CITATION
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
– and –
D.R.M.
Defendant
Raffi Dergalstanian, for the Crown
George Gray, for the Defendant
HEARD: August 26-29, September 25-27, 2024
VERDICT
VALLEE J.
Introduction
1The defendant is charged with one count of sexual assault and one count of sexual interference. The charges allege that the defendant sexually abused A.R.,[1] the daughter of his wife’s sister, his niece by extension.
2Four witnesses testified in this trial, the complainant A.R., the defendant, the defendant’s wife S.G. and his daughter N.R. The defendant testified that the acts described by A.R. did not occur.
Background
3The witnesses’ evidence did not differ significantly regarding the following. Between May 2018 and September 2021, the defendant, his wife S.G. and his daughter N.R., who I will refer to as the R. family, lived with his wife’s sister, L.R., and husband, C.R. L.R. and C.R. have 3 children, C.P.R., A.R. and S.R. I will refer to them as the R.P. family. C.P.R. is four years older than A.R. S.R. was a baby at the time.
4During the relevant time, the R.P. family lived at … in Midland. It had an apartment in the basement comprised of a kitchen, bathroom, two bedrooms and a living room with a fireplace. One of the bedrooms was C.P.R.’s. In March 2017, S.G. came from Honduras to visit her sister L.R. She stayed and obtained a work permit for herself and her husband the defendant. She also obtained a study permit for N.R.
5In May 2018, the defendant and N.R. came to Canada. The defendant and S.G. lived in the basement at … and used the other bedroom. A couch was in the basement living room for a period of time. N.R.’s bedroom was on the second floor.
6A.R. considered the defendant to be her uncle. She often went down to the basement to play video games with C.P.R. Sometimes she watched videos on the defendant’s phone. N.R. also went to the basement to socialize. When she had homework, she did it in her bedroom. When the defendant was not working, he spent most of his time in the basement. He also watched videos on his phone.
7During the relevant time, S.G. worked as a cook at Mom’s restaurant in Midland, which was a 15 minute walk from …. She did not drive. The defendant worked in construction for a concrete forming company. The company provided a vehicle for him. N.R. was in school while she lived at …, first in high school in person and then college by video during COVID.
8While they lived at …, sometimes both the defendant and S.G. would go upstairs to socialize with L.R. Other times, S.G. would go up on her own to visit with her sister.
9At some point prior to the COVID shutdown in March 2020, L.R. opened a daycare in the basement living room. The couch was moved to a basement storage area to make space for the daycare furniture and toys.
10The R.Z. family lived with the R.P. family for three years and four months. On September 1, 2021, the R.Z. family moved out of … to a townhouse that they rented, … in Midland. It had a basement, a main floor living area comprised of a kitchen, dining area and living room, a second storey comprised of two bedrooms, and a third story comprised of a principal bedroom and a bathroom, which the defendant and S.G. shared.
11On September 17, 2021, A.R. had a sleepover at the townhouse. N.R. shared her bed with A.R.
Applicable Legal Principles
12The defendant is presumed to be innocent, unless and until Crown counsel proves his guilt beyond a reasonable doubt.
13The defendant started this trial presumed to be innocent of the charges against him. The presumption of innocence is only defeated if and when Crown counsel proves every essential element of an offence beyond a reasonable doubt.
14The obligation to prove the defendant’s guilt rests with the Crown. The defendant does not have to prove that he is not guilty.
15I cannot assume that the defendant will be untruthful in his testimony out of self-interest.
16If I believe that the defendant is probably or likely guilty, this is not sufficient to ground a conviction. In those circumstances, I must find him not guilty, because the Crown would have failed to prove his guilt beyond a reasonable doubt.
17The defendant testified that he did not commit the alleged offences. If I believe his evidence that he did not commit the offences, I must find him not guilty.
18Even if I do not believe the defendant’s evidence, if it leaves me with a reasonable doubt that he did what is alleged, I must find him not guilty because his guilt would not have been proven beyond a reasonable doubt.
19Even if the defendant’s evidence does not leave me with a reasonable doubt about whether he committed the offences, I may convict him only if the rest of the evidence that I do accept proves his guilt beyond a reasonable doubt.
Assessment of children’s evidence
20In R. v. White, 2022 ONSC 592, 2022 ONSC 0592, Justice Speyer explained how the evidence of children is to be assessed. She stated,
20When children testify, their evidence is not to be assessed in the same manner as the evidence of adults. Children are at a different developmental stage in life and their credibility and evidence must be assessed by reference to criteria appropriate to their mental development, understanding, and ability to communicate: R. v. B.(G.), 1990 CanLII 7308 (SCC), [1990] 2 S.C.R. 30, at para. 48; R. v. W.(R.), 1992 CanLII 56 (SCC), [1992] 2 S.C.R. 122, at paras. 24-26; R. v. P.S., 2019 ONCA 637 at paras. 23-26.
21Children do not perceive the world in the same way as adults. Children do not experience the world in the same way as adults. As noted by Wilson J. in R. v. B. (G.), at p. 55, “[w]hile children may not be able to recount precise details and communicate the when and where of an event with exactitude, this does not mean that they have misconceived what happened to them and who did it.”
22While the evidence of children must be assessed in the context of their age and maturity, this does not lessen the burden of proof on the Crown. Proof beyond a reasonable doubt remains the standard for conviction, even though the complainants are young.
Evidence of A.R.
21A.R. gave a statement to Detective Constable Scott Orson on April 7, 2022, when she was 12 years old and in grade 6. At the beginning, A.R. promised to tell the truth to the officer. The video recording of her statement was played during the trial. In the video, she presented as a friendly, serious and thoughtful 12 year old. She generally spoke without hesitation and answered the officer’s questions directly. Most of her answers were detailed. The information came from her. The officer did not ask her leading questions.
22During the trial, A.R. was 14 years old. She adopted the statement and said that the transcript of it was accurate. She described in the video what happened to her and that it was how she remembered it. She stated that she was being honest when she gave the statement.
23A.R. described four incidents in which she stated that the defendant touched her sexually. She told DC Orson that the first incident happened during the evening, maybe around February, in the basement of her house. In her testimony, A.R. stated that she would go down to the basement two or three times a day to hang out with D.R.M., watch videos, visit her brother, play video games with him, and get something for her mother.
24A.R. stated that from 2018 to 2021 there was a grey couch in the basement living room. When her mother decided to run a daycare in the basement, the couch was moved out of the basement living area and put into another basement room that was used for storage. Her mother put a table and chairs in the basement for the children in the spot where the couch had been. The couch was brought back into the living area each night after the children left. It was put in the location where the children’s table and chairs had been.
25A.R. stated that she was 11 and probably in grade 5 when the first incident occurred. She and C.P.R. were playing a video game. She was lying on the couch which was in front of a window. C.P.R. was lying on the floor. She was wearing shorts. The defendant walked from the kitchen, lifted her legs, sat down on the couch and put her feet on him. The defendant put his hands up her shorts and started touching her. He used two fingers to touch her vagina, sort of like he was playing with it. This went on for about a minute. A.R. stated that she was scared because it was really uncomfortable. She felt like crying. She was hoping that C.P.R. would look up but he did not. On cross-examination, A.R. agreed that in her police statement, she said that this occurred in the fall of 2021. She said in her statement that C.P.R. was 10 cm away from her but on reflection, she said that this was not accurate. He was half a meter away. A.R. did a sketch of the living room furniture lay out for DC Olson. This sketch was made a trial exhibit.
26A.R. told DC Orson that the second incident happened in the defendant’s bedroom. She stated that she was lying down on the bed. The defendant came in and laid down beside her. He put his hand in her pants. First, he touched her vagina but not directly. He touched her where her underwear was still covering her. Then he put his hand under her underwear so he was directly touching her vagina. Then he sat up, took the blanket off and pulled down her pants. He put his mouth on her vagina. A.R. stated that she was more scared than before. She wanted to cry. A.R. did a sketch of the bedroom furniture lay out for DC Olson. This sketch was made a trial exhibit.
27A.R. told DC Orson that the third incident happened in the basement late at night. She stated that she was watching TV on the defendant’s phone. He was sitting on the couch and pulled her up on top of his knee. She told him she did not want to be on his knee. He did not say anything. She was facing away from him. He put his hands underneath her shirt and started touching her breasts. She stated that she did not know what to do because he was much older than she was.
28A.R. told DC Orson that the fourth incident happened at the defendant’s townhouse. She described it as happening on a weekend after the R.Z. family moved. She was 12 then and was there for a sleepover, sharing N.R.’s bed. She was wearing a tank top and pyjamas.
29She woke up early and opened her tablet. Because of the noise, N.R. told her to go downstairs if she was not going back to sleep. As she made her way downstairs, she could see the defendant in the living room. He was sitting on a couch watching his phone. She went in and sat down across from him. Half an hour passed before anything happened. He asked her to sit with him. She said no. She got up and went to the kitchen to get a drink. He then got up. She was going to turn around but he was there. They were in a position like people dancing. He brought her into the kitchen and started touching her. He got down on one knee and pulled her pants and underwear down and started touching her. At one point he started licking her vagina. She stated that she was getting really nervous and wanted to cry. When he was done, she went to the bathroom and started crying. After that, he pretended like nothing had happened.
30A.R. was uncertain as to when this happened. Initially, she said it was before March break, then probably in 2020 but she could not remember. Then she said it was before Valentine’s Day, then maybe around the Christmas holidays. Then she stated that she did not know whether it was in 2022.
31A.R. stated that she spoke to a friend about the incidents closer to the time when they happened. The friend said she should speak to someone about it. A.R. stated the reason for her not doing so until 2022 was that she did not want to get her uncle in trouble.
32A.R. stated that she started having visions about the incidents. They were like flashbacks and distracted her at school. She became concerned that someone was watching her in her bedroom although there was no camera in there. In her trial testimony, A.R. stated that a staff member at her school held a workshop about stress. After that, she decided to speak to the teacher about the incidents. She stated, “I kind of felt like I needed someone to talk to because for me, it felt like carrying a bunch of bricks on me.”
Evidence of the Defendant
33The defendant is 48 years old. He worked Monday to Friday and, before 2021, also on Saturdays. From Monday to Friday he started work at 7 a.m. and would return home between 5 p.m. and 7 p.m. On Saturdays, he worked from 7 a.m. to 12 noon or 1 p.m. Aside from Saturdays, the timing of his return home at the end of a work day depended on the location of the job site. If he were working in Orillia or Oro-Medonte, he would be home by 5:30. If he were working in Muskoka or Georgina, he would be home by 6:45 – 7 p.m. L.R. and N.R. were there when he returned home. S.G. worked six days a week, either 8 a.m. to 3 p.m. or the reverse. If S.G. were working from 8 a.m. to 3 p.m. she would also be home when he returned. If S.G. were working from 3 p.m. to 8 p.m., there would be a 1.5 to 2 hour period when he was home but S.G. was not.
34The defendant gave a statement to a Spanish speaking police officer, Constable Serna, on April 14, 2022. It was translated into English and a transcript was provided to the court. Regarding the basement in …, Constable Serna asked the defendant, “What’s in the living room?” He replied, “Nothing, empty.” He denied that there was a couch.[2] He was asked, “Okay, but the three years that you lived there, what was there in that living room? Wasn’t there a…what was there? Was there a couch, was there a bed, was there a TV, a table? What was there in that… in that living room?” He replied, “There was only one…a fireplace…to help heating part of …”[3] Later, regarding the basement living room, he was asked, “…do you remember if there was a couch, a sofa bed, a mattress?” He replied, “No, nothing, no, just the chairs for the [island].”[4] He was asked “What was in front of [the table] Wasn’t there a couch?” His response was, “No, just the…window to see outside.”[5]
35The defendant testified that when he was not working, he would relax and hang out in the basement. He stated that the contents of the basement living room consisted of kitchen appliances and some chairs beside a kitchen island. There could be up to seven people in the basement living room all at once but there were only three chairs. He did not mention the couch. When that was brought to his attention, he conceded that it was there in the living room when he arrived in May 2018. It could seat four people. He stated he believed that it was moved out at the end of 2019, although he was not sure. It was removed because L.R. wanted to start a daycare business. More space was needed for the children’s dining area, toys and carpets. He stated that the couch went into a storage room. It was not put back into the living room before the R.Z. family moved to the townhouse.
36The defendant stated that when he was hanging out in the basement, he would watch things on his phone. The TV did not work. When A.R.’s tablet was taken away from her, he lent her his phone so that she could watch videos. They did not watch videos together.
37He stated that in the three years that he lived at …, he was never alone in the basement with A.R. In his police interview, he was asked, “Were you ever alone with A.R.?” He replied “No, my wife and daughter were always there.”[6] He testified that when N.R. had homework, she would do it in her bedroom. He did not know what N.R. studied in university. He stated, “The truth is that I never asked her.” He guessed that it was business administration. Shortly afterwards, in his testimony, he said, “I did ask her”. The Crown stated, “You forgot?” He stated, “At this time I can’t remember.”
38In cross-examination, the defendant stated he and S.G. always went upstairs together to chat with L.R. Then he conceded that rarely, there could have been times when S.G. went upstairs to chat with L.R. and he remained downstairs with A.R. When the Crown stated, “Now you can recall times when she [S.G.] went up alone”, his answer was, “I don’t know. It’s possible.” Subsequently, he stated, “It’s possible. I can’t remember.”
39When the Crown asked, “In instances when your daughter wasn’t there [in the basement living room] there were some rare moments when your wife would go upstairs and you would stay in the basement?” His response was “You can’t prove that!” Later, when asked, “Was there ever a moment when your wife would go up to see L.R. and you were in the basement and N.R. wasn’t there” he responded, “It is possible that I was there by myself” and that this probably occurred in the evenings during the week if he were working. When asked whether A.R. could have been in the basement with only him, he stated, “No. She was always with C.P.R.” He agreed that sometimes C.P.R. might need to use the washroom “and that would make him alone with A.R.”.
40The defendant denied that any of the touching incidents happened. He never saw A.R. lying on his bed. He agreed that A.R. and C.P.R. had a sleep over at the townhouse in mid-September, two to three weeks after he and his family moved there. A.R. wanted to spend time with N.R. On that night, he and S.G. went to bed around 9 p.m. A.R. stayed up with C.P.R. in the living room. The next morning, he got up around 6:30 a.m. S.G. was preparing breakfast. She had to work that day. He did not recall when he saw A.R. that day. He did not know what she and C.P.R. did nor when they went home. He stated that he had no interaction with A.R. at all that morning before other people were up.
41The defendant stated that when his family moved to the townhouse, he made the rules. Anyone living there had to follow them. He denied he had authority over A.R. on the sleepover date. He said N.R. was responsible for her. He agreed that if something happened to her, L.R. and C.R. would look to S.G. and him because they were responsible for A.R. When asked whether A.R. had to follow his house rules when she was there, he stated, “We don’t have any rules.” Subsequently, he stated that S.G. would be responsible for anything that happened to A.R. because she was S.G.’s direct family. He was not responsible if something happened to her. He stated that although anyone in the home would be his responsibility, “somehow” he did not have authority over A.R.
Evidence of S.G.
42Initially, S.G. described the basement living room as an “small empty space”. She said she would not describe it as a living room. Subsequently, she stated that there was a couch in the room when she arrived and began living in the R.P. house. In October 2019, L.R. decided to operate a daycare business in the basement so she and L.R. moved the couch to a storage room to make space for the children’s toys and furniture. The daycare had to close in March 2020 for approximately three months due to COVID. It re-opened in mid-June 2020. The couch was never moved back to the basement living room while she lived there. S.G. stated that the couch’s legs were lost. That was another reason why the couch was not moved back into the basement living room.
43S.G. stated that the sleepover took place in September 2021 two weeks after the R.Z. family moved to the townhouse. To her, it was not a significant event. The R.P. family came for dinner after which A.R. and C.P.R. stayed. The plan was for A.R. to sleep in N.R.’s bedroom. S.G. stated that A.R., C.P.R. and N.R. went out for a walk after dinner. She and the defendant went to bed at 9 p.m., which was their typical bedtime. She stated that she got up at 6 a.m. the next morning, which her regular time. The defendant was still in bed. She went to the washroom and then downstairs to the kitchen to prepare breakfast. On her way down the stairs, she saw A.R. sitting on the stairs outside of N.R.’s room, looking at her tablet. A.R. told her that she was sitting there because she could not sleep. S.G. testified that she told A.R. to go back into the room. She was able to see A.R.’s face. She did not look like she had been crying. After this encounter, S.G. did not see A.R. again that day. The defendant drove her to work.
44S.G. stated that she made breakfast every day. On the days when the defendant was working, she would get up at 4:30 a.m. to make breakfast. He would leave for work between 5 a.m. and 6 a.m. and typically return at 6 p.m. When she was working the afternoon shift, she worked until 8 p.m. or 9 p.m. The defendant would be home two to three hours before she arrived home after work.
45S.G. stated that the defendant spent most of his time in the basement. Sometimes they would go upstairs to visit L.R. Occasionally, she went upstairs while the defendant stayed in the basement.
46S.G. stated that the R.Z. family would be in financial jeopardy if the defendant were convicted and not working. He was the main provider. She earned less than half of what he did.
47Regarding their immigration status, S.G. stated that she, the defendant and N.R. had work permits. They were waiting to be granted permanent residency. She understood that if the defendant were convicted, he could be deported. Honduras is a dangerous country. The R.Z. family would be in a lot of physical danger if they returned.
Evidence of N.R.
48N.R. stated that in May 2018, when she first arrived at the R.P. house, there was a couch in the basement living room. It was moved between October and November 2019 because it took up too much room. It was put in a storage room and was never moved back into the basement living room while she was living there. She identified a photo that L.R. posted[7] on Facebook in 2020 showing the basement living room with the daycare furniture in it. She identified the place where the couch was located before it was moved.
49N.R. stated that on the evening of the sleepover, after dinner, she, C.P.R. and A.R. went out for a walk. During the walk, she took a photo that shows herself, C.P.R. and A.R. She retrieved it from her camera. It is dated September 17, 2021, 8:50 p.m.[8] She stated that they returned home a bit after midnight. A.R. slept in bed with her.
50Initially, N.R. stated that nothing happened during the night. Then she stated that between 5 to 7 a.m., she woke up because A.R. was watching videos on her tablet and the volume was high. N.R. testified that she asked A.R. to turn down the volume or get out of the room. A.R. left the bedroom and remained by the stairs. N.R. stated that the bedroom door was partly open so she could see A.R.’s feet. She could still hear the sound from the tablet. Approximately 10 to 15 minutes later, she heard her mother tell A.R. to turn it off and go back to sleep. A.R. came back into the room, put the tablet under her pillow and went to sleep.
51N.R. stated that she woke up after 8 a.m. Her parents were not home. She woke up C.P.R. and A.R. and then made breakfast. After that, she drove them to a bus stop.
Assessing Credibility and Reliability
52In R. v. Guisalta, 2023 ONSC 2694 para. 141, Justice DiLuca made the following observations about assessing credibility and reliability:
141 There is no magic formula that applies in determining whether a witness is telling the truth. Instead, the witness' evidence is considered using a common-sense approach that is not tainted by myth, stereotype or assumption. There are many factors that may be relevant in determining credibility. Some of the key factors include: whether the witness' evidence is internally consistent, whether it is externally consistent with evidence from other witnesses or exhibits; whether the witness has a bias or motive to give evidence that is more favourable to one side or the other, whether inconsistencies in the evidence are about important or minor matters, what explanations are given for any inconsistencies and whether the inconsistencies suggest that the witness is lying.
142 In assessing a witness' testimony, there is a distinction between credibility and reliability. Reliability relates to the accuracy of the witness' testimony which engages a consideration of the witness' ability to accurately observe, recall and recount an event; see R. v. H.C., 2009 ONCA 56 at para. 41. At times, a witness may credibly recount an observation or occurrence. However, that evidence may lack reliability for a number of reasons, including the conditions under which the witness made the observation as well as the impact of information received by the witness after an event. An incredible witness's evidence cannot be relied on. However, the converse is not automatically true as credibility is not a proxy for reliability. A credible witness may, nonetheless, give unreliable evidence; see R. v. Morrissey(1995), 1995 CanLII 3498 (ON CA), 22 O.R. (3d) 514 (C.A.) at p. 526…
144 The methodology for assessing the evidence in cases where credibility is a key issue was set out by the Supreme Court of Canada many years ago in R. v. W.(. The W. (D.) methodology is not a rigid or formalistic rule that requires rote incantation. Rather, it is an analytical framework that serves to emphasize the burden of proof and the presumption of innocence by ensuring that criminal cases are not reduced to credibility contests; see R. v. J.H.S., 2008 SCC 30 and R. v. C.L.Y., 2008 SCC 2…
146 … in considering the first two steps of the W. (D.) analysis, the evidence of the defendant must be considered in the context of the evidence as a whole. In other words, the assessment is not simply whether the defendant's evidence standing alone and without context is believed or leaves a reasonable doubt; see R. v. Carriere(2001), 2001 CanLII 8609 (ON CA), 159 C.C.C. (3d) 51 (Ont.C.A.) at para. 51, R. v. Hull, 2006 CanLII 26572 (ON CA), and R. v. J.J.R.D.(2006), 2006 CanLII 40088 (ON CA), 215 C.C.C. (3d) 252 (Ont.C.A.).
147 Third, the second step of the W. (D). analysis is important. It emphasizes the point that there is a third alternative between complete acceptance and complete rejection of a defendant's evidence; see R. v. J.E., 2012 ONSC 3373 at para. 20 and R. v. J.M.,2018 ONSC 344 at paras. 9-20.
Credibility and reliability of A.R.’s Evidence
53A.R.’s evidence regarding the dates of when events occurred is not reliable. In her April 2022 police statement, A.R. said that the first incident happened the previous fall on the couch. In her testimony she agreed that this would be the fall of 2021. This cannot be correct because the defendant and his family moved out of … in early September, 2021. I accept that the couch was moved from the basement living room to the storage room prior to March 2020 to make space for the daycare.
54A.R. stated that after the couch was taken out of the living room when the daycare began operations, it was brought back into the room every night. I find that this is unlikely. It was a large object to move. N.R. provided a photo of the living room area. Without moving the daycare tables, chairs, small sofa and toys, there would not be enough room for the couch.
55The defence states that A.R. fabricated her evidence about the couch’s being moved back and forth to support her evidence that the first incident happened on the couch in the fall of 2021. The defence states that this taints all of her evidence. This court should find that she is not credible.
56Under cross-examination, A.R. readily admitted that in her police statement she could not accurately recall when the sleepover took place. She stated in her testimony that she still could not accurately recall it.
57I am mindful of Justice Wilson’s statement in R. v. B.(G.) at p. 55 that “[w]hile children may not be able to recount precise details and communicate the when and where of an event with exactitude, this does not mean that they have misconceived what happened to them and who did it.” A.R. was 14 when she testified at trial about incidents and events that occurred when she was 9 or 10 years old. The fact that A.R. made a mistake about the couch’s being moved every night and the fact that she could not accurately recall when the sleepover happened does not diminish the reliability of her other evidence regarding the defendant’s touching her. She gave detailed evidence about each of the four incidents.
58Overall, A.R.’s evidence was generally consistent with her police statement. She responded to the questions asked without evasion. She readily stated that she could not remember certain dates. Although demeanour is only one factor to consider when assessing credibility and reliability, A.R. presented her evidence in a matter of fact way. At no time was she defensive or argumentative with counsel. She had no motive to lie. Being mindful of how to assess children’s evidence, I find that her evidence is generally credible and reliable.
Credibility and Reliability of the Defendant’s Evidence
59In his police statement, the defendant maintained that he was never alone with A.R. In his testimony, he was very defensive and conceded a possibility only after significant cross-examination. His evidence that he was never alone with A.R. defies logic and common sense because he lived at the R.P. house for over three years. He was argumentative when the Crown made the suggestion that S.G. might have gone upstairs to visit L.R. while he stayed in the basement. He responded by saying loudly, “You can’t prove that!”
60The Spanish speaking officer who interviewed the defendant asked, “OK but the three years you lived there, what was there in that living room? Wasn’t there a …what was there? Was there a couch? Was there a bed? Was there a TV, a table? What was there in that …in that living room?”[9] His answer was, “There was only one…a fireplace.” His denial of the couch’s being there from when he arrived in May 2018 and for the following three years was an attempt to distance himself from the allegations. To explain this, he testified that the couch never entered his mind when he was giving his statement to the police, even though he was specifically asked about its presence. This defies credulity. He also stated that he never mentioned the daycare or the toys in his police statement because “It was a personal matter of my sister-in-law.”
61On re-examination, counsel asked him how he understood the officer’s question. After a significant pause he answered that he thought he was being asked what was there now, “the present time period”. His stating that he misunderstood the question that begins with, “Okay but the three years that you lived there…” is unbelievable. The language is clear. Either way his answer makes no sense. N.R. stated that a couch was in the living room when they arrived. Unless the defendant returned to the R.P. house and visited the basement after moving, he could not know what was in the living room when he gave his police statement. There was no evidence that he returned to the basement in the seven months prior to giving his statement. In the second day of his testimony, the defendant stated that there was a couch in the living room from when he arrived until the end of 2019.
62The defendant stated that he and S.G. always went to bed together at the same time. He could not remember an occasion, in the 3 year and 4 month period when the R.Z. family lived with the R.P. family, when S.G. went to bed earlier than he did. It was not possible because he had to get up early to go to work. This is self-serving and strains credulity. He did not work on Sundays. He worked on Saturdays only until 2020.
63The Crown suggested that the defendant exercised some authority over A.R. His testimony that he made the rules at the townhouse, which everyone had to follow, his evidence that he had no control over A.R. when she was there and, a few minutes later, his testimony that there were no rules defies logic. His stating that C.R. and L.R. would look to only S.G. because she was the blood relative, not to him if anything happened to A.R., is contrary to common sense.
64The defendant was evasive in some of his answers. For example, the Crown asked, “Every single time you’d go up [upstairs] with your wife to see L.R.? His response was, “She wouldn’t go up every day.” The defendant’s memory at times was poor. For example, he was asked, “What was N.R. studying at university?” He stated that he never asked her. Then he stated that he did ask her but could not remember.
65I give the defendant’s evidence limited weight.
Credibility and reliability of S.G.’s evidence
66S.G. had a motive to give testimony that was favourable to the defendant because if he were to be convicted, the R.Z. family would be in financial trouble. If the defendant were deported, the family might be separated.
67Like the defendant, S.G. initially described the basement living room as an empty space. She attempted to discount the presence of the couch, the piece of furniture upon which two of the sexual assaults are alleged to have occurred.
68The photo provided by N.R. shows the basement living room with the daycare furniture in it. It was not a small space. It was rectangular and, according to N.R., wide enough for the couch to be placed across the room.
69I give S.G.’s evidence limited weight.
Credibility and Reliability of N.R. evidence
70At times, N.R.’s answers were evasive. She stated that after her father was released, they met as a family and talked about the situation. She was asked how many times she had spoken to her father privately in their home after he was charged. She stated, “We’ve talked mostly about what the lawyer was saying or how things were going.” This did not respond to the question. She was asked whether she had spoken to her mother about the matter after the family meeting. She said, “Not that I recall.” This stretches credulity.
71Initially she said that nothing happened on the night of the sleepover. Then she provided details about A.R.’s sitting outside her bedroom door. This contradiction is troubling.
72N.R. stated that even though C.P.R.’s bedroom was in the basement, A.R. did not spend a lot of time there. A.R.’s bedroom was next to N.R.’s. She liked to spend time watching videos in both rooms. This testimony was an attempt to reduce the amount of time that A.R. spent with the defendant in the basement living room.
73I give N.R.’s evidence limited weight.
Conclusion
74Considering the evidence as a whole and having accepted A.R.’s evidence, I am satisfied beyond a reasonable doubt that the defendant sexually assaulted her. I find him guilty of sexual assault and of sexual interference.
Justice M.E. Vallee
Released: January 23, 2025
NOTE: As noted in court on January 21, 2025 on the record, this written Ruling is to be considered the official version and takes precedence over the oral reasons read into the record. If there are any discrepancies between the oral and written versions, the official written Ruling is to be relied upon.
1I will refer to the witnesses and various people described in the evidence by their first names. This is because at least four of them have the same surname. Also, this is how the witnesses referred to them in testimony.
2Transcript p. 29
3Transcript p. 34
4Transcript p. 61
5Transcript p. 62
6Transcript p. 34
7Exhibit 3
8Exhibit 4
9Emphasis added