His Majesty The King v. M.U., 2024 ONSC 3769
COURT FILE NO.: CR-23-3-495 DATE: 2024-09-11
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HIS MAJESTY THE KING - and - M.U.
Counsel: Melissa Mandel, for the Crown Karanvir Sidhu and Lata Menon, for the accused
HEARD: June 17-21, 24, 27, 2024
Subject to any further Order of a court of competent jurisdiction, an Order has been made in this proceeding, pursuant to s. 486.4 of the Criminal Code, directing that the identity of the complainant and any information that could disclose such identity shall not be published in any document or broadcast or transmitted in any way.
K.L. Campbell J.:
Reasons for Judgment
I Introduction
[1] The accused, M.U., is alleged to have sexually abused his young step-daughter, P.N., over a lengthy period of time, between approximately April 1, 2013 and February 4, 2017, at a time when she was under 16 years of age. He is alleged to have sexually touched her breasts, vagina and buttocks on multiple occasions over that period of time. Further, on one occasion, the accused is alleged to have performed oral sex on the complainant while she was sleeping, after having given her sleeping pills earlier in the day.
[2] The accused faces an indictment that charges him with seven counts of “sexual assault,” contrary to s. 271 of the Criminal Code, R.S.C. 1985, chap. C-46, and with another seven counts of “sexual interference” with a person under the age of 16 years, contrary to s. 151 of the Criminal Code. While he originally elected to have a jury trial, the accused ultimately re-elected, with the consent of the Crown, to have a judge alone trial. The Crown’s case consisted of the testimony of the complainant and her mother. The complainant was, however, the only witness who testified as to the nature and details of the alleged sexual misconduct of the accused. The accused was called by the defence. He denied ever engaging in any sexual misconduct with the complainant, and suggested that the complainant had invented all of these allegations against him.
[3] After hearing all of the evidence, and the closing submissions of the parties, I reserved judgment on the case. Today is the day scheduled for the release of these Reasons for Judgment.
II The Presumption of Innocence and the Burden of Proof on the Crown
[4] The accused is, of course, presumed to be innocent. That presumption of innocence has been with the accused throughout the trial and remains with him unless and until the Crown establishes his guilt for these alleged offences beyond a reasonable doubt. That heavy burden of proof never shifts. The accused has no obligation to establish his innocence. This important and long-standing principle of our criminal law is constitutionally entrenched in s. 11(d) of the Canadian Charter of Rights and Freedoms. See: R. v. Dubois, [1985] 2 S.C.R. 350, 22 C.C.C. (3d) 513, at p. 357; R. v. Pearson, [1992] 3 S.C.R. 665, 77 C.C.C. (3d) 124, at pp. 682-683, 687.
[5] It is also important to recall the nature of the heavy burden of proof on the Crown. As juries are typically instructed, a reasonable doubt is not an imaginary, far-fetched or frivolous doubt, or a doubt based on sympathy or prejudice. Rather, it is a doubt based on reason and common sense. It is a doubt that logically arises from the evidence, or the lack of evidence. Of course, it is not enough for a trier of fact, whether it be judge or jury, to believe that an accused is probably guilty or likely guilty, as that is not proof beyond a reasonable doubt. However, the Crown is not obliged to establish, with absolute certainty, the alleged guilt of an accused, as such a standard of proof is impossibly high. Nevertheless, as the Supreme Court of Canada stated in R. v. Starr, [2000] 2 S.C.R. 144, at para. 242, proof beyond a reasonable doubt is much closer to proof of absolute certainty than it is to proof of probable guilt. At the end of the case, after considering all of the evidence, a trier of fact must be sure that an accused committed the alleged offence before finding him or her guilty of that offence, because it is only at that point that the trier of fact can be satisfied beyond a reasonable doubt as to the guilt of the accused. See also: R. v. Lifchus, [1997] 3 S.C.R. 320, 118 C.C.C. (3d) 1, at paras. 13-43; Mr. Justice David Watt, Manual of Criminal Jury Instructions (2015, 2nd ed.), at pp. 261-267.
[6] Further, as the accused testified in this case and denied his alleged guilt, in assessing whether or not the Crown has proven his guilt beyond a reasonable doubt in relation to these alleged offences, I must apply the three important principles articulated by the Supreme Court of Canada in R. v. W.(D.), [1991] 1 S.C.R. 742, 63 C.C.C. (3d) 397, at pp. 757-758. In other words: (1) if I believe the testimony of the accused that he did not commit the alleged offences I must find him not guilty; (2) even if I do not believe the testimony of the accused that he did not commit the alleged offences, if his testimony leaves me with a reasonable doubt as to his guilt regarding these offences, I must find him not guilty; and (3) even if the testimony of the accused does not leave me with any reasonable doubt as to his guilt regarding these alleged offences, I may only properly find him guilty if, based on the evidence that I do accept, I am satisfied beyond a reasonable doubt of his guilt regarding these offences. The application of these principles ensures that reaching a verdict does not devolve into a mere credibility contest between the two main witnesses – the complainant and the accused – and ensures that the presumption of innocence and the Crown’s burden of establishing the alleged guilt of the accused beyond a reasonable doubt properly operate. See also: R. v. Y.(C.L.), 2008 SCC 2, [2008] 1 S.C.R. 5, at paras. 6-8; R. v. Vuradin, 2013 SCC 38, [2013] 2 S.C.R. 639, at paras. 20-28.
III The Basic Elements of the Alleged Offences
1. The Offence of Sexual Assault
[7] As I have indicated, the accused is charged with seven counts of “sexual assault” against the complainant, contrary to s. 271 of the Criminal Code.
[8] Generally speaking, the law is clear that in order to establish this offence, the Crown must prove all of the following essential elements of the crime beyond a reasonable doubt: (1) that the accused intentionally touched the complainant in circumstances of a sexual nature that compromised the sexual integrity of the complainant; (2) that the complainant did not consent to this touching; and (3) that the accused knew that the complainant was not consenting to the sexual touching, or was reckless or wilfully blind in relation to whether or not the complainant was consenting. See: R. v. Ewanchuk, [1999] 1 S.C.R. 330, 131 C.C.C. (3d) 481; R. v. Lutoslawski, 2010 SCC 49, [2010] 3 S.C.R. 60; R. v. Chase, [1987] 2 S.C.R. 293, 37 C.C.C. (3d) 97.
2. The Offence of Sexual Interference
[9] As I have indicated, the accused is also charged with seven counts of “sexual interference” against the complainant, by touching her, for a sexual purpose, with a part of his body, while she was under 16 years of age, contrary to s. 151 of the Criminal Code.
[10] Generally speaking, the law is clear that in order to establish this offence, the Crown must prove all of the following essential elements of the crime beyond a reasonable doubt: (1) that the accused intentionally touched the complainant with a part of his body; (2) that the touching was for a sexual purpose on the part of the accused; and (3) that the complainant was under 16 years of age at the time of the sexual touching. See: R. v. B.J.T., 2019 ONCA 694, 378 C.C.C. (3d) 238, at paras. 37, 48-49, 51-53; R. v. W.G., 2021 ONCA 578, 405 C.C.C. (3d) 162, at paras. 51-53.
3. Given the Age of the Complainant, Consent is Not an Essential Element of Any of the Offences, Nor is Consent a Defence to Any of the Charges
[11] There is no doubt that the complainant was born on a specific date in February of 2001. See: R. v. Johnson (1993), 120 N.S.R. (2d) 432, 80 C.C.C. (3d) 199 (C.A.). Further, these offences are all alleged to have taken place between April 1, 2013 and February 4, 2017, at a time when the complainant was over 12 years of age, but under 16 years of age. The accused clearly knew her specific age, and there is no suggestion that he was ever mistaken about her true age.
[12] According to s. 150.1(1) of the Criminal Code, “consent” is simply no defence to any charge of sexual interference, prohibited by s. 151 of the Criminal Code, or any charge of sexual assault, prohibited by s. 271 of the Criminal Code, given that the complainant was under 16 years of age at the time of all of the 14 alleged criminal offences. Indeed, given the complainant’s age, the Crown need not prove that the complainant did not consent to the alleged sexual misconduct by the accused.
[13] In the result, while the complainant testified, at least impliedly, that she did not, in fact, consent to any of the alleged acts of sexual misconduct by the accused, the Crown is simply not legally obliged to prove that the complainant did not consent to any of the allegedly unlawful sexual activity by the accused. Any potential “consent” on the part of the complainant, to the alleged sexual misconduct of the accused, is simply legally irrelevant.
IV The Background Facts
[14] There are a number of facts in this case that are not seriously the subject of any real dispute between the parties. In any event, I have no difficulty accepting, beyond any reasonable doubt, the following background facts to be true.
[15] The complainant is now 23 years of age. She currently lives and works in Scarborough. She plans to continue her education at Toronto Metropolitan University (TMU) in the study of “public health,” and work towards a Bachelor of Arts degree. She already has a university degree in “bio-medical science.” At the present time, she lives with her mother.
[16] The complainant was born in Scarborough on a specific date in early 2001. Her mother was, at the time, married to the complainant’s biological father. The complainant has no siblings. The complainant was sent to live with her uncle in India when she was but three or four years old. Her mother and father both worked full-time, doing shift-work, and they were trying to learn and adapt to Canadian culture, originally being from India themselves. In the result, the complainant grew up, largely, in India, among her cousins, under the supervision of her uncle. Her mother visited her annually in India, for approximately a month or more at a time. The complainant’s biological parents eventually separated and became divorced in 2008.
[17] The complainant’s mother, PuN., became depressed and very lonely after her separation and ultimate divorce from the complainant’s biological father. Eventually, she contacted her brother, told him about her difficulties in this regard, and he agreed to try to arrange another marriage for PuN. In India, PuN.’s brother advertised in a newspaper for a spouse for her. Ultimately, the accused, M.U., expressed his own interest in this arranged marriage and, after a meeting was arranged, in India, between the families of the accused and PuN., the accused and PuN. agreed to be married. It would be the second marriage for both of them. The complainant attended the wedding, which took place in India in 2009, meeting the accused for the first time when she was approximately 8 to 10 years of age. The accused came to Canada in 2010, sponsored by his wife.
[18] The complainant moved back to Canada, from India, when she was 12 years old, in approximately May of 2013. Her mother and the accused travelled to India to assist in her return. In Canada, the complainant lived with her mother and the accused (her step-father) in the matrimonial home, a three-story townhouse, located on Kingston Road in Scarborough.
[19] The bedroom on the third floor of the home is where her mother slept. While the accused also sometimes occupied that master bedroom with his wife, he also had a separate bedroom on the second floor of the home. The complainant also slept on the second floor of the home, in a converted “office” space, which (unlike the other bedrooms in the home) did not have a door.
[20] Initially, the complainant was not able to speak English, and she found the transitional period, learning the new language and the new culture, very scary and anxiety-filled.
[21] At first, the complainant thought the accused was a “great person.” They had a very good relationship. She enjoyed his company and treated him as her own father. She had no ongoing relationship with her biological father. She called the accused the Indian equivalent of “Dad.” The accused treated her well and bought her many things – virtually anything she wanted. The accused was the “cool” parent. The complainant explained that it felt like they had a proper family. This made her very happy. However, as she explained, things got worse over time.
V Analysis
1. The Complainant’s Testimony – The Alleged Sexual Misconduct
a. Introduction
[22] The complainant testified that the first sexual misconduct by the accused started within weeks of her arrival from India, when she began living with her mother and the accused.
b. Touching Her Breasts While She Used a Computer (Counts 13 and 14)
[23] The complainant explained that, in the summer of 2013, she began to use an old laptop computer or cell phone that belonged to the accused, in the dining room of their home. The complainant explained that, at first, the accused would come up behind her and put his hands on her shoulders. However, as time passed, the accused lowered his hands, and eventually grabbed her breasts over her clothing. As more time passed, the accused eventually moved his hands under her clothing for “skin-to-skin” contact with her breasts. The complainant testified that this happened on multiple occasions. The complainant testified that she did not recall any conversational exchange that took place between them during these incidents, except that the accused told her that his “auntie” had touched him like that in India, when he was a young boy, and he told her that it was “okay.” Nevertheless, while she did not say anything at the time, the complainant testified that this touching “weirded [her] out,” and soon she stopped “hanging out” with the laptop or cell phone in that corner of the dining room.
[24] In cross-examination, the complainant agreed that she may not have relayed all of the details of this event consistently over time, from the time of her first police interview-statement, to her preliminary inquiry testimony, to her trial testimony. The complainant explained that she was, ultimately, able to recall all the details of this event, over time, even though she had “repressed” these memories, as she did not try to recall these traumatic events, but rather tried to forget them.
c. The “Winter Storm” Incident (Counts 3 and 4)
[25] The complainant testified that, later in 2013, at night, during a winter storm, when there was no power to their home and it was very cold, and her mother was at work (i.e. she worked as a Personal Support Worker (PSW) at the time), the accused told her to come into his bedroom so that he could tell her a “scary story” about “Michael Jackson.”
[26] The complainant testified that, on this occasion, when she got to his bedroom, the accused put his arms around her to “cuddle” her on his bed, and he used one of his hands to touch one of her breasts over her clothes. The complainant was on the bed on her back and the accused was on his left side on the bed. She thought that the accused used his right hand to grab her breast. This made her feel “very uncomfortable.” The accused then told her the “scary story” about how “Michael Jackson was possessed.” The complainant could not remember the details of the “story” or how long the incident lasted, although it seemed to “last forever.” Further, she could not recall how the incident ended. According to the complainant, however, when it was over, the accused told her not to tell anyone (as he typically did at the end of these incidents of sexual misconduct).
[27] The complainant agreed that she has not always described all the details of this incident in exactly the same way. For example, in cross-examination, the complainant admitted that, in her statement to the police, she did not mention that she went to the accused’s bedroom that night because of his request for her to do so. Instead, the complainant said that she did not know why she went to his bedroom that night. Further, the complainant admitted that she had not previously mentioned that the accused had put his arm around her to “cuddle” her before touching her breast. The complainant explained that she now recalls the accused cuddling her before touching her breast.
[28] In cross-examination, defence counsel suggested that the accused was “stuck at work” during the course of this storm, and that the accused could not, therefore, have committed this act of sexual misconduct. The complainant replied that the incident happened as she indicated, and that she was not able to remember any time when the accused was stuck at work during a storm.
[29] The complainant explained that, at the time, she did not want to tell anyone about these incidents – especially her mother. The complainant testified that her mother had told her that she had been “suicidal” after the breakdown of her marriage to the complainant’s biological father, so she did not want to tell her mother about the sexual misconduct of the accused. The fact that the accused told her not to tell anyone about these incidents just reinforced this. The complainant further explained that she tried to ignore these incidents of sexual abuse, and keep them to herself, as the accused was otherwise acting as her father, and the rest of her family life seemed fine.
d. Watching and Sexually Touching the “Sleeping” Complainant (Counts 9 and 10)
[30] The complainant testified that, relatively soon, after she came back to live in Canada, the accused started to frequently come into her bedroom at night when she was in bed. He used to smoke cigarettes, and she could smell the smoke on him when he came up the stairs to her bedroom. Sometimes he just watched her in her bed. Other times, he would touch her breasts. Sometimes, he touched her vagina or her “bum” – both over and underneath her clothes – but she did not recall him inserting anything inside her.
[31] The complainant testified that this happened on multiple nights over a period of years. It started when she was 13 years old, and it continued until 2016, when she got a boyfriend. The complainant testified that, sometimes, as he touched her, the accused reached down with one hand to his own pelvic area, near his penis. The complainant testified that, when the accused touched her, she would “shift around in the bed” to show her discomfort, and the accused would then “back off.” But he would sometimes return, a couple of minutes later, and it would “start again.”
[32] The complainant testified that this sexual touching happened on numerous occasions – clearly more than ten times, although she could not provide an estimate, beyond that, as to the specific number of times this took place. She recalled being “scared” when this happened and being able to smell the cigarette smoke on the accused.
[33] The complainant testified that, in the absence of any “sex education,” she once asked the accused if she might be pregnant as her menstrual “period” was late, but he “shushed” her about that topic, and ultimately bought her a new bunk bed, and took her out to eat at a restaurant.
e. The “Workout” Incident in the Basement (Counts 1 and 2)
[34] The complainant testified that, sometime in the summer of 2014, she was “working out” in the “gym” they had created in the basement of their home. She was lifting weights to try to strengthen her upper body, and the accused was “helping her,” like a “trainer,” by making sure that her use of the “dumb-bell” free weights were targeting the right muscles in her chest area. They had been working out together for a while.
[35] The complainant testified that, one evening during this exercise, the accused was behind her and he put both of his hands on her breasts, over her clothing, while she was lifting the free-weights. The complainant testified that she pushed his hands away, and she showed him that his touching made her feel uncomfortable and irritated. She was not sure how long the incident lasted. The complainant then went upstairs to where her mother was cooking, as she tried to shake off her feeling from the incident.
[36] In cross-examination, the complainant admitted that, in her statement to the police, she had not mentioned that the accused was behind her when he grabbed her breasts – she simply told the police that the accused touched her breasts while she was holding up the free-weights. The complainant denied the suggestion by defence counsel that this event never happened.
f. The “Cell Phone” Incident (Counts 5 and 6)
[37] The complainant testified that the accused used to let her use his cell phone. The complainant recalled that, in 2014, when she was 13 years old, she would be periodically “grounded” by her mother. This punishment sometimes included having all of her electronic devices taken away from her.
[38] The complainant testified that, on one occasion in the summer of 2014, her mother took away her access to the accused’s cell phone (as she did with some frequency). The complainant testified that, when this happened, she went to the accused and asked him to speak to her mother (his wife) and get his cell phone back for her. The accused agreed, but he asked the complainant to come to his bedroom that night.
[39] The complainant explained that she attended at the accused’s bedroom that night. Her mother was upstairs in her own bedroom, so she was alone with the accused in his bedroom. The complainant did not remember all of the details of the incident, but she recalled that the accused was sitting on his bed, as she stood in front of him between his legs. It was dark in the room. The complainant testified that the accused pulled her closer to him, rolled up her top and her training bra, and started sucking on the nipples of her breasts. The complainant recalled the sound of his mouth sucking on her breasts, and she testified that the incident felt like it lasted “forever.”
[40] The complainant explained that she felt “really disgusted” and “weirded out” by this behaviour, and she ultimately went to the washroom to wash his saliva off her breasts.
[41] The complainant testified that she was not sure if the accused was doing anything with his own body (e.g. touching his penis) at the time he had “latched” his mouth onto her breasts. She “blocked” herself from looking toward the area of his penis. The complainant explained that the accused would sometimes touch himself when he was watching or touching her, but she never saw his penis, or saw him ejaculate. The complainant testified that she got the cell phone back either later that same day, or the next day.
g. The “Oral Sex on the March Break” Incident (Counts 11 and 12)
[42] The complainant testified that, during the “March break” in 2015, when she was 14 years old and in grade eight (although she later agreed that it could possibly have been during the “March break” in 2016, when she was 15 years old and in grade nine), she was sleeping in her mother’s bedroom on the third floor, while her mother was on vacation in India. The complainant and the accused were home alone.
[43] The complainant explained that she was experiencing a period of “insomnia” and was having trouble sleeping. When she mentioned this to the accused, he provided her with some sleeping pills, which she took.
[44] The complainant testified that she later woke up with the accused between her legs, performing oral sex on her. The complainant testified that she remembered the sounds of the incident – it sounded like the accused was chewing with his mouth open. The complainant explained that this is a “trigger” for her, and she “cannot stand it.” The complainant explained that she was wearing pyjama bottoms when she went to sleep, but she did not remember having any bottoms on later, when the accused had his face in her vagina. The complainant testified that she felt “very confused” when she “woke up” and she could not process what was “going on.” She could not recall how the incident ended, and she did not remember any exchange between them. She just remembered the accused, with his face in her vagina, and the sounds that he was making at the time.
[45] In cross-examination, the complainant denied the suggestion by defence counsel that this incident never happened. The complainant testified that she distinctly recalled waking up and seeing the accused between her legs, with his face in her vagina, and hearing the sounds he was making as he was performing oral sex on her.
h. The “Movie” Incident (Counts 7 and 8)
[46] The complainant testified that, on one occasion, when she was at home, at night, sick with the “flu,” watching the movie “Gravity” on the television from the couch in the living room, the accused groped her breast, over her clothing, with his hand. The accused had been seated on the arm of the couch.
[47] The complainant testified that this event happened when she was 15 years old, after she had started school in grade nine. The complainant recalled that her mother was at home that night, but she was upstairs in her bedroom at the time the movie was playing. The complainant explained that they often watched movies on the television in the home.
[48] In cross-examination, the complainant agreed that she did not recall all of the details of this incident, but she certainly recalled his hand groping her breast.
i. Disclosure of the Sexual Abuse
[49] The complainant testified that, while memories fade over time, and while she is sure that there were other events that she cannot now remember, she was able to recall these particular “traumatic” events of sexual abuse by the accused.
[50] The complainant testified that she finally told her “best friend” about these incidents of sexual abuse by the accused, when she was in grade 9, and started to realize that this was “not normal” and “not right.” The complainant explained that she tried to stop it by “hiding out,” telling him “no,” and by showing that she was made “irritable” by this conduct.
[51] The complainant testified that she finally told her mother about this sexual abuse in August of 2017. The complainant explained that this disclosure started when she and her mother had a verbal argument over a “bottle of wine.” Her mother thought that the complainant had taken the bottle of wine, consumed some of it, and then added water back into the bottle to conceal what she had done. During this argument, the accused kept inserting himself by making comments, and making things “worse.” The complainant testified that she became even more angry as she knew that the accused was doing all this to her, but still acting innocent, and she did not think this was fair. She wanted to tell her mother what had been happening.
[52] The complainant explained that she got “really upset” during this argument and told her mother that the accused was “not the man [she] thought he was” and that he was “not as innocent as [she] thought he was.”
[53] The complainant testified that she then spoke privately with her mother’s best friend, who had been staying with them for a few days, and told her some of the “basics” (but not any of the details) of what had been happening between her and the accused. The complainant knew that this information would be passed on to her mother. The complainant admitted, however, that she did not have the courage to tell her “everything” about what had been happening.
[54] The complainant testified that, when she told her mother, in the presence of the accused, that the accused was “not as innocent” as she thought he was, the accused did not say anything, but remained “very quiet” and seemed to be in “shock.”
[55] The complainant testified that, later, her mother asked her why she did not tell her “sooner” what the accused had been doing to her, and she told the complainant that they could have done something “earlier.” Nevertheless, thereafter the three of them continued to live in the matrimonial home on Kingston Road. However, there were no further incidents of sexual abuse.
[56] The complainant testified, however, that the accused still, periodically, left her “lewd” and “inappropriate” notes for her on “sticky notes,” in their native Indian language, that he left for her near the printer in his bedroom, knowing that she needed to use the printer for school. The complainant testified that she wished she had taken photographs of these notes.
[57] The complainant testified that she eventually told the police about this sexual misconduct by the accused. The complainant explained that, on Valentine’s Day in 2022, she contacted the police about some unrelated incident, and the police appeared at the matrimonial home on Kingston Road. While the police were conducting their investigation into this unrelated incident, the complainant found herself speaking to one particular police officer, who seemed “very friendly.” The complainant then confided in him about the sexual abuse she had suffered at the hands of the accused a “long time ago” to get it “off her chest.” The police officer told her that something could still be done about this and, within a few days, the complainant appeared at the police station and provided them with a video-recorded interview-statement about the sexual misconduct of the accused against her. The complainant explained, however, that her memory of these events, at the time she gave her statement to the police, was not perfectly clear, in that she was “going through a lot” at the time, including preparing for school exams and writing papers for school, and that she did not recall every detail at that time. Moreover, the complainant explained that she recalls further details the more she “revisits” these incidents.
j. Conclusion
[58] The complainant testified that, since that day, she has not had any contact with the accused. She wants nothing more to do with him and does not want him in her life anymore. Further, the complainant explained that her mother and the accused had “recently” become “divorced.”
[59] In cross-examination, the complainant testified that her mother owned the matrimonial home, the townhouse on Kingston Road in Scarborough. Her mother also owned a condominium unit. The complainant also thought that her mother had a life insurance, in which she (i.e. the complainant) was the “nominee.” The complainant denied knowing anything about the financial circumstances of her mother, although the complainant estimated that the matrimonial home was worth approximately $800,000 – although the complainant admitted knowing nothing about any mortgages on the property. The complainant agreed, however, that in the Indian culture, parents pass things along to their children.
[60] In cross-examination, the complainant testified that her mother was the one that started the family court proceedings against the accused and, as far as she was aware, one of the main “contested” issues between her mother and the accused was the matrimonial home. The complainant understood that the accused was seeking a greater value for his share of the matrimonial home, and she did not think that was “fair.” In the result, the complainant’s allegations of sexual abuse at the hand of the accused, and her potential civil claim against him, was mentioned by her mother in the family court proceedings. The complainant explained that it “boiled down” to how much she had to “suffer” because of the actions of the accused. The complainant noted that her mother was still paying for the complainant’s “therapy” because of the sexual abuse.
2. The Testimony of the Complainant’s Mother (PuN.)
[61] The complainant’s mother, PuN., testified that she worked long hours, full-time, at a long-term care facility, as a Personal Support Worker and as a Physiotherapy Assistant. She worked every day of the week and most weekends. Since the recent Covid-19 years, however, she has only been allowed to work one job at that location, and now works there as a Personal Support Worker.
[62] She explained that her first marriage, to the biological father of the complainant (her only child), ended in divorce in 2008.
[63] PuN. outlined how and why she eventually contacted her brother in India, and asked him to try to arrange a second marriage for her. He assured her that he would find her a suitable mate, and told her that she should no longer think about “suicide.” PuN. described how she, ultimately, met the accused in India, and how they were married there on September 12, 2009. Her daughter, the complainant, attended the wedding. Initially, the accused and the complainant seemed to have a normal father-daughter relationship. The accused later moved from India to Canada in 2010. By then, PuN. was a Canadian citizen. He was “sponsored” to come to Canada by PuN., and he is now a permanent resident.
[64] PuN. also testified that, in September of 2010, she brought the three-story townhouse on Kingston Road in Scarborough, which was ultimately built in 2011. PuN. explained that she and the accused did not buy this piece of real estate together. Rather, she bought it on her own from the builder. It cost her a total of $268,000, and her deposit was $53,000. PuN. estimated that it was now worth close to $800,000, but there is approximately $133,000 or $134,000 remaining on the mortgage.
[65] In Canada, after working for a time for a basement renovation company, the accused became a security guard in 2011, where he worked for the University of Toronto, primarily on the afternoon/evening shift.
[66] PuN. testified that the complainant came to live with them in Canada, in the three-story townhouse on Kingston Road, in May of 2013 when she was 12 years old.
[67] PuN. testified that, thereafter, she returned to India once in March of 2016 to attend a wedding, and she was gone from Canada for approximately one month, during which time the accused and the complainant were left at home alone. She also testified that she went to India again once, by herself, in 2017, and again, this time with the complainant, in 2019.
[68] PuN. testified that neither she nor the accused ever had any problems sleeping and, accordingly, as far as she was aware, there were no sleeping pills in their home. PuN. testified that, while the accused took blood pressure medication, he never took any sleeping pills.
[69] PuN. testified that she first learned of the sexual abuse allegations from the complainant sometime in the summer of 2017. She explained that she had gotten into an argument with the complainant about whether or not she had taken some of the wine from the bottle, and then refilled it with water. PuN. testified that, at one point, the complainant angrily asked her “how many times” do I have to answer these questions. The accused then told her that this was “no way” to talk to her mother. The complainant then got very angry, “lost control,” and, with her body “shaking,” she started pointing fingers at the accused, and screaming that he was “not a good person.” PuN. testified that she got a “strange feeling” and thought that “something very wrong had happened.” This was the first time that the complainant had raised her voice in anger in this fashion. When asked, the complainant told her that she was “not okay.” According to PuN., the accused just sat there silently, in “shock” like a rock or a piece of wood.
[70] PuN. testified that she then asked the accused if “his hands” had ever “touched” her daughter’s body, but the accused did not respond to this question.
[71] According to PuN., the complainant then went upstairs to talk privately with PuN.’s best friend. PuN. was exhausted, and she did not have the strength to say anything more. She just lay down on the bed in her bedroom on the third floor of the home. Subsequently, her best friend told her that the complainant was in great pain and that the accused had treated her badly.
[72] PuN. agreed that, she learned, as a result of that incident, in the summer of 2017, that the accused had been sexually abusing her daughter, but she did not immediately report that to the police. PuN. testified that, while the three of them continued to live together thereafter, it was not until February of 2022, that these allegations came to the attention of the police. PuN. agreed that her decision to continue to live with the accused, from 2017 to 2022, was a mistake. PuN. noted, however, that she had made the complainant promise that, if the accused ever tried to sexually abuse her again, she would immediately call the police. PuN. thought that there was never any subsequent sexual misconduct by the accused against the complainant.
[73] PuN. testified that she no longer has any contact with the accused and that they were recently divorced. PuN. maintained that the family court proceedings are now over, and that their divorce has been finalized.
[74] PuN. testified that the accused has frequently asked that his name be added as an owner of the matrimonial home, even though he has never contributed financially to its purchase. Further, PuN. testified that, in the family court proceedings that led to the divorce, the accused continued his claim to this property. PuN. testified that she has never added his name to the registered ownership of the property. She no longer trusts him, and contends that he “used” her to come to Canada.
[75] PuN. testified that she did not discuss her family court proceedings against the accused with her daughter, the complainant. Moreover, PuN. denied the suggestion by defence counsel that she used these criminal charges against the accused to “get the upper hand” in the family court proceedings. PuN. also denied the suggestion that she had discussed with the complainant bringing a civil claim against the accused so that his claim on the home on Kingston Road would be held “in trust” until that civil case was decided. Indeed, PuN. denied discussing any aspect of her family court proceedings with the complainant. She agreed, however, that she did make mention, in her family court proceedings, about the pending criminal charges against the accused.
[76] PuN. never personally witnessed any sexual misconduct by the accused toward the complainant. She testified only about some of the relevant physical circumstances surrounding the alleged events. For example, PuN. testified about the winter storm that took place in 2013, how it caused the electricity to go out in their home for two or three days, and where she stayed during that period of time. In my view, her evidence concerning those various events is not particularly helpful, one way or the other, in resolving the issues in this case, so I do not propose to review it.
3. The Testimony of the Accused
[77] The accused testified that he has never been involved in any sexual behaviour with the complainant, and that all of her allegations against him are not true.
[78] The accused explained the uncontroversial circumstances surrounding his arranged marriage to PuN., which took place in India in September of 2009. This was his second marriage too. He has older children from his first marriage, who still live in India. He agreed that the complainant was his step-daughter. He testified that he first met her, in India, just prior to his marriage to her mother. The complainant was, at the time, living with her uncle (PuN.’s brother). The accused testified that he came to Canada a few weeks after the marriage ceremony in India. He was “sponsored” to come to Canada by his new wife, PuN. He agreed that the complainant came to Canada from India in May of 2013, and the three of them ultimately lived together in the townhouse on Kingston Road in Scarborough.
[79] The accused testified that, while he and PuN. used the “master bedroom” on the third floor, he sometimes used one of the bedrooms on the second floor, so as not to disturb his wife, as they would sometimes have to work different shifts.
[80] The accused testified that, in 2013, he started working as a security guard, for an agency, at the University of Toronto location near the St. George subway. He testified that he worked there, primarily on night shifts, until 2019.
[81] The accused testified that, in the summer of 2013, he purchased some exercise equipment, and a “multi-gym” machine, and created a “gym” in the basement of their home, where they also had a washer and a dryer for their clothes. He recalled that the complainant was very excited to get this new equipment, and the accused testified that, for a time, he occasionally did a “workout” there with the complainant, and “helped” her with her training, by showing her some of the exercises, and by standing behind her to help her with the weights (if necessary). Later, the complainant just stopped doing these workouts in the basement. The accused denied, however, that he ever touched her sexually during these workouts. He denied ever touching her breasts. Indeed, the accused denied ever touching even her muscles during these workouts. He testified that he never touched her for the “wrong reasons.” The accused explained that he was her father, and she was his daughter.
[82] The accused testified that they had a “big screen” television on the ground floor of their home, and they would periodically watch television there together. The accused agreed that, on occasion, he would watch television there with the complainant. The accused maintained, however, that he never touched the complainant sexually while they were watching television together. The accused explained that he usually only watched “regional” programming on the television. He denied that they ever watched any English-speaking movies together.
[83] The accused testified that, about two or three months after she arrived in Canada, they bought the complainant a laptop computer and a cell phone. He admitted that she sometimes used them at the dining room table. However, the accused denied that he ever touched her sexually, including never touching her breasts, as she suggested in her evidence. The accused explained that the complainant was like his own daughter.
[84] The accused testified that he and his wife travelled to India together in 2015, leaving the complainant behind in Canada. The accused testified that they arrived in India on March 31, 2015, and departed there on May 14, 2015. The accused provided copies of pages from his own Indian passport, showing the passport stamps that proved that he went to India during this time period.
[85] The accused testified that there was a bad snow-storm in Toronto in the winter of 2013, which interrupted the flow of electricity to their home for at least three days. He explained that he was working, as a security guard, at the University of Toronto, at the time. The accused testified that he started working a shift from 11:00 p.m. to 7:00 a.m., but when no replacement appeared to relieve him, he had to stay at work. He stayed there until he was finally relieved at 11:00 p.m. The accused explained that he ended up working a 24-hour-long shift. The accused recalled that the complainant and her mother went to a friend’s house to stay. The accused testified that he could not go home immediately as the TTC was not working, so he eventually just went back to work. When he finally got home again, they had power to the house once again, but neither the complainant nor PuN. were there.
[86] The accused testified that, in any event, there was never any incident wherein he was laying down cuddling with the complainant, when the power was out, and telling her a “scary story,” when he touched her breasts. The accused testified that such an event never happened. Indeed, the accused testified that he was never alone with the complainant during the period of this serious snow-storm.
[87] The accused testified that, while he has taken “blood pressure medication” since about 2008, he has taken no other long-term medication. More specifically, the accused denied ever having any problems sleeping, and denied ever having any sleeping pills. He also denied ever giving any sleeping pills to the complainant. The accused denied that he ever touched the complainant while she was sleeping. More specifically, the accused denied her allegation that he put his head between her legs, to perform oral sex on her, while she slept in the upstairs master bedroom. The accused denied that ever happened.
[88] The accused testified that, at one point, he gave his cell phone to the complainant. He recalled that, periodically, and with some frequency, PuN. would take this cell phone away from the complainant as part of a punishment for something she had done. The complainant did not like this punishment as she used to like to watch “YouTube” videos, and “scary movies” on “Netflix” on her cell phone. This also caused family quarrels as he had given her his cell phone. The accused explained that, sometimes, he had to cancel the family subscription to “Netflix.” The accused agreed that, sometimes, he spoke to his wife about the cell phone, and sometimes he was able to convince her to give it back to the complainant (but not always).
[89] In any event, the accused denied that there was ever a time when he sucked on the nipples of her breasts, as the complainant described. The accused maintained that there was never any such incident – it never happened.
[90] The accused denied that he ever watched the complainant sleep in her second-floor bedroom, and he denied that he ever went into that bedroom. He also denied ever touching her breasts, or her genitals, while she was sleeping there. The accused explained that she was his daughter.
[91] The accused testified that he had a very nice relationship with the complainant, starting when she came to Canada in 2013. The accused explained that he treated her as his own daughter. The accused testified, however, that the complainant does not like anyone telling her what to do. She never listened to her mother, and did not like getting her advice. She would “mutter” under her breath whenever her mother tried to give her advice. According to the accused, however, the complainant always behaved “very nicely” towards him, as he never tried to give her advice about what to do.
[92] The accused testified about the “wine bottle” incident in the spring of 2017. The accused testified that PuN. asked the complainant if she had taken the wine, and then refilled it with water. The complainant denied this suggestion. When PuN. repeated the question, the complainant again said “no” and then asked her mother if she thought that she (i.e., the complainant) took it. The accused testified that he was present for this conversation and, after hearing this, he asked the complainant: “is that any way to talk to your mother?” The complainant then turned and yelled at the accused: “you are not my father.” The accused testified that, hearing this, shocked him. She had never before spoken to him like that. The complainant then said that the accused was “not right.” According to the accused, the complainant then went upstairs with her mother’s best friend. He went outside to have a cigarette.
[93] The accused denied that the complainant snapped at him in this fashion because he had sexually touched and abused her on many occasions over the years. The accused denied that these allegations ever happened, and he testified that the complainant was “still my daughter.”
[94] According to the accused, PuN. subsequently told him to just “forget” about what the complainant had said to him, not to take it seriously, and she suggested that it was caused by some “hormone change” in the complainant. Further, the accused denied that his wife ever asked him if he ever put his hands on the complainant. Indeed, according to the accused, both the complainant and PuN. subsequently “begged” him to stay with them, and not leave their home on Kingston Road.
[95] However, the accused testified that, afterwards, he realized that the complainant had “changed” toward him. She had started to think of him as her “step-dad,” not her real father. The accused testified that this really “pained” him.
[96] The accused testified that, with respect to the real estate property on Kingston Road, his wife’s name was the only name “on title.” The accused maintained, however, that he paid for all of their grocery bills, even though PuN. made all of the mortgage payments. The accused testified that he told his wife, about three or four years after they moved into the townhouse, that she should add his name to the ownership title of the property, but she would not. The accused testified that the complainant was aware of these “troubles” between him and his wife, but she also knew that she was her mother’s “nominee” for the property. According to the accused, the complainant thought that this real estate property was hers. The accused speculated that, maybe, the complainant thought that he was trying to “snatch” her property.
[97] The accused testified that, at first, he had a “good” and “positive” father/daughter relationship with the complainant, that was “loving” and “trusting,” in that she was “warm” toward him, and he was helpful to her, buying her many things. She was somewhat less friendly toward her mother. The complainant did not like getting advice from her mother about what she should do. The accused maintained that he is not a “talkative” person, so the complainant may have had a better relationship with her mother – but she never raised her voice to the accused, but sometimes did when she “clashed” with her mother.
[98] The accused testified that their marriage effectively ended on February 11, 2022, but that their divorce has still, not yet, been finalized, as the “paperwork” is not yet completed. The accused testified that, before February of 2022, his marriage to PuN. was “all nice,” but that, after PuN. took all of his earnings and “drained” him of money, and told him that the townhouse was hers, problems began to develop. Later, the complainant and her mother tried to “kick him out” of the house. Their small problems turned into bigger ones.
[99] The accused also testified that, with these criminal allegations against him, the complainant and her mother were trying to make him lose his job. The accused maintained that he had told PuN., in earlier passing conversations about his job, that any “criminal problems” would cause him to lose his job and would not allow him to be later hired as a security guard. The accused maintained that he did not understand how, in the divorce proceedings, not having a job might result in the unemployed person receiving greater financial support.
4. Conclusions
[100] Having reviewed most of the key aspects of the evidence in this case, I turn now to my conclusions regarding this evidence, and my conclusions regarding the allegations in the indictment.
[101] The young complainant was an intelligent, credible and reliable witness. She was clear, forthright, articulate, honest and fair. Her testimony did not contain any exaggerations, or attempts to embellish her testimony against the accused. She clearly could not fully recall all of the details of each and every incident, which allegedly happened over a period of years (some significant time ago). She acknowledged this obvious reality, and thoughtfully explained it as best as she could. See: R. v. G.M.C., 2022 ONCA 2, 159 O.R. (3d) 561, at paras. 37-39. She did not speculate about things that were beyond her personal knowledge. Her trial testimony was not free from a number of small inconsistencies, but she candidly accepted those inconsistencies and explained how and why they existed. See: R. v. S.J.K., 2016 ONCA 926, at paras. 11-16. I have no hesitation accepting her evidence as truthful and reliable. Indeed, there is nothing in her testimony that caused me to, in any way, doubt her sincerity, or the honesty and reliability of all of the main aspects of her version of events. In short, I fully believe and accept her evidence. Indeed, I found her testimony compelling.
[102] I fully appreciate that there is no evidentiary corroboration of the critical testimony of the complainant. Her testimony concerning the alleged sexual misconduct clearly stands alone against the accused. However, there is no legal requirement that there must be corroboration in order for there to be a conviction of the accused for any of the alleged offences. Indeed, s. 274 of the Criminal Code expressly provides, inter alia, that if an accused is charged with either sexual interference or sexual assault, amongst other crimes, “no corroboration is required for a conviction.” Nevertheless, in accepting the testimony of the complainant, I have carefully considered the fact that her evidence is not corroborated in any material particular by any other evidence, such as any potential forensic or physical evidence. See: R. v. Camp (1977), 36 C.C.C. (2d) 511 (Ont.C.A.), at p. 521.
[103] Turning to the evidence of the accused, I must say that I found the testimonial denials of the accused to be wholly incredible – and I reject his evidence entirely. He was, in my view, a very poor witness. I found his denials incredible. I watched him carefully as he gave his testimony, and I listened carefully to his often rambling answers to even very simple questions. It struck me that the accused was most interested in saying whatever he could to escape criminal liability. He tried to portray himself, throughout his testimony, as a good father and husband, who was being maliciously maligned by a complainant who was trying to protect her own perceived financial entitlement to a piece of property, and because she did not like the narcissistic, old-fashioned accused, who was not her biological father. Indeed, I found his speech-filled, testimonial denials implausible and unbelievable. His testimony contained a number of its own illogical assertions and internal inconsistencies, but without any candid or sensible explanation. In short, his trial testimony did not leave me with any reasonable doubt as to his guilt for these offences.
[104] In other words, applying the three-pronged legal standard articulated by the Supreme Court of Canada in R. v. W.(D.): (1) I do not believe or accept the exculpatory testimony of the accused; (2) the exculpatory testimony of the accused does not leave me with any reasonable doubt as to his guilt; and (3) based on the testimony that I do accept, namely, the honest testimony of the complainant, I am satisfied beyond a reasonable doubt as to the alleged guilt of the accused in relation to all 14 of the charges in the indictment against him. See: R. v. J.H.S., 2008 SCC 30, [2008] 2 S.C.R. 152, at paras. 8-14; R. v. Chauhan, 2014 ONSC 5557, [2014] O.J. No. 4654, at paras. 38-43; R. v. Solomon, 2020 ONSC 2640, [2020] O.J. No. 2526, at paras. 40-44; R. v. D.(J.J.R.) (2006), 215 C.C.C. (3d) 252 (Ont.C.A.), at para. 53, leave denied, [2007] S.C.C.A. No. 69; R. v. T.M., 2014 ONCA 854, 318 C.C.C. (3d) 421, at para. 68; R. v. D.P., 2017 ONCA 263, at paras. 23-25; R. v. C.L., 2020 ONCA 258, 387 C.C.C. (3d) 39, at paras. 30-38.
[105] I note, only in passing, that one additional factor also further supports the credibility of the complainant in this case, namely, that there is no real evidence that the complainant had any motive to simply invent false allegations of sexual touching and/or sexual assault against the accused. Of course, the accused has no onus to prove that the complainant has a motive to lie – no onus whatsoever. Similarly, even the absence of any apparent motive to fabricate does not necessarily mean that a complainant does not, in fact, have some hidden motive to fabricate her allegations against an accused. Nor does it mean that the complainant must, therefore, be telling the truth. Not at all. See: R. v. L.L., 2009 ONCA 413, 244 C.C.C. (3d) 149, at paras. 32-54; R. v. B.(R.W.) (1993), 24 B.C.A.C. 1, [1993] B.C.J. No. 758 (C.A.), at para. 28; R. v. Bartholomew, 2019 ONCA 377, 375 C.C.C. (3d) 534, at paras. 10-28; R. v. P.S., 2019 ONCA 637, at paras. 55-59; R. v. Mirzadegan, 2019 ONCA 864, at paras. 9-15; R. v. R.C., 2021 ONCA 582, at paras. 51-57; R. v. Ignacio, 2021 ONCA 69, 400 C.C.C. (3d) 343, at paras. 3, 22-23, 29-30, 36, 38-60; R. v. Gerrard, 2022 SCC 13, 413 C.C.C. (3d) 487; R. v. A.E.S.P., 2022 ONCA 405, at paras. 41-42.
[106] That said, however, in the present case, I can discern no realistic suggestion in the evidence that the complainant had any logical motive to simply invent these allegations against the accused, and falsely allege that her step-father committed these sexual offences against her. The accused married her mother, and for a time acted very kindly toward her, buying her things that she said she wanted, and helping her with her new life in Canada. Moreover, having carefully watched the complainant as she testified in this case, I did not view her testimony to be, in the slightest, motivated by any general malice, anger or upset against the accused, or by any self-interest in financial or property-related issues. In my view, the complainant was not trying to artificially help her mother in the family court proceedings against the accused, or somehow give her mother the “upper hand” in those proceedings, by fabricating sordid sexual abuse allegations against her step-father. She did not dislike him, or his personality, because he was not her biological father. Instead, it seemed to me that the complainant was simply a smart, young woman who was in court to painfully, but truthfully, explain how she had been sexually abused by her step-father over a period of years. See also: R. v. Batte (2000), 49 O.R. (3d) 321, 145 C.C.C. (3d) 449, at para. 121; R. v. F.A., 2022 ONSC 2487, at paras. 103-105. As I have already said, I have accepted all of her allegations in this regard. Unlike the accused, the complainant was a truthful, honest and reliable witness.
VI Conclusion – Verdict
[107] In the result, the accused is found guilty of all 14 counts of the indictment, alleging seven counts of sexual assault and seven counts of sexual interference – all against the complainant. In short, I am satisfied beyond a reasonable doubt that the accused sexually assaulted the complainant and touched her for a sexual purpose, when she was under 16 years of age, as specifically alleged in the indictment.
Kenneth L. Campbell J.
Released: September 11, 2024