BARRIE COURT FILE NO.: CR-21-112

DATE: 20231108

CORRIGENDUM DATE: 20240116

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

– and –

E.J. and D.T.

Defendants

Hanieh Azemi, for the Crown

Michael Hayworth, for the Defendant, E.J.

Jeffrey Fischer, for the Defendant, D.T.

HEARD: April 17 - 21, 24, 27 and June 7, 2023

REVISED REASONS FOR JUDGMENT

The text of the original Reasons for Judgment has been revised with the text of the corrigendum (released January 16, 2024)

CASULLO J.:

THE CHARGES

[1] EJ is charged with sexual assault, touching for a sexual purpose, forcible confinement, assault, assault with a weapon, and choking.

[2] DT is charged with assault with a weapon, choking, forcible confinement, and assault.

[3] EJ and DT have plead not guilty on all counts.

[4] EM is the complainant. EM is DT’s daughter, and EJ’s stepdaughter.

[5] EM was 21 years old at the time of trial. The offences are alleged to have occurred between March 8, 2014, and January 30, 2019, when EM was approximately between the ages of 12 and 18.

[6] At the start of the trial, the Crown brought a similar fact evidence application, which the defence did not oppose. Accordingly, EJ’s 2016 assault conviction in respect of a 2015 assault against EM, and the circumstances surrounding his plea, was admitted at trial.

[7] At the trial of this matter, six witnesses testified for the Crown: EM, RM, CW, SG, AMM, and DC Waugh.

[8] EJ did not testify, as is his right. However, EJ did call his ex-wife, MJ, to give evidence.

[9] DT, as is her right, did not testify or lead any evidence.

[10] There is no issue that the events described by EM, if accepted beyond a reasonable doubt, make out the offences as charged.

[11] The core issue to be determined in this case is the reliability and credibility of the Crown’s evidence.

[12] The defence takes the position that the Crown has failed to discharge its burden of proof beyond a reasonable doubt. They are united in their theory that EM’s evidence, the bedrock of the Crown’s case, suffers from serious credibility issues. They submit that EM lied under oath, and her evidence cannot be believed.

[13] I will start with a brief recitation of the applicable legal principles, then a summary of the evidence presented at trial, then my analysis and findings.

[14] EJ and DT are presumed innocent. Neither of them are obligated to prove anything. It is the Crown’s burden to displace the presumption of innocence, by tendering evidence from which I can be satisfied of each accused’s guilt beyond a reasonable doubt.

[15] The Supreme Court of Canada has said that a reasonable doubt is not an imaginary or frivolous doubt. It must not be based on sympathy or prejudice. Rather, it is based on reason and common sense. It is logically derived from the evidence or absence of evidence. See R. v. Lifchus, 1997 CanLII 319 (SCC), [1997] 3 S.C.R. 320.

[16] Likely or even probable guilt is not enough. Proof beyond a reasonable doubt falls much closer to absolute certainty than to proof on a balance of probabilities.

[17] Put succinctly, if based on the evidence before the court, I am sure that EJ and/or DT committed one or more of the offences, I must convict him or her of that offence, since this demonstrates that I am satisfied of their guilt beyond a reasonable doubt.

[18] If I am not, I must acquit.

SUMMARY OF THE EVIDENCE

Background of the Parties

[19] EJ and DT are spouses. They do not have children together.

[20] EM is the complainant. She and her older brother, RM, are the biological children of DT and DM. DM passed away when EM was four years old.

[21] CW is EM’s younger stepbrother. CW is the child of DT and BW. EM and CW lost touch for about four years, but since they reconnected in 2020, they have become best friends.

[22] SG is BW’s wife, and CW’s stepmother.

[23] MJ is EJ’s ex-wife. Together they had a son, DJ. DJ is EM’s half brother.

[24] AMM is EM’s paternal aunt, and brother of DM.

[25] VM is EM’s paternal grandmother, and mother of AMM and DM.

[26] DLT is EM’s maternal grandmother, and mother of DT.

[27] The core family unit was always DT, RM, EM, and CW up until March 2016, when CW’s father gained full custody of him.

[28] EM, RM, and CW all testified to growing up in an unstable and troubled home. The family dynamics were complex. Reading between the lines, one or both of the accused struggled with addiction issues. They moved from home to home frequently. They were living on Peel Street when EJ came into their lives. EM was around ten years old. Two years later, when EM was 12 years old, they all moved to Prince William Way. Following Prince William Way there were a succession of residences: Hickling Trail, Toronto Street, Rose Street and finally Grove Street when EM was 16 years old.

[29] EM described being a troubled child. In her mind, her mother, the one person she trusted to protect her, failed to do so. She testifed that she could not deal with EJ. She self-harmed. She ran away several times. EM was also kicked out of the house a number of times. She failed in school. She spent time at a youth home and was placed under suicide watch at Royal Victoria Hospital in Barrie for a brief period in her mid-teens.

[30] By her own account, and that of her brothers, EM got into trouble often. EM testified that when she was in trouble she was treated like a slave, not a child, forced to do housework as punishment. EM said she was often accused of lying. Physical abuse in the form of slaps and punches were the norm when EM did not do what she was told.

[31] EM presented as a strong young woman, but when she was describing this aspect of her life on the stand, she broke down and cried. She explained that she did not try to do anything wrong – to the contrary, she tried to be a good kid. She appeared sad that DT and EJ did not see it that way.

[32] EM told the court that life was not always bad. For instance, before EJ came into the picture, EM remembered having a good relationship with her mother on Peel Street. She testified that it was, “not great great, but it was better.” EM described that DT was drunk or high most of the time, but she remembers her mother calling her “Sweet Pea.” EM remembered that nickname because she named her own stuffed animal Sweet Pea.

[33] Initially, her relationship with EJ was good, and she trusted him. EM did not have a steady father figure in her life. Her father passed when she was four years old, and her mother had a few different partners before EJ. EM called EJ her dad, and he often called her his daughter, or his kid. He nicknamed her “Frog” back on Peel Street, and bought her pink frog earrings.

[34] EM also fondly recalled the time when EJ and DT gave her the Twilight Saga Series for her birthday.

[35] EM testified that while she initially thought the punishments meted out by EJ were normal, she eventually came to believe that they were not. In her mind, if EJ really thought of her as his daughter, he would not have done the things he did to her.

Evidence of EM

[36] EM struggles with recalling dates, but she could remember where each incident took place, which is how I have organized her evidence.

Prince William Way – Touching for a Sexual Purpose

[37] EM testified that she moved to Prince William Way when she was 12 years old. This is where the first sexual assault took place.

[38] To put this allegation into context, it is important to outline what preceded it. The day before this alleged sexual assault, DT called EM up to her bedroom. EJ was in the room as well. DT told EM that she wanted to “check” her, to see whether EM had been sexually assaulted when she was little. EM said she was not sure what to expect, but lay on the bed as instructed, with her bottoms off, and a towel draped over her legs. DT then put her fingers in EM’s vagina. EJ did not touch her.

[39] The next day, EJ called EM up to the bedroom. DT was not present. EJ said that DT had not told him the results of her investigation, and he would have to check for himself. EM took her pants off to allow him to check. He then put his finger inside of her vagina. She winced because it hurt. She did not recall saying anything to EJ. When EM was taken to the transcript of her statement to police dated July 31, 2019, she confirmed that she told EJ to stop, and he did. When it was over, EM went to her bedroom.

[40] When asked how she felt about the incident, EM said she was confused, and that there were lots of thoughts going through her head. She was unsure whether EJ was trying to make sure she was okay. In cross-examination, EM was asked whether she viewed this as a sexual act. EM replied that she was 12 years old, and she did not know what he was doing.

Prince William Way – Assault and Confinement

[41] EM described four assaults at Prince William Way, all in the form of punishment. The order of the first three are unclear to EM, but she knows the fourth was the final one in that home. EM could not recall precise details, such as what she did to precipitate each punishment, precisely who was there, or how the punishment ended.

[42] EM described that when she was around 12 years old, she was tied up in the basement with a dog leash and gagged with a bag over her head. The leashes were around her wrists, and she was tied to “slats” which, by her description, appeared to have been either pallets up against a wall, or exposed two-by-fours in the unfinished basement. Her arms were outstretched behind her. She recalled that this punishment was EJ’s idea, and her mother put the sock in her mouth. EM recalled screaming and crying out for help.

[43] The next incident EM described was being put in a dog cage. There were two family dogs at Prince William Way – Frank, the pug, and Mitty, the rottweiler hound. The cage was large enough to fit EM, but barely. She was crouched on her hands and knees, her shins and forearms touching the floor. The cage was located in the living room, beside the television. At one point when she moved to get more comfortable, EJ grabbed one end of the cage and flipped it on to its end, such that EM’s head and shoulders were touching the floor. EM does not recall how long she was in the cage, or how she got out. However, she does remember crying.

[44] The third incident EM described for the court was being locked in the master bedroom closet, gagged, her wrists and ankles bound with belts. EM said that her hands were behind her back, and there was a rolling pin behind her elbows. She was on her knees the entire time. EM thought she was in the closet overnight because it was dark when she went in, and light when she was let out.

[45] The final incident at Prince William Way does not form part of the charges on the Indictment. This assault acts as a place-card holder for EM, because the family moved out of Prince William Way afterward. In 2015, EJ beat EM with a belt. EM described for the court how she was tied up in the basement, with a bag over her head, while EJ whipped her back with a belt. EM recalled that DT initially watched EJ assault her, but then walked away. This charge was the subject of the Crown’s similar fact application. MJ inadvertently saw the bruises on EM’s back and shoulder and called CAS. CAS contacted police, and EJ was charged with assault and assault with a weapon. EM, RM, and CW were all interviewed by police in 2015.

[46] EM testified that after her statement to police in 2015, in which she said EJ beat her with the belt, DT made her write another statement that said stated EJ had not hit her, instead she had caused the injury to herself because she wanted to get EJ into trouble for grounding her. MJ described the circumstances leading up to the statement being drafted, discussed later in these Reasons.

[47] In June 2016, EJ plead guilty (the precise charge was not disclosed). He received two years probation and was to have no contact with EM. He was also to reside with MJ in her house on Tunbridge Road in Barrie.

Hickling Trail – Sexual Assault

[48] For two months following the 2015 assault, EM lived with her grandmother, DLT. During those two months, DT, RM and CW moved to Hickling Trail in Barrie. EM joined them there after staying with her grandmother.

[49] Pursuant to his probation condition, EJ was not permitted to live at Hickling Trail or be near EM. However, DT started letting EJ come over. When he did so, EM was required to stay upstairs in her bedroom. After a few months, DT started letting EM come downstairs while EJ was there.

[50] On the day in question, EM and EJ were home alone together. They were watching a movie in the living room, and EM was comfortable enough to be snuggled up against EJ. It was still light outside. EJ started rubbing EM’s shoulder. He kissed her forehead, then he kissed her cheek. Then he kissed her on the lips. EM did not know what was happening, and she froze. EJ touched her chest over her shirt, then his hands moved under her shirt, touching her chest and taking her shirt off. EJ then put his hands down her shorts. He started rubbing her thigh, then his hand moved to her vagina. After a while her shorts came off, and he put his finger inside her vagina. After he took his finger out, EM somehow ended up on her back, and EJ put his penis in her vagina. EM kept her eyes closed the entire time. She does not remember whether either of them said anything.

[51] EM described how she, “went numb,” during not just this sexual assault, but all other assaults, whether they were physical or sexual. Going numb was how EM coped with what was being done to her.

[52] EM was asked whether she the told DT about this assault. EM said no, because she felt that DT cared more about EJ than any of her children. She came to this conclusion because any time the two of them fought and their relationship was over, DT always brought EJ back into their lives. As EM described it, “no matter what happened, she was in his corner. Even after he had actually whipped me to the point of leaving bruises on my back.”

Hickling Trail – Assault and Confinement

[53] EM described being made to stand in a corner for hours on end many times. On one occasion, DT saw that EM had fallen asleep standing up. DT slammed EM’s head against either the wall or the door trim, splitting the inner part of EM’s lip open, and leaving her with a serious nosebleed.

[54] There were other punishments as well. EM recalled being locked in the garage at Hickling Trail. She testified that EJ and DT both stood at the door when it was shut, although EM did not know which of them actually locked her in. The switch for the garage was inside the house, so there was no way she could let herself out. EM yelled for them to let her out, to no avail. EM recalled being locked out more than once, although could not say how many times.

[55] Another punishment was EM’s bedroom being moved from upstairs, where everyone else had their bedroom, to an unfinished room in the basement. This was punishment because EJ and DT knew how afraid EM was of the basement.

[56] After about a year, the family was evicted from Hickling Trail. They lived with MJ on Tunbridge Road for a few months before moving into a home on Toronto Street in Barrie. EM recalls it was only herself, RM and DT at Toronto Street. By then CW was living full time with BW and SG, and EJ did not move in with them. EM did not recall any punishments while at Toronto Street.

[57] After Toronto Street they lived on Rose Street. EJ was living with them once again. EM did not recall any sexual abuse at this residence but testified that the physical abuse continued. She said she was smacked more than once, and she described an incident when DT punched her in the stomach because she thought EM might be pregnant.

[58] EM recalled a time at Rose Street when DT and EJ were fighting, and DT told EJ to leave. EM thought this might be the time to tell her mother that EJ had sexually assaulted her. She could not remember the precise words she used, but she quickly stopped when DT accused her of lying. According to DT, EJ, “wouldn’t do that.”

Grove Street – Sexual Assault

[59] The family moved to Grove Street when EM was about 16 years old. It was a three-bedroom bungalow. There were three bedrooms on the main floor, and RM’s bedroom was in the basement. DJ, who was around 12 years old, started living with them soon after they moved into Grove Street, because the house was closer to his school.

[60] EM testified that the first sexual assault happened in her bedroom. She was in her room reading, while EJ, DT, MJ, and DJ were in the living room watching television. EM could not recall if RM was there. EM could hear the television from her bedroom. EJ came to EM’s door and asked her why she was hiding. EM said she was not hiding, she just wanted to read. EJ came into the room and sat next to her on her bed. He began to rub her arm. She did not think anything untoward at this point, and thought EJ was just being nice to her.

[61] Then EJ began kissing her, first on the cheek, then on her neck, and then on her lips. EM testified that she closed her eyes so she did not see what happened next. She also went numb, so does not have a clear memory of precisely what happened. EM described EJ’s hand under her shirt, touching her breasts. His hands moved down her side to her thigh, stroking it, and then his hand was inside her bottoms (EM could not recall if she was wearing jeans or shorts). He started rubbing her vagina. EM had a memory of his finger going inside her. She also recalled that her bottoms eventually came off, although she did not recall how.

[62] EM did not say that EJ put his penis inside of her. When the Crown started to question EM on this, defence objected, and a voir dire ensued. Defence suggested that the Crown was skirting close to leading EM on an important issue. To wit, in her statement to police, EM said EJ put his penis inside of her. Further, at the preliminary inquiry, when EM was asked if EJ put his penis inside, she said yes. However, when the Crown took defence counsel to EM’s police statement, it was conceded that EM did not tell police EJ put his penis inside of her. EJ’s penis being inside of her during the Grove Street sexual assault only became EM’s evidence at the preliminary inquiry, after defence counsel asked, “did you indicate that EJ had vaginal intercourse with you then?”, to which EM nodded yes. In light of this, I allowed the Crown to continue her line of questioning. EM indicated that while it was difficult for her to explain, at the preliminary inquiry she understood that defence was asking her whether EJ had sex with her or not. EM said that what she had described EJ doing to her in her bedroom at Grove Street fell within her definition of EJ, “having sex with her.”

[63] The second sexual assault while at Grove Street happened in a vehicle. EM recalled this being a period where she and EJ were getting along well. She was allowed to help him fix things, something she enjoyed. One day, they were either on their way to, or from, MJ’s house on Tunbridge Road. They were using MJ’s minivan. As EJ drove, he put his hand on EM’s thigh, first squeezing it, then rubbing it. EM believed she was wearing jeans. EJ undid her pants, and put his hand down inside them, and started rubbing her vagina.

Grove Street – Assault, Assault with a Weapon, Choking

[64] EM testified that the physical abuse continued at Grove Street – she was continually smacked, punched, and hit. However, a significant assault happened that proved to be a catalyst for change for EM.

[65] The day in question began innocuously enough. EM attended a job fair at the Barrie Public Library. Her boyfriend at the time, TV, was there as well, although not by design. EM hung out with TV, staying at the library long after the job fair had ended. They were sitting by a window, and saw EJ and MJ drive by. It seemed to EM that they were looking for her. EM panicked, because as she was not allowed to have a boyfriend. EJ came into the library. When they saw him, EM and TV scattered. EJ went over to EM and told her it was time to go home. She could tell he was upset.

[66] EM described how he started yelling at her when she got in the car, although EM cannot recall what he was saying. MJ was driving, and EJ was in the passenger seat. EM testified that during the drive home EJ was hitting her from the front seat.

[67] When they got to the house, EJ ordered EM out of the car. EM was afraid to get out. As she saw it, if he was yelling and hitting her in the car, it was going to be worse once they got inside. She gripped her seatbelt and would not move. EJ opened the door, undid her seatbelt, pulled her out of the van, and almost dragged her to the house. When they got inside, EM testified that he grabbed her hair, dragged her to the basement stairs and threw her down the stairs to the landing. He then walked down to where she lay on the landing, grabbed her by the hair again, and dragged her the rest of the way down.

[68] EM testified that once they were in the basement EJ started hitting her chest and stomach with his closed fist. He slapped her face a few times as well. DT came downstairs, and also started hitting EM in the face. DT and EJ were yelling “why, why, why?” EJ threw EM against a door, and she landed on her back. DT straddled EM and wrapped her hands around EM’s throat, choking her so hard that EM could barely breathe. EM described scratching at DT’s hands to get her to let go. EM passed out, and when she came to she saw DT run upstairs, crying. EJ then pulled EM up to a standing position. He had a grey cord in his hands. He made a solid loop with the cord and wrapped it around EM’s neck. He then started choking her, again asking “why?” EM described trying to pull the cord off. All of a sudden, EJ just let go and went upstairs. EM slumped to the floor and lay there crying. EM recalled MJ coming down to the basement after the assault and then leaving. EM eventually went up to her room. That night, EM packed a bag and hid it in the garage.

[69] EM testified that her neck and ribs were bruised, and her lip was split. She was not allowed to have a phone at that time, but RM had given her his old one. She took pictures of her neck the night of the assault and sent them to TV, asking him to contact her aunt, AMM, which he did. When she got his message via Facebook Messenger, AMM reached out to EM and told her she was coming to get her. EM said she had to wait because EJ and DT were home.

[70] Three photographs were entered as Exhibit 3. The first is a selfie of EM in front of a mirror. The top part of her phone can clearly be seen. EM’s head is tilted to the right, and one can see a thick red mark going around the left side of her neck. In the middle of the thick red mark runs a thinner red line. The second picture is of the right side of EM’s neck, where the red markings continue. The third picture is of the back of EM’s neck, taken from above. It depicts an angry red mark to the bottom right of her neck, and the thick red marks and thinner red lines seen in the other two pictures continuing across the back of her neck.

[71] The three pictures are screenshots of the pictures that EM sent to TV. There are no originals, so there is no metadata that could provide a date the pictures were taken.

[72] EM testified that she did not see a doctor regarding the bruises, nor did she show the bruises to anyone – not to AMM, not even TV. She did show the pictures of the bruises, however, to AMM.

[73] A day or two later, EM called AMM to pick her up. EM remembers the date being January 23rd as the day she, “got out of there.” EM believes she left home in January 2018. However, both SG and AMM say that the year was 2019. Both women saw a missing person report about EM on Barrie news in January of 2019. Regardless of the date, suffice it to say that EM has not seen her mother, or EJ, since then.

[74] EM lived with AMM and her husband JM for a period of time, first at their resort in Haliburton, and then on their houseboat in Port Credit, Ontario. EM then lived with AMM and VM in Mississauga for a year. In December 2021, EM moved in permanently with SG, BW, and CW where she lived at the time of the trial.

[75] EM was subject to appropriate and skilled cross-examination, first by counsel for EJ. She was asked about her various statements to police and the courts. Her first statement was to police on July 9, 2015, when she said EJ beat her with a belt. She agreed she was telling the truth. She also agreed that her statement did not include the details of the bag being over her head, and her arms tied behind her, when she was beaten. EM disagreed that she did not give those details because they did not happen, but candidly agreed with counsel that she did not tell the police about them. She quickly added, “that’s not because it didn’t happen.”

[76] EM was taken to another section of her 2015 statement, where she told police that EJ had never hit her before. EM agreed she did not tell police about what EJ had done to her leading up to the belt incident, although that was her opportunity to do so.

[77] In that same statement, EM told police that for the two years EJ had been in their lives, things were, “awesome.” When counsel suggested that this was in fact the truth, and she did not tell police about being “checked” by EJ, put in a cage, locked in a closet, or tied up, because these events never happened, EM disagreed.

[78] The next statement was the affidavit in which she said the belt incident did not happen. EM agreed that she lied in the affidavit but said she did it because her mother wanted her to.

[79] The next statement EM made was to police on July 31, 2019. EM agreed she was telling the truth at that time. EM agreed that when she described the sexual assault in the bedroom, she did not tell the officer about the vaginal intercourse, despite it being a harrowing detail. EM also agreed that she did not tell the officer about the sexual assault in the van. When it was put to EM that this was because the two events did not happen, EM disagreed. EM conceded that before trial, when she described the final assault on Grove Street, she did not say EJ threw her down the stairs.

[80] The next statement was EM’s evidence at the preliminary inquiry on October 27, 2021, at which time EM adopted the video statement she gave to the investigating officer. EM agreed she was telling the truth at the preliminary inquiry.

[81] EM confirmed that after the basement assault at Grove Street, she had a bloody lip, and bruising around her neck and face, all of which would be obvious to anyone who looked at her.

[82] During cross-examination by counsel for DT, EM agreed with her statement to police in 2015, to the effect that, by the look on her mother’s face, DT was unhappy EJ was beating EM with the belt.

[83] EM was asked about her failure to mention the kitchen assault by her mother to police in 2015. EM explained that she has been in therapy for two years and is recovering suppressed memories. This assault was one such memory. It was put to her that it could not be a coincidence that the memory of this assault is the one assault CW recalled. EM agreed it was a coincidence, because she never talked to CW about what he saw, and EM did not want to push him. EM was adamant that she had not, and would not, talk to CW about what happened to her.

Evidence of RM

[84] RM is three years older than EM. RM described how he and EM tried to have a proper relationship, but the circumstances in which they were being raised made that difficult. RM appeared regretful that he did not do anything to help EM. RM described EM’s relationship with her mother as complicated. At times, DT could be caring, empathetic and protective, and at other times she could be mentally and verbally abusive. RM recalled his mother calling all of them names, degrading them, telling them they were worthless and useless.

[85] RM recalled EM and EJ having a strained relationship. EM did not agree with EJ’s rules, and she would act out. When EM acted out, EM got punished.

[86] RM recalled that EM’s punishments started out as normal and moderate (such as grounding and taking away privileges), but they became exceedingly more severe, to the point of cruelty.

[87] For example, RM testified that on more than one occasion, EM was locked outside, with just the clothing on her back to brave the elements. He recalled it happening one night at Grove Street, when it was raining out.

[88] RM recalled heated arguments between EM and DT. On at least five occasions, RM saw DT aggressively grab EM by the shoulders or arms and move her to where she wanted. He also saw EJ punch EM at least three times. RM described the punches as solid strikes that would knock EM back. EJ’s punches would land on EM’s chest and arms, leaving bruises.

[89] When asked to estimate how many times there were altercations between EM, DT and EJ, RM said there were too many to count. When these altercations occurred, RM often left the room because he was afraid of being hurt as well.

[90] RM said that he and CW tried to stay out of sight during these arguments for fear of getting caught in the crossfire. But they could not avoid hearing. They heard things being thrown around, EJ and DT yelling and screaming at EM, and EM screaming and crying.

[91] RM testified that EM was put in the dog cage for punishment. He thought she might have been 12 years old at the time, or maybe 14 years old. He could not recall what lead to EM being put in the cage, but it stemmed from another screaming match between EM, EJ, and DT. RM did not see who put EM in the cage, but he had a clear memory of seeing her in it.

[92] RM was 23 years old when he testified at trial. He said he was 19 years old in 2019 when he moved out of Grove Street. EM had left before him. This helps place EM’s year of departure as 2019, not 2018 as EM thinks.

[93] Aside from sending DT one message after moving out, RM has had no contact with his mother or EJ since leaving.

[94] RM recalled living at all the homes delineated by EM. The home on Toronto Street came about because their family did not have proper living arrangements, and the Salvation Army provided assistance. EJ was not allowed to live with them at Toronto Street.

[95] RM recalled EJ being in and out of their lives after Hickling Trail, but he was back full-time at Grove Street.

[96] In cross-examination, RM was questioned about his statement to police in 2015 after EJ assaulted EM with the belt. In that statement, RM said he did not see any assaults on EM. He said EM lied about everything, and that what she told police was false. RM readily admitted that he lied to police in 2015, but this was because he was afraid of his mother and EJ, and he felt unsafe. In fact, EM did show him the bruises that the belt left on her back after EJ beat her.

[97] RM was asked whether he was telling the truth when he gave a second statement to police on January 9, 2020. RM said he was. RM was asked why he did not tell police about EM being put in the dog cage. RM answered that he had a bad memory, but his memories had been returning over time. For example, just that day he recovered some memories in the time between preparing for court with the officer in charge and taking the stand to testify.

[98] RM’s recollection of seeing EM in the dog cage is one example of his recovered memory. RM was crossed-examined on whether instead of it being a recovered memory, it was a confused, or misremembered memory. RM conceded that some of his memories might be misremembered, or confused, but he was adamant that he saw EM in the cage. He was also adamant that he saw EJ punch EM.

[99] RM was asked why, in his third statement to police on August 18, 2020, he did not tell police about the dog cage. RM said that while there may have been some general discussion in respect of EM at the beginning of the interview, the August 18, 2020, statement was for the investigation that was underway in his own case against EJ.

[100] RM testified, as did EM, that EJ often spent time at Hickling Trail despite his conditions of probation specifying that he live with MJ and have no contact with EM.

[101] Through RM’s cross-examination, the court learned that DT was abused by her own mother, and her mother’s boyfriends. It was put to RM that DT had told him that growing up she had been (a) tied up with her hands behind her back, with a rolling pin to keep her arms in place; (b) put on a dog leash (c) locked in a cage; and (d) forced to stand in a corner. RM did not recall his mother telling him about these events. RM did recall that his mother told him she had been forced to kneel on marbles.

[102] In re-direct, RM was asked to explain why he lied to police in 2015. RM said he was forced to by EJ and DT, so EJ would receive a lighter sentence.

Evidence of CW

[103] CW is three years younger than EM. CW and EM were close growing up; RM was more of a loner.

[104] Up until March 2016, CW lived with DT and EJ. His visits with his father started off as every second weekend and a couple of hours on Wednesdays, but eventually progressed to three weekends out of four per month. In March of 2016, BW and SG gained fully custody over CW. After this, he only had supervised visits with DT, because there was an “incident,” with EJ.

[105] CW remembered DT as being motherly until EJ came along. After that, CW felt DT distanced herself from her children.

[106] CW testified to an incident that happened at Prince William Way, when he and EM were doing the dishes. DT got mad at EM and grabbed her by her hair. She kicked EM’s legs out from under her, tripped her to the ground, and spun her around in circles by her hair. CW said it was like DT was cleaning the floor. EM was crying, and CW was too young to help her. CW said he remembers this incident in particular because it was, “severe.”

[107] While CW did not see other instances of physical abuse, he said he heard lots of verbal abuse from both EJ and DT. CW has not seen his mother since their last supervised visit (date unclear), and he has had no contact with EJ since the incident.

[108] CW remembered the dog, Mitty, at Prince William Way. He did not remember a cage at Prince William Way, but he did remember a cage at Hickling Trail. CW also recalled that things, “got ugly,” after they moved to Hickling Trail.

[109] CW described that while he and EM would often get in trouble, he was only ever punished verbally. The spectre of his father appeared to protect him from physical punishment. EM did not always tell CW when she was hurt by EJ or DT, but he would see bruises on her arms from being hit. CW also saw signs that EM was self-harming – namely, scars and marks on her arms from picking at herself. CW thought the picking started at Peel Street, after EJ started living with them. In CW’s words, “things at that time were low.”

[110] During cross-examination CW was steadfast that he witnessed DT knock EM down and spin her by the hair. When asked why he did not tell the police in 2015 about any other violence in the home, CW said he was afraid of his mother and EJ because of how they acted when they were angry. He was always saying things that were to their benefit.

[111] CW lost contact with EM in 2016 once he moved in with BW and SG full time, but SG helped them reconnect via Facebook.

Evidence of SG

[112] SG had no contact with EM since she and BW gained full custody over CW in 2016. SG saw the missing person report of EM in January of 2019, and it was sometime after this she connected CW with EM on Facebook. In the fall of 2020, while SG, BW, and CW were on their way back from Niagara Falls, they decided to stop in and see EM and AMM. This was the first time CW and EM had seen each other in maybe four years. It was also the first time SG learned the extent of what EM had gone through.

[113] SG understood that AMM had taken on the task of liaising with police in respect of an investigation that was started in 2019. There may have also been a lawsuit contemplated. But along the way, AMM was pulled in other directions, as she was dealing with JM’s brain cancer. This led to the lawsuit, and EM’s investigation, falling by the wayside. There was no communication with Barrie police and EM, and AMM was refusing to take phone calls. SG explained that when she offered to help AMM, their relationship ended. It was then, around the fall of 2021, that SG took it upon herself to contact police and reinvigorate the investigation. This aligns with the evidence before the court. EM and AMM gave statements to the police in July of 2019, RM in January 2020, and CW in September 2020, yet the indictment was not sworn until November 8, 2021.

Evidence of AMM

[114] AMM had a close relationship with EM when EM was younger. EM would spend summers with AMM and her husband JM at their Haliburton resort. These visits stopped when EJ came into her life. At some point in 2013, AMM called CAS because she suspected there was abuse in the household. In her view, the three kids – RM, EM, and CW – were living in an unhealthy environment. She suspected there was drug abuse as well.

[115] After having no contact with EM for six or seven years, the two reconnected on Facebook. EM told her that she was scared and needed help leaving. AMM told EM she would do whatever EM needed her to.

[116] TV and his mother also reached out to AMM around the same time, separately, expressing concern for EM’s well being.

[117] EM’s call for help came in January of 2019. AMM and her husband were on their way to Algonquin Park, but they immediately turned around, arranging to meet EM at a small park across from the Grove Street home. After waiting for an hour, AM finally saw EM run from the house, jump a small fence, and get into their car. AMM recalled EM was wearing ripped jeans, a hoodie and a leather jacket. She had a backpack with her. On the drive to Haliburton, EM was withdrawn and not talkative. AMM described how EM was no longer the bubbly and happy child she used to be. Her colouring was not healthy, and she had bags under eyes. She described EM as, “carrying a heavy weight.”

[118] There was minimal conversation that first night, as AMM did not want to push EM or pry too hard. EM did tell her that she had injuries to her body, but did not show them to her, nor did AMM ask to see them. EM said she had pictures of her injuries. Using her AMM’s phone, EM messaged TV and asked him to send the pictures to her. Once they came in, EM showed them to AMM. AMM recalled feeling concerned, and very sad.

[119] The next day, AMM saw the missing person report about EM. She told EM they needed to let someone know she was ok, and EM, “freaked out,” and started crying. But AMM felt she had no choice, and called police to report EM was with her and safe.

[120] EM stayed with AMM for a year, first in Haliburton, then on the houseboat in Port Credit. EM wanted to start school, but she could not register without identification. AMM, JM, and EM drove to the Grove Street home to pick up EM’s identification. EM hid in the back seat of the car as AMM went up to the house. From inside the car JM filmed the interaction on his cell phone, to use as evidence in the event the visit did not go well. RM answered the door, but AMM insisted on speaking with DT. When DT came to the door, AMM described how she tried to convince her EM was lying about everything, because EM was a liar. AMM left with EM’s identification.

[121] AMM let EM take her time, not forcing her to talk about what she had been through until she was ready. One day, EM came to her, screaming, crying and shaking, having awoken from a nightmare. When AMM asked EM if she was ready to talk, EM said yes. AMM called Victim Services, who came to the houseboat. Victim Services called police, and an investigation was started.

[122] AMM confirmed her relationship with EM eventually broke down, as EM needed more than AMM could give her.

[123] AMM testified that the relationship between her and SG also broke down when they could not agree on the best way forward for EM.

[124] During cross-examination, AMM confirmed she saw no injuries on EM the night she picked her up from Grove Street. She agreed that any injury to her nose or lip was there to be seen. In respect of the bruising to EM’s neck, she was asked whether, as a concerned aunt, she should have asked EM to show them to her. AMM’s reply was both credible and plausible. She explained that she did not want to push EM too hard at the outset, as she appeared scared and damaged. Further, never having had children herself, she wondered aloud whether she may not have handled the situation properly. But she did her best within her capability, and she was also keen not to betray EM’s trust.

[125] I pause to note that on day one of AMM’s testimony, when shown the photographs of EM’s neck injuries, AMM advised the court that not only did she recognize the phone that EM was using to take the selfie, that same phone was still at her house. Court adjourned at noon to allow AMM, and the officer in charge, to retrieve the phone from her home. Unfortunately, the phone could not be located. In light of EM’s evidence that she does not know what she did with that phone, it may be that AMM was mistaken. In any event, nothing of significance turns on this.

Evidence of MJ

[126] MJ gave evidence on behalf of EJ. While the two separated in 2013, their lives appear to remain interconnected. They share custody of their son, DJ. MJ acted as a surety for EJ after his arrest in 2015. EJ lived with her after he plead guilty in 2016 and received probation. EJ’s entire family moved in with her when they were evicted from Hickling Trail. When the family lived on Grove Street, DJ essentially moved in with them because their house was closer to his school. That meant MJ spent a lot of time at Grove Street as well because, as she described it, DJ liked to have both of his parents around. MJ recalled she was at Grove Street for supper almost daily because she did not like to cook. She often stayed overnight, sleeping in the reclining chair in the living room. She also described herself as the family chauffeur.

[127] MJ was questioned about her call to CAS in 2015. She described for the court that at that time, the family was in crisis mode because of EM’s ongoing behavioural issues. MJ had noticed cutting and burn marks on EM’s forearms. No agency was willing to provide assistance, and there was no money to pay for counselling. MJ described how she had seen bruising on EM’s back, which prompted her to make the call. But MJ said she did not call CAS because she thought someone had inflicted the bruises – she called because she thought EM had done it to herself. The person she spoke with at CAS said they would send someone over to interview the family.

[128] The next day, EJ called and asked her to pick up DJ, as police and CAS were there. MJ picked up DJ, took him to school and then returned to Prince William Way. When she arrived the second time, she was shocked to see EJ handcuffed and being placed in the police cruiser. In her mind, the police would only get involved if something criminal was going on.

[129] This event led MJ to refuse to speak to police when she was contacted in 2022 in respect of the charges before the court. She testified she no longer trusted the police, as anything she said to them was used as evidence, despite her thinking she was simply having a casual conversation.

[130] MJ described how she was in the courtroom when EJ plead guilty in 2016. When he was released from the prisoner’s dock, EM ran up to him, throwing her arms around him and kissing him. MJ heard EM ask EJ whether he thought he would be allowed to go to her grade eight graduation. MJ explained that EJ was in the prisoner’s dock that day because he breached his bail condition of no contact with DT.

[131] MJ recalled for the court the events that lead to EM running away from Grove Street. It was her suggestion that EM attend the job fair, as she knew EM was looking for a job. She drove EM to the library and told her to call for a ride home when the job fair was over. MJ returned to Grove Street. It was around five o’clock when the adults realized they had not heard from EM. MJ and EJ drove to the library, and EJ went inside to look for EM. He came out with her. EJ opened the sliding door of the van, took EM by the upper arm and, “sort of lifted her into the van and shut the door.” MJ could see EJ was upset. It did not look like EJ was squeezing EM’s arm – he just grabbed her in a “get in the van” kind of way.

[132] MJ said there was no arguing on the drive home. EM sat silently, while EJ told EM he was upset because her boyfriend was there, and he and DT were tired of EM’s lies. When asked whether she saw EJ hit EM during the drive, MJ said no, because it was physically impossible for him to hit EM from the front seat with his seatbelt on. Once back at the house, EJ opened the van door, half-pulled EM out, gave her a little push on her back, saying, “get in the house now.”

[133] When MJ got inside, EJ, DT, and EM were in the basement. She could hear EJ and DT talking to EM loudly. She could also hear EM crying. She did not hear screams of pain. Eventually everyone came up from the basement, although she could not say in what order. Once EM got upstairs, she started doing chores, which was her punishment for lying. When asked if she saw any marks on EM, MJ said EM looked perfectly normal, with no signs of injury to her face. In fact, according to MJ, EM did not even look like she had been crying.

[134] MJ was next questioned about the bruising she saw on EM in 2015, which she described as being blue and purple. She said that EM had caused the bruises herself by banging her body against the two-by-fours in the basement. When shown pictures of the bruising taken by police during their investigation (Exhibits D1 and D2), MJ said what was depicted in the pictures looked nothing like the bruises she had seen on EM’s back.

[135] MJ was taken to her evidence in respect of the day EJ plead guilty to beating EM in 2016. When asked if she recalled that the guilty plea was for assaulting EM with a belt, she said she did not focus on these details. Instead, she was distracted by the fact that EJ had plead guilty. She did not think he was guilty. He later told her he plead guilty to save EM from the trauma of answering questions on the stand at a trial.

[136] When asked if she was sure EJ did not hit EM with a belt, MJ said she had no reason to believe he did that to her. She explained that after he was incarcerated, she asked DT and EM point blank whether EJ had beaten EM, and they both said no. They were actually upset that EJ was in jail. EM told them she felt coerced or intimidated into saying what she did to police. To try and straighten things out, together the three of them came up with the idea to have EM and DT write out a statement saying that EJ did not beat EM, and they would have a lawyer witness it. When pressed, MJ said it might have been her who said, “write it out and we’ll get it notarized,” but EM and DT both agreed, because they wanted to do whatever they could to help EJ. MJ did take EM and DT to a lawyer’s office, where a document was notarized.

[137] The discussions MJ had with EJ, DT, and EM, were provided solely for narrative, not the for the truth of their contents.

[138] During cross-examination, MJ clarified what she meant by EJ helping EM into the van. She described it as akin to a couple being out on a date, where the man grabs the woman’s arm or elbow to guide her into the car. When asked why, once home EJ would have needed to help EM get out of the van, MJ said that EM had a habit of taking off and running away when things were not suiting her, and she assumed EJ wanted to ensure EM made it into the house. She did not see EJ pull EM by the hair. She did describe the look on EM’s face to be stubborn, obstinate, and rebellious.

[139] MJ was asked whether she thought it odd that EJ and DT were dealing with EM in the basement, when EM’s bedroom was on the main floor. MJ thought they did so to spare her and DJ any negativity.

[140] MJ said she never went down into the basement during or after this incident. She also confirmed that if EM had suffered a cut lip or a bloody nose in the basement, she would have spotted it.

[141] MJ was at Grove Street when EJ and DT discovered that EM had run away. She testified that she saw a note that EM had left behind in her room, which read, “I know I’ve let you down. I’m really sorry.” This note was never produced for the court.

ANALYSIS AND FINDINGS

[142] I turn next to assessing whether the Crown has proven the charges against EJ and DT beyond a reasonable doubt.

[143] I have adapted the following delineation of elements of the subject offences from Mr. Hayworth’s written closing submissions.

[144] A sexual assault is established by the proof of three elements: (i) touching, (ii) of a sexual nature, (iii) without the complainant’s consent. Consent is no defence to a sexual assault for a person under 16 years of age (s. 150.1(1) of the Criminal Code, R.S.C., 1985, c. C-46). EM turned 16 years old in March of 2019, after the alleged offences occurred.

[145] Assault is the intentional application of force without consent (s. 265(1)(a) of the Criminal Code).

[146] Assault with a weapon occurs if harm comes to a complainant who is assaulted by an accused carrying, using, or threatening to use a weapon (s. 267 (a)-(b) of the Criminal Code).

[147] Assault with a weapon is also made out if the accused chokes, suffocates or strangles a complainant (s. 267(c) of the Criminal Code).

[148] Touching for a sexual purpose is a specific intent offence of touching, directly or indirectly, with either a part of the body or an object, any part of the body of a person under 16 years of age, for a sexual purpose (s. 151 of the Criminal Code).

[149] Forcible confinement is a general intent offence, established by proof of the accused depriving a person of liberty to move from point to point for a period of time (s. 279(2) of the Criminal Code).

[150] The charges are to be assessed individually.

Credibility

[151] Credibility rests at the heart of the Crown’s case. While they are absolutely necessary, credibility assessments are a particularly challenging aspect of a trier’s job. These assessments are made even more difficult in cases where time has passed, and memories have faded.

[152] The Crown’s case relies to a large degree on the credibility and reliability of EM, RM, and CW, and to a lesser degree SG and AMM. Of course, credibility and reliability are not interchangeable. Credibility has to do with truthfulness, while reliability has to do with accuracy – namely, the witness’s ability to accurately observe, recall and recount evidence. 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: R. v. Morrissey (1995), 1995 CanLII 3498 (ON CA), 22 OR (3d) 514 at paras. 33-35.

[153] While they were adults at the time of the trial, EM, RM, and CW testified to events that had happened four to nine years earlier.

[154] Historically, the evidence of children was approached with scepticism, and believed to be inherently unreliable. Testimony corroborating their evidence was required. Over the years, this prevailing wisdom has undergone a sea change, leading to changes to both the Criminal Code and the Canada Evidence Act, R.S.C. 1985, c. C-5. As Wilson J. wrote for the court in R. v. B.(G.), 1990 CanLII 7308 (SCC), [1990] 2 S.C.R. 30 at para. 56:

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.

[155] A child’s perspective is different from an adult’s, and they may have difficulty in memory, in description, and perhaps even processing what has occurred. 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: R. v. B.(G.), at para. 56.

[156] A child witness should not be held to the same tests of credibility as an adult. Common sense should rule, acknowledging the strengths and weaknesses of the evidence. Since children may experience the world differently from adults, they may be unable to provide details that are important to adults, such as time and place, which may be missing from their recollection: R. v. W.(R.), 1992 CanLII 56 (SCC), [1992] 2 S.C.R. 122, at para. 26.

[157] This is not to suggest that the standards of proof are lowered when dealing with children:

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

R. v. W. (R.), at para. 27.

[158] That said, an inconsistency on a main or central feature of an incident may suggest a carelessness with the truth that supports a significant concern with the witness’ evidence: R. v. M.G., 1994 CanLII 8733 (ON CA), [1994] OJ No 2086 (QL), at para. 27.

[159] To be clear, I have viewed the evidence of EM, RM and CW, not as children, but as adults testifying to events that occurred when they were children.

[160] EM presented as clear, straightforward, and forthright. She did not hesitate when answering questions. She was polite and deferential. She was not combative. She was equally measured when answering questions posed by the Crown and by defence counsel. She did not exaggerate her evidence in obvious or significant ways. Interestingly, she did not present as having any significant animus toward EJ or her mother.

[161] It was clear that EM found it difficult to speak about the sexual abuse she experienced. When first asked to describe the incidents, she was unable to. The Crown left this area of questioning, returning only when EM felt up to recounting what had happened. Despite this concession, EM still required focussed questions in order to describe each event. In stark contrast, EM had no difficulty speaking about the incidents of physical abuse.

[162] EM candidly accepted that when she was initially interviewed by police in 2015, she did not mention the touching incident, the dog cage incident, being locked in the closet, or being made to stand in the corner. When asked to explain this discrepancy, EM described the how the trauma she experienced growing up affected her:

I’m going to say this the best way I can. Currently, throughout the last couple of years, I have gone to therapy. And there have been incidents where I’ve had very significant nightmares, and very detailed nightmares…and that is because of how much trauma I have suppressed, and as I said, I thought of [EJ] as a father figure. I called him dad.

[163] In R. v. D.P., 2017 ONCA 263, [2017] OJ No 1593 (QL), delayed and bifurcated disclosure by a child victim was front and centre for the Court of Appeal. In that case, the complainant disclosed two assaults when she first spoke to police, and a few months later disclosed a third assault. The defence argued that the complainant’s “selective” disclosure was grounds to treat her evidence as not credible. The trial judge did not accept this submission, concluding that the delay in disclosure, and even incremental disclosure, was plausible. The Court of Appeal upheld the trial judge’s decision.

[164] In R. v. Francois (1993), 14 O.R. 3(d) 191, the complainant had been sexually assaulted by a neighbour when she was 13 years old. She was an adult at the time of the trial. At trial it came out that the complainant had sworn two affidavits (during wardship proceedings) about seven years after the abuse, in which she swore she had never been sexually abused as a child. She explained that she had blocked the abuse from her mind, and believed her statements to be true at the time. However, she experienced flashbacks which brought the memories of the abuse back to her.

[165] In Francois, the Court of Appeal held that evidence of flashbacks were for the trier to consider and evaluate along with other evidence:

The mental blocking of a traumatic experience, such as sexual abuse suffered as a child, from memory, and the later incremental recollection of the abuse through flashbacks are widely recognized psychological processes: Francois, at para. 31.

[166] While EM did not characterize her memories returning to her in the form of flashbacks, I believe the same considerations can apply to recovered memory. And not simply memory about sexual abuse, but physical abuse as well.

[167] Further, more recently, in R. v. G.M.C., 2022 ONCA 2, [2022] OJ No 28 (QL), at para. 38, the Court of Appeal endorsed the following propositions concerning the relationship between trauma and a witness’ testimony:

i. Observations made by witnesses in the course of traumatic events can be difficult to recall and describe accurately at a later date.

ii. Moreover, while minor discrepancies and inconsistencies in relation to more peripheral matters are frequently encountered and are often due to passage of time rather than dishonesty, a witness to a traumatic event in particular cannot be expected to have a faithful memory of minor incidents that occurred during such an event, and inability to recall a minor or insignificant detail in that regard generally will not detract from the overall credibility or reliability of such a witness.

iii. More generally, it is also human nature to try to make sense out of “bits and pieces” of memories about an event, and that too may impact the accuracy of a witness’s testimony concerning events.

[168] I find EM’s delayed and incremental disclosure plausible. Her life circumstances at the time of each statement must surely have come to bear on when and what EM chose to report. EM gave her first statement in July of 2015. EM had only recently turned 13 years old. She had lost her father at a very young age. She was being raised in a turbulent and unstable environment. Evidence introduced by defence counsel suggests that DT herself had a dysfunctional childhood growing up, which may have coloured her own approach to parenting. We also heard from both EM and AMM, that DT was also likely struggling with substance abuse. EM described that DT had a number of boyfriends before EJ.

[169] Reason and common sense dictate that in the midst of this chaos, EM would have yearned for stability. She was young. EJ appeared as a father figure to her, something that had been missing from her life. I do not find it troubling that EM failed to disclose to police the other instances of abuse in 2015. Perhaps EM’s goal was to preserve the family life that that she had, such that it was. At age 13, children are not afforded the luxury of choice or autonomy. However, I need not come up with a reason why EM did not report the extent of the abuse to police in 2015. I need only determine whether this failure to report compromises her credibility. It does not.

[170] EM was 16 years old when she gave a second police statement in 2019. She was emancipated, no longer under the thumbs of EJ or DT. She was freer to tell her truth, and during this statement additional details were disclosed.

[171] Even at trial, EM was still recovering memories, able to add detail that she had not previously remembered. The presence of these additional details at such a late stage is not fatal, as I find they too are the result of recovered memories.

[172] I find that EM was inconsistent or uncertain on several details, such as whether EJ closed the door behind him when he came into her bedroom on Grove Street. EM was adamant at trial that she had not confused the year of the final assault on Grove Street, and she ran away from home in January of 2018, not January of 2019. However, all the evidence points to the final assault at Grove Street occurring in January of 2019. SG and AMM were confident that 2019 was the year EM ran away – both recall seeing the missing persons’ report that January, and Silvie said she saw the report on January 26, 2019. Even RM’s evidence indirectly supports the year being 2019. During cross-examination, EM could not be persuaded that she may be mistaken, although she did recognize that, “years are not a great thing for me.”

[173] AMM provided testimony about the impact the trauma had on EM. She described her niece as, “quite traumatized,” and a “frail, frail girl,” when she came to live with her. She did not believe EM was, “mentally there any more.”

[174] While mixing up the years is an inconsistency, it is a minor one. It is the sort of inconsistency born of trauma. I find it falls within the category of inconsistency that our courts have described as normal and expected: R. v. G.(M.) (1994), 1994 CanLII 8733 (ON CA), 93 C.C.C. (3d) 347, at para. 27.

[175] EM was also inconsistent on the sexual assault at Grove Street. While testifying in chief, EM said there was digital penetration, but did not mention vaginal intercourse. The next day, still in chief, the Crown put to EM that during the preliminary inquiry she had agreed there was vaginal intercourse. Thus, it was only through these leading questions that vaginal intercourse became part of EM’s trial testimony. This was a glaring inconsistency according to defence – there is no way a witness could be mistaken on such a material point as whether there was vaginal intercourse.

[176] I agree. This was not a minor inconsistency. As such, I do have some concerns about this aspect of EM’s testimony. Crown counsel candidly accepted that this was an inconsistency I would need to address. However, this is not an instance where EM was found to have exaggerated and added to her evidence. After being taken to the transcript of the preliminary inquiry, EM remembered and adopted her evidence at the hearing. There is nothing inappropriate about taking a witness to a previous statement to refresh her memory when she has forgotten information.

[177] Once again, I harken back to how difficult it was for EM to speak about the sexual assaults. The inconsistency as to whether EJ put his penis inside of her does not cause me to question EM’s credibility or reliability. Forgetting to mention this important aspect of the sexual assault on Grove Street is of some concern to the court, but I do not consider that it seriously undermines the core of EM’s story when considered in the context of the evidence as a whole. EM has never waivered, in either her statement or her testimony, that EJ sexually assaulted her.

[178] This leads me to what counsel submits is the most glaring inconsistency – the final assault at Grove Street. EM described how EJ was so angry that day that he started hitting her, from the front seat of the van, as MJ drove them home from the library. When they arrived, EM was afraid and refused to get out. EJ physically removed her from the van, almost dragging her toward the house. Once inside, EJ threw EM down the basement stairs to the landing and dragged her the rest of the way down by her hair. In the basement, EM was hit, punched, slapped, and choked by both EJ and DT who had joined them. EM lost consciousness at least once. EM testified she was left with bruising around her neck, a split lip, and bruising on her ribs.

[179] Yet no one saw any injury to EM. Not MJ, who was at the house that day, and saw EM when she came upstairs afterward. And not AMM, who picked EM up only hours later. Both defence counsel submitted that the only conclusion open to the court is that EM is lying, and the assault never happened.

[180] That AMM did not see any injuries when she picked EM up is an inconsistency readily dispensed with. First, both defence counsel are incorrect. EM testified that she did not leave Grove Street immediately: “I stayed in the house for a few, a day, I actually packed a bag that night and put it in the garage.” This puts at least one day, and possibly two, between the assault and the pick up, not mere hours. The injury to EM’s lip may have healed during this time. I add here that EM never said her lip was split on the outside during this assault. Thus, it is possible that her lip was split on the inside as it had been previously (see paragraph 53 above), and simply not visible.

[181] Second, I have already found AMM’s testimony as to why she did not ask to see EM’s bruises to be plausible and understandable. I find it telling that they both testified that AMM did not see the bruises, despite the fact that their relationship had ended, and they had not spoken for at least two years.

[182] In respect of MJ’s evidence, some parts of it tend to support the Crown’s position. For example, she said that EJ helped EM in and out of the van on the day in question. She confirmed that EJ guided EM toward the house. She did not see what happened when EM and EJ entered the house, nor did she see how EM, EJ, or DT ended up in the basement. MJ also confirmed that EM was being dealt with in the basement.

[183] Other parts of MJ’s testimony tends to support the presumption of innocence. She testified that she did not see EJ hit EM in the van on the drive back from the library to Grove Street. Nor did she see blood on EM’s face, or any signs of obvious injury, when EM came upstairs from the basement and started doing her chores.

[184] As EM testified, her injuries would have been obvious to anyone looking at her. MJ did not see any blood on EM’s face. EM was not asked to retrace the steps she took after the assault, she simply said she went upstairs. It is possible she washed any blood from her face before starting her chores. And, as noted above, her lip could have been split on the inside and not visible.

[185] Believing MJ’s evidence will not necessarily lead directly to an acquittal on the indexed charges. Her evidence forms only part of the overall evidence I must consider on these counts, in order to determine if I am satisfied beyond a reasonable doubt of the defendants’ guilt. But what is important is that I recognize that, whether or not I accept MJ’s evidence as to what occurred in January 2019 on Grove Street, that evidence, alone or in conjunction with other evidence, may raise a reasonable doubt about the defendants’ guilt for the offences charged on counts 4, 5, 6 and 7.

[186] In other words, if I believe MJ’s evidence that EM was being disciplined in an appropriate manner because she lied to her parents about being with her boyfriend at the library and, on the basis of this, alone or in conjunction with other evidence, I have a reasonable doubt about whether the Crown has satisfied any of the essential elements required to prove assault, assault with a weapon, or choking, I must find the defendants not guilty of these offences.

[187] Even if I do not accept MJ’s evidence concerning what occurred that day in January if, after considering it, alone or in conjunction with other evidence, I have a reasonable doubt about whether the Crown has satisfied any of the essential elements required to prove the offences, I must find the defendants not guilty of assault, assault with a weapon, or choking.

[188] Finally, even where I reject MJ’s evidence, I may only convict the defendants of assault, assault with a weapon, or choking if the rest of the evidence that I do accept proves beyond a reasonable doubt each of the essential elements required to establish their guilt for those offences.

[189] I simply cannot place the stock in MJ’s evidence that defence counsel asks me to. She described EJ helping EM into the van as a benign act, much like a man helping a woman into a car at the end of a date. What help would an able-bodied 16-year-old need to get in a mini van? She also said that EJ grabbed EM’s arm to help her out of the van as well. When asked why EM might need help getting out of the van, MJ said EM had a habit of bolting, and EJ likely wanted to make sure EM got into the house so they could talk about what happened and get it settled. A few questions later, however, MJ said she saw EM walking toward the house unaided, with EJ following her. This does not square with her earlier answer that EJ wanted to prevent EM from running.

[190] In any event, MJ could not testify as to what EJ was thinking. However, her rationalisation is yet another in a litany of rationalizations designed to cast EJ and DT in a favourable light. Other examples include:

• Her observation that when EM came upstairs from the basement, she did not even look like she had been crying, despite the fact that MJ testified she could hear EM crying in the basement.

• Her evidence that, in 2015, EM was part of the plan to draft a second statement to police, recanting everything she had told them about EJ assaulting her with the belt. An incongruous assertion given that EM was just 13 years old.

• Her comment that EJ and DT disciplined EM downstairs so she and DJ would be shielded from any negativity. EJ and DT had absolutely no compunction about disciplining EM in front of RM or CW. For that matter, if what was happening in the basement was as innocuous as MJ described it to be, there would be no negativity to shield anyone from.

[191] The Crown suggested MJ came to court with her own agenda to assist EJ. Though there may be some truth this this (recall MJ permitted EJ to spend time at Hickling Trail, despite the conditions of his probation that he reside at Tunbridge Road and have no contact with EM), I neither agree nor disagree. I do find that MJ significantly downplayed the events of January 2019. I am not suggesting that MJ was an entirely unbelievable witness, but these aspects of her evidence I reject outright.

[192] Simply put, I am not troubled by any internal or external inconsistencies in EM’s evidence. Her evidence of abuse in the home was corroborated by her brothers, and indirectly by AMM, who was concerned enough for the three kids in 2013 that she called CAS. Where EM’s evidence differed from MJ’s, the only defence witness, I preferred EM’s. Her testimony with respect to the physical assaults were clear, consistent, and compelling.

[193] EM fairly and readily admitted to discrepancies between earlier statements to police, her evidence at the preliminary hearing, and her evidence at trial. Her explanation for the differences resonated with the court. EM’s discrepancies do not represent differing versions of events. Instead, they represent the patchwork quilt of EM working through the trauma she experienced at the hands of EJ and DT. Even if her failure to remember EJ penetrated her at Grove Street raised a reasonable doubt, this is overcome by the remainder of EM’s evidence.

[194] Both defence counsel ask that RM’s evidence be discounted in its entirety. On the day he came to court, police helped him to prepare by showing him the 48-minute videotape of his January 9, 2020, statement. During cross-examination, Mr. Hayworth played a 30-second clip of that same video. During Mr. Fisher’s cross-examination, RM said that the video Mr. Hayworth played was not the same as the one he reviewed earlier that morning. When pressed on this, RM said there were differences in the length of the two videos, and the one Mr. Hayworth played had the word, “redacted,” on it. RM also said that he did not recall seeing the statements he made in the video Mr. Hayworth played for him when he watched the longer police video. There is no dispute that the videos were the same.

[195] To my mind, RM’s confusion over the video does not taint his credibility or reliability. For most lay witnesses, testifying in court is a foreign experience. That he did not remember a 30-second clip of a 48-minute video he watched earlier in the day does not raise alarm bells. RM gave his evidence in a fair and forthright manner. There were no inconsistencies in his testimony, and he acknowledged some cognitive challenges given his recent concussion. Overall, I found him to be a truthful and honest witness and reject counsels’ invitation to reject his evidence.

[196] I found CW, SG, and AMM to be credible witnesses who were consistent in their testimony and unshaken in cross-examination.

Collusion

[197] Counsel for DT raised the spectre of collusion between EM and CW, arising from the kitchen assault by DT. EM did not tell police about this assault in 2015 or 2019, and only described it for the first time at trial. This was the only instance of physical assault that CW testified to seeing DT perpetrate on EM.

[198] In cross-examination, EM explained that the memory of this particular assault had only come to her, through therapy, two months before the trial.

[199] Both EM and CW denied speaking about the incident to the other. CW was not seriously challenged on this in cross-examination.

[200] The court heard how EM was often punished by being forced to do chores. On this occasion, EM was doing the dishes and CW was helping her. Both EM and CW recount the basics of the incident similarly – DT getting angry, grabbing EM by the hair, and tripping her to the ground. EM described her mother as dragging her across the kitchen floor by the hair. CW’s description is very detailed – he remembers his mother spinning EM around on the floor like one would a mop.

[201] If EM and CW had colluded, all aspects of their testimony on this incident would align. Their versions are not so consistent as to raise the suspicion of collusion.

Implausibility

[202] Counsel for EJ submits that EM’s description of the sexual assault on Grove Street is implausible, further eroding EM’s credibility. The notion that EJ would come into her bedroom, while the rest of the family watched television, on the same floor of a small house, defied belief. Perpetrators of such crimes against a child would not take such a risk, and the potential that they might be discovered must raise a reasonable doubt in my mind.

[203] Regrettably, caselaw is replete with instances of flagrant sexual assaults. For example, in R. v. R.M., 2017 ONSC 6709, aff’d 2019 ONCA 427, the complainant was assaulted by her aunt’s husband while she slept between them, her aunt asleep on the other side of her. The complainant was also assaulted by the accused while they watched television together, in the presence of the accused’s son.

[204] In R. v. T.G., 2018 ONSC 3847, [2018] OJ No 3293 (QL), the complainant was assaulted while she was in bed with her two sisters, as well as on other occasions while her siblings were present in the home. As Di Luca J. held, at para. 111:

I am not troubled by the apparent brazenness of these incidents. There is no set pattern as to how a sexual assault can occur…. The sad reality is, that sexual assault can and often does take place in scenarios where there is a significant risk of being caught.

[205] I echo Di Luca J.’s finding that an incident such as that described by EM does not lessen or diminish her credibility before the court.

Appropriation

[206] I do not find favour with counsels’ suggestion that EM appropriated the experiences DT went through as a child as her own. It is more likely that DT was repeating the cycle of violence, visiting on EM the punishments that were visited on her.

Photographs

[207] Defence counsel submitted that the photographs depicting EM’s injuries were not reliable, as originals were not produced, with no plausible explanation as to why. I disagree. EM testified that she was not allowed to have a phone and she was not allowed to be on social media; but she found a way around both prohibitions. She had a secret Facebook account and she used RM’s old phone to take pictures of her injuries, which she sent to TV. EM was not sure what she did with the phone – she does not remember having it at AMM’s house.

[208] I find no air of reality to defence counsels’ suggestion that the injuries to EM’s neck depicted in the photographs could just as easily have been self-inflicted, given EM’s propensity to self harm. We heard evidence of EM picking and cutting her forearm. There was no evidence that her self-harm went beyond this. I disbelieve entirely MJ’s suggestion that EM had thrown herself against two-by-fours and caused the severe bruising to her body that is depicted in Exhibits D1 and D2.

CONCLUSION

[209] As noted at the outset, this was a dysfunctional family. EJ and DT ruled EM, RM, and CW with fear, and the children were wary of incurring their wrath. All three of them admitted to lying to police out of fear of retaliation.

[210] Considering the entirety of the evidence, I am satisfied that that the Crown has proven each element of each offense beyond a reasonable doubt. I do not think that what EM described probably happened to her. I am sure that what EM described happened to her. I make these findings free from sympathy from the tragic and sad circumstances from which this case stemmed.

[211] EJ, I find you guilty of counts 1, 2, 3, 4, 5 and 6.

[212] DT, I find you guilty of counts 5, 6, 7 and 8.

The Honourable Madam Justice A.A. Casullo

Released: December 8, 2023

CORRIGENDUM

REVISIONS MADE TO REASONS FOR JUDGMENT

To protect the identity of the complainant, all paragraphs in these Reasons for Judgment have been revised to initialize the names of any party who might identify her.

No other changes have been made.

CORRIGENDUM DATE: January 16, 2024