COURT FILE NO.: CR 4-444-21 DATE: 20220427
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN - and - F.A.
Counsel: Iain Sunderland, for the Crown Edmond Chan, for the accused
HEARD: March 28-31, 2022
Subject to any further Order of a court of competent jurisdiction, an Order has been made in this proceeding, pursuant to s. 486.4 of the Criminal Code, directing that the identity of the complainant and any information that could disclose such identity shall not be published in any document or broadcast or transmitted in any way.
K.L. Campbell J.:
Reasons for Judgment
I
Overview
[1] The accused, F.A., has pled “not guilty” to an indictment that charges him with: (1) knowingly uttering a threat to cause bodily harm to S.N.; (2) committing a sexual assault on S.N.; and (3) having sexual intercourse with S.N., knowing that she was his daughter by blood relationship – contrary to ss. 264.1(1)(a), 271 and 155(1) of the Criminal Code respectively. Each of these offences is alleged to have been committed by the accused in Toronto on or about January 1, 2020.
[2] The complainant is the biological daughter of the accused – to the knowledge of the accused. The parties are officially agreed on this uncontroversial fact. The complainant is now 28 years old, while the accused is now 62 years of age.
[3] Essentially, the Crown contends, based on the testimony of the complainant, that, on new years eve/day, at the end of 2019 and the start of 2020, while they lived together in the same Toronto apartment unit, the accused threatened his daughter with bodily harm and, after she later returned to the apartment following a trip to the hospital, the accused sexually assaulted her, and ultimately engaged in an act of sexual intercourse with her (against her will). The accused, however, expressly denied, in his testimony, that he ever threatened the complainant or engaged in any type of sexual activity with her – with or without her consent. The defence contends that the alleged offences simply did not take place. Moreover, the defence contends that, in any event, the Crown has failed to establish any of the alleged offences beyond a reasonable doubt.
II
The Applicable Legal Principles
1. The Offence of Incest
[4] Section 155(1) of the Criminal Code, R.S.C. 1985, chap. C-46, states that everyone commits “incest” who, “knowing that another person is by blood relationship his or her parent, [or] child,” as the case may be, “has sexual intercourse with that person.” According to s. 4(5) of the Criminal Code, “sexual intercourse” is “complete on penetration to even the slightest degree, notwithstanding that seed is not emitted.” Accordingly, the crime of incest is committed by a father, if he knowingly engages in sexual intercourse with his biological daughter, penetrating her to even the slightest degree, regardless of whether or not she consents to the sexual intercourse, and regardless of whether or not he ejaculates as a result of the sexual intercourse. However, under s. 155(3) of the Code, no accused is guilty of the offence of incest if the accused was “under restraint, duress or fear of the person with whom the accused had the sexual intercourse at the time the sexual intercourse occurred.”
[5] Further, according to s. 274 of the Criminal Code, if an accused is charged with an offence under a number of listed offences, including the offences prescribed in ss. 155 [incest], and 271 [sexual assault], “no corroboration is required for a conviction and the judge shall not instruct the jury that it is unsafe to find the accused guilty in the absence of corroboration.” Similarly, under s. 275 of the Criminal Code, the rules relating to evidence of “recent complaint” are “abrogated” in relation to a number of listed offences, including the offences created by ss. 155 [incest], and 271 [sexual assault] of the Criminal Code. Accordingly, an accused may be legally convicted of the offences of incest and/or sexual assault based upon the uncorroborated testimony of only one witness to the alleged offence, such as the complainant, regardless of whether or not the complainant quickly complained of the alleged offence.
2. The Offence of Sexual Assault
[6] The accused is also charged with sexually assaulting the complainant, contrary to s. 271 of the Criminal Code. The law is clear that in order to establish this offence, the Crown must prove all of the following essential elements of the crime beyond a reasonable doubt: (1) that the accused intentionally touched the complainant in circumstances of a sexual nature that compromised the sexual integrity of the complainant; (2) that the complainant did not consent to this touching; and (3) that the accused knew that the complainant was not consenting to the sexual touching, or was reckless or wilfully blind in relation to whether or not the complainant was consenting. See: R. v. Ewanchuk, [1999] 1 S.C.R. 330, 131 C.C.C. (3d) 481; R. v. Lutoslawski, 2010 SCC 49, [2010] 3 S.C.R. 60; R. v. Chase, [1987] 2 S.C.R. 293, 37 C.C.C. (3d) 97.
[7] According to s. 273.1(1) of the Criminal Code, subject to s. 273.1(2) and s. 265(3), the term “consent,” for the purposes of s. 271, means “the voluntary agreement of the complainant to engage in the sexual activity in question.” This provision makes it clear that a complainant may consent to some types of sexual activity, but not others. Consent to some types of sexual conduct is not consent to all. In short, without the voluntary agreement of a complainant, any type of sexual activity is non-consensual and unlawful.
[8] According to s. 273.1(2) of the Code, no consent is obtained, for the purposes of s. 271, where: (a) the agreement is expressed by the words or conduct of a person other than the complainant; (b) the complainant is incapable of consenting to the activity; (c) the accused induces the complainant to engage in the activity by abusing a position of trust, power or authority; (d) the complainant expresses, by words or conduct, a lack of agreement to engage in the activity; or (e) the complainant, having consented to engage in sexual activity, expresses, by words or conduct, a lack of agreement to continue to engage in the activity. By virtue of s. 273.1(3), this statutory expression of the circumstances in which there is “no consent” is not meant to limit the circumstances in which no consent is obtained. See: R. v. G.F., 2021 SCC 20, 404 C.C.C. (3d) 1, at paras. 1-6, 24-25, 29-47, 53.
[9] According to s. 265(3) of the Code, no consent is obtained where the complainant submits or does not resist by reason of: (a) the application of force to the complainant or to a person other than the complainant; (b) threats or fear of the application of force to the complainant or to a person other than the complainant; (c) fraud; or (d) the exercise of authority.
[10] According to s. 273.2 of the Code, it is not a defence to a charge under s. 271 that the accused believed that the complainant consented to the activity that forms the subject-matter of the charge, where: (a) the accused’s belief arose from the accused’s self-induced intoxication, or recklessness or wilful blindness; or (b) the accused did not take reasonable steps, in the circumstances known to the accused at the time, to ascertain that the complainant was consenting. As noted by Abella J.A., as she then was, in delivering the judgment of the Court of Appeal for Ontario in R. v. Cornejo (2003), 68 O.R. (3d) 117, 181 C.C.C. (3d) 206, at para. 21, leave denied, [2004] 3 S.C.R. vii, the purpose underlying the enactment of this provision was to ensure “there is clarity on the part of the participants to the consent of the other partner to sexual activity,” and to replace the inappropriate, traditional assumptions that had been made about the legal role of mere “passivity and silence” on the part of a complainant.
[11] In alleged cases of sexual assault there is no defence of “implied consent.” As Major J. stated, in delivering the judgment of the majority of the Supreme Court of Canada in R. v. Ewanchuk, at para. 31, a trier of fact may come to only one of two possible conclusions – either the complainant consented or not. There is no other option. If the trier of fact accepts the complainant’s testimony that she did not consent, then the Crown has established the necessary absence of consent, no matter how strongly the complainant’s conduct might contradict that claim. While the doctrine of implied consent has been judicially recognized in other contexts, it has no place in the law regarding the criminal offence of sexual assault. Accordingly, there is “no defence of implied consent to sexual assault in Canadian law.” As Major J. stated, at para. 51, any belief that the accused may harbor, that “silence, passivity or ambiguous conduct” on the part of the complainant constitutes consent, is a mistake of law and provides no defence to a charge of sexual assault. This decision “cemented the demise of implied consent” in this context, and “reinforced the necessity of focusing on the subjective state of mind of the complainant to determine if he or she did not consent to the sexual touching” in question. See also: R. v. Hutchinson, 2014 SCC 19, [2014] 1 S.C.R. 346, at para. 17; R. v. Al-Rawi, 2018 NSCA 10, 359 C.C.C. (3d) 237, at paras. 19-20, 42, 48.
[12] In R. v. A.(J.), 2011 SCC 28, [2011] 2 S.C.R. 440, at paras. 3, 31-50, 65-66, the Supreme Court of Canada concluded that these various statutory provisions require that, in order to provide legally effective consent, the complainant must provide present, active, ongoing, conscious consent throughout the course of the sexual activity in question. In short, consent can flow only from a conscious, operating mind. Accordingly, as McLachlin C.J.C. concluded, in delivering the judgment of the majority of the court, at para. 66, “[a]ny sexual activity with an individual who is incapable of consciously evaluating whether she is consenting is therefore not consensual within the meaning of the Criminal Code.” See also: R. v. Ashlee, 2006 ABCA 244, 391 A.R. 62, at para. 40, leave denied, [2006] S.C.C.A. No. 415; R. v. Al-Rawi, at paras. 33, 36-371-50.
[13] Given the entirely subjective nature of the complainant’s consent (i.e. voluntary agreement) to the sexual activity in question, the Crown need not establish that the complainant communicated his or her lack of consent to the accused in order to establish the actus reus of the offence of sexual assault. However, an accused may avoid criminal liability for an alleged sexual assault, on the basis of the absence of proof of the necessary mens rea of the offence, if there ultimately remains a reasonable doubt about whether the accused subjectively believed that the complainant had communicated, by words or actions, his or her consent to the sexual activity in question, provided the accused took “reasonable steps” to ascertain whether the complainant was consenting to the sexual activity in question. See: R. v. Ewanchuk, at paras. 48-49; R. v. J.A., at para. 37; R. v. Flaviano, 2013 ABCA 219, 309 C.C.C. (3d) 163, at paras. 40-41, affirmed, 2014 SCC 14, [2014] 1 S.C.R. 270; R. v. Al-Rawi, at para. 49; R. v. Barton, 2019 SCC 33, [2019] 2 S.C.R. 579, at paras. 86-123.
3. The Offence of Threatening Bodily Harm
[14] According to s. 264.1(1)(a) of the Criminal Code, everyone commits an offence if they, in any manner, knowingly utter, convey or cause any person to receive a threat “to cause death or bodily harm to any person.” In short, this offence is committed by anyone who: (1) utters or conveys a threat (objectively viewed) to any person; (2) the specific nature of the threat is to cause death or bodily harm to any person; and (3) the accused subjectively intended to threaten or intimidate another person.
[15] The actus reus of the crime is established if a reasonable person, aware of all of the circumstances in which the words were uttered or conveyed, would have perceived them to be a threat of death or bodily harm. The Crown need not prove, however, that the intended recipient of the threat was made aware of it, or (if aware of it) that the intended recipient of the threat was intimidated by it, or took it seriously. Further, the threatening words need not be directed toward any specific person. Rather, the actus reus of the offence is established if the threat is made against an ascertained group of people. The mens rea of the crime is made out if the accused subjectively intended the threatening words to intimidate or to be taken seriously. In other words, it is not necessary for the Crown to prove an intent that the words be conveyed to the subject of the threat, or that the accused intended to carry out the threat. See: R. v. McRae, 2013 SCC 68, [2013] 3 S.C.R. 931, at paras. 2, 9, 10-29.
4. The Presumption of Innocence and the Burden of Proof on the Crown
[16] The accused is, of course, presumed to be innocent. That presumption of innocence has been with the accused throughout the trial and remains with him unless and until the Crown establishes his guilt for these alleged offences beyond a reasonable doubt. That heavy burden of proof never shifts. The accused has no obligation to establish his innocence. This important and long-standing principle of our criminal law is constitutionally entrenched in s. 11(d) of the Canadian Charter of Rights and Freedoms. See: R. v. Dubois, [1985] 2 S.C.R. 350, 22 C.C.C. (3d) 513, at p. 357; R. v. Pearson, [1992] 3 S.C.R. 665, 77 C.C.C. (3d) 124, at pp. 682-683, 687.
[17] It is also important to recall the nature of the heavy burden of proof on the Crown. As juries are typically instructed, a reasonable doubt is not an imaginary, far-fetched or frivolous doubt, or a doubt based on sympathy or prejudice. Rather, it is a doubt based on reason and common sense. It is a doubt that logically arises from the evidence, or the lack of evidence. Of course, it is not enough for a trier of fact, whether it be judge or jury, to believe that an accused is probably guilty or likely guilty, as that is not proof beyond a reasonable doubt. However, the Crown is not obliged to establish, with absolute certainty, the alleged guilt of an accused, as such a standard of proof is impossibly high. Nevertheless, as the Supreme Court of Canada stated in R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144, at para. 242, proof beyond a reasonable doubt is much closer to proof of absolute certainty than it is to proof of probable guilt. At the end of the case, after considering all of the evidence, a trier of fact must be sure that an accused committed the alleged offence before finding him or her guilty of that offence, because it is only at that point that the trier of fact can be satisfied beyond a reasonable doubt as to the guilt of the accused. See also R. v. Lifchus, [1997] 3 S.C.R. 320, 118 C.C.C. (3d) 1, at paras. 13-43; Mr. Justice David Watt, Manual of Criminal Jury Instructions (2015, 2nd ed.), at pp. 261-267.
[18] Further, as the accused testified in this case, in assessing whether or not the Crown has proven his guilt beyond a reasonable doubt in relation to these alleged offences, I must apply the three important principles articulated by the Supreme Court of Canada in R. v. W.(D.), [1991] 1 S.C.R. 742, 63 C.C.C. (3d) 397, at pp. 757-758. In other words: (1) if I believe the testimony of the accused that he did not commit the alleged offences I must find him not guilty; (2) even if I do not believe the testimony of the accused that he did not commit the alleged offences, if his testimony leaves me with a reasonable doubt as to his guilt regarding these offences, I must find him not guilty; and (3) even if the testimony of the accused does not leave me with any reasonable doubt as to his guilt regarding the alleged offences, I may only properly find him guilty if, based on the evidence that I do accept, I am satisfied beyond a reasonable doubt of his guilt regarding these offences. The application of these principles ensures that reaching a verdict does not devolve into a mere “credibility contest” between the two main witnesses – the complainant and the accused – and ensures that the presumption of innocence and the Crown’s burden of establishing the alleged guilt of the accused beyond a reasonable doubt properly operate. See also: R. v. Y.(C.L.), 2008 SCC 2, [2008] 1 S.C.R. 5, at paras. 6-8; R. v. Vuradin, 2013 SCC 38, [2013] 2 S.C.R. 639, at paras. 20-28.
III
Analysis of the Evidence
1. The Uncontroversial Background Facts
[19] As I have already indicated, the complainant is now 28 years old, while the accused is now 62 years old, and the accused is her biological father. The complainant has two older siblings – the accused is their biological father too.
[20] The accused was born in Sri Lanka, but came to Canada in 1978, when he was just 19 years old. Initially, he lived in Montreal, Quebec for about three years. He then moved to Mississauga, Ontario.
[21] While he had other full-time work after coming to Canada, in 1992 the accused secured a job with Canada Post, where he has subsequently worked full-time, in a number of capacities, for some 30 years. In the fall of 2019, and around the time of the alleged offences, the accused typically worked the Monday to Friday full-time shift at the Canada Post location in Scarborough, Ontario, from 6:00 a.m. to 2:00 p.m. It usually took him about 12 minutes to drive to work from his apartment. When he worked those hours, the accused typically got up at 4:15 a.m. – an hour and three-quarters before he had to start to work. However, sometimes, during the “busy times,” he could work longer hours at Canada Post, starting to work either two or four hours earlier in the morning.
[22] The accused met his former wife in Toronto, Ontario in 1985. After living together for a number of years, they got married in 1988. They were married for nine years and had three children together. The complainant was their youngest child. Their marriage ended when they separated in 1997.
[23] The accused and his wife (the complainant’s biological mother) split up when his wife realized that she was a lesbian, and she subsequently began living with another woman – now her married life-partner. After their marriage break-up, the complainant (like her siblings) continued to live with her mother and her new partner. The complainant, like her two siblings, was effectively raised by her mother (and her partner).
[24] When he separated from his wife, the accused moved into a small bachelor apartment. His children visited him periodically in that location. While the accused made no official support payments, he would sometimes buy them things, such as clothing.
[25] When she was a young child, and up until her mid-teen years, the complainant had limited contact with her father. She saw him, together with her siblings, perhaps 10 to 15 times a year, when they would visit him for a few hours at a time on some weekends. On special occasions, the complainant would sometimes speak to her father for birthdays, Father’s Day and Christmas. The complainant continued living with her mother (and her partner) until she was approximately 15 years old. The accused agreed that the complainant and her older brother “drifted away” from the accused in their teen years. The accused maintained the closest relationship with the complainant’s older sister.
[26] When the complainant was between approximately 15 and 20 years of age, the complainant saw the accused somewhat less frequently, perhaps only two or three times a year. However, her father bought her a mobile phone, and paid her monthly “phone bill” for most of this time.
[27] There was a period of time, when the complainant was approximately 20 to 24 years of age, when she had virtually no contact or communications with the accused. During this time period, the complainant was attending university and, for the most part, living with her mother (and her partner).
[28] In approximately October of 2019, the complainant moved out of her residence, where she had been living with her mother (and her partner). There had started to be a significant “conflict” between the complainant and her mother (and her partner) regarding the complaint’s use of marihuana and alcohol. The complainant wanted to be able to smoke marihuana and drink alcohol in the house – and her mother did not allow this at all. This conflict had been ongoing for a number of months, but ultimately came to a “flashpoint.”
[29] Immediately after she moved out of the house, and was effectively “homeless,” the complainant was “couch surfing” with some friends for about a week. Neither of her older siblings offered the complainant a place to stay, and she did not ask either of them to stay with them.
[30] According to the complainant, in approximately mid-October of 2019, she became “desperate” and contacted her father about her “living arrangements,” and he kindly offered, or agreed, to let her live with him, very temporarily, in his apartment, as a “stop-gap” measure, until she could find another place to live. Indeed, the accused picked her up later that same day, and drove her to his Toronto apartment building, and she moved into his apartment. She only had a few things in her “garbage bag” of belongings. At this point in time, the complainant was attending her third year of “law school” in Toronto. She also had a few things in her law school locker. Incidentally, the complainant’s undergraduate degree, prior to her attendance in law school, was in physiology.
[31] The accused testified that, approximately, a week before this took place, he met the complainant near his apartment and, pursuant to her request, gave her $420 in cash, to purchase some “textbooks” for school. The accused did not expect her to pay it back and thought of the money as a gift. He did not expect it to be repaid as a loan.
[32] The accused had a small, one-bedroom apartment. When the complainant moved into the apartment, she initially slept in the bedroom, and the accused slept on the pull-out couch in the living room area. About a week later, however, the complainant suggested a “switch” in this arrangement, so that she would be less of an inconvenience to her father, who had to get up early in the morning for work. Accordingly, she began sleeping on the pull-out couch in the living room, so that her father could sleep in the bedroom. The complainant and the accused never slept together on the pull-out couch in the living room.
[33] For the most part, the pull-out couch in the living room was not folded back away during the daytime, but rather remained pulled-out. The complainant, at least periodically, made the “bed” (i.e. the pull-out couch). However, the accused complained that, generally, it looked very “messy.” There was also a television in the living room area, together with some small tables on each side of the couch.
[34] The accused worked full-time, usually Monday to Friday, for Canada Post. Typically, he would leave the apartment at approximately 2:00 or 3:00 a.m., to go to work, and he would usually finish work and return home to the apartment around 12:00 noon. He was working the “night shift” – late at night until approximately noon that day. The complainant agreed that, when he was working, the accused often went into his bedroom “earlier” in the evening, but she could not say, more specifically, when this took place. Indeed, the complainant testified that the accused spent most of his time in the apartment in his bedroom.
[35] The complainant was still going to law school, but she also got a part-time job in November of 2019, working in retail. She was also socializing with her friends at university. The complainant agreed that, if she woke up in the morning, when the accused was working, he would not be in the apartment.
[36] Sometimes the complainant and her father socialized together in the apartment. On occasion, they would watch movies together. On these occasions the complainant would sometimes drink alcohol with her father and use marihuana – although her father never used marihuana. According to the complainant, she would drink alcohol a few times a week (not always in the apartment with her father), and perhaps less frequently when she first moved into the apartment. The complainant explained that she would often drink to the point of “intoxication” with her friends, but she did not usually do so with her father when they were in the apartment together. The complainant admitted, however, that there were a few times that she and her father “got drunk” in the apartment together. She also agreed that there were some occasions when the accused bought her liquor. The complainant also agreed that, when her father had to work the next day, he would “likely” not drink alcohol.
[37] The complainant explained that, as the months passed, their respective levels of intoxication in the apartment, when they were drinking, seemed to increase.
2. The Alleged Offences – The Testimony of the Complainant
[38] The complainant testified that, when she first moved into her father’s apartment, their relationship was “tentative” as they had not spoken for perhaps five years. Living together in the apartment gave them the opportunity to “get to know each other” and develop a stronger and more meaningful relationship as father and daughter.
[39] The complainant agreed that living together with the accused was not a “long-term solution” for her housing issue, and that the solution was simply a temporary one. She agreed that she and the accused had some discussions about her moving out. Indeed, the complainant testified that, in November of 2019, she found a retail “sales” job so that she could save up her “first and last” months rent. The accused was supporting her financially and, as time passed, he became more and more “insistent” that she find another place to live. The complainant testified that the accused became “impatient,” and he eventually he gave her a “deadline” – she was to be out of the apartment by January. Initially, she anticipated that she would be gone by the beginning of December, and she told the accused this, but when that did not happen, the accused became more insistent, and he ultimately gave her the January “deadline.”
[40] The complainant explained, however, that she never contemplated moving back in with her mother (and her partner). At that point, her contact with her mother was “very infrequent” and they had “incredibly limited” communications.
[41] According to the complainant, in the “run-up” to new years eve in 2019, she had spoken to her friends about what they were doing for “new years eve” and she had ultimately decided that she would “stay in” the apartment that night. She assumed that the accused would be staying in the apartment that night as well. The complainant explained that she already had some “left over” alcohol in the apartment – some Jack Daniels honey-flavored whisky (that she would drink straight) – so she did not need to purchase any more alcohol for the new years eve celebrations.
[42] The complainant testified that, on the evening of December 31, 2019, she started “drinking” at around 5:00 or 6:00 p.m. She was not working that night. Her father was also in the apartment that night, and he was also “drinking” his alcohol “straight up” – from a newly purchased green bottle of “Jim Beam.” The accused was, similarly, not working that night. The accused had started “drinking” somewhat earlier in the afternoon.
[43] According to the complainant, she and the accused spent the early part of the evening watching movies and music videos on the television, and just “hanging out” together and “socializing” in the living room area. As the “pull-out” couch was never put away, sometimes they would sit down on the couch (which still had the back up), and sometimes the accused would sit on one of the dining room chairs. They were “up and down” from these locations periodically, and the accused would sometimes get up to have a cigarette. The complainant and the accused were, however, generally together during this time period.
[44] According to the complainant, initially, she was “tipsy” but was not “drunkenly intoxicated,” as she consumed only about two or three “standard” shots of alcohol. Indeed, the complainant testified that this was all of the alcohol she consumed the entire night of December 31, 2019. The complainant was not able to comment specifically on how many drinks the accused might have had that night. She testified, however, that the accused had bought a bottle of alcohol and he might have consumed the whole bottle over the course of the entire evening. She had seen him “intoxicated” on previous occasions, even when she was a young child, and she explained that, when he becomes “intoxicated,” he becomes “aggressive” and then “overly affectionate” and that was how he seemed that night.
[45] The complainant testified that, at one point during the evening, she and her father had some kind of “confrontation.” She could not recall what started their argument, but she explained that the accused became “aggressive” and “very angry” and he started “yelling” and “screaming” at her. The complainant explained that, while she did not say anything back to the accused, she became “very scared” and, in the result, placed a “911” call, saying that she “did not feel safe,” and asking generally for “help.” The only details of the argument that the complainant could recall was that the accused “screamed” at her, right “in [her] face” (but without any physical contact), that he was going to “break her arms off.” He said this to the complainant in a tone of voice that was “loud,” “aggressive,” “intimidating” and “incredibly angry.” The complainant thought this was a “bizarre” thing for him to say. The complainant explained that she thought she might have to leave the apartment, and she did not feel personally safe leaving. She thought that her father might “kick her out” of the apartment, and/or hurt her physically. The complainant further explained that she had a “history of depression,” and, in the past, had needed to seek “emergency medical care” for “suicidal ideation” and, in that moment, she was not sure if she would be able to keep herself safe if she had to leave the apartment, and “mentally cope” with that situation.
[46] The complainant testified that she placed this “911 call” very late in the evening, when it was already dark outside – perhaps as late as 11:00 p.m. on new years eve. She did not think that the 911 call took place as early as 7:00 p.m.
[47] The complainant testified that, as she was making the “911 call,” she was putting all of her “belongings” into a plastic garbage bag, leaving the apartment, and heading downstairs to the lobby of the building. She could not recall what the accused may have been doing at the time. Ultimately, the complainant got into the back of an ambulance (with her things), that had arrived outside the apartment building (as a result of the 911 call). While she was in the back of the ambulance, and before it left the area, and while she was talking to the two uniformed paramedics, the accused called the complainant on her phone, told her that he had “calmed down” and tried to convince her to come back to the apartment. However, the complainant testified that she was still “very scared” and she refused to return to the apartment. Instead, the ambulance paramedics suggested that they take her to the “emergency” department of the North York General Hospital – which is where they then attended. The complainant did not recall seeing any uniformed police officers arrive, in a police cruiser, at the apartment building, but she noted that she went into the back of the ambulance almost immediately upon her arrival at the front of the apartment building. She did not recall speaking to any police officer. However, the complainant recalled telling one of the paramedics about her father threatening to “break off” her arms, but had also indicated that the accused had not been physically violent with her.
[48] The complainant explained that, being new years eve “at about midnight,” it was “very busy” in the hospital and, after she was “signed in” to the emergency section by the “triage” nurse, she waited there for approximately an hour or so. The complainant did not recall seeing any police officer at the hospital. Ultimately, the complainant realized that it was unlikely that she would be seen by anyone, including any police officer or psychiatrist, that night, so she called her father on the phone. The complainant could not recall if the accused simply did not answer his phone, or that he answered the phone in a manner that made it clear that he could not come to the hospital to pick her up. She thought he was “drunkenly passed out.” Further, the complainant did not think that calling her mother was even an option at that point. In any event, realizing that she was probably not going to receive any “services” at the hospital that night, the complainant took at taxi back to her father’s apartment building.
[49] The complainant testified that, when she arrived back at the apartment building, she was “buzzed” into the building by either her father or the apartment building superintendent. She could not recall who unlocked the apartment building door to let her inside. She explained that she did not have a key to the building. The complainant’s father then let her inside his specific apartment unit again. The complainant estimated that it was between 1:00 and 2:00 a.m. on January 1, 2020 when she got back to the apartment, and was let inside by her father.
[50] The complainant testified that, when she returned to the apartment, the accused helped her bring her things back inside the apartment, and he was “apologetic” to the complainant about their earlier argument and “scaring” her. At that point, the complainant could see that he was not “drunkenly passed out.” Neither of them seemed to want to “rehash” the details of their earlier argument, or “talk it through.” The accused still seemed “drunk,” however, and seemed more intoxicated than he was earlier, as he seemed kinder and more loving, warm and affectionate. Further, the two of them just went back to what they had been doing before, namely, socializing and listening to music and watching the television.
[51] The complainant testified that there was, perhaps, one more shot of alcohol in her bottle of liquor – the end of her bottle of Jack Daniels – and she drank that following her return to the apartment. According to the complainant, the accused was still drinking his alcohol from a glass upon her return to the apartment. Of course, she did not know how much (if any) drinks he consumed while she was at the hospital. As they consumed their drinks, they sat on the pull-out couch in the living room, watching “music videos” or the “Kennedy Center Awards” and listening to the music on the sound system.
[52] The complainant testified that she was, at that point, sitting in the middle of the pull-out couch/bed, leaning up against the back of the couch, and the accused was, for the most part, sitting on the complainant’s “right-hand side,” near his cigarettes and ashtray (on the dining room table) and the balcony exit. The accused was seated on either the arm of the sofa, or on the bed itself. The accused was wearing a T-shirt and pyjama bottoms. The complainant explained that the accused was sitting beside her, but was somewhat “above her,” in that she was half-lying down on the bed, and the accused had his left arm behind her shoulders.
[53] According to the complainant, at that point, approximately 30-60 minutes after she had returned to the apartment, and as they were watching the television together, the accused started to move his left hand and grope her left breast. This made her feel “uncomfortable,” and while she did not “scream no,” she tried to “push him away” and rolled to the left side of the bed. She did not want to cause another fight between them, but she wanted this to stop. The complainant did not recall “getting up” from the pull-out couch to “change the music,” although she admitted giving that “mistaken” evidence at the preliminary inquiry.
[54] The complainant testified that, when the accused groped her left breast, she pushed his hand away from her and said “no” and “stop.” She also told the accused, in full statement sentences, that he “should stop,” and “this isn’t good,” and “don’t do that,” and that this was “not okay.” The complainant acknowledged that her tone of voice may not have been “very stern,” but she was having a “hard time” with the accused. The accused did not respond to these actions by the complainant, but rather continued to grope her breast with his left hand, while repeatedly telling her that she had “wanted” him to do this.
[55] The complainant testified that the accused then pulled her shirt down, and “flipped” her bralette down, with both hands, and exposed her breasts. At that point, the complainant “stopped doing anything at all” and “froze.” She “shut down” and said nothing more thereafter. However, once she became silent, the accused told her repeatedly that he had known that, since she had moved in with him, the “whole time,” she had “wanted” him to do this, and that he had been “planning to do this since October.” That statement by the accused “stuck with” the complainant, as she had thought that they were building a stronger father/daughter relationship, while he had been “thinking about this the whole time she was there.”
[56] The complainant testified (in cross-examination) that, at some point in time, during the alleged sexual assault, after he started groping her, the accused told the complainant that she “looked like her Mom.” The complainant said nothing in response to this “odd comment” by the accused.
[57] The complainant testified that she had been wearing either leggings, or sweat pants/pyjamas (and underwear) on her bottom, and a tank top and “bralette” (i.e. a small bra that can be pulled on and off without a clip) on her top. These were the same clothes that she had been wearing earlier in the evening. The complainant noted that she had also worn a sweater and a jacket to the hospital earlier in the evening, but that she had removed those when she had come back to the apartment.
[58] The complainant testified that, within approximately one minute of pulling down her shirt and bralette, the accused pulled off her shirt and bralette, using both of his hands, over her head. There was a very brief moment of “struggle” as the complainant was not helping to “facilitate” this removal of her clothes, but it happened quickly, and without any damage to her clothing. According to the complainant, by this point in time, she was almost completely laying down on the bed. The accused then continued to fondle her breast, while also using his mouth on her breast, as he lay across her body on the bed. The accused then removed her pants (and her underwear), so that she was completely naked. Again, there was a brief moment of “struggle” on the part of the complainant, and “fumbling” by the accused, who was trying to get his hand in her pants, but the accused was able to quickly remove the rest of her clothing, without ripping or tearing them, even though she was not facilitating his actions in this regard. At this point, the accused was still fully clothed. The complainant was simply “non-responsive” at this point.
[59] According to the complainant, the accused then moved his hands down her body so that he was touching her vagina. The complainant explained that she was not 100% sure if the accused put his fingers inside her vagina, but he did put his fingers inside her labia. He was using the fingers of his right hand to fondle her vaginal area in this way. The complainant agreed that, in her interview statement to the police, she had agreed that the accused had “digitally penetrated her vagina,” assuming that the interviewing police officer had been referring collectively to her vagina, vulva and labia. The complainant also agreed that she did not use the term “labia” prior to her testimony at the trial of this matter.
[60] The complainant testified that the accused then moved his left hand back towards the back of her shoulders, and then, as he lay flat on the bed, he used it to push her head down toward his penis. The accused then used his other hand to force her down further, and to force her to perform “oral sex” on him, for about ten minutes. The complainant explained that the accused had, prior to this, somehow pulled off his pyjama pants, although she was not sure exactly when or how he did that. She thought that he was still wearing his T-shirt, although she was not sure about this. She agreed that he may have taken off his T-shirt too, but she did not recall him doing that and being completely naked.
[61] The complainant testified that, when the accused let go of her head, she “recoiled” backwards, away from him. The accused then “rolled over” onto her, as she was laying on the bed, and then he reached down with one of his hands and put his penis inside of her and had vaginal “intercourse” with her. She did not have a chance to get off the bed before the accused rolled on top of her. The complainant explained that this sequence of events (i.e. fondling her chest, oral sex, vaginal intercourse) happened “three times in succession” over the course of approximately 90 minutes to two hours. According to the complainant, both she and the accused were, basically, in the same positions all the time. The complainant testified that, during these “cycles,” she recalled the accused repeating the same sentiment, that she wanted him to do this, and that she “liked it” when he did this to her. The complainant did not, however, do or say anything during this time period.
[62] The complainant explained that this eventually stopped when the accused stopped and went into the bedroom of the apartment to sleep in his bed, leaving the complainant in the living room on the pull-out couch. The complainant testified that she did not know if the accused ejaculated inside of her, but that he did not wear a condom at any point as far as she was aware. The complainant agreed, however, that in her interview statement to the police, she indicated that she thought the accused ejaculated inside her, although she stated that this may have been merely an assumption on her part. The complainant maintained, however, in her trial testimony, that she was not sure whether or not the accused ejaculated inside her.
[63] The complainant testified that, before he went into his bedroom, the accused told her that, the next day, he was going to be working at his desk in the bedroom, and he wanted the complainant to come in and give him a “blow job” while he was working at his computer. The accused then went into his bedroom to go to sleep.
[64] The complainant testified unequivocally that she did not consent to any of the sexual contact that night with the accused. Further, the complainant maintained that the accused never “passed out” when he was engaged in any of the alleged sexual offences against her.
3. The Post-Offence Events – The Testimony of the Complainant
[65] The complainant testified that she did not see her father again for “several hours.” The accused went into his bedroom, while she stayed out in the living room on the pull-out couch. She “did not do anything.” She just laid on the couch/bed – she did not sleep. Nor did she check her vagina for ejaculate, although she did wipe herself with a towel (without later inspecting it) before she put her clothes back on. She thought that she may have just left the television set on. Eventually, the accused came back out of his bedroom and immediately went out onto the balcony to smoke a cigarette. The complainant was still awake. At first, the accused said nothing to her. However, when he came back into the apartment, the accused sat down on the pull-out couch/bed in the living room and told the complainant that he “wanted to talk about what happened.” The accused said that it was “not okay” and that he was “very sorry” that it happened, and that he “should not have done that.” The complainant said: “I do not want to talk about this – I don’t want you to talk to me about this ever again.” That ended their conversation about the events of the previous evening and that was the “last time they ever spoke of it.” The accused then went back into his bedroom.
[66] The complainant testified that she continued thereafter to live in the accused’s apartment. She had nowhere else to go. In January of 2020, the complainant continued looking for another place to live, but moving to another location was not something that she could easily accomplish.
[67] The complainant testified that she spoke to her mother (and her partner) in “early January” of 2020, about possibly moving back into their home, and they met personally, at a nearby “Starbucks,” to discuss this topic, but her mother said “no,” so she remained living in the accused’s apartment throughout most of the rest of the month “out of necessity.” Her mother declined to let the complainant move back into her residence even though the complainant told her, in this “very emotional” meeting, without any of the details, that her father had done something “incredibly horrible” or “terrible” to her, and that she “needed help to get out of that situation.” The complainant testified that she conveyed to her mother, using words the complainant could not specifically recall, that the accused had sexually assaulted her or raped her.
[68] The complainant testified that, sometime in January of 2020, she spoke to her older sister about what had happened with the accused. While she did not recall exactly the words she used to describe what the accused did, and she explained that she did not provide her sister with any of the “details.” The complainant testified that she probably told her sister that the accused had “assaulted” her, or had “raped” her.
[69] The complainant testified that she also told some of her friends, via text message, essentially what had happened to her. Ultimately, however, near the end of January of 2020, the complainant found a single women’s “shelter” bed and quickly moved to that location. In the meantime, however, during January, the complainant and the accused did “not socialize” together anymore, and their relationship was “cold,” like they were just “roommates” in the apartment. They talked only about “mundane” and routine matters that they had to discuss, or about the complainant moving out of the apartment. According to the complainant, the accused “immediately stopped drinking” – he “never drank again” while the complainant was in his apartment. Further, the complainant only went to sleep in the apartment when the accused was away from the apartment at work.
[70] The complainant testified that she finally went to the police about what had happened to her sometime during the first week of February of 2020. She did this just a “few days” after she had found a “shelter” bed and got herself settled there. The complainant explained that she did not want to go to the police about this while she was still living in the accused’s apartment. Further, the complainant explained that she was supported as well by the staff at the “shelter.”
4. The Testimony of the Accused – His Denial of the Alleged Offences
[71] The accused testified that, over time, his relationship with his daughter “definitely deteriorated.” The accused explained that he became increasingly “impatient” and “frustrated” about her plans to move out of his apartment, and their ongoing discussions on this topic were sometimes “heated.” The accused testified that he personally drove her to at least two or three possible locations which had been advertised as potential living accommodations, but none of them worked out, even though the complainant seemed quite “determined” to move out of the apartment.
[72] The accused agreed that he, ultimately, gave the complainant the “deadline” of December 31, 2019 to move out of his apartment. He spoke to her about this in early December, and the complainant said that she was going to “try.” However, she was not able to secure other accommodations before the end of the year. The accused agreed, however, that he would never have forced the complainant (his daughter) out “into the street,” so it was a “deadline” without any real, practical consequences.
[73] The accused agreed that, before the end of 2019, he sometimes “socialized” with the complainant, and that they sometimes watched movies on television “every now and then” in the living room of the apartment. The accused estimated that this may have happened two or three times in total. The accused explained that he usually was in his bedroom, on his computer on “Facebook” or watching “Youtube,” or watching his television in that location.
[74] According to the accused, he knew that the complainant used marihuana, but he told her not to smoke marihuana in his apartment. The accused explained, however, that he may have been “drinking” with the complainant in the apartment once or twice. The accused testified that he usually just drank by himself in his bedroom – that is what he preferred to do – and she would drink out in the “hall,” but this did not happen very often. The accused did not recall the complainant drinking frequently in the apartment, but he explained that she would come home “quite drunk sometimes” and be just “sprawled out in bed” – the accused estimated that this may have happened three or four times. In terms of bottles of liquor that he had seen, that belonged to the complainant, the accused testified that he had seen her drinking out of bottles of wine-cooler, gin and honey-flavoured Jack Daniels.
[75] The accused testified that, in the fall of 2019, he would typically “drink” on Fridays, as he did not want to miss work with a hangover, and when he was “drinking” alone in the apartment he would consume an entire bottle (i.e. 750 mls.) of rye or burbon. The accused agreed that he usually liked to drink “Jim Beam” burbon. He also agreed that he was not talking about having a single glass of wine, or drinking in “moderation,” but rather he admitted that, when he was “drinking,” it was usually an entire bottle of liquor, and he was drinking to “get drunk.”
[76] The accused testified that, on December 30, 2019 – the day before new years eve – which he recalled was a Tuesday (before being shown that it was, in fact, a Monday), he worked, starting at 2:00 a.m., four hours earlier than normal, and finished work “probably around 11:00 a.m.” The accused agreed that on December 31, 2019, he worked a similar shift. Accordingly, he testified that he “probably” went to bed to “try to get some sleep” at 4:00 or 5:00 p.m. on December 30, 2019.
[77] The accused produced a “work schedule” for December of 2019 (Exhibit #2). Defence counsel provided that single-page document to the accused, and he identified it as his “time management” document for that week, which he printed himself from his own personal “Canada Post account.” According to the accused, this document told him that his “original shift” that week, starting on Monday, December 30, 2019, was from 6:00 a.m. to 2:00 p.m. – but the accused testified that he actually worked four hours of “overtime” that day, from 2:00 a.m. to 6:00 a.m., and “also the following day.” The accused testified, however, that according to his printed “work schedule” document, he worked on December 31, 2019, from 2:00 a.m. to 2:00 p.m. This document also showed that he had January 1, 2020 “off” work. This document, according to the accused, showed that he next worked on January 2, 2020, from 4:00 a.m. to 2:00 p.m., and that he worked the same hours (i.e. 4:00 a.m. to 2:00 p.m.) on Friday, January 3, 2020.
[78] The accused testified that, on December 31, 2019, new years eve, he started work at 2:00 a.m., but that he was actually finished his work by about 10:00 a.m., and that Canada Post “shut down” the shift by about 12:00 noon.
[79] In cross-examination, the accused confirmed that, on both December 30 and 31, 2019, as shown on his work schedule document (Exhibit #2), he started to work at Canada Post at 2:00 a.m., instead of his regularly scheduled start time of 6:00 a.m. The accused agreed, however, that this document suggested that he finished work, on both days, at 2:00 p.m., when he had actually finished his work at 11:00 a.m. on December 30, 2019, and had finished work at 10:00 a.m. on December 31, 2019. The accused ultimately agreed that this document did not, in fact, accurately show the times that he “actually worked” at Canada Post.
[80] The accused explained that, after he had finished work on December 31, 2019, he drove to the liquor store and bought a bottle of tequila (for himself) and a bottle of “Jack Daniels honey” (as a “gift” for the complainant for new years eve). The accused testified that he then went home, arriving there at approximately 10:30 a.m. The accused testified that there was no one at home in the apartment when he got there, and he probably changed his clothes and “started drinking” the tequila – “with ice” and nothing else – and “watching television on [his] computer. The accused explained that he did “nothing else” that day, and did not leave his apartment again that day. The accused testified that he “pretty much finished that bottle” of tequila over the course of about “four or five hours.” According to the accused, he did not see anyone, including the complainant, returning home to the apartment that day (or night). He did not call her or text her to see where she was. When he finished the bottle of tequila, the accused “went to bed” in his bedroom and “passed out.”
[81] The accused testified that he woke up the “next day” (January 1, 2020) at about 7:00 a.m. He saw the complainant, who had by then, taken a shower and was dressed. They had no real conversation at that point, just “good morning.” He may also have wished her a “happy new year.” The accused did not, however, ask her where she had been the night before, or tell her about the gift of alcohol he had bought for her.
[82] The accused testified that, at around that point in time, he and the complainant had engaged in “some arguments” about her “moving out” of the apartment.
[83] The accused testified that, on the morning of January 1, 2020, his other daughter came over to the apartment for a visit at around 8:00 or 8:30 a.m., and she spoke to the complainant (her sister). They planned to visit their ill grandmother (i.e. their mother’s mother) that day, and they both left the apartment together between about 8:30 and 9:00 a.m.
[84] The accused testified that he was not sure when he next saw the complainant, although he acknowledged that it might have been at the end of that day, or the end of the following day.
[85] According to the accused, the complainant eventually moved out of his apartment, without telling him about it, probably on January 30, 2020. He simply came home from work that day and she (and her few belongings) were gone. The accused simply thought that maybe she had found a place and had moved out of the apartment. In any event, after that, the accused did not try to contact her – except on one occasion, when he sent her a text message, in late February or March of 2020, after he was “charged.” The accused explained that he had heard, through his other daughter, that the complainant was living in a “shelter” and was “apprehensive and a bit scared living there.” The accused further explained that, at that point, he knew he was not supposed to contact the complainant, and he ultimately pled guilty recently, and paid a $500 fine, for failing to comply with his release order.
[86] According to the accused, he never threatened to rip off the complainant’s arms, nor did he ever engage in sexual intercourse with her, nor did he ever force her to perform oral sex on him, nor did he ever touch her breast. In cross-examination, the accused maintained that he did, in fact, “pass out” on the night of December 31, 2019, after consuming an entire bottle of tequila and being “extremely intoxicated.” The accused also maintained that the complainant was not in the apartment drinking with him that whole day, and he testified that he did not threaten the complainant during any argument, and he did not sexually assault the complainant or have sexual intercourse with her.
4. The Testimony of the Two Police Officers Regarding the Complainant’s 911 Call
[87] Two police officers with the Toronto Police Service, namely, Constable Karan Sagoo and his partner Constable Chrysostomo Gkitsali, testified about their collective response to the 911 call that was placed by the complainant on the evening of December 31, 2019. These two officers were working together, in 33 Division, on the “night shift” between “6:00 p.m. to 6:00 a.m.” that night. Both were wearing their police uniforms and were driving a fully marked police scout car.
[88] The police officers both testified that they responded to a call at 6:46 p.m. that night – apparently there was a young woman “threatening suicide” or who posed a “risk of suicide.” The call also reported some “yelling” by the father of the young woman, who had “threatened” to hit her as part of some type of “family dispute.” So, there were “two reasons” for them to respond to the call. The police officers drove to the address provided, arriving at the location at 7:01 p.m., and parking their police car in the “parking area” outside of the building. The young woman in question was identified as the complainant.
[89] At that point, there was a young woman being assessed by the District Ambulance Services (DAS), inside an ambulance, who had arrived somewhat earlier. Constable Sagoo simply “stood by” while his partner entered the ambulance so he could have a conversation with the young woman. Constable Sagoo never spoke to the young woman, or entered the ambulance himself. Further, both officers agreed that it was entirely possible that the young woman, from her position in the back of the ambulance, may not have been able to see the police scout car where it was parked.
[90] Constable Gkitsali testified that he eventually entered the ambulance, and then spoke with the paramedics and the complainant herself. The officer understood that the complainant wanted to go to the hospital voluntarily. Constable Gkitsali explained that the complainant was clearly very “emotional” at this point, even though she was able to communicate calmly and clearly. He could not recall identifying himself to the complainant (in terms of his name), but he recalled that he did not expressly tell the complainant that he was a police officer (as he was wearing his police uniform).
[91] Eventually, the ambulance containing the complainant and Constable Gkitsali, went to the emergency section of the North York General Hospital, followed by the police car, driven by Constable Sagoo. They all arrived at the hospital at approximately 7:26 p.m., where upon they all immediately went inside the hospital, where the complainant was “registered” by the triage nurse. Subsequently, after waiting some time with the complainant, when they were no longer required, the police officers simply left the hospital.
[92] The two police officers did not subsequently conduct any criminal investigation, or make any arrests or apprehensions, as a result of these events. The police officers understood that the young woman said that there had been some kind of earlier “heated dispute” with her father, and “yelling” by her father, but she later denied that there had been “any violence” or “any assault or threats” to her. Thus, the officers did not conduct any further investigation, or speak directly to the father of the young woman. Constable Gkitsali explained that, given the “clearly emotional condition” of the complainant, he did not think that he should speak to her in any kind of “prolonged way” or “press” the issue with her.
[93] The police received no information about any “alcohol consumption or drinking” by anyone, including the young woman, and they received no information about the “emotional or mental state” of the young woman at the time. Constable Gkitsali testified that he did not smell any alcohol on the complainant in speaking with her, and he did not suspect that she was intoxicated. He noted, however, that she was emotional and crying. He also mentioned that he thought she had a bag or two with her containing some belongings, including a jacket, which she took with her into the hospital.
5. Conclusions
[94] Having reviewed the key aspects of the evidence in this case, I turn now to my conclusions regarding this evidence, and my conclusions regarding the allegations in the indictment.
[95] The complainant was an intelligent, credible and reliable witness. She was clear, forthright, articulate, honest and fair. Her testimony was devoid of any exaggeration, or any attempt to embellish her evidence against the accused. If she could not fully recall the details of some event, she clearly acknowledged this reality. She seemed to go out of her way not to speculate about things that were, in fact, beyond her own personal knowledge, however likely they may have seemed to be. Her trial testimony was not free from a number of frailties and inconsistencies, but she candidly explained how and why those frailties existed, and I accept her explanatory evidence in this regard. Ultimately, there was nothing in her evidence that caused me to, in any way, doubt her sincerity, or the honesty (and reliability) of the main points of her version of events. In short, I believe and accept her evidence. Indeed, I found her viva voce testimony truly compelling.
[96] By way of an example only – perhaps the most obvious example – of a frailty in her testimony, the complainant was clearly mistaken about the timing of her “911 call” prior to the alleged sexual activity on the night in question. The complainant testified that she thought she had placed this “911 call” very late in the evening, perhaps as late as 11:00 p.m. on new years eve. She testified that she did not think that the call was placed as early as 7:00 p.m. However, the two police officers testified that they began responding to the call at around 6:45 p.m., and I have no hesitation accepting their testimony in this regard. According, I accept that the complainant was quite mistaken as to her timing of this “911 call.” However, this honest mistake by the complainant has not caused me to doubt the honesty and sincerity of her testimony about the commission of the alleged offences. She simply thought the call was placed a few hours later that it was actually placed. Indeed, this honest mistake explains how everything happened somewhat earlier in the evening than she suggested by the general timeline evident in her testimony.
[97] Moreover, I find that the complainant is, in fact, telling the truth about what happened on the night in question, and that the testimonial denial of the alleged offences by the accused is simply untrue. Indeed, I am satisfied beyond any reasonable doubt that the accused committed the three alleged offences of: (1) threatening the complainant with bodily harm; (2) sexually assaulting the complainant; and (3) incest, in that he engaged in sexual intercourse with the complainant (incidentally, against her will), knowing full-well that she was his biological daughter.
[98] In other words, applying the three-pronged legal standard articulated by the Supreme Court of Canada in R. v. W.(D.): (1) I do not believe or accept the exculpatory testimony of the accused; (2) the exculpatory testimony of the accused does not leave me with any reasonable doubt as to his guilt; and (3) based on the testimony that I do accept, namely, the honest testimony of the complainant, I am satisfied beyond a reasonable doubt as to the alleged guilt of the accused in relation to the three charges in the indictment against him. See also: R. v. J.H.S., 2008 SCC 30, [2008] 2 S.C.R. 152, at paras. 8-14; R. v. Chauhan, 2014 ONSC 5557, [2014] O.J. No. 4654, at paras. 38-43; R. v. Solomon, 2020 ONSC 2640, [2020] O.J. No. 2526, at paras. 40-44; R. v. D.(J.J.R.) (2006), 215 C.C.C. (3d) 252 (Ont.C.A.), at para. 53, leave denied, [2007] S.C.C.A. No. 69; R. v. T.M., 2014 ONCA 854, 318 C.C.C. (3d) 421, at para. 68; R. v. D.P., 2017 ONCA 263, at paras. 23-25.
[99] I appreciate that there is no corroboration of the testimony of the complainant. Her testimony clearly stands alone against the accused. However, as I have already indicated, there is no legal requirement that there must be corroboration in order for there to be a conviction of the accused for any of the alleged offences. Indeed, s. 274 of the Criminal Code expressly provides that if an accused is charged with either incest or sexual assault, amongst other crimes, “no corroboration is required for a conviction.” Nevertheless, in accepting the testimony of the complainant, I have considered that her evidence is, in fact, not corroborated in any material particular by any other evidence, such as potential forensic or physical evidence. See: R. v. Camp (1977), 36 C.C.C. (2d) 511 (Ont.C.A.), at p. 521.
[100] I note that the complainant, during her testimony, seemed most emotionally upset about the fact that, while she thought she and the accused were, together, building a strong, long-term, father-daughter relationship bond, the accused was, in fact, from the outset, just waiting for an opportunity to engage in sexual activity with her. Recalling his painful comments to her, near the outset of the sexual offences, suggesting that he always thought that she wanted him to engage in sexual activity with her, provoked her to emotional tears during her testimony. I have no hesitation finding that this was an honest, sincere and understandable event – not one simply manufactured, with “crocodile tears” to somehow artificially assist her in her evidence.
[101] As truthful as I found the testimony of the complainant, I must say that I found the testimonial denials of the accused to be wholly incredible – and I reject his evidence entirely. He was a poor witness, who I find to be an incredible and unreliable historian. I watched him carefully as he gave his testimony, and I thought he was most interested in saying whatever he could to escape criminal liability, showing himself to be a good father, and minimizing his role in any argument or conflict and distancing himself from the complainant. In my view, his testimonial denials were simply not plausible or believable, and they left me without any reasonable doubt as to his guilt for these offences.
[102] I place little weight upon the copy of the electronic “work schedule” provided by the accused (Exhibit #2). In his evidence, the accused personally admitted that it did not accurately record the actual hours that he worked at Canada Post during the important time period. Moreover, I found it to be of little assistance in ultimately resolving this case, in terms of who was telling the truth about the alleged offences, and who was not.
[103] One factor that, in my view, supports the credibility of the complainant in this case is that there is no evidence that the complainant had any apparent motive to invent false allegations of threatening, sexual assault and/or incest against the accused. Of course, the accused has no onus to prove that the complainant has a motive to lie – no onus at all. Similarly, the absence of any apparent motive to fabricate does not necessarily mean that a complainant does not, in fact, have some hidden motive to fabricate her allegations. Nor does it mean that the complainant must, therefore, be telling the truth. Not at all. See: R. v. L.L., 2009 ONCA 413, 244 C.C.C. (3d) 149, at paras. 32-54; R. v. B.(R.W.) (1993), 24 B.C.A.C. 1, [1993] B.C.J. No. 758 (C.A.), at para. 28; R. v. Bartholomew, 2019 ONCA 377, 375 C.C.C. (3d) 534, at paras. 10-28; R. v. Mirzadegan, 2019 ONCA 864, at paras. 9-15; R. v. R.C., 2021 ONCA 582, at paras. 51-57; R. v. Ignacio, 2021 ONCA 69, 400 C.C.C. (3d) 343, at paras. 3, 22-23, 29-30, 36, 38-60.
[104] However, in the present case, there was not the slightest realistic suggestion that the complainant had any motive to invent any of her allegations against the accused, and falsely allege that her father committed these offences against her. The accused had kindly given the complainant a temporary place to live, when she needed it the most, and deserved her gratitude (at least prior to his commission of these offences). Further, having carefully watched the complainant as she testified in this case, I did not view her testimony to be at all motivated by any general malice, anger or upset against the accused. Rather, she struck me as a young woman who in court to painfully, but truthfully, explain how she had been threatened and subsequently sexually assaulted and ultimately raped by her own father.
[105] In any event, the absence of any apparent motive to lie is simply one factor that may appropriately be considered in assessing the credibility of any witness. See also: R. v. M.(O.), 2014 ONCA 503, 313 C.C.C. (3d) 5, at paras. 104-110; R. v. LeBrocq, 2011 ONCA 405, 87 C.R. (6th) 85, at paras. 18-21; R. v. D.C., 2017 ONCA 483, [2017] O.J. No. 3138, at para. 8; R. v. John, 2017 ONCA 622, 350 C.C.C. (3d) 397, at paras. 89-98. As Doherty J.A. stated, in delivering the judgment of the Court of Appeal for Ontario in R. v. Batte (2000), 49 O.R. (3d) 321, 145 C.C.C. (3d) 449, at para. 121:
What must be avoided … is any suggestion that the accused has an onus to demonstrate that a complainant has a motive to fabricate evidence, that the absence of a demonstrated motive to fabricate necessarily means that there was no motive, or finally, that the absence of a motive to fabricate conclusively establishes that a witness is telling the truth. The presence or absence of a motive to fabricate evidence is only one factor to be considered in assessing credibility. [emphasis added]
IV
CONCLUSION – VERDICT
[106] In the final result, I am satisfied beyond any reasonable doubt that the accused should be found guilty of all three counts of the indictment, namely: (1) threatening the complainant with bodily harm; (2) sexually assaulting the complainant; and (3) the offence of incest regarding his non-consensual sexual intercourse with the complainant.
Kenneth L. Campbell J.
Released: April 27, 2022
