COURT FILE NO.: CR-2-30000118-0000
DATE: 20220128
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
BCM
Accused
Jason Gorda, for the Crown
Y. Sidky Butler, for the Accused
HEARD: November 8 to 18, 2021
Allen J.
PUBLICATION RESTRICTION NOTICE
An Order restricting publication in this proceeding was made pursuant to section 486.4 the Criminal Code. Any information that could identify the Complainant shall not be published in any document, broadcast or transmission.
REASONS FOR JUDGMENT
BACKGROUND
TEMPORARY SUSPENSION OF THE COURT
[1] This trial was heard and decided during the COVID-19 pandemic under the direction of the Chief Justice of the Ontario Superior Court of Justice’s decision to suspend regular court operations, effective March 16, 2020. It was decided that cases involving urgent matters that can be decided on written materials, or on consent, and not requiring a courtroom would be conducted by teleconference or videoconference. It has since been decided that some proceedings would be held in courtrooms as fully in-person proceedings while others would be held as hybrid proceedings with some participants attending in court and others remotely by Zoom video.
[2] The parties agreed to this trial proceeding fully by videoconference. A registrar and court monitor were present to maintain the court record. The judge, witnesses and counsel attended remotely by videoconference. Witnesses testified under affirmations to tell the truth. Materials were delivered and filed with the court via the CaseLines platform and by email and were shared over Zoom. Judgment was delivered in a hybrid proceeding with the accused and defence counsel attending in the courtroom and other participants attending remotely by Zoom video.
PROCEDURAL BACKGROUND
[3] An application was brought under s. 276 of the Criminal Code to admit evidence of other sexual conduct and on the admissibility of the evidence. The application was held in camera as required under s. 278 and the records of the hearings were sealed to protect the privacy of the complainant and the integrity of the court: R. v. BCM, 2021 ONSC 7489, (Ont. S.C.J.).
[4] The other sexual conduct involves the issue of the paternity of a child born to the complainant. The complainant alleges her father sexually abused her from age 15. The parties agreed, as I did, with the final draft of the areas of questioning to be allowed. I granted the application and allowed the defence to cross-examine in limited areas.
THE SEXUAL OFFENCES
Background
[5] The accused, BCM, stands charged under the Criminal Code in relation to the complainant, BM, with six charges being: making child pornography contrary to s. 163.1(2); possession of child pornography contrary to s. 163.1(4); committing a sexual assault causing bodily harm contrary to s. 272(1)(c); being a person with whom the young person has a relationship of dependency, touching the body of BM contrary to s. 153(1)(a) (sexual exploitation); threatening bodily harm contrary to s. 264.1(1)(a); and having sexual intercourse with BM whom he knew he had a blood relationship with contrary to s. 155(1) (incest).
[6] Sections 163.1(2) and 163.1(4) child pornography offences apply to complainants under 18 years old. For the sexual exploitation charge under s. 153(1)(a), a young person means a person 16 years of age or more but under the age of 18 years.
[7] BM is currently 21 years old. The offences were allegedly committed between April 1, 2014, and December 28/31, 2014 and between October 22, 2016, and June 30, 2018. BM’s date of birth is XXXXXXXX, 2019, so the alleged abuse occurred when she was 15 to 17 years of age.
[8] BM was age 15 when the alleged offences began in August 2016. She gave a video-recorded statement to the police on December 27, 2018, when she was age 17. She was seven-and-a-half months pregnant when she went to the police. The defence did not oppose the Crown’s s.715.1 application to admit BM’s videotaped police statement as an exception to the hearsay rule against prior consistent statements. BM adopted the statement after it was played in court.
[9] After her mother’s and BCM’s marriage broke up in August 2016, BM moved from her mother’s home at XXX Danzig St. in Scarborough to live with her father at XX Antrim, Apt. XXX in Toronto. BM’s brother, KM, then also age 15 years, moved in with the father as well. BCM is BM’s and KM’s father but they have different mothers. BM continued to reside with BCM for about two years until she moved out in June 2018. The father’s apartment is a one-bedroom unit. There are two pullout couches in the living room where KM slept, and the father was supposed to sleep.
BM’s and KM’s Evidence In-Chief
[10] BM testified that as a young girl she had a close relationship with her father. She referred to him as her best friend. They would go places together. He would spoil her by buying her things she wanted. She said her father was never abusive toward her. She would confide in him. BM stated that when her parents separated, she decided to live with her father because she felt she needed her father in her life.
[11] BCM held down two jobs at the time of the alleged offences where he would leave one job and go directly to the second job. The evidence is somewhat unclear, as among BM’s, BCM’s and KM’s testimonies, as to what BCM’s hours of work were and his times of leaving for work and arriving home.
[12] It was BM’s evidence that her father would leave for work around 2:00 p.m. and return home around 3:00 a.m. to 4:00 a.m. the next morning. Her evidence was that he rarely worked on weekends, and if he did, it would be on a Saturday. KM’s evidence was similar to BM’s that BCM would leave for work between 1:00 p.m. and 2:00 p.m. and return between 3:00 a.m. and 4:00 a.m. and rarely worked on weekends.
[13] BCM’s evidence was that he would leave for work between 1:00 p.m. and 2:00 p.m. and return from work hours later between 6:00 a.m. to 7:00 a.m. He said if he got off early, he would return home around 4:30 a.m. and indicated that sometimes he worked on weekends on Saturdays.
[14] BM’s evidence was that the bedroom was supposed to be for her to provide privacy because she was the only female residing there. BCM admits he slept in the bedroom in the bed with his daughter on occasions after he returned home from work. BCM testified however that he mainly slept in the living room. He added that he would sleep in the bedroom if KM and his younger brother were in the living room making noise or if he had back pain.
[15] BM’s evidence was that BCM slept in the bedroom frequently. KM’s evidence was that he slept there more often and only occasionally slept on the sofa in the living room where KM slept. KM would see his father come home in the early morning, take a shower, and go into the bedroom and sleep with his sister. He would see his father sleep in the bedroom on the weekends as well. KM, however, did not always stay at XX Antrim as he would sometimes stay with his girlfriend. His observations are of what he witnessed when he was there.
[16] BM testified, and BCM confirmed, that BM would frequently stay at her mother’s home at XXX Danzig in Scarborough on weekends a few times a month. BM would take her there but not stay over. BCM would also take BM and KM to his mother’s home, their grandmother’s home, on weekends at XXXX Regents Terrace, Unit XX in Mississauga. BM and KM testified they would occasionally spend the night there.
[17] In her police statement, BM initially stated that the sexual exploitation involving her father touching intimate parts of her body, her breasts and vagina, which did not involve sexual intercourse, began about two weeks after she moved in with her father in August 2016. She said later in her police statement that the touching might have started after her October 2016 birthday.
[18] At trial, BM testified she was not sure when the first incident happened. But she thought it might have occurred sometime before Christmas of 2016 which means it might have happened after her 15th birthday. BM testified that the touching happened four or five times. After each abusive act, her father would just act as though nothing had happened. He never mentioned it. BCM acted like what he had done was normal.
[19] BM testified she was shocked and confused when her father did this. She could not put this together with the caring man she knew as her father. BM bemoaned that he once kept her safe from people who could do what he was doing to her. She felt betrayed.
[20] BM testified that because of that abuse, she moved out of her father’s apartment before Christmas 2016 intending to stay with a friend. She ended up staying with her mother. Her father made her return to his apartment. BM did not tell her mother about the abuse. She told no one because she was too afraid and confused.
[21] BM testified that thereafter BCM began coming into the bed and forcing vaginal sexual intercourse, sometimes with a condom and sometimes without. Her evidence was that her father abused her that way about twice a week before she left his home for good in June 2018. Her father never mentioned the sexual abuse to her at any time. He again acted as though his actions were just normal. BM said she had a big argument about her privacy and her freedom to be able to live a normal teenage life. He ignored her complaints.
[22] BM attempted to leave on another occasion to stay with her mother and BCM again forced her to return to his apartment. She again did not tell her mother or anyone. BM testified that her father threatened her on several occasions saying he would hurt her if she told anyone that he was sexually abusing her. Around the time she left his apartment for good in June 2018, BCM again threatened that she would have to keep looking over her shoulder if she told anyone.
[23] BM told the police, and re-stated at trial, that she was sexually active with her boyfriend while she was residing with her father. In her police statement, BM indicated that she believed her boyfriend was the father of the baby. As noted above, BM was seven-and-a-half months pregnant when she met with the police in December 2018. The baby was born on XXXXXXXX, 2019. BM further stated to the police that the last time her father forced sexual intercourse was about two months before she left his apartment in June 2018. That would mean she became pregnant in April 2018.
[24] At trial, BM stated that when she looked at her pregnancy calendar, after speaking to the police, she rethought that timing. She figured that based on the calendar, she would have gotten pregnant at the end of May or the beginning of June 2018. BM indicated that means she was about a month off in her statement to the police on her estimate of when she got pregnant. BM concluded that the sexual assault by her father ended one month before she moved out.
[25] I am not sure that I understand BM’s date estimations. But ultimately it does not matter when she last had sexual intercourse with her father or her boyfriend given the forensic DNA profile analyses of the father and boyfriend which I address below.
BCM’s Evidence and Cross-Examination of BM
[26] BCM’s basic strategy was to try to minimize the opportunities for him to sleep in the bedroom with BM. His evidence about the times of his arrival home places him back home from work hours later than his children testified to. He testified that when he arrived home, BM and KM would be up and getting ready for school. He would take a shower and go to sleep in the bedroom after BM had gotten up.
[27] BCM’s evidence was also that BM would regularly skip school. He described her as “very lazy”. He testified she would still be in bed when he returned from work and admitted that on those occasions he would sometimes sleep in the bed with BM. BCM also admitted he would sleep in the bedroom on weekends when she was in bed if KM and his brother were playing video games in the living room late into the night.
[28] Defence counsel used several types of challenges to BM’s evidence. He attempted to impeach her credibility by questioning some of the more minor details of her account. At the start of his cross-examination, he asked BM to be specific about dates and times.
[29] For example, defence counsel questioned BM about how she was able to recall at trial the exact date of June 21, 2018, as the day she finally left her father’s apartment when she did not provide that date three years previously, closer in time to the event, during her police statement.
[30] BM testified that at the time she spoke to the police, she was trying to block out details of her situation. She explained that although she did not write the date down after she gave her police statement, she remembered June 21st as the date of her last big argument with her father.
[31] Defence counsel also questioned BM on discrepancies in her evidence on the details surrounding the sexual abuse.
[32] Defence counsel questioned BM as to when the sexual touching began. BM admitted she was guessing when she told the police it was about two weeks after she moved to her father’s apartment in August 2016 and then in the same statement said it started after her birthday in October 2016. In the end, BM stated she did not recall exactly when the touching started, that she had just guessed.
[33] Defence counsel also called on BM to recall when the sexual intercourse with her father began. BM responded that she did not have a specific date. But she knew it was after she turned age 16 and that it occurred on a weekend. Defence counsel further asked her to be more specific, asking which day of the weekend. She thought it must have occurred on a Sunday because he was off work on Sundays. Defence counsel also cross-examined BM on her evidence that BCM forced sexual intercourse about twice a week. BM conceded she might have been guessing about the frequency of that type of abuse.
[34] Defence counsel also questioned BM’s delay in disclosing the abuse.
[35] As further discussed below, KM found the pornographic photos of his sister on his father’s cellphone. Without telling BM what he saw, KM suggested that BM speak to their father. BM said she was too afraid and did not speak to her father about it. Days before BM went to the police, KM briefly took BM aside and asked if their father had touched her. BM did not answer him. She just began to cry. KM subsequently told BM’s mother about the photos. Defence counsel questioned BM as to why she did not disclose to KM at that time.
[36] Defence counsel also questioned BM about her delay in disclosing the abuse to her mother. BM told her mother about the abuse on December 26, 2018. He queried why, when she often visited her mother on weekends and had a close and trusting relationship with her, she did not tell her mother during the two years of the alleged abuse.
[37] BM responded that she was very confused and terrified to tell anyone that her father was abusing her. She was afraid of her father’s threats. BM explained she did not want to be the one who raised the issue first. But once her mother raised the issue as a result of KM telling her mother about the photos, BM felt more comfortable telling her mother.
[38] BCM testified in his own defence. He flatly denied the sexual touching and sexual intercourse allegations.
[39] BCM admitted he slept in the bedroom with BM on an unspecified number of occasions. But when confronted several times with having opportunities to commit sexual assault, BCM’s answers were evasive and unresponsive. He did not address the question of opportunity. He simply repeated adamantly that he loved his daughter and would never do that to her. The best he could do was attempt to downplay how often he slept in the bed with his daughter which of course is no answer to the allegations.
[40] During the examination-in-chief of BCM, defence counsel employed the tactic of attempting to discredit BM’s character through BCM’s evidence.
[41] Defence counsel elicited from BCM condemnations that his daughter was a perennial liar, unruly, and very lazy, constantly truant or late for school, drank alcohol and smoked marijuana in excess - without putting those disparaging claims to BM in cross-examination. Defence counsel raised those questions in breach of the rule in Browne v. Dunn (1893), 1893 65 (FOREP), 6 R. 67 (U.K. H.L.). The rule requires that in the interests of fairness where an opposing party intends to challenge the credibility of a witness, the party must alert the witness, while in the witness box under cross-examination, to the intended impeachment and offer the witness the opportunity of explanation.
[42] I reject BCM’s disparagement. Not only was eliciting that evidence unfair in itself but it has negligible if any probative value in relation to the allegations before the court when considered on the whole of the evidence.
The Forensic DNA Analysis
[43] Forensic DNA evidence is central to determining some of the sexual offences, in this case, sexual assault and incest. To this end, the police sent BCM’s and the boyfriend’s, EM’s DNA to the Centre for Forensic Services (“the CFS”) for analysis. The Crown called the officer in charge of the investigation, DC Sheena Cannon, to provide evidence about the collection, labelling and storage of the specimens at the police division in preparation for delivery to the CFS for analysis. There is no issue with the custody, handling, continuity and testing of the DNA specimens. The Crown called Sarah Johnston to provide scientific interpretations and opinions.
[44] Reliable DNA evidence can assist in a variety of ways, for instance: by guiding and narrowing the police investigation; by reliably identifying the perpetrator; by excluding or exonerating other potential sources of the DNA; by corroborating a victim’s police statement; and by providing evidence that confirms the occurrence of the offence. Those considerations assisted my determination in this case.
[45] Sexual assault offences most frequently present “he-say-she-case” circumstances. For obvious reasons, there are rarely third-party witnesses to such offences. Most often the trier of fact is faced with determining the credibility of the accused and the complainant weighed on the totality of the evidence.
[46] Where reliable scientific data such as DNA is introduced to an investigation involving a male perpetrator and a female victim, “he-say-she-say” credibility assessments do not guide the pursuit of the truth. Where there is reliable DNA, it becomes pivotal to the trier’s search for the truth. The case becomes more of a “he-say-she-say, with an added, DNA-say” situation where the case does not rise or fall entirely on the credibility of the perpetrator and victim. With acceptance of the DNA findings, the DNA is the main event on at least one of the sexual offences in this case. DNA has the final word.
[47] There is no dispute on the qualification of Sarah Johnston as an expert. I qualified Sarah Johnston as an expert in the area of “body fluid identification and/or DNA analysis and interpretation, including the deposition, transfer and persistence of body fluids/DNA”. Ms. Johnston has been employed with the the CFS for 20 years. The focus of her undergraduate and graduate university studies was forensic science and genetic nuclear biology. Ms. Johnston has been qualified as an expert in 14 trials in the Ontario Superior Court of Justice and the Ontario Court of Justice.
[48] The question before Ms. Johnston in the first instance was to determine whether BCM is the father of his daughter BM’s baby girl. In the second instance, she was tasked with testing whether EM, BM’s boyfriend, is the father of the child.
[49] For the first analysis, the police provided Ms. Johnston with DNA specimens from BCM, BM and the child. She wrote two DNA profile reports, one dated August 26, 2019 and the other dated September 24, 2019. DNA was extracted from a blood sample from BCM and cheek swabs from BM and the child. She performed analyses on the three specimens to determine whether BCM could be excluded as the biological father.
[50] Ms. Johnston explained that to determine paternity an analysis must be done of the alleles, that is, the pair of genes that is inherited from the biological mother and father of the child. The test in this case was done on 15 genetic locations. An individual inherits two alleles for each gene, one from each parent. Obligate alleles are the alleles at each test location that the alleged father must have if he is the biological father of the child.
[51] Ms. Johnston explained that if the two alleles are the same the individual is homozygous for that gene. If the alleles are different the individual is heterozygous. If the obligate paternal alleles in the child all have corresponding alleles in the alleged father, the alleged father is included as the biological father. Conversely, if the paternal alleles in the child do not have corresponding alleles in the alleged father, the alleged father is excluded as the biological father.
[52] The forensic findings were that the obligate paternal alleles in the child all had corresponding alleles in BCM and consequently BCM cannot be excluded as the biological father of the child. Specifically, the test results estimate that it is 4,000 times more likely that BCM is the biological father of the child than for a random man from the population being the biological father, assuming BM is the child’s biological mother.
[53] In response to the prospect that BM’s boyfriend is the father of her child, after the trial commenced, the Crown requested a forensic analysis of EM’s DNA. An analysis of EM’s DNA similar to that performed with BCM was undertaken where specimens from BM, EM and the child were analyzed. The conclusion in Ms. Johnston’s third report, dated October 15, 2021, was that EM is excluded as the biological father of the child.
[54] The defence did not call a DNA expert and did not raise any meaningful challenge to the Crown’s expert. To try to sidestep blame, BCM suggested that because BM’s brother, his son KM, or an uncle, would possess common DNA with BCM and the baby, it could have been another such relative who fathered the child. That view was unequivocally debunked by Ms. Johnston under cross-examination based on the analysis of the obligate paternal alleles.
[55] The science establishes, and I accept, that BCM is the biological father of the child.
Effect of DNA Findings on Sexual Offences
[56] It is not controversial to say it requires only one instance of intercourse to cause a pregnancy. I can therefore make an immediate finding that BCM committed a sexual assault on BM vaginally without a condom on at least one occasion and thereby also committed incest on his biological daughter.
[57] The Crown through the DNA evidence has therefore succeeded in proving BCM’s guilt of sexual assault and incest beyond a reasonable doubt.
[58] BCM is alleged to have committed multiple sexual assaults and sexual touchings over the two years from 2016 to 2018. A finding of guilt on a singular incident of sexual assault can assist with analyzing the evidence of the other sexual offences as part of the overall evidence. But the singular finding of guilt does not prove the commission of the other offences.
[59] That is, the DNA results do not establish that BCM sexually assaulted BM on more than one occasion as alleged. Nor do the DNA results prove the allegations of multiple sexual touchings. Determinations on the other areas of sexual offences are a matter of credibility as between BM and BCM to be assessed on the totality of the evidence in a somewhat modified “he-say-she-say” context.
[60] Courts have developed well-known principles to guide assessments of credibility when a defence is called which advances evidence contradictory to the Crown.
[61] The burden falls to the Crown to prove BCM’s guilt of each of the offences. Where credibility is at issue the law is clear that the trial court does not determine the accused’s guilt by treating the evidence as a credibility contest between the opposing sides. This would unfairly place the burden of proof on the accused. Where the accused testifies and credibility is a pivotal issue, the Crown’s burden of proving guilt beyond a reasonable doubt must be applied to the issue of credibility: R. v. W.(D.), [1991] 1 S.C.R. 742 (S.C.C.).
[62] BCM has flatly denied all allegations. I am attuned to the case law that has spoken about flat denials by an accused.
[63] An accused is entitled to flatly deny accusations and not be subjected to adverse findings based solely on the denial. To reject defence evidence only on the basis that it was a flat denial would be to fall into error. A flat denial is often the only available defence for the accused. Their only recourse may be for them to say they did not do it. The accused’s evidence must be analyzed in the context of the evidence as a whole: R. v. C. (R.H.), 1996 821; (1996), 104 C.C.C. (3d) 413 (Ont. C.A.).
[64] It is also an error to reject the defence evidence without any analysis of the defence evidence and find it does not raise a reasonable doubt for the simple reason the trier of fact believes the Crown witness. To make this error is to run afoul of R. v. W.(D.).
Credibility and Childhood Sexual Abuse Allegations
[65] The law is sensitive to the circumstances of child victims of sexual assault and has developed special principles to guide the assessment of their evidence.
[66] Delay by children in reporting sexual abuse is not uncommon. Reluctance to report abuse often stems from fear of being disbelieved or of an adverse effect on family relationships. Children are often threatened that the abuser will harm them, or the child will be taken away from the family if they tell anyone.
[67] BM who alleges sexual abuse from ages 15 to 17 years delayed in disclosing for some two years. Her allegation is made against her father, on whom she was dependent and was a person in a position of trust and authority over her. BM alleges he threatened her to ensure her silence. These factors must be considered.
[68] Delay by children in reporting abuse, especially involving a family member, should not be viewed through the old stereotypic lens as a sign of fabrication or falsehood:
It surely would not surprise the jury to hear, for example, that some children who are sexually abused by a parent are so humiliated that they do not want to tell anybody but want instead to take the secret to their graves. This jury must decide whether, on the basis of their experience in life, this complainant acted after the alleged incident in a way that is consistent with her story. To assess that, the jury must consider the state of mind of the witness at the time, her age and level of maturity, her sense of confidence and composure, and the relationship between her and her alleged abuser. It may well be that the jury can draw no conclusions of consequence about her subsequent behaviour and will decide that it is not a telling point one way or the other on the truth of her story.
[R. v. M. (T.E.), 1996 ABCA 312 (Alta. C.A.), at para. 11; see also, R. v. D. (D.), [2000] 2 S.C.R. 275, 2000 SCC 43 (S.C.C.), at paras. 31 and 32; R. v. B. (C.), 2008 ONCA 486 (Ont. C.A.)]
[69] BM could not recall certain details like dates and times in relation to the abuse. This too must be considered:
While children may not be able to recount precise details and communicate the when and where of an event with exactitude, this does not mean that they have misconceived what happened to them and who did it. In recent years we have adopted a much more benign attitude to children's evidence, lessening the strict standards of oath taking and corroboration, and I believe that this is a desirable development. The credibility of every witness who testifies before the courts must, of course, be carefully assessed but the standard of the “reasonable adult” is not necessarily appropriate in assessing the credibility of young children.
[R. v. B. (G.), 1990 7308; and [1990] 2 S.C.R. 30 (S.C.C.), at pp. 54-55]
[70] It stands to reason that the closer in terms of a family relationship the abuser is to a child victim, the more difficult it will be for the child to disclose the abuse. The abuser is BM’s biological father. How much closer can a family member be and how much more difficult can disclosure be?
[71] BM attempted to leave living with her father on two occasions before she left for good. She spoke of her father’s threats and his forcing her back to his apartment. She told no one of the abuse and for the two years she remained living with her father.
[72] Too often myths and biases come into play when considering the post-assault conduct of a victim of a sexual offence, myths employed to scrutinize the credibility of the victim. Courts have been sensitive to the need to caution against this tendency.
[73] Sexual assault victims must not be held up against an idealized standard of conduct. There is no gold standard on how such persons will conduct themselves. Courts have rejected, as impermissible stereotypical bias, adverse credibility findings based on such conduct as a failure to make a timely complaint, a failure to demonstrate avoidance behaviour or a change in behaviour. That conduct must not be the subject of any presumptive adverse inference: R. v. D.D., 2000 SCC 43, [2000] 2 S.C.R. 275 at paras. 63-65, (S.C.C.).
CONCLUSION ON SEXUAL OFFENCES
[74] BM’s evidence is that her father slept with her in the bedroom on numerous occasions during the nearly two years she lived with him. He slept with her more often than not. KM’s evidence was similar. What KM observed when he was at the apartment was that his father slept in the bedroom with his sister almost always and rarely slept on a couch in the living room where he was. BCM admits he slept in the bedroom on some occasions.
[75] Even though he admitted he slept with his daughter, BCM outlandishly denied the obvious, that he had the opportunity to sexually abuse her. I find his attempt to distance himself from guilt by trying to disavow opportunity in that way to be as futile as it is absurdly self-serving. BCM had many opportunities to sexually abuse his daughter.
[76] Understandably, no one had estimates on just how many times BCM slept in the bedroom with BM. But BM’s and KM’s evidence was in tandem that this occurred more often than BCM is prepared to admit. In the context of my overall credibility findings as further developed below, I am more inclined to accept BM’s and KM’s evidence about BCM arriving home at the earlier times and being present more frequently on weekends which of course allowed him to sleep more often in the bed when BM was there.
[77] I did not find as strikes against her credibility BM’s lack of recall of details like dates, numbers and times of the abuse, the timing of the last incident of intercourse between her and father and her delay in disclosing the abuse.
[78] At trial, she was testifying more than five years after the abuse began. Five years is a long time to recall details even outside the added effect on the memory of having to dredge up and tell strangers about what her father did to her. BM testified that when she went to the police and testified at trial, she had to overcome years of trying to block her terrifying memories. Having to unblock memories would understandably tap into worry about the future wellbeing of her now two-year-old daughter and herself.
[79] BCM asserted that if he had been sexually abusing BM, she could have left his apartment and gone to live with her mother. I believe BM’s evidence that she attempted to stay with her mother twice and he forced her to return to his apartment. As I find below, I also believe she was afraid of him because he threatened her. But even apart from a threat factor being in play as it was in this case, victims often decide to remain with their abuser for a variety of reasons, among them being financial dependency, the protection of other family members or a desire not to destroy the family.
[80] It is hard to imagine the trepidation and embarrassment BM felt going to the police, seven-and-a-half months pregnant, with a sexual assault allegation against her father, knowing he could possibly be the baby’s father. That her father could be proven to have fathered the baby was her humiliating reality during the months of her pregnancy. How harrowing to testify about one’s place in one of the most universally repugnant taboos, incest and pregnancy involving a father and his biological daughter.
[81] It took consummate courage to come forward to testify in a public forum about the amoral atrocities of her father, a father she loves and who was once her trusted protector. Certainly much more to be hailed than doubted for daring to come forward at all.
[82] Incest is a crime that needs no embellishment or exaggeration to convey its repugnancy. BM was, not unexpectedly, very emotional during parts of her testimony. But she managed to maintain near supernatural objectivity in speaking of her father. BM did not embellish the nature or frequency of her father’s threats. I point this out to simply describe her evidence on this charge aware that non-embellishment is a neutral factor on credibility: R. v. Alisaleh, 2020 ONCA 597, at para. 16, (Ont. C. A.)
[83] As well, BM did not go to the police alleging BCM was the father of the baby even knowing that was a strong possibility. BM lamented the lost friendship with her father. She expressed no bitterness toward him when bitterness is a natural human response to such gross parental betrayal, which bodes in favour of her credibility considering the reliable forensic evidence supporting guilt.
[84] No matter the exact number of times BCM slept in the bed with his daughter he had many opportunities to touch her private parts and force intercourse on her. It is not necessary to know how many times BCM slept in the bedroom to decide whether sexual abuse occurred. The fact is that the DNA evidence demonstrates he did have sexual intercourse with his daughter and fathered the baby.
[85] BCM is entitled to deny guilt since it is the Crown’s burden to prove. On the sexual assault and incest charges, the Crown has brought expert evidence to show BCM is 4000 times more likely to be the father over a random person. Even still, BCM remains entitled to maintain his innocence at trial even against all odds. But he does so at great jeopardy to his credibility under these circumstances. That is what I ultimately find. The greatest detriment to BCM’s credibility rests in his capacity to adamantly deny having intercourse with his daughter where science has reliably showed he did.
[86] What I saw is a man capable of perpetrating blatant and shocking lies no matter the cost to others. BCM was willing to disparage his vulnerable daughter. And if committing incest against her was not reprehensible enough, in a brazen maneuvre to avoid culpability, BCM was even willing to descend to the loathsome depth of incriminating BM’s brother, his own son, KM, as the father of the child. And as addressed below, he even implicated his children as creators of the pornography on his cellphone.
[87] On the whole of the evidence, I cannot accept BCM’s denials of sexual touching and multiple episodes of forced sexual intercourse. I find BCM committed multiple incidents of sexual assault which resulted in the impregnation of his young biological daughter and sexually exploited her over the period cited in the indictment. Nothing in BCM’s evidence or that of the Crown gives me a reasonable doubt about his guilt. The Crown has succeeded in establishing beyond a reasonable doubt BCM’s guilt of sexual assault causing bodily harm, sexual exploitation and incest.
CHILD PORNOGRAPHY
Expert Evidence on Cellphone Extraction
Examination-In-Chief
[88] The Crown called Officer Sushil Saini as an expert in the area of forensic cellphone examination including data analysis and extraction. The defence did not dispute Officer Saini’s qualifications as an expert and I declared him an expert in forensic electronic device examination and extraction.
[89] Officer Saini has been a police officer with the Toronto Police Service (“the TPS”) for 17 years. For the past seven years, he has been assigned to the Child Exploitation Section of the TPS as a computer forensic examiner tasked with examining electronic evidence. He has been qualified as an expert in some 12 previous trials in both the Ontario Superior Court of Justice and the Ontario Court of Justice. He has a Master’s Degree in computer forensics from a university in Ireland and has taken numerous specialized courses.
[90] Officer Saini was tasked with examining a Huawei cellphone, model # G7-103, that the police seized from BCM. There is no issue that BCM owned the cellphone. The officer retrieved both a SIM card and a memory card from the cellphone. He used a forensic tool to extract data from the SIM card. He made an exact image of the memory card which he used to analyze its contents. He then used a LACE carver to examine forensic images, a LACE carver being a forensic tool used to extract videos and images from devices. A log file or LACE Report was then created of the contents. The extracted data was placed on a LACE server for viewing by, DC Cannon, the officer in charge.
[91] The LACE Report was made an exhibit at trial. The LACE Report shows all the files, images and videos and the details of the files on the memory card from BCM’s cellphone.
[92] Officer Saini explained that he used a further tool called an Axiom data extractor to extract additional data from the memory card. He next extracted information from the Huawei cellphone itself. He used a further tool, a Universal Forensic Extraction Device (“a UFED”), to extract the full data from the cellphone which was parsed into a viewable format and transferred to DC Cannon.
[93] Once the extractions were complete, and the data exported to DC Cannon, Officer Saini’s job was complete. Officer Saini testified that DC Cannon then took over to analyze the images and videos from the memory card. Upon reviewing the LACE Report data, she found images she thought required further analyses by Officer Saini. DC Cannon identified 102 images as child pornography. She confirmed this in her testimony. Ninety-nine of those images had been deleted by the user. The focus of Officer Saini’s analysis is on the 99 deleted images.
[94] A hyperlink is associated with each of the images which when clicked goes into further details in the files and images and allows a view of the image. The details include times and dates when the image was placed on the memory card and the date it was modified as well as details of where the images are located on the memory card.
[95] When photographs are taken by a cellphone camera, the images go into a default file labelled DCMI which contains information about when the photograph was taken. Officer Saini observed some image files that did not go into the default DCMI file but rather went into a folder named “Pictures New Album” which he concluded was created by the cellphone user when the user copied images from the DCMI file to the Pictures New Album.
[96] There is data captured by LACE that indicates whether an image was deleted and recovered from the recycle bin or whether it was recovered with a special tool if it had been deleted to the recycle bin and then emptied from the recycle bin. An image recovered after it was emptied from the recycle bin goes into an “unallocated space” or free space on the memory card. Those files sometimes lack file system information such as the file name, the creation date, the access date and the modified date.
[97] There is a location on the memory card, the Exchangeable Image File Format (“the EXIF”), that houses some of the information missing from files found in the unallocated space, files that have been deleted and recovered after being removed from the recycle bin. The EXIF provides a source of information that contains data that is automatically embedded into an image by the camera in the device that took the image. The EXIF captures data like the name of the device used and features of the camera on the device in addition to dates and times that the photos were taken. The EXIF on the deleted photos shows the cellphone to be the same make and model as that retrieved from BCM, a Huawei, model # G7-103.
[98] Also important is that the LACE Report contains the coordinates for where a photo was taken accessed through on a GPS (“Global Positioning System”) chip. The GPS chip records the locations the photos were taken and the times and dates they were taken. If the GPS coordinates are entered into an internet mapping platform, the address where the photograph was taken can be identified.
[99] The coordinates for several of the 99 photos cited in the LACE Report were entered into a mapping platform. It is revealed that photos were taken at XX Antrim Cres. in Scarborough, XXXX Regents Terrace in Mississauga and XXXX Drakestone Cres. in Mississauga. Some images in the EXIF data lack location coordinates and Officer Saini explained that this occurs if the location services on the phone are turned off when the photo was taken.
[100] DC Cannon testified that she entered both XXXX Regents Terrace, BCM’s mother’s address, and XXXX Drakestone, into Google maps. A satellite image shows the XXXX Regents Terrace address to be a residence in a townhouse complex. The XXXX Drakestone address is a detached home a street over from the Regents Terrace address situated such that its backyard abuts the backyard of XXXX Regents Terrace. The satellite image shows the addresses are 41 metres apart.
Cross-Examination
[101] Defence counsel queried whether Officer Saini could distinguish from looking at an image whether it was taken as a “selfie” or not. He testified he would require more information like whether the person who took the picture had used special tools. He opined that looking at the image itself certain indicators can be considered such as the angle of the photo, the proximity of the subject in the photo to the lens, the width of the landscape. A wider landscape indicates it is not a selfie unless special tools have been used by the subject to take a selfie.
[102] Defence counsel also questioned whether Officer Saini could discern from the LACE data whether any files on BCM’s cellphone had been transferred from another cellphone. Officer Saini responded that he did not examine the cellphone and data to address that inquiry.
Re-Examination
[103] Crown counsel sought clarification whether it could be determined from files not sent to the DCMI file, that is, files located in the EXIF, whether they were transferred from another device. Officer Saini reiterated that EXIF data contains date stamps and times for the creation of the image. On the whole there is only one minute’s difference between the time the images were taken in the EXIF data and the date the image was created. Officer Saini opined that if an image had been taken by another cellphone and moved over to BCM’s cellphone the time difference would be greater than one minute. He concluded that with the reliability of the EXIF data that the possibility is that the image was not transferred.
BM’s and KM’s Evidence
[104] BM and KM were shown several of the 99 images that were extracted by Officer Saini from BCM’s Huawei cellphone. Ten photos were shown to BM. The photos depicted BM in bed appearing to be asleep lying in various sexually explicit physical poses and stages of undress and nakedness. In the photos her breasts, buttocks and genitalia are exposed. Both BM and KM recognized the photos to be of BM. Neither knew how the photos got on their father’s phone. BM and KM testified they had never previously seen the photos outside of court proceedings. BM was not aware of the photos being taken.
[105] BM believes she is sleeping in each of the photos and testified she has no idea who removed her clothing or who took the photos. She indicated she could tell by her hairstyle in one image that she was 17 years old. BM could identify the location where some of the photos were taken and could rule out XX Antrim and XXX Danzig as some of the locations. She testified she never slept at XX Antrim after she left in June 2018.
[106] Other photos BM identified as having been taken at her mother’s home on Danzig. She could say this because she recognized the bedspread and curtains that were in her bedroom at her mother’s home. She believed she might have been under age 16 because she moved to her father’s apartment when she was age 15. Other photos BM recognized were taken at her father’s apartment on Antrim when she was between 16 and 17 years old. She could identify her age by her hairdo.
[107] BM could not recognize where other photos were taken. She knew those photos were not taken at Antrim or her mother’s home on Danzig. BM testified she did not recall being at XXXX Drakestone Cres. in Mississauga, an address that Officer Saini testified was identified through the GPS coordinates on the photo.
[108] KM testified about how and when he discovered the photos on his father’s Huawei cellphone. He said that before he moved to Antrim, he was at BM’s mother’s home on Danzig using his father’s cellphone to play video games and he stumbled upon photos of his sister sleeping and naked.
[109] As noted earlier, BM recalled KM telling her there were “weird” photos on their father’s phone that she should check this out and speak to him about it. He said the photos shocked him. KM said he could see her genitalia in the photos. KM said shortly afterwards his father asked him if he had seen something on his cellphone that he should not have seen to which he responded, “No”. BM never did speak to her father about this.
[110] BM testified that after KM spoke to her, she tried to look at her father’s cellphone to see what KM was talking about but BCM would always look over her shoulder. So she never had the opportunity to see the photos. KM said he later told BM’s mother about the photos. This is what prompted BM’s mother in December 2018 to ask BM if BCM had ever touched her, which in turn resulted in BM disclosing to her mother and then the police.
[111] KM testified, and BCM confirmed, that BCM left his Huawei cellphone in his dresser drawer where BM, KM and the younger brother had access to use it for video games and social media. KM testified, and BM and BCM confirmed, that his father was not very adept with electronic devices and that he needed assistance with basic functions. KM believed his father would not be able to create files and folders for photos on his cellphone.
BCM’s Evidence
[112] BCM denied he took pornographic photos of his daughter. He said he did not know how they got there. He pointed out that his cellphone was not password protected and that if he had put the pornography on his cellphone, he would not have made the cellphone available to others. As convincing as BCM thought he was, he was not.
[113] BCM testified that when he would take BM and KM to BM’s mother’s home at XXX Danzig in Scarborough and the grandmother’s home on XXXX Regents Terrace in Mississauga on weekends, the children would freely use the phone for video games and social media. It was the only device with internet access. BCM insisted that BM used his cellphone every day to talk to her friends, play video games and access social media. BM’s evidence was that she rarely used the Huawei cellphone.
[114] When shown some images, BCM said he recognized that it was his daughter in the photos. He denied knowing who took the photos at BM’s mother’s home. He denied knowing who took the photos at XX Antrim. He said he had not seen those photos before he saw them at court. When asked how he thought the photos got on his cellphone he implicated his children. BCM also implicated the children’s friends who would come over to his apartment when he was at work. This of course raises the question of what purpose anyone, particularly BM and KM, would have in taking such lurid photos and leaving them on BCM’s cellphone. BCM even went so far as to deny he had the opportunity to take the photos despite admitting he owned and used the cellphone.
[115] BCM testified that he would leave his Huawei cellphone at home every day when he went to work so he could call and check up on his children. BCM said he would borrow a friend’s phone at work to call home to his Huawei cellphone. This, of course, raises the further question of whether BCM expected the children to call his friend at work if they needed to talk to him, which would require the friend to be at work, and if he was at work, to take the cellphone to BCM so he could speak to them. This is instead of availing himself of the convenience of the landline in his apartment.
[116] BM testified there was a landline in her father’s apartment that she and KM could use to make and receive calls. Only when confronted on cross-examination with BM’s evidence did BCM admit to having a landline. BM advanced a convoluted and implausible way of keeping in touch with the children that made no practical or common sense all to incriminate his children for the pornography.
[117] BCM was questioned about the residence at XXXX Drakestone in Mississauga where Officer Saini said one of the images extracted was taken with BCM’s Huawei cellphone. He stated that he did not know that address.
CONCLUSION ON CHILD PORNOGRAPHY
[118] For the following reasons, I find that BCM made and stored child pornography on his cellphone. The court had both direct and circumstantial evidence to rely on in arriving at this conclusion.
Direct Evidence
[119] The cellphone belonged to BCM. The police seized a Huawei, model # G7-103 cellphone. Officer Saini’s extraction analysis establishes that a Huawei, model # G7-103 took the 99 photographs housed on the cellphone. Additionally, the dates of the images that were taken reveal that BCM had possession of the cellphone during those dates.
[120] BCM does not deny having possession of the cellphone but denies taking the photos. The 99 images were extracted from the Huawei phone seized from BCM’s bedroom. It was the only cellphone he had before he took over BM’s iPhone after having it repaired. He, therefore, had the opportunity to take the photos of his daughter.
[121] The LACE analysis establishes, from some of the photos presented to Officer Saini during his testimony, that the photos were taken by the camera of a Huawei, model # G7-103 cellphone. As Officer Saini explained, this is established by the fact that some of the photos went directly into the DCIM folder. Officer Saini concluded from this that he was certain the photos were taken by the camera of BCM’s Huawei cellphone.
[122] Other photos, not located in the DCIM folder, were located in a file called New Photo Album, which was located in the EXIF data, which images contain embedded data such as dates and times. In answer to the defence’s theory that the photos were transferred to BCM’s Huawei cellphone from another device, Officer Saini explained that it could be determined from the original date and time embedded in the images and the dates the photos were taken, that in most cases the photos were taken within minutes of the embedded dates and times.
[123] This, in Officer Saini’s opinion, means the photos were taken with the Huawei phone and transferred to the New Photo Album. There would be a greater difference in the dates and times if the photos had been taken at a different location by another device and then transferred to BCM’s cellphone.
[124] I find BCM’s attempt to delete the photos and remove them from the recycle bin folder in the circumstances signals a consciousness of guilt about having the photos on his cellphone.
Circumstantial Evidence
[125] The Supreme Court of Canada opined that if there are reasonable inferences other than guilt, the Crown has not satisfied proof beyond the reasonable doubt standard. Inferences other than guilt must be reasonable in the totality of the evidence and lack of evidence when assessed through the lens of common sense. “Other plausible theories or other reasonable possibilities must be based on logic and experience applied to the evidence or the absence of evidence, not on speculation”: R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, at paras. 36 and 37, (S.C.C.)
[126] A basic point for consideration with the circumstantial evidence is the likelihood there was another Huawei, model # G7-103 cellphone used by some other person who took multiple photos of BM and then transferred those photos to BCM’s Huawei, model # G7-103 cellphone. That, on its face, does not comport with a reasonable likelihood.
[127] Also inconsistent with the photos being taken by another cellphone and then transferred is the substantial number of photos taken on a particular date and the time periods between the photos. It would be highly unlikely, given the short time periods between the embedded times and the times the photos were taken, that the photos were taken by another device and transferred to BCM’s cellphone.
[128] The majority of the photos referred to in evidence were taken with BCM’s Huawei cellphone at locations where the evidence shows BCM would often be present. The evidence is that BCM rarely worked on weekends. Many of the photos were taken early Sunday mornings or early Monday mornings at times BCM would often not be working which adds to his opportunity to have taken the photos.
[129] In answer to the defence theory that the photos are selfies, I agree with the Crown that common sense says that is not reasonable. BM appears to be asleep and the distance BM is from the device that took the pictures and angles of her body on the bed make selfies unlikely. As well, the photos were taken close together in time, making the likelihood of BM taking the photo and then quickly lying down and then getting up quickly and taking another very improbable. There is no evidence that BM had access to any type of technology that could faciliate this.
[130] Many of the photos were taken at BM’s mother’s home on Danzig on August 12, 2016, which BM could identify as her bedroom by the bedspread and curtains in the bedroom. BCM admits to taking BM there on weekends. The photos, all taken within 10 to 15 minutes of each other depict BM lying in various sexually explicit positions.
[131] BCM attempted to maximize the opportunities for his children and their friends to have access to his cellphone when he was not at home. As I found earlier, his evidence that he would leave his cellphone at home, requiring him to borrow a cellphone at work so he could check on his children, makes no sense since he had a landline at home. BCM’s nonsensical lie in this area was a weak attempt to incriminate his own children and their friends who, if he were believed, would have endless opportunities to take the pornographic photos in the form of selfies by BM or non-selfies by the others.
[132] There is no reasonable inference that can be drawn that KM or his or BM’s friends took the photos. There is little or no factual foundation to arrive at that conclusion.
[133] It makes no sense if KM took the photos that he would have drawn BM’s and her mother’s attention to them on his father’s phone. He would not have asked BM to look into it and speak to their father about it. There is no evidence that the friends were at the locations where the photos were taken other than BCM’s apartment.
[134] Further, I do not accept the defence theory that BCM was so unsophisticated with cellphone technology that he could not have created the New Photo Album folder and that this should lead to the conclusion that BCM did not take the photos. The folder was on his cellphone and either he learned how to create a folder or someone created it for him. On all the evidence, there is nothing based on that theory from which the court can reasonably infer someone else took the photos on his cellphone.
[135] There is no clear explanation for the GPS coordinates identifying the Drakestone address as a location for some images, an address that neither BCM nor BM was familiar with. The grandmother’s residence and the Drakestone address are close to each other. So it could be that the internet map platform is not always precise in identifying locations. Whatever the case, given the totality of the other evidence that points to guilt, this does not rise to the level of establishing reasonable doubt that BCM took the pornographic photos with his Huawei cellphone.
Conclusion
[136] I find the circumstantial evidence dovetails smoothly with the direct evidence working together to complete the picture of BCM being the person who owned the Huawei, model # G7-103 cellphone and took the 99 pornographic photos of his daughter that DC Cannon identified as child pornography in her analysis. BCM has betrayed his young daughter’s precious privacy. What he did was surreptitiously capture and preserve the images to entertain his ongoing and wanton viewing pleasure. Despicable is an understatement.
[137] BCM’s take no prisoners, scorched-earth defence strategy etches a stunning picture of depravity and heartlessness. What I see is a father with callous disregard for the wellbeing and plight of his daughter and his baby and a profound indifference towards his young son. By any measure BCM has transcended the bounds of human decency. He will live on in ignominy for his deeds.
[138] On the totality of the evidence, I find the Crown has proven beyond a reasonable doubt that BCM possessed and made the child pornography on his cellphone.
THREATEN BODILY HARM
[139] BM testified credibly about threats her father made to not tell anyone about the sexual abuse. Her evidence was that on more than one occasion, he told her if she told anyone he would hurt her. And when she was arranging to move out of his apartment for good, he told her she should keep looking over her shoulder if she tells anyone. BM interpreted those words as threats to physically harm her. BCM denied this.
[140] I have no reason to doubt BM’s evidence given the strength of her overall credibility and the fact, as pointed out in other cases, that physical threats are not uncommon occurrences in sexual assault cases involving young victims.
[141] I find the Crown has proved beyond a reasonable doubt that BCM threatened BM with bodily harm.
VERDICT
[142] I find BCM guilty under the Criminal Code of making child pornography contrary to s. 163.1(2), possession of child pornography contrary to s. 163.1(4), sexual assault causing bodily harm contrary to s. 272(1)(c), sexual exploitation contrary to s. 153(1)(a), threatening bodily harm contrary to s. 264.1(1)(a) and incest contrary to s. 155(1).
[143] Convictions will be registered accordingly.
Allen J.
Released: January 28, 2022
COURT FILE NO.: CR-2-30000118-0000
DATE: 20220128
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
BCM
Accused
REASONS FOR JUDGMENT
Allen J.
Released: January 28, 2022