Court File and Parties

COURT FILE NO.: 20-SA4617 DATE: 2024/04/15 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HIS MAJESTY THE KING – and – R.R.K. Accused

Counsel: Khorshid Rad, for the Crown Michael Smith, for the Accused

HEARD: October 4, 5, 10-13, December 7, 2023 and February 15 and 16, 2024

Restriction on Publication

Subject to any further Order by a court of competent jurisdiction, an Order has been made in this proceeding under subsection 486.4(1) of the Criminal Code, R.S.C. 1985, c. C.-46, directing that the identity of the complainants and any information that could disclose such identity shall not be published in any document or broadcast in any way.

Reasons for Decision

P. E. Roger J.

[1] The accused is charged with four counts relating to the alleged sexual assault of his two stepdaughters. I refer to each stepdaughter as “A.” and “B.”. A. was born in 2000 and B. was born in 1995.

[2] With respect to A., it is alleged that between June 1, 2013 and January 1, 2020, the accused sexually assaulted A. contrary to s. 271 of the Criminal Code, R.S.C. 1985, c. C-46, and for a sexual purpose touched A. contrary to s. 151. It is also alleged that between December 18, 2016 and December 17, 2018, the accused, with whom A. was in a relationship of dependency, for a sexual purpose touched A. with a part of his body contrary to s. 153(1) of the Criminal Code.

[3] With respect to B., it is alleged that between October 1, 2013 and August 27, 2020, the accused sexually assaulted B. contrary to s. 271 of the Criminal Code.

Background

[4] The accused came into the complainants’ lives in 2012. He met the complainants’ mother in 2012, started to live in their family home in 2013, and later married the complainants’ mother in 2017. The complainants lived in the family home with their mother and the accused, but parenting time was shared with their father. They would alternate living in their mother’s and father’s home.

[5] A. alleges that she was sexually abused by the accused between the ages of 13 and 17. B. alleges that she was sexually abused by the accused after she was 18 years old. The alleged assaults occurred at the family home between 2013 and 2020.

[6] A. alleges that the sexual abuse started with the accused kissing her on the mouth, using his tongue. She had a specific memory of three kissing incidents. The first allegedly occurred in the fall of 2013 while A. and the accused were playing video games in the accused and her mother’s bedroom. A.’s mother was downstairs preparing dinner. At some point the accused leaned over and kissed A. on the mouth, with his tongue in and out of her mouth, for about five minutes. A. said that she froze, was uncomfortable, confused, and shocked about what had happened. When the kiss ended, the accused continued as if nothing had happened.

[7] A. testified that the second time the accused kissed her inappropriately was when she was 14, probably some months after the first incident, in the early spring of 2014. She was leaving for her scheduled parenting time with her father, went to kiss the accused goodbye in the living room, and the accused used the occasion to try to put his tongue in her mouth. She testified that over the years, this probably happened on about 50 occasions. She would go to kiss the accused goodbye, and he would kiss her on the mouth and put his tongue in her mouth when no one else was present or looking. The third kissing incident described by A. is addressed two paragraphs below as it is also part of the final incident.

[8] A. also testified that the accused regularly smacked her buttocks over her clothing with his hand, sometimes while kissing her, and occasionally also squeezed a cheek of her buttocks. She said that the accused smacking her buttocks inappropriately happened at least once a week while she was living at her mother’s. She felt that the accused did this for a sexual purpose, and it made her feel uncomfortable. Her only specific memory of such an incident is the last time it happened, on December 24, 2019. She said the accused slapped her buttocks after they had finished opening gifts. Her mother and sister, B., were present. She asked the accused why he had done this and asked him to stop. The accused apparently replied that she was blowing this out of proportion.

[9] A. said that the accused sometimes also grabbed one of her breasts over her clothing when he kissed her or smacked her buttocks. She said that maybe a dozen times he also touched a breast. She did not describe any specific incident or specific memory of such an incident.

[10] The final alleged incident involving A. occurred in August 2018, shortly before A. was to leave for university. A. testified that when she was 17, in August 2018, the accused kissed her near their basement laundry room, put his hand in her pants, and penetrated her vagina with his fingers for what felt like 5 to 10 minutes. A. froze. After this assault, the accused allegedly threatened A. not to tell anyone as no one would believe her because she was “a kid”.

[11] B. alleges that the sexual abuse started with the accused slapping her buttocks over her clothing with his hand when she was 18 years old. She described a lingering hand, occasionally wrapping around her butt cheek, that made her feel uncomfortable. This inappropriate slapping of her buttocks by the accused occurred frequently and was often done in plain view of her mother and sister, A. The four of them butt slapped each other as a joke. However, she said that with the accused it was different. She remembered one specific butt slapping event. In 2013 when doing the dishes, she said that he slapped her harder than usual and that his hand lingered. She said that this is the one time that she remembers the most. She did not describe any other specific examples of butt slapping.

[12] B. described three incidents of fellatio. She said that she first performed fellatio on the accused in their garage while the two of them were there smoking in October 2017. A few weeks later, she said that the accused pinned her against the washing machine, kissed her forcing his tongue in her mouth, put his hand down her pants, touched her vagina briefly, tried to penetrate her vagina with his fingers, and forced her to perform fellatio while they were near the basement laundry room. B. also described a third fellatio incident occurring in their garage on December 24, 2018.

[13] After the alleged December 2018 fellatio incident, B. testified that the accused started to grab and grope her breasts over her clothing when he hugged her goodbye, and no one was looking. B. did not remember any specific instance of breast grabbing but said that this happened on more than 30 occasions until September 2020.

[14] During her cross-examination, B. admitted that she could not say when these events occurred.

[15] A. and B. said that butt slapping is something that went on in their household. It was a friendly gesture amongst them. But when the accused did it to her, A. said that it felt “predatory”, and that no one else also grabbed it. In 2014, A. told her father that she did not like it when the accused slapped her buttocks. She did not tell her father that it felt sexual, that there was occasional grabbing, that the accused kissed her on the mouth, grabbed her breasts, and did not tell him when the butt slapping resumed.

[16] A. and B. were and are still close. They communicate regularly. A. testified that a few weeks before she went to the police in May 2020, she talked to her sister B. about “it”. A. said that she told B. what the accused did to her and told B. that she was going to go to the police. A. said that she believes that they had more than one conversation about this. After A. met with the police and gave her video statement, A. said that she followed directions and did not talk to B. about these past events. Contradicting A., B. said that before she went to the police in September 2020, she did not know any details of what had happened to A. B. said that A. did not provide her any details about what the accused had done to her, only that A. had been sexually assaulted by the accused, without providing any details.

[17] A. indicated that it would have been her preference that her mother leave the accused. She admitted that she knew that during the spring of 2020, B. was trying to egg on the accused by texting him certain sexual messages to try to get the accused to say things, to show their mother, and get him to leave. A. agreed that she mentioned this to the police during her police interview. B. denied this and denied that she tried to break up the relationship between her mother and the accused.

[18] The Crown successfully brought a count-to-count similar fact application. As a result, the evidence of each complainant is applicable to the other.

[19] The accused testified and denied the complainants’ allegations. The accused’s wife, the mother of the complainants, also testified.

Issues

[20] The issue in this case is whether the Crown has proven beyond a reasonable doubt that the accused committed the offences charged.

General Principles

[21] Accused persons are presumed innocent and the burden of proving their guilt beyond a reasonable doubt is always on the Crown.

[22] Proof beyond a reasonable doubt is a doubt based on reason and common sense that logically arises from the evidence or from the absence of evidence. A reasonable doubt is not far-fetched or frivolous; it does not involve proof to an absolute certainty or proof beyond any doubt.

[23] To be convinced beyond a reasonable doubt means to be certain that an offence has been made out. A finding of not guilty is required where the evidence only manages to prove that an offence probably or likely occurred.

[24] The assessment of the credibility and reliability of the witnesses’ evidence is important. Credibility relates to a witness’s veracity, whereas reliability concerns the accuracy of the witness’s testimony.

[25] A judge must be sensitive that “children may experience the world differently from adults, it is hardly surprising that details important to adults, like time and place, may be missing from their recollection”: R. v. W. (R.), [1992] 2 S.C.R. 122, at p. 133. A common-sense approach should be adopted as “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”: W. (R.), at p. 133.

[26] A judge can believe or disbelieve a witness, but still be left with a reasonable doubt considering all the evidence. When considering the testimony of a witness, a judge can accept all, some, or none of a witness’s testimony. If the evidence does not convince the judge beyond a reasonable doubt that the accused committed the offence, the accused must be acquitted.

[27] The accused testified and called evidence in this trial. The Supreme Court of Canada provided seminal instructions with respect to the analysis of reasonable doubt when an accused testifies in R. v. W. (D.), [1991] 1 S.C.R. 742, at p. 758. I have paraphrased those instructions, as follows:

a) In the context of all the evidence, consider whether you believe the accused. If you do, you must acquit. b) If you disbelieve the accused, consider whether this evidence, in the context of all the evidence, nonetheless leaves you with a reasonable doubt about the guilt of the accused. If it does, you must acquit. c) Even if you disbelieve the evidence of the accused, and even if you are not left with a reasonable doubt based on the accused’s evidence, this does not mean that the Crown has proven its case. If the accused’s evidence does not leave you with a reasonable doubt, you must determine whether the totality of the evidence has proven the accused’s guilt beyond a reasonable doubt – whether, on all the evidence called, the Crown has proven each element of the offences charged beyond a reasonable doubt.

[28] The W. (D.) analysis does not require a judge to find some flaw or inconsistency in the accused’s evidence to decide that it rejects it. It can be rejected based on a consideration of the totality of the evidence, and solely based on the acceptance of the complainant’s evidence: see R. v. R.A., 2017 ONCA 714, 355 C.C.C. (3d) 400, at paras. 53-56, aff’d 2018 SCC 13, [2018] 1 S.C.R. 307. Similarly, frailties and inconsistencies in a complainant’s evidence do not necessarily mean that his or her evidence should be rejected: see R. v. J.J.R.D. (2006), 215 C.C.C. (3d) 252 (Ont. C.A.), at paras. 46-48, leave to appeal refused, [2007] S.C.C.A. No. 69. Furthermore, a judge must not rely on pre-conceived views about how sexual assault victims would behave as victims behave differently and stereotypes are the ‘myths’ of appropriate behaviour.

[29] With regards to allegations of collusion, a judge must scrutinize the reliability of the evidence considering all circumstances, including the opportunities for collusion, and determine what weight should be given to evidence that is alleged to have been concocted: see R. v. Burke, [1996] 1 S.C.R. 474, at para. 45; R. v. E.M.M., 2021 ONCA 436; R. v. Clause, 2016 ONCA 859, 133 O.R. (3d) 321, at para. 81; R. v. F. (J.) (2003), 177 C.C.C. (3d) 1 (Ont. C.A.), at paras. 77, 85.

[30] For a conviction of sexual assault, the Crown must prove beyond a reasonable doubt that the accused touched the complainant in a sexual way without her consent, and that the accused intended to touch the complainant and knew or was reckless of or willfully blind to the complainant’s lack of consent.

[31] For a conviction of sexual interference, the Crown must prove beyond a reasonable doubt that the accused touched any part of the body of the complainant who was under the age of 16 years with a part of the body or with an object for a sexual purpose.

[32] For a conviction of sexual exploitation, the Crown must prove beyond a reasonable doubt that the accused was a person with whom the complainant was in a relationship of dependency, that the complainant was 16 years of age or more but under 18, and that the accused touched any part of the complainant’s body with a part of the body or with an object for a sexual purpose.

Analysis

[33] The accused denied the complainants’ allegations and was a convincing witness. Except for the frequency of butt slapping occurring and whether it was playful, not much else was accomplished during his cross-examination. Consequently, when I consider all the evidence, I believe the accused and, alternatively and in any event, considering how the accused was not seriously challenged on any material aspect of his evidence, the accused’s evidence leaves me with a reasonable doubt. Moreover, the Crown’s evidence also leaves me with a reasonable doubt as the evidence of the complainants is not reliable.

[34] I found the evidence of the complainants not reliable because of the cumulative impact of what follows:

• A. testified that kissing happened on about 50 occasions yet remembered three instances.
• Similarly for butt slapping and butt grabbing, A. testified that the accused slapped her butt frequently, almost weekly, but remembered few instances.
• A. testified that the accused frequently grabbed her breasts but did not describe any specific memory of such an incident.
• With regards to the most serious alleged incident, A. was initially certain that it happened at a time when the accused was likely at work or when A. was likely with her father. It was only during her re-examination that she provided a slightly larger timeframe that might still be when she was with her father.
• After talking to her father about the butt slapping, A. said that the butt slapping stopped for about one month and then continued. That it continued like before is contradicted by the other witnesses, and to some extent by B. who said that it restarted but “only for a bit and it stopped” for her.
• A. and B. contradicted themselves about whether they spoke about their allegations prior to A. going to the police. It could have been normal for sisters, who are close like A. and B. were and still are, to speak to some varying extent about some of their experiences and allegations involving the accused. A. admitted that she spoke to B. about her allegations. It is clear from the evidence of A. that A. told B. the details of her allegations before A. went to the police. What is puzzling is that B. denied that she talked to A. about the details of their allegations. B. maintained that they did not talk about the details of their allegations, only that they had been sexually assaulted, which contradicts the evidence of her sister. As well, in her police statement B. told the police that she wrote her August 2020 statement “right after I found out, like, well my sister, what happened with her and I realized what he’d done to me is, I guess, like, related”, which contradicts her trial evidence. A. was also reluctant to admit, as she had done at the preliminary inquiry, that she had spoken to B. about her allegations after she went to the police. A. explained during her cross-examination that she had meant after she spoke to the police on the phone, but this does not make sense because that exchange at the preliminary inquiry did not relate to a telephone call to the police, rather to “after you met” the police. These contradictions are concerning because B. gave several conflicting statements, and because both sisters remembered few instances of some of their alleged frequent assaults.
• B. gave several conflicting statements to the police, and at trial B. was reluctant to admit that a police officer had contacted her to clarify some of the information that she had provided to the police.
• During her cross-examination, B. admitted that she cannot say when the alleged events occurred. This could be normal for historical allegations, but it is concerning considering some of the widely conflicting dates mentioned by B., and B.’s reluctance to admit that before A. went to the police she and A. talked about the details of A.’s allegations.
• B. described one butt slapping incident despite saying that it happened very often until A. told their father.
• B. could not describe any breast grabbing incident despite saying that this occurred on more than 30 occasions, and until she went to the police in September 2020.
• B. denied planting a condom wrapper in her mother’s room. She said that the accused placed the condom wrapper there and tried to blame them. However, B.’s mother was a convincing witness and she testified that finding a condom wrapper under their bed had caused a strain on her relationship with the accused because they were not using condoms. She confronted her daughters about this and said that B. admitted that she had put the condom wrapper under the bed. B.’s mother said that B. never gave a clear answer why she had done that, but considering the evidence I suspect that it was not meant to improve the relationship between the accused and their mother.
• Indeed, A. admitted that it would have been her preference that her mother leave the accused.
• As well, because of all the above, the possibility of collusion is concerning.

Conclusion

[35] Based on the unreliability of the complainants’ evidence and on my assessment of the credibility of the accused, the Crown has not proven this case beyond a reasonable doubt. The accused is found not guilty on all four counts.

P.E. Roger J. Released: April 15, 2024

COURT FILE NO.: 20-SA4617 DATE: 2024/04/15 ONTARIO SUPERIOR COURT OF JUSTICE HIS MAJESTY THE KING – and – R.R.K. Accused REASONS FOR Decision P.E. Roger J. Released: April 17, 2024