Court File and Parties

COURT FILE NO.: CR-22-32-0000 DATE: 2024-04-29

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HIS MAJESTY THE KING Madeline Lisus for the Crown

- and -

D.S. Richard O’Brien for the Defendant

HEARD: November 14-17, 20-24, 2023; January 29-31, 2024

THERE IS A PUBLICATION BAN ON ANY EVIDENCE THAT COULD REVEAL THE IDENTITY OF THE COMPLAINANT. THIS JUDGMENT COMPLIES WITH THIS BAN AND CAN BE PUBLISHED.

REASONS FOR JUDGMENT

D.E HARRIS J.

INTRODUCTION

1D.S. is charged with one count of sexual assault against his stepdaughter M. in the calendar year 2013 and the first six months of 2014 in Brampton. She was 19 years of age at the beginning of this time frame. She is now 29. M. testified that there were regular acts of sexual intercourse without her consent during the period of the indictment. The main witnesses for the Crown were the complainant M. and her mother S. The defendant D.S. testified in his own defence and denied the allegations. One of his sons testified for the defence as well.

2Crown and defence agreed that evidence stemming from prior allegations that D.S. had sexually assaulted M. in Edmonton, Alberta when she was between the ages of six and 12 years old and then again when she was between 14-15 are admissible on this trial. Consequently, the principal witnesses with respect to the indictment before the court also testified with respect to the events allegedly taking place over those years in Edmonton. These remained uncharged offences as they were out of the territorial jurisdiction of this court. And they were never charged or tried in Alberta.

3To properly organize and focus the analysis of the evidence on this trial, it is helpful to state at the outset that there were very significant reliability and credibility problems with the evidence of M. While I will go into more detail below, the reasons are numerous and include several recantations, a general tendency at least when she was younger to fabricate lies out of whole cloth, serious memory issues, psychosis and hallucinations. There was a clear motive to fabricate as well.

4In my view, it would be unsafe and unreasonable, particularly in the face of D.S.’s denials, to hinge a finding of guilt on M.’s evidence standing alone. The only potential path to a reasonable finding of guilt in this case is clear: M.’s evidence must be confirmed or corroborated by independent evidence on a material issue: R. v. Khela, 2009 SCC 4 at paras. 1-2; R. v. Brooks, 2000 SCC 11; R. v. Bevan; R. v. Vetrovec (sub nom. R. v. Gaja). And in this circumstance, confirmation must be more than the bare minimum the law requires.

5There was only one potential piece of evidence in this trial that could be of sufficient force to constitute substantial and meaningful confirmation for M.s allegations: that of her mother S. Specifically, S. testified that while the family was living in Edmonton in about 2009, the defendant D.S. attempted suicide, narrowly surviving the attempt. Shortly afterwards, he confessed to S. that he had raped her daughter M. The defence mounted a strong challenge to S.’s credibility and reliability. In addition, D.S., in his evidence, denied that he had made this admission.

6The admission relating to acts of sexual assault in Edmonton was outside the scope of the indictment. These alleged acts took place years before the allegations being explored in this trial. However, as I will explain, if believed in the context of all of the evidence, including that of the defendant, the alleged admission to S. with respect to the Alberta allegations could arguably constitute adequate confirmation of M.’s evidence with respect to the 2013-2014 allegations charged in the indictment. With that said, I turn first to the issue of whether the past evidence from Alberta is admissible on this trial.

THE DISCREDITABLE CONDUCT APPLICATION

The Evidence of M. with Respect to the Alberta Allegations

7In accord with the Rules, the Crown filed a discreditable conduct application to admit evidence that D.S. sexually assaulted M. numerous times when she was between the ages of 6 and 15 in Edmonton, Alberta including forced sexual intercourse. The Crown refrained from eliciting specific details about the abuse but the general picture was made clear.

8M. had three brothers: B born in early 1992; N. born in early 1997 and who died in 2020; and M.2 born in late 2002. M.2 was the biological child of D.S. and S. S. was the mother of all the children. They all had different fathers.

9For the purposes of the similar fact issue, the problems in M. and her mother S.’s evidence will not be discussed in detail. That will come later.

10M. testified that D.S., when he first moved in, was really angry towards her and her brothers. M. fought with D.S. about every little thing. With respect to the sexual assault, he told her not to tell anyone about it because he was the one who took care of everyone financially. At that age she just accepted this. M. did not know what he was saying was wrong. She was worried that because he was the provider for the family, if she told people about what was happening, he would have to leave and the family would be homeless.

11The police came when she was about six years old. She did know who called them. She did not remember any interviews she may have given. D.S. had to leave the house for about a month. Both D.S. and her mother S. told her to tell the police that she had lied when she talked to them. D.S. said he would be in trouble if she told. She followed their instructions but she was not telling the truth at the time. She was frightened for her family; she did not know what would happen to them. M. was also frightened of D.S.’s temper which was hard to deal with.

12D.S. returned to live with the family. What used to be sexual molestation turned into rape at about age 8. It occurred a couple times a week and lasted about 20 minutes to an hour. Her mother did not protect her at all; she felt trapped with no where to go. S. allowed D.S. to shower with M. When she was 12 years old, she told one of her friends what was happening and to her knowledge, her parents phoned the police. An investigation followed and she was questioned at school. Although the allegations were true, she denied the allegations to the police. No one cared enough to listen and believe her. M. testified that she was terrified. She was constantly fighting with D.S., butting heads all the time. She contacted her biological father when she was 12 who eventually picked her up to live with him. She lived with him in Gull Lake and then Sylvan Lake for several years in total. M. had no contact with D.S. or her mother for about a year. After a while she saw her brothers on occasion and then her mother and D.S.

13M. said that her mother S. was an absent parent who did the bare minimum for her and her brothers. She did not give her much time. Because S. had asked her to lie, it was already established that she was not going to do anything for her.

14After about a year with her father, he was getting mad because she was depressed and missing her family. Her father arranged for her to see her brothers and started going back to the house where her mother and D.S. lived. Her brothers missed her; she missed them. The sexual abuse from D.S. started again on the weekend visits.

15M. told her youth pastor about the abuse and they sat down with her dad who then went to the police. This was in 2009. M. then spoke to the police because she felt that, living with her father, she would be safe from D.S. M. was angry with D.S. and wanted the abuse to stop. She needed to tell someone. To M.’s knowledge, the police questioned D.S. and everyone else in the house. Shortly after, her mother called her and told her that D. tried to kill himself. S. blamed M. for it. M. felt guilty and upset, she did not want him to die. Although she was now finally ready to tell the police what happened, she decided not to go through with it.

16Within weeks of his suicide attempt, D.S., her mother, and her brothers moved to Ontario. The police case was dropped and M. felt let down by them. By 2013, when she was about 19 years old, she had lost everything, was barely surviving and wanted to be back with her family. She had no relationship with her mother at this point. Her brothers, because of all the things D.S. had said about her to them, believed she was a horrible person. M. moved to Ontario to be with her family. She was scared of D.S. but she viewed it as her last option. She wanted to be with her brothers. She wanted to see D.S. in a way too. She was anticipating that the abuse might start again.

The Evidence of S. with Respect to the Alberta Allegations

17S., M.’s mother, has a grade 10 education and is only semi-literate. She was 52 years old at the time of trial. She met D.S. in 1989 in Alberta. D.S. moved in and held odd jobs, including doing work for the landlord. She was on welfare and worked as a dishwasher. His relationship with the kids was good at the start. M. seemed to like him. They spent time alone in the home and she did not think anything of it. They went on a camping trip together. He tried to take care of her like a parent.

18When M. was six years old, M. said that he had touched her in places she did not like. S. called the police who removed D.S. from the home. S. did not believe her at first and D.S. denied it when she asked him. S. testified that she did know who to believe. M. would lie at times. She also said that M. and D.S. fought frequently. D.S. returned home but it happened again. M. said that D.S. touched her in a place she did not like. S. testified that she wanted to believe both of them. She said that she loved D.S. so she stayed with him. Their relationship was ok but they had arguments.

19When M. was about 12, she told S. that D.S. had sex with her. S. was in shock and did not know what to do. S. did not tell anyone initially. When S. spoke to D.S. he called M. a liar. S. was confused. She stayed in the relationship because she still cared for him. M. and D.S. still had a lot of arguments. M. moved out to live with her biological father.

20When she was about 14-15 years old, M. again told S. that D.S. was having sex with her. S. approached D.S. and he again said that she was a liar. S. was very confused and again testified that she did not know who to believe. She did not call the police because she was in fear of D.S.; he had a lot of control. He would hit her on occasion. D.S. threatened he would take the kids away. She believed him. S. testified that she had mental health issues at the time.

21Sometime around the winter of 2008 or 2009, S. received a call from the police saying that they wanted to speak to D.S. about M. They were to come at 1:00 p.m. Right after the call, S. went looking for D.S. and eventually found him in the hot tub in the garage. He was face down and was breathing “funny”. She thought he had tried to commit suicide. Her son B. and her tried to get D.S. out but he was too heavy. B. called 911. D.S. was taken by ambulance to the hospital.

22D.S. came back a few days later having been discharged from the hospital. His mood had changed and he was less angry. In their bedroom, D.S. told S. “not to get upset or anything.” S. asked why. He then admitted that he had sex with M. He said that hopefully S. was not angry. D.S. admitted that he had sex with M. when they were camping and when she was 14-15 years old. When S. asked why he had done it he replied that he did not know. He was sorry. He said it happened on numerous occasions. D.S. did not say the year but said it happened when S. was preoccupied downstairs or when she was not home or when he and M. went on car rides. It happened when she was quite young. S. testified that she was “very hurt, very angry and probably felt very discouraged”. She remembered beating on D.S.’s chest and telling him that he was sick and needed help. In cross-examination she testified that she believed D.S.’s admission was true.

23S. asked D.S. whether that was why he was avoiding the police and whether that was why he tried to kill himself. He said that was part of it. He also mentioned finances and kids. S. asked why the police wanted to speak to him and he said it was probably involving M. When S. was asked at this trial why she did not tell the police, she said that she was scared that D.S. would take the kids. D.S. had threatened to do so. He also took pictures of the house which looked, according to S., “lived in”. S. never told anyone until she was arrested in Ontario and taken out of the house. Also, S. said that she was not well, she had mental health issues. Love was blind. She was not a good mom. She tried her best but failed.

The Law

24As noted, both Crown and defence agree that all the evidence with respect to events in Edmonton are admissible on this trial. I gave a bottom line ruling at the outset of the trial holding the Edmonton evidence admissible, indicating that I would elaborate in my judgment. Given the concession of admissibility by the defence, I do not intend to dwell at great length on the issue. But reasons are necessary because of the importance of the issue to this trial. It is first necessary to acknowledge that discreditable conduct outside the temporal period of the indictment is presumptively inadmissible. The evidence is only admissible if its probative value going to an issue other than forbidden bad character reasoning outweighs the prejudicial effect of the evidence. The leading case in analyzing admissibility is R. v. Handy, 2002 SCC 56.

25In assessing probative value, it is first necessary to identify the issue upon which the evidence relates: Handy, paras. 69-75. Relevance and probative value depend on the connection and relationship between a primary fact (the sexual assaults in Edmonton) and a fact sought to be proven (the sexual assaults in Brampton). If proof of the primary fact makes the fact sought to be proven more likely, a relationship of relevance is established. Probative value goes one step further to inquire into the strength of the inference drawn from the primary fact to the fact sought to be proven. While relevance is a simple yes or no answer, probative value evaluates the weight and strength of the inference.

26Here the evidence goes to whether the acts alleged took place—the actus reus. The defendant is not being tried for the Edmonton allegations. But if it is proved on a balance of probabilities that he committed the acts of sexual assault alleged by M. in Edmonton and to which he allegedly confessed to S., it makes it more likely that he committed the acts of sexual assault alleged in the indictment before the court. This mode of reasoning is based purely on propensity. Spelled out, if D.S. committed the sexual assaults in 2000 to 2008 against M. in Edmonton, the Crown must show in order to demonstrate substantial probative value that he is therefore more likely to have sexually assaulted M. in 2013-2014 in Brampton.

27The judgment in Handy recognized once and for all that propensity reasoning is not a pejorative categorization. It is the inevitable path of reasoning behind similar fact inferences. The law does not prohibit propensity evidence but rather has now accepted that propensity reasoning is an integral part of similar fact evidence: Handy, “Propensity Evidence by Any Other Name Is Still Propensity Evidence”, paras. 59-68.

28The pivotal distinction in this area is between general propensity and specific propensity. The former lacks probative value and enhances reasoning and moral prejudice against the accused; the latter is the foundation for the accumulation of probative value to gain admission at trial. It was said in Handy:

48 Canadian case law recognizes that as the "similar facts" become more focussed and specific to circumstances similar to the charge (i.e., more situation specific), the probative value of propensity, thus circumscribed, becomes more cogent.

… 87 Cogency increases as the fact situation moves further to the specific end of the spectrum.

29In evaluating the degree of similarity and specificity required to boost probative value, there is no simple formula. Some of the factors cited in Handy are (para. 82),

1. proximity in time of the similar acts
2. extent to which the other acts are similar in detail to the charged conduct
3. number of occurrences of the similar acts
4. circumstances surrounding or relating to the similar acts
5. any distinctive feature(s) unifying the incidents
6. intervening events
7. any other factor which would tend to support or rebut the underlying unity of the similar acts.

30When we reflect that sexual assault is an act of power and control over another and is achieved by means of the violation of sexual integrity, a fundamental element of personhood, this passage from Handy is instructive:

80… in a case where the issue is the animus of the accused towards the deceased, a prior incident of the accused stabbing the victim may be admissible even though the victim was ultimately shot -- the accused says accidentally (Rosenberg, supra, at p. 8 [Rosenberg, Marc. "Evidence of Similar Acts and Other Extrinsic Misconduct". In National Criminal Law Program, Criminal Evidence. Vancouver: Federation of Law Societies of Canada, 1994, section 8.1.]). The acts could be said to be dissimilar but the inference on the "issue in question" would nonetheless be compelling.

31In short, the reason the evidence from Edmonton has high probative value is simple: it involves the same accused, the same complainant as the allegations before the court and the same acts of sexual intercourse. This is further enhanced by reason of the relationship of stepfather and stepdaughter. In the circumstances, those common components are crucial and dial up the probative value to a high level. While nothing else about the acts that allegedly took place or the circumstances in which they took place are unique or distinctive, the nature of the relationship, the acts of sexual intercourse committed and the identity of the parties elevate probative value. These are the elements that establish unity between the alleged sexual assaults in Edmonton and in Brampton.

32It was unlikely to be coincidence that there were alleged to be sexual assaults by D.S. on M. in the two different locations despite the lengthy gap of time between them. The improbability of coincidence is the engine which generates probative value in similar fact reasoning: R. v. Arp at paras. 44-46 (Carswell). As Wigmore said, “the improbability of a like result being repeated by mere chance … carrie[s] probative weight.” (Wigmore on Evidence, vol. 2 (Chadbourn rev. 1979), at p. 245, approved in Handy at para. 81).

33The moral and reasoning prejudice from this evidence is not insignificant. Moral prejudice is the bad character aspect of the evidence leading to indifference towards the presumption of innocence: Handy at paras. 31, 129-143. Reasoning prejudice is the tendency to overvalue the evidence of the prior sexual assault on M. towards the issue of whether D.S. sexually assaulted her within the indictment and the element of distraction from the real issues at stake: see Handy at paras. 31, 144-147; M. Rosenberg, Evidence of Similar Acts and Other Extrinsic Misconduct (National Criminal Law Program, Criminal Evidence, 1994) at pp. 23-24; vol. 1A of Wigmore on Evidence, s. 55.1, pp. 1060-1061); Great Britain Law Commission, Consultation Paper No. 141, Evidence in Criminal Proceedings: Previous Misconduct of a Defendant (1996), at § 7.2.

34Both moral and reasoning prejudice are present in this case and both pose risks to the fair trial rights of D.S. Sexual assault on a young girl may excite strong emotions against an accused person. Reasoning prejudice is amplified when the crime charged is the same or similar to that tendered as the discreditable conduct evidence. Furthermore, the prior conduct adduced here is more serious than the conduct charged in the indictment due to M.’s being between 6 and 15 years of age at the time. It has been said that if the similar fact evidence tendered is more serious than the charges before the court for trial, the prejudice can be increased as the evidence may be inflammatory: R. v. D. (L.E.) at paras. 60-62; Handy, para. 83. However, despite this, I agree with counsel that the probative value of the evidence nonetheless outweighs the prejudicial effect.

35Prejudice from similar fact evidence is generally reduced in judge alone trials: R. v. Tsigirlash, 2019 ONCA 650 at paras. 38-40; R. v. MacCormack (2009), 2009 ONCA 72, 241 C.C.C. (3d) 516 at 56, 68-69; R. v. J.W., 2022 ONCA 306 at para. 34. I have instructed myself on the pitfalls of moral and reasoning prejudice in this case. Any residual prejudice that might remain is clearly outweighed by the probative value of the evidence. This pertains both to M.’s testimony and to S.’s evidence of D.S.’s admission to her that he sexually assaulted M.

36In conclusion, I agree with counsel that the similar fact evidence from Edmonton is admissible for and against the accused D.S. In addition, this is as good a place as any to comment on the Crown’s discreditable conduct application made orally during the course of the trial. There was a significant amount of bad character evidence adduced with respect to D.S. from both M. and S. D.S. according to M. was emotionally and sometimes physically abusive. Both M. and S. said that D.S. fought and argued with them regularly. The physical abuse was mainly in Alberta, not Ontario. D.S. was also abusive to N., M2. and S. Some of this was admitted to by D.S. in his evidence. M. blamed D.S. for the family being so deeply divided. According to her, every person in the family had a different reason to hate D.S. He was a miserable person. He was strict with the rules and meted out discipline quite often. There was other evidence as well, much of which is summarized in this judgment.

37Ms. Lisus, to be scrupulously fair, raised the matter towards the end of M.’s cross-examination. There had been no written application to admit this evidence. She was right to raise it. But the fact is, this evidence permeated the trial, including to some extent D.S.’s evidence. It was bound up in the general evidence, and was largely inextricable. It was part of the necessary narrative and the family’s dynamic. The evidence cut both ways, illuminating the Crown’s position with respect to M. and S. to some extent and at the same time, supplying a motive to fabricate for the defence.

38Mr. O’Brien took no position with respect to admissibility. In my view, the evidence was clearly admissible following the leading case in the area, R. v. F.(D.S.), 132 C.C.C. (3d) 97, 169 D.L.R. (4th) 639 (C.A.) at paras. 22-27. The probative value well exceeded the prejudicial effect. There is some inherent prejudice to the evidence but I have set aside the moral and reasoning prejudice and any aspects of bad character.

39I will now move on to examine the evidence of the witnesses in this trial.

THE EVIDENCE OF M. IN CHIEF

40M.’s evidence with respect to D.S.’s sexual assaults against her in Edmonton has already been summarized. D.S. and S. along with her brothers moved to Ontario at some point. In 2013, M. had been fighting with her dad who she was living with. He asked whether she wanted to be with her family. She missed them. She said yes. M. testified that she had no relationship with her mother and her relationships with her brothers was damaged. But she missed them and wanted to have them back. A lot of repair had to happen. M. testified that she was scared of returning to live with D.S. but she was barely surviving and had lost everything. She felt it was the last option. M. testified that she knew that the abuse might start again.

41In cross-examination on this topic she eventually agreed that another reason she moved to Ontario is that her father who she was living with gave her the stark option of going to a youth shelter or going to Ontario. He kicked her out basically.

42M. testified that D.S.’s prior abuse had affected her and led to Borderline Personality Disorder (BPD) and Post-Traumatic Stress Disorder (PTSD). She was not able to trust people or romantic partners. She would not let anyone get close to her. She was lost and broken. M. described nightmares and flashbacks she had. M. admitted in her evidence in-chief that this did affect her relationship to telling the truth. She would pick and choose and tell people what they wanted to hear. Before she moved to Ontario, she suffered psychosis and made-up scenarios. But none of this affected what she told the police about D.S.

43M. moved to Ontario in February or March of the year 2013 to live with her family, including D.S., her mother S. and her three brothers. She considered D.S. to be a father figure. They lived in a house but moved after a few weeks. M. started school. Her mother, whom she did not have a good relationship with, kept asking her if she was sexually abused by D.S. previously but M. continually rerouted the conversation and never answered her. Both she and her mother S. were financially dependant on D.S.

44The abuse started again about three or four weeks after she arrived in Ontario. At the old house that they had moved out of, she had been cleaning. D.S. asked her if she remembered what happened in Alberta. He then asked for a blow job or hand job but he could not get hard and became frustrated. M. testified that she did not want to do it. She had a vague memory of her taking some of her clothes off, kissing him and he grabbed her breasts. M. said that she did not utter words of disagreement. She did not want to do it and did it only out of fear. It seemed normal because it had happened before. She was in the same position as then. She was completely dependant and felt like she had to do what he said or he would get angry and break or throw things like he had done before multiple times when she was younger.

45A few weeks later D.S. told S. that he needed M.’s help at his work. As they were driving, he told her that he had taken Viagra or a similar drug before they left the house. She admitted to not remembering how this made her feel. They went to a hotel called the White Knight: M. went through a back door into the room. D.S. was slightly aggressive and took her clothes off right away, then had intercourse with her for two or three hours. He ejaculated. She disassociated; her mind was not there. She did not consent. Afterwards, she was tired and sore. D.S. had told her back in Alberta that he had a vasectomy so he would not get her pregnant. M. added that when it happened in Edmonton, spermicide had been used. She knew from about age 10 on that he had a vasectomy.

46At this point in her evidence. M. admitted that it was difficult to focus on the questions. She was tired and a little overwhelmed. This occurred a number of times in her evidence. After a break, M. testified that he never asked for her consent or agreement and she never gave it. The trips to the hotel and the sexual assaults happened probably 5-8 times. D.S. would make up things to tell S. about where they were going and what they were going to do.

47There was an incident at a drive-in movie in a mini-van but her memory of it was vague. All she remembered was flashbacks. D.S. was on top of her, the van was rocking and sweat was pouring off his forehead on to her face. He had intercourse with her without her consent. This was around the time that she started blocking everything and letting everything happen.

48The sexual assaults happened in the house too. Her mother got a temporary job and so generally no one was home during most of the day. Intercourse took place in her room 3 to 4 times a week. It was different than in the motel as there was foreplay before intercourse. This happened three to four times a week. It went on for four to five months. S. would ask a few times whether it was happening and M. would not answer her directly. But M. felt like she knew based on the police reports in Alberta. S. told her that D.S. admitted it to her after they moved to Ontario. M. testified that she felt her mother failed her.

49M. testified that D.S. had a temper and the two yelled and screamed at each other. He was a strict father. He was physically abusive in Alberta a few times but not in Ontario. At times she would say no to the sexual assaults and he would either persist or get angry, leaving the room in an aggressive manner and slamming doors. When he persisted, she would “lay there and take it.” M. testified that the sex really “messed me up”. She was already experiencing mental health issues before she came to Ontario. There was no one to turn to. M. never told her brothers. She had electric shock convulsion therapy (ECT) after she returned to Ontario which affected her short- and long-term memory. She was poor with dates and timelines.

50At one point her mother assaulted D.S. They often got into heated arguments. She had been accused of cheating and had been living out of the house for a period of time. She had been back for a couple of days when she assaulted him; she was freaking out. She held him somehow and scratched his face. She yelled, “what are you doing to my daughter!” M. thought but was not sure that she also said, “Did you rape her; Did you have sex with her?” and things of that nature. S. was out of control. It took M. and her two brothers to get her off him. M. called the police who arrested S. and took her away. She never came back to the house. M. testified that after the outburst she felt noticed; it was reassuring in a way.

51Child protective services asked her in the aftermath whether the abuse was still happening. M. said it was not. This was untrue. She was rundown mentally and just did not care. When she complained before, nothing had happened.

52The sexual assaults recommenced about two to three weeks later. He had free rein as S. was not there to question or keep an eye on her. M. was in school much of the time. From this point on, D.S. wanted sex almost every day, multiple times a week, sometimes more than once in a day. There were too many times to count. She could not remember individual instances.

53M. eventually left Ontario with help from a friend (Ms. Garcia) who she had met in the Mormon church. M. told her what was going on. She went back to her house and packed her belongings. D.S. was yelling at her but she was not sure what he was saying. M. felt bad about leaving her brother M2 as she had told him that she would not leave him alone. She lived with Emily for a month and then the bishop of the church paid for a flight back to Edmonton for her in May of 2014.

54After a while, M. started writing her story of sex abuse on her phone and then made a video of her reading it on YouTube. She felt like she was ready to tell her story and needed to be heard. She went to the police shortly after, in 2019. She was in a different place in her life and was caring about herself. She wanted the world to know.

The Evidence of Non-Avoidant Behaviour

55On the first day of trial, Mr. O’Brien announced that his client had just provided him with extensive evidence of electronic messaging between him and M. Despite this last-minute disclosure, we embarked on a s. 278.1 records application. I ultimately held in bottom line rulings that stage 1 was satisfied and that under stage 2, this evidence could be used at trial although with some restrictions as conceded by Mr. O’Brien. He disclaimed the intention to use the more personal parts which would add little probative value.

56These are my reasons for the decision that this material was admissible. There were about 401 pages of conversations using Facebook Messenger from July 2011 to September of 2020 and about 65 pages of text messages from November 2016 to December 2018. Counsel entered orally in court into an agreed statement of fact that these communications were authentic. But there were parts of the communications that M. could not remember. The conversations are amicable and friendly with D.S. at times showing a paternal affection for M. She, on occasion, writes that she loves D.S. He writes that he and the rest of the family love her. There are passages in which he is a nurturing and supportive father. He consistently gives her fatherly advice. I agree with defence counsel’s characterization of the records as reflecting a loving, caring trusting relationship. There is pleasant conversation. Some quite personal details are shared by M. including her feeling about depression and mental health treatment. Relationships in the family are briefly discussed at points including M.’s with S. and D.S. There is no sexual aspect.

57Are the electronic communications a record under s. 278.1? As they do not fall into the statutory categories specified in that provision, the question is whether they contain “information of an intimate or highly personal nature that is integral to the complainant’s overall physical, psychological or emotional well-being?”: R. v. J.J., 2022 SCC 28 at paras. 42, 54. The provision only includes information that could cause “potential prejudice to a complainant’s personal dignity”: J.J., paras. 53, 54. In terms of the content, there are some examples of medical information being conveyed which would be caught by the record regime screening regime. But a much greater portion of the messages contain “mundane information such as general emotional states, everyday occurrences or general biographical information would typically not give rise to a reasonable expectation of privacy”: J.J., paras. 55-56. In terms of context, the communications took place within a trust relationship of father and daughter. The communications were not in the public domain but were rather a one-on-one exchange, a private conversation: J.J., paras. 57-60.

58For these reasons, I concluded at trial that the better course was to construe the messages as “records” within s. 278.1 and therefore subject to the regime in the Criminal Code. With respect to stage 1 of the regime, governed ultimately by s. 278.93(4), I found that the evidence was “capable of being admissible” using the criteria in s. 278.92(2)(b). The probative value was significant and not outweighed by the prejudice. The countervailing factors against moving to the second stage were not strong in this case because the vast majority of the communications were mundane albeit created in a context of some intimacy and trust.

59With respect to stage 2, Ms. McLaughlin, counsel for the complainant, made submissions as did the Crown and defence counsel. In his notice, counsel stated,

The complainant’s allegations paint a very different picture of her relationship with the Applicant. She talks of being afraid of him and of hating him during her many statements to the police.

The Applicant applies to use these communications in cross-examination to test the credibility and reliability of the complainant. This case rest solely on the credibility of the complainant. These interactions between the Applicant and the complainant seem to paint a very different picture of their relationship.

The Applicant asks to use all of the communications to test the credibility of the complainant. Including all communications that confide in the Applicant to contrast the present description by the complainant about her relationship with the applicant during these times.

60In oral submissions, defence counsel relied on an inference tending towards innocence based on non-avoidant behavior towards D.S. The electronic communications begin after the Edmonton abuse allegations. On the evidence, that abuse ceased around 2009. The communications begin in 2009 and go to 2020 with significant gaps along the way.

61The Crown position is perhaps best encapsulated by a passage from the leading case on the subject, R. v. A.R.D., 2017 ABCA 237; aff’d 2018 SCC 6. The majority said,

42 ... it has long been recognized that there is “no inviolable rule on how people who are the victims of trauma like a sexual assault will behave”: R. v. D. (D.) at para 65. Just like the failure to make a timely complaint, a failure to demonstrate avoidant behaviour or a change in behaviour “must not be the subject of any presumptive adverse inference based upon now rejected stereotypical assumptions of how persons (particularly children) react to acts of sexual abuse” [emphasis in original]: R. v. D. (D.) at para 63.

43 The most serious problem with the trial judge’s comparison-based assessment of the complainant’s credibility stems from his impermissible reliance on a myth or stereotype (masquerading as logic and common sense) about how a sexual assault complainant, in general and in this case, is assumed or expected to behave post-sexual assault(s). Put plainly, the trial judge’s reliance on his own “logic and common-sense” about how humans react following sexual assault, is itself highly questionable as to relevance and reliability. But it becomes particularly dangerous when reliance on that “logic” overshadows any resort to or assessment of the actual evidence at trial…

62However, although I agree with this statement from ARD, I fundamentally disagree with the Crown position with reference to the probative value of this evidence. There is an enormous difference between relevance and the ultimate findings made by judge or jury. At this admissibility stage we are only looking at relevance and probative value, not the making of findings. To say evidence is relevant does not imply acceptance of the factual conclusions advocated by the defence. It is merely to conclude that the evidence is worth considering; that it bears on the question. Non-avoidant behaviour does not fence an off-limits area in which there is never any relevant information, an area which should be strictly ignored because it has been proved in every case to lead to an impermissible assumption or myth. That would itself be an ungrounded, false assumption. It cannot be controversial that there may be cases in which the non-avoidant behaviour has real importance.

63Instead, the correct perspective as articulated recently in the concurring judgment in R. v. Kruk, 2024 SCC 7 (released after submissions in this case) is:

191 It is not disputed that there are limitations to reliance on generalized expectations that amount to questions of law. Notably, various expectations founded on myths or stereotypes about complainants, particularly women and children, in the context of sexual assault trials have been identified as errors of law, either by statute or by the courts. For example, s. 276(1) of the Criminal Code proscribes the drawing of inferences from the complainant’s past sexual activity to conclude on the question of consent or the credibility of the complainant — these are often referred to as the “twin myths”. Courts have identified other expectations that, as a matter of law, may not be relied on, such as the expectation that a person who has been sexually assaulted would necessarily exhibit avoidant behaviour towards the aggressor (see A.R.J.D.; see also, e.g., R. v. Mills, at para. 90; R. v. Osolin, at p. 670). (emphasis added)

64In other words, it is an error of law and the acceptance of a discredited myth to conclude that avoidant behaviour on the part of a sexual assault complainant would “necessarily” occur if the allegations were true. A categorical conclusion of this nature is based on a false assumption. That does not mean, however, that non-avoidant behaviour and an after the fact normal relationship between the complainant and the interfamilial accused is not relevant to whether the allegations are true. Relevance is to some extent contingent on the total evidence in the case, evidence to be adduced later in the trial. A trial judge may well be on unfirm ground in finding this evidence irrelevant at the outset of a trial. If possible, a contingent approach as can be taken in a judge alone trial, is the best strategy.

65Any finder of fact will often want to know about the relationship between a complainant and the accused after the alleged offences were committed. In this instance, the relationship evidence and non-avoidant behaviour was vividly illustrated in the electronic communications between M. and D.S. This led, in my view, to it having substantial probative value to the ultimate issue of M.’s credibility and reliability. With respect both to the first and second stage, this probative value superseded the factors going the other way in s. 278.92(3) and rendered the evidence admissible. That of course does not mean, in the context of all of the evidence, that the good relationship between the two will demonstrate that the alleged offences never happened. The resolution of this issue is quite a different matter.

66I agree with Professor Dufraimont who wrote (Myth, Inference and Evidence in Sexual Assault Trials, 44 QUEEN's L.J. 316 (2019) at pp. 351-352):

The majority in the Court of Appeal of Alberta [in AJRD] used strong language in holding that a complainant's non-avoidance of the perpetrator says "nothing" about a sexual assault allegation and is "logically irrelevant". One might read these comments as suggesting that a complainant's after-the-fact conduct in relation to the accused is generally (or even always) irrelevant and inadmissible, or that no inferences favourable to the defence can be drawn from it. The latter suggestion is problematic because, as pointed out by Slatter JA in dissent at the Court of Appeal of Alberta, evidence of the complainant's avoidant behaviour is frequently admitted to support the Crown's case in sexual assault prosecutions. It hardly seems consistent with the presumption of innocence to hold that a particular species of evidence can be admissible when it assists the Crown but inadmissible when it assists the defence.

Moreover, the idea that the complainant's after-the-fact conduct is inadmissible conflicts with the Supreme Court of Canada's usual approach to eliminating myths and stereotypes about sexual assault, as discussed in the previous section. That approach does not involve prejudging categories of evidence irrelevant. It would be more faithful to the Supreme Court of Canada's approach in other areas to acknowledge, like the dissent in ARJD, that prohibiting rigid expectations about how sexual assault victims behave does not preclude inferences from the complainant's after-the-fact conduct that are rooted in the specific factual context. [footnotes omitted]

67Errors in law can be committed by rigid, blanket approaches to evidence that do not allow for any exceptions or room to consider distinct factual situations. Excluding the possibility that M.’s continued association with D.S. may be probative of the issue of whether the alleged acts took place is one example. Furthermore, relevance being highly contextual, it is particularly risky to hold at an early stage of the trial, before the other Crown witnesses or the defendant testifies, that this evidence is altogether irrelevant. Trial judges can be trusted with this evidence and, if they do mistakenly buy into an assumption or stereotype, they can be corrected on appeal.

68I should add that despite allowing extensive cross-examination on the communications, I felt it necessary to urge that the questioning not get bogged down and keep moving along. Counsel spent a good deal of court time putting many different passages from the conversations to M. M. was an extremely vulnerable witness. For example, she could not continue in cross-examination on one of the scheduled days and other evidence had to be called to fill in the gap. She often struggled giving her testimony. It was important to control the cross-examination out of fairness and sensitivity to M. And the questioning elaborating on the positive electronic communication between M. and D.S. gradually lost much of its relevance. The ostensibly good relationship between the two in the communications was established early on in the questioning and additional elaboration was not required. There were diminishing returns on probative value.

69In my findings, I will return to the question of the electronic communications between M. and D.S. and what conclusions should be drawn from it.

THE CROSS-EXAMINATION OF M.

70Counsel for D.S. launched a strong challenge to M. and her mother S.’s credibility and reliability. Both, he submitted, were self-admitted liars. I do not intend to identify all the problems with their evidence. Ms. Lisus candidly admitted the weaknesses and problems in their evidence. I agree that the problems were substantial with respect to both of them.

71First, there were the recantations in Alberta. Although M. gave reasons for them, they nonetheless tend to give pause in accepting her evidence. Furthermore, M. admitted that when she was younger she lied about things to garner sympathy from people. M. testified to being hospitalized multiple times after returning to Alberta in 2014. She has been hospitalized since that time as well. The electric convulsion treatment was to treat her treatment resistant depression. She has been diagnosed with social anxiety, agoraphobia and has experienced hallucinations. Her psychiatric problems had an effect on her truthfulness as she would lie to tell people what they wanted to hear. They were usually white lies and not big but when she was in psychosis, there were big lies. That occurred after her family moved to Ontario.

72In Alberta she lied at school and said her brother had died. This was about 2009. She used crutches for a while and lied about having a broken leg to get sympathy. This was in grade 3. Her mother S. confirmed this in her evidence. She falsely told her teacher when she was 12 or 13 that she needed a liver transplant.

73When she was six years old, her mother S. told her to lie to the police and tell them nothing had happened. She did as she was told. M. confirmed that her relationship with her mother was not good. The last time they communicated was on her birthday several months before testifying. Her mother wished her happy birthday over text.

74When she told her friend Ms. Garcia in Ontario about what was happening, she lied to her and told her that she was pregnant. She told her mother too that she was pregnant and the baby was D.S.’s This was false. It was easier for people to believe her if she put it this way. She felt powerless and that no one would believe her.

75There were locks on her door in Ontario but D.S. took the door off completely. D.S.’s evidence of this was that it was only for a short time and occurred in Alberta, not Ontario.

76Defence counsel took M. through many of the electronic communications between her and D.S. They were universally amicable. In July of 2011, she told D.S. that she would like to come in the summer to visit but she probably would not because of her present condition. It would not be best for “all of us and you.” Later on in the communications, D.S. gives her advice on how to mend her relationship with her father. There were discussions about M. going to school.

77In re-examination, Ms. Lisus pursued the issue of hallucinations. M. admitted that she did have them during the offence period and when she was younger. M. testified that she cannot always tell the difference between a hallucination and reality. However, the sexual assaults were real. She could tell because she remembered specific details. With hallucinations, it was a one-time thing and it would change. Memories of real things would never change. She remembered the sexual assaults memories as occurring multiple times unlike psychosis where there is only one hallucination. Also, hallucinations are usually fixated on one thing. They are changeable and one-time occurrences while the recollection of what really happened does not change. M. testified about not getting mental health help until she was 17. She still has hallucinations but she is now on the right medication so they are less frequent.

78When asked whether the sexual assault testimony with respect to Alberta was the truth or a lie, M. said that because it happened so frequently, it was not a one-time thing, and spanned such a long time, she knew it was reality. She volunteered that her memory might be impaired but she still had very clear and disturbing memories of D.S. in Ontario.

THE EVIDENCE OF S.

79S.’s evidence with respect to what happened in Edmonton has already been summarized. After she moved with D.S. to Ontario and M. moved to be with them in 2013, she was working at a temp agency and D.S. worked as well. M. was supposed to go to school but was not. D.S.’s work schedule was flexible; he worked days one week and nights another week. Her hours varied, sometimes two hours, sometimes four hours. At one point she worked graveyard shifts 11 p.m. – 7 a.m. S. testified that there were times when D.S. and M. were in her room alone either in the day or evening, sometimes others would be there too. They watched movies. The door was closed. S. was concerned with the sexual assault admission D.S. had made but because she was afraid of losing her kids, she did not confront him.

80S. had an extra marital affair and was living out of the house for about two weeks. She left her children including M. in the home with D.S. who she believed was a physical, emotional and sexual abuser. S. said that she was being selfish and only thinking of her own needs. She then came back to the home after a few weeks.

81Shortly after returning, on one occasion S. entered M.’s room. The door had been closed with M. and D.S. inside. N. was there too. S. lost control and hit D.S. She said she hated him and it was her recollection that she wanted him to tell the truth in front of M. D.S. told her to stop hitting him and get out. B. and M. held S. down so that D.S. could leave the room. S. testified that she wanted to hurt D.S. because of what he did to her daughter M. and what he did to her boys. In cross-examination she admitted asking M. to tell her if D.S. hurt her. M. said, “I don’t know what you are saying”. In cross-examination, S. adopted a previous statement that during the event she had asked M. in D.S.’s presence whether “he had hurt you, because he said he did”.

82Specifically, S. said D.S. had poured soup over B.’s head, telling him not to waste food, spanked and yelled at B.. He had choked N. S. testified that she had seen D.S. spank and hit M., pull her off a chair because she was monopolizing the computer and verbally abusing her. Her left bruises on her. This happened in Alberta when M. was young.

83When the police came, S. was arrested for assault and went to jail. She was not allowed to go back to the house in Brampton and, in fact, never did. Eventually a judge gave her probation for six months. She was told that her record would be wiped out if she did well. D.S., according to M., from then on restricted her communication with her children, saying that she was not well. He said that he would not allow her to see the children because she had not been well enough. She agreed that she was not well at one point in time. S. tried to get M. to see her and visit but she would not come out. S. testified that then and now, her relationship with M. does not really exist.

84In cross-examination, S. agreed that she sometimes lied to get sympathy. She said that her son B. had died in Afghanistan but that was false. She falsely claimed to have cancer. S. has been diagnosed with bi-polar disorder and suffers from chronic depression. She was on medication and was hospitalized once overnight. S. was given money to pay bills and did not always pay them. At least once, the electricity was turned off. S. testified that M. told stories such as telling people that she was pregnant in order to get a ticket back to Alberta. She was hospitalized because of mental health. But she had never lied to S. that she knew of.

85S. admitted that she was angry with D.S. and that her “kids were victims of this man I loved”. She wanted to tell him that he was going to die a lonely man.

86When the police first investigated D.S. M. changed her story and said that she said what she said because she was angry at him. In 2009 when she was 12 she recanted and said nothing had happened.

87S. admitted that around the time she went to the police, M. had made a video recounted her sexual allegations against D.S. S. watched the video. She testified that M. lied a lot, she took it from her.

THE EVIDENCE OF MS. GARCIA

88Ms. Garcia met M. in her church during the time of the allegations in Ontario. She often saw her at the Sunday school worship and the women’s group which Ms. Garcia ran. M. eventually complained to her about D.S.’s physical and sexual abuse. M. said that D.S. beat her and she frequently had bruises on her body, including her face. She said that she has been raped several times, including multiple times in a day. She could not feel like she could do anything because she was concerned about her little brother, she did not want to leave him alone. However, eventually she packed her bags and asked to be picked up. Ms. Garcia and her boyfriend drove to pick her up.

89M. was panicked, scared and crying. She yelled to get her out of there. M. said that she had been raped several times that day. A man whom she gave a general description came out following her as she was running towards the car. It was dark but it looked like he was yelling.

90M. lived with Ms. Garcia in her family’s home for a period of time. Eventually, thanks to the efforts of the Bishop of the church, they paid for M. to fly back to Alberta.

91There was no objection to the admissibility of the evidence of Ms. Garcia. But in my view, the evidence of M’s statements of sexual abuse to her are inadmissible for any purpose in this trial. The evidence offends the long-standing presumptive rule against hearsay and the admissibility of previous consistent statements: see e.g. R. v. S.C., 2023 ONCA 832 at paras. 14-18. Nor does the evidence fall into the accepted exceptions such as recent fabrication or narrative: S.C., at para. 15.

92There are elements of Ms. Garcia’s evidence, however, which are admissible for a limited purpose. These are aspects which inure to the benefit of the defence such as M.’s statement to Ms. Garcia that D.S. had made her pregnant, a statement which M. accepted she had made in her own evidence. It is false. Furthermore, the evidence of Ms. Garcia that M. complained about physical abuse including evidence of the bruises she saw on her body is admissible. This evidence is inconsistent with M.’s evidence and could potentially go to her credibility.

THE EVIDENCE OF D.S.

93D.S. testified in his own defence and denied all of the allegations of sexual assault, both in Edmonton and in Ontario. He also denied ever admitting to S. in Alberta that he had sexually assaulted M.

94D.S. testified that when he moved in with S. and her children, they were a happy family. The family did a lot of fishing and watched movies together. When M. was six or seven, there was a police investigation into allegations he sexually assaulted M. and he left the home for about six months. At the end of it, there was a meeting between counsellors and it was announced that the matter was not being pursued. D.S. moved back in. He had rules around the house about bedtime and other matters but at times he had to dish out discipline. He spanked them, including M. He pulled her off the chair once when she would not get off the computer. The family had financial problems while living in Edmonton. Brian had cystic fibrosis and his medication was expensive. Eventually, he received a lung transplant.

95D.S. was questioned again in 2009 as a result of further allegations of sexual assault by M. No charges were laid. D.S. explained the suicide attempt which took place somewhat latter in Alberta. He was feeling lost, unable to cope and was broke. He took pills and then got into the hot tub. D.S. was hospitalized for a week. D.S. did not confess to S. about sexually assaulting M. when he returned home. He told S. that he had tried to kill himself because of money problems. He knew that the police wanted to talk to him about M. allegations but that was not the reason he tried to take his own life.

96With respect to the time S. was arrested in their home in Ontario, M. had told D.S. that S. was cheating on him. S. testified in her evidence that this was true. There was a confrontation and S. left the home. She was gone for a week or two but when she came back, she did not talk to D.S. D.S. convened a family meeting to talk about her. He said that she was mentally ill. S. overheard and she grabbed him and was beating on him. As she was doing so, she said that he had touched her daughter. D.S. said that they had discussed it before and he told her that it had not happened. S. got a hold of his face and knocked him down on to the bed. Her sons pulled her off and M. called the police. The police came and arrested S. and took her away. S. was in custody for some time. According to his evidence, the police did not question D.S. about the allegations of sexual assault. But he was questioned by Childrens’ Aid.

97D.S. agreed that he was with M. alone at times but more often with other family members. In Ontario, he appeared to deny he was with M. alone in the house. There were family members often present, particularly Brian. D.S. testified that M. wrote him a glowing biography on a dating website, Plenty of Fish. M. in her evidence was unsure she had written it but said if she had, it was staged. D.S. was questioned about the day M. left the house in Ontario. She had lied about going out to mail a letter but was out of the house for several hours. They had an argument when she came back and she left, never to return. During the argument, D.S. accused M. of being just like her mother: i.e. lying a great deal. She left a lot of her clothes, possessions and her pet turtle behind. Before that point, their relationship had been excellent, they were close. He loved her like a daughter. D.S. acknowledged the texts between them and said he was a concerned parent.

98In cross-examination D.S. testified that he had never talked to M. about her accusations against him as he would have got just denials and tears. He was not aware of the investigation that took place when M. was approximately 12 years old, only the ones in 2000 and 2010.

THE EVIDENCE OF B.

99B. is 32 years old and is M.’s brother and D.S.’s stepson. He was called by the defence. The principal value of his evidence was to attest that he never saw anything improper or suspicious going on between D.S. and M. in Alberta or Ontario. In Ontario, D.S. would get angry often and there was a lot of tension in the house. He would yell. Frequently it was about people not following the rules and not doing their chores. B. testified that both M. and S. made up things although it was not so extreme with M.

100When the family was living in Brampton, N. lived in the home part of the time, for about a year. S. worked about half the time. B. lived in the basement and was generally home. He was then, as now, in the business of fixing electronics and cellphones. He could see movement between bedrooms. But he never saw anything suspicious.

101B. gave evidence about S.’s assault of D.S. as had M., S. and D.S. He said that after S.’s affair, there was a lot more tension in the house. On this occasion, S. hit D.S. and said “you raped my daughter” to him. He did not reply. M. was in the corner of the room and did not say anything, No one in the room said that the sexual acts did not happen. B. himself had reason to believe it was made up; he never saw anything.

FINDINGS

102Since all of the witnesses except for Ms. Garcia testified about events both in Alberta and Ontario, their evidence should be viewed as a whole and not segregated by geography. I have done that above to analyze the issue of admissibility of the similar fact evidence. But it is axiomatic that the evidence must all be considered together.

103In my view, it makes the most sense here to analyze the Crown case first before going to the defence’s evidence. There is no prescribed order that must be followed contrary to what might erroneously be derived from the three steps in R. v. W. (D.). The Supreme Court and Ontario Court of Appeal have held that the order in which evidence is addressed ought not to be carved in stone: R. v. Vuradin, 2013 SCC 38 at para. 21 per Karakatsanis J., R. v. Y. (C.L.), 2008 SCC 2 at para. 12 per Abella J.; R. v. Carrière at paras. 48-51 per Doherty J.A.; R. v. S. (M.), 2008 ONCA 616 at para. 53 per Cronk J.A. Trial judges have a broad discretion, as long as they recognize the common pitfall of being seduced into deciding a criminal case hinging on credibility by simple preference for the Crown or defence. The rule of reasonable doubt must always apply.

104Starting with the evidence of M., it suffered from significant problems including the recantations in Alberta (albeit some of which were explained by M. in her evidence), a history of lying, the admittedly false claim of being pregnant with D.S.’s baby and serious issues with hallucinations and psychosis. Motive to fabricate must be considered as well. It is clear from M.’s evidence that she detests D.S. The last electronic communication with him, after all the amicable back and forth over many years, was vitriolic in the extreme. After telling him to fuck off, she said that he had destroyed her and taken her soul away. She would not ever be able to forgive him. And she made no bones in her evidence of her utter disdain and hatred of him. He was responsible for breaking up their family. There were potential issues of collusion with S. as well which I will leave to the analysis of S.’s evidence below.

105At the same time, there are some positives to M.’s evidence. M. was a very open witness, often testifying to facts that could not possibly make her evidence more believable. When witnesses are asked about something relatively trivial and they do not remember, they often attempt to fill in the gaps, perhaps to preserve their standing with the court. But M. was free in testifying that she did not remember things. She explained the reasons if there were reasons, including the effects of ECT. The absence of memory was not for the purpose of getting out of a potential inconsistency or to strengthen her evidence in any way. She was not ducking incriminating or implausible circumstances but rather simply telling it as she saw it.

106M. also testified that she loved D.S. This seemed to be at odds with other parts of her evidence and with the offences committed against her. But it was borne out by the text messages and other parts of her evidence. It was a completely candid, honest response. Overall, I could discern no attempt to calculate whether any given answer would enhance or diminish her credibility. Part of it appeared to be that the subject matter was utterly exhausting for her. It would have taken much effort and labour to dissemble.

107M. openly volunteered her mental health issues, and the effects they had on her memory and cognition. Some of these she had little choice to admit as there had been previous statements made with respect to them. But often she obliged in going well beyond the prior statements. Furthermore, there were no significant inconsistencies in M.’s evidence. Inconsistencies are one of the major pitfalls in credibility: Kruk, para. 71.

108When Ms. Lisus asked M. in re-examination whether she could discern the difference between reality and a hallucination, surprisingly, M. said that sometimes she could not. That was plainly against her interest. She was anything but a self-advocate or partisan on the witness stand. An admission of that kind could lead in some circumstances to the total rejection of her allegations. But it was true and that is why M. answered the way she did. After Ms. Lisus pressed on she was able to eventually elicit from M. a reasonable and logical explanation for how she knew that the sexual assaults committed by D.S. were not hallucinations, they were real. I accept that explanation as recounted above. I also accept her explanation for telling Ms. Garcia that she was pregnant. The purpose was to get Ms. Garcia’s attention essentially. While that is concerning, on the totality of her evidence, I accept this explanation. It does not undermine her credibility.

109With respect to the amicable, affectionate electronic communications with D.S. from 2011 to 2020 and M. move to Ontario to put herself in close proximity to a man she had testified had abused her for many years, Mr. O’Brien argued that these acts contradicted and rebutted the accusations of sexual assault. After carefully considering the matter, I do not agree. M. had profoundly divided feelings about D.S. He was M.’s father in all but blood. He was her major father figure from a young age. He was the provider and the protector of her and her family. But, at the same time, he was her abuser. And an abuser from a very early age six years old, as she testified. She did not know at this age that him telling her not to tell anyone was wrong.

110There were two parts then--the nurturer, the adviser, the support, the paternal figure. But then there was also the abuser and someone who caused severe harm. The profound enmeshed conflict and confusion arising between these two opposing and irreconcilable roles especially because it became entrenched at such an early age, was prevalent throughout M.’s evidence. This was best encapsulated in a passage from M.’s cross-examination:

Q. [Mr. O’Brien] How were you feeling about him when you left Ontario? A. [M.] I, I don't know. I had a lot of emotions. Q. Did, did you want to see him any ever again [sic]? A. No. Q. Did you want to talk to him ever again? A. No. Q. Did you hate him? A. Yes. Q. Okay. Did you love him? A. Yes. (emphasis added)

111M. was torn between the two figures: the father figure and the abuser. There was deep ambivalence. The two parts were irreconcilable. The electronic communications were an example of the father figure in this paradox. M., as peculiar as it might seem, sought comfort from her abuser. When the total situation is appreciated, that is not difficult to understand. She testified that she had no stable parent figure in her life. S. was an egregious failure as a mother and her father was an alcoholic. M. was a badly damaged, desperate person. D.S. appeared to be interested and caring in the communications. M. testified that, in effect, he was better than nothing.

112It also warrants mention that both D.S. and M. were communicating electronically over this lengthy period of time under the pall of her previous allegations against him of sexual abuse. There was no doubt that the allegations had been made. M. testified that those were from 2000, about 2006 and 2009 respectively. D.S. testified to the first and third but said he was unaware of the second. That the previous allegations did not deter M. in carrying on these conversations shows that the ostensibly amicable relationship was not detracted from by the very turbulent history between them. If M. could be pleasant in light of those past accusations from Alberta, it is not terribly surprising that she could have the same attitude despite what she testified occurred later in Ontario.

113For these reasons, I reject the argument that M.’s electronic communications with D.S. detract from either her credibility or reliability. In considering M.’s evidence in the totality of the evidence in the case, even with her many significant flaws, I believe her on a balance of probabilities. I believe her with respect to the allegations in Alberta. I believe her with reference to the allegations in Ontario. It was clear from her evidence that at no time did she consent as that the concept is known to law: R. v. G.F., 2021 SCC 20 at paras. 29-33. The defence did not argue consent nor was such an argument reasonably available.

114I next move to the evidence of S. and the critical issue of D.S.’s alleged admission to her. S. was the kind of witness criminal lawyers are apt to call “unsophisticated”. By education and natively, she was often overwhelmed. S. was deathly afraid of D.S. taking her kids from her and abandoning the family. As well, he was a belligerent presence. The result was acute paralysis on her part. Confronted by allegations made by her little girl against her husband, she testified that because she did not know who to believe, she did nothing. Although this was an inexplicable response for a mother, her evidence was convincing that this was in fact her true state of mind. On the witness stand, she projected a proud façade at times but then at other times, admitted that she was a failure as a mother. Her character flaws cast a shadow on her credibility.

115S. had a tendency to lie in order to elicit sympathy from people. She suffered from depression. There were other problems with her evidence. Like M., her evidence has to be examined carefully to ascertain whether her dislike of D.S. burgeoned into fabrications. I do not think so. She testified that she loved D.S. but the impression she gave was that this love soured after his admission to her after the suicide attempt.

116I have examined the record to determine whether there was collusion between M. and S. against D.S.: R. v. R.I., 2024 ONCA 185 at paras. 29-32. The opportunity for collusion existed. But both witnesses testified to their poor relationship throughout their lives. I believed them. There were no inconsistencies or cracks in this evidence. M. blamed S. for abandoning her and not protecting her. It was not clear why S. was not more drawn to her daughter but the fact is, she was not. S. felt that she was an inadequate mother. I do not believe that M. and S. got together to concoct evidence against D.S.

117S.’s critical evidence in this trial was D.S.’s admission to her shortly after his suicide attempt that he had repeatedly sexually assaulted M. Both S. and D.S. testified that just prior to the suicide attempt, the police were looking to speak to D.S. about M.’s allegations. D.S. denied that the suicide attempt had anything to do with the police wanting to talk to him. I doubt that. To the contrary, S. testified that when asked D.S. told her that M.’s allegations did play a part in the suicide attempt. That is much more likely to be true than his testimonial evidence on the subject. It was improbable that the police investigation and the suicide attempt were a coincidence.

118Furthermore, it is consonant with general experience that after years of denying it, the admission would come after a cataclysmic event like a suicide attempt that might well have been prompted by police interest in investigating him for sexual crimes. S. said that after the attempt, D.S.’s mood changed. The conversation and her beating him on the chest afterwards was a believable scenario. He said he was sorry. The account was quite detailed and congruent with an admission of this kind. In S.’s telling of it, D.S. explained when it happened and where, although not exhaustively. He said that it was when she was preoccupied downstairs, was out of the home or on when they went on car rides. This was generally consistent with M.’s evidence. The admission did not appear scripted or falsified. It had a natural flow to it. Although it is of course possible that S. had the capacity to make this up, given her severe limitations, that in my view is unlikely. I find she was remembering something that actually happened.

119The admission occurred shortly before the family left for Ontario in 2009 or so. The subsequent 2012 attack on D.S. by S., when she accused him of raping her daughter or words to similar effect, is important evidence on this trial. All the witnesses who were present testified that this occurred. S. testified that she wanted D.S. to tell the truth in front of M.; she wanted to hurt him for what he did to M. and the boys. She testified that it was during the attack she asked M. whether D.S. hurt her, “because he said he did”. M. testified that S. said during the attack “what are you doing to my daughter” and she thought she heard her say, “Did you rape her; Did you have sex with her?” B. testified that S. said, “You raped my daughter” to D.S. D.S. himself said in his evidence that during the episode S. accused him of “touching her daughter”.

120Confronting D.S. in the presence of other family members with this information is consistent with and supports S.’s evidence that previously in Alberta, D.S. did in fact admit the sexual acts. This is the reasoning that leads to that conclusion. 1. S. said that she heard D.S.'s admission of sexual assault of M. in Alberta; 2. Although several years later, based on the knowledge she had obtained from this admission amongst other grievances against D.S., S. angrily attacked him. She was retaliating at least partially for the acts against her daughter that she had learned about from the Alberta admission; 3. S. was heard by several of the witnesses making the rape or touching allegations. It is not just S.'s word about what happened during the assault; and 4. The anger manifested in S. assault tends to confirm that D.S. made the admission in Alberta. S. by her conduct confirmed that the admission to her was in fact made.

121In other words, S.’s testimony that she heard D.S. admit to a criminal offence against her daughter and then, as a result, attacked him as retribution for what he did, contributes to proof that the admission was in fact made.

122That is its sole evidentiary purpose; it is inadmissible as a previous consistent statement as that would constitute “self-corroboration”: R. v. Peterpaul at paras. 22-23. I should add as well that the use of the statement to show consistency with S.’s evidence that she received D.S.’s prior admission, the key issue, is a non-hearsay use. S.’s statements during the attack are not admissible for their truth but simply for the fact that they were said, confirming her evidence that she did in fact at the prior time hear the admission.

123Ms. Lisus asked me to draw an inference of guilt from D.S.’s failure to respond during the attack and, similarly, his subsequent failure to respond to M.’s vitriolic final text. I cannot agree. An equally plausible explanation that he gave on the witness stand is that he was in shock at the allegations, although it was not the first time he had heard them, and simply chose not to respond as a result.

124In sum, there were no significant inconsistencies in S.’s evidence. It is true that after receiving the admission of guilt from her husband, she did not report him. That does not speak well of her character and by extension, of her credibility. But it was consonant with her lack of reporting when M. was 12 and then again when she was 14-15. She was torn between her love, fear and dependence on D.S. and her duty as a mother. She made an unfathomable choice. In my view, looking at the specific evidence with respect to the admission and her later assault of D.S. in Ontario, I believe her. D.S. admitted his guilt to S. with reference to the Alberta allegations. That she heard this confession is at least partially confirmed by her later assault on D.S. in Ontario.

CONCLUSION

125Analyzing the allegations from Alberta, taking together M.s and S.’s testimony, I find that it constitutes convincing evidence of the truth of M.s allegations with respect to the sexual assaults in Edmonton. The admission made to S. is directly confirmatory of M.’s central allegation: R. v. Bradshaw, 2017 SCC 35 at paras. 44-57. The evidence is material, independent and supplies strong confirmation: Vetrovec at paras. 37, 42. It is powerful evidence. Any concerns about motive to fabricate or collusion are contradicted and overborne by the finding that the witnesses were honest and reliable in their evidence.

126Moving to the allegation in the indictment before the court, M.s evidence about the sexual assaults in Ontario is bolstered by the similar fact driven finding with respect to the convincing nature of the Alberta allegations of sexual assault. I am convinced by M.’s evidence, confirmed by S.’s evidence of D.S.’s admission to her, that the Alberta allegations are true. Were it not for S.’s evidence of D.S.’s admission, that would not be the case.

127M.’s testimony of sexual assaults in Alberta cannot confirm her own testimony of sexual assaults in Ontario. S.’s evidence of D.S.’s admission, however, is decisive in building probative value to prove the one count before the court. Not only does S.’s evidence bolster M.’s allegations from Alberta, it bolsters the allegations in the indictment as well. Because D.S. committed sexual assaults against M. in Alberta, it is also more likely, employing the similar fact inference from that conclusion, that he committed the same offences of sexual intercourse without consent against the same person, M., in Ontario.

128I have considered B. and D.S.’s evidence with respect to opportunity to commit the offences. S. testified on this issue as well. B.’s room was within eyeshot of M.’s. He testified that he never saw anything improper. However, M. alleged that at the beginning in Ontario, the sexual assaults took place outside the home. With respect to the many sexual assaults that allegedly took place in the home, it is clear that despite impediments, there was plenty of opportunity to be alone with M. in her room. This evidence, in combination with and in the context of all of the evidence, does not leave a reasonable doubt.

129This is a credibility case in which the rule in W.D. applies. If D.S.’s testimonial denial is believed or at least raises a reasonable doubt, he must be acquitted. There was nothing internally in his evidence that would lead me to reject it. It was a blanket denial of all misconduct. The focus should turn to the mode of reasoning endorsed by Justice Doherty in R. v. J.J.R.D., 215 C.C.C. (3d) 252, [2006] O.J. No. 4749 (C.A.), leave to appeal dismissed [2007] 1 S.C.R. x (note). Also see R. v. A.I.B., 2023 ONCA 557 at paras. 12-19; R. v. S. (T.), 2012 ONCA 289 at para. 67.

130In J.J.R.D., the only real reason stated by the trial judge for the rejection of the accused’s evidence was the opposing strength of the Crown evidence. In his reasons, Justice Doherty said:

53 The trial judge rejected totally the appellant's denial because stacked beside A.D.'s [the complainant’s] evidence and the evidence concerning the diary, the appellant's evidence, despite the absence of any obvious flaws in it, did not leave the trial judge with a reasonable doubt. An outright rejection of an accused's evidence based on a considered and reasoned acceptance beyond a reasonable doubt of the truth of conflicting credible evidence is as much an explanation for the rejection of an accused's evidence as is a rejection based on a problem identified with the way the accused testified or the substance of the accused's evidence. (Emphasis added)

131I would employ the same process of reasoning in this case. The application of J.J.R.D. in a credibility case where there is no confirmation for the evidence of the complainant should be approached gingerly. It is theoretically possible but rarely seen in practice. As a result, the paragraph above from J.J.R.D. is sometimes viewed with some skepticism because of a belief that the process described is inappropriate in a case of straight credibility with no confirmation. It comes dangerously close to endorsing what W.D. prohibits.

132But that is a misinterpretation. In fact, upon reading J.J.R.D., it is apparent that the case was not an unadorned “she said, he said” credibility case. The complainant had been writing a diary and had recorded in it the accused’s sexual assaults immediately after each occurred. This was very important evidence. Justice Doherty referred to “the complainant’s evidence and the evidence concerning the diary” as the building blocks of the Crown’s case. It was the complainant’s evidence and the diary together that led to a “considered and reasoned acceptance” of the complainant’s allegations and a rejection of the accused’s evidence, not simply the complainant’s evidence.

133In a case in which there is totally independent confirmation, as there is here, much more so than with the diary in J.J.R.D., it is clear how probative value can be increased by confirmation. The high level of certainty necessary to reach the beyond a reasonable doubt level has been attained in this case. This leads me to reject the accused’s contrary evidence.

134To clarify, the acceptance of the Crown evidence does not result as a “necessary corollary” in the rejection of the accused’s evidence. That is the either\or fallacy that the W.D. three step formulation was designed to prevent: see R. v. Van Deventer, 2021 SKCA 163, 407 C.C.C. (3d) 291 at para. 15. Rather, M.’s evidence corroborated through the similar fact route by S.’s evidence of D.S.’s admission in Alberta, leaves no room for reasonable doubt with respect to the charge before the court.

135In final summary, I am convinced beyond a reasonable doubt based on the Crown evidence that M.’s evidence with respect to the allegations of the Ontario sexual assaults charged in the indictment before the court are true. Furthermore, I reject D.S.’s denials and his evidence does not leave me in reasonable doubt.

136For these reasons, I find the accused D.S. guilty as charged of the one count of sexual assault before the court. The indictment will be so endorsed.