touches her private parts. SH then started to ask questions about what had happened. SRD denied that AGR had ever “pull[ed] out his penis” but confirmed that he touched her buttocks, vagina and breasts. SRD told Ms. Buckley that SH “really wanted to know – like, really, really wanted to know.”

[21] Ms. Buckley asked SRD to tell her what had happened. SRD said that “poppy”, AGR, “touches the private parts”, by which she meant her “butt”, “vagina” and “boobs”. SRD said that she visited the house a lot, but that the touching happens when “nanny,” WR, is not at home.

[22] Ms. Buckley asked SRD to describe the most recent touching. SRD said that it had occurred three times on a visit to the house “two or three days ago.” On that occasion, SRD arrived at the house in the morning after a late breakfast. WR was not home when SRD arrived, but AGR was home. Some of SRD’s cousins were upstairs in the bedrooms. SRD said that on that occasion, AGR did what he had often done to her before. In the kitchen, AGR asked SRD to “give me hugs” as he often did. She said that AGR often complained that SRD did not “give me good enough hugs” so when she did “hug him tight” he would praise her and then “hug me in the air, and then puts me down, and they he says, how big are these getting,” while “feeling” her breasts. While she was in the air, AGR touched her on her “bum” (which he “holds and squishes”) and her vagina, putting his hand under her clothes for both. This usually happened in the kitchen or the living room but was in the kitchen on this occasion.

[23] AGR then offered then her “a freezie,” which she accepted “cause I love freezies”, after which AGR asked for “hugs again.” She complied with this request, this time in the living room, and AGR touched her as he had the first time – on the buttocks, vagina and breasts. After that, SRD and some her cousins went with AGR and WR to McDonald’s.

[24] SRD and the cousins spent that evening at the house and, the following morning, AGR asked her for another hug. She gave him a hug, which he said was not a good hug, so she hugged him again, tighter. AGR again touched her buttocks and her vagina, but not her breasts. He put her down after the hug and she watched TV with one of her cousins. She left the house shortly thereafter, traveling to a mall before returning to her own home.

[25] SRD said that the touching started when she was eight when she “started getting boobies” and that it had happened “a lot” since then and with increasing frequency as she got older. The first time, “he just, like, squished my bum.” They were in the living room at the time.

[26] SRD said that, in addition to the hugs, AGR would touch her vagina and play with it when she sat on his lap. She told her stepmother, SH, about this (“a long time ago” when she was 8) and when she told her mother, JR, “mom got mad” and “wasn’t allowed to go there no more.” The most recent touching while she sat in AGR’s lap happened when she was 10, two or three days ago. This happened in the living room on the couch. AGR was “touching it until I got off.” She referred to getting off AGR’s lap as “escaping” which he would try to prevent her from doing. He would repeatedly ask her to sit on his lap. She would refuse initially but eventually agree: “And then he touches it,” referring to her vagina. SRD said that AGR also touches her vagina when she is practicing gymnastics with him.

[27] During her interview, SRD told Ms. Buckley that that her cousins, JER and JPR, had also been touched inappropriately by AGR. SRD said that JER and JPR had told her that “he does the same thing” to them. That conversation occurred “the last time they slept over.” Which was “a pretty long time ago,” but was since her 10th birthday in April. The three girls were discussing AGR’s hugs, which they agreed were “weird.” JER and JPR said that AGR touched their private parts when he gave the weird hugs.

[28] SRD told Ms. Buckley that she had heard from her brother, LD, that AGR had done similar things to her mother, JR, when JR was young. JR is WR’s daughter, and AGR’s stepdaughter.

[29] SRD told Ms. Buckley that she was afraid that SH would tell AGR about her allegations because she had previously complained to SH about a time when SRD had been sitting on AGR’s lap. After that event, SRD said she was in “really big trouble” and that AGR told her that that she might not have been able to see him again.

[30] SRD repeatedly says during her interview that she was scared to reveal what had happened to her because she did not want AGR to be punished by the police or put in jail. She worried that “I will never see him again” and that she might “ruin” the family and Christmas. At one point in the recording, Ms. Buckley leaves the interview room and SRD can be heard saying to herself “What are they going to do? She didn’t answer. I’m so scared. […] Hurt him.” When Ms. Buckley leaves a second time, she expresses similar concerns: “I can’t do this … How am I supposed to wait longer. Like, this is – what are they gonna do?”

The Cross-examination of SRD

[31] In cross-examination, and in his closing submissions, counsel for AGR focused on a number themes which, he argues, establish the unreliability and/or incredibility of SRD’s evidence.

Influence from SH and/or JR

[32] Counsel sought to explore the possibility that SH had suggested to SRD why she was sad, or what had happened to SRD. SRD confirmed that she was upset, that SH had noticed and asked questions about why. SRD said the questions had nothing to do with her mother, JR, and she denied that she was upset with AGR because she could not see her mother, which she blamed instead on the fact that JR was in a relationship with an abusive partner. She conceded that SH asked a lot of questions but denied that SH had suggested anything to her and, in particular, that she might have been touched.

[33] Counsel also pursued questions going to the issue of JR’s influence on SRD. This topic included an exploration of when and why SRD told SH that she did not want to sit on AGR’s lap anymore. SRD denied that she had said that she wanted to stop sitting in AGR’s lap because she was getting too big or because she had been embarrassed in front of others when AGR had been bouncing her on his knee in December of 2016 when she was 9. She seemed to remember that there may have been such an incident at that time but denied that this was the cause of her complaint. She said that she could not remember being upset about it.

[34] SRD maintained that she was 8 years old when she first complained to SH about sitting on AGR’s lap. SH had said she did not have too if she did not want to.

[35] SRD said that she remembered telling Ms. Buckley that her mother, JR, had been angry about the complaint about sitting on AGR’s lap but could not now remember JR actually being angry. She agreed (contrary to what she told Ms. Buckley) that JR was at the house after SRD was 8. In any case, she agreed that the request about not sitting in AGR’s lap caused some commotion among the adults, who were upset about it. She did not seem to remember JR having questions about the topic but denied that JR had suggested to SRD why she should be concerned about sitting on AGR’s lap or that she might have been touched inappropriately. SRD said that JR was concerned, asked why SRD did not want to sit on AGR’s lap, and when SRD said that she just did not want to, that was the end of the discussion.

[36] With respect to the information from LD that JR, had also been abused by AGR, SRD agreed that she had told Ms. Buckley that LD had provided that information “just randomly one day” at some point before she complained to SH about AGR. It was pointed out to SRD that at the preliminary inquiry in this matter, SRD said that LD had told her about AGR’s abuse of JR on the very day that she spoke to Ms. Buckley. When confronted with that contradiction, SRD acknowledged it and said that she could not remember when she had spoken to LD about this topic (pointing out that it had been years ago) but that the conversation had happened at SH’s mother’s house. That may have been before she disclosed to SH.

[37] When counsel suggested that SRD was trying to avoid providing information to the court, and that she was being influenced in her evidence by JR, SRD appeared to be surprised that one could think such a thing: “What? No, obviously I’m not. I was a child! Why would I say: ‘Oh, my grandfather touched me. Because my mom told me to?’” I note that the latter part of this answer was delivered with obvious irony.

SRD’s Description of the Final Weekend

[38] Counsel also challenged SRD’s description of the events of the weekend before she revealed to SH and Ms. Buckley that AGR had been touching her inappropriately. Counsel suggested that there was insufficient opportunity for AGR to touch SRD as often as she claimed he had. Counsel also questioned the credibility of a late addition of another instance of sexual touching that weekend.

[39] With respect to lack of opportunity, counsel suggested that SRD’s brother, LD, had been excited on the Saturday when they arrived at the house because he had a new metal detector that he wanted to show AGR and that LD and AGR had spent time using the metal detector at the time SRD says she was touched. SRD had a vague recollection of the metal detector, but this did not move her from her assertion that she was “hugged” twice by AGR that day, the first time when she first arrived at the house. After that she watched Netflix in the living room and then there was another “hug.” She agreed that they went to McDonald’s that afternoon but denied that that did not leave enough time for both the hugs she described that day.

[40] SRD repeated in cross-examination that there was a third hug on the following day. That day SH picked her up before lunchtime. She said that the hug happened at some point before SH arrived, but she could not remember when or what else she had done that morning. She denied that people having breakfast on the second floor of the house made it impossible for AGR to have hugged her, saying that “it happened” but that she just could not say precisely when.

[41] Although SRD agreed with counsel’s suggestion that she had described three touchings on this weekend visit to the house, she acknowledged that she had also previously said that the last time she was touched by AGR while sitting on his lap was also on that last weekend. Counsel took SRD to her preliminary inquiry testimony, where she described sitting on AGR’s lap while he touched her and everyone else was upstairs.

SRD’s Description of AGR’s Weird Hugs

[42] Counsel for AGR challenged the witness on her description of the weird hugs. He suggested to her that AGR could not possibly have touched her as she described.

[43] She agreed that the hugs were all essentially the same. AGR would hug her and lift her into the air. While she was in the air AGR would put a hand underneath her pants and underwear and touch her buttocks and then he would put a hand down the front of her pants and touch her vagina. She would then be placed on the ground and AGR would touch her breasts with his hands. When these hugs occurred, her clothing was not removed or unbuttoned or otherwise opened. Confronted with counsel’s suggestion that this was impossible, SRD said “it happened.” She agreed though that she had difficulty explaining it. At one point she added that her vagina may have been touched while she was on the ground, later clarifying that she meant that AGR touched her vagina “as” he brought her to the ground, not “when” she was back on the ground. SRD maintained in the face of counsel’s questions that it happened as she described it.

SRD’s Discussion with JER and JPR about Weird Hugs

[44] Counsel cross-examined SRD on the conversation she described with JER and JPR respecting AGR’s “weird hugs.” SRD said that she told them what AGR did to her, and that JER and JPR agreed that that was what the weird hugs were like for them too. SRD said that her cousins did not use the words to describe their private parts, although SRD had told Ms. Buckley that they had.

[45] At the preliminary inquiry, SRD said that she and her cousins had not really spoken about JER and JPR being touched by AGR, just about how “it was weird how he hugs.” SRD, confronted with this contradiction, said that she explained the hugs to her cousins and that they agreed. The cousins did not go into detail about their experience of the hugs, but SRD did. The cousins agreed that the hugs were the same for them.

[46] SRD said that before she gave her statement to Ms. Buckley, she spoke to her cousins just once about the weird hugs. There were more discussions later, however. The one discussion was recorded on a tablet at the house, but they erased the recording. This conversation happened the last time all three girls were sleeping over at the house, at some point after SRD’s birthday in April of 2017.

[47] SRD confirmed that she never saw JER or JPR being hugged, or otherwise being touched inappropriately, and that they never saw her when she was being hugged by AGR.

Re-examination of SRD

[48] In re-examination, SRD said that the hugs “lasted a decent amount of time” and described them as lasting “a couple of minutes.”

[49] She said that she was at the house a lot with her brother LD on many weekends and could not remember when he got the metal detector. She could not remember if the weekend he got the metal detector was the last weekend that AGR touched her, but said that she was touched on many of the weekends that she was at the house with LD.

[50] She also said that she could not be sure when LD told her that her mother, JR, had been abused by AGR. In any case, she denied that that she disclosed allegations against AGR to SH because she had learned about JR’s allegations against AGR.

[51] With respect to the mechanics of the hugs, she repeated in re-examination that her vagina was touched by GPR both when she was in the air and when she was back on the ground sometimes. In the latter case, he was touching her while he was putting her down.

[52] She gave a further description of sitting with AGR while he touched her. She said that she did not provide this detail in her statement because she wanted to get it over with.

[53] With respect to the fact that she omitted being touched while sitting on SDR’s lap on the last weekend she spent at the house, she said that she had simply forgotten about it.

The Evidence of SH

[54] SH is SRD’s stepmother. She is married to SD, who is the ex-husband of JR, SRD’s mother. SH said that on July 10, 2017, the day after SRD had returned from the house, SRD was acting strangely and did not seem to be her “her happy little self.” SH asked if anyone was bothering her and SRD told her about being touched by AGR. She was crying and very upset.

[55] SH was shocked and wanted to look into it right away. SH told SD what had happened and tried to call F&CS but it was after hours. She called again the next morning, was told to bring the children in, and did so. SH did not tell SRD where they were going or why.

[56] SH said she had heard that JR had made allegations against AGR but did not consider JR reliable. Nevertheless, because of those allegations, she remained alert. Before SRD went to make her statement, SRD had not seen JR for at least a month. Nor had SRD been in recent contact with her aunt, SR.

[57] SH said that SRD had said that she did not want to sit on AGR’s lap anymore in early 2017. JR was made aware of this request and was upset about it but did not speak to SRD about it.

[58] SH said that she was not prodding SRD during their conversation but did want to know what the problem was. She did not recall suggesting things to her but said that she may have asked about whether SRD was upset about her mother. She denied suggesting that AGR was the source of the problem.

[59] SH had to ask some questions to get SRD to speak about what was bothering her, but they were questions like “Is there something wrong?” or “Is there anything I can do to help?” SH did not bring up AGR in her conversation with SRD. It did not occur to her that AGR had done anything to SH because they had never had any problem with AGR or WR.

The Complaints of JER and JPR

July 12, 2017 Statements of JER and JPR

[60] JER and JPR were cross-examined by counsel for AGR on statements they made in July 2017.

[61] After SRD made her statement on July 11, 2017, which indicated that JER and JUR had also been the subject of sexual abuse at the hands of AGR, the authorities continued their investigation by interviewing both the following day, July 12, 2017. Again, the interviewer was Ms. Buckley of F&CS. JER, aged 9 at the time, was interviewed first, followed by JUR, who was then aged 8. It is a fair summary of both interviews that Ms. Buckley skillfully, but without leading, gave both girls every opportunity to say that something bad had happened to them, whether at the hands of AGR or anyone else.

[62] JER said that she had heard nothing about anything happening to SRD, even though they had a “circle of trust” where they could tell each other secrets, and was adamant that no-one had touched her private parts other than her mother. She said that if she had felt uncomfortable at any time she would have told her mother and she had never felt uncomfortable.

[63] JPR said that she liked AGR and had no problems or fears. She had heard nothing about SRD, whom she described as “my favourite.” She said that no-one inappropriate had seen or touched her private parts and she was not afraid of the adults in her family.

[64] Both girls presented as happy, bright and confident. They were attentive to the questions being put to them and were appropriately responsive. They did not appear to be hiding anything and seemed to want to answer Ms. Buckley’s questions accurately.

March 22, 2018 Statements of JLER and JPR

[65] As with SRD, the Crown tendered the prior video-recorded statements of JER (13 at the time of trial) and JPR (12 at the time of trial) pursuant to section 715.1 of the Code. Both adopted their prior statements of March 22, 2018, in which they gave evidence which was significantly different than the statements they made in July of 2017.

[66] This time the girls were interviewed by Det. Cst. Thompson. JER was 10 years on and JPR was 8 years old.

[67] JER told Det. Cst. Thompson that AGR had touched her, and then immediately, and unprompted, referred to her July 2017 statement. She said “when I saw you last time, I didn’t know – like, my mind was blank. I didn’t know – ‘cause I had a good day last time.”

[68] JER said that she and JPR were at the house every weekend. One weekend they were there with SRD. She said that AGR asked SRD to go into his bedroom, which she did. When SRD came back, she told JER and JPR that AGR had touched her, possibly putting his hand up her shirt.

[69] The same weekend AGR “pulled me downstairs” to the basement. SRD and JPR came running downstairs and AGR yelled at them, telling them to go back upstairs and shut up. They did and at that point AGR sat JPR on a desk and then put his hands in JPR’s pants, touching her vagina. She went back upstairs, eventually telling SRD what had happened “and then we called it the circle of trust because we never wanted to tell anybody what happened. And we never knew that it happened to [SR] or [JR] or anything, yet.”

[70] Later that day, AGR asked all three girls for a hug, which they did. JER said “I saw him squish, um, my, my sister and [SRD]’s butts all together.”

[71] JER said that AGR has not touched her since that incident. She said that she told no-one else about the incident until “two weeks ago” when she told SR. She did not know why she had done so after so much time had passed.

[72] JER confirmed that she knew about SRD’s allegation and that both her mother, SR, and her aunt, JR, had made allegations against AGR, although she knew no details of those allegations. SR told her of them after SRD went to the police.

[73] JPR described a time when AGR inspected a rash which was covering her whole body. He told her to take all her clothes off, which she did. He looked at her, touching her buttocks in the process, and remarked that “it’s everywhere.” He then told her to get dressed. JPR did so and then went downstairs and told SRD and JER.

[74] She described another time when AGR gave all three girls a hug and she could see that AGR was “squeezing [SRD]’s butt.” The girls talked about it afterward. There was another time when AGR “squeezed my butt.”

[75] JPR said that, when she gave her statement in 2017, and Ms. Buckley told her “I know some things about [SRD], and I was sort of confused when she said that. But now I’m not because I actually know what’s happening...” When Det. Cst. Thompson asked what JPR thought was happening, she said of AGR that “we’re not allowed to see him because he’s a sick person and he didn’t do nice things to us.” She then noted that SRD had told her that AGR had put his hand in SRD pants and touched her vagina when she was doing gymnastics with him.

An incident before the March 22, 2018 interviews

[76] JER told Det. Cst. Thompson that earlier that day her mother, SR, had been driving JER and JPR to school. On the way, they saw AGR driving his car. SR said some unkind things about AGR to the girls. JER could see AGR, who put up his fist and appeared to be angry. JPR said that AGR was raising his middle finger at them. Both girls said that he had his window down and was yelling at them. JER speculated that he was angry because “he had to go to jail and stuff about [SR] and [JR].” JER said that she began to cry and was screaming. JPR was also crying. JPR said that SR put up her middle finger to AGR. JER said that SR said to “chill out, we’re gonna deal with this” after which SR called the police, as well as JR and SH.

[77] In her evidence, SR testified that they saw AGR in traffic and that AGR was upset and calling her names. She and the girls were distraught. She decided that she wanted to make sure this did not happen again and she told JER and JPR that they were going to the police station to make a report.

JER In-chief

[78] In addition to adopting her March 2018 statement, JER testified in chief that she had said nothing in her July 2017 statement because she just had a “mind blank.” She did not know why but that she was confused about what was happening until she found out about the whole situation afterward.

[79] JER said that she eventually did reveal what AGR had done to her because she felt more comfortable doing so after SRD came forward. She said that she had told SRD what had happened to her in their “circle of trust” where they shared secrets. JER said that she did not know details about what had happened to SR and JR but said that she had come forward because she knew things had happened to them and that made her feel more comfortable disclosing her own experience. SR did not pressure her to say what AGR did to her, but JER disclosed to SR at her other grandmother’s house on the day that AGR had gone to jail – shortly after her first statement.

The Cross-examination of JER

[80] JER testified under cross-examination and confirmed the contents of her March 2018 statement. All the inappropriate conduct she described happened on the same day. She said that AGR took her to the basement and touched her vagina.

[81] JER maintained that she had “blanked out” the first time she was interviewed. She had not known why she was there. She said repeatedly that the fact that she had been having “a great day” that day, and was happy and comfortable, interfered with her ability to provide the information she had about AGR’s conduct. She said she had been very confused about why she was there.

[82] Later, JER felt more comfortable after SRD came forward and after she had learned that AGR had been arrested and had gone to jail. She disclosed to her mother that day. JER said that she knew that SR had been touched inappropriately by SR but said that she had not been influenced by her. SR told JER of her abuse at the hands of AGR shortly after the July 2017 statements and months before the March 2018 statements. JER told SR that AGR had touched her around the same time. She had also been told that JR had been sexually abused by AGR.

Re-examination of JER

[83] In re-examination, JER said that she learned of SR’s allegations after her 2017 statement and before her 2018 statement. As for why she was able to disclose in 2018, JER said she was less happy and “knowing I was going in to the police officer’s office to talk to me about that that sad thing I’d been talking about for awhile and my mum told me about what happened kinda made me like think about it more.”

JPR In-chief

[84] In addition to adopting her March 2018 statement, JPR testified in-chief that when she gave her statement in July 2017 she had not known why she was being interviewed: “I didn’t really have that mindset because no-one informed me of what, like, was really going on.” In March 2018, by contrast, both her mother and the officer had explained why she was there. She said that her mother told her after the first statement “this is what happened and this is, this is what he did, like, this is why you were there.”

The cross-examination of JPR

[85] In cross-examination JPR repeated that she had not said what she knew in July of 2017 because she had no idea why she was being questioned. Later, SR explained that they had gone in for interviews because SRD had complained to police. She said that she heard that AGR had been arrested and why. She said that SR never told her what happened to her in detail, just that AGR had touched her. SR told JPR that AGR checking her rash was not “normal”. SR also explained what sexual assault was.

The Evidence of Det. Cst. Amanda Thompson

[86] Det. Cst. Thompson was the investigating officer in this matter. She testified that she learned from SR that JER and JPR had more to say about AGR the day after AGR was arrested on August 8, 2017. She tried several times to arrange for new interviews for the girls but was unsuccessful. At one point a date was set for the interviews, but SR simply did not show up. It was not until March 22, 2018, when SR contacted the police and brought JER and JPR in that same day, that they were re-interviewed.

The Complaints of SR

Examination In-Chief of SR

[87] SR is the daughter of AGR and was 32 at the time of trial. She gave evidence before me and was distraught both in-chief and in cross-examination. Testifying was a difficult experience for her. Some of her evidence was confusing as a result, but she did communicate what she said had happened to her.

[88] She testified that she had been sexually abused by her father from the time she was 10 until she left home at age 15 and that she had also suffered emotional and verbal abuse. She said that she finally decided to tell the police of the sexual abuse she suffered at the hands of AGR when she learned that her niece, SRD, had done so.

[89] SR testified that AGR would tell her that she was not allowed to go anywhere unless she showed herself to him. She would pull down her pants and pull up her shirt as she sat on his lap. He would touch her vagina and her breasts. Although she said that the abuse started when she was 10, her first recollection of it was when she started working at a local restaurant and making money the summer when she was 12. AGR would say that she had to show him herself, that she had to “pay for it” otherwise he would not let her go out. The first time, he was sitting at his computer desk in the house. She stood in front of him. After that, the touching happened for years. After he touched her, he would tell her to go. She said that if she wanted to go outside, or when she wanted to go to work, or to pick up her pay, or spend a Friday evening out, she would have to show him first. He said that if she did not, bad things would happen. He told her not to tell anyone. When she questioned him about it, he would tell her not to ask questions. This kind of touching happened multiple times.

[90] SR described two other specific events. Once in her parents’ bedroom, when her brothers were outside and her mother was not at home, AGR told SR to remove her pants. He touched her vagina with his hand, then he licked her vagina. She told him to stop but he wouldn’t, and pushed her hand away when she tried to block him. He wanted her to touch his penis and told her to do so. He was wearing underwear and took his penis out. She touched it with her hand as he had asked, holding it for about a minute. She did not remember if his penis was hard or soft. The incident ended when the phone rang. When the phone rang she left and went to her bedroom. On her way out, she saw on the telephone that it was her mother’s number which was calling. At some point, AGR told her not to tell anyone what had happened. Bad things would happen if she did.

[91] SR said that she was 13 when this happened. Her little brother was still a toddler.

[92] The last incident occurred when she was 15, just a few months before SR left home. She was in a towel having just finished a shower. AGR told her to come downstairs. She and AGR laid down on the couch together and fell asleep. She said that they were not touching. SR was still asleep and still just in a towel when her mother returned home and found them on the couch. WR asked what was going on, but no one said anything.

[93] SR left home a few months later following an incident in which WR blamed her “for everything” and slapped her in the face. SR was almost 16.

[94] SR said that she never said anything to WR about the abuse because WR did not care. After she left, she did tell the father of her children, and ex-boyfriend, and her aunt about AGR’s sexual abuse, but did not go to the police until SRD complained that she had been abused.

[95] SR testified that she did not tell her children what had happened to her until after JER disclosed that she had been touched by AGR. That was a month or two after their first trip to the police station. JER was “acting weird” and told her father that something was wrong, eventually disclosing what AGR had done to her. After that, SR told JER that what had happened to JER had happened to SR too. SR spoke on occasion to both JER and JPR about it until they went to the police in March 2018. She said that she did not give her girls the details, but said only that she went through a sexual situation with AGR. She wanted them to know that she understood how they were feeling.

Cross-examination of SR

[96] Counsel for AGR focused his cross-examination of SR on topics which he argued undermine the credibility and reliability of SR’s evidence, or undermine the reliability of the evidence of JER and JPR.

SR’s Description of the Events at AGR’s Desk

[97] Counsel for AGR confronted SR with her differing accounts of the incidents at AGR’s desk. In her July 25, 2017 statement to the police, she said that the first incident involved AGR putting his hands down SR’s pants while she was sitting on his lap. She gave similar evidence at the preliminary inquiry, where she also said that it was AGR who pulled her pants down, not SR herself, and that each incident at the desk was “pretty much the same.” The only time she reported moving her clothing herself was when AGR required her to prove to him that she was on her period when she used that as a reason for avoiding his touches.

[98] In response, SR said both that she was either standing or sitting and that she was standing at the time of the first incident. She said that it was the setting that was important. She insisted that she had said previously that AGR had her lower her pants and raise her shirt, but she was not asked and did not say to whom she gave that description. She said that there were many incidents and that she was trying her best but that she could not remember every detail. She reminded counsel that she was a child at the time and wondered whether it mattered who moved her clothing. The important point was that her clothing was moved.

The Number of Incidents

[99] SR said that the incidents of sexual touching were weekly. In cross-examination, counsel suggested that if this were true the number of incidents would be greater than 150. SR said that it did not happen 150 times, or 100 times, but “maybe” it was 50 times. She said that she did not count and could say only that it was “multiple times.” When counsel put her testimony from the preliminary inquiry to her, where she said that there were “six or seven” incidents, SR said only that it happened multiple times.

SR’s Description of the Bedroom Incident

[100] SR said that during the incident she described in her parents’ bedroom, AGR touched her vagina first with his hand, then touched her vagina orally, then had her touch his penis. She touched his penis for a minute but could not remember if it was erect. The incident ended when the phone rang and her brothers came home. She clarified that AGR was not clothed only in his underwear.

[101] Counsel took SR to her 2017 statement to the police, where she said that AGR pulled down his pants and made her play with his penis first. It was erect. He was wearing pants but no shirt. AGR then told her to lie down at which point he took her clothes off and touched her vagina orally for two or three minutes until the phone rang. AGR answered it. Confronted with this description of the event, in which its various parts are said to have occurred differently and in a different order, SR said that she was trying her best and that “it happened” and “I know it happened.” She said that when the phone rang whatever was happening stopped.

[102] Counsel also put SR’s preliminary inquiry testimony to her, where she said that AGR’s pants were removed completely and that she could not remember if he pulled his penis out. She also said that she knew it was her mother on the phone because she heard AGR speaking to her and that she left the bedroom and went to the living room and kitchen.

SR’s Age at the time of the Incidents

[103] At various times, SR has given different ranges for the times that she was touched by AGR. These varying ranges, all different but all starting no earlier than when SR was 10 years old and ending no later than when she was 15, were put to SR. Counsel suggested that SR could not say in what time frame the sexual abuse had occurred, SR said that she had given a time frame.

[104] With respect to the bedroom incident, at the preliminary inquiry she said that she was 12 or 13 years old when that happened, but later acknowledged that this age range did not make sense given that her youngest brother was born at around that time. In other words, the bedroom incident must have happened later since her little brother was a toddler at that time. At trial she said she was simply trying to get the timeline right.

When and what did SR Disclose to her Daughters?

[105] SR acknowledged that she had spoken to her daughters, JER and JPR, once they disclosed to her what AGR had done to them. Counsel pointed out that at the preliminary inquiry, SR testified that JER disclosed to her just before March 22, 2018, when JER and JPR made their second statements to the investigators. SR agreed that she told Det. Cst. Thompson of that disclosure shortly thereafter. She said that she could not remember exact dates.

[106] In SR’s July 25, 2017, statement, she told the police that “my girls know everything” including why they were not going to see AGR again. She said that they knew of SRD’s allegations and that similar things had happened to SR. In response, JER and JPR told SR that nothing like that had happened to them.

[107] At the preliminary inquiry, SR testified that JER disclosed touching by AGR three weeks after her initial statement to the Ms. Buckley, in August of 2017. SR said at trial that she could not remember the exact dates, but she did not wait to report to this to Det. Cst. Thompson. She said that JER gave her second statement once she felt comfortable doing so. She said that she did what was in the best interests of her children.

Re-examination of SR

[108] In re-examination, SR said that even after seeing the inconsistencies put to her by counsel for AGR, she had no doubt as to whether the events she described had happened.

[109] Asked if she could remember whether she was sitting on AGR’s lap or standing before him when he touched her at his desk, she said that “they both happened.”

Analysis of the Evidence

The allegations made by SRD – Count 5 of the Indictment

[110] In her video-recorded statement, SRD presented as bright and alert but anxious about what was going to happened to AGR as a result of her report to the police. She did not relish being present but answered questions straightforwardly, if a bit hesitantly when the questions got to the core of her complaint. The interview was professionally conducted by Ms. Buckley. SRD was simply given an opportunity to tell her story after having been reminded of the importance of accuracy and telling the truth.

[111] At trial, SRD was, in my view, a good witness who was trying her best to tell the truth and give an accurate account of what had happened to her. She listened well to questions put to her, asked for clarification when she needed it, and withstood cross-examination largely unshaken, standing up to counsel, and reacting with some vigour when challenged and where appropriate. Nothing about her answers suggested that she was dissembling. Nor did she display an animus to AGR. In fact, as I have said, her video recorded statement she showed affection for AGR and concern about what was going to happen to him.

[112] Counsel for AGR questions both SRD’s credibility and her reliability, and attacks both on several grounds, to which I turn now.

[113] In my view, there is no evidence that SH, who testified in a straightforward and direct manner, in any way improperly influenced the statement that SRD made to Ms. Buckley. She saw that her stepdaughter was unhappy and, like any reasonable parent, she wanted to know why. She asked questions designed to get SRD to open up to her, which she did. SH said that she was surprised to learn what SRD had to report, since it had not occurred to her that AGR might be the problem. I see no basis for doubting the credibility or reliability of SRD’s evidence by reason and any suggestion of influence by SH.

[114] Similarly, there is no evidence that SRD was in any way influenced by knowing of JR’s allegations against AGR. There is no evidence from JR, no evidence about what exactly was alleged, vague evidence about when SRD learned of the allegations from LD, no evidence that SRD knew of any allegations in any detail, and a vigorous denial of any such influence by SRD herself, which appeared to be genuine and spontaneous to me. Moreover, there is evidence from SH that SRD had limited contact with JR and that she had not seen JR for at least a month when she disclosed that AGR had touched her.

[115] As for counsel’s suggestion that SRD’s description of the events of the last weekend that she spent at the house did not allow any opportunity for AGR to do the things SRD alleged, I note that all the evidence that is before the Court on this point is that of SRD. She maintained that she was hugged three times during that weekend and that she sat on AGR’s lap and was fondled once. SRD said that those four things happened and did not accept counsel’s suggestions that LD’s eagerness to play with his metal detector, the number of people staying at the house that weekend, or the time available before leaving for McDonald’s on Saturday or for home on Sunday prevented AGR from touching her as she described. There is no other evidence. Each of the hugs was a couple of minutes in duration. Quite reasonably, SRD could not say exactly when these events happened, but there is no evidence to suggest that there was no opportunity over the course of the weekend for her to be touched as she described.

[116] Part of counsel’s submission with respect to this last weekend at the house is that SRD gratuitously added in an allegation that AGR touched her vagina while she sat on his lap on that weekend during her statement to Ms. Buckley. SRD told Ms. Buckley that AGR touches her when she sits on his lap. Ms. Buckley then asked “So tell me what happened the last time you sat on his lap. … Which was two or three days ago?” SRD’s answer was “Mm-hmm.” She had not previously said when it was that she last sat on his lap. It is possible that Ms. Buckley’s leading question suggested an answer that SRD simply adopted. In any case, SRD then provided details of the last time which she confirmed at the preliminary inquiry.

[117] It may be that SRD is mistaken about the date or time of the last time she sat on AGR’s lap (although I do not think that this is necessarily so), but nothing about the way this disclosure was made suggests to me that she is lying or mistaken about the nature of what happened to her. She provided the details unprompted by Ms. Buckley and confirmed them again at the preliminary inquiry. SRD may have left this allegation out of her evidence in cross-examination but said in re-examination that she had simply forgotten the lap incident. In my view, this portion of the evidence does not tell against SRD’s credibility. To paraphrase Justice Wilson in Regina v. B.G., SRD may not have been able to communicate the “when” of the event with exactitude, but this does not mean she misconceived what happened to her and who did it. This is especially so given that her evidence was that AGR touched her many times while she sat on his lap. Even for an adult witnesses the potential for events to blur and run together is significant.

[118] Counsel for AGR suggests that SRD’s description of the “weird hugs” just cannot be true. He argues that it is physically impossible, or is highly improbably, that AGR put his hands in SRD’s pants while holding her in the air. He also says that her story evolved under cross-examination when SRD was challenged about how AGR could have done what she alleged.

[119] It is true that the touching SRD describes seems that it would be difficult to execute but bearing in mind the age of the witness, and the age that she was at the relevant times, it seems to me that SRD has remembered the key points about what happened to her: when she started to develop breasts, AGR developed an interest in her and wanted hugs. He complained when the hugs were not good enough. When they were hugging he would lift her up. He would touch her buttocks and her vagina and then would fondle her breasts. Whether all of this happened in the air, as SRD said, and whether he always got his hands inside her clothing, is not the crucial point. The key point on which she was unshaken is that AGR touched her three private areas and used requests for hugs as a way to get close to her.

[120] I do not think that SRD’s description of these hugs tells against her credibility or reliability. First, I do not think that what she describes is “impossible.” SRD said that the hugs lasted for a “decent amount of time.” It does not seem to me that it would be impossible for a grown man to hold an 8 – 10 year old girl while putting one of his hands in her pants. Second, the fact that SRD had difficulty describing the mechanics of the hugs was apparent from her first interview with Ms. Buckley, who quite properly did not make suggestions about how the hugs might have been executed. When Ms. Buckley asked SRD to explain how AGR touched her vagina while she was in the air, SRD said that she did not know how to explain it. Her answers on the topic reveal a child unable to communicate what had happened. That SRD might provide further information or amend her evidence under further and more pointed questioning seems natural, not dishonest. It may be that SRD’s description of the hugs is wrong or unreliable in some way or ways, but I am satisfied that this flaw in her evidence, if it is a flaw, does not detract from the fundamental point: AGR touched her inappropriately on three parts of her body.

[121] Counsel for AGR also notes that SRD’s statement to Ms. Buckley that she had discussed the weird hugs with JER and JPR is not borne out by the statements which they gave to Ms. Buckley the very next day. He says that this tells against SRD’s credibility. It is true that her cousins do not corroborate SRD on this point. In their statement in March 2018, they describe a discussion with SRD which description is different than the description offered by SRD.

[122] SRD and her cousins were at the house at the same time for a sleep over. They spent time together and were fond of each other. They described time spent with each other talking and listening to music, among other things. There was clearly opportunity for a discussion about AGR, but, if it happened, JER and JPR either did not remember it or did not think to tell Ms. Buckley about it in July 2017, despite questions which might have brought such a discussion to mind. SRD’s evidence about the discussion she had with her cousins is confusing to be sure, especially about who did the talking and exactly what was confirmed by her cousins, but it seems that SRD told them what happened to her first.

[123] As I will explain below, I have a reasonable doubt about the allegation made by JER, which doubt is generated in part by the stark differences between her two statements and by the opportunity for things to have been suggested to her and to JPR by others, SRD included. If nothing inappropriate ever happened to JER and JPR, then it is possible that these two girls may not have appreciated the significance of what SRD was telling them. Or it may be that SRD did not tell them despite what she said, or that she told them less than she reported to Ms. Buckley. In any of these events though, as I have said, I have no concern that SRD was influenced by anyone else to complain about AGR’s conduct. I do not think that the failure of JER and JPR to confirm this part of SRD’s evidence undermines the core of that story.

[124] I am satisfied beyond a reasonable doubt that SRD was touched sexually by her grandfather more than once over a period of time that started at some point before February of 2017 and lasted until the weekend before she gave her statement to Ms. Buckley in July 2017. SH fixed the date of SRD’s complaint about sitting on AGR’s lap in January or February of 2017. I accept SRD’s evidence that AGR had been touching her when she sat in his lap for some time before she told SH that she did not want to sit in AGR’s lap anymore. This is consistent with SRD’s evidence that AGR started touching her when she was 8 years old.

[125] In addition to touching SRD’s vagina while she sat on AGR’s lap or beside him, I find that AGR touched SRD’s buttocks, vagina and breasts during and/or after hugging her, and that he touched her vagina while she was doing “gymnastics” with him. The areas touched make apparent that the touching was for a sexual purpose and I so find. SRD was obviously, to the knowledge of AGR, under the age of 14. The Crown has proven beyond a reasonable doubt all of the elements of the offence charged in count 5 of the indictment, sexual interference against SRD. I find AGR guilty on that count.

The Allegation made by JER – Count 6 of the Indictment

[126] I am not satisfied that the Crown has proven beyond a reasonable doubt that AGR touched JER’s vagina.

[127] There are three related reasons for my doubt. First, the differences between the statements made by JER and JPR in July 2017 and those which they made in March of 2018 are stark. In their first statements, the girls were given every opportunity to say that something bad happened to them – and did not. This is not a case of being asked the wrong questions, or of questions that were omitted but should have been asked. Short of suggesting possibilities, which would have been improper, Ms. Buckley asked every question one would expect when trying to determine whether a young person has been the victim of some kind of abuse.

[128] I do not accept the later claims that JER was too happy, or that JPR did not know what was happening, as explanations for the failure of JER and JPR to reveal then what they revealed later. JER’s explanation, in particular, sounded rehearsed. I am aware, of course, that the disclosure of sexual abuse can come in many forms and that there is no single or right way of revealing to others that one is a victim. But this is not simply a case of delayed disclosure, or disclosure that is made piecemeal, or of confusing disclosure that is later clarified. Here, the denials of the two girls that anything bad had happened to them, or that anyone had touched their private parts, is unequivocal. The two sets of statements simply cannot stand together.

[129] Second, between their first and second statements, JER and JPR became aware of SRD’s complaint, of their mother’s allegation, of their aunt’s allegation, and of AGR’s arrest. SRD says that she spoke to JER and JPR after she gave her July statement. SR also says that she spoke to her daughters about her experience with AGR. Both JER and JPR acknowledged as much in their evidence before me.

[130] It seems to me that this is a case where I cannot discount the possibility that the second statements of JER and JPR are inadvertently tainted by the communications they had with their cousin and their mother. I draw no conclusion that there has been collusion, but inadvertent tainting cannot be eliminated and, indeed, it seems both likely in this case and likely that it actually affected the evidence of these witnesses (see Regina v. C.G., 2021 ONCA 809 at paras. 30 – 40), given the serious differences between the two sets of statements.

[131] Third, these concerns are amplified by the circumstances in which JER and JPR gave their second statements. Det. Cst. Thompson testified that she learned from SR in August of 2017 that JER and JPR may have more to say about AGR, but that her efforts to have SR bring the girls in for further interviews were repeatedly unsuccessful. It was not until SR had her unpleasant encounter with AGR on the morning of March 22, 2018 that she finally brought the girls to headquarters. That encounter included clear expressions of animus for AGR, and SR’s assertion to her daughters that “we’re gonna deal with this” after which she immediately contacted the police. It cannot be safely concluded the statements given by JER and JPR that afternoon were unaffected by this event, in which their mother, whom they both love dearly, displayed her animus against AGR.

[132] For all these reasons, I conclude that it is unsafe to rely on the evidence of JER and JPR insofar as it suggests that they were touched sexually by AGR.

[133] Accordingly, I find AGR not guilty of count 6 in the indictment, sexual interference against JER.

The Allegations made by SR – Counts 1 – 3 in the Indictment

[134] SR was a difficult witness. As I have said, SR was distraught and emotional on the witness stand, was in tears almost immediately after taking the stand, and at times was combative with counsel for AGR. As a result, it was occasionally difficult to follow SR’s evidence. While I caution myself against placing undue reliance on the demeanour of any witness (see, for example, Regina v. C.S., 2020 ONCA 752, at paras. 63 – 68), I observe only that SR’s distress and unhappiness was consistent with the evidence she gave and the sad story of her life before and after she left home as a teenager.

[135] More important, of course, is an assessment of her evidence. Counsel for AGR has made forceful submissions respecting the weaknesses in SR’s evidence in several different areas, all relating to prior inconsistent statements made by this adult witness about events which occurred roughly two decades earlier when she was a child. In my view, having regard to the passage of time and the age of SR at the time of the alleged events, the various inconsistencies in her evidence are not dispositive of her credibility, nor of her reliability on the key points.

[136] To be sure, there are reliability concerns with respect to SR’s descriptions of detail, but the core of her evidence, “what happened to [her] and who did it” (Regina v. B.G., at pp. 54 - 55) remains unshaken.

[137] SR gave differing descriptions of her encounters with AGR at his computer desk. She said that she stood before him and moved her clothing before he touched her vagina and breast but had earlier reported sitting on his lap while he moved her clothing and touched her. She moved her clothing herself only when trying to convince AGR that she was on her period. In cross-examination, she maintained that she had said previously that she had stood before her father as she described. In any case, the setting, the rough time period, the areas touched, and the person who touched them, remained the same.

[138] I note, however, that when Crown counsel first asked SR to say what sexual abuse she had suffered at the hands of AGR, she said that he made her sit on his lap. Moreover, once in cross-examination and then again in re-examination, SR said that the touching happened when she was sitting and when she was standing.

[139] The core of this evidence is that AGR touched his young daughter’s breasts and vagina and that he did so repeatedly some 20 years ago. Bearing in mind that “children may experience the world differently from adults” (Regina v. R.W., at para. 24) “a flaw, such as a contradiction” (Regina v. B.G., at pp. 54 – 55) may be of diminished significance. The inability to “recount precise details” (Regina v. B.G.) does not disqualify the evidence of an adult testifying about events which occurred when she was a girl. While SR’s description of the mechanics of the touchings is not as peripheral as evidence about time and place, I am satisfied that these contradictions do not detract from the core of her story, which I accept, that her father touched her vagina and breasts, that he did so on multiple occasions, and that he told her not to tell anyone.

[140] None of the other key areas of cross-examination causes me significant concern about SR’s evidence. As for the number of times she was touched while at AGR’s desk, although she had said the touching was weekly in-chief, she immediately retreated from that evidence when counsel pointed out that that would mean there were more than 150 such events. In other words, she was not deliberately exaggerating. Neither did it happen 100 times. While she said it might well have been 50 times, she did not commit to that number, saying only that she had been touched multiple times and that she had not counted the incidents as they were happening. Her earlier estimate of 6 or 7 such events may be more accurate, but it still qualifies as “multiple times.” I am satisfied that there were multiple touchings. It is understandable that the witness was unable to say how many.

[141] With respect to the differences in SR’s descriptions of the bedroom incident, these inconsistencies do not detract from SR’s credibility or from the core reliability of her story. Indeed, the order in which the sexual violations of her took place seems to me entirely insignificant, as do her lack of memory about whether AGR’s penis was hard or soft, or exactly what he was wearing, or who removed SR’s clothes, or how she knew it was WR on the phone, or where she went when she left the bedroom. The core of the story is the same: in her parents’ bedroom SR’s vagina was touched by AGR with both his hand and his mouth and SR touched AGR’s penis at his invitation; the event ended when the phone rang because WR was calling AGR. I accept the core of SR’s evidence respecting this matter.

[142] SR was cross-examined about the fact that she could not say with precision how old she was, or what the “time frame” was, when she was touched by AGR. It is true that SR gave differing time frames for the events, but I am satisfied on the evidence that the touching began at least when she was 12 years old (since SR is able to relate that age to the age at which she began working and was leaving the house for her job) and ended when she left home when she was 15, as she testified.

[143] The one area of uncertainty I have about the dates of events is the date of the bedroom incident. I cannot say on the evidence before me whether that incident occurred before or after SR was 14 years old. She testified that her youngest brother, who is 12 years younger than SR, was a “toddler” at the time of the bedroom incident. If he was a 1-year old toddler at that time, SR would have been 13 years old. If he was a 3-year old toddler, she would have been 15 at the time of the incident.

[144] One last portion of the evidence requires comment. SR’s description of the incident in which she and AGR fell asleep on the living room couch while she was wearing a towel does not reveal any criminal contact on the part of AGR. SR said that they did not touch each other.

[145] On the basis of this assessment of the evidence, I am satisfied beyond a reasonable doubt that AGR touched SR for a sexual purpose both before and after she turned 14 and that he was aware of his daughter’s age at all times. Count 1 in the indictment, sexual interference (Criminal Code, section 151), requires proof that AGR touched SR for a sexual purpose at a time when she was under the age of 14. I find AGR guilty of that offence.

[146] Count 2, sexual exploitation (Criminal Code, section 153), requires proof that AGR was in a position of trust towards SR and that he touched her for a sexual purpose while SR was between the ages of 14 and 18. As her parent, AGR was in a position of trust towards SR when he touched her after she turned 14 and before she left home at almost age 16. I find AGR guilty of this offence.

[147] Count 3, invitation to sexual touching (Criminal Code, section 152), requires proof that AGR, for a sexual purpose, invited SR to touch him at a time when she was under the age of 14. As I have said, I cannot say beyond a reasonable doubt how old SR was at the time of the bedroom incident when AGR asked her to touch his penis. Accordingly, AGR is acquitted of this count.

Conclusion

[148] In summary, in connection with the complainant SR, I find the accused guilty of sexual interference and sexual exploitation, but not guilty of invitation to sexual touching.

[149] With respect to the complainant SRD, I find the accused guilty of one count of sexual interference (count 5). At the request of the Crown, I find AGR not guilty of the overlapping count (count 4).

[150] I find the accused not guilty of sexual interference against the complainant JER.

I.R. Smith J.

Released: December 10, 2021