R. v. D.M., 2022 ONSC 235

Court File and Parties

COURT FILE NO.: J-154/19 DATE: 2022-01-10

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – D.M.

Counsel: Carly Eastwood, for the Crown Jag Virk, for the Accused

HEARD: November 29 and 30, 2021

Reasons for Judgment

Kurz J.

Introduction

1The accused, D.M., stands charged with historical sexual exploitation and sexual assault of his then 16-year-old niece, T.A. The indictment charging D.M. states:

D.M. stands charged:

that on or about the 27th day of August in the year 2011, at the City of Burlington and/or elsewhere in the Province of Ontario, while being in a position of trust or authority towards T.A., a young person, did for a sexual purpose, touch directly or indirectly the body of T.A., a young person, with a part of his body, to wit: his hands, contrary to section 153 of the Criminal Code of Canada

AND FURTHER:

that D.M. on or about the 27th day of August in the year 2011, at the City of Burlington and/or elsewhere in the Province of Ontario did commit a sexual assault on T.A. contrary to Section 271 of the Criminal Code of Canada.

2D.M. pleads not guilty. Through counsel, he denies that the events asserted by the complainant, T.A., ever occurred. He contends that they are fabricated. He argues that the Crown has failed to prove either alleged offence beyond a reasonable doubt.

3This trial had two witnesses. The complainant, T.A., was the sole witness for the prosecution. D.M.’s daughter, T.H., was the sole witness for the defence.

4The Crown argues that the evidence of T.A. is credible and reliable. It proves D.M.’s guilt of both charges. It should not leave me with a reasonable doubt as to D.M.’s guilt of either charge. The Crown adds that the evidence of T.H., both in itself and within the context of all other evidence, should also not leave me with a reasonable doubt as to D.M.’s guilt of either charge.

5D.M. argues that the evidence of T.A. cannot be believed. In the alternative, the evidence of his daughter, T.H., either alone or combined with what he contends to be problems with the evidence of T.A. herself, are sufficient to leave the court with a reasonable doubt as to his guilt.

Credibility and Proof Beyond a Reasonable Doubt

6Since credibility, particularly that of the complainant, T.A., is at issue and because D.M. called evidence on his behalf, the principles of R. v. W. (D ) , [1991] S.C.J. No. 26 (S.C.C.) apply, albeit on a modified form. In the circumstances of this case, that means that:

1. First, if I believe, based on the evidence offered by T.H., that D.M. did not commit the offences for which he is charged, I must acquit him.
2. Second, even if I do not believe, based on the evidence offered by T.H., that D.M. did not commit the offences for which he is charged, but I am left with a reasonable doubt regarding any essential element of the alleged offence, I must find him not guilty.
3. Third, even if T.H.’s evidence does not leave me with a reasonable doubt about D.M.’s guilt, if after considering all the evidence offered at this trial that I do accept, I am not satisfied beyond a reasonable doubt of his guilt, I must acquit.

7In considering this test, I must instruct myself that:

1. D.M. is presumed to be innocent unless and until the Crown proves his guilt beyond a reasonable doubt.
2. That presumption of innocence means that D.M. began this trial presumed to be innocent of the specific crimes for which he is charged throughout this trial. That presumption is only defeated if and when the Crown satisfies me that D.M. is guilty of the offences with which he is charged, by proving every essential element of the offence beyond a reasonable doubt.
3. The onus of proof never shifts away from the Crown. D.M. is not required to present any evidence. He does not need to prove anything. In particular he does not need to prove that he is innocent of the charges which he faces, or that he is guilty of less serious charges than the ones he faces.
4. The Crown’s obligation to prove every element of the offence beyond a reasonable doubt applies to each element of the offence but not to individual items of evidence introduced at trial.
5. If the Crown fails to prove any element of an offence with which D.M. is charged beyond a reasonable doubt, I must acquit him of that charge.

8Proof of likely or probable guilt is not proof of guilt beyond a reasonable doubt. Even if I find that D.M. is likely or probably guilty, that finding is insufficient to convict him because it fails to reach the standard of beyond a reasonable doubt.

9A reasonable doubt is one based on reason and common sense. It is logically connected to the evidence or lack of evidence. It is not an imaginary, far-fetched or frivolous doubt. Nor is it proof with absolute certainty. It is nearly impossible to prove anything to that standard and the Crown is not held to it. Nor is the Crown required to negative every conjecture to which circumstantial evidence might be consistent with the evidence of the accused: R. v. Paul , [1977] 1 S.C.R. 181 , per Richie J. for the majority.

10But, as Iacobucci J. stated in R. v. Starr , 2000 SCC 40 , [2000] S.C.J. No. 40 (S.C.C.) at para. 242 "the reasonable doubt standard ... falls much closer to absolute certainty than to proof on a balance of probabilities".

11If, at the end of the case, after considering all of the evidence, I am sure that D.M. committed an offence with which he is charged, I must convict him of that charge, since I will have been satisfied of his guilt beyond a reasonable doubt. However, if, based on all of the evidence, the credibility of any witness who testified at trial, or the reliability of that evidence, I am left with a reasonable doubt as to whether D.M. committed that offence I must acquit him of the charge.

12As Harris J. of the Ontario Court of Justice described the reasonable doubt standard in R. v. Ali , 2021 ONCJ No. 3394, at para. 13, citing the decision of the Supreme Court of Canada in R. v Lifchus , [1997] S.C.J. No. 77 (S.C.C.) at para. 13 :

This is a tough standard and it is so tough for very good reason. As Cory J said in R. Lifchus :

The onus resting upon the Crown to prove the guilt of the accused beyond a reasonable doubt ... is one of the principal safeguards which seeks to ensure that no innocent person is convicted.

13In assessing the evidence that I have heard, it is important to note the differences between credibility and reliability, particularly since D.M. challenges both the credibility and reliability of the complainant. In R. v. Sanichar , 2013 SCC 4 ,the majority of the Supreme Court of Canada adopted the dissent of Laskin J.A. of the Ontario Court of Appeal, in R. v. H.P.S., 2012 ONCA 117 , which included the following instructions about the difference between credibility and reliability:

69 I accept that reliability is not the same as credibility; that is well established. Credibility has to do with the honesty or veracity of a witness' testimony. Reliability has to do with the accuracy of a witness' testimony. Many cases of mistaken identification have shown that a credible witness may give unreliable evidence.

70 The reliability of a witness' testimony is often gauged by the witness's ability to observe, recall and recount the events at issue: see R. v. H.C. , 2009 ONCA 56 , 241 C.C.C. (3d) 45 , at para. 41 . The passage of time may have an effect on the witness' ability to do so accurately.

14That being said, a finding that the complaint is credible is not, in itself sufficient to support a conviction. As Findlayson J.A. wrote for the Ontario Court of Appeal in R. v. Stewart , [1994] O.J. No. 811 (Ont. C.A.) , at para. 19 regarding the possibility that a honest and sincere witness can give unreliable evidence. He wrote that the issue:

is not the sincerity of the witness but the reliability of the witness's testimony. Demeanour alone should not suffice to found a conviction where there are significant inconsistencies and conflicting evidence on the record.

15Here, the only narrative of the events alleged comes from the complainant. Thus, her credibility and reliability are crucial to my determination of the facts of this case. Both were attacked by D.M.’s counsel. Further, as set out above, some elements of the complainant’s evidence were contradicted by evidence offered by T.H.

16The complainant was 16 years old at the time of the alleged offences. That was ten years ago. She is now 26 years old. In considering those facts, I instruct myself that, as stated by the Supreme Court of Canada in R. v. W.(R.) , [1992] S.C.R. 122, at para. 22:

26 It is neither desirable nor possible to state hard and fast rules as to when a witness's evidence should be assessed by reference to "adult" or "child" standards -- to do so would be to create anew stereotypes potentially as rigid and unjust as those which the recent developments in the law's approach to children's evidence have been designed to dispel. 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.

17That being said, as set out below, I find that the evidence of the complainant is both credible and reliable. D.M. raised some questions about some elements of her evidence, but they are mainly collateral and/or peripheral to the events about which she testified. They do not undermine her basic narrative of the events to which she testified. For reasons set out below, I find beyond a reasonable doubt that D.M. is guilty of sexually assaulting T.A. on or about August 17, 2011. However, I find that the Crown has failed to prove an essential element of the charge of sexual exploitation against T.A. and I find him not guilty of that charge.

Evidence of the Complainant

18A French language interpreter was sworn in to assist T.A., but she rarely utilized the interpreter. She testified as follows.

19T.A. is the niece of the accused, D.M.. Her mother, K.S., is the sister of D.M.’s wife, R.M. On August 26, 2011, T.A, her mother, and her godmother, J.W., travelled from Quebec to Burlington, Ontario for the wedding of D.M.’s son, R. On the night of August 26-27, 2011, T.A., K.S., and J.W., stayed at the home of D.M. and his wife, R.M., in Burlington, Ontario (“the home”).

20D.M. and R.M. lived in an apartment of the basement of the home. Their daughter, T.H., lived upstairs with her husband and children. T.A. thought that the home belonged to D.M. and R.M. But, as stated below, T.H. testified that she and her husband own the home and allow her parents to reside in a basement apartment of the home.

21T.A. was 16 years old at the time of the alleged incidents. She would turn 17 in four months. At that time, she saw her aunt R.S. and uncle D.M. once or twice per year. T.A. stated that she had never been at the home before, but had been at their previous home. T.H. later testified that the home actually belonged to herself and her parents and that T.A. had been to the home at least once before.

22T.A.’s. group arrived at the home mid-day on November 26, 2011. She spent the day outdoors and in the home’s pool. There were some 50 or so people at the home that day. If there was one person with whom she “hung out” that day, it was her cousin, A. A is T.H.’s daughter. She is just a few months older than T.A. A lived at the home and had her own bedroom. A’s boyfriend was present as well. T.A. also “hung out” with her younger cousin, I, A’s brother, that day.

23Later on, the party became one that T.A. described as being more for the adults. While she drank no alcohol that day, T.A. assumed that all of the adults were imbibing “a bit”. She does not recall a specific interaction with D.M. that day but assumes that she had one, as part of saying hello to everyone. She did not notice anything about D.M.’s demeanor that night at the party.

24T.A. went to bed early that evening, at about 11 p.m. (although she did not look at a clock at the time). At that time, the adult party was continuing. She went to bed after her mother K.S., told her that it was time to do so. She went to sleep on one of the two couches in the living room of the basement apartment of the home (the “living room”). She slept there and not the room of her cousin A because her mother told her to do so. Her mother and J.W. were going to sleep in the bedroom of the basement apartment (the “bedroom”), next to the living room. T.A.’s mother wanted her to sleep on one of the couches because they were going to get up early the next morning to go to the hotel at which they would be staying, to get ready for the wedding. It would be easier for her to pack and go if T.A. were sleeping near to her mother, on the couch.

25T.A. did not recall whether A asked her to sleep in her room.

26T.A. went to the basement on her own, chose one of the two couches to sleep on, and went to sleep.

27T.A. drew a sketch of the basement of the home. It shows that the bedroom is to the left of the stairs to the basement. To the right of those stairs is the living room, containing two couches and a television. Also, to the right of the stairs is the door between the living room and the basement’s kitchen (the “kitchen”).

28On T.A.’s sketch, the two couches are to the far right of the door to the bedroom and past the stairs to the basement. The two couches are perpendicular to each other, at the end of the living room furthest away from the bedroom door. The end of one couch was at a right angle to the end of the other. The two couches are situated at the bottom right hand corner of the sketch, with one parallel to the bottom edge of the page, while the other is parallel to the right-hand edge of the page. One end of each couch is close to the bottom right hand corner of the sketch.

29T.A. estimated that the couch which was closest to the bedroom door (which she labelled “Couch 1”) was 4-5 meters from that door, while acknowledging that it was hard to give a distance. In cross-examination, T.A. added to her sketch to show where the basement’s bathroom (“the bathroom”) was located: beside the kitchen and what appears to be beneath the stairs.

30After retiring from the party, T.A. laid down on “Couch 1”, whose foot faced the bedroom door. Her head was on the other end of that couch, furthest from the bedroom door and closest to the other couch (which she labelled as “Couch 2”). Couch 2 was just behind the place that she had laid her head and was perpendicular to Couch 1. To T.A.’s right as she lay on her back on Couch 1, at the other side of the living room, were the door to the kitchen, and to that door’s right, a television. In the sketch, the television was in in middle of the wall, opposite Couch 1.

31As she laid down in Couch 1, T.A.’s head was slightly elevated because she had placed it on a pillow that sat on the arm of the couch. She was wearing a long-sleeved pajama top and pajama pants. On cross examination, she said that she always wears a bra to bed. She had a blanket.

32At around midnight, T.A. was awoken by the adults, who were coming down the stairs and in the basement’s bedroom. She heard them arguing and joking while trying to blow up mattresses in the bedroom. About five to ten minutes after the adults came down the stairs, T.A. heard the people in the bedroom tell D.M. to get out because he was arguing or joking with other people. She had heard him speaking to the other adults in the bedroom but did not pay attention to what was said.

33When D.M. came into the living room, the bedroom door was not completely closed; it may have been a little bit open.

34When D.M. walked into the basement living room, he noticed T.A. , who was lying on Couch 1, and spoke to her. He started by asking her if she wanted a drink. Trying to be polite, T.A. said no, she is trying to sleep. D.M. went to the kitchen and turned on the light. T.A. noted that he was in his underwear. It was short and grey and not like long boxers. He was wearing nothing else.

35D.M. tried to get T.A. to take a shot of liquor (he was “insisting”) and continue partying with him. He asked her questions about whether she would usually “party on” and what she likes to drink. T.A. was not very comfortable with this line of questioning and said, “no thank you”.

36While this occurred, D.M. was standing at the cupboard of the kitchen, beside the door. That cupboard contained alcohol. There was a light on. D.M. was insistent in asking T.A. a few times whether she wanted a shot of alcohol and she had to say no a few times. The exchange took just a few minutes. She remained on Couch 1. She did not see him consume any further alcohol. But she felt that he was drunk because he wanted to continue to party and drink. She could not estimate the level of his drinking. She heard nothing from the basement bedroom.

37D.M. then went to Couch 2. The lights were off in the room. He sat on the middle of Couch 2 and turned on the TV while she was trying to sleep. He said nothing at first when he sat down, but began to change the channels. She was trying to sleep. He spoke a bit to her. It was small talk, not exactly a conversation. She did not hear it.

38While changing channels, D.M. passed by what T.A. described as a “porno” channel. But he continued changing the channels. T.A. said that she noticed this at the side of her eye. She noticed he kept going back to the “porno” channel until he turned it on.

39T.A. testified that she knew that the show she was watching was pornographic because she first saw a barely dressed blond woman, who then was undressed and sitting on a swing. When D.M. returned to the station, there was a naked man in the scene, facing the naked woman.

40T.A. says that as the channel remained displayed on the screen, she looked at D.M., as a signal to show that she saw what was on the screen. He, in turn asked questions of her. He asked how she felt when she saw this, whether she liked seeing it, and if she’d done things like that. She said no, without elaborating. She was shocked that he asked her these questions. She told him to “change it”, following which, he changed the channel. Again, she heard nothing from the basement bedroom.

41Once D.M. changed the channel, T.A. said she just wanted to sleep. He responded: “let me massage your shoulders to help you sleep”. She answered: “no thank you”. He responded: “come on, let me, let me relax you, it’ll feel good”. She replied: “no it’s ok”. D.M. then moved up towards the left side of Couch 2, behind T.A. and closest to Couch 1. He put his hands on her shoulder. He did so even though she told him that she didn’t want him to do so. She was very stiff and uncomfortable. She did not know why he ignored her.

42T.A. was at the time lying on her back on Couch 1, with her head on a pillow on the arm rest. D.M. put his hands on her shoulders and started massaging her. He had to put his arms over the arm of the sofa to put his hands on her shoulders. He was a meter away and then very close to her when massaging her. He put his hands on her shoulders and then moved down to her breasts with a bit of pressure, massaging the top and bottom of her shoulders. He was using both hands. He used one hand on each shoulder and was leaning towards her, moving forwards and backwards.

43T.A. cannot say exactly how long he massaged her; it was “maybe like 5 minutes?” As he was massaging her shoulders, he massaged her breasts as well. When he did this, she became very stiff. She put her hands over her breasts and pushed his hands up a bit higher, towards her shoulders. But then he went back the same distance or further and touched her breasts again, even when she “shoved” him, trying to stop him. As she was doing this, she said “I’m ok, I’m trying to sleep, I’m ok”. He responded “R loves this when I do it to her, it helps her sleep. Just relax. Let me do it, you can fall asleep while I do it.”

44D.M. touched both of T.A.’s breasts at the same time with both hands. He did so over her pajama top. He massaged both shoulders then moved down to her breasts. His hands reached the middle of both of her breasts, from top to the middle of her breasts; to about her nipple-line. When she put her hands on her breasts and tried to push him upwards, he continued to insist that she relax. She said a few times that she was ok, that she wanted him to stop and wanted to sleep. She used different words to tell him to stop but does not recall whether she used the exact word, “stop”, but that was the meaning of her words.

45It is hard to say the number of times that D.M. touched her breasts. She was not counting. It was two or three or four times. The total time that he touched her breasts was two to four minutes. The rest of the time of the massage was on her shoulders. The total time for touching of her shoulders and breasts was five minutes. Neither of them removed any clothing during this encounter, she remained in her pajamas, he in his underwear.

46When D.M. continued massaging her, T.A. decided to go to the bathroom. She made the decision because she was uncomfortable. D.M. was not listening to her when she refused to let him touch her. Since he didn’t listen, she felt that she had to act because she did not like the situation. And then she left.

47T.A. thinks that she said that she was going to the bathroom before doing so, but is not 100% sure. He did not say anything in response that she noticed. In order to get to the bathroom door, she had to go through the kitchen. Once she got to the bathroom, she locked the door, tried to breathe, to think about what was going on. She was “a bit mixed up”.

48T.A. stayed in the bathroom for about 20 minutes, waiting and thinking that D.M. would fall asleep when she came out. When she came out, he was asleep. She returned to the couch, to try to fall asleep. She does not think that she did fall asleep. She spent some time on her iPod, not listening to it. The iPod had features other than music, such as texting and games. She believes that she played on an iPod game. She was “trying a bit to change my ideas”. She had no further interaction with D.M. that night.

49T.A. does not recall the exact time she got up the next morning but believes that it was about 7 a.m. At that time, she, her mother, and J.W. went to the hotel.

Cross-Examination of T.A.

50During cross-examination, defence counsel, Mr. Virk, put to T.A. in a number of questions and ways, that she had made the whole incident up. The main point of his questioning was that she had slept in the room of her cousin, A, and that her uncle, M.C. was the one who slept in Couch 1 that night. T.A. denied the allegations.

51Mr. Virk put a number of alleged contradictions and missing details of her narrative to T.A. They included:

1. She could not recall very much of the events of the morning of August 26, 2011, when she, her mother and J.W. left from Quebec for Burlington. Nor could she recall much of the next morning, August 27, 2011, after the alleged assault, when the three of them left the home for the hotel.

2. Among the details of those two mornings that T.A. was cross-examined about was the contents of her breakfast each morning. For each she responded that she could not recall the details because they had not been important to her.

3. Why she listened to her mother’s instruction to sleep on a couch near her in the basement when she was a few months away from turning seventeen. Her answer was that she did not question her mother. She listened to her “and that was it”.

4. Whether the basement bathroom had one or two doors. T.A. recalled one but said she did not count. T.H., a co-owner of the home, later testified that there were two.

5. Whether there was a contradiction between her statement at the preliminary hearing that she was awakened by her adult relatives when they were in the bedroom preparing their beds and blowing up the air mattresses in that room, and her trial testimony that she was awakened by their going down the stairs towards the bedroom. She responded that there is no contradiction, and these are not different things. The adults did not go down the stairs “holding hands”; i.e. at the same time. There were six people and she was awoken by what they were doing – on the stairs and the bedroom.

6. T.A. denied that her uncle, M.C., the husband of her aunt M, slept on Couch 1 on the night of the alleged offences. She stated that he was not at the wedding. As set out below, T.H. testified that he was present at the wedding.

7. T.A. was questioned about her own alcohol use and why she did not drink on the day of the party. She admitted that she first drank alcohol with her best friend when she was 15. Her mother was aware of this at the time of the party, but did not accept her drinking. That is why she did not drink at the party. She felt that it was not “normal” for her uncle to offer her alcohol.

8. T.A. denied that she failed to go into the bedroom, where her mother was sleeping at the time of the alleged offences because they did not occur. Mr. Virk confronted her a number of times about what she failed to do at the time of the alleged offences, including telling her uncle to stop, shouting, going into the bedroom or A’s room upstairs. He also questioned why she risked returning to the living room after being in the washroom for 20 minutes. All of these questions went to her credibility. The inference was that if she was truly been the victim of the offences, she would have acted in a certain manner: scream, run to her mother, or run to her cousin’s bedroom. Anything but lie on Couch 1 for five minutes, being massaged by her uncle, running to the bathroom and then return after 20 minutes, unsure of whether he was asleep. This line of questioning veered close to a stereotype as to how a credible victim of a sexual offence should respond. However, no objection was raised by the Crown. Nonetheless, I remind myself that I must be wary of attempting to base my findings on a “common sense” approach to what a 16-year-old girl would have done in those circumstances.

9. When asked why she did not immediately get up when her uncle began massaging her against her will, T.A. responded that she “freezed” and “stayed there” and “continued to tell him to stop and that’s how I reacted”, whether she used the actual word “stop” or not.

10. T.A. was candid in saying that she could have run into the bedroom with her mother or upstairs, or acted other than as she did. But, as she responded “[t]hat’s what went into my brain and that’s what I did”. She later went on to say, when confronted about why she went to the bathroom rather than the bedroom:

    I understand why you think that that probably would have been the right way to react even though there’s no right way in this kind of situation. And knowing that there’s six adults in that room, that’s also intimidating for a teenager to go and see them.

11. Regarding the television in the living room, she denied that it was in the corner of the room. However, T.H., the owner of the house, produced a sketch of the basement area that showed the television in a corner, opposite Couch 1, closest to the end of Couch 2 that was furthest from Couch 1.

12. Defence counsel put to T.A. that at the preliminary hearing that she had said that the couple on the “porno” channel were having sex, while at trial she said that there had been no sexual interaction. The actual statement at the preliminary hearing was not put to her. She responded that the guy entered the scene and stood in front of the woman. She could see that they were “having sex” but she was not paying attention because D.M. was asking her questions. It was “obvious that he entered and was going in front of her” It was “hard to say if they were actually doing it, having – they are having relation – sexual relation that …But like I said he’s in front of her and he walks in and that’s the scene.” She denied that these are contradictory statements.

13. Defence counsel asked T.A. to recall whether she was doing anything while on the couch besides try to sleep that she had not mentioned before. He asked her this question twice. After the question was asked for the second time, she stated that she recalls that she had her iPod with her. It was not far and once in a while she was looking at it. Counsel confronted her that she had mentioned at the preliminary hearing that when D.M. came into the living room, she was “on” her iPod. But she did not mention this in her evidence-in-chief (although she mentioned looking at it after she returned from the washroom). Her response is that she does not see a big difference between saying that she was on her iPod and saying that she was looking at it. When asked what she meant at the preliminary hearing by being “on” her iPod, T.A. stated that she does not know what she was doing with the iPod but was trying not to give attention to her uncle. She was trying to show him that she was doing something on it, to distract him. He could not see what she was doing. But he could see that she was giving attention to the device in her hands. She was not listening to music on the device. She could only guess what she was actually doing.

14. Counsel confronted T.A. about the number of times D.M. touched her breasts. She stated in chief that she did not know but it could be two, three or four times. She was not counting. But at the preliminary hearing, she said that it was four or five or six times. She was unable to speculate how long he touched her if it were three times or how long for the fourth. Her response to any inconsistencies in the numbers, again, was that she was not counting.

15. Counsel confronted her about the length of the incident. She said at trial that he touched her breasts for about five minutes. But counsel claimed that in her police statement, she referred to the massage as lasting ten minutes. He did not put that statement to her. In response, T.A. stated that when she talked to the police about the ten minutes, she referred to the whole incident, but the actual massage itself, from the moment that D.M. sat behind her was five minutes.

16. Counsel asked T.A. whether she was wearing a bra on the night of the alleged offences. She stated that she thought so because she always sleeps with a bra. Counsel then stated (again without referring to the transcript) that at the preliminary hearing, she said that she did not know whether she was wearing a bra. She pointed to the stress as one factor that can influence a woman testifying, which can make her blank. When placed on the spot, she didn’t know and said that. But she always wears a bra to bed.

Evidence of T.H.

52T.H. is the daughter of D.M. and R.M. She has four children. Three of those children were living with her and her husband at the time of the alleged offences.

53T.H. confirmed that T.A., her mother, and J.W. attended at her home on August 26, 2011. T.A. and T.H.’s daughter, A, stuck together that day, doing what 16- and 17-year old’s do. They did not see each other often but they were close and got on well.

54T.H.’s home is a two-storey, four-bedroom home, with an in-law suite in the basement. A had her own bedroom, with a queen sized bed, on the top floor of the home. That is the same floor that T.H. and her husband have their bedroom.

55T.H. was in charge of the sleeping arrangements that night. T.A. and A were to sleep in A’s bedroom. T.H. made that decision because she “figured the girls would want to do girl things so when they wanted to get out, get away from all the adults or have a place to chit chat, and have it more of a sleepover”.

56The examination-in-chief of T.H. regarding T.A.’s sleeping arrangements with A was ambiguous and went as follows:

Q. Do you remember where you put, where T.A. was sleeping that night? A. T.A. and A were staying up in A’s room.

57As set out below, counsel did not attempt to elicit from T.H. whether she had observed whether those arrangements were carried out. Nor did he ask her whether she saw T.A. sleeping or even going to sleep in A’s room.

58T.H. placed her parents (D.M. and R.M.), aunt K.S. (T.A.’s mother), J.W., Auntie M, Uncle M.C., and Uncle N.S. in the basement. She placed two air mattresses in the bedroom, which also had a bed. But T.H. placed her mother and Auntie M on the bedroom’s bed. Her mother had a rotator cuff injury and needed to sleep in the bed. Her father and M.C. “were going to take couches”. She later stated that they “took couches”. In cross-examination, she agreed that “M was to take a couch”.

59T.H. provided the court her own, previously made sketch of the basement of the home. It is similar to the one created by T.A. on the stand, including the amendment made during cross-examination, to add the location of the bathroom. However, T.H.’s sketch is far more detailed than that of T.A. It shows a cold room and furnace room as well as a living room closet not found in T.A.’s sketch. It also shows the furniture in the bedroom. Other than the detail missing in T.A.’s sketch, there are two main differences between the sketches. First, T.H. places the living room television at the corner of the room, opposite the two couches and not closer to the middle of the room as T.A. had it. Second, T.H.’s sketch shows two doors to the bathroom.

60As set out above, T.A. testified in-chief that her Uncle M.C. did not attend the wedding and in cross that she did not recall him being there. But T.H. testified that M.C. did attend the wedding and that he and D.M. “were to take couches” and “took couches” .

61In support of her evidence that M.C. attended the wedding that weekend, T.H. produced photocopies of photographs downloaded from a friend’s Facebook page. She said that the photocopies of photographs showed M.C., alone and with his wife, her Auntie M, at the wedding. T.H. did not take those photographs. She had just downloaded them from her friend’s Facebook page a day earlier. The Crown did not object to their admission into evidence but stated that they had little evidentiary value, particularly since the photographer did not testify.

62T.H. testified that as the home was hers, she was in charge of the cable television. There was only one account and she paid the bills. She did not subscribe to an adult channel.

63T.H. also stated that the alcohol in the house at the time of the alleged offences was either in a fridge in the garage or the cold cellar in the basement. The kitchen fridge was full of food and there was no alcohol in the kitchen.

64In cross-examination by Crown counsel, T.H. testified that before going to bed, she “made sure that everyone had water and whatever they needed and went to bed”. She was “one of the last people up” and “everybody was settled”. She had not said that in-chief but as she pointed out, she was not asked.

65T.H. admitted that she did not keep track of everyone’s whereabouts every moment. It was possible that someone could change beds from those she had assigned to them. They could have done so before falling asleep. She does not know what they did when she went to sleep. She did not go around checking where everyone was. She did not ensure everyone was in their assigned beds.

66It is possible that T.A.’s mother told her to sleep nearby. It is possible that after T.H. went to bed, T.A.’s mother “may have come up to get it [sic]”.

67T.H. did not testify as to the time she went to sleep. She could not recall. Nor did she state that on the night in question, she saw T.A. in bed in A’s room or M.C. in bed or preparing for bed on one of the two couches in the basement. When speaking of ensuring that everyone was settled, she did not say that she went into the basement.

68While stating that T.A. had visited her home before, she could only recall one such event with any certainty.

69Regarding the alleged adult station on the basement television, T.H. agreed that it is possible that there was “R” rated content on the television.

Analysis

70The defence denies that the events alleged by the Crown ever took place. It says that T.A. made them up. Thus, the key issue in this case is whether the events alleged to form the basis of the crimes charged ever took place. I recognize that it is for the Crown to prove beyond a reasonable doubt that they did occur and that the defence is not required to prove that they never occurred. If I have a reasonable doubt, I must find D.M. not guilty.

71While I may find reasonable doubt based only on T.H.’s evidence, I do not make my decision by comparing the version of events proffered by T.A. to the evidence of T.H. and choosing one. I must consider all of the evidence and decide whether I am satisfied beyond a reasonable doubt that the events that form the basis of the crimes charged occurred, and that D.M. committed them.

72As stated above, in a case such as this, with only two witnesses, only one of whom purports to have been present at the time of the alleged offences, the credibility and reliability of that witness has great but not necessarily determinative weight.

73I may rely, to some extent, on demeanor of witnesses in making my findings of credibility : R. v. M.S. , 2012 SCC 72 , para. 25 . However I may not determine credibility on demeanor alone, particularly in the face of significant inconsistencies and conflicting evidence: R. v. Norman , [1993] O.J. No. 2802 (Ont. C.A.) per Finlayson J.A.; R. v. Stewart , supra at para. 19 ; R. v. G.G. , [1997] O.J. No. 1501 (Ont. C.A.) per Finlayson J.A. at paras. 14 to 19; R. v. Gostick , [1999] O.J. No. 2357 (Ont.C.A.) per Finlayson J.A. at paras. 15 to 17; Law Society of Upper Canada v. Neinstein (2010), 2010 ONCA 193 , 99 O.R. (3d) 1 (Ont. C.A.) per Doherty J.A. at para. 66.

74Where, as here, the case for the Crown is wholly dependent upon the testimony of the complainant, it is essential that the credibility and reliability of the complainant's evidence be tested in the light of all of the other evidence presented: R. v. B. (R.W.) (1993), 40 W.A.C. 1 (B.C.C.A.) , as cited in R. v. Stewart , above at para. 27 .

75I find that the evidence of T.A. is credible. I say that because:

1. She testified in a straightforward manner.
2. Her narrative included a level of detail that is believable, and which bespeaks her presence in the basement at the time of the offences. She was able to recount the events of the adults coming down the stairs, their boisterousness, and their decision to throw an even more boisterous D.M. out of the bedroom. T.A. spoke to the type of underwear D.M. was wearing and its colour. She offered the detail that D.M. claimed to offer similar massages to his wife, R.M. She also described the questions that he asked her about her partying and her interest in the events on television.
3. As set out in greater detail below, her evidence, while not perfect, stood up to probing cross-examination. She was able to explain what were presented as contradictions in her trial evidence and previous statements.
4. No evidence has been provided of a motive for T.A. to lie and she was not questioned in that regard. The only evidence at trial is that she has a close family and that she and her mother see her Aunt R.M. and Uncle D.M. once or twice per year. The presence or absence of a motive to fabricate an allegation is a proper matter for consideration in the course of the fact-finding process: R. v. Jackson , [1995] O.J. No. 2471 (Ont. C.A.) at para. 5 ; R. v. Bartholomew , 2019 ONCA 377 , [2019] O.J. No. 2371 (Ont. C.A.) at paras. 20 & 21 ; R. v. Ignacio , [2021] O.J. No. 475 (Ont. C.A.) at para. 52 . It is, however, only one of the factors to be considered by me. I cannot simply conclude that because there is no apparent reason for a witness to lie, the witness must be telling the truth. Rather, I must assess the credibility and reliability of the witness' evidence in the light of all of the other evidence: R. v. R.W.B. , [1993] B.C.J. No. 758 B.C.C.A.) at para. 28; R. v. L.L. , 2009 ONCA 413 , [2009] O.J. No. 2029 (Ont. C.A.) per Simmons J.A. at para. 44; R. v. O.M. , 2014 ONCA 503 , [2014] O.J. No. 3210 (Ont. C.A.) per Cronk J.A. at para. 107; R. v. Bartholomew , supra at para. 22 ; R. v. Dindyal , [2021] O.J. No. 1931 (Ont. C.A.) at paras. 22 & 23 . Nor can I automatically equate a lack of evidence of motive to fabricate to the proved absence of motive to fabricate: R. v. Czibulka , [2004] O.J. No. 3723 (Ont. C.A.) per Rosenberg J.A. at para. 44; R. v. L.L. , supra at para. 44 ; R. v. O.M. , supra at para. 107 ; R. v. Bartholomew , supra at para. 23 .
5. T.A. attempted to be careful not to overstate or exaggerate her evidence. She attempted to set out what she saw and didn’t see, as well as what was done or not done. She also admitted that there were things that she could not recall. For example, while T.A. spoke of D.M. offering her a shot of alcohol, she admitted that she did not see him take any herself. While speaking of his massaging her, she stated that the massaging was done above her pajama top and not that he directly touched her breast. She also stated that his massage only went to the middle of her breasts (the “nipple line”). When she said that she thought that D.M. was drunk, she explained that the basis of her opinion was the fact that a party had been going on all day with drinking, D.M. had been sent out of the bedroom and that he wanted to continue to party. She admitted that she did not know how much he had consumed.
6. T.A. was candid about her alcohol use with a friend at age 15, despite the fact that her mother did not approve. She was equally candid that looking back, there were other ways to escape the situation she found herself in with her uncle, but that she was not able to think of them at the time. She admitted that when she was in the bathroom, she was “a bit mixed up”.

76Many of those arguments also speak to T.A.’s reliability. She was able to recall, observe and recollect the key events of the night of the alleged offences. With the exception of the presence of her Uncle M.C., she was able to recall who slept in the basement. T.H. confirmed the evidence of T.A. that D.M. slept on one of the couches in the basement. If T.A. slept in A’s bedroom, as the defence contends, how would she know that D.M. slept on a couch in the basement as opposed to his own bed?

77T.A. was able to offer a sketch of the basement that basically accorded with that of the home’s co-owner, T.H. The facts that T.A. placed the television in the middle of the living room rather than the corner and that she recalled that the bathroom had one door while T.H. testified to two doors, does little to diminish the reliability of her recall, ten years later. From her description of where she lay on the couch, she was able to see the television, even if it was it the corner, slightly to her right, rather than straight in from of her. The fact that she did not notice a second door after what was alleged to be a very traumatic even in the middle of the night is of little moment within the context of her narrative.

78In making my findings about T.A.’s credibility and reliability, I have considered the arguments that defence counsel has raised to question them, particularly in regard to his cross-examination of her. He referred to many inconsistencies between her trial evidence and her evidence at the preliminary hearing. But I do not find that there are significant contradictions or inconsistencies, or if there are, that they have been properly proven. In particular:

1. The issue of whether T.A. saw the couple on television having sex and whether she changed her narrative from the preliminary hearing is ambiguous at best. Her statement at the preliminary hearing was not properly placed before her and repeated verbatim. But more importantly, what she pointed to was the ambiguity in what she was seeing on television; particularly, as set out above, from the perspective of a 16-year-old, looking back ten years. She described seeing a woman taking off her clothes, a naked man joining the scene and the two naked people facing each other. That fact that she saw this nudity as “porno” does not detract from the credibility or reliability of T.A.’s recall. It fits in with what a 16-year-old may understand what she saw to be. The fact that she did not describe seeing a sex act actually accords with T.H.’s testimony that she did not subscribe to an adult television station.
2. Defence counsel confronted T.A. with her statements about the use of her iPod. She spoke of it in-chief, but only within the context of using it after she returned to the bathroom. to help her try to sleep. She was not asked in-chief about whether she had used the device earlier in the evening. In cross-examination, T.A. was asked twice whether she recalled anything else about her conduct when first trying to fall asleep. After the second question, she recalled the use of her iPod device. Yet that evidence about her iPod use was challenged as an inconsistency with her preliminary hearing statement of its use before the incident with D.M. With respect, I do not see the inconsistency. She recalled using the iPad when trying to fall asleep before she was confronted with her preliminary hearing testimony. Besides the iPod is a peripheral detail, one that played no role in her narrative of the events of the night in question.
3. T.A. was asked in-chief whether the door to the bedroom was open or closed. She stated that “I don’t remember seeing it completely open, it was probably closed or a little bit open.” She said that afterwards, it was not completely closed when D.M. came into the living room. It may have been a bit open. Defence put to her during cross-examination, without showing her the transcript reference, that she said at the preliminary hearing that she did not know whether the door was open or not. I do not see that as a contradiction, she was open about the imperfection of her memory of the status of the bedroom door.
4. Defence counsel stated that it defies common sense that the people in the bedroom would not hear what was occurring in the living room, particularly if the door was even a bit open. But T.A. was consistent that the sound of television was low as was the sound of the voices of herself and D.M. It should be recalled that for most of the alleged event, they were not far apart from each other. Further, no one in the bedroom that night testified about what they could or could not hear in the living room.
5. Defence counsel stated that T.A.’s failure to recognize a second door to the bathroom, as stated in the evidence of T.H., undermines her evidence. He states that it is not believable that she did not notice the number of doors to the bathroom. But as stated above, the fact that T.A. missed a bathroom door in the middle of the night after an allegedly traumatic event, is of no great moment., She was not asked whether the light to the bathroom was on when she went into it, or the locations of where she sat or stood in the bathroom, relative to the second door.
6. Defence counsel stated that it is incredible that she did not know how many times D.M. put his hands on her breasts. That is because it did not happen. Once again that argument is of little assistance to the defence. First of all, if T.A. were making up the story, she could have made up a number. Thus, her problem with the number of touches is not particularly telling. More to the point though, the evidence was not that the massaging stopped and started. It was that D.M. kept rubbing T.A.’s shoulders down to her breasts, that she kept trying to push his hands back up, and that he continued despite her protests. As I understand her evidence, that was one continuous event. She responded to counsel, quite credibly, that she did not count the number of times that he rubbed her breasts. Within the facts of this case, her answer does not diminish her credibility.

The Evidence of T.H.

79As stated above, a number of elements of T.H.’s evidence can be said to challenge some elements of T.A.’s testimony. While she is close to her father, she was clear that she would not lie to protect him. I found her evidence to be credible but not fully responsive to the allegations raised by T.A.’s.

80The evidence that T.H. offered, and my analysis of that evidence is set out below:

1. M.C., whom T.H. had assigned to sleep on a couch in the basement, was present at the wedding and at her house on the evening of the alleged offences and that he, like her father “took” a couch. But: i. While T.H. relied on photocopies of a series of photos that she did not take, that she downloaded from a friend’s Facebook page, to buttress her claim, I do not find that evidence to be reliable. The photographer was not called to testify. The section of the Facebook page that T.H. relied upon to say that the photos were from her brother’s wedding were hearsay. Nonetheless, she gave that evidence. ii. Even assuming that M.C. was present at the home on the night in question, T.H. did not testify that she saw him on the couch in the basement that night. She ambiguously said he and her father “took couches” in the basement. But that was in the context of a line of questions about her arrangements for the sleeping quarters of her guests. She further testified that she made sure that everyone was settled before going to sleep, but did not say what she did in that regard. She did not say that she had gone into the basement to check on her parents and relatives sleeping there. Nor did she say what time she ensured that everyone was settled or what time she went to sleep. iii. In other words, the presence of M.C. at the wedding does call into question one element of T.A.’s memory of the wedding. But I do not find that I can take T.H.’s evidence any further to find, even assuming M.C.’s presence in the home that night, that it raises a reasonable doubt about T.A.’s narrative that she slept on Couch 1 that night. Had T.H. said that she saw M.C. sleeping on a couch in the living room that night or preparing to do so, that evidence may well have had a far different effect.
2. Similarly, T.H.’s evidence that T.A. was to sleep in A’s room and that T.H. checked that all guests were settled before going to sleep suffers from the same problem of vagueness as her evidence of M.C. In particular: i. T.H. did not say that she saw T.A. in her daughter’s room at any time on August 26 or 27, 2011. ii. T.H. admitted that after she last saw T.A. in the evening of August 26, 2011, she could have gone to the basement at the request of her mother. iii. In other words, again the evidence of T.H. does not directly contradict the evidence of T.A.. Had she said that she saw T.A. go to bed or in bed in A’s bedroom, that would have been another matter.
3. While T.A. stated that D.M. offered her a “shot” of alcohol from his kitchen cupboard, T.H. stated that the alcohol in the house was in the refrigerator or cold room. The defence wishes me to find that this evidence shows that T.A. was not telling the truth about D.M. having alcohol in the cupboard of the kitchen and offering her a shot of liquor. But the evidence is that the adults at T.H’s home had been drinking for much of the day. T.A. said that D.M. wanted the partying to continue in the basement. The fact that T.H. had placed alcohol in certain parts of the house does not mean that her father did not have access to his own bottle. Further, if D.M. did offer T.A. a ‘shot” that would imply that he was offering her a drink of “hard” liquor, which does not require refrigeration or cold storage. For those reasons, T.H.’s evidence does not directly contradict that of T.A. regarding alcohol in the basement.
4. Regarding the adult television station, I have already discussed that issue above.

81In sum, after considering all of the above, I find that the evidence of T.A. is both credible and reliable.

Charge of Sexual Assault under Section 271 of the Criminal Code

82In reviewing the elements of the two charges that D.M. faces, I find that it is helpful to review them in reverse order, dealing first with the charge of sexual assault and then the charge of sexual exploitation.

83For the court to find D.M. guilty of sexual assault, the Crown counsel must prove beyond a reasonable doubt that:

1. D.M. intentionally applied force to T.A.;
2. T.A. did not consent to the force that D.M. intentionally applied;
3. D.M. knew that T.A. did not consent to the force that D.M. intentionally applied; and that
4. the force that D.M. applied took place in circumstances of a sexual nature.

84The only defence offered was that the events described by T.A. did not occur, that they were fabricated. Thus, I have to look to whether I accept T.A.’s narrative of the events of the evening in question beyond a reasonable doubt, in the face of her cross-examination, the evidence of T.H. and within the context of all evidence offered at trial.

85While I find that the evidence of T.H. is credible, in that she did not intentionally speak untruthfully to the court, it is not in itself sufficient to raise a reasonable doubt about T.A.’s narrative. Examined closely, as I have done above, it does not directly contradict any material aspects of her narrative. Further, it does not raise a reasonable doubt as to T.A.’s evidence regarding the elements of the offence of sexual assault. I accept that T.A.’s narrative of the events in question is true.

86This I find that the Crown has proven beyond a reasonable doubt that:

1. D.M. intentionally applied force to T.A. by massaging her shoulders and breasts;
2. T.A. did not consent to the force that D.M. intentionally applied. As she testified, she frequently stated on the night in question that she did not want the massaging;
3. D.M. knew that T.A. did not consent to the force that he intentionally applied. As stated above, T.A. was vocal regarding her lack of consent and requests that he stop, and
4. the force that D.M. applied took place in circumstances of a sexual nature. I find that to be true from: i. the nature of the massage – going down to T.A.’s breasts, ii. the fact that it was done when they were alone; iii. the fact that it took place at nighttime, when T.A. was attempting to sleep and dressed in her pajamas, iv. the fact that D.M. was scantily clad, only in his underwear; v. the context of a film that D.M. was attempting to watch with T.A. present, which contained both male and female nudity; vi. The questions that D.M. asked T.A. about her own sexual interest and activity in relation to what was being depicted in the film.

87Accordingly, I find beyond a reasonable doubt that D.M. is guilty of sexually assaulting T.A..

Charge of Sexual Exploitation, Contrary to s. 53 of the Criminal Code of Canada

88For the court to find D.M. guilty of sexual exploitation of T.A. , the Crown must prove each of these essential elements beyond a reasonable doubt:

1. that T.A. was a “young person” at the time of the alleged offence:
2. that D.M. touched T.A.;
3. that the touching was for a sexual purpose; and
4. that D.M. was in a position of trust or authority towards T.A.

89It is not disputed that T.A. was 16 years of age at the time of the alleged offences, and thus a young person as defined in the Criminal Code . I have already found beyond a reasonable doubt that D.M. touched T.A. and that the touching was of a sexual nature. I add that I find beyond a reasonable doubt, for the reasons that I found, that the touching was of a sexual nature, that it was for a sexual purpose.

90However, I am not convinced beyond a reasonable doubt that D.M. was in a position of trust or authority towards T.A. The fact that he was T.A.’s uncle is far from determinative. But that is the only evidence that goes to the issue of whether he was in a position of trust or authority towards T.A.. The fact that T.A. and her mother saw D.M. and his wife twice per year also does not prove that he was in a position of trust or authority towards her. The fact that T.A. was able to tell D.M. to turn off the television after she found the images on the screen to be uncomfortable certainly raises a reasonable doubt as to whether he was in a position of authority towards her. The reasonable doubt is not erased by the fact that he maintained the massage even after she clearly told him and signaled by her bodily responses that she did not wish the massage to continue. She was ultimately able to walk away to the bathroom.

91In short, based on the evidence before me. I am not convinced beyond a reasonable doubt that that D.M. was in a position of trust or authority towards T.A. Thus, I acquit him of the charge of sexual exploitation.

“ Marvin Kurz J. ”

Electronic signature of Justice Marvin Kurz

COURT FILE NO.: J-154/19 DATE: 2022-01-10 ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – D.M. REASONS FOR JUDGMENT Kurz J.

Released: January 10, 2022