Court File and Parties

COURT FILE NO.: 8576/22 DATE: 2023-09-27

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HIS MAJESTY THE KING Marie-Eve Talbot, Counsel for the Crown

- and -

R.D. Kenneth G. Walker, Counsel for the Accused

HEARD: August 14, 15, 16, 2023

RASAIAH J.

REASONS FOR JUDGMENT

CHARGES

[1] R.D. is charged, as amended on consent:

1. That he between the 20th day of July in the year 1990 and the 19th day of July 1992 at 8 Patricia Street in the Town of Blind River in the said Region, did for a sexual purpose touch C.H., a person under the age of sixteen directly with a part of his body, to wit his penis, contrary to section 151 of the Criminal Code;

2. That he between the 20th day of July in the year 1990 and between the 19th day of July 1992, at 8 Patricia Street in the Town of Blind River in the said Region, did commit a sexual assault on C.H., contrary to section 271 of the Criminal Code.

SUMMARY OF THE ALLEGATIONS/CASE

[2] This case is a historical sexual assault case. The complainant alleges that in 1990 from age 12 (just after her 12th birthday) to when she moved in 1992 when she was age 14, she was sexually assaulted by R.D. The first incident involved vaginal penetration. This occurred at R.D.’s mother’s residence in Blind River where C.H. testified he was living, which was a neighbouring residence to hers. After the first incident, about a few weeks after, the sexual assaults continued, which mainly consisted of aggressive forced fellatio to ejaculation, which she described as “blow jobs”. While not often, sometimes the assaults consisted of R.D. making C.H. stimulate his penis to ejaculation, which she described as “hand jobs”. The complainant testified that she believes the change in the nature of the assaults was because she bled from first incident and that it scared R.D.

[3] As to how this started, C.H. testified that R.D. telephoned her residence when she was about age 11 requesting hairspray. She would go over to bring him hairspray so he could get ready to go out with friends. She testified that when she did this tickling, giggling, and wrestling occurred. Then she would go home. R.D. would call once or twice a week to borrow hairspray. On one of the occasions of bringing over hairspray, close to the time frame following her 12th birthday, the complainant testified that R.D. brought her to his bedroom, put her on his bed, a mattress on the floor, took down her pants and vaginally penetrated her. She bled. She believes R.D. was scared that this happened. She left and went home. She said nothing to anyone out of fear of getting in trouble. A few weeks after the penetration incident, the telephone calls resumed for hairspray once to twice a week until she was about age 14. On each of the subsequent incidents, the complainant states she was forced to perform either fellatio on R.D. or manual hand stimulation of R.D.’s penis to ejaculation mainly in the kitchen/dining room of the home. The complainant stated that the assaults stopped because she moved away. At age 14, she left her mother’s care and was placed in the care of the Children’s Aid Society (“CAS”) outside of Blind River.

[4] The complainant alleges that she and R.D. were always alone at his mother’s residence during all incidents of assault. R.D.’s mother would be at the complainant’s home visiting with the complainant’s mother. C.H. testified that her mother was very good friends with his mother at the time. She recalled that his mother was at her home visiting her mother often.

[5] Later in life, in or about April of 2020, R.D. and the complainant started spending time together. They entered a consensual short lived romantic relationship. After the break-up, R.D. was alleged to have been engaging in harassing/stalking behaviour towards the complainant, which led to the complainant reporting R.D. to police for harassment which led to the complainant to disclose the allegations that are before this court.

ACCUSED’S PLEA AND POSITION

[6] R.D. entered a plea of not guilty to both charges. He denies all the allegations. R.D. states that none of what the complainant alleges ever happened; the complainant is fabricating. Defence presented theories of motive to fabricate based on circumstances surrounding R.D.’s relationship with the complainant, and the break-up. The complainant was married when she and R.D. had their relationship and continues to be married. The theory presented was that C.H. was concerned about her husband’s reaction to their relationship. Further, defence submits a theory that the complainant was at her wits end with R.D. at the time she reported R.D. to police for harassment. C.H. learned that R.D. was going to be released on an undertaking by police. The disclosure occurred only after the complainant learned that the police were going to release R.D. and the allegations were concocted to stop R.D. from being released.

[7] The defence submits that R.D. should be believed and presented well without credibility issues and/or inconsistencies in his evidence; that R.D. was forthright and answered all questions asked of him for the Crown in the same manner as for his counsel.

[8] Defence raises credibility and reliability issues concerning both C.H.’s and R.H.’s evidence; submits that reasonable doubt exists on the evidence; the Crown has not met its burden; and R.D. should be acquitted of both charges.

DISCUSSION/ANALYSIS

Law/Legal Principles

[9] Section 151 of the Criminal Code includes:

Every person who, for a sexual purpose, touches, directly or indirectly, with a part of the body or with an object, any part of the body of a person under the age of 16 years

(a) is guilty of an indictable offence…

[10] Section 271 of the Criminal Code includes:

(a) Everyone who commits a sexual assault is guilty of an indictable offence…

[11] The accused started this trial presumed to be innocent of the charges he is facing. The Crown has the burden of displacing that presumption with proof beyond a reasonable doubt that he committed each offence with which he is charged. The burden never shifts. Reasonable doubt is based on reason and common sense. It is a doubt that arises logically from the evidence or an absence of evidence.

[12] It is important in sexual offence cases to avoid stereotypical reasoning in making determinations of credibility and reliability. Victims of abuse will behave idiosyncratically to abuse, and often counterintuitively, and the law does not require a victim of sexual assault to avoid in order for a court to find him or her credible: R. v. A.R.J.D., 2017 ABCA 237, [2017] A.J. No. 746 (C.A.), at para. 58; aff’d 2018 SCC 6, [2018] S.C.J. No. 6, at para. 2. I have kept this in mind when considering the various explanations of C.H.

[13] In R. v. M. (A.) (2014), 2014 ONCA 769, 123 O.R. (3d) 536 (C.A.), Watt, J.A. reviewed applicable principles for assessing the evidence of witnesses as to credibility issues. I excerpt the following from paras. 9-13:

9 … [E]very witness, irrespective of age, is an individual whose credibility and evidence should be assessed according to criteria appropriate to his or her mental development, understanding and ability to communicate: R. v. W. (R.), 1992 SCC 56, [1992] 2 S.C.R. 122, … at p. 134 S.C.R.

10 … [N]o inflexible rules mandate when a witness' evidence should be evaluated according to "adult" or "child" standards. Indeed, in its provisions regarding testimonial capacity, the Canada Evidence Act, R.S.C., 1985, c. C-5 eschews any reference to "adult" or "child", preferring the terms "14 years or older" and "under 14 years of age". An inflexible, category-based system would resurrect stereotypes as rigid and unyielding as those rejected by the recent developments in our approach to children's evidence: W. (R.), at p. 134 S.C.R.

11 … [D]espite this flexibility, there are some guiding principles. … [H]owever, the presence of inconsistencies, especially on peripheral matters such as time and location, should be considered in the context of her age at the time the events about which she is testifying occurred: W. (R.), at p. 134 S.C.R. See, also, R. v. Kendall, 1962 SCC 7, [1962] S.C.R. 469.

12 …[O]ne of the most valuable means of assessing witness credibility is to examine the consistency between what the witness said in the witness box and what she has said on other occasions, whether or not under oath: R. v. G.(M.)… (1994), 1994 ONCA 8733, 93 C.C.C. (3d) 347 (Ont. C.A.), at p. 354 [,] leave to appeal to S.C.C. refused, [1994] S.C.C.A. No. 390. Inconsistencies may emerge in a witness' testimony at trial, or between their trial testimony and statements previously given. Inconsistencies may also emerge from things said differently at different times, or from omitting to refer to certain events at one time while referring to them on other occasions.

13 Inconsistencies vary in their nature and importance. Some are minor, others are not. Some concern material issues, others peripheral subjects. Where an inconsistency involves something material about which an honest witness is unlikely to be mistaken, the inconsistency may demonstrate a carelessness with the truth about which the trier of fact should be concerned: G. (M.), at p. 354.

[14] Reasonable doubt applies to the issue of credibility. On any given point, I may believe a witness, disbelieve a witness, or not be able to decide. I need not fully believe or disbelieve one witness or a group of witnesses. If I have a reasonable doubt about R.D.’s guilt arising from the credibility of a/ witness/es, then I must find him not guilty. Just because I disbelieve some of a witnesses’ evidence does not mean I must disbelieve it all.

[15] Reliability is a separate issue from credibility. As noted by Watt, J.A. in R. v. C.(H.), 2009 ONCA 56, [2009] O.J. No. 214 (C.A.), credibility focuses on a witness’s veracity, while reliability has to do with the witness’s accuracy. Accuracy involves the ability to observe, recall and recount events that are in issue. Of note, at para 41, the court wrote, “Any witness whose evidence on an issue is not credible cannot give reliable evidence on the same point. Credibility, on the other hand, is not a proxy for reliability: a credible witness may give unreliable evidence.”

[16] R.D. testified and the court must consider R. v. W.(D.), 1991 SCC 93 (“W.D.”). If I do not believe the accused, I must consider the evidence of the accused in the context of all the evidence in the case, including the evidence of the complainant and other witnesses who testified. If, after considering all the evidence I am left unsure as to who I am to believe, then the presumption of innocence and burden of proof on the Crown requires me to acquit: R. v. S. (J.H.), 2008 SCC 30, [2008] 2 S.C.R 152, at para. 11.

[17] The Supreme Court of Canada in R. v. Gagnon, 2006 SCC 17, at para. 20 has recognized that the assessment of credibility is a challenging task:

Assessing credibility is not a science. It is very difficult for a trial judge to articulate with precision the complex intermingling of impressions that emerge after watching and listening to witnesses and attempting to reconcile the various versions of events.

[18] I remained mindful that it would not be the proper legal approach to analyze the evidence as credibility contest and I have not.

Evidence and Submissions Considerations

[19] Although I may not refer to every single piece of evidence and/or every submission made, I have considered same.

Credibility and Reliability: General

[20] I did observe that R.D. presented as clear, straightforward, and forthright. He did not hesitate in answering questions. He did not present as trying to side-step answering any questions. He was polite. He was not combative. He did answer questions of the Crown in the same manner as he did for his own counsel. R.D. presented as honest when giving evidence on life events, and experiences he had, since age 15. At one point, R.D. was faced with the Crown suggesting to him that he was wrong about his age, when he was in jail. He did not agree and stood by his answers. A criminal record would demonstrate that he was correct and not the Crown. That being said, there were facts that R.D. was hazy on or unable to confirm or deny. For the most part these difficulties presented as either genuine confusion with the question and/or was related to passage of time, but nonetheless present. He was forthright when he lacked knowledge to either confirm or deny some information that was put to him. He readily agreed to scenarios that were possible when they were, and he did not present as attempting to distance himself from possible scenarios. He provided explanations on some of the issues/evidence that did not present as illogical or incredible.

[21] C.H. presented as nervous which I classified as not unusual, or of any significance, given the circumstances and substance of the trial. There were however more than just a few times that she hesitated/paused in answering questions. Some of the pauses presented as long. I acknowledge that care is to be taken when assessing demeanour and, in this case, these pauses. I acknowledge that same could be attributed to nerves but there were some pauses that presented as odd, or as reluctance to answer, or as trying to anticipate next questions. It was suggested to C.H. that all her hesitations, described to her as long hesitations, amounted to her trying to figure out where defence counsel was going. She disagreed. I observed that C.H. also responded to some questions with “what is the point”, that I interpreted as C.H. questioning what, or why, she was being asked the question, not appreciating what was being asked of her. I observed that there were some occasions, she presented as not listening. I found that C.H. was not always correct with dates which is again understandable but nonetheless present. Passage of time I concluded was relevant for C.H. as with R.D. I considered that there were also some explanations from C.H. that were also not illogical or incredible like with R.D. However, there were pieces of C.H.’s evidence that I was unable to reconcile on the evidence, and/or presented as contradictory and/or as inconsistent and/or as confusing and/or as not aligning with the evidence of R.H. as submitted by the Crown. For me there were both credibility and reliability issues that could not be resolved in favour of C.H.’s evidence.

[22] R.H. was upfront that he used poor language and got easily frustrated. However, in my observation, R.H. presented as more than that. He was combative and disrespectful. In addition, some of his evidence, I would qualify as “odd”. He also demonstrated a strong anger towards R.D. and hatred. There were pieces of his evidence that I was not able to reconcile and/or presented as contradictory and/or inconsistent and/or incredible. There were pieces of his evidence that started out one way but developed another. There were times R.H. presented as simply unbelievable.

[23] Based on their evidence regarding their relationship, as odd as it was, I cannot in this case ignore that there were opportunities for C.H. and R.H. to discuss the case prior to trial and even before R.H. spoke to police. I am not persuaded that they did not. Accordingly, there were both credibility and reliability issues for me related to same.

[24] The Crown acknowledges some of the difficulties with R.H.’s evidence, including his presentation and demeanour but still suggested that his evidence on certain points was credible and reliable by comparison to the evidence of C.H. “Matching” evidence does not make same true or reliable.

[25] In sum, there were issues for me with all witnesses, as will be articulated herein.

[26] Additionally, I state, generally, there were issues that arose for me based on either an absence of, or lack of cogent evidence to help me resolve the case to the standard required of a criminal case. As such, I found myself in a position where I was unable to accept some of R.D.’s, and C.H.’s evidence and/or further, was unable to decide whom to believe.

[27] I appreciate that it is up to the Crown to decide how to call their case, but the standard of proof is beyond a reasonable doubt. There is no doubt in my mind that it was known or ought to have been anticipated that R.D. would deny the allegations, and that credibility and reliability would be key issues for this case, including absence of motive to fabricate. The accused’s version of events for 1990 to 1992 diametrically opposed the complainant’s version.

Admissions/Non-contentious Issues

[28] Identity of the accused was admitted. Jurisdiction was admitted. The date of birth of the accused was admitted, namely, October 10, 1964. It was agreed that voluntariness of any utterances made by the accused that he may be cross-examined on was admitted.

Age, and Consent Collectively (Applicable to Both Counts)

[29] In this case, the questions of age and consent are not real issues from the following perspective. The complainant was under the age of 16 during the time frame in question, based on her birth date and the time frames that she provided for the acts complained of. The complainant was born on July 20, 1978. The complainant testified that the acts complained of commenced the summer shortly after she turned 12 and ended when she was placed in the care of the CAS at a location outside of Blind River, which she places at age 13-14. From the first day of January in the year 1990 to 31st of December in the year 1992, the complainant’s age would have been 11 to 14 years of age. She turned 12 on July 20, 1990, and 14 on July 20, 1992. C.H. testified that she did not see R.D. after she left Blind River until April of 2020. The accused’s evidence is that nothing ever happened between him and the complainant of a sexual nature at all until much later on in life, namely as adults, after April of 2020.

Touching, Sexual Purpose/Sexual Nature, Intention, Collectively (Applicable to Both Counts)

[30] As to touching, intention, sexual purpose and/or nature of the acts, these are not real issues either, from the perspective that the court received evidence from C.H., that if accepted/believed, establishes that touching took place on multiple occasions during the time frame, that the touching was direct, that it involved R.D.’s penis in each instance, that it was intentional, and it was for a sexual purpose/of a sexual nature. The first incident was described as vaginal penetration of C.H. by R.D. with his penis. The subsequent incidents were described as fellatio and/or hand stimulation by C.H. of R.D.’s penis to the point of ejaculation. The incidents went on for 10 to 15 minutes in duration.

Balance of Issues in this Case: General

[31] Based on the above, in my view, this case comes down to whether the Crown has established beyond a reasonable doubt, that the acts complained of occurred; and/or whether reasonable doubt arises related to credibility and/or reliability of the evidence of a witness or witnesses.

Place/Opportunity (Applicable to Both Counts)

[32] C.H. and R.D. have very different versions on where R.D. was living in 1990 to 1992 and how often he may have been at the residence where C.H. states the acts complained of occurred.

[33] The complainant testified that she was residing with her mother along with her mother’s boyfriend, her two sisters and her brother in Blind River in 1990 to 1992 until she went into the care of CAS at age 13-14. She would have turned 14 in July of 1992.

[34] There is no question on the evidence that C.H.’s 1990-1992- residence was very close to the accused’s mother’s residence in Blind River; they were neighbours. The court was advised that initially, there was a suggestion, that came from the accused’s mother, not the accused, that the accused’s mother was not living at her said former residence at the time. This issue was investigated, and it was confirmed that the accused’s mother was in fact residing there at the time.

[35] C.H. testified that R.D. was living with his mother; that R.D. had a bedroom there. C.H. stated that R.D.’s mother was at her home all the time; his mother spent hours and nights there; their mothers were best friends. It was not explained how C.H. knew that R.D. was in fact living at his mother’s residence or provide a cogent basis for her evidence. Seeing R.D. once to twice a week for 10 to 15 minutes after a call for hairspray for two years, and the mothers being friends, do not confirm that R.D. was living there.

[36] R.D. denies that he was living at his mother’s residence at anytime after he the age of 20, and further testified that he was not living in Blind River from on or about June/July 1990/summertime of 1990 to October 10, 1990. He was living in Whitby. This is the time frame during which C.H. testified the first incident, the vaginal penetration incident occurred. Three weeks after this first incident, she testified that go to the residence to bring hairspray started up again, once to twice a week, and went on for approximately two years. Therefore, the start of and a portion of the subsequent acts complained of fall in the time frame of when R.D. testified, he was living in Whitby.

[37] R.D. testified that he had resided with his mother before age 15. At the time he was residing with his mother, and his younger brother. After being released from jail, at age 20, he returned to Blind River where he couch-surfed, meaning he slept at residences of different friends. He testified he was age 25 when he moved to Whitby. He is sure and there is no doubt in his mind. After returning to Blind River, he remained in Blind River but never resided with his mother. He couch-surfed in Blind River until he was about 30 years old. He was not employed when he got back. He was partying and doing whatever he wanted. Currently, he and his mother have separate residences in the same retirement building.

[38] R.D. did not dispute that his mother lived near C.H.’s residence in 1990 to 1992 because he could not confirm if she did nor not. He did not present to me as resisting that his mother lived there during that time frame and presented as he accepted that she had. He presented as not being able to remember and trying to express not having a memory of it. He remembered moving her to a retirement home but not that time frame either. R.D. had the opportunity to see and was not contesting Crown information that his mother lived at the said residence during in the 1990s.

[39] When asked, R.D. stated that everyone he couch-surfed at was either gone or passed away. He recalled two specific people. He had a belief where they were residing now (outside of Blind River) but does not know. R.D. does not have a phone or computer to reach out to these people. He agreed he did not ask the Crown or police to help him find them and said “sorry”. The Crown’s questions related to this, in my view, fails to recognize that it is not R.D.’s onus to prove this point; the passage of time in this case is not insubstantial; he was not presenting as always being elsewhere; and there was no evidence that the Crown did not know or could not determine the whereabouts of either C.H.’s mother and/or R.D.’s mother, and/or could not elicit more evidence from C.H. on this point.

[40] R.D. did not present as trying to distance himself from having attended his mother’s residence in the time frame. R.D. testified that while he was couch-surfing his relationship was good with his mother. They had their little arguments, here and there, as parents and children do. When he first returned to Blind River at age 26, his mother did not know he had returned. He did not go to visit her. He was in a party phase and not working when he returned, doing whatever he wanted. Over time however he saw his mother and visited her. When this happened, he recalls that it was at the retirement home that they had visits but readily agreed it could have also been at her then residence in 1990 to 1992.

[41] R.D. was consistent in stating that when he returned to Blind River, he did not reside with his mother at any time. R.D. also explained that he could not live with his mother after age 18. Her housing was subsidized housing with rules as to who could reside there. He could not have his mother’s residence as his address after age 18. It could not be his permanent residence. He testified that he did not stay there ever because he did not want to get his mother in trouble with housing. He did not use his mother’s place as a place to sleep after he got out of jail, not even one night over all of the years. Albeit, couch-surfing, on R.D.’s evidence he had places to stay when he returned to Blind River. His explanation was not, nor did it present as illogical or incredible. He lived a transient lifestyle from age 15 to 30. He travelled to many places all before the age of 17. The only evidence contradicting R.D.’s evidence is the general statement of C.H. that R.D. lived there, and she went over there once to twice a week. Even the fact that he used his mother’s residence to get ready to go out once a week is not enough in my view. I am not able to resolve whether R.D. was living with his mother, without further cogent evidence.

[42] As to anyone else residing with his mother at the time, R.D. testified that he believed his brother was gone by then. R.D. does not know when his brother moved out of his mother’s home. He does not know where his brother was living at the time. He explained, “my brother is my brother, but we do not talk much as brothers do”. His brother was 12 when he went to jail at 17. He agreed that it was hard to remember all of that. C.H. however testified that she knew of R.D.’s brother and her evidence does not contradict that R.D.’s brother was not residing there at that time. R.D. was not attempting to place someone else as living with his mother at this time. R.D. did not attempt to give evidence on something he did not know.

[43] Accordingly, except with respect to acts complained of that occurred June/July 1990 to October 10, 1990, which I will address separately, there is no question that at the very least that both C.H. and R.D. were residing in Blind River during times that C.H. was 12 to 14, that R.D.’s mother, at the very least, was residing at the neighbouring property in Blind River, that the property had two bedrooms, one of which at the very least was R.D.’s former bedroom, that this residence was very close to C.H.’s then residence, and that R.D. could well have visited that specific residence between 1990 and 1992.

[44] As such, there is evidence that can place R.D at the home in Blind River, and thus the issue requires further consideration.

[45] C.H. testified that they were always alone at his mother’s residence. C.H. testified that it was always after R.H. would call her for hairspray, and always when his mother was visiting her mother at C.H.’s residence. C.H. testified that this occurred at least once to twice a week for two years. C.H. testified that R.D. was always borrowing hairspray from “them”.

[46] There were many trips to deliver hairspray if I accept C.H.’s evidence. Once to twice a week for two years with a three-year gap produces a range of 101 to 208 times. I acknowledge that it is, however, not impossible. It does however raise questions as to whether anyone else knew this was going on. C.H. did not give evidence that no one knew she was bringing hairspray over. Her evidence was that hairspray was being borrowed from “them”. She was 11 living with 5 other people at the time. Based on C.H.’s evidence, R.D.’s mother would always be at her home too when these calls came in for hairspray. There was no suggestion that could be reasonably drawn from C.H.’s evidence that no one else knew that R.D. called C.H. to borrow hairspray, and that C.H. regularly brought hairspray to R.D. following a phone call, once to twice a week for two years.

[47] C.H. testified that she was bringing the hairspray it to be nice. After a while, C.H. agreed that she understood that things would happen to her when she got calls for hairspray. Part of her evidence on the acts complained of included that she did not understand intercourse then or the other sexual acts. She also stated that she did not understand what was happening was wrong or illegal. She did not understand this until she was age 16. As to why she did not tell anyone at that time what was happening to her, she testified that she did not tell anyone because she thought she would get in trouble. This was not explored, meaning, what she thought she would get in trouble for or why. The context included C.H.’s evidence that she did not say anything to R.D. after each act complained of. She testified that at the time of the incidents, he said nothing to her. There is no evidence in this context that R.D. made threats, and/or gave directions to C.H. to keep their interactions a secret and/or stated that she or he would get in trouble if she told anyone. She testified that R.D. would simply pull his pants up and act like nothing happened. She would take off and go home after like nothing happened. All of that being said, I am mindful in assessing this evidence to recognize that victims may and do behave counterintuitively, and C.H. on her evidence was 11 when she started delivering hairspray on her evidence. That is young. And more simply, she wasn’t asked to clarify and should not be treated as negatively affecting her credibility for these reasons.

[48] C.H. testified that R.D. knew that she always answered the telephone when he would call for hairspray. It was not explored with C.H. as to how it was possible that R.D. would or could know this. Six people, including C.H. were living in C.H.’s home at the time. Without additional evidence, based on the evidence I did have, this statement of C.H. is not enough in the circumstances of this case.

[49] R.D. testified that when he visited his mother at this residence, it was not often, and his mother was always there. The court did not hear from any former members of C.H.’s then residence or R.D.’s mother as to where R.D. was living, the visits to C.H.’s home by R.D.’s mother, phone calls to C.H. from R.D., and/or trips C.H. made to R.D.’s home to bring hairspray etc. C.H. testified that after the first incident she went home and went into the shower for two hours. That objectively is a long shower for a 12-year-old. Based on C.H.’s evidence, it is fair to conclude that R.D.’s mother would have been there along with her mother at the very least at her home on this occasion. C.H. had only been gone for 10 to 15 minutes before returning home. C.H. was bleeding and in pain for days that follows. I appreciate her evidence is that that she did not tell anyone when I write this. Again, she was living in household that included 5 others.

[50] R.D. testified that he never called C.H.’s residence to ask to borrow hairspray. He has never asked any girl for hairspray. His response and reaction left me with the impression that he has never used hairspray. C.H. was not asked if she saw R.D. use the hairspray and/or what she knew about R.D. using hairspray or what she did with it after she brought it, if anything, or if she left it there.

June/July to October 10, 1990: Alibi Evidence (Applicable to Both Counts)

[51] In R. v. Tomlinson, 2014 ONCA 158 at paras. 48-53, the court of appeal wrote:

[48] The principles that govern the defence of alibi are uncontroversial. A brief reference to some of their features is sufficient for our purposes.

[49] First, the Latin word “alibi” means “elsewhere”. When used in the context of criminal prosecution, an alibi is a claim that a person, usually a person charged with a crime, was elsewhere when the allegedly criminal conduct took place and thus it was impossible for him or her to have committed it: R. v. Hill (1995), 1995 ONCA 271, 102 C.C.C. (3d) 469 (Ont. C.A.), at p. 478; and R. v. Wright, 2009 ONCA 623, 98 O.R. (3d) 665, at para. 19.

[50] Second, to constitute an alibi the supportive evidence must be dispositive of the final issue of guilt or innocence of the accused: Hill, at pp. 478-479; R. v. Sgambelluri and Sgambelluri Ltd. (1978), 1978 ONCA 2514, 43 C.C.C. (2d) 496 (Ont. C.A.), at p. 500; and R. v. R.(M.) (2005), 2005 ONCA 5845, 195 C.C.C. (3d) 26 (Ont. C.A.), at para. 31.

[51] Third, alibi, as with any defence, justification or excuse advanced at trial, is subject to the air of reality test or standard described in R. v. Cinous, 2002 SCC 29, [2002] 2 S.C.R. 3: there must be some evidence upon which a properly instructed jury, acting reasonably, could acquit, if the jury believe the evidence to be true.

[52] Fourth, a trial judge is under no obligation to use the term “alibi” in jury instructions on the defence, provided that, when read as a whole, the instructions apprise the jury of the legal effect of the supportive evidence.

[53] Finally, instructions on alibi must relate reasonable doubt to the evidence adduced in support of the alibi. The instructions on alibi should make it clear:

i. that there is no onus on the accused to prove an alibi;

ii. that if the jury believes the alibi evidence, they must find the accused not guilty;

iii. that even if the jury does not believe the alibi evidence, if they are left in a reasonable doubt by it, they must find the accused not guilty; and

iv. that even if the alibi evidence does not raise a reasonable doubt about an accused’s guilt, the jury must determine, on the basis of all the evidence, whether Crown counsel has proven the guilt of the accused beyond a reasonable doubt.

See, R. v. Parrington (1985), 1985 ONCA 3610, 20 C.C.C. (3d) 184 (Ont. C.A.), at p. 187; and R. v. O’Connor (2002), 2002 ONCA 3540, 170 C.C.C. (3d) 365 (Ont. C.A.), at para. 34.

[52] In R. v. Tomlinson, 2014 ONCA 158 at paras. 121-123, the Court of Appeal wrote:

[121] First, proper disclosure of an alibi has two components. The first is adequacy, which relates to the sufficiency of details provided. The second is timeliness. Disclosure should be sufficiently particular to enable the authorities to meaningfully investigate. Disclosure in a timely way allows the authorities sufficient time to investigate: R. v. Cleghorn, 1995 SCC 63, [1995] 3 S.C.R. 175, at para. 3; R. v. Letourneau (1994), 1994 BCCA 445, 87 C.C.C. (3d) 481 (BCCA), at p. 532; and R. v. Nelson (2001), 2001 ONCA 5235, 147 O.A.C. 358, at para. 8.

[122] Second, failure to provide timely and sufficient notice of alibi does not vitiate the defence. The trier of fact may draw an adverse inference when weighing an alibi that has not been disclosed in a sufficient and timely way. In a jury trial, the presiding judge should instruct the jury that failure to make timely and sufficient disclosure of the alibi is a factor the jury may consider in assessing the weight to be assigned to the alibi: Cleghorn, at para. 4; Russell v. The King (1936), 1936 SCC 323, 67 C.C.C. 28 (SCC), at p. 32; and Nelson, at para. 8.

[123] Third, the adverse inference instruction is limited to the defence of alibi. Adverse inference instructions on other issues may compromise an accused’s pre-trial right to silence: R. v. Gottschall (1983), N.S.R. (2d) 86 (C.A.), at p. 91.

[53] R.D. testified that he was in Whitby, Ontario during part of the time frame during which C.H. testified some of acts complained of occurred. If R.D. was in Whitby, Ontario from June to October of 1990 for the entirety of that time, based on C.H.’s evidence it would have been impossible for the first act complained of and some of the subsequent incidents to have occurred as framed by C.H.

[54] R.D.’s evidence about where he was, was not imprecise, meaning, he was confident in his testimony that at age 25 that he went to Whitby, with his friend R.G.; that he was living there in a trailer with R.G., on property that was rented by R.G.’s mother. He went there with R.G. to look for work. The trailer was owned by R.G.’s mother’s then boyfriend. I considered that living in a trailer under the circumstances he did may be something that he would remember. It was unique to the other manners of living he experienced during to that point after he got out of jail.

[55] He was not imprecise as to the fact that once he arrived in Whitby, he remained there until he eventually returned to Blind River around his birthday, October 10, 1990. He recalls that he left Whitby on his birthday. He missed his old friends. He got tired of just sitting in the trailer all the time.

[56] R.D.’s explanations for why he went to Whitby and why he returned to Blind River were not illogical or incredible. He had a history of travelling before he went to jail and since age 15.

[57] However, R.D.’s evidence as to when he arrived in Whitby is imprecise, in that he does not know the date he arrived. He was able to be precise about the season but not confidently provide the month. R.D.’s evidence included that it could have been in June. It developed that he was certain it was summertime. R.D. referenced a memory of pear tree, there being pears on the tree that were small which were taken off by him and R.G., that they hit with a bat, which angered R.G.’s mother. The pears were small because it was summertime and they had not fully developed yet. He stated that would have been in July but again, agreed he was guessing as to the month. He himself stated it was 33 years ago. Further, he also presented as uncertain as to how long he was in Whitby prior to leaving. His evidence produced a range, namely three months, four to five months at the most.

[58] C.H. testified that it was shortly after her birthday which was July 20th, 1990, when the first act occurred. The first act was unique from the other incidents. There was a time after the first incident she did not see R.D. for what she remembers was a few weeks only. C.H. did get confused on dates on more than one occasion at trial. She was a child at the time. There were multiple instances of assault based on her evidence. It was 33 years ago for her too. The Crown’s case is not always dependent upon proof of commission on a specific date at a specific time in cases such as this. At the same time however, C.H. presented her time frame as if she was confident with her memory of it. She related it to her 12th birthday. However, findings are not just based on her evidence.

[59] I recognize that R.D. testified that he was certain he was 25 years old when he went to Whitby. He would have turned 25 in October of 1989. The Crown argued that R.D. is unable to explain how he knows that he was 25 years of age when he was living in Whitby, Ontario. His response was that he just knew, he remembers his age and did not know how to explain. On the one hand, I appreciate that it was 33 years ago, and I do acknowledge that his manner of giving evidence on this point was similar to the manner he answered questions about as to where he was when he was age 17, namely in jail. He did not move from his answer when the Crown more than once mistakenly suggested he was incorrect that he was 17. The criminal record of the accused established that the accused was in fact correct. However, I do not conclude that the manner was the same as submitted by defence. There were indeed hazy parts for R.D.’s as articulated and generally, other hazy parts for R.D. or things he had no memory of, on other issues that he testified to.

[60] The Crown spent time questioning R.D. about his time in Whitby. I do not find it concerning from a credibility perspective that R.D. did not know the name of the landlord, the boyfriend, the bar, and/or could not provide more particulars that he provided concerning his time there and where R.G. and/or M.P. are now. R.D. was staying in the boyfriend’s trailer on the property and there would be no need for him to know the landlord’s name. The boyfriend did not live with R.G.’s mother. R.D. lived in Whitby for a short period, 3 to 5 months. He did not go out much, except with R.G. when R.G. was home. R.D. was not familiar with Whitby.

[61] R.D. agreed that he did not share that he lived in Whitby with the Crown or police directly. He pointed out that no one asked him for other information. His counsel did however write a letter to the Crown. The letter from defence counsel was sent May 26, 2022. It set out that R.D. was relying on the defence of alibi; that R.D. in the summer of 1990 was living in Whitby, Ontario with a friend by the name of R.G. R.G.’s first and last name was provided.

[62] I do not find any issue with the timeliness of the notice given the date of trial in comparison to the date of the aforesaid letter to the Crown. The trial was heard August 14, 15 and 16, 2023.

[63] The argument of the Crown, which I interpreted as being, that R.D. should have, could have, and/or was obliged to provided more detail, such as a specific address and/or contact information for R.G., or the other any of the information that came out in questioning regarding the people he met or saw there, and/or the source of income he had when he was there. R.D. did disclose the specific name of the city and the friend he lived with. As to not providing a specific address, R.D.’s evidence was that he lived there for a short period and in a trailer on the property. It was 33 years ago. It would not be unusual in such circumstances for an individual not to remember the address and/or specific details. As to not providing contact information for R.G., R.D. did not and still does not have contact information for R.G. There was an absence of evidence that R.D. knew that what he provided was considered insufficient by the Crown and/or police. While there is indication that the Crown and/or police attempted to confirm the residence of R.D.’s mother in 1990 to 1992, there is an absence of evidence that police attempted to locate R.G or expressed that insufficient detail was provided. A previous trial date set for this matter of February 27, 2023, was adjourned to permit investigation of alibi evidence, namely, R.D.’s mother’s belief that she did not live at the residence near C.H.’s then residence 1990 to 1992.

[64] There is an absence of physical evidence or other witness evidence that contradicts either C.H. or R.D.’s evidence.

[65] At the end of the day, I find that I cannot ignore that R.D. was hazy as to when he went to Whitby, and hazy as to the time frame that he was there. There were other moments of inability on the part of R.D. to remember what was going on in 1990 to 1992 on other issues. He could not remember things like where his mother was living in 1990, where his brother was living, and/or other details of his life, such as where he was couch-surfing. There are other instances. These are just some exampled. R.D. was admittedly partying during this time frame also. He has travelled many times. He seemed to hesitate and/or not remember the order of the places he travelled to before he went to jail. Just because he was right about where he was when he was 17 does not make him right about where he was when he was 25 in my respectful view. He does not have perfect memory of all instances of his life during 1990 to 1992 on the whole of the evidence.

[66] Based on the above, I am not persuaded that I should accept that R.D. at age 25 was in fact elsewhere in Whitby for the suggested time frame, and as such, that it would have been in fact impossible for him to have committed the first and some of the subsequent acts complained of.

Relationship Between C.H. and R.D. 1990 to 1992

[67] R.D. and C.H. also presented very different versions regarding when they met and their relationship in 1990 to 1992.

[68] R.D. denies that he met C.H. prior to April of 2020. He knew of her or saw her around but did not meet her or have any relationship with her until then. He saw her around prior to 2020 but did not talk to her. He was not moved from this position at any time.

[69] R.D. could not advise as to the first time he ever saw C.H. or her age at the time. He readily agreed she would have been a child but does not know how old she was. He agreed that he was around age 26 when C.H. was living near his mother. He agreed that he probably saw C.H. around that residence at the time. He agreed that C.H. was a neighbour and he knew that. Her backyard was facing his basement driveway. The residences were really close to each other. He knew C.H. lived with her mother because she was a child. He knew C.H.’s mother, but not to talk to her. He also remembered C.H.’s siblings lived there too.

[70] R.D. denies that he started calling C.H. for hairspray to style hair in 1990; that he would be alone at his mother’s residence during this time; that C.H. would come over alone or that they were ever alone there during which time they would be involved in wrestling, tickling, giggling and/or touching of a sexual nature. He denied all the allegations of interactions, non-sexual and sexual, that C.H. testified to. His position is that none of it ever happened.

[71] C.H.’s evidence did not include how often she was outside or how often or under what circumstances she saw R.D. in the neigbourhood or otherwise outside of the hairspray deliveries.

[72] R.D. did not know when C.H. moved from her mother’s residence. He agreed it could have been as C.H. stated, namely 1993 to 1994. He cannot recall the last time he saw C.H. around when he visited his mother then. He has no specific memory of C.H. as a child when he was living with his mother. He may have seen her playing outside. He was minding his own business.

[73] R.D. testified that C.H. never talked to him and he did not talk to her when she was a child. His explanation was that “she was a kid”. He was doing his own thing. There was no reason for him to talk to her. He did not even say “hi” to her. He kept to himself. When he was asked if he disliked her, his response was that he did not know her so, how could he dislike her. I interpreted R.D.’s evidence as communicating that at the age he was then, namely 26, he would not have talked to a child “just because”, or just to be friendly. He had lots of friends. Further, he did not just say “hi” to strangers. He testified that he would not know how to strike up a conversation. His mind is like that. He could strike up conversations with his friends because they were his buddies, and he knew them. People he did not know, he did not say “hi” to. He did not say “hi” to any child that he did not know. When he returned to Blind River, he was partying, not working, couch-surfing, and doing whatever he wanted. His explanation in this context is not illogical and did not present as incredible in this context.

[74] C.H.’s explanation of when she met and how she met R.D. lacked cogent detail. Additionally, her explanation about what her relationship was with R.D. was confusing. She stared out by stating that she met R.D. between 11 and 12. He was her neighbour and that is how she met him. When asked for further information as to how she came to meet him, her response was that her mother and his mother were best friends. I did not know what this meant, and she was not asked. I do not know if he was introduced to her or if he was just known to her as being her neighbour before she first met him. You do not have to have a relationship with someone to meet them. C.H. was asked to clarify, particularly, asked, who R.D. was to her between 1990 to 1992. To her, R.D. she testified was “just her neighbour and friend”. The choice of the word “friend” presented as odd at first given the allegations, but she was 11 and there no evidence as to what that word meant to her. However, C.H. would also testify at trial regarding her relationship with R.D., prior to the first assault incident, that they were just neighbours, there was no relationship at all, and she saw him on average once or twice a week at his mom’s house which she related to bringing him hairspray. She went there because R.D. called for hairspray, and she would drop it off. She did this to be nice. The most time she stayed there was 10-15 minutes. He would do these things to her and then she would go home. She was asked to clarify. This response seemed to suggest that she was not friends with him 1990 to 1992. She would then testify that before the acts complained of began, she saw R.D. at his house, once or twice a week approximately, when he would call and ask for hairspray. She was about age 11 when the calls for hairspray started. She always went alone, and he was always the only one in the home. Before the acts complained of began, she described that she and R.D. played around, tickled, wrestled, and giggled; that kind of stuff would happen when she brought over the hairspray. There was a lack of evidence as to how long this went on before the first incident. If this went on, then this may be why she used the word “friend”. However, C.H. would also testify in the context of the fellatio and hand stimulation incidents, that R.D. was aggressive towards her, forcing her head or hand, and she did not like it; that they never talked after each incident; before the incidents it was a call for hairspray; she was there for only 10 to 15 minutes each time. As to how the interaction escalated from her bringing hairspray to the fellatio and hand jobs, after the first incident, her response was that when she got there, he would unzip his pants. It was hard to determine if this was evidence that C.H. was developing as she testified or if she misunderstood what was being asked of her and/or the account just came out in a disorganized way. This evidence had presentations of all three scenarios.

Relationship Between C.H. and R.D. 1992 to April 2020/Motive to Fabricate

[75] The Crown bears the burden to establish that there is an absence of motive to fabricate. The accused does not have to prove anything.

[76] C.H. testified that she did not see R.D. from 1992 to April of 2020. They had no contact.

[77] The way R.D. explained he met C.H. in April of 2020 coincided with C.H.’s account. They saw each other when R.D. was visiting a friend. C.H.’s husband was residing in the same apartment building as the friend at the time. R.H. had the same account.

[78] C.H.’s evidence was that she went fishing with family everyday, with her husband R.H., and daughter, and they would visit for the whole day. R.D. joined in after they connected at the apartment building. R.H. agreed that he, R.D., C.H. and R.H.’s daughter S.B., went fishing together on a number of occasions.

[79] In April of 2020, C.H. testified that she and R.D. were just friends. They were friends for awhile and then their friendship turned into a relationship in July of 2020. It lasted less than two weeks.

[80] Regarding having the opportunity to talk about R.D. when she was taken in to care by CAS, at 14. C.H.’s evidence was that she did not want to disclose that to anyone, and her plan was to take it to her grave. When it was put to her that she did not tell CAS when she had the opportunity, she responded that “they were not there to help me from day one so why would I tell them.”. I did not view this explanation as illogical or incredible. She had also given evidence at trial that she did not understand that what happened was wrong or illegal until she was age 16.

[81] The two 911 calls to police on or before July 29, 2020, did not include C.H. reporting the acts complained of that are before the court. C.H. did not disclose to police until after she was advised that R.D. was going to be released. This is not contentious. C.H. explained that it was because her 911 calls had nothing to do with the allegations, and at that time, she did not want to say anything to anyone about them. This explanation was not illogical or incredible. On July 29, 2020, when C.H. called police C.H. reported many things all related to harassment. C.H. told police that this harassment included numerous unwanted phone calls, unwanted letters being sent and put under her door which she did not want, that R.D. was swearing at her in public and calling her names in public, like “whore” and “slut”, that R.D. was showing up at her home when she told him to stay away, that she did not like R.D. calling her daughter S.B. and saying things about her, that R.D. was trying to find out where she was, and was bad mouthing her. It was suggested to C.H. that she was at her wits end, fed up and upset and she responded, “not like that”. The answer at first seemed odd. She agreed she told police she feared for her safety and remarked it was because he would not stop stalking her. She did ultimately agree that she was at her wits end but regarding wanting R.D. in jail, she did not want him in jail at that point. I interpreted this response as what she meant when she stated, “not like that”, meaning so upset that she wanted him in jail. C.H. agreed that R.D. was not getting the message, and she was afraid. She remarked, “I just wanted him to stop”. It was suggested to her that the circumstances were that she and R.D. had a romantic relationship, she broke it off, he was not getting message, she broke his heart, he was trying to be with her, he was going after her, he wanted to be with her and would not take “no” for answer. She responded that she knew he wanted to be with her. She denied that she knew he was not going to stop and keep coming after her. She thought he would stop (after she called police). This evidence did not present as illogical or incredible. R.H. testified that C.H. had called 911 twice from his residence; it was for a specific reason; and it was not due to the allegations before the court. He stated that R.D. was freaking out in a back alley near his home. R.D. was drunk, swearing, yelling, and calling C.H. names. R.H. did not like that. C.H. did not like it.

[82] C.H. agreed she told the 911 dispatcher she knew R.D. because of the July 2020 romantic relationship and did not mention knowing him before that, when she was a child. Her explanation essentially was that the 911 call was about the harassment and not about the allegations before the court. The answer struck me as odd that she would not disclose to police that she knew him before, but it did somewhat align with her evidence that she was not planning on telling anyone about the allegations.

[83] C.H. was asked what the worst thing was that R.D. has done to her and she stated when he raped her, that was the worst thing. Again, her evidence was that she was going to take this to the grave with her. That was her decision that she made and her focus at the time was the harassment.

[84] The Crown suggests that C.H. could have easily, if she was fabricating, reported an incident of sexual impropriety that had occurred during their relationship that she and R.D. were having and thus it was hard to believe that C.H. would fabricate a historical sexual assault. I am not sure that this would have been so easy on this fact scenario, as according to C.H., she had told R.H. that she and R.D. had sex and it was consensual. It sounds like she also talked about her relationship with R.M. and her daughter S.B. R.D. testified that S.B. knew about the relationship and was happy about it.

[85] After giving a video statement to police on July 29, 2020, C.H. remembers police telling her what R.D. was going to be charged with and that they were going to release R.D. on an undertaking with a condition not to go around her. She agreed that it was after this, she started to talk about the acts complained of. She denied the reason for doing so was that she wanted R.D. in custody. She stated she did not want him in custody and just told the truth about what he did. She was asked if she wanted him in custody now. She did hesitate with a number of her answers to this line of questioning. She first responded there is nothing she can say about it. This response struck me as odd. It was clarified that defence was just asking what she wanted. She hesitated again and responded, “well he did really mess me up, psychiatrist and counselling, and she is not a normal girl for what he has done to her… [still not answering the question]. Thereafter she testified that she has every day to live her life and deal with it because of him, and stated, he deserves to pay for what he has done to her, and she wants him in custody.

[86] C.H. noticeably paused when she was asked why she disclosed to police that day, before eventually answering that it was because she wanted R.D. to know that what he did to her was wrong. This answer did not align with evidence she gave in the context of why she had decided to take the allegations to her grave. Her evidence was that she had talked to R.D., that he explained why he did what he did, and apologized. She already knew he was sorry. C.H. did not suggest that R.D. did not understand or was demonstrating that he did not understand what he did was wrong in her account of this conversation if it occurred. This evidence was essentially repeated by C.H. in the context of questioning C.H. as to getting involved in a relationship with R.D. in 2020. It was suggested to C.H. that back when she had a relationship with R.D. (2020) that nothing had changed from the past. She responded that she had to know in her heart why he did what he did to her, and she asked him, as she needed to know. She agreed that this conversation never came up in the video police statement and was only recently disclosed. She responded that she kept that to herself. She agreed that she did not tell police or anyone else until very close to trial. This troubled me because she left me with the impression that this was an important conversation to her. She left the impression that it was a reason for not disclosing, deciding to take it to her grave, and getting involved with R.D. in a relationship in 2020. This did not make sense for me that she would keep to herself essentially what is essentially being suggested as an admission of having committed the acts.

[87] There is no question that C.H. was married to R.H. and still is. When she was involved with R.D. her evidence was that she and R.H. were separated. It was suggested that R.D. threatened to tell her husband that she and R.D. were in a romantic relationship. Her response was that she was not worried about that. She acknowledged that she was still married and going over to her husband’s residence but that this did not mean anything. The initial impression left by C.H. was that she and R.H. were separated in the sense related to a breakdown in the marriage. By this point however, I acknowledge that she was not asked what she meant.

[88] C.H. was questioned further however about the reason why she was not living with R.H. at the time R.D. came back into her life. C.H. presented as having a hard time understanding and answering questions which were about her husband not being allowed to go to her residence in 2020 when she was living separately from R.H. She was asking questions in response, telling defence counsel that she needed to know to understand. She acknowledged a time frame that her husband was not allowed to go to her residence at one time for a bit. It seemed to me that her confusion was genuine, her initial answer leaving me with the impression that there may have been more than one occasion he was not allowed to go to where she was living. She was then asked directly about her recollection of an incident involving her daughter at which time she presented as remembering the incident, and responded that must have been when drunk, he was drunk at the time. She agreed there was an order in place related to an incident concerning their daughter that prohibited R.H. from living with them. C.H. agreed that her husband was only in a separate residence at that time because of an order concerning their daughter; he just could not stay at the house, he could still see C.H. and her daughter.

[89] There is no question that C.H. was still seeing R.H. regularly at the time after the said order. C.H. denied that she was still going to visit her husband because she was still emotionally attached to R.H. even though physically separated. She would agree however that she did still love R.H. because she was with him for so long. She presented as though she was interpreting defence counsel as suggesting that she was not allowed to go see R.H. She responded that she could still see him. In response to the suggestion that if not for the order, they still would have been together, she gave evidence that she loved him, and they still would have been living together. The court would come to learn that C.H. had not told R.H. about her 2020 sexual relationship with R.D. until after she and R.D. broke up (when R.D. was coming and knocking on her door, which I interpreted as related to her allegations of harassment). I was left with the impression that her relationship with R.D. was certainly not out in the open in terms of R.H. as R.D.’s argument suggests. It was suggested to her that she was afraid R.D. was going to expose her to R.H. She responded that she still loved R.H. but they still had their ups and downs.

[90] C.H. testified that she still spends time with R.H. She did not move from her evidence that she and R.H. were not what she termed dating at the time she was seeing R.D. She stated that R.H. took her to doctor appts and places she had to go; R.H. did not care about R.D. but did not explain what this meant. It may well be that C.H. and R.H. had a very odd relationship at the time, but it certainly did present as if C.H. still loved R.H. at the time and if not for the court order, they would have been living together. R.H. despite his evidence that he did not care about C.H. having had sex with R.D. did not present as though he did not care on the whole of the evidence or that he was ok with it, which includes evidence that C.H. would later give that R.H. hated R.D.

[91] Regarding her current relationship with her husband, C.H. stated “we have our moments”. She became tearful and upset and paused when asked to explain. She stated, “it’s ok, lets put it at that”. She presented as very upset, and a break needed to be taken. Her answers and response left me with the impression that her relationship with R.H. was in fact complicated and/or has been difficult for her. Equally it left me with the impression that she cares about her relationship with him and him.

[92] R.H. presents as a person who would be difficult to deal with if you upset him. I experienced this at trial when he was giving his evidence.

[93] There is some hold that R.H. appears to have on C.H. If there was nothing to worry about with R.H. it is hard to appreciate the reason why she waited to tell him about R.D. until after the breakup and only when R.D. started harassing her, when in the context she saw R.H. often.

[94] C.H.’s presentation of her separation from R.H. at the time also did not coincide with R.H.’s evidence and his interpretation. R.H. agreed that if not for the Children’s Aid Society in 2020, he and C.H. would have been living together. C.H. visited R.H. every day but sometimes they got into a dispute. C.H. was cooking for him physically every day, over and above phone calls to him. They were not emotionally apart at the time, just physically. This interpretation coincides more with the evidence than C.H.’s evidence.

[95] R.H. did testify that he knew about the allegations before the court when R.D. came into his life in April of 2020. C.H. testified that she had disclosed it to R.H. R.H. testified that C.H. had disclosed information to him. They both stated it was when they first started dating leaving the impression that it came up in a conversation they were having about things that happened to them in the past and/or their past sexual experiences. C.H. however would later give evidence that did not align or reconcile with her initial evidence. She testified that she chose to open up to R.H. because they got married and he was supposed to be the true love of her life, like her best friend. Further, R.H.’s details were not exactly the same as C.H.’s The detail regarding C.H. dancing in front of her window was notable to me, in the sense that, if she said this to R.H., R.H.’s account leaves the impression that C.H. was telling R.H. details that C.H. did not testify about or tell police about. Another detail included that R.D. was excited by her dancing in the window. The differences were very odd and specific.

[96] It was suggested to R.H. that if he knew from when he first stared dating C.H. about R.D., that when R.D. was over, and/or when they were fishing together, knowing that R.D. had allegedly sexually assaulted his wife, that R.H. must have hit the roof when he heard about the (2020) romantic relationship. He denied this. His response was unexpected to me. He testified that he was happy that R.D. got laid because he thought R.D. was gay. It did not worry him. He remarked, “does that make him a freak, maybe”. He further testified, “If she is happy that is all a guy wants”. It did not bother him at the time and does not bother him to this day. His evidence was also difficult to appreciate in understanding why he thought R.D. was gay when he knew well before that R.D. and C.H. had heterosexual interactions for two years when they were younger. His response did not present as genuine. Further, his evidence and attitude were hard to reconcile with his demeanour and comments he would make later regarding R.D., the allegations, and what he felt should happen to R.D. and/or what C.H. said R.H. said to her about R.D.

[97] When R.H. was fishing with R.D., R.H. testified that nothing came up regarding R.D. sexually assaulting C.H. in the past. R.H. did not ever bring it up. R.H. agreed he was a bit of a talker however explained that there was no need to bring it up. It had nothing to do with him at the time, and C.H. was dealing with it. He oddly remarked, “I am not god, I could not cure her”. R.H. further explained that he has defended his wife’s honour before and even gone to jail over it to. He was told to leave it alone, so he did. This was hard to reconcile as credible based on my observations R.H. He was not co-operative often, he was combative, offensive to defence counsel at times, and without a doubt presented as someone who did not hold back if he wanted to say something. When asked about R.D. and how he felt, he responded that he felt “all pedos should die”, R.D. should be dead. There was no shortage of strong/aggressive opinions being expressed by R.H. and I do not accept that when R.H. is told to leave something alone that he would.

[98] C.H. agreed that she, R.H., and R.D. went fishing, they all spent time together, and R.H. at this time already knew R.D. had sexually assaulted her. She did not move from her position that R.H. knew about it and suggested that defence ask him about it. She did not testify that she told R.H. to leave the issue alone and/or that she was dealing with it. She agreed that R.H. went fishing with someone that “raped his wife”. She was asked if R.H. ever once objected and she responded that R.H. had told her things like that he can’t stand the guy when they were hanging around. She maintained that she told R.H. about the acts complained of before her video statement to police. She again stated that R.H. knew all along.

[99] C.H. agreed that both 911 calls were made by her when she was at R.H.’s house and he was hearing what she was saying. After the calls she made her video statement to police at the station.

[100] R.H. agreed C.H. gave a video statement to police. His evidence started out that he did not know anything about it. C.H. did not really tell him about the video statement because she could not talk about it. She kept that to herself. He clarified that she would not talk about it, is what he meant. When the officer called him for his audio statement, he agreed that the early part of the conversation was about what C.H. told him twenty odd years ago regarding the allegations and that this was before getting into the harassment claims. He stated that at first, he was surprised that he was being asked about it because C.H. was supposed to take it to the grave with her - she told him she was going to. He speculated that police felt there was more going on here and that is how it came out. He agreed that he was not in the room with C.H. and does not know her motivation for the disclosure. R.H. however then offered as explanation to why he did not question police about why they were asking him about sexual assault allegations. It was because C.H. told him that the officer said to her that there was more going on here than what is going on in alleyway, and so she finally confessed. This did not align with C.H.’s evidence, that her reason was that she wanted R.D. to know that what he did was wrong. Eventually, it came out that when R.H. gave his audio statement to police that R.H. in fact knew the sexual allegations had been brought up the day before by C.H. to police. C.H. told him that she brought it up with the officer, so he understood where the officer was going and the context. R.H. agreed that he also in fact knew that C.H. told the officer that she had told R.H. about the sexual allegations in the past; he knew this before he gave his statement to the officer. The only person he could learn this from was C.H. On his evidence, he and C.H. talked about the evidence before he gave his evidence to police. This may not make it untrue that C.H. talked to R.H. before as stated, but certainly now there is variable evidence on the issue as articulated, and now this. This raises credibility and reliability issues. It is not excluded for me that R.H. may not have known based on the differences in his details and/or that his evidence is or was tainted by the conversations he had with C.H., that he initially denied but then admitted to.

[101] On July 29, 2020, R.H. stated that either C.H. or he was going to call police because of R.D.’s behaviour. This evidence did not jive with his evidence that he kept quiet about the allegations when he was with R.D. fishing etc. He presented as being very upset and angry regarding the harassment and that if C.H. did not call police, he was going to. His upset presented as strong regarding R.D. engaging in harassing behaviour, yet he never said anything to R.D. about sexually assaulting C.H. in the past? Having observed R.H. while he was giving evidence, I find this very hard to believe, had he known.

[102] Regarding disclosing the allegations to others before police, C.H. testified that she told her daughter S.B., her girlfriend R.M., R.H. and probably a handful of other people that she did not name.

[103] I already addressed disclosure to R.H. above and the difficulties on the evidence and with accepting the evidence of C.H and/or R.H. on that point.

[104] Regarding telling R.M., C.H. is unable to tell us the exact date but that the disclosure probably happened at R.M.’s place in BR. She remembers having conversation with her about this and believes it happened at R.M.’s place, a talk at her table, like girls talk. She believes this was likely three to four years ago. She does not still have a relationship with R.M. The court did not hear from R.M.

[105] Regarding telling S.B., she cannot remember when she did and stated it was probably a few years back too, probably around the same time as she told R.M. She does not remember the conversation but stated she likely let it slip out of her mouth that he did this to her and to be careful and keep her guard up. As to where the conversation took place, it may have been her place but not sure. S.B. was an adult at the time. She has a good relationship with S.B. currently. The court did not hear from S.B.

[106] I do not give any weight to the Crown suggestion that the fact that R.D. did not end up being detained in jail after the disclosure to police is a consideration. That result is not related to what C.H. may or may not have been thinking or knew at the time she made the disclosure.

[107] I further do not give any weight to the Crown suggestion that C.H. attending trial and giving evidence is a consideration. Same is not related to what she may or may not have been thinking at the time she made the disclosure. Equally, mere repetition later of previous events does not add to credibility or make evidence true and/or reliable.

[108] Considering the evidence as a whole, lack of evidence, and including credibility and reliability issues articulated, it is difficult to and accordingly I do not find that the Crown has established that there is an absence of motive to fabricate and/or the court can rely on all the evidence of C.H. or rely on the evidence of R.H. at all to be satisfied of same as submitted.

The Poem/Statements R.D. is Alleged to Have Made

[109] The Crown filed a poem that R.D. gave to C.H. The Crown suggested that the contents of the poem essentially confirm a prior relationship to 2020, and that the poem was written about C.H. The Crown submits that R.D.’s explanation is incredible and that the content does not suggest that it was written by a 17-year-old.

[110] It was suggested to R.D. that he had love for C.H. prior to 2020. R.D. denied this.

[111] It was suggested to R.D. that he told either C.H. or her friend R.M. that C.H. was his first and would be his last. R.D. denied this. The court did not hear from C.H.’s friend about any such conversation between R.D. and C.H. or C.H. and the friend. C.H.’s evidence suggested that she told R.M. that R.D. stated this to her, which was contrary to the suggestion of the Crown, it was the other way around.

[112] R.D. denies that he ever had a conversation with C.H. about or acknowledged the acts complained of or that he told C.H. that he had been sexually assaulted by his uncle. At the time C.H. claims she asked R.D. why he did what he did to her she confirmed that this was before she gave her statement to police which would have been in 2020, according to her on July 1st, before July 4, 2020, which is the date written on the top of the poem.

[113] R.D. agreed the relationship evolved into a sexual relationship around July 1, 2020, and that it lasted a very short time. C.H. stated it lasted two weeks.

[114] R.D.’s explanation about the document was that it was a poem he wrote when he was in jail. He believes he wrote it when he was 17. He gave it to C.H. as a birthday present close to her birthday. He did so because he had feelings for her. After he gave it to her, he was left with the impression that C.H. was happy to have received it and that he was the only person who had thought about her birthday that year.

[115] R.D. did not move from his evidence that he was writing poems when he was in jail and that he kept them. He still has some at his home.

[116] R.D. had told the police that he had written the document years ago when he was interviewed by police. I recognized that repetition does not make it so when I write this.

[117] I considered the exhibit.

[118] It certainly objectively presents as a poem with the verses and rhyming.

[119] There are no names identifying who the poem is about in the body of the poem itself or the title “Missing You”.

[120] The date of “July 4, 2020” is written on the top and at the bottom “Love Always Ron”. R.D. testified that he made a copy from his book and put his name to it. He wrote that date and signed it.

[121] The fact alone that R.D. gave this to C.H. does not change the observation that the contents can equally be considered generic and really could apply to anyone.

[122] As to the line, “my heart cried out for the sweet love we shared before”, it is not time defined. I do not agree with the Crown that the only reasonable interpretation is that it means or refers to the interactions R.D. had with C.H. when she was age 12-14.

[123] The words, “sweet love”, are not defined.

[124] As to the words, “the wild life that I led”, from age 15 to 17, R.D. had in fact led what one could call a “wild life” if the Crown’s submission was accepted that the poem was about R.D. R.D. moved from Blind River at age 15. He went to Edmonton, Manitoba, Winnipeg, Sault Ste. Marie and Sudbury and Thunder Bay all before he was 17. He went to jail at age 17 in Thunder Bay. He stated he was an alcoholic from age 12 to 17. He drank hard liquor. He also used marijuana. As such, in this context, it is not illogical or incredible that R.D. could have authored this at 17.

[125] The date on the poem itself also does not contradict R.D.’s evidence that he wrote it when he was younger. C.H.’s birthday is July 20. R.D. agrees that just before her birthday things went sour. He did not move from his evidence that he does not recall the actual date he gave it to her. He readily agreed it could have been July 4, 2020 to explain the date he wrote on it. His recollection was that it was close to her birthday. He could not remember her birthday at trial. On July 4th, 2020, based on the evidence of both C.H. and R.D., they were still together in a relationship too. They consummated their relationship on July 1, 2020. C.H. first testified that she and R.D. had reconnected in 2001, which she corrected to 2021. She then testified it was April of 2020 after being reminded of the date she reported the allegations. She presented as if she was having a hard time with dates. She was certain that it would have before her report to police July 29, 2020. In the end, she testified that it was April of 2020, that they first reconnected as friends, but it turned into a relationship in July of 2020 that lasted less than two weeks.

[126] It was suggested to R.D. that it would not make sense to gift a poem to C.H. just 4 days into their relationship, that it was significant to do so. He disagreed and stated that he thought it was appropriate to gift a poem to someone you are in a relationship with. Further, as to it being the “4th day”, he agreed that they consummated the relationship July 1, 2020. However, they were seeing each other before that. They had been spending time together since April of 2020. There was never any official pronouncement that they were in a relationship. There was no conversation about being boyfriend and girlfriend. He thought they were. C.H. would call him. He would Facebook with her and her daughter, S.B. At the end of the conversations, C.H. would say I love you. C.H. said I love you every day at the time, he testified. C.H.’s evidence does not contradict that they started spending time together in April of 2020. It is not implausible that feelings were developing between C.H. and R.D. prior to July 1, 2020, in this context, or simply for R.D. It was not explored with C.H. or R.D. as to when they started developing feelings for each other. R.D. was not asked when exactly he started having feelings for C.H. and what those feelings were to accept this suggestion.

[127] R.D. did not move from his evidence that it was just a poem that he wrote with no specific persons in mind. It was fictional and reflected thoughts that were in his head at the time he wrote it. Again, he gave it to C.H. as a birthday gift. He signed it the way he did because he loved her at that time. They told each other they loved each other in front of C.H.’s daughter who R.D. interpreted was happy about the relationship. C.H. denied that she loved R.D “that way or like that” I think she stated. The court did not hear from C.H.’s daughter.

[128] The other odd piece out with the Crown theory on this document is the context of the poem itself. The poem appears to be about heart break and versed in the present tense of missing the person referred to. Again, on July 4, 2020, by all accounts they were in a relationship, not yet broken up. It does not make sense to write and give a person a poem with this context when in an ongoing relationship. There is an absence of cogent evidence from C.H. that this poem was written about her specifically and/or her knowledge as to when it was written, and/or what R.D. explained it meant or what he told her about it.

[129] There was also another odd piece that was hard to reconcile on the whole of the evidence. C.H. testified that R.D. acknowledged that he had assaulted her when she was young as a result of being assaulted himself and apologized. Specifically, C.H. testified that she asked R.D. why he did what he did to her. She placed this conversation on July 1, 2020. It makes no sense to me that R.D. would give C.H. a poem after such a conversation that would classify their past love as “sweet love”.

[130] The Crown submits that R.D. was living a transient lifestyle for some time after his releases from jail suggesting that he would never have kept a book of poems he had written in the past. R.D. lived a transient lifestyle from age 15 until age 30 excluding his time in jail. R.D. was not asked for an explanation related to this suggestion. As such, there no evidence contradicting that he kept his book/his writings when he was transient. The assumption that he would not have simply because he was transient is speculative. He could well have had a travel bag that contained items of clothes, his poetry etc., that travelled with him. R.D. stated that to this day, he still has some of his writings he did when he was in jail.

[131] For all these reasons, I reject the Crown’s submissions concerning this piece of evidence.

Description of/Contents of R.D.’s Mother’s Residence

[132] On credibility and reliability, the Crown submits that C.H.’s memory of the of R.D.’s mother’s residence is indicative of the strength of her memory and that she was in fact in that residence at stated. C.H. described R.D.’s mother’s couch in her then residence as being floral, having a floral chair, a dial telephone, a t.v., and described where the rooms were and the sizes.

[133] I am not persuaded C.H.’s evidence on the home or contents carries the weight the Crown suggests for various reasons.

[134] C.H.’s evidence included that her mother and R.D.’s mother were good friends and spent time together. If this is the case, opportunity to be in the home and view the interior is not excluded, related to the mothers’ relationship. Her attendance at that home was not dependent on a relationship with R.D. There is a lack of evidence establishing that C.H.’s first attendance at the home was in fact when the first hairspray request from R.D. was made. I suppose it is plausible that it was and C.H. felt it was ok to go there because the mothers in her mind were best friends, but without further evidence, in my view, it would not be reasonable to infer this.

[135] Further, R.D. believed that the mothers were not friends. There was a point in time that C.H.’s mother was living at the same retirement building that R.D. and his mother were living at, a couple of years ago. R.D. and his mother were living next door to each other in this retirement home. During this time, he did not observe his mother to visit with C.H.’s mother at all. During this time frame, his understanding and impression based on comments made to him by his mother, was that she did not like C.H.’s mother, and that they were never friends to this day. He did not ask his mother recently about this. I took his evidence to mean that he was using the descriptor “to this day” as an expression that nothing about his impression has changed to this day. R.D. readily agreed however that he could not tell us whether or not the mothers were friends in 1990 to 1992. He clarified that he disagreed with the statement that his mother was visiting C.H.’s mother a lot back then on the basis that he does not know to be able to agree. Just because it is possible and R.D. cannot confirm or deny, does not make it so.

[136] R.D.’s mother residence was a unit in a duplex. The evidence includes that C.H. at some point, later in life, lived in the other side of that duplex with J.G., the unit attached to and right beside R.D.’s mother’s former unit, the other half of the duplex. This residence mirrored R.D.’s mother’s unit in terms of layout. C.H. presented as resistant to acknowledge this at first but eventually did. I found this odd. C.H. did acknowledge that she had been to the other side of the duplex a number of times later because J.G. lived there and she was in a relationship with J.G. She met J.G. when she was 15. When asked if J.G.’s residence was mirror opposite of R.D.’s mother’s residence, first she responded that she disagreed and did not know that. She stated she did not know that J.G.’s house was the exact same as R.G.’s house, no bigger, no smaller; she does not know. Defence stayed on the line of questioning. To the suggestion that they looked the same, her response graduated to, “I guess”. To the suggestion she knew what things were like in that house was because she had been in J.G.’s house, her response was “ok?”. On re-examination, C.H. agreed the two units were the same. Additionally, it was not clear on the evidence as to whether R.D.’s mother was still residing in the other unit at this time. If so, it cannot be excluded that C.H. would have had opportunity then to be in the interior of R.D.’s mother’s residence. The evidence suggests that R.D.’s mother was living there in the 1990s up to potentially 1995. C.H. would have turned 15 in 1993.

[137] R.D. agreed his mother’s residence was a brick residence. He could not remember if the front door was white as stated by C.H. Again, C.H. lived on the other side at some point and lived very close as a child with opportunity to see the exterior.

[138] C.H.’s memory of the couch and chair were not confirmed by R.D. R.D. remembers the couch being yellow and that it was handmade by some lady and not bought in a store. There was a chair. It was yellow too. R.D. was the one who found his mother another place to live following that residence, namely the retirement home. When his mother moved there, she gave furniture to him. It was the same yellow couch. There is an absence of physical evidence contradicting either witness.

[139] R.D. does recall that his mother had a t.v. The location moved from time to time depending on how his mother had the place decorated. Sometimes it was in the corner. Sometimes it was in the centre. It was in the centre the last time he saw it. He readily agreed that it could have been in the corner in 1990-1992 at some point. R.D. agreed that his mother had a home old dial phone in the 1990s. Again, not much weight should be given for evidence that there was a t.v. or telephone when the court does not know if she had been in the house before and/or when C.H. also lived in the other half of the duplex, and in circumstances of being familiar with the layout of the unit.

[140] R.D. disagreed that his mother had a green table. It was brown with metal legs. It was not wooden. He agreed the kitchen was tiny. Again, C.H. lived on the other side at some point. Again, other opportunities to see the exterior cannot be excluded, also based on the mothers’ relationship. There is an absence of physical evidence contradicting either witness.

[141] R.D. did not confirm C.H.’s evidence about the bed. R.D. did not agree that when he lived there that his bed was on the floor. When he lived there, his brother also lived there. They shared a bedroom. Each of them had a single bed and his was on a frame. They were bunk beds. R.D. was consistent that there was no mattress on the ground that he saw. He is 100% sure. He knows the beds had frames because he saw them. He was focussed to 1990 and his recollections from then. He stated having a recollection that nothing was there anymore because neither his brother nor he lived there anymore. He presented as genuinely confused during this line of questioning as time frame was not clear. R.D. actually advised the Crown that she was getting him confused. He stated that he also had a recollection one time of seeing a single bed with a frame in his former bedroom room which he understood was put there for when his brother and his little boy came to visit, to have a place for his nephew to sleep. When his mother moved to the retirement home, everything (which I took to mean the beds in the context) was gone. He readily agreed with the Crown that it was possible that from 1990 to 1995 there could have been a mattress on the floor. When he visited his mother, he would not always go into the bedrooms as there was no reason to. The last time he saw beds in the bedroom, they had frames. He agreed that he would not know if the beds had frames on the day before his mother moved out. On the whole, on this point, his evidence was not illogical or incredible in the context of the evidence and his explanations. If he did not always go into the bedrooms, then he would not know, and if he was not living there, it is reasonable that he would not always go into the bedrooms when he was there. When he was there, he testified that it was to visit his mother who was present.

[142] He does not think his mother was employed or in school at that time. He was not employed or in school either. He was doing a lot of partying and doing whatever he wanted. However, these facts on the whole of the evidence do not attract an inference that R.D. must have been living there and had a bedroom there with a mattress on the floor. I will not repeat the evidence of R.D. as to his living circumstances at the time and his mothers.

[143] Throughout this line of questioning, R.D. did not embellish, he agreed with facts that he remembered as being true or possible or when he lacked knowledge. He presented as forthright.

[144] The court did not hear from C.H.’s mother or R.D.’s mother.

[145] The fact that R.D.’s mother could not remember the years she lived at the residence does not draw the conclusion that she would not have been able to remember the contents and/or layout of that home, and/or any attendances there, if any, by C.H. and/or her mother when she lived there.

[146] All of the above combined, causes me to reject the Crown’s submission.

CONCLUSION

[147] For all these reasons set out in this decision, I am not satisfied beyond a reasonable doubt that the Crown has met its onus in this case and proven all the essential elements of the offences beyond a reasonable doubt. I have reasonable doubt arising from credibility and reliability issues with respect to all of the witnesses; absence of evidence; and/or lack of cogent evidence as articulated herein.

[148] I acquit the accused on both counts.

Rasaiah J. Released: September 27, 2023