ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
– and –
R.M.
Adam Godlewski, for the Crown
Elliott Willschick, for R.M.
HEARD: February 12, 13 and 14, 2024
Non-Publication order under s. 486.4 of the criminal code
An order iS in place directing that any information that Could identify the victim or witnesses shall not be published in any document or broadcast or transmitted in any way.
PINTO J.
Reasons for judgment
Overview
[1] This three-day judge alone trial determined if the Crown had proven beyond reasonable doubt that the defendant, R.M., sexually assaulted and abused his biological daughter the complainant. R.M. is charged with six offences including incest on a single indictment. The offences are alleged to have occurred between 2012 to 2017, when the complainant was between 11 and 16 years old.
[2] The Crown called a single witness, the complainant, who is now 22 years old. The defence called no evidence.
[3] The Crown submits that the events happened as the complainant described. Any gaps or inconsistencies in her evidence are to be expected given the traumatic nature of the offences and the elapse of time. The Crown submits that all the elements of the charges were proven beyond a reasonable doubt.
[4] The defence submits that the complainant’s allegations were devoid of detail and that the complainant lacks reliability and credibility. The defence maintains that the complainant fabricated the allegations against her father in the context of a family dispute. The allegations arose after the complainant’s parents separated, and after the father refused to continue to pay for storage of the family’s items.
[5] For the reasons that follow, I find R.M. not guilty of the offences charged. While I am cognizant that victims of sexual assault may react in a variety of ways, the complainant’s testimony was generic and rote. She described the alleged sexual acts with insufficient description or memory of what transpired. She was unwilling or unable to describe aspects of her family situation such that it caused me to question her overall reliability and credibility. In cross-examination, she asked defence counsel to repeat relatively straightforward questions several times. I had to decide whether this was because she genuinely did not understand the question, or whether she was strategizing over what answer would support her narrative. I was unable to determine whether the complainant was telling the truth, which left me in reasonable doubt as to her father’s guilt.
[6] On the evidence before me, I was not persuaded beyond a reasonable doubt that the sexual acts alleged by the complainant happened. R.M. is acquitted on all counts.
Complainant’s Testimony
[7] The Crown called a single witness, the complainant, who is now 22 years old. She recently enrolled in secondary school. Her goal is to become a Personal Support Worker (PSW). She lives in Scarborough with her mother and one brother. She has a twin brother and an older brother.
[8] The complainant testified about six incidents of sexual abuse. They all happened at the house where she grew up in Toronto. She could not be precise about when the incidents occurred. I have summarized her evidence in the order in which she said the incidents happened.
First incident – Request for Full Body Massage
[9] Only the complainant and her father were home. Her father came out of the shower. He had his towel on, but was naked underneath. He called her into a room, took off his towel, and asked her to give him a full body massage. She cried and told him that that was her mother’s job. She cannot recall what her father said or what happened next, but she did not end up giving him a massage. Nothing else of note took place that day.
[10] She does not remember when this “request for full body massage” incident took place or how old she was, or what school she attended when the incident happened. She does not recall if her father and her talked about this incident.
[11] In an attempt to refresh the complainant’s memory about when the “full-body massage” incident occurred, the Crown played a brief excerpt of the complainant’s video statement provided in 2021. After watching the excerpt, the complainant stated that the excerpt did not assist her in remembering when this first incident occurred. After some reflection, she testified that the incident occurred when she was in grades six to eight, but she could not say what age she was.
Second Incident – Sexual Touching and Intercourse
[12] Again, she was at home alone with her father. They were relaxing. Her father started “feeling on” her. He started touching her by putting his hands on her breasts and vagina. She recalls that she was fully clothed, but cannot remember what her father was wearing. Her father did not say anything. They went to her room and lay on a bed. Her father continued touching her. She does not recall whether her father said anything at that point. Then her father took off his pants and told her not to worry, that he could not get her pregnant, because he can’t have kids - he had a vasectomy. She did not say anything in response to that. She thinks her father had underwear that he removed. Her father told her that he was doing this because he loved her and he was teaching her how a real man was supposed to treat her. Her father told her to touch his penis. He showed her how to stroke it. That went on for a while, but she cannot remember for how long.
[13] Then her father got on top of her. He had taken off her underwear by this point. He put his penis inside of her vagina. He asked her if it hurt. She cannot remember if she said anything in response. She does not recall how things ended or whether her father ejaculated. She does not remember how old she was at the time, or what time of year it was.
[14] She does not recall anything else happening that day, but recalls that her father did tell her to “keep it between [them]” and to “make sure [she] [takes] it to [her] grave.” Prior to that, she had never kept any secrets about her father. She cannot recall whether she responded to those remarks.
Third Incident – Oral Sex and 69 Position
[15] She recalls a third incident that happened a couple of weeks after the second one. She was at home alone with her father in the living room watching TV. Her father had his white robe on. He had his boxers on beneath his robe. She was fully clothed. Her father started feeling her breasts and vagina. He then took off his robe and boxers. He asked her to perform oral sex on him. She was hesitant at first, but did as she was told. He gave her instructions. He told her how he liked it and how to wrap her mouth around his penis.
[16] She testified that after she finished “doing the oral”, her father said he wanted to try something with her. They moved from the couch to the floor. Her father lay on top of her in a “69” position such that their genitals were in each other’s faces. They performed oral sex on each other. Next, she performed oral sex on her father until he ejaculated. He told her to swallow it and she shook her head no. She went to the washroom and spit it out. Her father was upset as he had told her that she should have swallowed his ejaculate.
[17] Later on that same day, her father told her “make sure I take this to my grave” and “it stays between us.”
Fourth Incident – Penis Rubbing and Intercourse
[18] She testified that probably about a week after the third incident, her father was in her eldest brother’s bedroom laying on the bed. Nobody else was home. He called her into the room to lay on the bed as he wanted to take a nap. She lay on the bed. Her father started touching her on her breasts and vagina and went underneath her clothing. He did not say anything at the time. He pulled down his pants, took off her underwear and started rubbing his penis on her vagina. She was on her back and her father was on top of her.
[19] Her father asked her how it felt but she did not say anything. This continued for a while. Her father told her that he was going to put his penis in her vagina “just a little bit” and told her not to worry as it would not hurt. He continued and told her that he was doing this because he loved her. He continued “until it ended.”
[20] The Crown asked her “how do you mean ended?” She said, “it stopped.” She testified that her father said to her, “this stays between us” and to “take it to my grave”, and “I am doing this because I love you and I’m teaching you how a real man is supposed to treat you.”
Fifth Incident – Sexual Touching in the Bathroom
[21] The complainant testified that, following the sexual act in her brother’s bedroom, there was another incident where she was coming out of the shower. She does not recall how long it was between the two incidents.
[22] Her father came into the bathroom and said that he needed to use the bathroom. He started touching her on her breasts and vagina and started kissing her. She was not clothed but her father had his boxers on. Nothing further happened and the incident ended when she went to her room.
Sixth Incident – Late Night Movie and Hand Job
[23] She and her father were watching a movie late at night. The rest of the family was at home but asleep. Her father was naked underneath his robe. He opened his robe and asked her to give him a hand job. She did not know what that meant at the time, so she asked him and he told her to stroke his penis. She did. He gave her instructions on how to do it. That went on for a while until he ejaculated. After that, they finished watching the movie and went to bed. The whole incident happened in the living room on the couch.
[24] There were no further sexual incidents that she could remember. They stopped around the time just before the family moved. Things were not going well between her parents. They were separating. It was 2017.
[25] After separation, her father did not live with the rest of the family. What prompted her complaint to the police was that “it was a lot for me, and needed to be said.”
Cross-examination of the Complainant
[26] In cross-examination, the complainant disagreed with defence counsel’s suggestion that memory does not get better with time. She denied having any medical issues that affected her memory or being on anti-depressants. She disagreed that she was not very specific with dates in her police statement. On several occasions, she asked defence counsel to repeat his questions before answering. She testified that she did not recall what her parents were fighting about. She testified that her mother was unemployed, and her father worked in a factory. She said she did not know if it was fair to say that her father was the only one financially supporting the family.
[27] She did not remember her parents fighting or her father having mental health issues or being depressed in 2015. However, she recalled that in 2015, her father tried to commit suicide but she could not recall the details. She testified that she did not try to speak to her father about his suicide attempt. Eventually, she moved to a shelter with her mother and brothers. She believed that her mother paid for storage of the family’s items but could not agree or disagree that her father paid for it. She was not aware of whether her parents obtained a formal divorce or whether a child support order was in place.
[28] She said that she first disclosed the details of her father’s abuse to her boyfriend. She could not recall the last time that she saw her father. She may have seen him once after the family moved when her father came to finalize some things with her mother. They met at a McDonald’s parking lot but she does not know when.
[29] The family had a storage unit but changed storage locations in 2018 to Keele and Ingram Road. Since then, the family’s items have been in storage. She could not remember whether 2018 was the year that the family condo was sold.
[30] She agreed that she had stated to police that she had sent nude pictures of herself to her father and that she would provide those nude photos to the police. When confronted with the fact that the Crown did not produce any photos at trial and that there were, in fact, no photos or messages related to her allegations, she disagreed and stated that she provided her phone to the police.
[31] She denied that her abuse allegations were a fabrication and that she only filed a complaint after her father started missing storage payments leading up to September 2021. She denied that she and her mother had threatened the father that something bad was going to happen and that he was going to be arrested if he did not continue to make payments. She denied that the reason her allegations lacked detail was because they were not true, and that it was easier to make up general allegations lacking specifics.
Relevant Legal Principles
Presumption of Innocence and Requirement of Proof Beyond Reasonable Doubt
[32] The starting point of my analysis is that R.M. is presumed to be innocent, unless and until the Crown has proven the offences against him beyond a reasonable doubt. It is not enough for me to believe that he is possibly or even probably guilty. I must be convinced of his guilt beyond a reasonable doubt. As a standard, reasonable doubt does not require proof beyond all doubt, nor is it proof to an absolute certainty. At the same time, reasonable doubt lies far closer to absolute certainty than it does to a balance of probabilities.
Credibility and Proper Approach to Inconsistencies in Evidence
[33] The complainant was 22 years old testifying about events that allegedly occurred when she was between 11 and 16. At the age of 16, I would consider her to be an older child.
[34] In R. v. A.M., 2014 ONCA 769, 123 O.R. (3d) 536, the Ontario Court of Appeal provided some guidance on this point as well as on the assessment of credibility:
[9] First, every 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 CanLII 56 (SCC), [1992] 2 S.C.R. 122, [1992] S.C.J. No. 56, at p. 134 S.C.R.
[10] Second, no 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] Third, despite this flexibility, there are some guiding principles. Generally, where an adult testifies about events that occurred when she was a child, her credibility should be assessed according to the criteria applicable to adult witnesses. However, 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 CanLII 7 (SCC), [1962] S.C.R. 469, [1962] S.C.J. No. 27.
[12] Fourth, one 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 CanLII 8733 (ON CA), [1994] O.J. No. 2086, 93 C.C.C. (3d) 347 (C.A.), at p. 354 C.C.C., 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 C.C.C.
[35] The credibility of witnesses “must be judged in the overall context of the plausibility of the conduct they allege”: R. v. G. (M.) (1994), 1994 CanLII 8733 (ON CA), 93 C.C.C. (3d) 347 (Ont. C.A.), at pp. 355-356, affirmed in R. v. Gostick (1999), 1999 CanLII 3125 (ON CA), 121 O.A.C. 355, at para. 17. Particularly where the prosecution case depends on the unsupported testimony of a complainant, the trier of fact:
. . . must reasonably subject [the witness’] story to an examination of its consistency with the probabilities that surround the currently existing condition. In short, the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions
No Requirement for Corroboration Before Conviction
[36] There is no legal requirement that a complainant’s evidence be corroborated before a conviction can follow: Criminal Code, R.S.C. 1985, c. C-46, s. 274. However, where there are concerns about the reliability of a complainant’s testimony, “corroboration can provide a basis for resolving those concerns and concluding that guilt has been proven beyond a reasonable doubt”: R. v. A.S., 2021 ONSC 8549, at para. 63.
Sexual Assault and Trauma
[37] There is no hard and fast rule as to how people who are the victims of trauma like sexual assault will behave: R. v. D.D., 2000 SCC 43, [2000] 2 S.C.R. 275, at para. 65. It is an error of law to make assumptions about how a victim of sexual assault should or will react to the assault: R. v. A.R.D., 2017 ABCA 237, 422 D.L.R. (4th) 471, at para. 50; R. v. A.B.A., 2019 ONCA 124, 145 O.R. (3d) 634, at para. 5.
Discussion
[38] There was little evidence to determine when the alleged incidents happened. The complainant testified that the first incident likely happened when she was in middle school from grades six to eight. She also testified that the incidents stopped happening when the family moved in 2017. The indictment alleges that the offences occurred in the period between January 1, 2012 and December 31, 2017. The complainant was unable to state what age she was, even roughly, when the incidents occurred. Nor was she able to indicate what time of the year nor what season it was. She was not able to place the incidents in proximity to a holiday such as Thanksgiving or Christmas or any other event.
[39] Although the complainant claimed that the second, third and fourth incidents happened within weeks of each other, she was not able to place them in any timeframe within the six-year period of the indictment.
[40] The complainant remembered that following three of the incidents her father told her that she should “take it to [her] grave.” Following the fourth incident, the “grave” comment was accompanied with, “I am doing this because I love you and I’m teaching you how a real man is supposed to treat you.” I considered whether a father who had had sex with his teenage daughter would use the expression, “take this to my grave.” I decided that it was possible, but I would have expected a father to say something more straightforward like “don’t tell mommy” or “don’t tell anyone” or “this is our secret.” I find it somewhat odd that, out of the six incidents, the father allegedly made the “take it to your grave” comment to the complainant at the end of three encounters. The Crown suggests that the repetition is an indication of truth. Ultimately, I do not put much weight on this evidence. I shall assess it in context with all the other evidence.
[41] Noting that the complainant remembered the “take it to your grave” comment, I wondered why the complainant had little to no memory about anything else said during the sexual acts.
[42] During the second incident, for example, her father allegedly told her not to worry, that he could not get her pregnant, because “he can’t have kids, he had a vasectomy.” The complainant testified that she said nothing in response to that. Again, I find that unexpected as this comment was allegedly said as her father was taking off his pants but before he had exposed his penis or started to penetrate her. In the complainant’s sequence of events, the father had touched her breasts and vagina and taken off his pants (or was in the process of doing so) when he made the “vasectomy” comment. I find it difficult to envisage the father making the comment at that particular time, or the complainant saying nothing in response to her father’s comment. If she had a non-verbal reaction to that, she did not say. The complainant did not testify that she knew what the comment meant, but chose to remain silent. Nor did she testify that she did not know what the comment meant, but still remained silent.
[43] She did not describe what she or her father said when her father was telling her to touch or stroke his penis, which she said, “went on for a while.” She testified that her father got on top of her and put his penis inside her vagina. She testified that her father asked her if it hurt. She cannot remember if she said anything in response. She provided no other evidence of what was said. I considered the possibility that due to the traumatic nature of the second incident, the complainant only remembers a few things of what was said. It could also be that, in reality, these actions took place without either party saying much. But, on balance, the complainant’s description of her father’s acts with virtually no reference to what they said to each other – or any description of her emotional or physical reaction to what was going on – left me questioning whether the complainant was describing what actually transpired, or whether she fabricated the incidents and was describing a checklist of what a sexual assault may involve.
[44] While I have focused on the second incident, I would express the same concern about a lack of detail in the complainant’s testimony about all six incidents. For instance, in the sixth incident, the complainant testified that after she was forced to give her father a hand job, they continued to watch the movie and they went to sleep. There was a significant lack of detail about the incident.
[45] Another area in which I was concerned about a lack of detail was in respect of the complainant’s description of the circumstances in which she brought forward her complaint. The complainant testified that she told her boyfriend about the assaults. I infer that a chain of events led to the police being notified. However, the sum total of the complainant’s evidence as to why she brought the complaint forward was, “it was a lot for me, and needed to be said.” The complainant provided her statement to the police in 2021, so she was around 20 years old, and it would have been four years since the last alleged incident of assault. The complainant provided no further information about what triggered her to come forward. I heard nothing about whether the complainant received or is receiving counselling. I appreciate that the lack of corroborative evidence is not an impediment to a conviction where the case is proven beyond a reasonable doubt, but the fact that not a single exhibit was entered at trial concerns me. The Crown urged me to infer that, being in an intimate relationship with her boyfriend, the complainant may have felt that this was time to come forward with this difficult experience from her past. I decline to make this inference as there was no evidence about the complainant’s relationship with her boyfriend and to do so would amount to speculation.
[46] The Crown reminded me that there is no particular way for victims of sexual assault to react, and that the complainant, 22, is still a young person who has been placed in the very difficult position of recounting how her own father sexually violated her. The Crown submitted that the complainant was able to give details like her father’s white bath robe, her crying when he asked for a full body massage, that he was wearing boxers, the various sexual positions, and acts, that when she refused to swallow her father’s ejaculate, he became upset. The Crown asserted that the complainant had provided sufficient details for the court to find that the essential elements of the offences were proven beyond a reasonable doubt.
[47] The defence theory of the case is that the father is estranged from the rest of the family. After the complainant’s parents’ separation in 2017, the father – who was the only income earner – was paying for the entire family to store items in a storage locker. He continued to do that but stopped paying for storage in September 2021, which was roughly when the complaint came forward. The defence did not tender any evidence about the storage locker, but when questions about the storage locker or payments were put to the complainant, her answers were either “I can’t recall” or “I don’t know.”
[48] I found the complainant unreliable and not credible given how many facts she claimed to not know or remember. I note, parenthetically, that she clarified that no medical issues or anti-depressants were affecting her memory.
a) Her parent separated in 2017. She testified that she did not recall what her parents were fighting about.
b) She did not recall them fighting at all in 2015.
c) She did not recall any fights over their financial situation.
d) She answered that she did not know whether her father was the only one who was financially supporting the family, even though she understood that her mother did not work.
e) She was not sure whether there was enough money to take care of the entire family of five, even though her father, a factory worker, was the only one working.
f) She did not recall her father having any mental health issues at all.
g) While she knew of her father’s suicide attempt in 2015, she could not recall any details.
h) She did not try to speak to her father about his suicide attempt.
i) She had no knowledge of any treatment that her father received.
j) She was unaware of whether her father contributed to the family after the rest of the family moved to a shelter.
k) She was unaware whether her parents got a divorce or formal agreement for child support.
l) Initially, she could not recall when she last saw her father, but later in her testimony she said she might have seen him once when her parents met at a McDonald’s parking lot to finalize something.
[49] The complainant came across as either supremely unaware or indifferent about what was going on around her. Even as a young person or a teenager, I would have expected her to have some knowledge about the above issues, particularly as they directly impacted her and her family.
[50] The lack of memory of details of the alleged incidents, the lack of specificity as to timing, the lack of memory or awareness of other significant events in the life of the family raise questions about the complainant’s ability to accurately perceive what was happening, recall it, and recount it all reliably.
[51] My concerns are compounded by her unwillingness to answer straightforward questions and that led to concerns about her credibility. In a few important instances, I found that rather than answer questions in a forthright manner, she appeared to be calculating the best response and buying time to do so by asking defence counsel to repeat or rephrase his questions. For instance:
a) She disagreed that memories generally fade over time.
b) She disagreed that she was not very specific about when her allegations took place.
c) She seemed evasive and gave elliptical answers when defence counsel asked her about her father and family putting items into storage and who paid for storage fees.
[52] A significant contradiction arose when she insisted that she sent nude pictures of herself to her father, and that those pictures and some relevant texts would be found on her phone. Crown counsel conceded that the police had searched the complainant’s phone and no such photos or texts were found. The Crown suggests that this was one of those minor inconsistencies in her evidence that does not contaminate the rest of her evidence: R. v. H.S.B., 2008 SCC 52, [2008] 3 S.C.R. 32, at para. 14. I see things differently. While I do not consider the complainant’s testimony about her phone fatal to her overall narrative of sexual assault, it contributes to my finding that I do not know what to believe about her allegations.
[53] I know two things: that the complainant testified that she sent nude pictures of herself to her father from her phone, and that the nude pictures were not found on the phone. I conclude that the complainant was wrong about her phone and I question why she insisted on something that was not true. Could it be that she believed that by making this allegation a court would believe that her father possessed nude pictures of her which would be very incriminating? Could it be that being young and inexperienced, she was unaware that the police would actually go through her phone to verify her information? Could it be that she genuinely believed that she had sent her father nude photos from her phone, but that she was mistaken about which phone she used? I cannot answer these questions, but I am once again left questioning the complainant’s credibility and reliability. Combined with all my other concerns, I am left in reasonable doubt about whether the incidents alleged by the complainant happened.
Conclusion
[54] It bears repeating that reasonable doubt is a high standard. The Crown has the burden in all criminal cases, including in sexual assault cases, of proving facts with sufficient detail that the trier of fact can be sure of the accused’s guilt beyond a reasonable doubt.
[55] Here, the complainant described six separate incidents of alleged criminal conduct by her father. Her answers were relatively generic and rote. Her evidence was superficial. While she described conduct that, if it occurred would satisfy the essential elements of the offences charged, the lack of detail in her testimony along with concerns about her reliability and credibility resulted in my being uncertain whether the assaultive incidents that she complained about actually occurred.
[56] I am not satisfied of R.M.’s guilt and he is acquitted on all counts.
Pinto J
Released: February 16, 2024
COURT FILE NO.: CR-22-30000596-0000
DATE: 20240214
ONTARIO
SUPERIOR COURT OF JUSTICE
REASONS FOR JUDGMENT
Pinto J.
Released: February 16, 2024